{"id":206707,"date":"1973-04-24T00:00:00","date_gmt":"1973-04-23T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/kesavananda-bharati-vs-state-of-kerala-and-anr-on-24-april-1973"},"modified":"2016-01-31T13:26:45","modified_gmt":"2016-01-31T07:56:45","slug":"kesavananda-bharati-vs-state-of-kerala-and-anr-on-24-april-1973","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/kesavananda-bharati-vs-state-of-kerala-and-anr-on-24-april-1973","title":{"rendered":"Kesavananda Bharati … vs State Of Kerala And Anr on 24 April, 1973"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Kesavananda Bharati … vs State Of Kerala And Anr on 24 April, 1973<\/div>\n
Author: Chandrachud<\/div>\n
Bench: Sikri, S.M. (Cj) Shelat, J.M., Hegde, K.S. & Grover, A.N., Ray, A.N. & Reddy, P.J. & Palekar, D.G., Khanna, Hans Raj Mathew, K.K. & Beg, M.H., Dwivedi, S.N. Mukherjea, B.K. Chandrachud, Y.V.<\/div>\n
           CASE NO.:\nWrit Petition (civil)  135 of 1970\n\nPETITIONER:\nKesavananda Bharati Sripadagalvaru and Ors\n\nRESPONDENT:\nState of Kerala and Anr\n\nDATE OF JUDGMENT: 24\/04\/1973\n\nBENCH:\nS.M. Sikri & A.N. Grover & A.N. Ray & D.G. Palekar & H.R. Khanna & J.M. Shelat & K.K. Mathew & K.S. Hegde & M.H. Beg & P. Jaganmohan Reddy & S.N. Dwivedi & Y.V.Chandrachud\n\nJUDGMENT:\n<\/pre>\n
JUDGMENT<\/p>\n
W.P.(C)    135   OF   1970
\nAppellants: His Holiness Kesavananda Bharati Sripadagalvaru and Ors.
\nVs.\n<\/p>\n
Respondent: State of Kerala and Anr.\n<\/p>\n
Decided On: 24.04.1973<\/p>\n
Hon’ble Judges:\n<\/p>\n
S.M. Sikri, C.J., A.N. Grover, A.N. Ray, D.G. Palekar, H.R. Khanna, J.M. Shelat, K.K.
\nMathew, K.S. Hegde M.H. Beg, P. Jaganmohan Reddy, S.N. Dwivedi and Y.V.
\nChandrachud, JJ.\n<\/p>\n
JUDGMENT<\/p>\n
S.M. Sikri, C.J.\n<\/p>\n
1. I propose to divide my judgment into eight parts. Part I will deal with Introduction;
\nPart II with interpretation of Golakhnath case; Part III with the interpretation of the
\noriginal Article 368, as it existed prior to its amendment; Part IV with the validity of the
\nConstitution (Twenty-fourth Amendment) Act; Part V with the validity of Section 2 of
\nthe Constitution (Twenty-fifth Amendment) Act; Part VI with the validity of Section 3 of
\nthe Constitution (Twenty-fifth Amendment) Act; Part VII with Constitution (Twenty-
\nninth Amendment) Act; and Part VIII with conclusions.\n<\/p>\n
PART I-Introduction<\/p>\n
2. All the six writ petitions involve common questions as to the validity of the Twenty-
\nfourth, Twenty-fifth and Twenty-ninth Amendments of the Constitution. I may give a few
\nfacts in Writ petition No. 135 of 1970 to show how the question arises in this petition.
\nWrit Petition No. 135 of 1970 was filed by the petitioner on March 21, 1970 under
\nArticle 32 of the Constitution for enforcement of his fundamental rights under Articles
\n25, 26, 14, 19(1)(f) and 31 of the Constitution. He prayed that the provisions of the
\nKerala Land Reforms Act, 1963 (Act 1 of 1964) as amended by the Kerala Land Reforms
\n(Amendment) Act 1969 (Act 35 of 1969) be declared unConstitutional, ultra vires and
\nvoid. He further prayed for an appropriate writ or order to issue during the pendency of
\nthe petition. This Court issued rule nisi on March 25, 1970.\n<\/p>\n
3. During the pendency of the writ petition, the Kerala Land Reforms (Amendment) Act
\n1971 (Kerala Act No. 25 of 1971) was passed which received the assent of the President
\non August 7, 1971. The petitioner filed an application for permission to urge additional
\ngrounds and to impugn the Constitutional validity of the Kerala Land Reforms
\n(Amendment) Act 1971 (Kerala Act No. 25 of 1971).\n<\/p>\n
4. In the meantime, the Supreme Court by its judgment dated April 26, 1971 in
\nKunjukutty Sahib v. State of Kerala [1972] S.C.C. 364 (Civil Appeals Nos. 143, 203-242,
\n274 & 309 of 1971). Judgment dated April 26, 1971 upheld the majority judgment of the
\nKerala High Court in V.N. Narayanan Nair v. State of Kerala A.I.R. 1971 Kerala 98
\nwhereby certain, sections of the Act were struck down.\n<\/p>\n
5. The Constitution (Twenty-fifth Amendment) Act came into force on November 5,
\n1971, the Constitution (Twenty-fifth Amendment) Act came into force on April 20, 1972
\nand the Constitution (Twenty-ninth Amendment) Act came into force on June 9, 1972.
\nThe effect of the Twenty-ninth Amendment of the Constitution was that it inserted the
\nfollowing Acts in the Ninth Schedule to the Constitution:\n<\/p>\n
65. The Kerala Land Reforms (Amendment) Act, 1969 (Kerala Act 35 of
\n1969).\n<\/p>\n
66. The Kerala Land Reforms (Amendment) Act, 1971 (Kerala Act 25 of
\n1971).\n<\/p>\n
6. The petitioner then moved an application for urging additional grounds and for
\namendment of the writ petition in order to challenge the above Constitutional
\namendments.\n<\/p>\n
7. The Court allowed the application for urging additional grounds and for amendment of
\nthe writ petition on August 10, 1972 and issued notices to the Advocates-General to
\nappear before this Court and take such part in the proceedings as they may be advised.\n<\/p>\n
8. When the case was placed before the Constitutional bench, it referred this case to a
\nlarger bench to determine the validity of the impugned Constitutional amendments.\n<\/p>\n
9. Similar orders were passed in the other writ petitions.\n<\/p>\n
10. The larger bench was accordingly constituted. It was then felt that it would be
\nnecessary to decide whether I.C. Golak Nath v. State of Punjab [1967] 2 S.C.R. 762 was
\nrightly decided or not. However, as I see it, the question whether Golak Nath’s [1967] 2
\nS.C.R. 762 case was rightly decided or not does not matter because the real issue is
\ndifferent and of much greater importance, the issue being : what is the extent of the
\namending power conferred by Article 368 of the Constitution, apart from Article 13(2),
\non Parliament ?\n<\/p>\n
11. The respondents claim that Parliament can abrogate fundamental rights such as
\nfreedom of speech and expression, freedom to form associations or unions, and freedom
\nof religion. They claim that democracy can even be replaced and one-party rule
\nestablished. Indeed, short of repeal of the Constitution, any form of Government with no
\nfreedom to the citizens can be set up by Parliament by exercising its powers under Article\n<\/p>\n
368.\n<\/p>\n
12. On the side of the petitioners it is urged that the power of Parliament is much more
\nlimited. The petitioners say that the Constitution gave the Indian citizen freedoms which
\nwere to subsist for ever and the Constitution was drafted to free the nation from any
\nfuture tyranny of the representatives of the people. It is this freedom from tyranny which,
\naccording to the petitioners, has been taken away by the impugned Article 31C which has
\nbeen inserted by the Twenty-fifth Amendment. If Article 31C is valid, they say, hereafter
\nParliament and State Legislatures and not the Constitution, will determine how much
\nfreedom is good for the citizens.\n<\/p>\n
13. These cases raise grave issues. But however grave the issues may be, the answer must
\ndepend on the interpretation of the words in Article 368, read in accordance with the
\nprinciples of interpretation which are applied to the interpretation of a Constitution given
\nby the people to themselves.\n<\/p>\n
14. I must interpret Article 368 in the setting of our Constitution, in the background of
\nour history and in the light of our aspirations and hopes, and other relevant
\ncircumstances. No other Constitution in the world is like ours. No other Constitution
\ncombines under its wings such diverse peoples, numbering now more than 550 millions,
\nwith different languages and religions and in different stages of economic development,
\ninto one nation, and no other nation is faced with such vast socio-economic problems.\n<\/p>\n
15. I need hardly observe that I am not interpreting an ordinary statute, but a Constitution
\nwhich apart from setting up a machinery for government, has a noble and grand vision.
\nThe vision was put in words in the Preamble and carried out in part by conferring
\nfundamental rights on the people. The vision was directed to be further carried out by the
\napplication of directive principles.\n<\/p>\n
PART II-Interpretation of Golak Nath’s Case.\n<\/p>\n
16. Before proceeding with the main task, it is necessary to ask : what was decided in I.C.
\nGolak Nath v. State of Punjab [1967] 2 S.C.R. 762 ? In order to properly appreciate that
\ncase, it is necessary first to have a look at Sri Sankari Prasad Singh Deo v. Union of India
\nand State of Bihar [1952] S.C.R. 89 and Sajjan Singh v. State of Rajasthan [1965] 1
\nS.C.R. 933.\n<\/p>\n
17. The Constitution (First Amendment) Act, 1951, which inserted inter alia Articles 31A
\nand 31B in the Constitution was the subject matter of decision in Sankari Prasad’s [1952]
\nS.C.R. 89 case. The main arguments relevant to the present case which were advanced in
\nsupport of the petition before this Court were summarised by Patanjali Sastri, J. as he
\nthen was, as follows:\n<\/p>\n
First, the power of amending the Constitution provided for under Article
\n368 was conferred not on Parliament but on the two Houses of Parliament
\nas designated body and, therefore, the provisional Parliament was not
\ncompetent to exercise that power under Article 379.\n<\/p>\n
Fourthly, in any case Article 368 is a complete code in itself and does not
\nprovide for any amendment being made in the bill after it has been
\nintroduced in the House. The bill in the present case having been
\nadmittedly amended in several particulars during its passage through the
\nHouse, the Amendment Act cannot be said to have been passed in
\nconformity with the procedure prescribed in Article 368.\n<\/p>\n
Fifthly, the Amendment Act, in so far as it purports to take away or
\nabridge the rights conferred by Part III of the Constitution, falls within the
\nprohibition of Article 13(2).\n<\/p>\n
 X X X\n<\/p>\n
18. As stated in the head note, this Court held:\n<\/p>\n
The provisional Parliament is competent to exercise the power of
\namending the Constitution under Article 368. The fact that the said article
\nrefers to the two Houses of the Parliament and the President separately and
\nnot to the Parliament, does not lead to the inference that the body which is
\ninvested with the power to amend is not the Parliament but a different
\nbody consisting of the two Houses.\n<\/p>\n
The words “all the powers conferred by the provisions of this Constitution
\non Parliament” in Article 379 are not confined to such powers as could be
\nexercised by the provisional Parliament consisting of a single chamber,
\nbut are wide enough to include the power to amend the Constitution
\nconferred by Article 368.\n<\/p>\n
19. I may mention that Mr. Seervai contends that the conclusion just mentioned was
\nwrong and that the body that amends the Constitution under Article 368 is not
\nParliament.\n<\/p>\n
20. The Court further held:\n<\/p>\n
The view that Article 368 is a complete code in itself in respect of the
\nprocedure provided by it and does not contemplate any amendment of a
\nBill for amendment of the Constitution after it has been introduced, and
\nthat if the Bill is amended during its passage through the House, the
\nAmendment Act cannot be said to have been passed in conformity with
\nthe procedure prescribed by Article 368 and would be invalid, is
\nerroneous.\n<\/p>\n
Although “law” must ordinarily include Constitutional law there is a clear
\ndemarcation between ordinary law which is made in the exercise of
\nlegislative power and Constitutional law, which is made in the exercise of
\nconstituent power. In the context of Article 13, “law” must be taken to
\nmean rules or regulations made in exercise of ordinary legislative power
\nand not amendments to the Constitution made in the exercise of
\nconstituent power with the result that Article 13(2) does not affect
\namendments made under Article 368.\n<\/p>\n
21. Although the decision in Sankari Prasad’s [1952] S.C.R. 89 case was not challenged
\nin Sajjan Singh’s [1965] 1 S.C.R. 933 case, Gajendragadkar, C.J. thought it fit to give
\nreasons for expressing full concurrence with that decision.\n<\/p>\n
22. The only contention before the Court was that “since it appears that the powers
\nprescribed by Article 226 are likely to be affected by the intended amendment of the
\nprovisions contained in Part III, the bill introduced for the purpose of making such an
\namendment, must attract the proviso, and as the impugned Act has admittedly not gone
\nthrough the procedure prescribed by the proviso, it is invalid”. According to
\nGajendragadkar, C.J. “that raised the question about the construction of the provisions
\ncontained in Article 368 and the relation between the substantive part of Article 368 with
\nits proviso.\n<\/p>\n
23. The Chief Justice came to the conclusion that “as a matter of construction, there is no
\nescape from the conclusion that Article 368 provides for the amendment of the provisions
\ncontained in Part III without imposing on Parliament an obligation to adopt the procedure
\nprescribed by the proviso.\n<\/p>\n
24. The learned Chief Justice thought that the power to amend in the context was a very
\nwide power and it could not be controlled’ by the literal dictionary meaning of the word
\n“amend”. He expressed his agreement with the reasoning of Patanjali Sastri, J. regarding
\nthe applicability of Article 13(2) to Constitution Amendment Acts passed under Article\n<\/p>\n
368. He further held that when Article 368 confers on Parliament the right to amend the
\nConstitution, it can be exercised over all the provisions of the Constitution. He thought
\nthat “if the Constitution-makers had intended that any future amendment of the
\nprovisions in regard to fundamental rights should be subject to Article 13(2), they would
\nhave taken the precaution of making a clear provision in that behalf.\n<\/p>\n
25. He seemed to be in agreement with the following observations of Kania, C.J. in A.K.
\nGopalan v. The State of Madras<\/a> [1950] S.C.R. 88 at p. 100:\n<\/p>\n
the inclusion of Article 13(1) and (2) in the Constitution appears to be a
\nmatter of abundant caution. Even in their absence if any of the
\nfundamental rights was infringed by any legislative enactment, the Court
\nhas always the power to declare the enactment, to the extent it transgresses
\nthe limits, invalid.\n<\/p>\n
26. He was of the view that even though the relevant provisions of Part III can be justly
\ndescribed as the very foundation and the cornerstone of the democratic way of life
\nushered in this country by the Constitution, it cannot be said that the fundamental rights
\nguaranteed to the citizens are eternal and inviolate in the sense that they can never be
\nabridged or amended.\n<\/p>\n
27. According to him, it was legitimate to assume that the Constitution-makers visualised
\nthat Parliament would be competent to make amendments in these rights so as to meet the
\nchallenge of the problems which may arise in the course of socio-economic progress and
\ndevelopment of the country.\n<\/p>\n
28. Hidayatullah, J., as he then was, agreed with the Chief Justice that the 17th
\nAmendment was valid even though the procedure laid down in the proviso to Article 368
\nhad not been followed. But he expressed his difficulty in accepting the part of the
\nreasoning in Sankari Prasad’s [1952] S.C.R. 89 case.\n<\/p>\n
29. He observed as follows:\n<\/p>\n
It is true that there is no complete definition of the word “law”‘ in the
\narticle but it is significant that the definition does not seek to exclude
\nConstitutional amendments which it would have been easy to indicate in
\nthe definition by adding “but shall not include an amendment of the
\nConstitution”.\n<\/p>\n
30. He further observed:\n<\/p>\n
The meaning of Article 13 thus depends on the sense in which the word
\n“law” in Article 13(2) is to be understood. If an amendment can be said to
\nfall within the term “law”, the Fundamental Rights become “eternal and
\ninviolate” to borrow the language of the Japanese Constitution. Article 13
\nis then on par with Article 5 of the American Federal Constitution in its
\nimmutable prohibition as long as it stands.\n<\/p>\n
31. According to him “Our Preamble is more akin in nature to the American Declaration
\nof Independence (July 4, 1776) then to the preamble to the Constittuion of the United
\nStates. It does not make any grant of power but it gives a direction and purpose to the
\nConstitution which is reflected in Parts III and IV. Is it to be imagined that a two-thirds
\nmajority of the two Houses at any time is all that is necessary to alter it without even
\nconsulting the States ? It is not even included in the proviso to Article 368 and it is
\ndifficult to think that as it has not the protection of the proviso it must be within the main
\npart of Article 368.\n<\/p>\n
32. He further observed:\n<\/p>\n
I would require stronger reason than those given in Sankari Prasad’s case
\nto make me accept the view that Fundamental Rights were not really
\nfundamental but were intended to be within the powers of amendment in
\ncommon with the other parts of the Constitution and without the
\nconcurrence of the States.\n<\/p>\n
33. He held:\n<\/p>\n
What Article 368 does is to lay down the manner of amendment and the
\nnecessary conditions for the effectiveness of the amendment….
\nThe Constitution gives so many assurances in Part III that it would be
\ndifficult to think that they were the play-things of a special majority. To
\nhold this would mean prima facie that the most solemn parts of our
\nConstitution stand on the same footing as any other provision and even on
\na less firm ground than one on which the articles mentioned in the proviso
\nstand.\n<\/p>\n
34. Mudholkar, J. although agreeing that the writ petition should be dismissed, raised
\nvarious doubts and he said that he was reserving his opinion on the question whether
\nSankari Prasad’s case was rightly decided. He thought:\n<\/p>\n
The language of Article 368 is plain enough to show that the action of
\nParliament in amending the Constitution is a legislative act like one in
\nexercise of its normal legislative power. The only difference in respect of
\nan amendment of the Constitution is that the Bill amending the
\nConstitution has to be passed by a special majority (here I have in mind
\nonly those amedments which do not attract the proviso to Article 368).
\nThe result of a legislative action of a legislature cannot be other than ‘law’
\nand, therefore, it seems to me that the fact that the legislation deals with
\nthe amendment of a provision of the Constitution would not make its
\nresult any the less a ‘law’.\n<\/p>\n
35. He observed:\n<\/p>\n
It is true that the Constitution does not directly prohibit the amendment of
\nPart III. But it would indeed be strange that rights which are considered to
\nbe fundamental and which include one which is guaranteed by the
\nConstitution (vide Article 32) should be more easily capable of being
\nabridged or restricted than any of the matters referred to in the proviso to
\nArticle 368 some of which are perhaps less vital than fundamental rights.
\nIt is possible, as suggested by my learned brother, that Article 368 merely
\nlays down the procedure to be followed for amending the Constitution and
\ndoes not confer a power to amend the Constitution which, I think, has to
\nbe ascertained from the provision sought to be amended or other relevant
\nprovisions or the preamble.\n<\/p>\n
36. Later, he observed:\n<\/p>\n
Above all, it formulated a solemn and dignified preamble which appears to
\nbe an epitome of the basic features of the Constitution. Can it not be said
\nthat these are indica of the intention of the Constituent Assembly to give a
\npermanency to the basic features of the Constitution ?\n<\/p>\n
37. He posed a further question by observing:\n<\/p>\n
It is also a matter for consideration whether making a change in a basic
\nfeature of the Constitution can be regarded merely as an amendment or
\nwould it be, in effect, rewriting a part of the Constitution; and if the latter,
\nwould it be within the purview of Article 368 ?\n<\/p>\n
38. He then stressed the prime importance of the preamble:\n<\/p>\n
The Constitution indicates three modes of amendments and assuming that
\nthe provisions of Article 368 confer power on Parliament to amend the
\nConstitution, it will still have to be considered whether as long as the
\npreamble stands unamended, that power can be exercised with respect to
\nany of the basic features of the Constitution.\n<\/p>\n
To illustrate my point, as long as the words ‘sovereign democratic
\nrepublic’ are there, could the Constitution be amended so as to depart from
\nthe democratic form of Government or its republic character? If that
\ncannot be done, then, as long as the words “Justice, social, economic and
\npolitical etc.,” are there could any of the rights enumerated in Articles 14
\nto 19, 21, 25, 31 and 32 be taken away ? If they cannot, it will be for
\nconsideration whether they can be modified.\n<\/p>\n
It has been said, no doubt, that the preamble is not a part of our
\nConstitution. But, I think, that if upon a comparison of the preamble with
\nthe broad features of the Constitution it would appear that the preamble is
\nan epitome of those features or, to put it differently if these features are an
\namplification or concretisation of the concepts set out in the preamble it
\nmay have to be considered whether the preamble is not a part of the
\nConstitution. While considering this question it would be of relevance to
\nbear in mind that the preamble is not of the common run such as is to be
\nfound in an Act of a legislature. It has the stamp of deep deliberation and
\nis marked by precision. Would this not suggest that the framers of the
\nConstitution attached special significance to it?\n<\/p>\n
39. Coming now to Golak Nath’s case, the petitioner had challenged the validity of the
\nConstitution (Seventeenth Amendment) Act, 1964 which included in the Ninth Schedule,
\namong other acts, the Punjab Security of Land Tenures Act, 1953 (Act 10 of 1953), and
\nthe Mysore Land Reforms Act (Act 10 of 1962) as amended by Act 14 of 1965.\n<\/p>\n
40. It was urged before the Court that Sankari Prasad’s [1952] S.C.R. 89 case in which
\nthe validity of the Constitution (First Amendment) Act, 1951 and Sajjan Singh’s [1965] 1
\nS.C.R. 933 case in which the validity of the Constitution (Seventeenth Amendment) Act
\nwas in question had been wrongly decided by this Court.\n<\/p>\n
41. Subba Rao, C.J. speaking for himself and 4 other judges summarised the conclusions
\nat page 815 as follows:\n<\/p>\n
The aforesaid discussion leads to the following results:\n<\/p>\n
(1) The power of the Parliament to amend the Constitution
\nis derived from Articles 245, 246 and 248 of the
\nConstitution and not from Article 368 thereof which only
\ndeals with procedure. Amendment is a legislative process.\n<\/p>\n
(2) Amendment is ‘law’ within the meaning of Article 13 of
\nthe Constitution and, therefore, if it takes away or abridges
\nthe rights conferred by Part III thereof, it is void.\n<\/p>\n
(3) The Constitution (First Amendment) Act, 1951,
\nConstitution (Fourth Amendment) Act, 1955, and the
\nConstitution (Seventeenth Amendment) Act, 1964, abridge
\nthe scope of the fundamental rights. But, on the basis of
\nearlier decisions of this Court, they were valid.\n<\/p>\n
(4) On the application of the doctrine of ‘prospective over-\n<\/p>\n
ruling’, as explained by us earlier, our decision will have
\nonly prospective operation and, therefore, the said
\namendments will continue to be valid.\n<\/p>\n
(5) We declare that the Parliament will have no power from
\nthe date of this decision to amend any of the provisions of
\nPart III of the Constitution so as to take away or abridge the
\nfundamental rights enshrined therein.\n<\/p>\n
(6) As the Constitution (Seventeenth Amendment) Act
\nholds the field, the validity of the two impugned Acts,
\nnamely, the Punjab Security of Land Tenures Act X of
\n1953, and the Mysore Land Reforms Act X of 1962, as
\namended by Act XIV of 1965, cannot be questioned on the
\nground that they offend Articles 13, 14 or 31 of the
\nConstitution.\n<\/p>\n
42. It must be borne in mind that these conclusions were given in the light of the
\nConstitution as it stood then i.e. while Article 13(2) subsisted in the Constitution. It was
\nthen not necessary to decide the ambit of Article 368 with respect to the powers of
\nParliament to amend Article 13(2) or to amend Article 368 itself. It is these points that
\nhave now to be decided.\n<\/p>\n
43. It may further be observed that the Chief Justice refused to express an opinion on the
\ncontention that, in exercise of the power of amendment, Parliament cannot destroy the
\nfundamental structure of the Constitution but can only modify the provision thereof
\nwithin the framework of the original instrument for its better effectuation.\n<\/p>\n
44. As will be seen later, the first conclusion above, does not survive for discussion any
\nlonger because it is rightly admitted on behalf of the petitioners that the Constitution
\n(Twenty Fourth Amendment) Act, 1971, in so far as it transfers power to amend the
\nConstitution from the residuary entry (Entry 97 List 1) or Article 248 of the Constitution
\nto Article 368, is valid; in other words Article 368 of the Constitution as now amended by
\nthe Twenty Fourth Amendment deals not only with the procedure for amendment but also
\nconfers express power on Parliament to amend the Constitution.\n<\/p>\n
45. I will also not discuss the merits of the second conclusion as the same result follows
\nin this case even if it be assumed in favour of the respondents that an amendment of the
\nConstitution is not law within Article 13(2) of the Constitution.\n<\/p>\n
46. Hidayatullah, J. as he then was, came to the following conclusions at page 902:\n<\/p>\n
(i) that the Fundamental Rights are outside the amendatory process if the
\namendment seeks to abridge or take away any of the rights;\n<\/p>\n
(ii) that Sankari Prasad’s case (and Sajjan Singh’s case which followed it)
\nconceded the power of amendment over Part III of the Constitution on an
\nerroneous view of Articles 13(2) and 368.\n<\/p>\n
(iii) that the First, Fourth and Seventh Amendments being part of the
\nConstitution by acquiescence for a long time, cannot now be challenged
\nand they contain authority for the seventeenth Amendment;\n<\/p>\n
(iv) that this Court having now laid down that Fundamental Rights cannot
\nbe abridged or taken away by the exercise of amendatory process in
\nArticle 368, any further inroad into these rights as they exist today will be
\nillegal and unConstitutional unless it complies with Part III in general and
\nArticle 13(2) in particular;\n<\/p>\n
(v) that for abridging or taking away Fundamental Rights, a Constituent
\nbody will have to be convoked; and\n<\/p>\n
(vi) that the two impugned Acts, namely, the Punjab Security of Land
\nTenures Act, 1,953 (X of 1953) and the Mysore Land Reforms Act, 1961
\n(X of 1962) as amended by Act XIV of 1965 are valid under the
\nConstitution not because they are included in Schedule 9 of the
\nConstitution but because they are protected by Article 31-A, and the
\nPresident’s assent.\n<\/p>\n
47. I am not giving his reasons for these conclusions here because they will be examined
\nwhen dealing with the arguments addressed to us on various points.\n<\/p>\n
48. Wanchoo, J. as he then was, also speaking on behalf of 2 other Judges held that
\nSankari Prasad’s [1952] S.C.R. 89 case was correctly decided and the majority in Sajjan
\nSingh’s [1965] 1 S.C.R. 933 case was correct in following that decision.\n<\/p>\n
49. Bachawat, J. held:\n<\/p>\n
(1) Article 368 not only prescribes the procedure but also gives the power
\nof amendment;\n<\/p>\n
(2) Article 368 gives the power of amending each and every provision of
\nthe Constitution and as Article 13(2) is a part of the Constitution it is
\nwithin the reach of the amending power;\n<\/p>\n
(3) Article 368 is not controlled by Article 13(2) and the prohibitory
\ninjunction in Article 13(2) is not attracted against the amending power;
\n(4) Constitutional amendment under Article 368 is not a law within the
\nmeaning of Article 13(2);\n<\/p>\n
(5) The scale of value embodied in Parts III and IV is not immortal. Parts
\nIII and IV being parts of the Constitution are not immune from
\namendment under Article 368. Constition-makers could not have intended
\nthat the rights conferred by Part III could not be altered by giving effect to
\nthe policies of Part IV.\n<\/p>\n
(6) The Preamble cannot control the unambiguous language of the articles
\nof the Constitution.\n<\/p>\n
50. Regarding the amendment of the basic features of the Constitution, he observed:
\nCounsel said that they could not give an exhaustive catalogue of the basic
\nfeatures, but sovereignty, the republican form of government, the federal
\nstructure and the fundamental rights were some of the features. The
\nSeventeenth Amendment has not derogated from the sovereignty, the
\nrepublican form of government and the federal structure, and the question
\nwhether they can be touched by amendment does not arise for decision.
\nFor the purposes of these cases, it is sufficient to say that the fundamental
\nrights are within the reach of the amending power.\n<\/p>\n
51. Ramaswami, J., held:\n<\/p>\n
(1) The amending power under Article 368 is sui generis;\n<\/p>\n
(2) “Law” in Article 13(2) cannot be construed so as to include “Law”
\nmade by Parliament under Articles 4, 169, 392, 5th Schedule Part D and
\n6th Schedule Para 21.\n<\/p>\n
(3) The expression “fundamental rights” does not lift the fundamental
\nrights above the Constitution itself;\n<\/p>\n
(4) Both the power to amend and the procedure to amend are enacted in
\nArticle 368.\n<\/p>\n
(5) There were no implied limitations on the amending power and all
\narticles of the Constitution were amendable either under the proviso of
\nArticle 368 or under the main part of the article.\n<\/p>\n
(6) The Federal structure is not an essential part of our Constitution.
\n(7) The power of amendment is in point of quality an adjunct of
\nsovereignty. If so, it does not admit of any limitations.\n<\/p>\n
52. In brief 6 Judges held that in view of Article 13(2) Fundamental Rights could not be
\nabridged or taken away. Five Judges held that Article 13(2) was inapplicable to Acts
\namending the Constitution.\n<\/p>\n
PART III-Interpretation of Article 368\n<\/p>\n
53. Let me now proceed to interpret Article 368. Article 368, as originally enacted, read
\nas follows:\n<\/p>\n
An amendment of this Constitution may be initiated only by the
\nintroduction of a Bill for the purpose in either House of Parliament, and
\nwhen the Bill is passed in each House by a majority of the total
\nmembership of that House and by a majority of not less than two-thirds of
\nthe members of that House present and voting, it shall be presented to the
\nPresident for his assent and upon such assent being given to the Bill, the
\nConstitution shall stand amended in accordance with the terms of the Bill:
\nProvided that if such amendment seeks to make any change in-\n<\/p>\n
(a) Article 54, Article 55, Article 73, Article 162 or Article
\n241, or\n<\/p>\n
(b) Chapter IV of Part V, Chapter V of Part VI, or Chapter
\nI of Part XI, or\n<\/p>\n
(c) any of the Lists in the Seventh Schedule, or\n<\/p>\n
(d) the representation of States in Parliament, or\n<\/p>\n
(e) the provisions of this article,
\nthe amendment shall also require to be ratified by the Legislatures of not
\nless than one-half of the States specified in Parts A and B of the First
\nSchedule by resolutions to that effect passed by those Legislatures before
\nthe Bill making provision for such amendment is presented to the
\nPresident for assent.\n<\/p>\n
54. It will be noticed that Article 368 is contained in a separate part and the heading is
\n“Amendment of the Constitution”, but the marginal note reads “Procedure for amendment
\nof the Constitution”.\n<\/p>\n
55. The expression “amendment of the Constitution” is not defined or expanded in any
\nmanner, although in other parts of the Constitution, the word “Amend” or “Amendment”
\nhas, as will be pointed out later, been expanded. In some parts they have clearly a narrow
\nmeaning.. The proviso throws some light on the problem. First, it uses the expression “if
\nsuch amendment seeks to make any change in”; it does not add the words “change of “, or
\nomit “in”, and say “seeks to change” instead of the expression “seeks to make any change
\nin”.\n<\/p>\n
56. The articles which are included in the proviso may be now considered. Part V,
\nChapter I, deals with “the Executive”. Article 52, provides that there shall be a President
\nof India, and Article 53 vests the executive power of the Union in the President and
\nprovides how it shall be exercised. These two articles are not mentioned in the proviso to
\nArticle 368 but Articles 54 and 55 are mentioned.\n<\/p>\n
57. Article 54 provides:\n<\/p>\n
54. The President shall be elected by the members of an electoral college
\nconsisting of-\n<\/p>\n
(a) the elected members of both Houses of Parliament; and\n<\/p>\n
(b) the elected members of the Legislative Assemblies of
\nthe States.\n<\/p>\n
58. Article 55 prescribes the manner of election of the President.\n<\/p>\n
59. Why were Articles 52 and 53 not mentioned in the proviso to Article 368 if the
\nintention was that the States would have a say as to the federal structure of the country?
\nOne of the inferences that can be drawn is that the Constitution-makers never
\ncontemplated, or imagined that Article 52 will be altered and there shall not be a
\nPresident of India. In other words they did not contemplate a monarchy being set up in
\nIndia or there being no President.\n<\/p>\n
60. Another article which has been included in the proviso to Article 368 is Article 73
\nwhich deals with the extent of executive powers of the Union. As far as the Vice-
\nPresident is concerned, the States have been given no say whether there shall be a Vice-
\nPresident or not; about the method of his election, etc. But what is remarkable is that
\nwhen we come to Part VI of the Constitution, which deals with the “States”, the only
\nprovision which is mentioned in the proviso to Article 368 is Article 162 which deals
\nwith the extent of executive power of States. The appointment of a Governor, conditions
\nof service of a Governor, and the Constitution and functions of the Council of Ministers,
\nand other provisions regarding the Ministers and the conduct of government business are
\nnot mentioned at all in the proviso to Article 368. Another article which is mentioned in
\nClause (a) of the proviso to Article 368 is Article 241 which originally dealt with High
\nCourts for States in Part C of the First Schedule.\n<\/p>\n
61. Chapter IV of Part V of the Constitution which deals with the Union Judiciary, and
\nChapter V of Part VI which deals with the High Courts in the State are included in the
\nproviso to Article 368 but it is extra-ordinary that Chapter VI of Part VI which deals with
\nsubordinate Judiciary is not mentioned in Clause (b). Chapter I of Part XI is included and
\nthis deals with the Legislative Relations between the Union and the States, but Chapter II
\nof Part XI which deals with Administrative Relations between the Union and the States,
\nand various other matters in which the States would be interested are not included.
\nProvisions relating to services under the State and Trade and Commerce are also not
\nincluded in the proviso.\n<\/p>\n
62. This analysis of the provisions contained in Clauses (a) and (b) of the proviso to
\nArticle 368 shows that the reason for including certain articles and excluding certain
\nother from the proviso was not that all articles dealing with the federal structure or the
\nstatus of the States had been selected for inclusion in the proviso.\n<\/p>\n
63. Clause (c) of the proviso mentions the Lists in the Seventh Schedule, Clause (d)
\nmentions the representation of States in Parliament, and Clause (e) the provisions of
\nArticle 368 itself. The provisions of Sub-clauses (c), (d) and (e) can rightly be said to
\ninvolve the federal structure and the rights of the States.\n<\/p>\n
64. What again is remarkable is that the fundamental rights are not included in the
\nproviso at all. Were not the States interested in the fundamental rights of their people ?
\nThe omission may perhaps be understandable because of the express provision of Article
\n13(2) which provided that States shall not make any law which takes away or abridges
\nthe rights conferred by Part III and any law made in contravention of this clause shall to
\nthe extent of the contravention be void, assuming for the present that Article 13(2)
\noperates on Constitutional amendments.\n<\/p>\n
65. In construing the expression “amendment of this Constitution I must look at the
\nwhole scheme of the Constitution. It is not right to construe words in vacuum and then
\ninsert the meaning into an article. Lord Greene observed in Bidie v. General Accident,
\nFire and Life Assurance Corporation [1948] 2 All E.R. 995, 998:
\nThe first thing one has to do, I venture to think, in construing words in a
\nsection of an Act of Parliament is not to take those words in vacuo, so to
\nspeak, and attribute to them what is sometimes called their natural or
\nordinary meaning. Few words in the English language have a natural or
\nordinary meaning in the sense that they must be so read that their meaning
\nis entirely independent of their context. The method of construing statutes
\nthat I prefer is not to take particular words and attribute to them a sort of
\nprima facie meaning which you may have to displace or modify. It is to
\nread the statute as a whole and ask oneself the question: “In this state, in
\nthis context, relating to this subject-matter, what is the true meaning of
\nthat word ?\n<\/p>\n
66. I respectfully adopt the reasoning of Lord Greene in construing the expression “the
\namendment of the Constitution.\n<\/p>\n
67. Lord Greene is not alone in this approach. In Bourne v. Norwich Crematorium [1967]
\n2 All E.R. 576, 578 it is observed:\n<\/p>\n
English words derive colour from those which surround them. Sentences
\nare not mere collections of words to be taken out of the sentence defined
\nseparately by reference to the “dictionary or decided cases, and then put
\nback again into the sentence with the meaning which you have assigned to
\nthem as separate words, so as to give the sentence or phrase a meaning
\nwhich as a sentence or phrase it cannot bear without distortion of the
\nEnglish language.\n<\/p>\n
68. Holmes, J. in Towne v. Eigner 245 U.S. 418; 425 : 62 L. ed. 372; 376 had the same
\nthought. He observed:\n<\/p>\n
A word is not crystal, transparent and unchanged; it is the skin of living
\nthought and may vary greatly in colour and content according to the
\ncircumstances and the time in which it is used.\n<\/p>\n
69. What Holmes J. said is particularly true of the word “Amendment” or “Amend”.\n<\/p>\n
70. I may also refer to the observation of Gwyer C.J. and Lord Wright:
\nA grant of the power in general terms, standing by itself, would no doubt
\nbe construed in the wider sense; but it may be qualified by other express
\nprovisions in the same enactment, by the implications of the context, and
\neven by the considerations arising out of what appears to be the general
\nscheme of the Act”. (Per Gwyer C.J.-The Central Provinces and Berar Act,
\n1939 F.C.R. 18 at 42.)
\nThe question, then, is one of construction and in the ultimate resort must
\nbe determined upon tht actual words used, read not in vacuo but as
\noccurring in a single complex instrument, in which one part may throw
\nlight on another. The Constitution has been described as the federal
\ncompact, and the construction must hold a balance between all its parts”.
\n(Per Lord Wright-James v. Commonwealth of Australia 1936 A.C. 578 at\n<\/p>\n
613).\n<\/p>\n
71. In the Constitution the word “amendment” or “amend” has been used in various
\nplaces to mean different things. In some articles, the word “amendment” in the context
\nhas a wide meaning and in another context it has a narrow meaning. In Article 107, which
\ndeals with legislative procedure, Clause (2) provides that “subject to the provisions of
\nArticles 108 and 109, a Bill shall not be deemed to have been passed by the House of
\nParliament unless it has been agreed to by both Houses, either without amendment or
\nwith such amendments only as are agreed to by both Houses.” It is quite clear that the
\nword “amendment” in this article has a narrow meaning. Similarly, in Article 111 of the
\nConstitution, whereby the President is enabled to send a message requesting the Houses
\nto consider the desirability of introducing amendments, the “amendments” has a narrow
\nmeaning.\n<\/p>\n
72. The opening of Article 4(1) reads:\n<\/p>\n
4(1) Any law referred to in Article 2 or Article 3 shall contain such
\nprovisions for the amendment of the First Schedule and the Fourth
\nSchedule as may be necessary to give effect to the provisions of the law….
\nHere the word “amendment” has a narrower meaning. “Law” under Articles 3 and 4 must
\n“conform to the democratic pattern envisaged by the Constitution; and the power which
\nthe Parliament may exercise…is not the power to over-ride the Constitutional scheme. No
\nstate can, therefore, be formed, admitted or set up by law under Article 4 by the
\nParliament which has no effective legislative, executive and judicial organs”. (Per Shah
\nJ.-Mangal Singh v. Union of India [1967] 2 S.C.R. 109 at 112.\n<\/p>\n
(Emphasis supplied)\n<\/p>\n
73. Article 169(2) reads:\n<\/p>\n
Any law referred to in Clause (1) shall contain such provisions for the
\namendment of this Constitution as may be necessary to give effect to the
\nprovisions of the law and may also contain such supplemental, incidental
\nand consequential provisions as Parliament may deem necessary.
\nHere also the word “amendment” has a narrow meaning.\n<\/p>\n
74. Para 7 of Part D, Fifth Schedule, which deals with amendment of the schedule, reads:\n<\/p>\n
7. Amendment of the Schedule.-(1) Parliament may from time to time by
\nlaw amend by way of addition, variation or repeal any of the provisions of
\nthis Schedule and, when the Schedule is so amended, any reference to this
\nSchedule in this Constitution shall be construed as a reference to such
\nschedule as so amended.\n<\/p>\n
Here the word “amend” has been expanded by using the expression “by way of addition,
\nvariation or repeal”, but even here, it seems to me, the amendments will have to be in line
\nwith the whole Constitution. Similarly, under para 21 of the Sixth Schedule,. which
\nrepeats the phraseology of para 7 of the Fifth Schedule, it seems to me, the amendments
\nwill have to be in line with the Constitution.\n<\/p>\n
75. I may mention that in the case of the amendments which may be made in exercise of
\nthe powers under Article 4, Article 169, para 7 of the Fifth Schedule, and para 21 of the
\nSixth Schedule, it has been expressly stated in these provisions that they shall not be
\ndeemed to be amendments of the Constitution for the purposes of Article 368.\n<\/p>\n
76. It is also important to note that the Constituent Assembly which adopted Article 368
\non September 17, 1949, had earlier on August 18, 1949, substituted the following section
\nin place of the old Section 291 in the Government of India Act, 1935:\n<\/p>\n
291. Power of the Governor-General to amend certain provisions of the
\nAct and orders made thereunder-\n<\/p>\n
(1) The Governor-General may at any time by order make
\nsuch amendments as he considers necessary whether by
\nway of addition, modification or repeal, in the provisions of
\nthis Act or of any order made thereunder in relation to any
\nProvincial Legislature with respect to any of the following
\nmatters, that is to say-\n<\/p>\n
(a) the composition of the Chamber or
\nChambers of the Legislature;\n<\/p>\n
(b) the delimitation of territorial
\nconstituencies for the purpose of elections
\nunder this Act.\n<\/p>\n
* * * * *
\nHere, the word “amendment” has been expanded. It may be that there really is no
\nexpansion because every amendment may involve addition, variation or repeal of part of
\na provision.\n<\/p>\n
77. According to Mr. Seervai, the power of amendment given by Article 4, read with
\nArticles 2 and 3, Article 169, Fifth Schedule and Sixth Schedule, is a limited power
\nlimited to certain provisions of the Constitution, while the power under Article 368 is not
\nlimited. It is true every provision is prima facie amendable under Article 368 but this
\ndoes not solve the problem before us.\n<\/p>\n
78. I may mention that an attempt was made to expand the word “amend” in Article 368
\nby proposing an amendment that “by way of variation, addition, or repeal” be added but
\nthe amendment was rejected.\n<\/p>\n
79. Again, in Article 196(2), the word “amendment” has been used in a limited sense.
\nArticle 196(2) reads:\n<\/p>\n
196(2). Subject to the provisions of Articles 197 and 198, a Bill shall not
\nbe deemed to have been passed by the Houses of the Legislature of a State
\nhaving a Legislative Council unless it has been agreed to by both Houses,
\neither without amendment or with such amendments only as are agreed to
\nby both Houses.\n<\/p>\n
80. Similar meaning may be given to the word “amendment” in Article 197(2), which
\nreads:\n<\/p>\n
197(2). If after a Bill has been so passed for the second time by the
\nLegislative Assembly and transmitted to the Legislative Council-\n<\/p>\n
(a) the Bill is rejected by the Council; or\n<\/p>\n
(b) more than one month elapses from the date on which
\nthe Bill is laid before the Council without the Bill being
\npassed by it; or\n<\/p>\n
(c) the Bill is passed by the Council with amendments to
\nwhich the Legislative Assembly does not agree,\n<\/p>\n
(c) the Bill is passed by the Legislative Assembly does not
\nagree, the Bill shall be deemed to have been passed by the
\nHouses of the Legislature of the State in the form in which
\nit was passed by the Legislative Assembly for the second
\ntime with such amendments, if any, as have been made or
\nsuggested by the Legislative Council and agreed to by the
\nLegislative Assembly.\n<\/p>\n
81. Under Article 200 the Governor is enabled to suggest the desirability of introducing
\nany such amendments as he may recommend in his message. Here again “amendment”
\nhas clearly a limited meaning.\n<\/p>\n
82. In Article 35(b) the words used are:\n<\/p>\n
Any law in force immediately before the commencement of this
\nConstitution…subject to the terms thereof and to any adaptations and
\nmodifications that may be made therein under Article 372, continue in
\nforce until altered or repealed or amended by Parliament.\n<\/p>\n
83. Here, all the three words are used giving a comprehensive meaning. Reliance is not
\nplaced by the draftsman only on the word “amend”.\n<\/p>\n
84. Similar language is used in Article 372 whereby existing laws continue to be in force
\nuntil “altered or repealed or amended’ by a competent Legislature or other competent
\nauthority.\n<\/p>\n
85. In the original Article 243(2), in conferring power on the President to make
\nregulations for the peace and good government of the territories in part D of the First
\nSchedule, it is stated that “any regulation so made may repeal or amend any law made by
\nParliament.” Here, the two words together give the widest power to make regulations
\ninconsistent with any law made by Parliament\n<\/p>\n
86. In Article 252 again, the two words are joined together to give a wider power. Clause
\n(2) of Article 252 reads:\n<\/p>\n
252(2). Any Act so passed by Parliament may be amended or repealed by
\nan Act of Parliament passed or adopted in like manner but shall not, as
\nrespects any State to which it applies, be amended or repealed by an Act
\nof the Legislature of that State.\n<\/p>\n
87. In the proviso to Article 254, which deals with the inconsistency between laws made
\nby Parliament and laws made by the Legislatures of States, it is stated:
\nProvided that nothing in this clause shall prevent Parliament from enacting
\nat any time any law with respect to the same matter including a law adding
\nto, amending, varying or repealing the law so made by the Legislature of
\nthe State;\n<\/p>\n
88. In Article 320(5), “all regulations made under the proviso to Clause (3)” can be
\nmodified “whether by way of repeal or amendment” as both Houses of Parliament or the
\nHouse or both Houses of the Legislature of the States may make during the session in
\nwhich they are so laid.\n<\/p>\n
89. I have referred to the variation in the language of the various articles dealing with the’
\nquestion of amendment or repeal in detail because our Constitution was drafted very
\ncarefully and I must presume that every word was chosen carefully and should have its
\nproper meaning. I may rely for this principle on the following observations of the United
\nStates Supreme Court in Holmes v. Jennison (10) L. ed. 579; 594 and quoted with
\napproval in William v. United States (77) L. ed. 1372; 1380:\n<\/p>\n
In expounding the Constitution of the United States, every word must have
\nits due force, and appropriate meaning: for it is evident from the whole
\ninstrument, that no word was unnecessarily used, or needlessly added….\n<\/p>\n
90. Reference was made to Section 6(2) of the Indian Independence Act, 1947, in which
\nthe last three lines read:\n<\/p>\n
…and the powers of the Legislature of each Dominion include the power
\nto repeal or amend any such Act, order, rule or regulation in so far as it is
\npart of the law of the Dominion.\n<\/p>\n
Here, the comprehensive expression “repeal or amend” gives power to have a completely
\nnew Act different from an existing act of Parliament.\n<\/p>\n
91. So, there is no doubt from a perusal of these provisions that different words have been
\nused to meet different demands. In view of the great variation of the phrases used all
\nthrough the Constitution it follows that the word “amendment” must derive its colour
\nfrom Article 368 and the rest of the provisions of the Constitution. There is no doubt that
\nit is not intended that the whole Constitution could be repealed. This much is conceded
\nby the learned Counsel for the respondents.\n<\/p>\n
92. Therefore, in order to appreciate the real content of the expression “amendment of
\nthis Constitution”, in Article 368 I must look at the whole structure of the Constitution.
\nThe Constitution opens with a preamble which reads:\n<\/p>\n
WE THE PEOPLE OF INDIA, having solemnly resolved to constitute
\nIndia into a SOVEREIGN DEMOCRATIC REPUBLIC and to secure to
\nall its citizens:\n<\/p>\n
JUSTICE, social, economic and political;\n<\/p>\n
LIBERTY of thought, expression, belief, faith and worship;\n<\/p>\n
EQUALITY of status and of opportunity; and to promote among them all;
\nFRATERNITY assuring the dignity of the individual and the unity of the
\nNation;\n<\/p>\n
IN OUR CONSTITUENT ASSEMBLY this Twenty-sixth day of
\nNovember, 1949, do HEREBY ADOPT, ENACT AND GIVE TO
\nOURSELVES THIS CONSTITUTION.\n<\/p>\n
93. This Preamble, and indeed the Constitution, was drafted in the light and direction of
\nthe Objective Resolutions adopted on January 22, 1947, which runs as follows:
\n(1) THIS CONSTITUENT ASSEMBLY declares its firm and solemn
\nresolve to proclaim India as an Independent Sovereign Republic and to
\ndraw up for her future governance a Consti-\n<\/p>\n
(2) wherein the territories that now comprise British India, the territories
\nthat now form the Indian States, and such other parts of India as are
\noutside British India and the States, as well as such other territories as are
\nwilling to be constituted into the Independent Sovereign India, shall be a
\nUnion of them all; and
\n(3) wherein the said territories, whether with their present boundaries or
\nwith such others as may be determined by the Constituent Assembly and
\nthereafter according to the law of the Constitution, shall possess and retain
\nthe status of autonomous units, together with residuary powers, and
\nexercise all powers and functions of government and administration, save
\nand except such powers and functions as are vested in of assigned to the
\nUnion, or as are inherent or implied in the Union or resulting therefrom;
\nand
\n(4) wherein all power and authority of the Sovereign Independent India, its
\nconstituent parts and organs of government, are derived from the people;
\nand
\n(5) wherein shall be guaranteed and secured to all people of India justice,
\nsocial, economic and political; equality of status, of opportunity, and
\nbefore the law; freedom of thought, expression, belief, faith, worship,
\nvocation, association and action, subject to law and public morality; and
\n(6) wherein adequate safeguards shall be provided for minorities backward
\nand tribal areas, and depressed and other backward classes; and
\n(7) whereby shall be maintained the integrity of the territory of the
\nRepublic and its sovereign rights on land, sea, and air according to justice
\nand the law of civilized nations, and
\n(8) this ancient land attains its rightful and honoured place in the world
\nand makes its full and willing contribution to the promotion of world
\npeace and the welfare of mankind.\n<\/p>\n
94. While moving the resolution for acceptance of the Objectives Resolution, Pandit
\nJawaharlal Nehru said:\n<\/p>\n
It seeks very feebly to tell the world of what we have thought or dreamt
\nfor so long, and what we now hope to achieve in the near future. It is in
\nthat spirit that I venture to place this Resolution before the House and it is
\nin that spirit that I trust the House will receive it and ultimately pass it.
\nAnd may I, Sir, also with all respect, suggest to you and to the House that,
\nwhen the time comes for the passing of this Resolution let it be not done in
\nthe formal way by the raising of hands, but much more solemnly, by all of
\nus standing up and thus taking this pledge anew.\n<\/p>\n
95. I may here trace the history of the shaping of the Preamble because this would show
\nthat the Preamble was in conformity with the Constitution as it was finally accepted. Not
\nonly was the Constitution framed in the light of the Preamble but the Preamble was
\nultimately settled in the light of the Constitution. This appears from the following brief
\nsurvey of the history of the framing of the Preamble extracted from the Framing of India’s
\nConstitution (A study) by B. Shiva Rao. In the earliest draft the Preamble was something
\nformal and read : “We, the people of India, seeking to promote the common good, do
\nhereby, through our chosen representatives, enact, adopt and give to ourselves this
\nConstitution, (Shiva Rao’s Framing of India’s Constitution-A study-p. 127.).\n<\/p>\n
96. After the plan of June 3, 1947, which led to the decision to partition the country and
\nto set up two independent Dominions of India and Pakistan, on June 8, 1947, a joint sub-
\ncommittee of the Union Constitution and Provincial Constitution Committees, took note
\nthat the objective resolution would require amendment in view of the latest
\nannouncement of the British Government The’ announcement of June 3 had made it clear
\nthat full independence, in the form of Dominion Status, would be conferred on India as
\nfrom August 15, 1947. After examining the implications of partition the sub-committee
\nthought that the question of making changes in the Objectives Resolution could
\nappropriately be considered only when effect had actually been given to the June 3
\nPlan.(Special Sub-Committee minutes June 9, 1947. Later on July 12, 1947, the special
\nsub-committee again postponed consideration of the matter. Select Documents II, 20(ii),
\np. 617. (Shiva Rao’s-Framing of India’s Constitution-A study-(p. 127 footnote). The
\nUnion Constitution Committee provisionally accepted the Preamble as drafted by B.N.
\nRao and reproduced it in its report of July 4, 1947 without any change, with the tacit
\nrecognition at that stage that the Preamble would be finally based on the Objectives
\nResolution. In a statement circulated to members of the Assembly on July 18, 1947
\nPandit Jawaharlal Nehru inter alia, observed that the Preamble was covered more or less
\nby the Objectives Resolution which it was intended to incorporate in the final
\nConstitution subject to some modification on account of the political changes resulting
\nfrom partition. Three days later, moving the report of the Union Constitution Committee
\nfor the consideration of the Assembly, he suggested that it was not necessary at that stage
\nto consider the draft of the Preamble since the Assembly stood by the basic principles
\nlaid down in the Objectives Resolution and these could be incorporated in the Preamble
\nin the light of the changed situation(Shiva Rao’s-Framing of India’s Constitution-A study-
\npp. 127-128 (also see footnote 1 p. 128). The suggestion was accepted by the Assembly
\nand further consideration of the Preamble was held over.\n<\/p>\n
97. We need not consider the intermediate drafts, but in the meantime the declaration
\n(See Constituent Assembly Debates, Vol. 8, page 2) was adopted at the end of April,
\n1949 by the Government of the various Commonwealth countries and the resolution was
\nratified by Constituent Assembly on May 17; 1949 after two days’ debate.\n<\/p>\n
98. In the meantime the process of merger and integration of Indian States had been
\ncompleted and Sardar Vallabhbhai Patel was able to tell the Constituent Assembly on
\nOctober 12, 1949, that the new Constitution was “not an alliance between democracies
\nand dynasties, but a real union of the Indian people, built on the basic concept of the
\nsovereignty of the people(Shiva Rao’s-Framing of India’s Constitution-A study-pp. 130-\n<\/p>\n
132).\n<\/p>\n
99. The draft Preamble was considered by the Assembly on October 17, 1949. Shiva Rao
\nobserves that “the object of putting the Preamble last, the President of the Assembly
\nexplained, was to see that it was in conformity with the Constitution as accepted. “Once
\nthe transfer of power had taken place the question of British Parliament’s subsequent
\napproval which was visualised in the British Cabinet Commission’s original plan of May
\n1946 could no longer arise. The sovereign character of the Constituent Assembly thus
\nbecame automatic with the rapid march of events without any controversy, and the words
\nin the Preamble “give to ourselves this Constitution” became appropriate. The Preamble
\nwas adopted by the Assembly without any alteration. Subsequently the words and figure
\n“this twenty-sixth day of November 1949” were introduced in the last paragraph to
\nindicate the date on which the Constitution was finally adopted by the Constituent
\nAssembly.\n<\/p>\n
100. Regarding the use which can be made of the preamble in interpreting an ordinary
\nstatute, there is no doubt that it cannot be used to modify the language if the language of
\nthe enactment is plain and clear. If the language is not plain and clear, then the preamble
\nmay have effect either to extend or restrict the language used in the body of an
\nenactment. “If the language of the enactment is capable of more than one meaning then
\nthat one is to be preferred which comes nearest to the purpose and scope of the
\npreamble.” (see Tbibhuban Parkash Nayyar v. The Union of India)<\/a> [1970] 2 S.C.R. 732-\n<\/p>\n
737.\n<\/p>\n
101. We are, however, not concerned with the interpretation of an ordinary statute. As Sir
\nAlladi Krishnaswami, a most eminent lawyer said, “so far as the Preamble is concerned,
\nthough in an ordinary statute we do not attach any importance to the Preamble, all
\nimportance has’ to be attached to the Preamble in a Constitutional statute”. (Constituent
\nAssembly Debates Vol. 10, p. 417). Our Preamble outlines the objectives of the whole
\nConstitution. It expresses “what we had thought or dreamt for so long.\n<\/p>\n
102. In re. Berubari Union and Exchange of Enclaves [1960] 3 S.C.R. 250, 281-82 this
\nwas said about the Preamble:\n<\/p>\n
There is no doubt that the declaration made by the people of India in
\nexercise of their sovereign will in the preamble to the Constitution is, in
\nthe words of Story, “a key to open the mind of the makers” which may
\nshow the general purposes for which they made the several provisions in
\nthe Constitution; but nevertheless the preamble is not a part of the
\nConstitution, and, as Willoughby has observed about the” preamble to the
\nAmerican Constitution, “it has never been regarded as the source of any
\nsubstantive power conferred on the Government of the United States or
\nany of its departments. Such powers embrace only those expressly granted
\nin the body of the Constitution and such as may be implied from those so
\ngranted”.\n<\/p>\n
What is true about the power is equally true about the prohibitions and
\nlimitations.\n<\/p>\n
103. Wanchoo, J. in Golaknath v. Punjab [1967] 2 S.C.R. 762; 838 and 914 relied on
\nBerubari’s case and said:\n<\/p>\n
on a parity of reasoning we are of opinion that the preamble cannot
\nprohibit or control in any way or impose any implied prohibitions or
\nlimitations on the power to amend the Constitution contained in Article\n<\/p>\n
368.\n<\/p>\n
104. Bachawat, J. in this case observed:\n<\/p>\n
Moreover the preamble cannot control the unambiguous language of the
\narticles of the Constitution, see Wynes, Legislative Executive and Judicial
\npowers in Australia, third edition pp. 694-5; in Re. Berubari Union &
\nExchange of Enclaves. [1960] 3 S.C.R. 250, 281-82.\n<\/p>\n
105. With respect, the Court was wrong in holding, as has been shown above, that the
\nPreamble is not a part of the Constitution unless the court was thinking of the distinction
\nbetween the Constitution Statute and the Constitution, mentioned by Mr. Palkhivala. It
\nwas expressly voted to be a part of the Constitution. Further, with respect, no authority
\nhas been referred before us to establish the proposition that “what is true about the
\npowers is equally true about the prohibitions and limitations.” As I will show later, even
\nfrom the preamble limitations have been derived in some cases.\n<\/p>\n
106. It is urged in the written submission of Mr. Palkhivala that there is a distinction
\nbetween the Indian Constitution Statute and the Constitution of India. He urges as
\nfollows:\n<\/p>\n
This Constitution is the Constitution which follows the Preamble. It starts
\nwith Article 1 and ended originally with the Eighth Schedule and now
\nends with the Ninth Schedule after the First Amendment Act, 1951. The
\nway the Preamble is drafted leaves no doubt that what follows, or is
\nannexed to, the Preamble, is the Constitution of India.\n<\/p>\n
107. He has also urged that the Preamble came into force on November 26, 1949
\nalongwith Articles 5, 6, 7 etc. as provided in Article 394 because Articles 5, 6, 7 and the
\nother Articles mentioned therein could hardly come into force without the enacting clause
\nmentioned in the Preamble having come into force. He says that the Preamble is a part of
\nthe Constitution statute and not a part of the Constitution but precedes it. There is
\nsomething to be said for his contention but, in my view, it is not necessary to base my
\ndecision on this distinction as it is not necessary to decide in the present case whether
\nArticle 368 enables Parliament to amend the Preamble. Parliament has not as yet chosen
\nto amend the Preamble.\n<\/p>\n
108. The Preamble was used by this Court as an aid to construction in Behram Khurshed
\nPasikaka v. The State of Bombay<\/a> [1955] 1 S.C.R. 613 at p. 653. After referring to Part
\nIII, Mahajan, C.J., observed:\n<\/p>\n
We think that the rights described as fundamental rights are a necessary
\nconsequence of the declaration in the preamble that the people of India
\nhave solemnly resolved to constitute India into a sovereign democratic
\nrepublic and to secure to all its citizens justice, social, economic and
\npolitical; liberty of thought, expression, belief, faith and worship; equality
\nof status and of opportunity. These fundamental rights have not been put
\nin the Constitution merely for individual benefits, though ultimately they
\ncome into operation in considering individual rights. They have been put
\nthere as a matter of public policy and the doctrine of waiver can have no
\napplication to provisions of law which have been enacted as a matter of
\nConstitutional policy.\n<\/p>\n
109. Similarly in In re. The Kerala Education Bill [1959] S.C.R. 995, 1018-1019 1957,
\nDas C.J. while considering the validity of the Kerala Education Bill 1957 observed:
\nIn order to appreciate the true meaning, import and implications of the
\nprovisions of the Bill which are said to have given rise to doubts, it will be
\nnecessary to refer first to certain provisions of the Constitution which may
\nhave a bearing upon the questions under consideration and then to the
\nactual provision of the Bill. The inspiring and nobly expressed preamble to
\nour Constitution records the solemn resolve of the people of India to
\nconstitute…. (He then sets out the Preamble). Nothing provokes and
\nstimulates thought and expression in people more than education. It is
\neducation that clarifies our belief and faith and helps to strengthen our
\nspirit of worship. To implement and fortify these supreme purposes set
\nforth in the preamble, Part III of our Constitution has provided for us
\ncertain fundamental rights.\n<\/p>\n
110. In Sajjan Singh v. State of Rajasthan [1965] 1 S.C.R. 933; 968 Mudholkar, J. after
\nassuming that the Preamble is not a part of the Constitution, observed:
\nWhile considering this question it would be of relevance to bear in mind
\nthat the preamble is not of the common run such as is to be found in an
\nAct of a legislature. It has the stamp of deep deliberation and is marked by
\nprecision. Would this not suggest that the framers of the Constitution
\nattached special significance to it?\n<\/p>\n
111. Quick and Garran in their “Annotated Constitution of the Australian Commonwealth
\n(1901 p. 283) “adopted the following sentence from Lord Thring’s “Practical Legislation,
\np. 36”:\n<\/p>\n
A preamble may be used for other reasons to limit the scope of certain
\nexpressions or to explain facts or introduce definitions.\n<\/p>\n
112. Thornton on “Legislative Drafting”-p. 137-opines that “construction of the preamble
\nmay have effect either to extend or to restrict general language used in the body of an
\nenactment.\n<\/p>\n
113. In Attorney-General v. Prince Ernest Augustus of Hanover [1957] A.C. 436, 460 the
\nHouse of Lords considered the effect of the preamble on the interpretation of Princes
\nSophia Naturalization Act; 1705. It was held that “as a matter of construction of the Act,
\nthere was nothing in the Act or its preamble, interpreted in the light of the earlier relevant
\nstatutes…capable of controlling and limiting the plain and ordinary meaning of the
\nmaterial words of the enacting provisions and that the class of lineal descendants “born or
\nhereafter to be born” meant the class of such descendants in all degrees without any limit
\nas to time.” The House of Lords further held that “looking at the Act from the point of
\nview of 1705 there was no such manifest absurdity in this construction as would entitle
\nthe court to reject it.\n<\/p>\n
114. Mr. Seervai referred to the passage from the speech of Lord Normand, at p. 467. The
\npassage is lengthy but I may quote these sentences:\n<\/p>\n
It is only when it conveys a clear and definite meaning in comparison with
\nrelatively obscure or indefinite enacting words that the preamble may
\nlegitimately prevail. If they admit of only one construction, that
\nconstruction will receive effect even if it is inconsistent with the preamble,
\nbut if the enacting words are capable of either of the constructions offered
\nby the parties, the construction which fits the preamble may be preferred.\n<\/p>\n
115. Viscount Simonds put the matter at page 463, thus:\n<\/p>\n
On the one hand, the proposition can be accepted that “it is a settled rule
\nthat the preamble cannot be made use of to control the enactments
\nthemselves where they are expressed in clear and unambiguous terms”. I
\nquote the words of Chitty L.J., which were cordially approved by Lord
\nDavey in Powell v. Kempton Park Racecourse Co. Ltd. (1889) A.C. 143,\n<\/p>\n
185. On the other hand it must often be difficult to say that any terms are
\nclear and unambiguous until they have been studied in their context\n<\/p>\n
116. This case shows that if on reading Article 368 in the context of the Constitution I
\nfind the word “Amendment” ambiguous I can refer to the Preamble to find which
\nconstruction would fit in with the Preamble.\n<\/p>\n
117. In State of Victoria v. The Commonwealth 45 A.L.J. 251 which is discussed in
\ndetail later, a number of Judges refer to the federal structure of the Constitution. It is in
\nthe preamble of the Commonwealth of Australia Constitution Act, 1902 that ‘one
\nindissoluble Federal Commonwealth’ is mentioned.\n<\/p>\n
118. There is a sharp conflict of opinion in Australia respecting the question whether an
\namendment can be made which would be inconsistent with the Preamble of the
\nConstitution Act referring to the “indissoluble” character and the sections which refer to
\nthe “Federal” nature of the Constitution. After referring to this conflict, Wynes(Wynes
\nLegislative, Executive and Judicial Powers in Australia, Fourth Edn. p. 506). observes:
\nApart from the rule which excludes the preamble generally from
\nconsideration in statutory interpretation, it is clear that, when all is said
\nand done, the preamble at the most is, only a recital of the intention which
\nthe Act’ seeks to effect; and it is a recital of a present (i.e., as in 1900)
\nintention. But in any event the insertion of an express reference to
\namendment in the Constitution itself must surely operate as a qualification
\nupon the mere recital of the reasons for its creation.\n<\/p>\n
119. I am not called upon to say which view is correct but it does show that in Australia,
\nthere is a sharp conflict of opinion as to whether the Preamble can control the amending
\npower.\n<\/p>\n
120. Story in his Commentaries on the Constitution of the United States states : [(1883)
\nVol. 1]
\nIt (Preamble) is properly resorted to, where doubts or ambiguities arise
\nupon the words of the enacting part; for if they are dear and unambiguous,
\nthere seems little room for interpretation, except in cases leading to an
\nobvious absurdity, or to a direct overthrow of the intention express in the
\npreamble.\n<\/p>\n
There does not seem any reason why, in a fundamental law or Constitution
\nof government, an equal attention should not be given to the intention of
\nthe framers, as stated in the preamble. And accordingly we find, that it has
\nbeen constantly referred to by statesmen and jurists to aid them in the
\nexposition of its provisions.\n<\/p>\n
121. Story further states at page 447-448:\n<\/p>\n
And the uniform doctrine of the highest judicial authority has accordingly
\nbeen, that it was the act of the people, and not of the states; and that it
\nbound the latter, as subordinate to the people. “Let us turn,” said Mr. Chief
\nJustice Jay, “to the Constitution. The people therein declare, that their
\ndesign in establishing it comprehended six objects: (1) To form a more
\nperfect union; (2) to establish justice; (3) to insure domestic tranquillity;
\n(4) to provide for the common defence; (5) to promote the general welfare;
\n(6) to secure the blessings of liberty to themselves and their posterity. It
\nwould,” he added, “be pleasing and useful to consider and trace the
\nrelations, which each of these objects bears to the others; and to show,
\nthat, collectively, they comprise every thing requisite, with the blessing of
\nDivine Providence, to render a people prosperous and happy.” In Hunter v.
\nMartin (1 Wheat. R. 305, 324), the Supreme Court say, (as we have seen)
\n“the Constitution of the United States was ordained and established, not by
\nthe states in their sovereign capacities, but emphatically, as the preamble
\nof the Constitution declares, by the people of the “United States;” and
\nlanguage still more expressive will be found used on other solemn
\noccasions.\n<\/p>\n
122. “The Supreme Court of United States (borrowing some of the language of the
\nPreamble to the Federal Constitution) has appropriately stated that the people of the
\nUnited States erected their Constitutions or forms of government to establish justice, to
\npromote the general welfare, to secure the blessings of liberty, and to protect their
\npersons and property from violence”. (American Jurisprudence, 2d. Vol. 16 p. 184).\n<\/p>\n
123. In the United States the Declaration of Independence is sometimes referred to in
\ndetermining Constitutional questions. It is stated in American Jurisprudence (2d. 16. p.\n<\/p>\n
189):\n<\/p>\n
While statements of principles contained in the Declaration of
\nIndependence do not have the force of organic law and therefore cannot be
\nmade the basis of judicial decision as to the limits of rights and duties, yet:
\nit has been said that it is always safe to read the letter of the Constitution
\nin the spirit of the Declaration of Independence, and the courts sometimes
\nrefer to the Declaration in determining Constitutional questions.\n<\/p>\n
124. It seems to me that the Preamble of our Constitution is of extreme importance and
\nthe Constitution should be read and interpreted in the light of the grand and noble vision
\nexpressed in the Preamble.\n<\/p>\n
125. Now I may briefly describe the scheme of the Constitution. Part I of the Constitution
\ndeals with “the Union and its Territory”. As originally enacted, Article 1 read as follows:\n<\/p>\n
1. India, that is Bharat, shall be a Union of States.\n<\/p>\n
2. The States and the territories thereof shall be the States and their
\nterritories specified in Parts A, B and C of the First Schedule.\n<\/p>\n
3. The territory of India shall comprise-\n<\/p>\n
(a) the territories of the States;\n<\/p>\n
(b) the territories specified in Part D of the First Schedule;\n<\/p>\n
and\n<\/p>\n
(c) such other territories as may be acquired.\n<\/p>\n
126. Article 2 enabled Parliament to admit into the Union, or establish, new States on
\nsuch terras and conditions as it thinks fit. Article 3 and 4 dealt with the formation of new
\nStates and alteration of areas, boundaries or names of existing States.\n<\/p>\n
127. Part II dealt with “Citizenship”. The heading of Part III is “Fundamental Rights”. It
\nfirst describes the expression “the State” to include “the Government and Parliament of
\nIndia and the Government and the Legislature of each of the States and all local or other
\nauthorities within the territory of India or under the control of the Government of India.”
\n(Article 12), Article 13 provides that laws inconsistent with or in derogation of the
\nfundamental rights shall be void. This applies to existing laws as well as laws made after
\nthe coming into force of the Constitution. For the time being I assume that in Article
\n13(2) the word “law” includes Constitutional amendment.\n<\/p>\n
128. The fundamental rights conferred by the Constitution include right to equality before
\nthe law, (Article 14), prohibition of discrimination on grounds of religion, race, caste, sex
\nor place of birth, (Article 15), equality of opportunity in matters of public employment,
\n(Article 16), right to freedom of speech and expression, to assemble peaceably and
\nwithout arms, to form association or unions, to move freely throughout the territory of
\nIndia, to reside and settle in any part of the territory of India, to acquire, hold and dispose
\nof property; and to practice any profession or to carry on any occupation, trade or
\nbusiness. (Article 19). Reasonable restrictions can be imposed on the rights under Article
\n19 in respect of various matters.\n<\/p>\n
129. Article 20 protects a person from being convicted of any offence except for violation
\nof a law in force at the time of the commission of the act charged as an offence or to be
\nsubjected to a penalty greater than that which might have been inflicted under the law in
\nforce at the time of the commission of the offence. It further provides that no person shall
\nbe prosecuted and punished for the same offence more than once, and no person accused
\nof any offence shall be compelled to be a witness against himself.\n<\/p>\n
130. Article 21 provides that no person shall be deprived of his life or personal liberty
\nexcept according to procedure established by law.\n<\/p>\n
131. Article 22 gives further protection against arrest and detention in certain cases.
\nArticle 22(1) provides that “no person who is arrested shall be detained in custody
\nwithout being informed, as soon as may be, of the grounds for such arrest nor shall he be
\ndenied the right to consult, and to be defended by, a legal practitioner of his choice.”
\nArticle 22(2) provides that “every person who is arrested and detained in custody shall be
\nproduced before the nearest magistrate within a period of twenty-four hours of such arrest
\nexcluding the time necessary for the journey from the place of arrest to the court of the
\nmagistrate and no such person shall be detained in custody beyond the said period
\nwithout the authority of a magistrate”.\n<\/p>\n
132. Article 22(4) deals with Preventive Detention. Article 23 prohibits traffic in human
\nbeings and other similar forms of forced labour. Article 24 provides that “no child below
\nthe age of fourteen years shall be employed to work in any factory or mine or engaged in
\nany other hazardous employment.\n<\/p>\n
133. Articles 25, 26, 27 and 28 deal with the freedom of religion. Article 25(1) provides
\nthat “subject to public order, morality and health and to the other provisions of this Part,
\nall persons are equally entitled to freedom of conscience and the right freely to profess,
\npractise and propagate religion.” Article 26 enables every religious denomination or
\nsection thereof, subject to public order, morality and health, to establish and manage
\ninstitutions for religious and, charitable purposes; to manage their own affairs in matters
\nof religion, to own and acquire movable and immovable property, and to administer such
\nproperty in accordance with law. Article 27 enables presons to resist payment of any
\ntaxes the proceeds of which are specifically appropriated in payment of expenses for the
\npromotion or maintenance of any particular religion or religious denomination. Article 28
\ndeals with freedom as to attendance at religious instruction or religious worship in certain
\neducational institutions.\n<\/p>\n
134. Article 29(1) gives protection to minorities and provides that “any section of the
\ncitizens residing in the territory of India or any part thereof having a distinct language,
\nscript or culture of its own shall have the right to conserve the same.” Article 29(2)
\nprovides that “no person shall be denied admission into any educational institution
\nmaintained by the State or receiving aid out of State funds on grounds only of religion,
\nrace, caste, language or any of them.\n<\/p>\n
135. Article 30 gives further rights to minorities whether based on religion or language to
\nestablish and administer educational institutions of their choice. Article 30(2) prohibits
\nthe State from discriminating against any educational institution, in granting aid to
\neducational institutions, on the ground that it is under the management of a minority,
\nwhether based on religion or language.\n<\/p>\n
136. As will be shown later the inclusion of special rights for minorities has great
\nsignificance. They were clearly intended to be inalienable.\n<\/p>\n
137. The right to property comes last and is dealt with the Article 31. As originally
\nenacted, it dealt with the right to property and prevented deprivation of property save by
\nauthority of law, and then provided for compulsory acquisition for public purposes on
\npayment of compensation. It had three significant provisions, which show the intention of
\nthe Constitution-makers regarding property rights. The first is Article 31(4). This
\nprovision was intended to protect legislation dealing with agrarian reforms. The second
\nprovision, Article 31(5)(a), was designed to protect existing legislation dealing with
\ncompulsory acquisition. Some acts, saved by this provision did not provide for payment
\nof full compensation e.g. U.P. Town Improvement Act, 1919. The third provision Article
\n31(6) provided a protective umbrella to similar laws enacted not more than eighteen
\nmonths before the commencement of the Constitution.\n<\/p>\n
138. The fundamental rights were considered of such importance that right was given to
\nan aggrieved person to move the highest court of the land, i.e., the Supreme Court, by
\nappropriate proceedings for the enforcement of the rights conferred by this part, and this
\nright was guaranteed. Article 32(2) confers very wide powers on the Supreme Court, to
\nissue directions or orders or writs including writs in the nature of habeas corpus,
\nmandamus, prohibition, quo warranto and certiorari, whichever may be appropriate, for
\nthe enforcement of any of the rights conferred by this Part. Article 32(4) further provides
\nthat “the right guaranteed by this article shall not be suspended except as otherwise
\nprovided for by this Constitution.\n<\/p>\n
139. Article 33 enables Parliament by law to “determine to what extent any of the rights
\nconferred by this Part shall, in their application to the members of the Armed Forces or
\nthe Forces charged with the maintenance of public order, be restricted or abrogated so as
\nto ensure the proper discharge of their duties and the maintenance of discipline among
\nthem.\n<\/p>\n
140. This articles shows the care with which, the circumstances in which, fundamental
\nrights can be restricted or abrogated were contemplated and precisely described.\n<\/p>\n
141. Article 34 enables Parliament, by law, to indemnify any person in the service of the
\nUnion, or of a State or any other person in connection with acts done while martial law
\nwas in force in a particular area.\n<\/p>\n
142. Part IV of the Constitution contains directive principles of State policy. Article 37
\nspecifically provides that “the provisions contained in this Part shall not be enforceable
\nby any court, but the principles therein laid down are nevertheless fundamental in the
\ngovernance of the country and it shall be the duty of the State to apply these principles in
\nmaking laws.” This clearly shows, and it has also been laid down by this Court, that these
\nprovisions are not justiciable and cannot be enforced by any Court. The Courts could not,
\nfor instance, issue a mandamus directing the State to provide adequate means of
\nlivelihood to every citizen, or that the ownership and control of the material resources of
\nthe community be so distributed as best to subserve the common good, or that there
\nshould be equal pay for equal work for both men and women.\n<\/p>\n
143. Some of the directive principles are of great fundamental importance in the
\ngovernance of the country. But the question is not whether they are important; the
\nquestion is whether they override the fundamental rights. In other words, ran Parliament
\nabrogate the fundamental rights in order to give effect to some of the directive principles
\n?\n<\/p>\n
144. I may now briefly notice the directive principles mentioned in Part IV. Article 38
\nprovides that “the State shall strive to promote the welfare of the people by securing and
\nprotecting as effectively as it may a social order in which justice, social, economic and
\npolitical, shall inform all the institutions of the national life.” Now, this directive is
\ncompatible with the fundamental rights because surely the object of many of the
\nfundamental rights is to ensure that there shall be justice, social, economic and political,
\nin the country. Article 39, which gives particular directions to the State, reads thus:\n<\/p>\n
39. The State shall, in particular, direct its policy towards securing-\n<\/p>\n
(a) that the citizens, men and women equally, have the right
\nto an adequate means of livelihood;\n<\/p>\n
(b) that the ownership and control of the material resources
\nof the community are so distributed as best to subserve the
\ncommon good;\n<\/p>\n
(c) that the operation of the economic system does not
\nresult in the concentration of wealth and means of
\nproduction to the common detriment;\n<\/p>\n
(d) that there is equal pay for equal work for both men and
\nwomen;\n<\/p>\n
(e) that the health and strength of workers, men and
\nwomen, and the tender age of children are not abused and
\nthat citizens are not forced by economic necessity to enter
\navocations unsuited to their age or strength;\n<\/p>\n
(f) that childhood and youth are protected against
\nexploitation and against moral and material abandonment.\n<\/p>\n
145. Article 40 deals with the organisation of village panchayats. Articles 41 deals with
\nthe right to work, to education and to public assistance in certain cases. Article 42 directs
\nthat the State shall make provisions for securing just and humane conditions of work and
\nfor maternity relief. Article 43 direct that “the State shall endeavour to secure, by suitable
\nlegislation or economic organisation or in any other way, to all workers, agricultural,
\nindustrial or otherwise, work, a living wage, conditions of work ensuring a decent
\nstandard of life and full enjoyment of leisure and social and cultural opportunities and, in
\nparticular, the State shall endeavour to promote cottage industries on an individual or
\ncooperative basis in rural areas.\n<\/p>\n
146. Article 44 enjoins that the “State shall endeavour to secure for the citizens a uniform
\ncivil code throughout the territory of India.” Desirable as it is, the Government has not
\nbeen able to take any effective steps towards the realisation of this goal. Obviously no
\nCourt can compel the Government to lay down a uniform civil code even though it is
\nessentially desirable in the interest of the integrity, and unity of the country.\n<\/p>\n
147. Article 45 directs that “the State shall endeavour to provide, within a period of ten
\nyears from the commencement of this Constitution, for free compulsory education for all
\nchildren until they complete the age of fourteen years.” This again is a very desirable
\ndirective. Although the Government has not been able to fulfil it completely, it cannot be
\ncompelled by any court of law to provide such education.\n<\/p>\n
148. Article 46 supplements the directive given above and enjoins the State to promote
\nwith special care the educational and economic interests of the weaker sections of the
\npeople, and in particular, of the Scheduled Castes and the Scheduled Tribes, and to
\nprotect them from social injustice and all forms of exploitation.\n<\/p>\n
149. Article 47 lays down as one of the duties of the State to raise the standard of living
\nand to improve public health, and to bring about prohibition. Article 48 directs the State
\nto endeavour to organise agriculture and animal husbandry on modern and scientific
\nlines, and in particular, to take steps for preserving and improving the breeds, and
\nprohibiting the slaughter of cows and calves and other milch and draught cattle.\n<\/p>\n
150. Article 49 deals with protection of monuments and places and objects of national
\nimportance. Article 50 directs that the State shall take steps to separate the judiciary from
\nthe executive in the public services of the State. This objective has been, to a large extent,
\ncarried out without infringing the fundamental rights.\n<\/p>\n
151. In his preliminary note on the fundamental Rights, Sir B.N. Rau, dealing with the
\ndirective principles, observed:\n<\/p>\n
The principles set forth in this Part are intended for the general guidance
\nof the appropriate Legislatures and Government in India (hereinafter
\nreferred to collectively as ‘the State’). The application of these principles in
\nlegislation and administration shall be the care of the State and shall not be
\ncognizable by any Court.\n<\/p>\n
152. After setting out certain directive principles, he observed:
\nIt is obvious that none of the above provisions is suitable for enforcement
\nby the courts. They are really in the nature of moral precepts for the
\nauthorities of the State. Although it may be contended that the
\nConstitution is not the proper place for moral precepts, nevertheless
\nConstitutional declaration of policy of this kind are now becoming
\nincreasingly frequent. (See the Introduction to the I.L.O. publication
\nConstitutional Provisions concerning Social and Economic Policy,
\nMontreal, 1944). They have at least an educative value. (pages 33-34-
\nShiva Rao : Framing of Indian Constitution : Doc. Vol. II).\n<\/p>\n
Then he referred to the genesis of the various articles mentioned in the preliminary note.\n<\/p>\n
153. One must pause and ask the question as to why did the Constituent. Assembly resist
\nthe persistent efforts of Shri B.N. Rau to make fundamental rights subject to the directive
\nprinciples. The answer seems plain enough : The Constituent Assembly deliberately
\ndecided not to do so.\n<\/p>\n
154. Sir Alladi Krishnaswami Ayyar, in his note dated March 14, 1947, observed:
\nA distinction has necessarily to be drawn between rights which are
\njusticiable and rights which are merely intended as a guide and directive
\nobjectives to state policy.\n<\/p>\n
155. It is impossible to equate the directive principles with fundamental rights though it
\ncannot be denied that they are very important. But to say that the directive principles give
\na directive to take away fundamental rights in order to achieve what is directed by the
\ndirective principles seems to me a contradiction in terms.\n<\/p>\n
156. I may here mention that while our fundamental rights and directive principles were
\nbeing fashioned and approved of by the Constituent Assembly, on December 10, 1948
\nthe General Assembly of the United Nations adopted a Universal Declaration of Human
\nRights. The Declaration may not be a legally binding instrument but it shows how India
\nunderstood the nature of Human Rights. I may here quote only the Preamble:
\nWhereas recognition of the inherent dignity of the equal and inalienable
\nrights of all members of the human family is the foundation of freedom,
\njustice and peace in the world.\n<\/p>\n
(emphasis supplied)\n<\/p>\n
157. Whereas disregard and contempt for human rights have resulted in barbarous acts
\nwhich have outraged the conscience of mankind, and the advent of a world in which
\nhuman beings shall enjoy freedom of speech and belief and freedom from fear and want
\nhas been proclaimed as the highest aspiration of the common people.\n<\/p>\n
158. Whereas it is essential, if man is not to be compelled to have recourse, as a last
\nresort, to rebellion against tyranny and oppression, that human rights should be protected
\nby the rule of law.\n<\/p>\n
159. Whereas it is essential to promote the development of friendly relations between
\nnations.\n<\/p>\n
160. Whereas the peoples of the United Nations have in the Charter reaffirmed their faith
\nin fundamental human rights, in the dignity and worth of the human person and in the
\nequal rights of men and women and have determined to promote social progress and
\nbetter standards of life in larger freedom.\n<\/p>\n
161. Whereas Member States have pledged themselves to achieve, in cooperation with
\nthe United Nations, the promotion of universal respect for and observance of human
\nrights and fundamental freedoms.\n<\/p>\n
162. Whereas a common understanding of these rights and freedoms is of the greatest
\nimportance for the full realization of this pledge\n<\/p>\n
163. In the Preamble to the International Covenant on Economic and Social and Cultural
\nRights 1966, inalienability of rights is indicated in the first Para as follows:
\nConsidering that, in accordance with the principles proclaimed in the
\nCharter of the United Nations, recognition of the inherent dignity and of
\nthe equal and inalienable rights of all members of the human family is the
\nfoundation of freedom, justice and peace in the world.\n<\/p>\n
164. Do rights remain inalienable if they can be amended out of existence ? The
\nPreamble Articles 1, 55, 56, 62, 68 and 76 of the United Nations Charter had provided the
\nbasis for the elaboration in the Universal Declaration of Human Rights. Although there is
\na sharp conflict of opinion whether respect for human dignity and fundamental human
\nrights is obligatory under the Charter (see Oppenheim’s International Law; 8th ed. Vol. 1,
\npp. 740-41; footnote 3), it seems to me that, in view of Article 51 of the directive
\nprinciples, this Court must interpret language of the Constitution, if not intractable, which
\nis after all a municipal law, in the light of the United Nations Charter and the solemn
\ndeclaration subscribed to by India. Article 51 reads:\n<\/p>\n
51. The State shall endeavour to-\n<\/p>\n
(a) promote international peace and security;\n<\/p>\n
(b) maintain just and honourable relations between nations;\n<\/p>\n
(c) foster respect for international law and treaty
\nobligations in the dealings of organised peoples with one
\nanother; and\n<\/p>\n
(d) encourage settlement of international disputes by
\narbitration.\n<\/p>\n
165. As observed by Lord Denning in Corocraft v. Pan American Airways (1969) 1 All
\nE.R. 82; 87 “it is the duty of these courts to construe our Legislation so as to be in
\nconformity with international law and not in conflict with it.” (See also Oppenheim supra,
\npp. 45-46; American Jurisprudence 2nd, Vol. 45, p. 351).\n<\/p>\n
166. Part V Chapter I, deals with the Executive; Chapter II with Parliament-conduct or its
\nbusiness, qualification of its members, legislation procedure etc. Article 83 provides that:\n<\/p>\n
83. (1) The Council of States shall not be subject to dissolution, but as
\nnearly as possible one-third of the members thereof shall retire as soon as
\nmay be on the expiration of every second year in accordance with the
\nprovisions made in that behalf by Parliament by law.\n<\/p>\n
(2) The House of the People unless sooner dissolved, shall continue for
\nfive years from the date appointed for its first meeting and no longer and
\nthe expiration of the said period of five years shall operate as a dissolution
\nof the House: …\n<\/p>\n
Under the proviso this period can be extended while a Proclamation of Emergency is in
\noperation for a period not exceeding in any case beyond a period of six months after the
\nProclamation has ceased to operate. It was provided in Article 85(1) before its
\namendment by the Constitution (First Amendment) Act 1951 that the House of
\nParliament shall be summoned to meet twice at least in every year, and six months shall
\nnot intervene between their last sittings in one session and the date appointed for their
\nfirst sitting in the next session.\n<\/p>\n
167. Article 123 gives power to the President to promulgate ordinances during recess of
\nParliament Chapter IV deals with Union Judiciary.\n<\/p>\n
168. Part VI, as originally enacted dealt with the States in Part A of the First Schedule-the
\nExecutive, the State Legislatures and the High Courts. Article 174 deals with the
\nsummoning of the House of Legislature and its provisions are similar to that of Article\n<\/p>\n
85. Article 213 confers legislative powers on the Governor during the recess of State
\nLegislature by promulgating ordinances.\n<\/p>\n
169. Part XI deals with the relation between the Union and the States; Chapter I
\nregulating legislative relations and Chapter II administrative relations.\n<\/p>\n
170. Part XII deals with Finance, Property, Contracts and Suits. We need only notice
\nArticle 265 which provides that “no tax shall be levied or collected except by authority of
\nlaw”.\n<\/p>\n
171. Part XIII deals with Trade, Commerce and Intercourse within the Territory of India.
\nSubject to the provisions of this Chapter, trade, commerce and intercourse throughout the
\nterritory of India shall be free (Article 301).\n<\/p>\n
172. Part XIV deals with Services under the Union and the States. Part XVI contains
\nspecial provisions relating to certain classes-the Scheduled Castes, the Scheduled Tribes
\netc. It reserved seats in the House of the People for these classes. Article 331 enables the
\nPresident to nominate not more than two members of the Anglo-Indian community if it is
\nnot adequately represented in the House of the People. Article 332 deals with the
\nreservation of seats for Scheduled Castes and Scheduled Tribes in the Legislative
\nAssemblies of the States. In Article 334 it is provided that the above mentioned
\nreservation of seats and special representation to certain classes shall cease on the expiry
\nof a period of ten years from the commencement of this Constitution. Article 335 deals
\nwith claims of scheduled castles and scheduled tribes to services and posts. Article 336
\nmakes special provisions for Anglo-Indian community in certain services, and Article
\n337 makes special provisions in respect of educational grants for the benefit of Anglo-
\nIndian community. Article 338 provides for the creation of a Special Officer for
\nScheduled Castes, Scheduled Tribes, etc. to be appointed by the President, and prescribes
\nhis duties. Article 340 enables the President to appoint a Commission to investigate the
\nconditions of socially and educationally backward classes within the territory of India
\nwhich shall present a report and make recommendations on steps that should be taken to
\nremove difficulties and improve their condition. Article 341 enables the President to
\nspecify the castes, races or tribes or parts of or groups within castes, races or tribes which
\nshall for the purposes of this Constitution be deemed to be Scheduled Castes in relation to
\nthat State. Similarly, Article 342 provides that the President may specify the tribes or
\ntribal communities or parts of or groups within tribes or tribal communities which shall
\nbe deemed to be Scheduled Tribes in relation to that State.\n<\/p>\n
173. Part XVII deals with Official Language, and Part XVIII with Emergency Provisions.
\nArticle 352 is important. It reads:\n<\/p>\n
352.(1) If the President is satisfied that a grave emergency exists whereby
\nthe security of India or of any part of the territory thereof is threatened,
\nwhether by war or external aggression or internal disturbance, he may, by
\nProclamation, make a declaration to that effect.\n<\/p>\n
174. Article 353 describes the effect of the Proclamation of Emergency. The effect is that
\nthe executive power of the Union shall be extended to the giving of directions to any
\nState as to the manner in which the executive power thereof is to be exercised, and the
\nParliament gets the power to make laws with respect to any matter including the power to
\nmake laws conferring powers and imposing duties, etc., notwithstanding that it is one
\nwhich is not enumerated in the Union List. Article 354 enables the President by order to
\nmake exceptions and modifications in the provisions of Article 268 to 279. Under Article
\n355 it is the duty of the Union to protect every State against external aggression and
\ninternal disturbance and to ensure that the government of every State is carried on in
\naccordance with the provisions of the Constitution. Article 356 contains provisions in
\ncase of failure of Constitutional machinery in a State.\n<\/p>\n
175. Article 358 provides for suspension of the provisions of Article 19 during
\nEmergency. It reads:\n<\/p>\n
358. While a Proclamation of Emergency is in operation, nothing in
\nArticle 19 shall restrict the power of the State as defined in Part III to
\nmake any law or to take any executive action which the State would but
\nfor the provisions contained in that Part be competent to make or to take,
\nbut any law so made shall, to the extent of the incompetency, cease to
\nhave effect as soon as the Proclamation ceases to operate, except as
\nrespects things done or omitted to be done before the law so ceases to have
\neffect.\n<\/p>\n
176. Article 359 is most important for our purpose. It provides that:\n<\/p>\n
359. (1) Where a Proclamation of Emergency is in operation the President
\nmay by order declare that the right to move any court for the enforcement
\nof such of the rights conferred by Part III as may be mentioned in the
\norder and all proceedings pending in any court for the enforcement of the
\nrights so mentioned shall remain suspended for the period during which
\nthe Proclamation is in force or for such shorter period as may be specified
\nin the order.\n<\/p>\n
(2) An order made as aforesaid may extend to the whole or any part of the
\nterritory of India.\n<\/p>\n
(3) Every order made under Clause (1) shall, as soon as maybe after it is
\nmade be laid before each House of Parliament.\n<\/p>\n
177. These two articles, namely Article 358 and Article 359 show that the Constitution
\nmakers contemplated that fundamental rights might impede the State in meeting an
\nemergency, and it was accordingly provided that Article 19 shall not operate for a limited
\ntime, and so also Article 32 and Article 226 if the President so declares by order. If it was
\nthe design that fundamental rights might be abrogated surely they would have expressly
\nprovided it somewhere.\n<\/p>\n
178. I may here notice an argument that the enactment of Articles 358 and 359 showed
\nthat the fundamental rights were not treated as inalienable rights. I am unable to infer this
\ndeduction from these articles. In an emergency every citizen is liable to be subjected to
\nextraordinary restrictions.\n<\/p>\n
179. I may here notice some relevant facts which constitute the background of the
\nprocess of drafting the Constitution. The British Parliament knowing the complexities of
\nthe structure of the Indian people expressly provided in Section 6(6) of the Indian
\nIndependence Act, 1947, that “the powers referred to in Sub-section (1) of this section
\nextends to the making of laws limiting for the future the powers of the legislature of the
\nDominion.” Sub-section (1) of Section 6 reads:\n<\/p>\n
The legislature of each of the new Dominions shall have full power to
\nmake laws for that Dominion, including laws having extraterritorial
\noperation.\n<\/p>\n
That Section 6(1) included making provision as to the Constitution of the Dominion is
\nmade clear by Section 8(1) which provided : “In the case of each of the new Dominions,
\nthe powers of legislature of the Dominion shall for the purpose of making provision as to
\nthe Constitution of the Dominion be exercisable in the first instance by the Constituent
\nAssembly of that Dominion, and references in this Act to the legislature of the Dominion
\nshall be construed accordingly.\n<\/p>\n
(Emphasis supplied).\n<\/p>\n
180. These provisions of the Indian Independence Act amply demonstrate that when the
\nConstituent Assembly started functioning, it knew, if it acted under the Indian
\nIndependence Act, that it could limit the powers of the future Dominion Parliaments.\n<\/p>\n
181. No similar provisions exists in any of the Independence Acts in respect of other
\ncountries, enacted by the British Parliament, e.g., Ceylon Independence Act, 1947, Ghana
\nIndependence Act, 1957, Federation of Malaya Independence Act, 1957, Nigeria
\nIndependence Act, 1960, Sierra Leone Independence Act, 1961, Tanganyika
\nIndependence Act, 1961, Southern Rhodesia Act, 1965, Jamaica Independence Act, 1962.\n<\/p>\n
182. I may mention that the aforesaid provisions in the Indian Independence Act were
\nenacted in line with the Cabinet Statement dated May 16, 1947 and the position of the
\nCongress Party. Para 20(See : Shiva Rao-The Framing of India’s Constitution, Vol. I, p.\n<\/p>\n
216) of the Statement by the Cabinet Mission provided:\n<\/p>\n
The Advisory Committee on the rights of citizens, minorities, and tribal
\nand excluded areas should contain full representation of the interests
\naffected, and their function will be to report to the Union Constituent
\nAssembly upon the list of Fundamental Rights, the clauses for the
\nprotection of minorities, and a scheme for the administration of the tribal
\nand excluded areas, and to advise whether these rights should be
\nincorporated in the Provincial, Group, or Union Constitution.\n<\/p>\n
183. In clarifying this statement Sir Stafford Cripps at a Press Conference dated May 16,
\n1946 stated:\n<\/p>\n
But in order to give these minorities and particularly the smaller minorities
\nlike the Indian Christians and the Anglo-Indians and also the tribal
\nrepresentatives a better opportunity of influencing minority provisions, we
\nhave made provision for the setting up by the Constitution-making body of
\nan influential advisory Commission which will take the initiative in the
\npreparation of the list of fundamental rights, the minority protection
\nclauses and the proposals for the administration of tribal and excluded
\nareas. This Commission will make its recommendations to the
\nConstitutionmaking body and will also suggest at which stage or stages in
\nthe Constitution these provisions should be inserted, that is whether in the
\nUnion, Group or Provincial Constitutions or in any two or more of them.
\n(P. 224, Supra).\n<\/p>\n
184. In the letter dated May 20, 1946, from Maulana Abul Kalam Azad to the Secretary
\nof State, it is stated:\n<\/p>\n
The principal point, however, is, as stated above, that we look upon this
\nConstituent Assembly as a sovereign body which can decide as it chooses
\nin regard to any matter before it and can give effect to its decisions. The
\nonly limitation, we recognise is that in regard to certain major communal
\nissues the decision should be by a majority of each of the two major
\ncommunities. (P. 251, Supra).\n<\/p>\n
185. In his reply dated May 22, 1946, the Secretary of State observed:
\nWhen the Constituent Assembly has completed its labours, His Majesty’s
\nGovernment will recommend to Parliament such action as may be
\nnecessary for the cession of sovereignty to the Indian people, subject only
\nto two provisos which are mentioned in the statement and which are not,
\nwe believe, controversial, namely, adequate provision for the protection of
\nminorities and willingness to conclude a treaty to cover matters arising out
\nof the transfer of power.\n<\/p>\n
(Emphasis supplied)\n<\/p>\n
186. In the Explanatory statement dated May 22, 1946, it was again reiterated as follows:
\nWhen the Constituent Assembly has completed its labours, His Majesty’s
\nGovernment will recommend to Parliament such action as may be
\nnecessary for the cession of sovereignty to the Indian people, subject only
\nto two matters which are mentioned in the statement and which, we
\nbelieve are not controversial, namely, adequate provision for the
\nprotection of the minorities (paragraph 20 of the statement) and
\nwillingness to conclude a treaty with His Majesty’s Government to cover
\nmatters arising out of the transfer of power (paragraph 22 of the statement)
\n(P. 258, Supra).\n<\/p>\n
(Emphasis supplied)\n<\/p>\n
187. In pursuance of the above, a resolution for the setting up of an Advisory Committee
\non fundamental rights was moved by Govind Ballabh Pant in the Constituent Assembly
\non January 24, 1947. He laid special importance on the issue of minorities. The Advisory
\nCommittee met on February 27, 1947 to constitute various sub-committees including the
\nMinorities Sub-Committee. The Sub-Committee on Minorities met later the same day. A
\nquestionnaire was drafted to enquire about political, economic, religious, educational and
\ncultural safeguards. In other words all these safeguards were considered.\n<\/p>\n
188. Divergent views were expressed, and the Minorities Sub-Committee met on April
\n17, 18 and 19, 1947 to consider this important matter. At these meetings the sub-
\ncommittee considered the interim proposals of the fundamental rights Sub-Committee in
\nso far as these had a bearing on minority rights. These discussions covered such
\nimportant matters as the prohibition of discrimination on grounds of race, religion, caste,
\netc.; the abolition of untouchability and the mandatory requirements that the enforcement
\nof any disability arising out of untouchability should be made an offence punishable
\naccording to law; freedom to profess, practise and propagate one’s religion; the right to
\nestablish and maintain institutions for religious and charitable purposes; the right to be
\ngoverned by one’s personal, law; the right to use one’s mother-tongue and establish
\ndenominational communal or language schools etc.\n<\/p>\n
189. Having dealt with the question of fundamental rights for minorities, the Minorities
\nSub-Committee met again on July 21, 1947, to consider the political safeguards for
\nminorities and their presentation in the public services.\n<\/p>\n
190. In forwarding the report of the Advisory Committee on the subject of Minority
\nRights, Sardar Vallabhbhai Patel, in his report dated August 8, 1947, said:
\n…It should be treated as supplementary to the one forwarded to you with
\nmy letter No. CA\/24\/Com.\/47, dated the 23rd April 1947 and dealt with by
\nthe Assembly during the April session. That report dealt with justiciable
\nfundamental rights; these rights, whether applicable to all citizens
\ngenerally or to members of minority communities in particular offer a
\nmost valuable safeguard for minorities over a comprehensive field of
\nsocial life. The present report deals with what may broadly be described as
\npolitical safeguards of minorities and covers the following points:\n<\/p>\n
(i) Representation in Legislature; joint versus separate
\nelectorates; and weightage.\n<\/p>\n
(ii) Reservation of seats for minorities in Cabinets.\n<\/p>\n
(iii) Reservation for minorities in the public services.\n<\/p>\n
(iv) Administrative machinery to ensure protection of
\nminority rights.\n<\/p>\n
191. Sardar Patel, while moving the report for consideration on August 27, 1947, said:
\nYou will remember that we passed the Fundamental Rights Committee’s
\nReport which was sent by the Advisory Committee; the major part of
\nthose rights has been disposed of and accepted by this House. They cover
\na very wide range of the rights of minorities which give them ample
\nprotection; and yet there are certain political safeguards which have got to
\nbe specifically considered. An attempt has been made in this report to
\nenumerate those safeguards which are matters of common knowledge,
\nsuch as representation in legislatures, that is, joint versus separate
\nelectorate.\n<\/p>\n
(Emphasis supplied)\n<\/p>\n
192. The above proceedings show that the minorities were particularly concerned with
\nthe fundamental rights which were the subject-matter of discussion by the Fundamental
\nRights Committee.\n<\/p>\n
193. The above brief summary of the work of the Advisory Committee and the Minorities
\nSub-Committee shows that no one ever contemplated that fundamental rights
\nappertaining to the minorities would be liable to be abrogated by an amendment of the
\nConstitution. The same is true about the proceedings in the Constituent Assembly. There
\nis no hint anywhere that abrogation of minorities rights was ever in the contemplation of
\nthe important members of the Constituent Assembly. It seems to me that in the context of
\nthe British Plan, the setting up of Minorities Sub-Committee, the Advisory Committee
\nand the proceedings of these Committees, as well as the proceedings in the Constituent
\nAssembly mentioned above, it is impossible to read the expression “Amendment of the
\nConstitution” as empowering Parliament to abrogate the rights of minorities.\n<\/p>\n
194. Both sides relied on the speeches made in the Constituent Assembly. It is, however,
\na sound rule of construction that speeches made by members of a legislature in the course
\nof debates relating to the enactment of a statute cannot be used as aids for interpreting
\nany of provisions of the statute. The same rule has been applied to the provisions of this
\nConstitution by this Court in State of Travancore-Cochin and Ors. v. Bombay Co. Ltd.
\n[1952] S.C.R. 1112, 1121 Shastri, C.J., speaking for the Court observed:
\n‘It remains only to point out that the use made by the learned Judges below
\nof the speeches made by the Members of the Constituent Assembly in the
\ncourse of the debates on the draft Constitution is unwarranted. That this
\nform of extrinsic aid to the interpretation of statutes is not admissible has
\nbeen generally accepted in England, and the same rule has been observed
\nin the construction of Indian statutes-see Administrator-General of Bengal
\nv. Prem Nath Mallick [1895] 22 I.A. 107-118. The reason behind the rule
\nwas explained by one of us in Gopalan’s [1950] S.C.R. 88 case thus:
\nA speech made in the course of the debate on a bill could at
\nbest be indicative of the subjective intent of the speaker,
\nbut it could not reflect the inarticulate mental process lying
\nbehind the majority vote which carried the bill. Nor is it
\nreasonable to assume that the minds of all those legislators
\nwere in accord,
\nor, as it is more tersely put in an American case-\n<\/p>\n
Those who did not speak may not have agreed with those
\nwho did and those who spoke might differ from each other-\n<\/p>\n
United States v. Trans-Missouri Freight Association.\n<\/p>\n
This rule of exclusion has not always been adhered to in
\nAmerica, and sometimes distinction is made between using
\nsuch material to ascertain the purpose of a statute and using
\nit for ascertaining its meaning. It would seem that the rule
\nis adopted in Canada and Australia-see Craies on Statute
\nLaw, 5th Ed. p. 122.\n<\/p>\n
195. In Golak Nath’s [1967] 2 S.C.R. 762; 792; 922 case, Subba Rao, C.J., referred to
\ncertain portions of the speeches made by Pandit Nehru and Dr. Ambedkar but he made it
\nclear at p. 792 that he referred to these speeches “not with a view to interpret the
\nprovisions of Article 368, which we propose to do on its own terms, but only to notice the
\ntranscendental character given to the fundamental rights by two of the important
\narchitects of the Constitution.” Bachawat, J., at p. 922 observed:
\nBefore concluding this judgment I must refer to some of the speeches
\nmade by the members of the Constituent Assembly in the course of
\ndebates on the draft Constitution. These speeches cannot be used as aids
\nfor interpreting the Constitution-see State of Travancore Cochin and Ors.
\nv. Bombay Co. Ltd. [1952] S.C.R. 1112. Accordingly I do not rely on
\nthem as aids to construction. But I propose to refer to them, as Shri A.K.
\nSen relied heavily on the speeches of Dr. B.R. Ambedkar. According to
\nhim, the speeches of Dr. Ambedkar show that he did not regard the
\nfundamental rights as amendable. This contention is not supported by the
\nspeeches….\n<\/p>\n
196. In H.H. Maharajadhiraja Madhav Rao v. Union of India<\/a> [1971] 3 S.C.R. 9 Shah, J.,
\nin the course of the judgment made a brief reference to what was said by the Minister of
\nHome Affairs, who was in charge of the States, when he moved for the adoption of
\nArticle 291. He referred to this portion of the speech for the purpose of showing the
\nhistorical background and the circumstances which necessitated giving certain guarantees
\nto the former rulers.\n<\/p>\n
197. It is true that Mitter, J., in the dissenting judgment, at p. 121, used the debates for the
\npurposes of interpreting Article 363 but he did not discuss the point whether it is
\npermissible to do so or not.\n<\/p>\n
198. In Union of India v. H.S. Dhillon,<\/a> [1972] 2 S.C.R. 33 I, on behalf of the majority,
\nbefore referring to the speeches observed at p. 58 that “we are, however, glad to find from
\nthe following extracts from the debates that our interpretation accords with what was
\nintended.” There is no harm in finding confirmation of one’s interpretation in debates but
\nit is quite a different thing to interpret the provisions of the Constitution in the light of the
\ndebates.\n<\/p>\n
199. There is an additional reason for not referring to debates for the purpose of
\ninterpretation. The Constitution, as far as most of the Indian States were concerned, came
\ninto operation only because of the acceptance by the Ruler or Rajpramukh. This is borne
\nout by the following extract from the statement of Sardar Vallabhbhai Patel in the
\nConstituent Assembly on October 12, 1949 (C.A.D. Vol. X, pp. 161-3):
\nUnfortunately we have no properly constituted Legislatures in the rest of
\nthe States (apart from Mysore, Saurashtra and Travancore and Cochin
\nUnion) nor will it be possible to have Legislatures constituted in them
\nbefore the Constitution of India emerges in its final form. We have,
\ntherefore, no option but to make the Constitution operative in these States
\non the basis of its acceptance by the Ruler of the Rajpramukh, as the case
\nmay be, who will no doubt consult his Council of Ministers.\n<\/p>\n
200. In accordance with this statement, declarations were issued by the Rulers or
\nRajpramukhs accepting the Constitution.\n<\/p>\n
201. It seems to me that when a Ruler or Rajpramukh or the people of the State accepted
\nthe Constitution of India in its final form, he did not accept it subject to the speeches
\nmade during the Constituent Assembly debates. The speeches can, in my view, be relied
\non only in order to see if the course of the progress of a particular provision or provisions
\nthrows any light on the historical background or shows that a common understanding or
\nagreement was arrived at between certain sections of the people. (See In re. The
\nRegulation and Control of Aeronautics in Canada) [1932] A.C. 54 at p. 70.\n<\/p>\n
202. In this connection reference was made to Article 305 of the draft Constitution which
\nprovided that notwithstanding anything contained in Article 304 of the Constitution, the
\nprovisions of the Constitution relating to the reservation of seats for the Muslims etc.,
\nshall not be amended during the period of ten years from the commencement of the
\nConstitution. Although this draft Article 305 has no counterpart in our Constitution, it
\nwas sought to be urged that this showed that every provision of the Constitution was
\nliable to be amended. I have come to the conclusion that every provision is liable to be
\namended subject to certain limitations and this argument does not affect my conclusion as
\nto implied limitations.\n<\/p>\n
203. A very important decision of the Judicial Committee of the Privy Council in The
\nBribery Commissioner v. Pedrick Ranasinghe [1965] A.C. 172 throws considerable light
\non the topic under discussion. The import of this decision was not realised by this Court
\nin Golak Nath’s [1967] 2 S.C.R. 762 case. Indeed, it is not referred to by the minority in
\nits judgments, and Subba Rao, C.J., makes only a passing reference to it. In order to fully
\nappreciate the decision of the Privy Council it is necessary to set out the relevant
\nprovisions of the Ceylon Independence Order in Council, 1947, hereinafter referred to as
\nthe Ceylon Constitution.\n<\/p>\n
204. Part III of the Ceylon Constitution deals with “Legislature”. Section 7 provides that
\n“there shall be a Parliament of the Island which shall consist of His Majesty, and two
\nChambers to be known respectively as the Senate and the House of Representatives.\n<\/p>\n
205. Section 18 deals with voting. It reads:\n<\/p>\n
18. Save as otherwise provided in Sub-section (4) of Section 29, any
\nquestion proposed for decision by either Chamber shall be determined by
\na majority of votes of the Senators or Members, as the case may be,
\npresent and voting. The President or Speaker or other person presiding
\nshall not vote in the first instance but shall have and exercise a casting
\nvote in the event of an equality of votes.\n<\/p>\n
206. Section 29 deals with the power of Parliament to make laws. It reads:
\n29(1) Subject to the provisions of this Order, Parliament shall have power
\nto make laws for the peace, order and good government of the Island.
\n(2) No such law shall-\n<\/p>\n
(a) prohibit or restrict the free exercise of any religion, or\n<\/p>\n
(b) make persons of any community or religion liable to
\ndisabilities or restrictions to which persons or other
\ncommunities or religions are not made liable; or\n<\/p>\n
(c) confer on persons of any community or religion any
\nprivilege or advantage which is not conferred on persons of
\nother communities or religions; or\n<\/p>\n
(d) alter the Constitution of any religious body except with
\nthe consent of the governing authority of that body. So,
\nhowever, that in any case where a religious body is
\nincorporated by law, no such alteration shall be made
\nexcept at the request of the governing authority of that
\nbody.\n<\/p>\n
Provided, however, that the preceding provisions of this
\nsubsection shall not apply to any law making provision for,
\nrelating to, or connected with the, election of Members of
\nthe House of Representatives, to represent persons
\nregistered as citizens of Ceylon under the Indian &
\nPakistani Residents (Citizenship Act).\n<\/p>\n
This proviso shall cease to have effect on a date to be fixed
\nby the Governor-General by Proclamation published in the
\nGazette.\n<\/p>\n
(3) Any law made in contravention of Sub-section (2) of this section shall,
\nto the extent of such contravention, be void.\n<\/p>\n
(4) In the exercise of its powers under this section, Parliament may amend
\nor repeal any of the provisions of this Order, or of any other Order of Her
\nMajesty in Council in its application to the Island:\n<\/p>\n
Provided that no Bill for the amendment or repeal of any of
\nthe Provisions of this Order shall be presented for the Royal
\nAssent unless it has endorsed on it a certificate under hand
\nof the Speaker that the number of votes cast in favour
\nthereof in the House of Representatives amounted to not
\nless than twothirds of the whole number of members of the
\nHouse (including those not present).\n<\/p>\n
Every certificate of the Speaker under this sub-section shall
\nbe conclusive for all purposes and shall not be questioned
\nin any court of law.\n<\/p>\n
207. According to Mr. Palkhivala, Section 29(1) corresponds to Articles 245 and 246,
\nand Section 29(4) corresponds to Article 368 of our Constitution, and Sections 29(2) and
\n29(3) correspond to Article 13(2) of our Constitution, read with fundamental rights.\n<\/p>\n
208. The question which arose before the Judicial Committee of the Privy Council was
\nwhether Section 41 of the Bribery Amendment Act, 1958 contravened Section 29(4) of
\nthe Ceylon Constitution, and was consequently invalid. The question arose out of the
\nfollowing facts. The respondent, Ranasinghe, was prosecuted for a bribery offence before
\nthe Bribery Tribunal created by the Bribery Amendment Act, 1958. The Tribunal
\nsentenced him to a term of imprisonment and fine. The Supreme Court on appeal
\ndeclared the conviction and orders made against him null and inoperative on the ground
\nthat the persons composing the Tribunal were not validly appointed to the Tribunal.\n<\/p>\n
209. Section 52 of the Ceylon Constitution provided for the appointment of the Chief
\nJustice and Puisne Judges of the Supreme Court. Section 53 dealt with the setting up of
\nthe Judicial Service Commission, consisting of the Chief Justice, a Judge of the Supreme
\nCourt, and one other person who shall be, or shall have been, a Judge of the Supreme
\nCourt. It further provided that no person shall be appointed as, or shall remain, a member
\nof the Judicial Service Commission, if he is Senator or a Member of Parliament. Section
\n55 provided for the appointment of other Judicial Officers. Section 55(1) reads:\n<\/p>\n
55. (1) The appointment, transfer, dismissal and disciplinary control of
\njudicial officers is hereby vested in the Judicial Service Commission.\n<\/p>\n
210. The Judicial Committee deduced from these provisions thus:
\nThus there is secured a freedom from political control, and it is a
\npunishable offence to attempt directly or indirectly to influence any
\ndecision of the Commission (Section 56).\n<\/p>\n
211. The Judicial Committee then described the position of the Bribery Tribunal as
\nfollows:\n<\/p>\n
A bribery tribunal, of which there may be any number, is composed of
\nthree members selected from a panel (Section 42). The panel is composed
\nof not more than 15 persons who are appointed by the Governor-General
\non the advice of the Minister of Justice (Section 41). The members of the
\npanel are paid remuneration (Section 45).\n<\/p>\n
212. The Judicial Committee held that the members of the Tribunal held judicial office
\nand were judicial officers within Section 55 of the Ceylon Constitution. They found that
\nthere was a plain conflict between Section 55 of the Constitution and Section 41 of the
\nBribery Amendment Act under which the panel was appointed.\n<\/p>\n
213. Then the Judicial Committee examined the effect of this conflict. After setting out
\nSection 18, Section 29(1) and Section 29(2)(a), the Judicial Committee observed:
\nThere follow (b), (c) and (d), which set out further entrenched religious
\nand racial matters, which shall not be the subject of legislation. They
\nrepresent the solemn balance of rights, between the citizens of Ceylon, the
\nfundamental conditions on which inter se they accepted the Constitution;
\nand these are, therefore unalterable under the Constitution.
\n(Emphasis supplied)\n<\/p>\n
214. After making these observations, the Judicial Committee set out Sub-sections (3)
\nand (4) of Section 29 of the Ceylon Constitution. The observations, which I have set out
\nabove, are strongly relied on by Mr. Palkhivala in support of his argument that Part III
\nsimilarly entrenched various religious and racial and other matters and these represented
\nsolemn balance of rights between the citizens of India, the fundamental conditions on
\nwhich inter se they accepted the Constitution of India and these are, therefore, unalterable
\nunder the Constitution of India.\n<\/p>\n
215. Mr. Seervai, in reply, submitted that the word “entrenched” meant nothing else that
\nthan these provisions were subject to be amended only by the procedure prescribed in
\nSection 29(4) of the Ceylon Constitution. But I am unable to accept this interpretation
\nbecause in that sense other provisions of the Constitution were equally entrenched
\nbecause no provision of the Ceylon Constitution could be amended without following the
\nprocedure laid down in Section 29(4).\n<\/p>\n
216. The interpretation urged by Mr. Palkhivala dervies support in the manner the
\nJudicial Committee distinguished McCawley’s [1920] A.C. 691 case (McCawley v.
\nKing). I may set out here the observations of the Judicial Committee regarding
\nMcCawley’s case. They observed:\n<\/p>\n
It is possible now to state summarily what is the essential difference
\nbetween the McCawley case and this case. There the legislature, having
\nfull power to make laws by a majority, except upon one subject that was
\nnot in question, passed a law which conflicted with one of the existing
\nterms of its Constitution Act. It was held that this was valid legislation,
\nsince it must be treated as pro tanto an alteration of the Constitution,
\nwhich was neither fundamental in the sense of being beyond change nor so
\nconstructed as to require any special legislative process to pass upon the
\ntopic dealt with.\n<\/p>\n
(Emphasis supplied)\n<\/p>\n
217. It is rightly urged that the expression “which was neither fundamental in the sense of
\nbeing beyond change” has reference to Section 29(2) of the Ceylon Constitution. I have
\nno doubt that the Judicial Committee held that the provisions of Section 29(2) in the
\nCeylon Constitution were unamendable. I may mention that Prof. S A de Smith in
\nreviewing the book “Reflections on the Constitution and the Constituent Assembly.
\n(Ceylon’s Constitution) “by L.J.M. Cooray, reads the obiter dicta in Bribery
\nCommissioner v. Ranasinghe [1965] A.C. 172, 193-194 indicating that certain provisions
\nof the Constitution were unalterable by the prescribed amending procedure.\n<\/p>\n
218. It may be that these observations are obiter but these deserve our careful
\nconsideration, coming as they do from the Judicial Committee.\n<\/p>\n
219. Why did the Judicial Committee say that the provisions of Section 29(2) were
\n“unalterable under the Constitution” or “fundamental in the sense of being beyond
\nchange” ? There is nothing in the language of Section 29(4) to indicate any limitations on
\nthe power of the Ceylon Parliament. It could “amend or repeal” any provision of the
\nConstitution, which included Section 29(2) and Section 29(4) itself. The reason could
\nonly be an implied limitation on the power to amend under Section 29(4) deducible from
\n“the solemn balance of rights between the citizens of Ceylon, the fundamental conditions
\non which inter se they accepted the Constitution”. Unless there was implied a limitation
\non the exercise of the amending power under Section 29(4), Section 29(4) could itself be
\namended to make it clear that Section 29(2) is amendable.\n<\/p>\n
220. This case furnishes an exact example where implied limitations on the power to
\namend the Constitution have been inferred by no less a body than the Judicial Committee
\nof the Privy Council.\n<\/p>\n
221. Mr. Seervai relied on the portion within brackets of the following passage at pp.
\n197-198:\n<\/p>\n
These passages show clearly that the Board in McCawley’s case took the
\nview which commends itself to the Board in the present case, that (a
\nlegislature has no power to ignore the conditions of law-making that are
\nimposed by the instrument which itself regulates its powers to make law.
\nThis restriction exists independently of the question whether the
\nlegislature is sovereign, as is the legislature of Ceylon, or whether the
\nConstitution is “uncontrolled,” as the Board held the Constitution of
\nQueensland to be. Such a Constitution can, indeed, be altered or amended
\nby the legislature, if the regulating instrument so provides that if the terms
\nof those provisions are compiled with and the alteration or amendment
\nmay include the change or abolition of those very provisions.) But the
\nproposition which is not acceptable is that a legislature, once established,
\nhas some inherent power derived from the mere fact of its establishment to
\nmake a valid law by the resolution of a bare majority which its own
\nconstituent instrument has said shall not be a valid law unless made by a
\ndifferent type of majority or by a different legislative process. And this is
\nthe proposition which is in reality involved in the argument.\n<\/p>\n
222. The portion, not within brackets, which has been omitted in Mr. Seervai’s written
\nsubmissions, clearly shows that the Judicial Committee in this passage was not dealing
\nwith the amendment of Section 29(2) of the Ceylon Constitution and had understood
\nMcCawley’s [1920] A.C. 691 case as not being concerned with the question of the
\namendment of a provision like Section 29(2) of the Ceylon Constitution. This passage
\nonly means that a legislature cannot disregard the procedural conditions imposed on it by
\nthe constituent instrument prescribing a particular majority but may amend them if the
\nconstituent instrument gives that power.\n<\/p>\n
223. The next passage, a part of which I have already extracted, which deals with the
\ndifference between McCawley’s case and Ranasinghe’s [1965] A.C. 172, 193-194 case
\nshows that the Judicial Committee in the passage relied on was dealing with the
\nprocedural part of Section 29(4) of Ceylon Constitution. It reads:
\nIt is possible now to state summarily what is the essential difference
\nbetween the McCawley case and this case. There the legislature having
\nfull power to make laws by a majority, except upon one subject that was
\nnot in question, passed a law which conflicted with one of the existing
\nterms of the Constitution Act. It was held that this was valid legislation,
\nsince it must be treated as pro tanto an alteration of the Constitution,
\nwhich was neither fundamental in the sense of being beyond change nor so
\nconstructed as to require any special legislative process to pass upon the
\ntopic dealt with. In the present case, on the other hand, the legislature has
\npurported to pass a law which being in conflict with Section 55 of the
\nOrder in Council, must be treated, if it is to be valid, as an implied
\nalteration of the Constitutional provisions about the appointment of
\njudicial officers. Since such alterations, even if express, can only be made
\nby laws which comply with the special legislative procedure laid down in
\nSection 29(4), the Ceylon legislature has not got the general power to
\nlegislate so as to amend its Constitution by ordinary majority resolutions,
\nsuch as the Queensland legislature was found to have under Section 2 of
\nits Constitution Act, but is rather in the position, for effecting such
\namendments, that that legislature was held to be in by virtue of its Section
\n9, namely, compelled to operate a special procedure in order to achieve the
\ndesired result.\n<\/p>\n
224. I may mention that the Judicial Committee while interpreting the British North
\nAmerica Act, 1867 had also kept in mind the preservation of the rights of minorities for
\nthey say In re The Regulation and Control of Aeronautics in Canada: [1933] A.C. 54 at p.
\n70 “inasmuch as the Act (British North America Act) embodies a compromise under
\nwhich the original Provinces agreed to federate, it is important to keep in mind that the
\npreservation of the rights of minorities was a conditioin on which such minorities entered
\ninto the federation, and the foundation upon which the whole structure was subsequently
\nerected. The process of interpretation as the years go on ought not to be allowed to dim or
\nto whittle down the provisions of the original contract upon which the federation was
\nfounded, nor is it legitimate that any judicial construction of the Provisions of Sections 91
\nand 92 should impose a new and different contract upon the federating bodies.\n<\/p>\n
225. The words of the Judicial Committee in Ranasinghe’s case, are apposite and
\npregnant. “They represent the solemn balance of rights between the citizens of Ceylon,
\nthe fundamental conditions on which inter se they accepted the Constitution and these
\nare, therefore unalterable under the Constitution.” It is true that the Judicial Committee in
\nthe context of minorities and religious rights in Ceylon used the word “unalterable”. But
\nthe India context is slightly different. The guarantee of fundamental rights extends to
\nnumerous rights and it could not have been intended that all of them would remain
\ncompletely unalterable even if Article 1.3(2) of the Constitution be taken to include
\nConstitutional amendments. A more reasonable inference to be drawn from the whole
\nscheme of the Constitution is that some other meaning of “Amendment” is most
\nappropriate. This conclusion is also reinforced by the concession of the Attorney-General
\nand Mr. Seervai that the whole Constitution cannot be abrogated or repealed and a new
\none substituted. In other words, the expression “Amendment of this Constitution” does
\nnot include a revision of the whole Constitution. If this is true-I say that the concession
\nwas rightly made-then which is that meaning of the word “Amendment” that is most
\nappropriate and fits in with the while scheme of the Constitution. In my view that
\nmeaning would be appropriate which would enable the country to achieve a social and
\neconomic revolution without destroying the democratic structure of the Constitution and
\nthe basic inalienable rights guaranteed in Part III and without going outside the contours
\ndelineated in the Preamble.\n<\/p>\n
226. I come to the same conclusion by another line of reasoning. In a written Constitution
\nit is rarely that everything is said expressly. Powers and limitations are implied from
\nnecessity or the scheme of the Constitution. I will mention a few instances approved by
\nthe Judicial Committee and this Court and other Courts. I may first consider the doctrine
\nthat enables Parliament to have power to deal with ancillary and subsidiary matters,
\nwhich strictly do not fall within the legislative entry with respect to which legislation is
\nbeing undertaken.\n<\/p>\n
227. Lefroy in “A short Treatise on Canadian Constitutional Law” (page 94), puts the
\nmatter thus:\n<\/p>\n
But when it is (Dominion Parliament) is legislating upon the enumerated
\nDominion subject-matters of Section 91 of the Federation Act, it is held
\nthat the Imperial Parliament, by necessary implication, intended to confer
\non it legislative power to interfere with, deal with, and encroach upon,
\nmatters otherwise assigned to the provincial legislatures under Section 92,
\nso far as a general law relating to those subjects may affect them, as it may
\nalso do to the extent of such ancillary provisions as may be required to
\nprevent the scheme of such a law from being defeated. The Privy Council
\nhas established and illustrated this in many decisions.\n<\/p>\n
228. This acts as a corresponding limitation on the legislative power of the Provincial or
\nState legislatures.\n<\/p>\n
229. This Court has in numerous decisions implied similar powers. (See Orient Paper
\nMills v. State of Orissa<\/a> [1962] 1. S.C.R. 549; Burmah Construction Co. v. State of Orissa<\/a>
\n[1962] 1 Supp. S.C.R. 242; Navnit Lal Javeri v. Appellate Assistant Commissioner A.I.R.
\n1965 S.C. 1375; to mention a few).\n<\/p>\n
230. It often happens that what has been implied by courts in one Constitution is
\nexpressly conferred in another Constitution. For instance, in the Constitution of the
\nUnited States, Clause 18 of Section 8 expressly grants incidental powers:
\nThe Congress shall have power…to make all laws which shall be necessary
\nand proper for carrying into execution the foregoing powers and all other
\npowers vested by this Constitution in the government of the United States,
\nor in any department or officer thereof.\n<\/p>\n
231. It would not be legitimate to argue from the above express provision in the United
\nStates Constitution that if the Constitution-makers wanted to give such powers to the
\nParliament of India they would have expressly conferred incidental powers.\n<\/p>\n
232. Story says that Clause 18 imports no more than would remit from necessary
\nimplication (see pp. 112 and 113, Vol. 3) if it had not been expressly inserted.\n<\/p>\n
233. In Ram Jawaya Kapur v. State of Punjab [1955] 2 S.C.R. 225; 236-37 this Court
\nimplied that “the President has thus been made a formal or Constitutional head of the
\nexecutive and the real executive powers are vested in the Ministers or the Cabinet. The
\nsame provisions obtain in regard to the Government of States; the Governor or the
\nRajpramukh….\n<\/p>\n
234. In Sanjeevi Naidu v. State of Madras [1970] 1 S.C.C. 443 Hedge, J., held that the
\nGovernor was essentially a Constitutional head and the administration of State was run
\nby the Council of Ministers.\n<\/p>\n
235. Both these cases were followed by another Constitution bench in U.N.R. Rao v.
\nSmt. Indira Gandhi<\/a> [1971] 2 S.C.C. 63.\n<\/p>\n
236. This conclusion constitutes an implied limitation on the powers of the President and
\nthe GovernOrs. The Court further implied in Ram Jawaya Kapur’s [1955] 2 S.C.R. 225;
\n236-37 case that the Government could without specific legislative sanction carry on
\ntrade and business.\n<\/p>\n
237. To save time we did not hear Mr. Seervai on the last 3 cases just cited. I have
\nmentioned them only to give another example.\n<\/p>\n
238. It may be noted that what was implied regarding carrying on trade was made an
\nexpress provision in the Constitution by the Constitution (Seventh Amendment) Act,
\n1956, when a new Article 298 was substituted. The Federal Court and the Supreme Court
\nof India have recognised and applied this principle in other cases:\n<\/p>\n
(i) “A grant of the power in general terms standing by itself would no
\ndoubt be construed in the wider sense; but it may be qualified by other
\nexpress provisions in the same enactment, by the implications of the
\ncontext, and even by considerations arising out of what appears to be the
\ngeneral scheme of the Act.” (Per Gwyer C.J. The C.J. & Berar Act-1939
\nF.C.R. 18 at 42).\n<\/p>\n
(ii) Before its amendment in 1955, Article 31(2) was read as containing an
\nimplied limitation that the State could acquire only for a public purpose
\n(the Fourth Amendment expressly enacted this limitation in 1955).\n<\/p>\n
(a) “One limitation imposed upon acquisition or taking
\npossession of private property which is implied in the
\nclause is that such taking must be for public purpose”. (Per
\nMukherjea J. Chiranjitlal Chowdhuri v. Union of India
\n1950 SCR 869 at 902),\n<\/p>\n
(b) “The existence of a ‘public purpose’ is undoubtedly an
\nimplied condition of the exercise of compulsory powers of
\nacquisition by the State….” (Per Mahajan J. State of Bihar
\nv. Makarajadhiraja of Darbhanga 1952 SCR 889 at 934).\n<\/p>\n
(iii) The Supreme Court has laid down that there is an implied limitation
\non legislative power: the Legislature cannot delegate the essentials of the
\nlegislative functions.\n<\/p>\n
…the legislature cannot part with its essential legislative function which
\nconsists in declaring its policy and making it a binding rule of
\nconduct…the limits of the powers of delegation in India would therefore
\nhave to be ascertained as a matter of construction from the provisions of
\nthe Constitution itself and as I have said the right of delegation may be
\nimplied in the exercise of legislative power only to the extent that it is
\nnecessary to make the exercise of the power effective and complete. (Per
\nMukherjea J. in re The Delhi Laws Act-\\95\\SCR 747 at 984-5).\n<\/p>\n
The same implied limitation on the Legislature, in the field of delegation,
\nhas been invoked and applied in:\n<\/p>\n
Raj Narain Singh v. Patna Administration 1955(1) SCR 290. Hari Shankar
\nBagla v. State of Madhya Pradesh<\/a> 1955(1) SCR 380.\n<\/p>\n
Vasantilal Sanjanwala v. State of Bombay 1961(1) SCR 341. The
\nMunicipal Corporation of Delhi v. Birla Cotton Mills<\/a> 1968(3) SCR 251.
\nGarewal v. State of Punjab<\/a> 1959 Supp. (1) SCR 792.\n<\/p>\n
(iv) On the power confered by Articles 3 and 4 of the Constitution to form
\na new State and amend the Constitution for that purpose limitation has
\nbeen implied that the new State must-\n<\/p>\n
conform to the democratic pattern envisaged by the
\nConstitution; and the power which the Parliament may
\nexercise…is not the power to over-ride the Constitutional
\nscheme. No State can therefore be formed, admitted or set
\nup by law under Article 4 by the Parliament which has no
\neffective legislative, executive and judicial organs. (Per
\nShah J.-Mangal Singh v. Union of India 1967(2) SCR 109
\nat 112.\n<\/p>\n
(Emphasis supplied)\n<\/p>\n
239. It would have been unnecessary to refer to more authorities but for the fact that it
\nwas strenuously urged that there could not be any implied limitations resulting from the
\nscheme of the Constitution.\n<\/p>\n
240. Before referring to a recent decision of the Australian High Court, observations in
\ncertain earlier cases may be reproduced here:\n<\/p>\n
Since the Engineers” case (1920-28 CLR 129) a notion seems to have
\ngained currency that in interpreting the Constitution no implications can
\nbe made. Such a method of construction would defeat the intention of any
\ninstrument, but of all instruments, a written Constitution seems the last to
\nwhich it could be applied. I do not think that the judgment of the majority
\nof the court in the Engineers’ case meant to propound such a doctrine” (Per
\nDixon J. West v. Commissioner of Taxation (New South Wales)-56 CLR
\n657 at 681-2).\n<\/p>\n
Some implications are necessary from the structure of the Constitution
\nitself, but it is inevitable also, I should think, that these implications can
\nonly be defined by a gradual process of judicial decision” (Per Starke J.,
\nSouth Australia v. Commonwealth 65 CLR 373, 447.\n<\/p>\n
(Emphasis supplied)
\nThe Federal character of the Australian Constitution carries implications
\nof its own…. Therefore it is beyond the power of either to abolish or
\ndestroy the other”. (Per Starke J. Melbourne Corporation v.\n<\/p>\n
Commonwealth 74 CLR 31 at 70).\n<\/p>\n
(Emphasis supplied)
\nThe Federal system itself is the foundation of the restraint upon the use of
\nthe power to control the State…Restraints to be implied against any
\nexercise of power by Commonwealth against State and State against
\nCommonwealth calculated to destroy or detract from the independent
\nexercise of the functions of the one or the other….” (Per Dixon J.-
\nMelbourne Corporation v. Commonwealth 74 CLR 31 at 81-2).\n<\/p>\n
241. I may now refer to State of Victoria v. The Commonwealth [1971] 45 A.L.R.J. 251;
\n252; 253 which discusses the question of implications to be drawn from a Constitution
\nlike the Australian Constitution which is contained in the Commonwealth Act. It gives
\nthe latest view of that Court on the subject.\n<\/p>\n
242. The point at issue was whether the Commonwealth Parliament, in the exercise of its
\npower under Section 51(ii) of the Constitution (subject to the Constitution, to make laws
\nwith respect to taxation, but so as not to discriminate between States or parts of States)
\nmay include the Crown in right of a State in the operation of a law imposing a tax or
\nproviding for the assessment of a tax.\n<\/p>\n
243. Another point at issue was the status of the Commonwealth and the States under the
\nConstitution, and the extent to which the Commonwealth Parliament may pass laws
\nbinding on the States, considered generally and historically, and with particular reference
\nto the question whether there is any implied limitation on Commonwealth legislative
\npower. It is the discussion on the latter question that is relevant to the present case.\n<\/p>\n
244. There was difference of opinion among the Judges. Chief Justice Barwick held as
\nfollows:\n<\/p>\n
The basic principles of construction of the Constitution were definitively
\nenunciated by the Court in Amalgamated Society of Engineers v. Adelaide
\nSteamship Co. Ltd. (1920), 28 C.L.R. 129 (the Engineers’ case) Lord
\nSelborne’s language in Reg. v. Burah (1878) 3 App. Cas. 889 at pp. 904-
\n905, was accepted and applied as was that of Earl Loreburn in Attorney-
\nGeneral for Ontario v. Attorney-General for Canada (1912) A.C. at 583.\n<\/p>\n
245. According to the Chief Justice, the Court in Engineeres’ case unequivocally rejected
\nthe doctrine that there was an “implied prohibition” in the Constitution against the
\nexercise in relation to a State of a legislative power of the Commonwealth once
\nascertained in accordance with the ordinary rules of construction, a doctrine which had
\ntheretofore been entertained and sought to be founded upon some supposed necessity of
\n“protection”, as it were, “against the aggression of some outside and possibly hostile
\nbody”. The Court emphasized that if protection against an abuse of power were needed, it
\nmust be provided by the electorate and not by the judiciary. ‘The one clear line of judicial
\ninquiry as to the meaning of the Constitution must be to read it naturally in the light of
\nthe circumstances in which it was made, with knowledge of the combined fabric of the
\ncommon law, and the statute law which preceded it and then lucet ipsa per see.\n<\/p>\n
246. Now this is the judgment which is relied on by Mr. Seervai and the learned Attorney
\nGeneral. On the other hand, reliance is placed by Mr. Palkhivala on Menzies J’s
\njudgment:\n<\/p>\n
Does the fact that the Constitution is “federal” carry with it implications
\nlimiting the law-making powers of the Parliament of the Commonwealth
\nwith regard to the States ?\n<\/p>\n
To this question I have no doubt, both on principle and on authority, that
\nan affirmative answer must be given. A Constitution providing for an
\nindissoluble federal Commonwealth must protect both Commonwealth
\nand States. The States are not outside the Constitution. They are States of
\nthe Commonwealth; Section 106. Accordingly, although the Constitution
\ndoes, clearly enough, subject the States to laws made by the Parliament, it
\ndoes so with some limitation.\n<\/p>\n
247. After making these observations, the learned Judge examined authorities and he
\nfound support in Malbourne Corporation v. The Commonwealth [1947] 74 C.L.R. 31, He
\nthen examined various other cases in support of the above principles.\n<\/p>\n
248. The other passages relied on by the petitioners from the judgments of the other
\nlearned Judges on the Bench in that case are as follows:\n<\/p>\n
Windeyar, J.\n<\/p>\n
In each case an implication means that something not expressed is to be
\nunderstood. But in the one case, this involves an addition to what is
\nexpressed : in the other it explains, perhaps limits, the effect of what is
\nexpressed. It is in the latter sense that in my view of the matter,
\nimplications have a place in the interpretation of the Constitution : and I
\nconsider it is the sense that Dixon J. intended when in Australian National
\nAirways Pty. Ltd. v. The Commonwealth (1945) 71 C.L.R. 29, he said (at
\np. 85) : “We should avoid pedantic and narrow constructions in dealing
\nwith an instrument of government and I do not see why we should be
\nfearful about making implications”. His Honour, when Chief Justice,
\nrepeated this observation in Lamshed v. Lake (1958) 99 C.L.R. 132 at p.\n<\/p>\n
144. I said in Spratt v. Hermes (1965) 114 C.L.R. 226, at p. 272, that it is
\nwell to remember it. I still think so. The only emendation that I would
\nventure is that I would prefer not to say “making implications”, because
\nour avowed task is simply the revealing or uncovering of implications that
\nare already there.\n<\/p>\n
In Malbourne Corporation v. The Commonwealth (1947) 74 C.L.R. 31,
\nStarke J. said (at p. 70) : “The federal character of the Australian
\nConstitution carries implications of its own….\n<\/p>\n
* * * * *\n<\/p>\n
249. “The position that I take is this : The several subject matters with respect to which
\nthe Commonwealth is empowered by the Constitution to make laws for the peace, order
\nand good government of the Conmmon-wealth are not to be narrowed or limited by
\nimplications. Their scope and amplitude depend simply on the words by which they are
\nexpressed. But implications arising from the existence of the States as parts of the
\nCommonwealth and as constituents of the federation may restrict the manner in which the
\nParliament can lawfully exercise its power to make laws with respect to a particular
\nsubject-matter. These implications, or perhaps it were better to say underlying
\nassumptions of the Constitution, relate to the use of a power not to the inherent nature of
\nthe subject matter of the law. Of course whether or not a law promotes peace, order and
\ngood government is for the Parliament, not for a court, to decide. But a law although it be
\nwith respect to a designated subject matter, cannot be for the peace, order and good
\ngovernment of the Commonwealth if it be directed to the States to prevent their carrying
\nout their functions as parts of the Commonwealth….\n<\/p>\n
* * * * *
\nGibbs, J.\n<\/p>\n
The ordinary principles of statutory construction do not preclude the
\nmaking of implications when these are necessary to give effect to the
\nintention of the legislature as revealed in the statute as a whole. The
\nintention of the Imperial legislature in enacting the Constitution Act was
\nto give effect to the wish of the Australian people to join in a federal union
\nand the purpose of the Constitution was to establish a federal, and not a
\nunitary, system for the government of Australia and accordingly to
\nprovide for the distribution of the powers of government between the
\nCommonwealth and the States who were to be the constituent members of
\nthe federation. In some respects the Commonwealth was placed in a
\nposition of supremacy, as the national interest required, but it would be
\ninconsistent with the very basis of the federation that the Commonwealth’s
\npowers should extend to reduce the States to such a position of
\nsubordination that their very existence, or at least their capacity to function
\neffectually as independent units, would be dependent upon the manner in
\nwhich the Commonwealth exercised its powers, rather than on the legal
\nlimits of the powers themselves. Thus, the purpose of the Constitution, and
\nthe scheme by which it is intended to be given effect, necessarily give rise
\nto implications as to the manner in which the Commonwealth and the
\nStates respectively may exercise their powers, vis-a-vis each other….\n<\/p>\n
250. Wynes(Wynes Legislative, Executive and Judicial Power in Australia, Fourth Edn.
\np. 503) in discussing the amendment of the Constitutions of the States of Australia sums
\nup the position thus. I may refer only to the propositions which are relevant to our case.
\n(1) Every State legislature has by virtue of Section 5 full powers of
\namendment of any provision respecting its Constitution powers and
\nprocedures.\n<\/p>\n
(2) But it cannot (semble) alter its “representative” character.
\n(3) The “Constitution” of a Legislature means its composition, form or
\nnature of the House or Houses, and excludes any reference to the Crown.
\n* * * * *
\n(6) No Colonial Legislature can forever abrogate its power of amendment
\nand thereby render its Constitution absolutely immutable. A law
\npurporting to effect this object would be void under Section 2 of the Act as
\nbeing repugnant to Section 5 thereof.\n<\/p>\n
251. For proposition (2) above, reference is made in the footnote to Taylor v. The
\nAttorney-General of Queensland. 23 C.L.R. 457 The relevant passages which bear out the
\nsecond proposition are:\n<\/p>\n
I take the Constitution of a legislature, as the term is here used, to mean
\nthe composition, form or nature of the House of Legislature where there is
\nonly one House, or of either House if the legislative body consists of two
\nHouses. Probably the power does not extend to authorize the elimination
\nof the reprsentative character of the legislature within the meaning of the
\nAct. (p. 468 per-Barton J.).\n<\/p>\n
I read the words “Constitution of such legislature” as including the change
\nfrom a unicameral to a bicameral system, or the reverse. Probably the
\n“representative” character of the legislature is-a basic condition of the
\npower relied on, and is preserved by the word “such,” but, that being
\nmaintained, I can see no reason for cutting down the plain natural meaning
\nof the words in question so as to exclude the power of a self-governing
\ncommunity to say that for State purposes one House is sufficient as its
\norgan of legislation.” (p. 474 per-Issacs J.).\n<\/p>\n
(For proposition No. 3, see Taylor v. The Attorney-General of Queensland
\n23 C.L.R. 457 and Clayton v. Heffron.) [1960] 105 C.L.R. 214; 251.\n<\/p>\n
252. Then dealing with the Commonwealth Constitution, he states:
\nAnother suggested limitation is based upon the distinction between the
\ncovering sections of the Constitution Act and the Constitution itself; it is
\nadmitted on all sides that Section 128 does not permit of any amendment
\nto those sections. (And in this respect the Statute of Westminster does not
\nconfer any new power of amendment-indeed it is expressly provided that
\nnothing in the statute shall be deemed to confer any power to repeal or
\nalter the Constitution of the Constitution Act otherwise than accordance
\nwith existing law.) In virtue of their character of Imperial enactments the
\ncovering sections of the Constitution are alterable only by the Imperial
\nParliament itself. The question is, admitting this principle, how far does
\nthe Constitution Act operate as a limitation upon the amending power ? It
\nhas been suggested that any amendment which would be inconsistent with
\nthe preamble of the Act referring to the ‘indissoluble’ character and the
\nsections which refer to the “Federal” nature of the Constitution, would be
\ninvalid. There has been much conflict of opinion respecting this matter;
\nthe view here taken is that the preamble in no wise effects the power of
\nalteration.\n<\/p>\n
253. In view of this conflict, no assistance can be derived from academic writing.\n<\/p>\n
254. The case of The Attorney General of Nova Scotia and The Attorney General of
\nCanada and Lord Nelson Hotel Company Limited [1951] S.C.R.-Canada-31 furnishes
\nanother example where limitations were implied. The Legislature of the Province of
\nNova Scotia contemplated passing an act respecting the delegation of jurisdiction of the
\nParliament of Canada to the Legislature of Nova Scotia and vice versa. The question
\narose whether, if enacted, the bill would be constiutionally valid since it contemplated
\ndelegation by Parliament of powers, exclusively vested in it by Section 91 of the British
\nNorth America Act to the Legislature of Nova Scotia, and delegation by that Legislature
\nof powers, exclusively vested in Provincial Legislature under Section 92 of the Act, to
\nParliament.\n<\/p>\n
255. The decision of the Court is summarised in the headnote as follows:
\nThe Parliament of Canada and each Provincial Legislature is a sovereign
\nbody within the sphere, possessed of exclusive jurisdiction to legislate
\nwith regard to the subject matters assigned to it under Section 91 or
\nSection 92, as the case may be. Neither is capable therefore of delegating
\nto the other the powers with which it has been vested nor of the receiving
\nfrom the other the powers with which the other has been vested.\n<\/p>\n
256. The Chief Justice observed:\n<\/p>\n
The Constitution of Canada does not belong either to Parliament, or to the
\nLegislatures; it belongs to the country and it is there that the citizens of the
\ncountry will find the protection of the rights to which they are entitled. It
\nis part of that protection that Parliament can legislate only on the subject
\nmatters referred to it by Section 91 and that each Province can legislate
\nexclusively on the subject matters referred to it by Section 92.\n<\/p>\n
257. He further observed:\n<\/p>\n
Under the scheme of the British North America Act there were to be, in
\nthe words of Lord Atkin in The Labour Conventions Reference (1937)
\nA.C. 326)”, “Water-tight compartments which are an essential part of the
\noriginal structure.\n<\/p>\n
258. He distinguished the cases of In re Gray [1918] 57 Can. S.C.R. 150 and The
\nChemical Reference [1943] S.C.R. 1-Canada by observing that delegations such as were
\ndealt with in these cases were “delegations to a body subordinate to Parliament and were
\nof a character different from the delegation meant by the Bill now submitted to the Court.\n<\/p>\n
259. Kerwin, J., referred to the reasons of their Lordships in In Re The Initiative and
\nReferendum [1919] A.C. 935 Act as instructive. After referring to the actual decision of
\nthat case, he referred to the observations of Lord Haldane, which I have set out later
\nwhile dealing with the Initiative & Referendum case and then held:
\nThe British North America Act divides legislative jurisdiction between the
\nParliament of Canada and the Legislatures of the Provinces and there is no
\nway in which these bodies may agree to a different division.\n<\/p>\n
260. Taschereau, J., observed:\n<\/p>\n
It is a well settled proposition of law that jurisdiction cannot be conferred
\nby consent None of these bodies can be vested directly or indirectly with
\npowers which have been denied them by the B.N.A. Act, and which
\ntherefore are not within their Constitutional jurisdiction.\n<\/p>\n
261. He referred to a number of authorities which’ held that neither the Dominion nor the
\nProvince can delegate to each other powers they do not expressly possess under the
\nBritish North America Act. He distinguished cases like Hodge v. The Queen (1883) 9,
\nApp. Cas. 117. In Re Gray, (57) Can. S.C.R. 150. Shannon v. Lower Mainland Dairy
\nProducts Board, [1938] A.C. 708 and Chemicals Reference [1943] S.C.R. 1-Canada by
\nobserving:\n<\/p>\n
In all these cases of delegation, the authority delegated its powers to
\nsubordinate Boards for the purpose of carrying legislative enactments into
\noperation.\n<\/p>\n
262. Justice Rand emphasized that delegation implies subordination and subordination
\nimplies duty.\n<\/p>\n
263. Justice Fauteux, as he then was, first referred to the following observations of Lord
\nAtkin in Attorney General for Canada v. Attorney General for Ontario [1937] A.C. 326,
\n351:\n<\/p>\n
No one can doubt that this distribution (of powers) is one of the most
\nessential conditions, probably the most essential condition, in the inter-
\nprovincial compact to which the British North America Act gives effect.\n<\/p>\n
264. He then observed:\n<\/p>\n
In the result, each of the provinces, enjoying up to the time of the union,
\nwithin their respective areas, and quoad one another, an independent,
\nexclusive and over-all legislative authority, surrender to and charged the
\nParliament of Canada with the responsibility and authority to make laws
\nwith respect to what was then considered as matters of common interest to
\nthe whole country and retained and undertook to be charged with the
\nresponsibility and authority to make laws with respect to local matters in
\ntheir respective sections. This is the system of government by which the
\nFathers of Confederation intended-and their intentions were implemented
\nin the Act-to “protect the diversified interests of the several provinces and
\nsecure the efficiency, harmony and permanency in the working of the
\nunion.\n<\/p>\n
265. In the case just referred to, the Supreme Court of Canada implied a limitation on the
\npower of Parliament and the Legislatures of the Provinces to delegate legislative power to
\nthe other although there was no express limitation, in terms, in Sections 91 and 92 of the
\nCanadian Constitution. This case also brings out the point that delegation of law makng
\npower can only be to a subordinate body. Apply the ratio of this decision to the present
\ncase, it cannot be said that the State Legislatures or Parliament acting in its ordinary
\nlegislative capacity, are subordinate bodies to Parliament acting under Article 368 of the
\nConstitution. Therefore it is impermissible for Parliament under Article 368 to delegate
\nits functions of amending the Constitution to either the State legislatures or to its ordinary
\nlegislative capacity. But I will refer to this aspect in greater detail later when I refer to the
\ncase In re the Initiative and Referendum Act.\n<\/p>\n
266. In Canada some of the Judges have implied that freedom of speech and freedom of
\nthe Press cannot be abrogated by Parliament or Provincial legislatures from the words in
\nthe Preamble to the Canadian Constitution i.e. “with a Constitution similar in principle to
\nthat of the United Kingdom.” Some of these observations are:\n<\/p>\n
Although it is not necessary, of course, to determine this question for the
\npurposes of the present appeal, the Canadian Constitution being declared
\nto be similar in principle to that of the United Kingdom, I am also of
\nopinion that as our Constitutional Act now stands, Parliament itself could
\nnot abrogate this right of discussion and debate.” (Per Abbot J. Switzmen
\nv. Elbling 1957-Can. S.C. 285 at 328).\n<\/p>\n
I conclude further that the opening paragraph of the preamble to the
\nB.N.A. Act 1867 which provided for a ‘Constitution similar in principle to
\nthat of the United Kingdom’, thereby adopted the same Constitutional
\nprinciples and hence Section 1025A is contrary to the Canadian
\nConstitution, and beyond the competence of Parliament or any provincial
\nlegislature to enact so long as our Constitution remains in its present from
\nof a Constitutional democracy.” (Per O’Halloran J.A.-Rex v. Hess 1949 4
\nD.L.R. 199 at 208).\n<\/p>\n
In Re Alberta Legislation, (1938) 2 D.L.R. 81, S.C.R. 100, Sir Lyman P.
\nDutt C.J.C. deals with this matter. The proposed legislation did not
\nattempt to prevent discussion of affairs in newspapers but rather to compel
\nthe publication of statements as to the true and exact objects of
\nGovernmental policy and as to the difficulties of achieving them. Quoting
\nthe words of Lord Wright M.R. in James v. Commonwealth of Australia,
\n(1936) A.C. 578 at p. 627 freedom of discussion means “‘freedom
\ngoverned by law'” he says at p. 107 D.L.R., p. 133 S.C.R. : “It is axiomatic
\nthat the practice of this right of free public discussion of public affairs,
\nnotwithstanding its incidental mischiefs, is the breath of life for
\nparliamentary institutions.\n<\/p>\n
He deduces authority to protect it from the principle that the “powers
\nrequisite for the preservation of the Constitution arise by a necessary
\nimplication of the Confederation Act as a whole.” (Per Rand J.-Samur v.
\nCity of Quebec (1953) 4 D.L.R. 641 at 671).\n<\/p>\n
(Emphasis supplied)\n<\/p>\n
267. It is, however, noteworthy that the Solicitor-General appearing on behalf of the
\nUnion of India conceded that implications can arise from a Constitution, but said that no
\nimplication necessarily arises out of the provisions of Article 368.\n<\/p>\n
268. I may now refer to another decision of the Judicial Committee in Liyange’s case,
\n[1967] 1 A.C. 259 which was relied on by Mr. Seervai to show that an amendment of the
\nConstitution cannot be held to be void on the ground of repugnancy to some vague
\nground of inconsistency with the preamble.\n<\/p>\n
269. The Parliament of Ceylon effected various modifications of the Criminal Procedure
\nCode by the Criminal Law (Special Provisions) Act, 1962. The appellants were convicted
\nby the Supreme Court of Ceylon for various offences like conspiring to wage war against
\nthe Queen, etc.\n<\/p>\n
270. The two relevant arguments were:\n<\/p>\n
The first is that the Ceylon Parliament is limited by an inability to pass
\nlegislation which is contrary to fundamental principles of justice. The
\n1962 Acts, it is said, are contrary to such principles in that they not only
\nare directed against individuals but also ex post facto create crimes and
\npunishment, and destroy fair safeguards by which those individuals would
\notherwise be protected.\n<\/p>\n
The appellants’ second contention is that the 1962 Acts offended against
\nthe Constitution in that they amounted to a direction to convict the
\nappellants or to a legislative plan to secure the conviction and severe
\npunishment of the appellants and thus constituted an unjustifiable
\nassumption of judicial power by the legislature, or an interference with
\njudicial power, which is outside the legislature’s competence and is
\ninconsistent with the severance of power between legislature, executive,
\nand judiciary which the Constitution ordains.\n<\/p>\n
271. Mr. Seervai relies on the answer to the first contention. According to Mr. Seervai,
\nthe answer shows that constituent power is different from legislative power and when
\nconstituent power is given, it is exhaustive leaving nothing uncovered.\n<\/p>\n
272. The Judicial Committee after referring to passages from “The Sovereignty of the
\nBritish Dominions” by Prof. Keith, and “The Statutes of Westminster and Dominion
\nStatus” by K.C. Wheare, observed at page 284:\n<\/p>\n
Their Lordships cannot accept the view that the legislature while removing
\nthe fetter of repugnance to English law, left in existence a fetter of
\nrepugnance to some vague unspecified law of natural justice. The terms of
\nthe Colonial Laws Validity Act and especially the words “but not
\notherwise” in Section 2 make it clear that Parliament was intending to deal
\nwith the whole question of repugnancy….\n<\/p>\n
273. The Judicial Committee referred to the Ceylon Independence Act, 1947, and …the
\nLegislative Power of Ceylon and observed:\n<\/p>\n
These liberating provisions thus incorporated and enlarged the enabling
\nterms of the Act of 1865, and it is clear that the joint effect of the Order in
\nCouncil of 1946 and the Act of 1947 was intended to and did have the
\nresult of giving to the Ceylon Parliament the full legislative powers of a
\nsovereign independent State (see Ibralebbe v. The Queen (1964) A.C. 900)\n<\/p>\n
274. Mr. Seervai sought to argue from this that similarly the amending power of
\nParliament under Article 368 has no limitations and cannot be limited by some vague
\ndoctrine of repugnancy to natural and inalienable rights and the Preamble. We are unable
\nto appreciate that any analogy exists between Mr. Palkhivala’s argument and the
\nargument of Mr. Gratien. Mr. Palkhivala relies on the Preamble and the scheme of the
\nConstitution to interpret Article 368 and limit its operation within the contours of the
\nPreamble. The Preamble of the Constitution of India does not seem to prescribe any
\nvague doctrines like the law of natural justice even if the latter, contrary to many
\ndecisions of our Court, be considered vague.\n<\/p>\n
275. The case, however, furnishes another instance where implied limitations were
\ninferred. After referring to the provisions dealing with “judicature” and the Judges, the
\nBoard observed:\n<\/p>\n
These provisions manifest an intention to secure in the judiciary a freedom
\nfrom political, legislative and executive control. They are wholly
\nappropriate in a Constitution which intends that judicial power shall be
\nvested only in the judicature. They would be inappropriate in a
\nConstitution by which it was intended that judicial power should be shared
\nby the executive or the legislature. The Constitution’s silence as to the
\nvesting of judicial power is consistent with its remaining, where it had lain
\nfor more than a century, in the hands of the judicature. It is not consistent
\nwith any intention that hence-forth it should pass to or be shared by, the
\nexecutive or the legislature.\n<\/p>\n
276. The Judicial Committee was of the view that there “exists a separate power in the
\njudicature which under the Constitution as it stands cannot be usurped or infringed by the
\nexecutive or the legislature.” The Judicial Committee cut down the plain words of
\nSection 29(1) thus:\n<\/p>\n
277. “Section 29(1) of the Constitution says:\n<\/p>\n
Subject to the provisions of this Order Parliament shall have power to
\nmake laws for the peace order and good government of the Island”. These
\nwords have habitually been construed in their fullest scope. Section 29(4)
\nprovides that Parliament may amend the Constitution on a two-thirds
\nmajority with a certificate of the Speaker. Their Lordships however cannot
\nread the words of Section 29(1) as entitling Parliament to pass legislation
\nwhich usurps the judicial power of the judicature-e.g., by passing an Act
\nof attainder against some person or instructing a judge to bring in a verdict
\nof guilty against someone who is being tried-if in law such usurpation
\nwould otherwise be contrary to the Constitution.\n<\/p>\n
278. In conclusion the Judicial Committee held that there was interference with the
\nfunctions of the judiciary and it was not only the likely but the intended effect of the
\nimpugned enactments, and that was fatal to their validity.\n<\/p>\n
279. Their Lordships uttered a warning which must always be borne in dealing with
\nConstitutional cases : “what is done once, if it be allowed, may be done again and in a
\nlesser crisis and less serious circumstances. And thus judicial power may be eroded. Such
\nan erosion is contrary to the clear intention of the Constitution.” This was in reply to the
\nargument that the Legislature had no such general intention to absorb judicial powers and
\nit had pased the legislation because it was beset by a grave situation and it took grave
\nmeasures to deal with it, thinking, one must presume, that it had power to do so and was
\nacting rightly. According to their Lordships that consideration was irrelevant and gave no
\nvalidity to acts which infringed the Constitution.\n<\/p>\n
280. McCawley v. The King [1920] A.C. 691 was strongly relied on by Mr. Seervai. The
\ncase was on appeal from the decision of the High Court of Australia, reported in 26
\nC.L.R. 9. Apart from the questions of interpretation of Sub-section (6), Section 6, of the
\nIndustrial Arbitration Act, 1916 and the construction of the Commission which was
\nissued, the main question that was debated before the High Court and the Board was
\nwhether the Legislature of Queensland could amend a provision of the Constitution of
\nQueensland without enacting a legislative enactment directly amending the Constitution.
\nThe respondents before the Board had contended as follows:\n<\/p>\n
But an alteration to be valid must be made by direct legislative enactment.
\nThe Constitution can be altered but cannot be disregarded. So long as it
\nsubsists it is the test of the validity of legislation. The High Court of
\nAustralia so decided in Cooper’s case [1907] 4 C.L.R. 1304.\n<\/p>\n
281. The appellants, on the other hand, had contended that “the Legislature of
\nQueensland has power, by ordinary enactment passed by both houses and assented to by
\nthe Governor in the name of the Crown, to alter the Constitution of Queensland,
\nincluding the judicial institutions of the State, and the tenure of the judges…. All the laws
\napplying to Queensland which it is competent to the Queensland Legislature to alter can
\nbe altered in the same manner by ordinary enactment.\n<\/p>\n
282. There was difference of opinion in the High Court. Griffith, C.J., was of the opinion
\nthat the Parliament of Queensland could not merely by enacting a law inconsistent with
\nthe Constitution Act of 1867 overrule its provisions, although it might be proper
\nformality pass an Act which expressly altered or repealed it. Isaacs and Rich JJ., with
\nwhom the Board found themselves in almost complete agreement, held to the contrary.
\nThe Board, in dealing with the question, first referred to the “distinction between
\nConstitutions the terms of which may be modified or repealled with no other formality
\nthan is necessary in the case of other legislation, and Constitutions which can only be
\naltered with some special formality, and in some cases by a specially convened assembly.\n<\/p>\n
283. Then Lord Birkenhead, L.C., observed at page 704:\n<\/p>\n
Many different terms have been employed in the text-books to distinguish
\nthese two constrasted forms of Constitution. Their special qualities may
\nperhaps be exhibited as clearly by calling the one a controlled and the
\nother an uncontrolled Constitution as by any other nomenclature. Nor is a
\nConstitution debarred from being reckoned as an uncontrolled
\nConstitution because it is not, like the British Constitution, constituted by
\nhistoric development but finds its genesis in an originating document
\nwhich may contain some conditions which cannot be altered except by the
\npower which gave it birth. It is of the greatest importance to notice that
\nwhere the Constitution is uncontrolled the consequences of its freedom
\nadmit of no qualification whatever. The doctrine is carried to every proper
\nconsequence with logical and inexorable precision, Thus when one of the
\nlearned Judges in the Court below said that, according to the appellant, the
\nConstitution could be ignored as if it were a Dog Act, he was in effect
\nmerely expressing his opinion that the Constitution was, in fact,
\ncontrolled. If it were uncontrolled, it would be an elementary
\ncommonplace that in the eye of the law the legislative document or
\ndocuments which defined it occupied precisely the same position as a Dog
\nAct or any other Act, however humble its subject-matter.\n<\/p>\n
284. Then, the Judicial Committee proceeded to deal with the Constitution of Queensland
\nand held that it was an uncontrolled Constitution. Later, their Lordships observed:
\nIt was not the policy of the Imperial Legislature, at any relevant period, to
\nshackle or control in the manner suggested the legislative powers of the
\nnascent Australian Legislatures. Consistently with the genius of the British
\npeople what was given was given completely, and unequivocally, in the
\nbelief fully justified by the event, that these young communities would
\nsuccessfully work out their own Constitutional salvation.\n<\/p>\n
285. Mr. Seervai sought to deduce the following propositions from this case:
\nFirstly-(1) Unless there is a special procedure prescribed for amending any
\npart of the Constitution, the Constitution was uncontrolled and could be
\namended by an Act in the manner prescribed for enacting ordinary laws,
\nand therefore, a subsequent law inconsistent with the Constitution would
\npro tanto repeal the Constitution;\n<\/p>\n
Secondly-(2) A Constitution largely or generally uncontrolled may contain
\none or more provisions which prescribe a different procedure for
\namending them than is prescribed for amending an ordinary law, in which
\ncase an ordinary law cannot amend them and the procedure must be
\nstrictly followed if the amendment is to be effected;\n<\/p>\n
Thirdly-(3) Implications of limitation of power ought not be imported
\nfrom general concepts but only from express or necessarily implied
\nlimitations (i.e. implied limitation without which a Constitution cannot be
\nworked); and
\nFourthly-(4) The British Parliament in granting the colonial legislatures
\npower of legislation as far back as 1865-Section 2-refused to put
\nlimitations of vague character, like general principles of law, but limited
\nthose limitations to objective standards like statutes and provisions of any
\nAct of Parliament or order or regulation made under the Acts of
\nParliament.\n<\/p>\n
286. I agree that the first and the second propositions are deducible from McCawley’s
\ncase but I am unable_to agree with the learned Counsel that the third proposition
\nenunciated by him emerges from the case. The only implied limitation which was urged
\nby the learned Counsel for the respondents was that the Queensland legislature should
\nfirst directly amend the Constitution and then pass an act which would otherwise have
\nbeen inconsistent if the Constitution had not been amended. It appears from the judgment
\nof Isaac, J., and the Board that two South Australia Judges had earlier held that the
\nlegislation must be “with the object of altering the Constitution of the legislature”. Lord
\nSelborne, when Sir Roundell Palmer, and Sir Robert Collier expressed dissent from their
\nview and recommended the enactment of a statute like the Colonial Laws Validity Act,
\n1865.\n<\/p>\n
287. The fourth proposition states a fact. The fact that British Parliament in 1865 refused
\nto put so called vague limitations does not assist us in deciding whether there cannot be
\nimplied limitations on the amending power under Article 368.\n<\/p>\n
288. I shall examine a little later more cases in which limitations on lawmaking power
\nhave been implied both in Australia, U.S.A., and in Canada. McCawley’s case is authority
\nonly for the proposition that if the Constitution is uncontrolled then it is not necessary for
\nthe legislature to pass an act labelling it as an amendment of the Constitution; it can
\namend the Constitution like any other act.\n<\/p>\n
289. Attorney-General for New South Wales v. Trethowan [1932] A.C. 526 was
\nconcerned really with the interpretation of Section 5 of the Colonial Laws Validity Act,
\n1865, and its impact on the powers of the legislature of the New South Wales. The
\nConstitution Act, 1902, as amended in 1929, had inserted Section 7A, the relevant part of
\nwhich reads as follows:\n<\/p>\n
7A.-(1) The Legislative Council shall not be abolished nor, subject to the
\nprovisions of Sub-section 6 of this section, shall its Constitution or powers
\nbe altered except in the manner provided in this section. (2) A Bill for any
\npurpose within Sub-section 1 of this section shall not be presented to the
\nGovernor for His Majesty’s assent until the Bill has been approved by the
\nelectors in accordance with this section. (5) If a majority of the electors
\nvoting approve the Bill, it shall be presented to the Governor for His
\nMajesty’s assent. (6) The provisions of this section shall extend to any Bill
\nfor the repeal or amendment of this section, but shall not apply to any Bill
\nfor the repeal or amendment of any of the following sections of this Act,
\nnamely, Sections 13, 14, 15, 18, 19, 20, 21 and 22.\n<\/p>\n
290. Towards the end of 1930 two bills were passed by both Houses of the New South
\nWales legislature. The first Bill enacted that Section 7A above referred to was repealed,
\nand the second Bill enacted by Clause 2, Sub-section 1. “The Legislative Council of New
\nSouth Wales is abolished.\n<\/p>\n
291. The contentions advanced before the Judicial Committee were:
\nThe appellants urge : (1) That the King, with the advice and consent of the
\nLegislative Council and the Legislative Assembly, had full power to enact
\na Bill repealing Section 7A.\n<\/p>\n
(2) That Sub-section 6 of Section 7A of the Constitution Act is void,
\nbecause : (a) The New South Wales Legislature has no power to shackle
\nor control its successors, the New South Wales Constitution being in
\nsubstance an uncontrolled “Constitution”; (b) It is repugnant to Section 4
\nof the Constitution Statute of 1855; (c) It is repugnant to Section 5 of the
\nColonial Laws Validity Act, 1865.\n<\/p>\n
For the respondents it was contended : (1) That Section 7A was a valid
\namendment of the Constitution of New South Wales, validly enacted in
\nthe manner prescribed, and was legally binding in New South Wales.
\n(2) That the legislature of New South Wales was given by Imperial
\nstatutes plenary power to alter the Constitution, powers and procedure of
\nsuch legislature.\n<\/p>\n
(3) That when once the legislature had altered either the Constitution or
\npowers and procedure, then the Constitution and powers and procedure as
\nthey previously existed ceased to exist, and were replaced by the new
\nConstitution and powers.\n<\/p>\n
(4) That the only possible limitations of this plenary power were : (a) it
\nmust be exercised according to the manner and form prescribed by any
\nImperial or colonial law, and (b) the legislature must continue a
\nrepresentative legislature according to the definition of the Colonial Laws
\nValidity Act, 1865.\n<\/p>\n
(5) That the addition of Section 7A to the Constitution had the effect of :\n<\/p>\n
(a) making the legislative body consist thereafter of the King, the
\nLegislative Council, the Assembly and the people for the purpose of the
\nConstitutional enactments therein described, or (b) imposing a manner and
\nform of legislation in reference to these Constitutional enactments which
\nthereafter became binding ton the legislature by virtue of the colonial
\nLaws Validity Act, 1865, until repealed in the manner and mode
\nprescribed.\n<\/p>\n
(6) That the power of altering the Constitution conferred by Section 4 of
\nthe Constitution Statute, 1855, must be read subject to the Colonial Laws
\nValidity Act, 1865, and that in particular the limitation as to manner and
\nform prescribed by the 1865 Act must be governed by subsequent
\namendments to the Constitution, whether purporting to be made in the
\nearlier Act or not.\n<\/p>\n
292. The Judicial Committee considered the meaning and effect of Section 5 of the Act of
\n1865, read in conjunction with Section 4 of the Constitution Statute. It is necessary to
\nbear in mind the relevant part of Section 5 which reads as follows:
\nSection 5. Every colonial legislature…and every representative legislature
\nshall, in respect to the colony under its jurisdiction, have, and be deemed
\nat all times to have had, full power to make laws respecting the
\nConstitution, powers, and procedure of such legislature; provided that
\nsuch laws shall have been passed in such manner and form as may from
\ntime to time be required by any Act of Parliament, letters patent, Order in
\nCouncil, or colonial law, for the time being in force in the said colony.\n<\/p>\n
293. The Judicial Committee interpreted Section 5 as follows:
\nReading the section as a whole, it gives to the legislatures of New South
\nWales certain powers, subject to this, that in respect of certain laws they
\ncan only become effectual provided they have been passed in such manner
\nand form as may from time to time be required by any Act still on the
\nstatute book. Beyond that, the words “manner and form” are amply wide
\nenough to cover an enactment providing that a Bill is to be submitted to
\nthe electors and that unless and until a majority of the electors voting
\napprove the Bill it shall not be presented to the Governor for His Majesty’s
\nassent.\n<\/p>\n
294. The Judicial Committee first raised the question : “could that Bill, a repealing Bill,
\nafter its passage through both chambers, be lawfully presented for the Royal assent
\nwithout having first received the approval of the electors in the prescribed manner ?”, and
\nanswered it thus:\n<\/p>\n
In their Lordships’ opinion, the Bill could not lawfully be so presented.
\nThe proviso in the second sentence of Section 5 of the Act of 1865 states a
\ncondition which must be fulfilled before the legislature can validly
\nexercise its power to make the kind of laws which are referred to in that
\nsentence. In order that Section 7A may be repealed (in other words, in
\norder that that particular law “respecting the Constitution, powers and
\nprocedure” of the legislature may be validly made) the law for that
\npurpose must have been passed in the manner required by Section 7A, a
\ncolonial law for the time being in force in New South Wales.\n<\/p>\n
295. This case has no direct relevance to any of the points raised before us. There is no
\ndoubt that in the case before us, the impugned Constitutional amendments have been
\npassed according to the form and manner prescribed by Article 368 of our Constitution. It
\nis, however, noteworthy that in contention No. (4), mentioned above, it was urged that
\nnotwithstanding the plenary powers conferred on the Legislature a possible limitation
\nwas that the legislature must continue a representative legislature according to the
\ndefinition of the Colonial Laws Validity Act 1865. This is another illustration of a
\nlimitation implied on amending power.\n<\/p>\n
296. I may also refer to some of the instances of implied limitations which have been
\njudicially accepted in the United States. It would suffice if I refer to Cooley on
\nConstitutional Limitations and Constitution of the United States of America edited by
\nCorwin (1952).\n<\/p>\n
297. After mentioning express limitations, imposed by the Constitution upon the Federal
\npower to tax, Cooley on ‘Constitutional Limitations’ (page 989) states:
\n…but there are some others which are implied, and which under the
\ncomplex system of American government have the effect to exempt some
\nsubjects otherwise taxable from the scope and reach, according to
\ncircumstances, of either the Federal power to tax or the power of the
\nseveral States. One of the implied limitations is that which precludes the
\nStates from taxing the agencies whereby the general government performs
\nits functions. The reason is that, if they possessed this authority, it would
\nbe within their power to impose taxation to an extent that might cripple, if
\nnot wholly defeat, the operations of the national authority within its proper
\nand Constitutional sphere of action.\n<\/p>\n
298. Then he cites the passage from the Chief Justice Marshall in McCullock v.
\nMaryland. 4 L. ed. 579; 607.\n<\/p>\n
299. In “Constitution by the United States of America” by Corwin (1952)-page 728-729 it
\nis stated:\n<\/p>\n
Five years after the decision in McCullock v. Maryland that a State may
\nnot tax an instrumentality of the Federal Government, the Court was asked
\nto and did re-examine the entire question in Osborn v. Bank of the United
\nStates. In that case counsel for the State of Ohio, whose attempt to tax the
\nBank was challenged, put forward the arguments of great importance. In
\nthe first place it was “contended, that, admitting Congress to possess the
\npower, this exemption ought to have been expressly assented in the act of
\nincorporation; and not being expressed, ought not to be implied by the
\nCourt.” To which Marshall replied that : “It is no unusual thing for an act
\nof Congress to imply, without expressing, this very exemption from state
\ncontrol, which is said to be so objectionable in this instance. Secondly the
\nappellants relied greatly on the distinction between the bank and the public
\ninstitutions, such as the mint or the post-office. The agents in those offices
\nare, it is said, officers of Government, * * * Not so the directors of the
\nbank. The connection of the government with the bank, is likened to that
\nwith contractOrs.” Marshall accepted this analogy, but not to the
\nadvantage of the appellants. He simply indicated that all contractors who
\ndealt with the Government were entitled to immunity from taxation upon
\nsuch transactions. Thus not only was the decision of McCullock v.
\nMaryland reaffirmed but the foundation was laid for the vast expansion of
\nthe principle of immunity that was to follow in the succeeding decades.\n<\/p>\n
300. We need not examine the exact extent of the doctrine at the present day in the
\nUnited States because the only purpose in citing these instances is to refute the argument
\nof the respondents that there cannot be anything like implied limitations.\n<\/p>\n
301. The position is given at p. 731, as it existed in 1952, when the book was written.
\nCorwin sums up the position broadly at p. 736:\n<\/p>\n
Broadly speaking, the immunity which remains is limited to activities of
\nthe Government itself, and to that which is explicitly created by statute,
\ne.g. that granted to federal securities and to fiscal institutions chartered by
\nCongress. But the term, activities, will be broadly construed.\n<\/p>\n
302. Regarding the taxation of States, Cooley says at pp. 995-997:
\nIf the States cannot tax the means by which the national government
\nperforms its functions, neither, on the other hand and for the same reasons,
\ncan the latter tax the agencies of the State governments. “The same
\nsupreme power which established the departments of the general
\ngovernment determined that the local governments should also exist for
\ntheir own purposes, and made it impossible to protect the people in their
\ncommon interest without them. Each of these several agencies is confined
\nto its own sphere, and all are strictly subordinate to the Constitution which
\nlimits them, and independent of other agencies, except as thereby made
\ndependent There is nothing in the Constitution of the United States which
\ncan be made to admit of any interference by Congress with the secure
\nexistence of any State authority within its lawful bounds. And any such
\ninterference by the indirect means of taxation is quite as much beyond the
\npower of the national legislature as if the interference were direct and
\nextreme. It has, therefore, been held that the law of Congress requiring
\njudicial process to be stamped could not Constitutionally be applied to the
\nprocess of the State courts; since otherwise Congress might impose such
\nrestrictions upon the State courts as would put and end to their effective
\naction, and be equivalent practically to abolishing them altogether. And a
\nsimilar ruling has been made in other analogous cases. But “the exemption
\nof State agencies and instrumentalities from national taxation is limited to
\nthose which are of a strictly governmental character, and does not extend
\nto those which are used by the State in the carrying on of an ordinary
\nprivate business.\n<\/p>\n
303. I may mention that what has been implied in the United States is the subject-matter
\nof express provisions under our Constitution (see Articles 285, 287, 288 and 289).\n<\/p>\n
304. It was urged before us that none of these cases dealt with implied limitations on the
\namending power. It seems to me that four cases are directly in point. I have referred
\nalready to:\n<\/p>\n
1. The Bribery Commissioner v. Pedrick Ranasinghe [1965] A.C. 172.\n<\/p>\n
2. Mongol Singh v. Union of India [1967] 3 S.C.R. 109-112.\n<\/p>\n
3. Taylor v. The Attorney-General of Queensland 23 C.L.R. 457 and I will
\nbe discussing shortly In re The Initiative and Referendum Act [1919] A.C.\n<\/p>\n
935.\n<\/p>\n
305. What is the necessary implication from all the provisions of the Constitution ?\n<\/p>\n
306. It seems to me that reading the Preamble, the fundamental importance of the
\nfreedom of the individual, indeed its inalienability, and the importance of the economic,
\nsocial and political justice mentioned in the Preamble, the importance of directive
\nprinciples, the non-inclusion in Article 368 of provisions like Articles 52, 53 and various
\nother provisions to which reference has already been made an irresistible conclusion
\nemerges that it was not the intention to use the word “amendment” in the widest sense.\n<\/p>\n
307. It was the common understanding that fundamental rights would remain in
\nsubstance as they are and they would not be amended out of existence. It seems also to
\nhave been a common understanding that the fundamental features of the Constitution,
\nnamely, secularism, democracy and the freedom of the individual would always subsist in
\nthe welfare state.\n<\/p>\n
308. In view of the above reasons, a necessary implication arises that there are implied
\nlimitations on the power of Parliament that the expression “amendment of this
\nConstitution” has consequently a limited meaning in our Constitution and not the
\nmeaning suggested by the respondents.\n<\/p>\n
309. This conclusion is reinforced if I consider the consequences of the contentions of
\nboth sides. The respondents, who appeal fervently to democratic principles, urge that
\nthere is ho limit to the powers of Parliament to amend the Constitution. Article 368 can
\nitself be amended to make the Constitution completely flexible or extremely rigid and
\nunamendable. If this is so, a political party with a two-third majority in Parliament for a
\nfew years could so amend the Constitution as to debar any other party from functioning,
\nestablish totalitarianism, enslave the people, and after having effected these purposes
\nmake the Constitution unamcndable or extremely rigid. This would no doubt invite extra-
\nConstitutional revolution. Therefore, the appeal by the respondents to democratic
\nprinciples and the necessity of having absolute amending power to prevent a revolution to
\nbuttress their contention is rather fruitless, because if their contention is accepted the very
\ndemocratic principles, which they appeal to, would disappear and a revolution would also
\nbecome a possibility.\n<\/p>\n
310. However, if the meaning I have suggested is accepted a social and economic
\nrevolution can gradually take place while preserving the freedom and dignity of every
\ncitizen.\n<\/p>\n
311. For the aforesaid reasons, I am driven to the conclusion that the expression
\n“amendment of this Constitution” in Article 368 means any addition or change in any of
\nthe provisions of the Constitution within the broad contours of the Preamble and the
\nConstitution to carry out the objectives in the Preamble and the Directive Principles.
\nApplied to fundamental rights, it would mean that, while fundamental rights cannot be
\nabrogated reasonable abridgements of fundamental rights can be effected in the public
\ninterest.\n<\/p>\n
312. It is of course for Parliament to decide whether an amendment is necessary. The
\nCourts will not be concerned with wisdom of the amendment.\n<\/p>\n
313. If this meaning is given it would enable Parliament to adjust fundamental rights in
\norder to secure what the Directive Principles direct to be accomplished, while
\nmaintaining the freedom and dignity of every citizen.\n<\/p>\n
314. It is urged by Mr. Seervai that we would be laying down a very unsatisfactory test
\nwhich it would be difficult for the Parliament to comprehend and follow. He said that the
\nConstitution-makers had discarded the concept of “due process” in order to have
\nsomething certain, and they substituted the words “by authority of law” in Article 21. I
\nam unable to see what bearing the dropping of the words “due process” has on this
\nquestion. The Constitution itself has used words like “reasonable restrictions” in Article
\n19 which do not bear an exact meaning, and which cannot be defined with precision to fit
\nin all cases that may come before the courts; it would depend upon the facts of each case
\nwhether the restrictions imposed by the Legislature are reasonable or not. Further, as
\nLord Reid observed in Ridge v. Baldwin [1964] A.C. 40; 64-65:\n<\/p>\n
In modern times opinions have sometimes been expressed to the effect
\nthat natural justice is so vague as to be practically meaningless. But I
\nwould regard these as tainted by the perennial fallacy that because
\nsomething cannot be cut and dried or nicely weighed or measured
\ntherefore it does not exist. The idea of negligence is equally insusceptible
\nof exact definition, but what a reasonable man would regard as fair
\nprocedure in particular circumstances and what he would regard as
\nnegligence in particular circumstances are equally capable of serving as
\ntests in law, and natural justice as it has been interpreted in the courts is
\nmuch more definite than that.\n<\/p>\n
(emphasis supplied)\n<\/p>\n
315. It seems to me that the concept of amendment within the contours of the Preamble
\nand the Constitution cannot be said to be a vague and unsatisfactory idea which
\nParliamentarians and the public would not be able to understand.\n<\/p>\n
316. The learned Attorney-General said that every provision of the Constitution is
\nessential; otherwise it would not have been put in the Constitution. This is true. But this
\ndoes not place every provision of the Constitution in the same position. The true position
\nis that every provision of the Constitution can be amended provided in the result the basic
\nfoundation and structure of the Constitution remains the same. The basic structure may be
\nsaid to consist of the following features:\n<\/p>\n
(1) Supremacy of the Constitution;\n<\/p>\n
(2) Republican and Democratic form of Government.\n<\/p>\n
(3) Secular character of the Constitution;\n<\/p>\n
(4) Separation of powers between the Legislature, the executive and the
\njudiciary;\n<\/p>\n
(5) Federal character of the Constitution.\n<\/p>\n
317. The above structure is built on the basic foundation, i.e., the dignity and freedom of
\nthe individual. This is of supreme importance. This cannot by any form of amendment be
\ndestroyed.\n<\/p>\n
318. The above foundation and the above basic features are easily discernible not only
\nfrom the preamble but the whole scheme of the Constitution, which I have already
\ndiscussed.\n<\/p>\n
319. In connection with the question of abrogation of fundamental rights, Mr. Seervai
\nboldly asserted that there was no such thing as natural or inalienable rights because the
\nscheme of Part III itself shows that non-citizens have not been given all the fundamental
\nfreedoms; for example, Article 19 speaks of only citizens. He says that if there were
\nnatural rights, why is it that they were not conferred on non-citizens. The answer seems
\nto be that they are natural rights but our country does not think it expedient to confer
\nthese fundamental rights, mentioned in Article 19, on non-citizens. Other rights have
\nbeen conferred on non-citizens because the Constitution-makers thought that it would not
\nbe detrimental to the interests of the country to do so.\n<\/p>\n
320. He then said that even as far as citizens are concerned, there is power to modify
\nthose rights under Article 33 of the Constitution, which enables Parliament to modify
\nrights in their application to the Armed Forces. This power has been reserved in order to
\nmaintain discipline among the armed forces, which is essential for the security of the
\ncountry. But it does not mean that the rights cease to be natural or human rights. He then
\nsaid that similarly Article 34 restricts fundamental rights while martial law is in force in
\nany area. This again is a case where the security of the country is the main consideration.
\nCitizens have to undergo many restrictions in the interest of the country.\n<\/p>\n
321. He then pointed out Articles 358 and 359 where certain rights are suspended during
\nEmergency. These provisions are again based on the security of the country.\n<\/p>\n
322. He also relied on the words “rights conferred” in Article 13(2) and “enforcement of
\nany rights conferred by this Part” to show that they were not natural or inalienable and
\ncould not have been claimed by them. There is no question of the sovereign people
\nclaiming them from an outside agency. The people acting through the Constituent
\nAssembly desired that the rights mentioned in Part III shall be guaranteed and, therefore,
\nPart III was enacted. In the context ‘conferred’ does not mean that some superior power
\nhad granted these rights. It is very much like a King bestowing the title of ‘His Imperial
\nMajesty on himself.\n<\/p>\n
323. I am unable to hold that these provisions show that some rights are not natural or
\ninalienable rights. As a matter of fact, India was a party to the Universal Declaration of
\nRights which I have already referred to and that Declaration describes some fundamenal
\nrights as inalienable.\n<\/p>\n
324. Various decisions of this Court describe fundamental rights as ‘natural rights’ or
\n‘human rights’. Some of these decisions are extracted bellow.
\nThere can be no doubt that the people of India have in exercise of their
\nsovereign will as expressed in the Preamble, adopted the democratic ideal,
\nwhich assures to the citizen the dignity of the individual and other
\ncherished human values as a means to the full evolution and expression of
\nhis personality, and in delegating to the legislature, the executive and the
\njudiciary their respective powers in the Constitution, reserved to
\nthemselves certain fundamental rights so-called, I apprehend, because
\nthey have been retained by the people and made paramount to the
\ndelegated powers, as in the American Model.” (Per Patanjali Sastri, J., in
\nGopalan v. State of Madras [1950] S.C.R. 88; 198 199).\n<\/p>\n
(emphasis supplied)\n<\/p>\n
(ii) “That article (Article 19) enumerates certain freedoms under the
\ncaption “right to freedom” and deals with those great and basic rights
\nwhich are recognised and guaranteed as the natural rights inherent in the
\nstatus of a citizen of a free country.” (Per Patanjali Sastri, C.J., in State of
\nWest Bengal v. Subodh Gopal Bose<\/a> [1954] S.C.R. 587; 596).\n<\/p>\n
(emphasis supplied)
\nI have no doubt that the framers of our Constitution drew the same
\ndistinction and classed the natural rights or capacity of a citizen ‘to
\nacquire, hold and dispose of property’ with other natural rights and
\nfreedoms inherent in the status of a free citizen and embodied them in
\nArticle 19(1)….\n<\/p>\n
(emphasis supplied)
\nFor all these reasons, I am of opinion that under the scheme of the
\nConstitution, all those broad and basic freedoms inherent in the status of a
\ncitizen as a free man are embodied and protected from invasion by the
\nState under Clause (1) of Article 19….\n<\/p>\n
(emphasis supplied)\n<\/p>\n
(iii) “The people, however, regard certain rights as paramount, because
\nthey embrace liberty of action to the individual in matters of private life,
\nsocial intercourse and share in the Government of the country and other
\nspheres. The people who vested the three limbs of Government with their
\npower and authority, at the same time kept back these rights of citizens
\nand also sometimes of noncitizens, and made them inviolable except under
\ncertain conditions. The rights thus kept back are placed in Part III of the
\nConstitution, which is headed ‘Fundamental Rights’, and the conditions
\nunder which these rights can be abridged are also indicated in that Part.”
\n(Per Hidayatullah J., in Ujjambai v. State of U.P. [1963] 1 S.C.R. 778;
\n926-7)).\n<\/p>\n
(emphasis supplied)
\nThe High Court of Allahabad has described them as follows:\n<\/p>\n
(iv) “…man has certain natural or inalienable rights and that it is the
\nfunction of the State, in order that human liberty might be preserved and
\nhuman personality developed, to give recognition and free play to those
\nrights…\n<\/p>\n
Suffice it to say that they represent a trend in the democratic thought of
\nour age.” (Motilal v. State of U.P. I.L.R. [1951] 1 All. 269; 387-8.).
\n(emphasis supplied)\n<\/p>\n
325. Mr. Seervai relied on the observations of S.K. Das, J., in Basheshar Nath v. C.I.T.
\n[1959] Supp. (1) S.C.R. 528; 605:\n<\/p>\n
I am of the view that the doctrine of ‘natural rights’ affords nothing but a
\nfoundation of shifting sand for building up a thesis that the doctrine of
\nwaiver does not apply to the rights guaranteed in Part III of our
\nConstitution.\n<\/p>\n
326. I must point out that the learned Judge was expressing the minority opinion that
\nthere could be a waiver of fundamental rights in certain circumstances. Das, C.J., and
\nKapur, J., held that there could be no waiver of fundamental rights founded on Article 14
\nof the Constitution, while Bhagwati and Subba Rao, JJ. held that there could be no waiver
\nnot only of fundamental rights enshrined in Article 14 but also of any other fundamental
\nrights guaranteed by Part III of the Constitution.\n<\/p>\n
327. Article 14 has been described variously as follows:\n<\/p>\n
(1) “as the basic principle of republicanism” (per Patanjali Sastri C.J. in
\nState of West Bengal v. Anwar Ali Sarkar<\/a> [1952] S.C.R. 284, 293.)
\n(2) “as a principle of republicanism” (per Mahajan, J., Ibid. p. 313)
\n(3) “as founded on a sound public policy recognised and valued in all
\ncivilized States” (per Das C.J., : Basheshar Nath v. C.I.T. [1959] Supp. (1)
\nS.C.R. 528, 551.)
\n(4) “as a necessary corollary to the high concept of the rule of law” (per
\nSubba Rao, C.J., in Satwant Singh v. Passport Officer [1967] 3 S.C.R.
\n525; 542.)
\n(5) “as a vital principle of republican institutions” (American
\nJurisprudence, Vol. 16, 2d. p. 731, Article 391)\n<\/p>\n
328. How would this test be operative vis-a-vis the Constitutional amendments made
\nhitherto ? It seems to me that the amendments made by the Constitution (First
\nAmendment) Act, 1951, in Articles 15 and 19, and insertion of Article 31A (apart from
\nthe question whether there was delegation of the power to amend the Constitution, and
\napart from the question as to abrogation), and the amendment made by the Constitution
\n(Fourth Amendment) Act in Article 31(2), would be within the amending power of
\nParliament under Article 368.\n<\/p>\n
329. Reference may be made to Mohd. Maqbool Damnoo v. State of Jammu and Kashmir<\/a>
\n[1972] 1 S.C.C. 536; 546 where this Court repelled the argument of the learned Counsel
\nthat the amendments made to Sections 26 and 27 of the Constitution of Jammu and
\nKashmir were bad because they destroyed the structure of the Constitution. The
\narguments of the learned Counsel was that fundamentals of the Jammu and Kashmir State
\nConstitution had been destroyed. This argument was refuted in the following words:
\nBut the passage cited by him can hardly be availed of by him for the
\nreason that the amendment impugned by him, in the light of what we have
\nalready stated about the nature of the explanation to Article 370 of our
\nConstitution, does not bring about any alteration either in the framework
\nor the fundamentals of the Jammu and Kashmir Constitution. The State
\nGovernor still continues to be the head of the Government aided by a
\ncouncil of ministers and the only change affected is in his designation and
\nthe mode of his appointment. It is not as if the State Government, by such
\na change, is made irresponsible to the State Legislature, or its fundamental
\ncharacter as a responsible Government is altered. Just as a change in the
\ndesignation of the head of that Government was earlier brought about by
\nthe introduction of the office of Sadar-i-Riyasat, so too a change had been
\nbrought about in his designation from that of Sadar-i-Riyasat to the
\nGovernor. That was necessitated by reason of the Governor having been
\nsubstituted in place of Sadar-i-Riyasat. There is no question of such a
\nchange being one in the character of that Government from a democratic
\nto a non-democratic system.\n<\/p>\n
330. Before parting with this topic I may deal with some other arguments addressed to us.
\nMr. Seervai devoted a considerable time in expounding principles of construction of
\nstatutes, including the Constitution. I do not think it is necessary to review the decisions
\nrelating to the principles of interpretation of legislative entries in Article 245 and Article
\n246 of the Constitution. The Federal Court and this Court in this connection have
\nfollowed the principles enunciated by the Judicial Committee in interpreting Sections 91
\nand 92 of the Canadian Constitution. I have no quarrel with these propositions but I am
\nunable to see that these propositions have any bearing on the interpretation of Article\n<\/p>\n
368. The fact that legislative entries are given wide interpretation has no relevance to the
\ninterpretation of Article 368. The second set of cases referred to deal with the question
\nwhether it is legitimate to consider consequences of a particular construction.\n<\/p>\n
331. He referred to Vacher & Sons v. London Society of Compositors [1913] A.C. 107;
\n117-118. This decision does not support him in the proposition that consequences of a
\nparticular construction cannot be considered, for Lord Machaghten observed at p. 117:
\nNow it is “the universal rule,” as Lord Nensleydale observed in Grey v.
\nPearson [1857] 6 H.L.C. 61; 106 that in construing statutes, as in
\nconstruing all other written instruments “the grammatical and ordinary”
\nsense of the words is to be adhered to, unless that would lead to some
\nabsurdity, or some repugnance or inconsistency with the rest of the
\ninstrument, in which case the grammatical and ordinary sense of the words
\nmay be modified, so as to avoid that absurdity and inconsistency, but no
\nfurther.\n<\/p>\n
332. Then he observed at p. 118:\n<\/p>\n
In the absence of a preamble there can, I think, be only two cases in which
\nit is permissible to depart from the ordinary and natural sense of the words
\nof an enactment. It must be shown either that the words taken in their
\nnatural sense lead to some absurdity or that there is some other clause in
\nthe body of the Act inconsistent with, or repugnant to, the enactment in
\nquestion construed in the ordinary sense of the language in which it is
\nexpressed.\n<\/p>\n
333. Lord Atkinson observed at pp. 121-122:\n<\/p>\n
It is no doubt well established that, in construing the words of a statute
\nsusceptible of more than one meaning, it is legitimate to consider the
\nconsequences which would result from any particular construction for, as
\nthere are many things which the Legislature is presumed not to have
\nintended to bring about, a construction which would not lead to any one of
\nthese things should be preferred to one which would lead to one or more
\nof them. But, as Lord Halsbury laid down in Cooke v. Charles A. Vogsler
\nCo. [1901] A.C. 102 at p. 107, a Court of Law has nothing to do with the
\nreasonableness or unreasonableness of a provision of a statute, except so
\nfar as it may help it in interpreting what the Legislature has said. If the
\nlanguage of a statute be plain, admitting of only one meaning, the
\nLegislature must be taken to have meant and intended what it has plainly
\nexpressed, and whatever it has in clear terms enacted must be enforced
\nthough it should lead to absurd or mischievous results. If the language of
\nthis; sub-section be not controlled by some of the other provisions of the
\nstatute, it must, since its language is plain and unambiguous, be enforced,
\nand your Lordship’s House sitting judicially is not concerned with the
\nquestion whether the policy it embodies is wise or unwise, or whether it
\nleads to consequences just or unjust, beneficial or mischievous.\n<\/p>\n
334. The next case referred to is Bank of Toronto v. Lambe [1887] 12 A.C. 575; 586., but
\nthis case, is explained in Attorney-General for Alberta v. Attorney-General for Canada
\n[1939] A.C. 117; 132; 133. The Judicial Committee first observed:
\nIt was rightly contended on behalf of the appellant that the Supreme Court
\nand the Board have no concern with the wisdom of the Legislature whose
\nBill is attacked; and it was urged that it would be a dangerous precedent to
\nallow the views of members of the Court as to the serious consequences of
\nexcessive taxation on banks to lead to a conclusion that the Bill is ultra
\nvires. Their Lordships do not agree that this argument should prevail in a
\ncase where the taxation in a practical business sense is prohibitive.\n<\/p>\n
335. Then their Lordships made the following observations on the decision of the Judicial
\nCommittee in Bank of Toronto v. Lambe [1887] 12 A.C. 575; 586:\n<\/p>\n
That case seems to have occasioned a difficulty in the minds of some of
\nthe learned Judges in the Supreme Court. It must, however, be borne in
\nmind that the Quebec Act in that case was attacked on two specific
\ngrounds, first, that the tax was not “taxation with the Province,” and
\nsecondly, that the tax was not a “direct tax.” It was never suggested, and
\nthere seems to have been no ground for suggesting, that the Act was by its
\neffect calculated to encroach upon the classes of matters exclusively
\nwithin the Dominion powers. Nor, on the other hand, was there any
\ncontention, however faint or tentative, that the purpose of the Act was
\nanything other than the legitimate one of raising a revenue for Provincial
\nneeds…. It was never laid down by the Board that if such a use was
\nattempted to be made of the Provincial power as materially to interfere
\nwith the Dominion power, the action of the province would be infra vires.\n<\/p>\n
336. This case further shows that serious consequences can be taken into consideration.\n<\/p>\n
337. I agree with the observations of Lord Esher in Queen v. Judge of City of London
\nCourt, [1892] 1 Q.B. 273-290 cited by him. These observations are:
\nIf the words of an Act are clear, you must follow them, even though they
\nlead to a manifest absurdity. The Court has nothing to do with the question
\nwhether the legislature has committed an absurdity. In my opinion the rule
\nhas always been this-if the words or an Act admit of two interpretations,
\nthen they are not clear; and if one interpretation leads to an absurdity, and
\nthe other does not, the Court will conclude that the legislature did not
\nintend to lead to an absurdity, and will adopt the other interpretation.\n<\/p>\n
338. He then relied on the observations of Lord Greene, M.R., in Grundt v. Great Boulder
\nProprietary Mines Ltd. [1948] 1 Ch. 145; 159:\n<\/p>\n
There is one rule, I think, which is very clear-and this brings me back to
\nwhere I started, the doctrine of absurdity-that although the absurdity or the
\nnon-absurdity of one conclusion as compared with another may be of
\nassistance, and very often is of assistance, to the court in choosing
\nbetween two possible meanings of ambiguous words, it is a doctrine which
\nhas to be applied with great care, remembering that judges may be fallible
\nin this question of an absurdity, and in any event must not be applied so as
\nto result in twisting language into a meaning which it cannot bear; it is a
\ndoctrine which must not be relied upon and must not be used to re-write
\nthe language in a way different from that in which it was originally
\nframed.\n<\/p>\n
Earlier, he had said at p. 158:\n<\/p>\n
“Absurdity” I cannot help thinking, like public policy, is a very unruly
\nhorse…\n<\/p>\n
339. As I read Lord Greene, what he meant to say was that “absurdity” was an unruly
\nhorse, but it can be of assistance, and very often is of assistance, in choosing between two
\npossible meanings of ambiguous words, and this is exactly the use which this Court is
\nentitled to make of the consequences which I have already mentioned.\n<\/p>\n
340. Mr. Seervai referred to State of Punjab v. Ajaib Singh<\/a> [1953] S.C.R. 254, 264. Das,
\nJ., observed:\n<\/p>\n
We are in agreement with learned Counsel to this extent only that if the
\nlanguage of the article is plain and unambiguous and admits of only one
\nmeaning then the duty of the court is to adopt that meaning irrespective of
\nthe inconvenience that such a construction may produce. If however two
\nconstructions are possible, then the court must adopt that which will
\nensure smooth and harmonious working of the Constitution and eschew
\nthe other which will lead to absurdity or give rise to practical
\ninconvenience or make well established provisions of existing law
\nnugatory.\n<\/p>\n
341. He also referred to the following passage in Collector of Customs, Baroda v.
\nDigvijaysinghi Spinning & Weaving Mills Ltd.<\/a> [1962] 1 S.C.R. 896-899:
\nIt is one of the well established rules of construction that “if the words of a
\nstatute are in themselves precise and unambiguous no more is necessary
\nthan to expound those words in their natural and ordinary sense, the words
\nthemselves in such case best declaring the intention of the legislature.” It
\nis equally well settled principle of construction that “Where alternative
\nconstructions are equally open that alternative is to be chosen which will
\nbe consistent with the smooth working of the system which the statute
\npurports to be regulating; and that alternative is to be rejected which will
\nintroduce uncertainty.\n<\/p>\n
342. What he urged before us, relying on the last two cases just referred to, was that if we
\nconstrued the word “amendment” in its narrow sense, then there would be uncertainty,
\nfriction and confusion in the working of the system, and we should therefore avoid the
\nnarrow sense.\n<\/p>\n
343. If Parliament has power to pass the impugned amendment acts, there is no doubt that
\nI have no right to question the wisdom of the policy of Parliament. But if the net result of
\nmy interpretation is to prevent Parliament from abrogating the fundamental rights, and
\nthe basic features outlined above, I am unable to appreciate that any uncertainty, friction
\nor confusion will nesessarily result.\n<\/p>\n
344. He also drew our attention to the following observations of Hegde, J. in Budhan
\nSingh v. Nabi Bux<\/a> [1970] 2 S.C.R. 10; 15-16:\n<\/p>\n
Before considering the meaning of the word “held”, it is necessary to
\nmention that it is proper to assume that the law-makers who are the
\nrepresentatives of the people enact laws which the society considers as
\nhonest, fair and equitable. The object of every legislation is to advance
\npublic welfare. In other words, as observed by Crawford in his book on
\nStatutory Construction the entire legislative process is influenced by
\nconsiderations of justice and reason. Justice and reason constitute the great
\ngeneral legislative intent in every piece of legislation. Consequently where
\nthe suggested construction operates harshly, ridiculously or in any other
\nmanner contrary to prevailing conceptions of justice and reason, in most
\ninstances, it would seem that the apparent or suggested meaning of the
\nstatute, was not the one intended by the law-makers. In the absence of
\nsome other indication that the harsh or ridiculous effect was actually
\nintended by the legislature, there is little reason to believe that it represents
\nthe legislative intent.\n<\/p>\n
345. I am unable to appreciate how these observations assist the respondents. If anything,
\nthese observations are against them for when I come to the question of interpretation of
\nthe 25th amendment I may well approach the interpretation keeping those observations in
\nmind.\n<\/p>\n
346. Both Mr. Seervai and the learned Attorney General have strongly relied on the
\ndecisions of the United States Supreme Court, Federal Courts and the State Courts on the
\ninterpretation of Article V of the Constitution of the United States and some State
\nConstitution. Mr. Palkhiwala, on the other hand, relied on some State decisions in support
\nof his submissions.\n<\/p>\n
347. Article V of the Constitution of the United States differs greatly from Article 368 of
\nour Constitution. For facility of reference Article V is reproduced below:
\nThe Congress, whenever two thirds of both Houses shall deem it
\nnecessary, shall propose amendments to this Constitution, or, on the
\napplication of the Legislatures of two thirds of several States, shall call a
\nconvention for proposing amendments, which, in either case, shall be valid
\nto all intents and purposes, as part of this Constitution, when ratified by
\nthe Legislatures of three fourths of the several States, or by conventions in
\nthree fourths thereof, as the one or the other mode of ratification may be
\nproposed by the Congress; Provided that no amendment which may be
\nmade prior to the year one thousand eight hundred and eight shall in any
\nmanner affect the first and fourth clauses in the ninth section of the first
\narticle; and that no State, without its consent, shall be deprived of its equal
\nsuffrage in the Senate.\n<\/p>\n
348. It will be noticed that Article V provides for two steps to be taken for amending the
\nConstitution. The first step is proposal of an amendment and the second step is
\nratification of the proposal. The proposal can be made either by two thirds of both Houses
\nof Congress or by a convention called by the Congress on the application of the
\nlegislatures of two thirds of several States.\n<\/p>\n
349. Congress determines which body shall ratify the proposal. It can either be the
\nlegislatures of three fourths of the States or by conventions in three fourth of the States.\n<\/p>\n
350. If a proposal is made by a Convention and ratified by three fourth of the States in
\nconventions it can hardly be doubted that it is amendment made by the people. Similarly
\nif a proposal is made by the Congress and ratified by conventions there cannot be any
\ndoubt that it is the people who have amended the Constitution. Proposal by Congress and
\nratification by three fourth legislatures of the States can in this context be equated with
\naction of the people. But what is important to bear in mind is that the Congress, a federal
\nlegislature, does not itself amend the Constitution.\n<\/p>\n
351. In India, the position is different. It is Parliament, a federal legislature, which is
\ngiven the power to amend the Constitution except in matters which are mentioned in the
\nproviso. I may repeat that many important provisions including fundamental rights are
\nnot mentioned in the proviso. Can we say that an amendment made by Parliament is an
\namendment made by the people ? This is one of the matters that has to be borne in mind
\nwhile considering the proper meaning to be given to the expression “amendment of this
\nConstitution” in Article 368 as it stood before its amendment by the 24th Amendment.\n<\/p>\n
352. Article V of the U.S. Constitution differs in one other respect from Article 368.
\nThere are express limitations on amending power. The first, which has spent its force,
\nwas regarding the first and fourth clauses in the ninth section of the first article and the
\nsecond relates to deprivation of a State’s suffrage in the Senate without its consent. Apart
\nfrom the above broad differences in Article V as compared to Article 368, the
\nConstitution of India is different in many respects which has a bearing on the extent of
\nthe power of Parliament to amend the Constitution. In brief they are : the background of
\nthe struggle for freedom, various national aspirations outlined during this struggle, the
\nnational objectives as recited in the Objectives Resolution dated January 22, 1947 and the
\nPreamble, the complex structure of the Indian nation consisting as it does of various
\npeoples with different religions and languages and in different stages of economic
\ndevelopment. Further the U.S. Constitution has no Directive Principles as has the Indian
\nConstitution. The States in U.S. have their own Constitutions with the right to modify
\nthem consistently with the Federal Constitution. In India the States have no power to
\namend that part of the Indian Constitution which lays down their Constitution. They have
\nlegislative powers on certain specified subjects, the residuary power being with
\nParliament.\n<\/p>\n
353. I may before referring to the decisions of the Supreme Court of the United States say
\nthat that court has hitherto not been confronted with the question posed before us : Can
\nParliament in exercise of its powers under Article 368 abrogate essential basic features
\nand one fundamental right after another including freedom of speech, freedom of
\nreligion, freedom of life ? The American decisions would have been of assistance if this
\nfundamental question had arisen there and if the power to amend the Federal Constitution
\nhad been with two third majority of the Congress.\n<\/p>\n
354. The question before the Court in Hawke v. Sminth 64 L. Ed. 871 was whether the
\nStates while ratifying proposals under Article V of the Constitution were restricted to
\nadopt the modes of ratification mentioned in Article V, i.e. by the legislatures or by
\nconventions therein, as decided by Congress, or could they ratify a proposed amendment
\nin accordance with the referendum provisions contained in State Constitutions or statutes.\n<\/p>\n
355. The Court held that “the determination of the method of ratification is the exercise
\nof a national power specifically granted by the Constitution” and “the language of the
\narticle is plain, and admits of no doubt in its interpretation.” The Court also held that the
\npower was conferred on the Congress and was limited to two methods : by action of the
\nlegislatures of three fourths of the states, or conventions in a like number of states.\n<\/p>\n
356. The Court further held that the power to ratify a proposed amendment to the Federal
\nConstitution had its source in the Federal Constitution and the act of ratification by the
\nstate derived its authority from the Federal Constitution to which the state and its people
\nhad alike assented.\n<\/p>\n
357. This case is of no assistance to us in interpreting Article 368 of the Constitution.\n<\/p>\n
358. I may now refer to decision of the Supreme Court Rhode Island v. Palmer 64 L. Ed.\n<\/p>\n
946. This case was concerned with the validity of the 18th Amendment and of certain
\ngeneral features of the National Prohibition Law known as Volstead Act. No reasons
\nwere given by the Court for the conclusions arrived at. The conclusions which may have
\nsome relevance for us are conclusion 4 and 5. The learned Counsel sought to deduce the
\nreasons for these conclusions from the arguments addressed and reported in 64 L. Ed. and
\nfor the reasons given by the learned Judge in 264 Fed. Rep. 186 but impliedly rejected by
\nthe Supreme Court by reversing the decision.\n<\/p>\n
359. Counsel sought to buttress this argument by citing views of learned American
\nauthors that the arguments against the validity of the 18th Amendment were brushed
\naside although no reasons are given. I have great respect for the judges of the Supreme
\nCourt of United States, but unless the reasons are given for a judgment it is difficult to be
\nconfident about the ratio of the decision. Apart from the decision, I would be willing to
\nhold the 18th Amendment valid if it had been enacted by our Parliament and added to our
\nConstitution, for I would discern no such taking away of Fundamental rights or altering
\nthe basic structure of the Constitution as would place it outside the contours of the
\nPreamble and the basic features of the Constitution.\n<\/p>\n
360. United States of America v. William H. Sorague (75) L. Ed. 640 was concerned with
\nthe validity of the 18th Amendment. The District Court had held 44 F. (2d) 967 that the
\n18th Amendment had not been properly ratified so as to become part of the Constitution.
\nIt was the contention of the respondents before the Supreme Court that notwithstanding
\nthe plain language of Article V, conferring upon the Congress the choice of method of
\nratification, as between action by legislatures and by conventions, this Amendment could
\nonly be ratified by the latter. The respondents urged that there was a difference in the
\nkind of amendments, as, e.g. “mere changes in the character of federal means or
\nmachinery, on the one hand, and matters affecting the liberty of the citizen on the other.”
\nThere was no question as to ambit of the power of amendment. In other words, there was
\nno question that the subject-matter of amendment, namely, prohibition, fell within Article
\nV of the Constitution.\n<\/p>\n
361. The Court held that the choice of the mode rested solely in the discretion of the
\nCongress. They observed:\n<\/p>\n
It was submitted as part of the original draft of the Constitution to the
\npeople in conventions assembled. They deliberately made the grant of
\npower to Congress in respect to the choice of the mode of ratification of
\namendments. Unless and until that Article be changed by amendment,
\nCongress must function as the delegated agent of the people in the choice
\nof the method of ratification.\n<\/p>\n
362. The Court further held that the 10th Amendment had no limited and special
\noperation upon the people’s delegation by Article V of certain functions to the Congress.\n<\/p>\n
363. I am unable to see how this case helps the respondents in any manner. On the plain
\nlanguage of the article the Court came to the conclusion that the choice of the method of
\nratification had been entrusted to the Congress. We are not concerned with any such
\nquestion here.\n<\/p>\n
364. Mr. Seervai urged that the judgment of the District Court showed that the invalidity
\nof the 18th Amendment to the Constitution could be rested on two groups of grounds;
\ngroup A consisted of grounds relating to the meaning of the word “amendment” and the
\nimpact of the 10th Amendment or the nature of the federal system on Article V of the
\nConstitution, and that Article V by providing the two alternative methods of ratification
\nby convention and legislature showed that the convention method was essential for valid
\nratification when the amendment affected the rights of the people. Group B consisted of
\nthe grounds on which the District Court declared the 18th amendment to be invalid and
\nthose were that “the substance of an amendment, and therefore of course, of an entirely
\nnew Constitution, might have to conform to the particular theories of political science,
\nsociology, economics, etc. held by the current judicial branch of the Government.\n<\/p>\n
365. He then pointed out that grounds mentioned in Group B, which were very much like
\nMr. Palkhiwala arguments, were not even urged by counsel in the Supreme Court, and,
\ntherefore we must regard these grounds as extremely unsound. I, however, do not find
\nMr. Palkhiwala’s arguments similar to those referred to in Group B. It is true articles like
\nMarbury’s “The Limitations upon the Amending Power,-33 Harvard Law Rev. 232”, and
\nMc Goveney’s “Is the Eighteenth Amendment void because of its content ?” (20 Col. Law
\nRev. 499), were brought to our notice but for a different purpose. Indeed the District
\nJudge criticised these writers for becoming enmeshed “in a consideration of the
\nConstitutionality of the substance of the amendment”-the point before us. As the District
\nJudge pointed out, he was concerned with the subject-matter of the 18th Amendment
\nbecause of the relation between that substance or subject-matter and the manner of its
\nadoption.\n<\/p>\n
366. I do not propose to decide the validity of the amendment on the touchstone of any
\nparticular theory of political science, sociology, economics. Our Constitution is capable
\nof being worked by any party having faith in democratic institutions. The touchstone will
\nbe the intention of the Constitution makers, which we can discern from the Constitution
\nand the circumstances in which it was drafted and enacted.\n<\/p>\n
367. A number of decisions of State Courts were referred to by both the petitioners and
\nthe respondents. But the State Constitutions are drafted in such different terms and
\nconditions that it is difficult to derive any assistance in the task before us. Amendments
\nof the Constitution are in effect invariably made by the people.\n<\/p>\n
368. These decisions on the power to amend a Constitution are nor very helpful because
\n“almost without exception, amendment of a state Constitution is effected, ultimately, by
\nthe vote of the people. Proposed amendments ordinarily reach the people for approval or
\ndisapproval in one of two ways; by submission from a convention of delegates chosen by
\nthe people for the express purpose of revising the entire instrument, or by submission
\nfrom the legislature of propositions which the legislature has approved, for amendment of
\nthe Constitution in specific respects. However, in some states Constitutional amendments
\nmay be proposed by proceedings under initiative and referendum, and the requirements
\ngoverning the passage of statutes by initiative and referendum are followed in making
\nchanges in the state Constitutions.” (American Jurisprudence, Vol. 16, 2d., p. 201). In
\nfootnote 9 it is stated:\n<\/p>\n
Ratification or non-ratification of a Constitutional amendment is a vital
\nelement in the procedure to amend the Constitution.” (Towns v. Suttles-
\n20% Ga 838, 69 SE 2d 742). The question whether the people may, by the
\nterms of the Constitution, delegate their power to amend to others-for
\nexample, to a Constitutional convention-is one on which there is a notable
\nlack of authority. An interesting question arises whether this power could
\nbe delegated to the legislature, and if so, whether the instrument which the
\nlegislature would then be empowered to amend would still be a
\nConstitution in the proper sense of the term.\n<\/p>\n
369. This footnote brings out the futility of referring to decisions to interpret a
\nConstitution, wherein power to amend has been delegated to Parliament.\n<\/p>\n
370. That there is a distinction between the power of the people to amend a Constitution
\nand the power of the legislature to amend the same was noticed by the Oregon Supreme
\nCourt in Ex Parte Mrs. D.C. Kerby 36, A.L.R. 1451; 1455, one of the cases cited before
\nus by the respondent. McCourt, J. speaking for the Court distinguished the case of Eason
\nv. State in these words:\n<\/p>\n
Petitioner cites only one authority that has any tendency to support the
\ncontention that a provision in the bill of rights of a Constitution cannot be
\namended-the case of Eason v. State, supra. Upon examination that case
\ndiscloses that the Arkansas Constitution provided that the legislature
\nmight, by the observation of a prescribed procedure, amend the
\nConstitution without submitting the proposed amendment to a vote of the
\npeople of the state, and the Bill of Rights in that Constitution contained a
\nprovision not found in the Oregon Constitution, as follows : “Everything
\nin this article is excepted out of the general powers of government.
\nThe court held that the clause quoted exempted the provisions in the Bill
\nof Rights from the authority delegated to the legislature to amend the
\nConstitution, and reserved the right to make any such amendment to the
\npeople themselves, so that the case is in fact an authority in support of the
\nright of the people to adopt such an amendment.\n<\/p>\n
The case is readily distinguished from the instant case, for every proposed
\namendment to the Oregon Constitution, in order to become effective, must
\nbe approved by a majority vote of the people, recorded at a state election,
\nand consequently, when approved and adopted, such an amendment
\nconstitutes a direct expression of the will of the people in respect to the
\nsubject embraced by the particular measure, whether the same be proposed
\nby initiative petition or by legislative resolution.\n<\/p>\n
371. No report of the decision in Eason v. State is available to me but it appears from the
\nannotation at page 1457 that it was conceded that a Constitutional provision might be
\nrepealed if done in the proper manner viz. by the people, who have the unqualified right
\nto act in the matter. The Court is reported to have said:\n<\/p>\n
And this unqualified right they can Constitutionally exercise by means of
\nthe legislative action of the general assembly in providing by law for the
\ncall of a convention of the whole people to reconstruct or reform the
\ngovernment, either partially or entirely. And such convention, when
\nassembled and invested with the entire sovereign power of the whole
\npeople (with the exception of such of these powers as have been delegated
\nto the Federal government), may rightfully strike out or modify any
\nprinciple declared in the Bill of Rights,’ if not forbidden to do so by the
\nFederal Constitution.\n<\/p>\n
372. Both sides referred to a number of distinguished and well-known authOrs. I do not
\nfind it advantageous to refer to them because the Indian Constitution must be interpreted
\naccording to its own terms and in the background of our history and conditions. Citations
\nof comments on the Indian Constitution would make this judgment cumbersome. I have
\nhad the advantage of very elaborate and able arguments on both sides and I must apply
\nmy own mind to the interpretation.\n<\/p>\n
373. The learned Attorney-General brought to our notice extracts from 71 Constitutions. I
\nadmire the research undertaken but I find it of no use to me in interpreting Article 368.
\nFirst the language and the setting of each Constitution is different. Apart from the
\ndecisions of the Courts in United States there are no judicial decisions to guide us as to
\nthe meaning of the amending clauses in these Constitutions. Further, if it is not helpful to
\nargue from one Act of Parliament to another (see Commissioner of Stamps, Straits
\nSettlements v. Oei Tjong Swan [1933] A.C. 378; 389). much less would it be helpful to
\nargue from one Constitution to another different Constitution (see Bank of Toronto v.
\nLambe [1887] 12 A.C. 575-787).\n<\/p>\n
374. During the course of the arguments I had drawn the attention of the Counsel to the
\ndecision of the Supreme Court of Ireland in The State (at the prosecution of Jeremiah
\nRyan) v. Captain Michael Lennon and Ors. [1935] Irish Reports 170, and the respondents
\nplace great reliance on it. I may mention that this case was not cited before the Bench
\nhearing Golak Nath’s case. On careful consideration of this case, however. I find that this
\ncase is distinguishable and does not afford guidance to me in interpreting Article 368 of
\nthe Constitution.\n<\/p>\n
375. In order to appreciate the difference between the structure of Article 50 of the Irish
\nConstitution of 1922 and Article 368 of the Indian Constitution, it is necessary to set out
\nArticle 50 before its amendment. It reads:\n<\/p>\n
50. Amendments of this Constitution within the terms of the Scheduled
\nTreaty may be made by the Oireachtas, but no such amendment, passed by
\nboth Houses of the Oireachtas, after the expiration of a period of eight
\nyears from the date of the coming into operation of this Constitution, shall
\nbecome law unless the same shall, after it has been passed or deemed to
\nhave been passed by the said two Houses of the Oireachtas, have been
\nsubmitted to a Referendum of the people, and unless a majority of the
\nvoters on the register shall have recorded their votes on such Referendum,
\nand either the votes of a majority of the voters on the register, or two-
\nthirds of the votes recorded, shall have been cast in favour of such
\namendment. Any such amendment may be made within the said period of
\neight years by way of ordinary legislation, and as such shall be subject to
\nthe provisions of Article 47 hereof.\n<\/p>\n
376. It will be noticed that after the expiry of the period of eight years mentioned in the
\narticle, the amending power was not with the Oireachtas as every amendment had to be
\nfirst passed by the two Houses of the Oireachtas and then submitted to a referendum of
\nthe people, and the condition of the referendum was that a majority of the votes on the
\nregister shall have recorded their votes on such referendum, and either the votes of a
\nmajority of the votes on the register, or two-thirds of the votes recorded shall have been
\ncast in favour of such amendment. So, in fact, after the expiry of the first eight years, the
\namendments had to be made by the people themselves. In our Article 368 people as such
\nare not associated at all in the amending process.\n<\/p>\n
377. Further, the Irish Constitution differed from the Indian Constitution in other
\nrespects. It did not have a Chapter with the heading of fundamental rights, or a provision
\nlike our Article 32 which is guaranteed. The words “fundamental rights” were
\ndeliberately omitted from the Irish Constitution (see foot note 9 page 67, The Irish
\nConstitution by Barra O’ Briain, 1929). At the same time, there was no question of any
\nguarantee to any religious or other minorities in Ireland.\n<\/p>\n
378. It will be further noticed that for the first eight years an amendment could be made
\nby way of ordinary legislation, i.e., by ordinary legislative procedure. The sixth
\namendment had deleted from the end of this article the words “and as such shall be
\nsubject to the provisions of Article 47 which provided for a referendum hereof. In other
\nwords, for the first eight years it was purely a flexible Constitution, a Constitutional
\namendment requiring no special procedure.\n<\/p>\n
379. With these differences in mind, I may now approach the actual decision of the
\nSupreme Court.\n<\/p>\n
380. The High Court and the Supreme Court were concerned with the validity of the
\nConstitution (Amendment No. 17) Act 1931 (No. 37 of 1931) having regard to the
\nprovisions of the Constitution. The validity of that Act depended on the validity of the
\nConstitution (Amendment No. 10) Act, 1928, No. 8 of 1928, and of the Constitution
\n(Amendment No. 16) Act, 1929, No. 10 of 1929.\n<\/p>\n
381. The Constitution (Amendment No. 17) Act 1931 was passed as an Act of the
\nOireachtas on October 17, 1931 i.e. some 11 months after the expiry of the period of 8
\nyears mentioned in Article 50 of the Constitution, as originally enacted. It was not
\nsubmitted to a referendum of the people. It was described in its long title as an “Act to
\namend the Constitution by inserting therein an Article making better provision for
\nsafeguarding the rights of the people and containing provisions for meeting a prevalence
\nof disorder.” But there is no doubt that it affected various human rights which were
\ngranted in the Irish Constitution.\n<\/p>\n
382. The Constitution (Amendment No. 10) Act No. 8 of 1928 removed Articles 47 and
\n48 of the Constitution and also the words “and as such shall be subject to the provisions
\nof Article 47 thereof” from the end of Article 50 as originally enacted. Constitution
\n(Amendment No. 16) Act No. 10 of 1929 purported to amend Article 50 of the
\nConstitution by deleting the words “eight years” and inserting in place thereof the words
\n“sixteen years” in that Article.\n<\/p>\n
383. The impugned amendment was held valid by the High Court. Sullivan P., J.
\ninterpreted the word “amendment” in Article 50 widely relying on Edwards v. Attorney
\nGeneral of Canada [1930] A.C. 124. Meredith J. relied on the fact that the width of the
\npower of amendment for the period during the first eight years was co-extensive with the
\nperiod after eight years and he could find no distinction between Articles of primary
\nimportance or secondary importance. O’Byrne J. could not see any distinction between
\nthe word “amendment” and the words “amend or repeal.\n<\/p>\n
384. In the Supreme Court., the Chief Justice first noticed “that the Constitution was
\nenacted by the Third Dail sitting as a Constituent Assembly, and not by the Oireachtas
\nwhich, in fact, it created.” He read three limitations in the Constitution. The first, he
\ndescribed as the over-all limitatioin. Thus:\n<\/p>\n
The Constituent Assembly declared in the forefront of the Constitution
\nAct (an Act which it is not within the power of the Oireachtas to alter, or
\namend, or repeal), that all lawful authority comes from God to the people,
\nand it is declared by Article 2 of the Constitution that “all powers of
\ngovernment and all authority, legislative, executive and judicial, in Ireland
\nare derived from the people of Ireland….\n<\/p>\n
385. The limitation was deduced thus : “It follows that every act, whether legislative,
\nexecutive or judicial, in order to be lawful under the Constitution, must be capable of
\nbeing justified under the authority thereby declared to be derived from God.\n<\/p>\n
386. Now this limitation in so far as it proceeds from or is derived from the belief in the
\nIrish State that all lawful authority comes from God to the people, can have no
\napplication to our Constitution.\n<\/p>\n
387. The second limitation he deduced from Section 2 of the Irish Fret State Act and
\nArticle 50 of the Irish Constitution. It Was that any amendment repugnant to the
\nScheduled Treaty shall be void and inoperative.\n<\/p>\n
388. The third limitation was put in these words:\n<\/p>\n
The Third Dail Eireann has, therefore, as Constituent Assembly, of its own
\nsupreme authority, proclaimed its acceptance of and declared, in relation
\nto the Constitution which it enacted, certain principles, and in language
\nwhich shows beyond doubt that they are stated as governing principles
\nwhich are fundamental and absolute (except as expressly qualified), and,
\nso, necessarily, immutable. Can the power of amendment given to the
\nOireachtas be lawfully exercised in such a manner as to violate these
\nprinciples which, as principles, the Oireachtas has no power to change ?.
\nIn my opinion there can be only one answer to that question, namely, that
\nthe Constituent Assembly cannot be supposed to have in the same breath
\ndeclared certain principles to be fundamental and immutable, or conveyed
\nthat sense in other words, as by a declaration of inviolability, and at the
\nsame time to have conferred upon the Oireachtas power to violate them or
\nto alter them. In my opinion, any amendment of the Constitution,
\npurporting to be made under the power given by the Constituent
\nAssembly, which would be a violation of, or be inconsistent with, any
\nfundamental principle so declared, is necessarily outside the scope of the
\npower and invalid and void.\n<\/p>\n
389. He further said that these limitations would apply even after the expiry of eight
\nyears. He said:\n<\/p>\n
I have been dealing with limitations of the power of amendment in relation
\nto the kinds of amendment which do not fall within the scope of the power
\nand which are excluded from it always, irrespective of the time when, i.e.
\nwithin the preliminary period of eight years or after, or the process by
\nwhich, the amendment is attempted.\n<\/p>\n
390. He then approached the validity of the 16th Amendment in these words:
\nWas, then, the Amendment No. 16 lawfully enacted by Act No. 10 of
\n1929 ? There are two principal grounds for impeaching its validity; the
\nfirst, the taking away whether validly or not, in any case the effective
\nremoval from use, of the Referendum and the right to demand a
\nReferendum; the second, that the Amendment No. 16 is not within the
\nscope of the power of amendment, and therefore the Oireachtas was
\nincompetent to enact it.\n<\/p>\n
391. He thought:\n<\/p>\n
The Oireachtas, therefore, which owes its existence to the Constitution,
\nhad upon its coming into being such, and only such, power of amendment
\n(if any) as had been given it by the Constituent Assembly in the
\nConstitution, that is to say, the express power set out in Article 50, and
\namendments of the Constitution could only be validly made within the
\nlimits of that power and in the manner prescribed by that power.\n<\/p>\n
392. He then observed:\n<\/p>\n
Now, the power of amendment is wholly contained in a single Article, but
\nthe donee of the power and the mode of its exercise are so varied with
\nregard to a point of time as to make it practically two separate powers, the
\none limited to be exercised only during the preliminary period of eight
\nyears, the other, a wholly different and permanent power, to come into
\nexistence after the expiry of that preliminary period and so continue
\nthereafter.\n<\/p>\n
393. After referring to the condition (it shall be subject to the provisions of Article 47) he
\nthought:\n<\/p>\n
The Constituent Assembly, even during the preliminary period, would not
\nrelax the ultimate authority of the people, and expressly reserved to the
\npeople the right to intervene when they considered it necessary to restrain
\nthe action of the Oireachtas affecting the Constitution. The frame of this
\nprovision makes it clear to my mind that, even if, by amendment of the
\nConstitution under the power, Article 47 might cease to apply to ordinary
\nlegislation of the Oireachtas, the provisions of that clause were declared,
\ndeliberately, expressly and in a mandatory way, to be kept in force and
\noperative for the purpose of amendments of the Constitution during the
\npreliminary period of eight years.\n<\/p>\n
394. According to him “the permanent power of amendment, to arise at the expiry of the
\nperiod of eight years, is a wholly different thing both as to the donee of the power and the
\nmanner of its exercise.\n<\/p>\n
395. He held that it was apt competent for the Oireachtas to remove from the power
\ngranted to it by the Constituent Assembly the requisites for its exercise attached to it in
\nthe very terms of donation of the power. He observed:\n<\/p>\n
That provision of the Statute, No. 8 of 1928, was bad, in my opinion as
\nbeing what is called in the general law of powers ‘an excessive execution.’
\nIt was outside the scope of the power. We have not been referred to, nor
\nhave I found, any precedent for such a use of a power. I do not believe that
\nthere can be a precedent because it defies logic and reason. It was,
\ntherefore, invalid in my opinion.\n<\/p>\n
396. Regarding the substitution of “sixteen years” for the words “eight years” he said:
\nIf this amendment is good there is no reason why the Oireachtas should
\nnot have inserted or should not even yet insert, a very much larger term of
\nyears or, indeed, delete the whole of Article 50 from the words “by the
\nOireachtas” in the second line to the end of the Article.\n<\/p>\n
397. Later he observed:\n<\/p>\n
The attempt to take from the people this right, this exclusive power and
\nauthority and to confer on the Oireachtas a full and uncontrolled power to
\namend the Constitution without reference to the people (even though for a
\nperiod of years, whether it be until 1938 or Tibb’s Eve, a matter of
\nindifference in the circumstances) was described by counsel in, I think,
\naccurate language, as a usurpation, for it was done in my opinion without
\nlegal authority.\n<\/p>\n
398. He then repelled the argument that Section 50 conferred the power to amend the
\nArticle itself. His reasons for this conclusion are summarised thus at page 219:
\nIn my opinion, on the true interpretation of the power before us, upon a
\nconsideration of express prohibition, limitations and requirements of the
\nclause containing it, the absence of any express authority, the donation of
\nthe effective act in the exercise of the power to the people as a whole, the
\nrelevant surrounding circumstances to which I have already referred and
\nthe documents and their tenor in their entirety, there is not here, either
\nexpressly or by necessary implication, any power to amend the power of
\namendment itself.\n<\/p>\n
399. I cannot agree with the learned Attorney-General that the sole basis of Kennedy
\nC.J.’s decision was that Article 50 did not contain an express power of amending the
\nprovisions of Article 50 itself. He gave various reasons which I have referred to above.\n<\/p>\n
400. FitzGibbon J. held that the word “amendment” was wide enough to include a power
\nto amend or alter or repeal and there is no express prohibition in Article 50 itself that any
\narticle of the Constitution including Article 50 could not be amended. The only limitation
\nthat he could find was that the provisions of the Scheduled Treaty could not be amended.
\nHe observed:\n<\/p>\n
I see no ground for holding that either of these Articles could not have
\nbeen amended by the Oireachtas subject to a Referendum of the people
\nafter the period of eight years, and, if so, it follows that the same
\namendment, e.g., the deletion of the word “no” in Article 43 could be
\nmade “by way of ordinary legislation” within that period, or within
\nsixteen, years, after eight had been altered to sixteen.\n<\/p>\n
401. In other words, according to him, if the Oireachtas subject to a referendum of the
\npeople mentioned in Article 50 could amend any Article, so could Oireachtas during the
\nperiod of eight years. But he noticed that in other Constitutions, there are articles, laws or
\nprovisions which are specifically described as “Fundamental” e.g., Sweden, or
\n“Constitutional” e.g., Austria, Czechoslovakia and France, in respect of which the
\nConstitution expressly restricts the power of amendment, but in Constitution of the
\nSaorstat there is no such segregation, and the power of amendment which applies to any
\nArticle appears to me to be equally applicable to all others, subject, of course, to the
\nrestriction in respect of the Scheduled Treaty. He, later observed:
\nUnless, therefore, these rights appear plainly from the express provisions
\nof our Constitution to be inalienable, and incapable of being modified or
\ntaken away by any legislative act, I cannot accede to the argument that the
\nOireachtas cannot alter, modify, or repeal them. The framer of our
\nConstitution may have intended “to bind man down from mischief by the
\nchains of the Constitution,” but if they did, they defeated their object by
\nbanding him the key of the padlock in Article 50. (P. 234)\n<\/p>\n
402. Murnaghan J. stressed the point that “this direct consultation of the people’s will
\ndoes indicate that all matters, however fundamental, might be the subject of amendment.
\nOn the other hand the view contended for by the appellants must go to this extreme point,
\nviz., that certain Articles or doctrines of the Constitution are utterly incapable of
\nalteration at any time even if demanded by an absolute majority of the voters.\n<\/p>\n
403. This observation really highlights the distinction between Article 50 of the Irish
\nConstitution and Article 368 of the Indian Constitution. As I have already observed, there
\nis no direct consultation of the people’s will in Article 368 of our Constitution.\n<\/p>\n
404. The only limitation he could find in Article 50 was that the amendment to the
\nConstitution must be within the terms of the Scheduled Treaty.\n<\/p>\n
405. As I have observed earlier, I find Article 50 of the Irish Constitution quite different
\nin structure from Article 368 of the Indian Constitution and I do not think it is permissible
\nto argue from Article 50 of the Irish Constitution to Article 368 of the Indian
\nConstitution. Be that as it may, if I had to express my concurrence, I would express
\nconcurrence with the view of the learned Chief Justice in so far as he said that the
\nOireachtas could not increase its power of amendment by substituting sixteen years for
\nthe words “eight years”.\n<\/p>\n
406. I had also invited attention of Counsel to Moore and Ors. v. Attorney-General for
\nthe Irish Free State and Ors. [1935] A.C. 484 and the respondents rely heavily on it. In
\nthis case the validity of the Constitution (Amendment No. 22) Act, 1933 (Act 6 of 1933)
\nwas involved. It was alleged that this amendment was no bar to the maintenance by the
\npetitioners, who were the appellants, of their appeal before the Judicial Committee, as it
\nwas Void.\n<\/p>\n
407. On May 3, 1933, the Oireachtas passed an Act, No. 6 of 1933, entitled the
\nConstitution (Removal of Oath) Act, 1933. That Act, by Section 2, provided that Section
\n2 of the Constitution of the Irish Free State (Saorstat Eireann) Act, 1922, should be
\nrepealed, and, by Section 3, that Article 50 of the Constitution should be amended by
\ndeleting the words “within the terms of the Scheduled Treaty.\n<\/p>\n
408. Finally, on November 15, 1933, the Oireachtas, enacted the Constitution
\n(Amendment No. 22) Act, 1933, amending Article 66 of the Constitution so as to
\nterminate the right of appeal to His Majesty in Council.\n<\/p>\n
409. The Validity of the last amending Act depended on whether the earlier Act, No. 6 of
\n1933, was valid, namely, that which is directed to removing from Article 50 the condition
\nthat there can be no amendment of the Constitution unless it is within the terms of the
\nScheduled Treaty.\n<\/p>\n
410. It appears that Mr. Wilfrid Greene, arguing for the petitioners, conceded that the
\nConstitution (Amendment No. 16) Act, 1929 was regular and that the validity of the
\nsubsequent amendments could not be attacked on the ground that they had not been
\nsubmitted to the people by referendum.\n<\/p>\n
411. It is true that the Judicial Committee said that Mr. Greene rightly conceded this
\npoint but we do not know the reasons which impelled the Judicial Committee to say that
\nthe concession was rightly made. In view of the differences between Article 50 of the
\nIrish Constitution and Article 368 of our Constitution, this concession cannot have any
\nimportance in the present case. The actual decision in the case is of no assistance to us
\nbecause that proceeds on the basis that the Statute of Westminster had removed the
\nrestriction, contained in the Constitution of the Irish Free State Act, 1922.\n<\/p>\n
412. Mr. Greene challenged the validity of Act No. 6 of 1933 by urging:
\nThe Constitution derived its existence not from any legislature of the
\nImperial Parliament but solely from the operations of an Irish body, the
\nConstituent Assembly, which is called in Ireland the Third Dail Eireann.
\nThis body, it is said, though mentioned in the Irish Free State (Agreement)
\nAct, 1922, was in fact elected pursuant to a resolution passed on May 20,
\n1922, by the Second Dail Eireann, an Irish Legislative Assembly. The
\nThird Dail Eireann was thus, it was alleged, set up in Ireland by election of
\nthe people of Ireland of their own authority as a Constituent Assembly to
\ncreate a Constitution, and having accomplished its work went out of
\nexistence, leaving no successor and no body in authority capable of
\namending the Constituent Act. The result of that argument is that a
\nConstitution was established which Mr. Greene has described as a semi-
\nrigid Constitution-that is, “one capable of being amended in detail in the
\ndifferent articles according to their terms, but not susceptible of any
\nalteration so far as concerns the Constituent Act, unless perhaps by the
\ncalling together of a new Constituent Assembly by the people of Ireland.
\nThus the articles of the Constitution may only be amended in accordance
\nwith Article 50, which limits amendments to such as are within the terms
\nof the Scheduled Treaty. On that view Mr. Greene argues that the law No.
\n6 of 1933 is ultra vires and hence that the amendment No. 22 of 1933 falls
\nwith it.\n<\/p>\n
413. Mr. Greene referred their Lordships to State (Ryan and Ors.) v. Lennon and Ors.
\n[1935] Irish Reports 170. In that case Chief Justice Kennedy is reported to have
\nexpressed a view which corresponds in substance to that contended for by Mr. Greene.\n<\/p>\n
414. Now it is these contentions which I have just set out and which their Lordships
\ncould not accept. They observed:\n<\/p>\n
In their opinion the Constituent Act and the Constitution of the Irish Free
\nState derived their validity from the Act of the Imperial Parliament, the
\nIrish Free State Constitution Act, 1922. This Act established that the
\nConstitution, subject to the provisions of the Constituent Act, should be
\nthe Constitution of the Irish Free State and should come into operation on
\nbeing proclaimed by His Majesty, as was done on December 6, 1922. The
\naction of the House of Parliament was thereby ratified.\n<\/p>\n
415. The position was summed up as follows:\n<\/p>\n
(1) The Treaty and the Constituent Act respectively form parts of the
\nStatute Law of the United Kingdom, each of them being parts of an
\nImperial Act. (2) Before the passing of the Statute of Westminster it was
\nnot competent for the Irish Free State Parliament to pass an Act abrogating
\nthe Treaty because the Colonial Laws Validity Act forbade a dominion
\nlegislature to pass a law repugnant to an Imperial Act. (3) The affect of the
\nStatute of Westminster was to remove the fetter which lay upon the Irish
\nFree State Legislature by reason of the Colonial Laws Validity Act. That
\nLegislature can now pass Acts repugnant to an Imperial Act In this case
\nthey have done so.\n<\/p>\n
416. I think that summary makes it quite clear that it wag because of the Statute of
\nWestminster that the Irish Free State Parliament was enabled to amend the Constitution
\nAct.\n<\/p>\n
PART IV
\nValidity of 24th Amendment\n<\/p>\n
417. Now I may deal with the question whether the Constitution (Twenty-Fourth
\nAmendment) Act, 1971 is valid. It reads thus:\n<\/p>\n
…\n<\/p>\n
(2) In Article 13 of the Constitution, after Clause (3), the following clause
\nshall be inserted, namely:\n<\/p>\n
(4) Nothing in this article shall apply to any amendment of
\nthis Constitution made under Article 368.\n<\/p>\n
(3) Article 368 of the Constitution shall be re-numbered as Clause (2)
\nthereof, and-\n<\/p>\n
(a) for the marginal heading to that article, the following
\nmarginal heading shall be substituted, namely:\n<\/p>\n
Power of Parliament to amend the Constitution and
\nprocedure therefor.;\n<\/p>\n
(b) before Clause (2) as so re-numbered, the following
\nclause shall be inserted, namely:\n<\/p>\n
(1) Notwithstanding anything in this
\nConstitution, Parliament may in exercise of
\nits constituent power amend by way of
\naddition, variation or repeal any provision of
\nthis Constitution in accordance with toe
\nprocedure laid down in this article;\n<\/p>\n
(c) in Clause (2) as so re-numbered, for the words “it shall
\nbe presented to the President for his ascent and upon such
\nassent being given to the Bill”, the words “it shall be
\npresented to the President who shall give his attest to the
\nBill and thereupon” shall be substituted;\n<\/p>\n
(d) after Clause (2) as so re-numbered, the following shall
\nbe inserted, namely:\n<\/p>\n
(3) Nothing in Article 13 shall apply to any
\namendment made under this article.\n<\/p>\n
418. According to the petitioner, the 24th Amendment has sought to achieve five results:\n<\/p>\n
(i) It has inserted an express provision in Article 368 to indicate that the
\nsource of the amending power will be found in that Article itself.\n<\/p>\n
(ii) It has made it obligatory on the President to give his assent to any Bill
\nduly passed under that Article.\n<\/p>\n
(iii) It has substituted the words “amend by way of addition, variation or
\nrepeal…” in place of the bare concept of “amendment” in the Article 368.\n<\/p>\n
(iv) It makes explicit that when Parliament makes a Constitutional
\namendment under Article 368 it acts “in exercise of its constituent power.\n<\/p>\n
(v) It has expressly provided, by amendments in Article 13 and 368, that
\nthe bar in Article 13 against abridging or taking away any of the
\nfundamental rights should not apply to any amendment made under
\nArticle 368.\n<\/p>\n
419. Mr. Palkhivala did not dispute that the amendments covered by (i) and (ii) above
\nwere within the amending power of Parliament. I do not find it necessary to go into the
\nquestion whether Subba Rao, C.J., rightly decided that the amending power was in List I
\nentry 97, or Article 248, because nothing turns on it now.\n<\/p>\n
420. Mr. Palkhivala rightly conceded that Parliament could validly amend Article 368 to
\ntransfer the source of amending power from List I entry 97 to Article 368.\n<\/p>\n
421. Mr. Palkhivala however contended that “if the amendments covered by (iii) and (iv)
\nabove are construed as empowering Parliament to exercise the full constituent power of,
\nthe people themselves, and as vesting in Parliament the ultimate legal sovereignty of the
\npeople, and as authorising Parliament to alter or destroy all or any of the essential
\nfeatures, basic elements and fundamental principles of the Constitution (hereinafter
\nreferred to “essential features”), the amendments must be held, to be illegal and void.” He
\nfurther urges that “if the amendment covered by (v) is construed as authorising
\nParliament to damage or destroy the essence of all or any of the fundamental rights, the
\namendment must be held to be illegal and void.” He says that the 24th Amendment is
\nvoid and illegal for the following reasons : A creature of the Constitution, as the
\nParliament is, can have only such amending power as is conferred by the Constitution
\nwhich is given by the people unto themselves. While purporting to exercise that
\namending power, Parliament cannot increase that very power. No doubt, Parliament had
\nthe power to amend Article 368 itself, but that does not mean that Parliament could so
\namend Article 368 as to change its own amending power beyond recognition. A creature
\nof the Constitution cannot enlarge its own power over the Constitution, while purporting
\nto act under it, any more than the creature of an ordinary law can enlarge its own power
\nwhile purporting to act under that law. The power of amendment cannot possibly
\nembrace the power to enlarge that very power of amendment, or to abrogate the
\nlimitations, inherent or implied, in the terms on which the power was conferred. The
\ncontrary view would reduce the whole principle of inherent and implied limitations to an
\nabsurdity.\n<\/p>\n
422. It is contended on behalf of the respondents that the 24th Amendment does enlarge
\nthe power of Parliament to amend the Constitution, if Golak Nath’s case limited it, and as
\nArticle 368 clearly contemplates amendment of Article 368 itself, Parliament can confer
\nadditional powers of amendment on it.\n<\/p>\n
423. Reliance was placed on Ryan’s [1935] Irish Reports 170 case and Moore’s [1935]
\nA.C. 484 case. I have already dealt with these cases.\n<\/p>\n
424. It seems to me that it is not legitimate to interpret Article 368 in this manner. Clause\n<\/p>\n
(e) of the proviso does not give any different power than what is contained in the main
\narticle. The meaning of the expression “Amendment of the Constitution” does not change
\nwhen one reads the proviso. If the meaning is the same, Article 368 can only be amended
\nso as not to change its identity completely. Parliament, for instance, could not make the
\nConstitution uncontrolled by changing the prescribed two third majority to simple
\nmajority. Similarly it cannot get rid of the true meaning of the expression “Amendment of
\nthe Constitution” so as to derive power to abrogate fundamental rights.\n<\/p>\n
425. If the words “notwithstanding anything in the Constitution” are designed to widen
\nthe meaning of the word “Amendment of the Constitution” it would have to be held void
\nas beyond the amending power. But I do not read these to mean this. They have effect to
\nget rid of the argument that Article 248 and Entry 97 List I contains the power of
\namendment. Similarly, the insertion of the words “in exercise of its constituent power”
\nonly serves to exclude Article 248 and Entry 97 List I and emphasize that it is not
\nordinary legislative power that Parliament is exercising under Article 368 but legislative
\npower of amending the Constitution.\n<\/p>\n
426. It was said that if Parliament cannot increase its power of amendment Clause (d) of
\nSection 3 of the 24th Amendment which makes Article 13 inapplicable to an amendment
\nof the Constitution would be bad. I see no force in this contention. Article 13(2) as
\nexisting previous to the 24th Amendment as interpreted by the majority in Golak Nath’s
\ncase prevented legislatures from taking away or abridging the rights conferred by Article\n<\/p>\n
13. In other words, any law which abridged a fundamental right even to a small extent
\nwas liable to be struck down under Article 368 Parliament can amend every article of the
\nConstitution as long as the result is within the limits already laid down by me. The
\namendment of Article 13(2) does not go beyond the limits laid down because Parliament
\ncannot even after the amendment abrogate or authorise abrogation or the taking away of
\nfundamental rights. After the amendment now a law which has the effect of merely
\nabridging a right while remaining within the limits laid down would not be liable to be
\nstruck down.\n<\/p>\n
427. In the result, in my opinion, the 24th Amendment as interpreted by me is valid.
\nPART V.-Validity of Section 2 of the Constitution (Twenty-fifth Amendment) Act, 1971.\n<\/p>\n
428. Section 2 of the Constitution (Twenty-fifth Amendment) Act, 1971 enacted as
\nfollows:\n<\/p>\n
(a) for Clause (2), the following clause shall be substituted, namely:
\n(2) No property shall be compulsorily acquired or
\nrequisitioned save for a public purpose and save by
\nauthority of a law which provides for acquisition or
\nrequisitioning of the property for an amount which may be
\nfixed by such law or which may be determined in
\naccordance with such principles and given in such manner
\nas may be specified in such law; and no such law shall be
\ncalled in question in any court on the ground that the
\namount so fixed or determined is not adequate or that the
\nwhole or any part of such amount is to be given otherwise
\nthan in cash:\n<\/p>\n
<BLOCKQUOTE
\nProvided that in making any law providing for the
\ncompulsory acquisition of any property of an educational
\ninstitution established and administered by a minority,
\nreferred to in Clause (1) of Article 30, the State shall ensure
\nthat the amount fixed by or determined under such law for
\nthe acquisition of such property is such as would not
\nrestrict or abrogate the right guaranteed under that clause.\n<\/p>\n
(b) after Clause (2A), the following clause shall be inserted, namely:
\n(2B) Nothing in Sub-clause (f) of Clause (1) of Article 19 shall affect any
\nsuch law as is referred to in Clause (2).\n<\/p>\n
429. There cannot be any doubt that the object of the amendment is to modify the
\ndecision given by this Court in Rustom Cavasjee Cooper v. Union of India<\/a> [1970] 3
\nS.C.R. 530 where it was held by ten Judges that the Banking Companies (Acquisition and
\nTransfer of Undertakings) Act violated the guarantee of compensation under Article
\n31(2) in that it provided for giving certain amounts determined according to principles
\nwhich were not relevant in the determination of compensation of the undertaking of the
\nnamed Banks and by the method prescribed the amounts so declared could not be
\nregarded as compensation.\n<\/p>\n
430. If we compare Article 31(2) as it stood before and after the 25th Amendment, the
\nfollowing changes seem to have been effected. Whereas before the amendment, Article
\n31(2) required the law providing for acquisition to make provision for compensation by
\neither fixing the amount of compensation or specifying the principles on which and the
\nmanner in which the compensation should be determined after the amendment Article
\n31(2) requires such a law to provide for an “amount” which may be fixed by the law
\nproviding for acquisition or requisitioning or which may be determined in accordance
\nwith such principles and given in such manner as may be specified in such law. In other
\nwords, for the idea that compensation should be given, now the idea is that an “amount”
\nshould be given. This amount can be fixed directly by law or may be determined in
\naccordance with such principles as may be specified.\n<\/p>\n
431. It is very difficult to comprehend the exact meaning which can be ascribed to the
\nword “amount”. In this context, it is true that it is being used in lieu of compensation, but
\nthe word “amount” is not a legal concept as “compensation” is.\n<\/p>\n
432. According to Shorter Oxford English Dictionary, Third Edn. p. 57, the word
\n“amount” has the following meaning:\n<\/p>\n
Amount (amount sb. 1710, (f. the vb.) 1). The sum total to which anything
\namounts up; spec. the sum of the principal and interest 1796. 2. fig. The
\nfull value, effect, or significance 1732. 3. A quantity or sum viewed as a
\ntotal 1833.\n<\/p>\n
433. According to Webster’s Third New International Dictionary, p. 72, “amount” means:
\namount 1a : the total number of quantity; AGGREGATE (the amount of
\nthe fine is doubled); SUM, NUMBER (add the same amount to each
\ncolumn) (the amount of the policy is 10,000 dollars) b : the sum of
\nindividuals (the unique amount of worthless IOU’s collected during each
\nday’s business – R.L. Taylor) c : the quantity at hand or under
\nconsideration (only a small amount of trouble involved) (a surprising
\namount of patience) 2 : the whole or final effect, significance, or import
\n(the amount of bis remarks is that we are hopelessly beaten) 3 : accounting
\n: a principal sum and the interest on it syn see SUM.\n<\/p>\n
434. I have also seen the meaning of the word “amount” in the Oxford English
\nDictionary, Volume 1 p. 289, but it does not give me much guidance as to the meaning to
\nbe put in Article 31(2), as amended. The figurative meaning, i.e., the full value, I cannot
\ngive because of the deliberate omission of the word “compensation” and substitution of
\nthe word “amount” in lieu thereof.\n<\/p>\n
435. Let us then see if the other part of the article throws any light on the word “amount”.
\nThe article postulates that in some cases principles may be laid down for determining the
\namount and these principles may lead to an adequate amount or an inadequate amount.
\nSo this show that the word “amount” here means something to be given in lieu of the
\nproperty to be acquired but this amount has to and can be worked out by laying down
\ncertain principles. These principles must then have a reasonable relationship to the
\nproperty which is sought to be acquired, if this is so, the amount ultimately arrived at by
\napplying the principles must have some reasonable relationship with the property to be
\nacquired; otherwise the principles of the Act could hardly be principles within the
\nmeaning of Article 31(2).\n<\/p>\n
436. If this meaning is given to the word “amount” namely, that the amount given in cash
\nor otherwise is of such a nature that it has been worked out in accordance with the
\nprinciples which have relationship to the property to be acquired, the question arises :
\nwhat meaning is to be given, to the expression “the amount so fixed”. The amount has to
\nbe fixed by law but the amount so fixed by law must also be fixed in accordance with
\nsome principles because it could not have been intended that if the amount is fixed by
\nlaw, the legislature would fix the amount arbitrarily. It could not, for example, fix the
\namount by a lottery.\n<\/p>\n
437. Law is enacted by passing a bill which is introduced. The Constitution and
\nlegislative procedure contemplate that there would be discussion, and in debate, the
\nGovernment spokesman in the legislature would be able to justify the amount which has
\nbeen fixed. Suppose an amendment is moved to the amount fixed. How would the debate
\nproceed ? Can the Minister say-“This amount is fixed as it is the government’s wish.”
\nObviously not. Therefore, it follows that the amount, if fixed by the legislature, has also
\nto be fixed according to some principles. These principles cannot be different from the
\nprinciples which the legislature would lay down.\n<\/p>\n
438. In this connection it must be borne in mind that Article 31(2) is still a fundamental
\nright. Then, what is the change that has been brought about by the amendment ? It is no
\ndoubt that a change was intended, it seems to me that the change effected is that a person
\nwhose property is aquired can no longer claim full compensation or just compensation
\nbut he can still claim that the law should lay down principles to determine the amount
\nwhich he is to get and these principles must have a rational relation to the property sought
\nto be acquired. If the law were to lay down a principle that the amount to be paid in lieu
\nof a brick of gold acquired shall be the same as the market value of an ordinary brick or a
\nbrick of silver it could not be held to be a principle at all. Similarly if it is demonstrated
\nthat the amount that has been fixed for the brick of gold is the current value of an
\nordinary brick or a brick of silver the amount fixed would be illegal. If I were to interpret
\nArticle 31(2) as meaning that even an arbitrary or illusory or a grossly low amount could
\nbe given which would shock not only the judicial conscience but the conscience of every
\nreasonable human being, a serious question would arise whether Parliament has not
\nexceded its amending power under Article 368 of the Constitution. The substance of the
\nfundamental right to property, under Article 31, consists of three things : one, the
\nproperty shall be acquired by or under a valid law; secondly, it shall be acquired only for
\na public purpose; and, thirdly, the person whose property has been acquired shall be
\ngiven an amount in lieu thereof, which, as I have already said, is not arbitrary, illusory or
\nshocking to the judicial conscience or the conscience of mankind. I have already held that
\nParliament has no power under Article 368 to abrogate the fundamental rights but can
\namend or regulate or adjust them in its exercise of amending powers without destroying
\nthem. Applying this to the fundamental right of property, Parliament cannot empower
\nlegislatures to fix an arbitrary amount or illusory amount or an amount that virtually
\namounts to confiscation, taking all the relevant circumstances of the acquisition into
\nconsideration. Same considerations apply to the manner of payment. I cannot interpret
\nthis to mean that an arbitrary manner of payment is contemplated. To give an extreme
\nexample, if an amount is determined or fixed at Rs. 10,000 a legislature cannot lay down
\nthat payment will be made at the rate of Rs. 10 per year or Rs. 10 per month.\n<\/p>\n
439. Reference may be made to two cases that show that if discretion is conferred it must
\nbe exercised reasonably.\n<\/p>\n
440. In Roberts v. Hopwood [1925] A.C. 578; 590 it was held that the discretion
\nconferred upon the Council by Section 62 of the Metropolis Management Act, 1855,
\nmust be exercised reasonably. The following observations of Lord Buckmaster are
\npertinent:\n<\/p>\n
It appears to me, for the reasons I have given, that they cannot have
\nbrought into account the consideration which they say influenced them,
\nand that they did not base their decision upon the ground that the reward
\nfor work is the value of the work reasonably and even generously
\nmeasured, but that they took an arbitrary principle and fixed an arbitrary
\nsum, which was not a real exercise of the discretion imposed upon them
\nby the statute.\n<\/p>\n
441. I may also refer to Lord Wrenbury’s observation at p. 613:\n<\/p>\n
I rest my opinion upon higher grounds. A person in whom is vested a
\ndiscretion must exercise his discretion upon reasonable grounds. A
\ndiscretion does not empower a man to do what he likes merely because he
\nis minded to do so – he must in the exercise of his discretion do not what
\nhe likes but what he ought. In other words, he must, by use of his reason,
\nascertain and follow the course which reason directs. He must act
\nreasonably.\n<\/p>\n
442. In James Leslie Williams v. Haines Thomas [1911] A.C. 381 the facts are given in
\nthe headnote as follows:\n<\/p>\n
Under Section 4 of the New South Wales Public Service Superannuation
\nAct, 1903, the plaintiff was awarded by the Public Service Board a
\ngratuity of 23 # 10 $. 1 d. per mensem, calculated for each year of service
\nfrom December 9, 1875, the date of his permanent employment, upto
\nDecember 23, 1895; and upon his claiming to have his service reckoned
\nup to August 16, 1902, was awarded a further gratuity of one penny in
\nrespect of each year subsequent to December 23, 1895, up to August 16,
\n1902, the date of the commencement of the public Service Act of that
\nyear.\n<\/p>\n
443. The Judicial Committee held the award to be illusory. The Judicial Committee
\nobserved:\n<\/p>\n
…it seems to their Lordships to be quite plain that an illusory award such
\nas this – an award intended to be unreal and unsubstantial – though made
\nunder guise of exercising discretion, is at best a colourable performance,
\nand tantamount to a refusal by the Board to exercise the discretion
\nentrusted to them by Parliament.\n<\/p>\n
444. Although I am unable to appreciate the wisdom of inserting Clause (2B) in Article
\n31, the effect of which is to make Article 19(1)(f) inapplicable, I cannot say that it is an
\nunreasonable abridgement of rights under Article 19(1)(f). While passing a law fixing
\nprinciples, the legislatures are bound to provide a procedure for the determination of the
\namount, and if the procedure is arbitrary that provision may well be struck down under
\nArticle 14.\n<\/p>\n
445. In view of the interpretation which I have placed on the new Article 31(2), as
\namended, it cannot be said that Parliament has exceeded its amending power under
\nArticle 368 in enacting the new Article 31(2).\n<\/p>\n
446. For the reasons aforesaid I hold that Section 2 of the Constitution (Twenty-fifth
\nAmendment) Act, 1971, as interpreted by me, valid.\n<\/p>\n
447. Part VI-Validity of Section 3 of the Constitution (Twenty-Fifth Amendment) Act,
\n1971.\n<\/p>\n
448. Section 3 of the twenty-fifth amendment, reads thus:\n<\/p>\n
3. After Article 31B of the Constitution, the following article shall be
\ninserted, namely:\n<\/p>\n
31. C. Notwithstanding anything contained in Article 13, no law giving
\neffect to the policy of the State towards securing the principles specified in
\nClause (b) or Clause (c) of Article 39 shall be deemed to be void on the
\nground that it is inconsistent with, or takes away or abridges any of the
\nrights conferred by Article 14, Article 19 or Article 31; and no law
\ncontaining a declaration that it is for giving effect to such policy shall be
\ncalled in question in any court on the ground that it does not give effect to
\nsuch policy:\n<\/p>\n
Provided that where such law is made by the legislature of a State, the
\nprovisions of this article shall not apply thereto unless such law, having
\nbeen reserved for the consideration of the President, has received his
\nassent.\n<\/p>\n
449. It will be noted that Article 31C opens with the expression “notwithstanding
\nanything contained in Article 13”. This however cannot mean that not only fundamental
\nrights like Artice 19(1)(f) or Article 31 are excluded but all fundamental rights belonging
\nto the minorities and religious groups are also excluded. The article purports to save laws
\nwhich a State may make towards securing the principles specified in Clauses (b) or (c) of
\nArticle 39 from being challenged on the ground that it is inconsistent with, or takes away
\nor abridges any of the rights conferred by Articles 14, 19 or 31. This is the only ground
\non which they cannot be challenged. It will be noticed that the article provides that if the
\nlaw contains a declaration that it is for giving effect to such policy, it shall not be called
\nin question in any court on the ground that it does not give effect to such policy. In other
\nwords, once a declaration is given, no court can question the law on the ground that it has
\nnothing to do with giving effect to the policy; whether it gives effect to some other policy
\nis irrelevant. Further, a law may contain some provisions dealing with the principles
\nspecified in Clauses (b) or (c) of Article 39 while other sections may have nothing to do
\nwith it, yet on the language it denies any court power or jurisdiction to go into this
\nquestion.\n<\/p>\n
450. In the face of the declaration, this Court would be unable to test the validity of
\nincidental provisions which do not constitute an essential and integral part of the policy
\ndirected to give effect to Article 39(b) and Article 39(c).\n<\/p>\n
451. In Akadasi Padhan v. State of Orissa<\/a> [1963] Supp. 2 S.C.R. 691-707
\nGajendragadkar, C.J., speaking for the Court, observed:\n<\/p>\n
“A law relating to” a State monopoly cannot, in the context, include all the
\nprovisions contained in the said law whether they have direct relation with
\nthe creation of the monopoly or not. In our opinion, the said expression
\nshould be construed to mean the law relating to the monopoly in its
\nabsolutely essential features. If a law is passed creating a State monopoly,
\nthe Court should enquire what are the provisions of the said law which are
\nbasically and essentially necessary for creating the State monopoly. It is
\nonly those essential and basic provisions which are protected by the latter
\npart of Article 19(6). If there are other provisions made by the Act which
\nare subsidiary, incidental or helpful to the operation of the monopoly, they
\ndo not fall under the said part and their validity must be judged under the
\nfirst part of Article 19(6).\n<\/p>\n
452. These observations were quoted with approval by Shah, J., speaking on behalf of a
\nlarger Bench in R.C. Cooper v. Union of India<\/a> [1970] 3 S.C.R. 530-582. After quoting
\nthe observations, Shah, J., observed:\n<\/p>\n
This was reiterated in Rashbihar Panda and Ors. v. The State of Orissa<\/a>
\n[1969] 3 S.C.R. 374. Vrajlal Manilal & Co. and Anr. v. The State of
\nMadhya Pradesh and Ors.<\/a> [1970] 1 S.C.R. 400 and Municipal Committee,
\nAmritsar and Ors. v. State of Punjab<\/a> [1969] 3 S.C.R. 447.\n<\/p>\n
453. While dealing with the validity of the Bombay Prohibition Act (XXV of 1949), this
\nCourt in State of Bombay v. F.N. Balsara<\/a> [1951] S.C.R. 682 struck down two provisions
\non the ground that they conflicted with the fundamental rights of freedom of speech and
\nexpression guaranteed by Article 19(1)(a) of the Constitution. These provisions were
\nSections 23(a) and 24(1)(a), which read:\n<\/p>\n
23. No person shall-\n<\/p>\n
(a) commend, solicit the use of, offer any intoxicant or
\nhemp, or….\n<\/p>\n
24(1). No person shall print or publish in any newspaper news-sheet,
\nbook, leaflet, booklet or any other single or periodical publication or
\notherwise display or distribute any advertisement or other matter-\n<\/p>\n
(a) which commends, solicits the use of, or offers any
\nintoxicant or hemp….\n<\/p>\n
454. Section 23(b) was also held to be void. It was held that “the words “incite” and
\n“encourage” are wide enough to include incitement and encouragement by words and
\nspeeches and also by acts and the words used in the section are so wide and vague that
\nthe clause must be held to be void in its entirety.\n<\/p>\n
455. Section 23(b) reads as follows:\n<\/p>\n
23. No person shall-\n<\/p>\n
(a) …\n<\/p>\n
(b) incite or encourage any member of the public or any
\nclass of individuals of the public generally to commit any
\nact, which frustrates or defeats the provisions of this Act, or
\nany rule, regulation or order made thereunder, or….\n<\/p>\n
456. Mr. Palkhivala contends, and I think rightly, that this Court would not be able to
\nstrike these provisions down if a similar declaration were inserted now in the Bombay
\nProhibition Act that this law is for giving-effect to Article 47, which prescribes the duty
\nof the State to bring about prohibition of the consumption of intoxicating drinks. If a
\nsimilar provision were inserted in the impugned Kerala Acts making it a criminal offence
\nto criticise, frustrate or defeat the policy of the Acts, the provisions would be protected
\nunder Article 31(C).\n<\/p>\n
457. The only so-called protection which is given is that if the legislature of a State
\npasses such a law it must receive the President’s assent. It is urged before us that it is no
\nprotection at all because the President would give his assent on the advice of the Union
\nCabinet.\n<\/p>\n
458. Article 31C in its nature differs from Article 31A, which was inserted by the Fourth
\nAmendment.\n<\/p>\n
31A. (1) Notwithstanding anything contained in Article 13, no law
\nproviding for-\n<\/p>\n
(a) the acquisition by the State of any estate or of any rights
\ntherein or the extinguishment or modification of any such
\nrights, or\n<\/p>\n
(b) the taking over of the management of any property by
\nthe State for a limited period either in the public interest or
\nin order to secure the proper management of the property,
\nor\n<\/p>\n
(c) the amalgamation of two or more corporations either in
\nthe public interest or in order to secure the proper
\nmanagement of any of the corporations, or\n<\/p>\n
(d) the extinguishment or modification of any rights of
\nmanaging agents, secretaries and treasurers, managing
\ndirectors, directors or managers of corporations, or of any
\nvoting rights of shareholders thereof, or\n<\/p>\n
(e) the extinguishment or modification of any rights
\naccruing by virtue of any agreement, lease or licence for
\nthe purpose of searching for, or winning, any mineral or
\nmineral oil, or the premature termination or cancellation of
\nany such agreement, lease or license,
\nshall be deemed to be void on the ground that it is
\ninconsistent with, or takes away or abridges any of the
\nrights conferred by Article 14, Article 19 or Article 31 :\n<\/p>\n
Provided that….\n<\/p>\n
459. In Article 31A the subject-matter of the legislation is clearly provided, namely, the
\nacquisition by the State of any estate or any rights therein, (Article 31A(a)). Similarly, the
\nsubject-matter of legislation is specifically provided in Clauses (b), (c) and (d) of Article
\n31A. But in Article 31C the sky is the limit because it leaves to each State to adopt
\nmeasures towards securing the principles specified in Clauses (b) and (c) of Article 39.
\nThe wording of Articles 39(b) and 39(c) is very wide. The expression “economic system”
\nin Article 39(c) may well include professional and other services. According to
\nEncylopedia Americana (1970 Ed. Vol. 9p. p. 600) “economic systems are forms of
\nsocial organization for producing goods and services and determining how they will be
\ndistributed. It would be difficult to resist the contention of the State that each provision in
\nthe law has been taken for the purpose of giving effect to the policy of the State.\n<\/p>\n
460. It was suggested that if the latter part of Article 31C, dealing with declaration, is
\nregarded as unConstitutional, the Court will be entitled to go into the question whether
\nthere is any nexus between the impugned law and Article 39(b) and Article 39(c). I find it
\ndifficult to appreciate this submission. There may be no statement of State policy in a
\nlaw. Even if there is a statement of policy in the Preamble, it would not control the
\nsubstantive provisions, if unambiguous. But assuming that there is a clear statement it
\nwould be for the State legislature to decide whether a provision would help to secure the
\nobjects.\n<\/p>\n
461. The Courts will be unable to separate necessarily incidental provisions and merely
\nincidental. Further, as I have pointed out above, this question is not justiciable if the law
\ncontains a declaration that it is for giving effect to such a policy. According to Mr.
\nPalkhivala, Article 31C has four features of totalitarianism : (1) There is no equality. The
\nruling party could favour its own party members, (2) There need not be any freedom of
\nspeech, (3) There need be no personal liberty which is covered by Article 19(1)(b), and
\n(4) The property will be at the mercy of the State. In other words, confiscation of
\nproperty of an individual would be permissible.\n<\/p>\n
462. It seems to me that in effect, Article 31C enables States to adopt any policy they like
\nand abrogate Articles 14, 19 and 31 of the Constitution at will. In other words, it enables
\nthe State to amend the Constitution. Article 14, for instance, would be limited by the
\nState according to its policy and not the policy of the amending body, i.e., the Parliament,
\nand so would be Articles 19 and 31, while these fundamental rights remain in the
\nConstitution. It was urged that when an Act of Parliament or a State Legislature delegates
\na legislative power within permissible limits the delegated legislation derives its authority
\nfrom the Act of Parliament. It was suggested that similarly the State law would derive
\nauthority from Article 31C. It is true that the State law would derive authority from
\nArticle 31C but the difference between delegated legislation and the State law made
\nunder Article 31C is this : It is permissible, within limits, for a legislature to delegate its
\nfunctions, and for the delegate to make law. Further the delegated legislation would be
\nliable to be challenged on the ground of violation of fundamental rights regardless of the
\nvalidity of the State Act. But a State legislature cannot be authorised to amend the
\nConstitution and the State law deriving authority from Article 31C cannot be challenged
\non the ground that it infringes Articles 14, 19 and 31.\n<\/p>\n
463. It will be recalled that Article 19 deals not only With the right to property but it
\nguarantees various rights : freedom of speech and expression; right to assemble peaceably
\nand without arms; right to form associations or unions; right to move freely throughout
\nthe territory of India; right to practice any profession or to carry on any occupation, trade
\nor business. I am unable to appreciate the reason for giving such powers to the State
\nlegislature to abrogate the above freedoms. In effect, Parliament is enabling State
\nlegislatures to declare that “a citizen shall not be free; he will have no freedom of speech
\nto criticise the policy of the State; he shall not assemble to protest against the policy; he
\nshall be confined to a town or a district and shall not move outside his State; a resident of
\nanother state shall not enter the State which is legislating; he shall not, if a lawyer, defend
\npeople who have violated the law. It could indeed enable legislatures to apply one law to
\npolitical opponents of the ruling party and leave members of the party outside the
\npurview of the law. In short, it enables a State Legislature to set up complete
\ntotalitarianism in the State. It seems that its implications were not realised by Parliament
\nthough Mr. Palkhiwala submits that every implication was deliberately intended.\n<\/p>\n
464. I have no doubt that the State legislatures and Parliament in its ordinary legislative
\ncapacity will not exercise this new power conferred on them fully but I am concerned
\nwith the amplitude of the power conferred by Article 31C and not with what the
\nlegislatures may or may not do under the powers so conferred.\n<\/p>\n
465. I have already held that Parliament cannot under Article 368 abrogate fundamental
\nrights. Parliament equally cannot enable the legislatures to abrogate them. This provision
\nthus enables legislatures to abrogate fundamental rights and therefore must be declared
\nunConstitutional.\n<\/p>\n
466. It has been urged before us that Section 3 of the 25th amendment Act is void as it in
\neffect delegates the constituent amending power to State legislatures. The question arises
\nwhether Article 368 enables Parliament to delegate its function of amending the
\nConstitution to another body. It seems to me clear that it does not. It would be noted that
\nArticle 368 of this Constitution itself provides that amendment may be initiated only by
\nthe introduction of a bill for the purpose in either House of Parliament. In other words,
\nArticle 368 does not contemplate any other mode of amendment by Parliament and it
\ndoes not equally contemplate that Parliament could set up another body to amend the
\nConstitution.\n<\/p>\n
467. It is well-settled in India that Parliament cannot delegate its essential legislative
\nfunctions.\n<\/p>\n
See: (1) Per Mukherjea J. in re The Delhi Laws Act, 1912. (1951) SCR
\n747 at 984-5.\n<\/p>\n
(2) Raj Narain Singh v. Patna Administration 1955 (1) SCR 290.\n<\/p>\n
(3) Hari Shankar Bagla v. State of Madhya Pradesh<\/a> 1955 (1) SCR 380.
\n(4) Vasantlal Sanjanwala v. State of Bombay<\/a> 1961 (1) SCR 341.\n<\/p>\n
(5) The Municipal Corporation of Delhi v. Birla Cotton Mills<\/a> 1968 (3)
\nSCR 251.\n<\/p>\n
(6) Garewal v. State of Punjab<\/a> 1959 Supp. (1) SCR 792.\n<\/p>\n
468. It is also well-settled in countries, where the courts have taken a position different
\nthan in Indian courts, that a legislature cannot create another legislative body. Reference
\nmay be made here to In re Initiative and Referendum Act (1919) A.C. 935 and Attorney-
\nGeneral of Nova Scoitia v. Attorney-General of Canada (1951) S.C.R. Canada 31. I have
\ndiscussed the latter case while dealing with the question of implied limitation. Initiative
\nand Referendum case is strongly relied on by Mr. Palkhivala to establish that an
\namending power cannot be delegated. In this case the Judicial Committee of the Privy
\nCouncil was concerned with the interpretation of Section 92, head 1 of the British North
\nAmerica Act, 1867, which empowers a Provincial Legislature to amend the Constitution
\nof the Province, “excepting as regards the office of the Lieutenant-Governor”. The
\nLegislative Assembly of Manitoba enacted the Initiative and Referendum Act, which in
\neffect would compel the Lieutenant Governor to submit a proposed law to a body of
\nvoters totally distinct from the legislature of which he is the Constitutional head, and
\nwould render him powerless to prevent it from becoming an actual law if approved by
\nthese voters.\n<\/p>\n
469. The judgment of the Court of Appeal is reported in 27 Man. L.R. 1, which report is
\nnot available to me, but the summary of the reasons of the learned Judges of the Court of
\nAppeal are given at page 936 of (1919) A.C. as follows:\n<\/p>\n
The British North America Act, 1867, declared that for each Province
\nthere should be a Legislature, in which Section 92 vested the power of
\nlaw-making; the legislature could not confer that power upon a body other
\nthan itself. The procedure proposed by the Act in question would not be an
\nAct of a Legislature within Section 92, would be wholly opposed to the
\nspirit and principles of the Canadian Constitution, and would override the
\nLegislature thereby provided. Further, the power to amend the
\nConstitution given by Section 92, head 1, expressly expected “the office of
\nthe Lieutenant-Governor”. Section 7 of the proposed Act, while preserving
\nthe power of veto and disallowance by the Governor-General provided for
\nby Sections 55 and 90 of the Act of 1867, dispensed with the assent of the
\nLieutenant-Governor provided for by Sections 56 and 90 of that Act; even
\nif Section 7 was not intended to dispense with that assent, Section 11
\nclearly did so. The proposed Act also violated the provisions of Section 54
\n(inconjunction with Section 90) as to money bills.\n<\/p>\n
470. Their Lordships of the Judicial Committee held at page 944:
\nTheir Lordships are of opinion that the language of the Act cannot be
\nconstrued otherwise than as intended seriously to affect the position of the
\nLieutenant-Governor as an integral part of the Legislature, and to detract
\nfrom rights which are important in the legal theory of that position. For if
\nthe Act is valid it compels him to submit a proposed law to a body of
\nvoters totally distinct from the Legislature of which he is the
\nConstitutional head, and renders him powerless to prevent it from
\nbecoming an actual law if approved by a majority of these voters. It was
\nargued that the words already referred to, which appear in Section 7,
\npreserve his powers of veto and disallowance. Their Lordships are unable
\nto assent to this contention. The only powers preserved are those which
\nrelate to Acts of the Legislative Assembly, as distinguished from Bills,
\nand the powers of veto and disallowance referred to can only be those of
\nthe Governor-General under Section 90 of the Act of 1867, and not the
\npowers of the Lieutenant-Governor, which are at an end when a Bill has
\nbecome an Act. Section 11 of the Initiative and Referendum Act is not less
\ndifficult to reconcile with the rights of the Lieutenant-Governor. It
\nprovides that when a proposal for repeal of some law has been approved
\nby the majority of the electors voting, that law is automatically to be
\ndeemed repealed at the end of thirty days after the clerk of the Executive
\nCouncil shall have published in the Manitoba Gazette a statement of the
\nresult of the vote. Thus the Lieutenant-Governor appears to be wholly
\nexcluded from the new legislative authority.\n<\/p>\n
471. I have set out this passage in extenso because this deals with one part of the
\nreasoning given by the Court of Appeal. Regarding the Other part i.e. whether the
\nLegislature could confer that power on a body other than itself, the Judicial Committee
\nobserved at page 945:\n<\/p>\n
Having said so much, their Lordships, following their usual practice of not
\ndeciding more than is strictly necessary, will not deal finally with another
\ndifficulty which those who contend for the validity of this Act have to
\nmeet. But they think it right, as the point has been raised in the Court
\nbelow, to advert to it. Section 92 of the Act of 1867 entrusts the legislative
\npower in a Province to its legislature, and to that Legislature only. No
\ndoubt a body, with power of legislation on the subjects entrusted to it so
\nample as that enjoyed by a Provincial Legislature in Canada, could, while
\npreserving its own capacity intact, seek the assistance of subordinate
\nagencies, as had been done when in Hodge v. The Queen 9 A.C. 117 the
\nLegislature of Ontario was held entitled to entrust to a Board of
\nCommissioners authority to enact regulations relating to taverns; but it
\ndoes not follow that it can create and endow with its own capacity a new
\nlegislative power not created by the Act to which it owes its own existence.
\nTheir Lordships do no more than draw attention to the gravity of the
\nConstitutional questions which thus arise.\n<\/p>\n
(Emphasis supplied)\n<\/p>\n
472. It is interesting to note that this position was indicated by Sir A. Hobhouse, a
\nmember of the Judicial Committee, while Hodge v. The Queen 9 A.C. 117 was being
\nargued. This appears from Lefroy on Canadian Federal System at p. 387:
\nUpon the argument before the Privy Council in Hodge v. The Queen, Mr.
\nHorace Davey contended that under this sub-section, (Section 92(1) of
\nCanadian Constitution) provincial legislatures “could do what Lord
\nSelborne, no doubt correctly, said in The Queen v. Burah [1878] 3 A.C.
\n905 the Indian legislature could not do,-abdicate their whole legislative
\nfunctions in favour of another body.” But, as Sir A. Hobhouse remarked,
\nthis they cannot do. “They remain invested with a responsibility.
\nEverything is done by them, and such officers as they create and give
\ndiscretion to.\n<\/p>\n
473. The learned Attorney-General submitted that this case decided only that in the
\nabsence of clear and unmistakable language in Section 92, head 1, the power which the
\nCrown possesses through a person directly representing the Crown cannot be abrogated.
\nIt is true that this was the actual decision but the subsequent observations, which I have
\nset out above, clearly show that the Judicial Committee was prepared to imply limitations
\nas the Court of Appeal had done on the amending power conferred on the Provincial
\nLegislature by Section 92, head 1.\n<\/p>\n
474. The Attorney General said that the scope of this decision was referred to in Nadan v.
\nThe King (1926) A.C. 482 where at page 495 reference is made to this case in the
\nfollowing words:\n<\/p>\n
In the case of In re Initiative and Referendum Act Lord Haldane, in
\ndeclaring the judgment of the Board referred to “the impropriety in the
\nabsence of clear and unmistakable language of construing Section 92 as
\npermitting the abrogation of any power which the Crown possesses
\nthrough a person directly representing it”; an observation which applies
\nwith equal force to Section 91 of the Act of 1867 and to the abrogation of
\na power which remains vested in the Grown itself.\n<\/p>\n
475. But this passage again dealt with the actual point decided and not the obiter dicta.\n<\/p>\n
476. The first para of the head note in Nadan’s (1926) A.C. 482 case gives in brief the
\nactual decision of the Privy Council as follows:\n<\/p>\n
Section 1025 of the Criminal Code of Canada, if and so far as it is
\nintended to prevent the King in Council from giving effective leave to
\nappeal against an order of a Canadian Court in a criminal case, is invalid.
\nThe legislative authority of the Parliament of Canada as to criminal law
\nand procedure, under Section 91 of the British North America Act, 1867,
\nis confined to action to be taken in Canada. Further, an enactment
\nannulling the royal prerogative to grant special leave to appeal would be
\ninconsistent with the Judicial Committee Acts 1833 and 1844, and
\ntherefore would be invalid under Section 2 of the Colonial Laws Validity
\nAct, 1865. The royal assent to the Criminal Code could not give validity to
\nan enactment which was void by imperial statute; exclusion of the
\nprerogative could be accomplished only by an Imperial statute.\n<\/p>\n
477. For the aforesaid reasons I am unable to agree with the Attorney General and I hold
\nthat the Initiative and Referendum Act case shows that limitations can be implied in an
\namending power. Mr. Seervai seeks to distinguish this case on another ground. According
\nto him, these observations were obiter dicta, but even if they are treated as considered
\nobiter dicta, they add nothing to the principles governing delegated legislation, for this
\npassage merely repeats what had been laid down as far back as 1878 in The Queen v.
\nBurah 5 I.A. 178 : (1878) 3 A.C. 889; 904 : 905, where the Privy Council in a classical
\npassage, observed:\n<\/p>\n
But their Lordships are of opinion that the doctrine of the majority of the
\nCourt is erroneous, and that it rests upon a mistaken view of the powers of
\nthe Indian Legislature, and indeed of the nature and principles of
\nlegislation. The Indian Legislature has powers expressly limited by the
\nAct of the Imperial Parliament which created it, and it can, of course, do
\nnothing beyond the limits which circumscribe these powers. But when
\nacting within those limits, it is not in any sense an agent or delegate of the
\nImperial Parliament, but has, and was intended to have, plenary powers of
\nlegislation, as large, and of the same nature, as those of Parliament itself.
\nThe established Courts of Justice, when a question arises whether the
\nprescribed limits have been exceeded must of necessity determine that
\nquestion; and the only way in which they can properly do so, is by looking
\nto the terms of the instrument by which, affirmatively, the legislative
\npowers were created, and by which, negatively, they are restricted. If what
\nhas been done is legislation, within the general scope of the affirmative
\nwords which give the power, and if it violates no express condition or
\nrestriction by which that power is limited (in which category would of
\ncourse be included any Act of the Imperial Parliament at variance with it),
\nit is not for any Court of Justice to inquire further or to enlarge
\nconstructively those conditions and restrictions.\n<\/p>\n
Mr. Seervai further says that having laid down the law as set out above,
\nthe Privy Council added:\n<\/p>\n
Their Lordships agree that the Governor-General in Council could not, by
\nany form of enactment; create in India, and arm with general legislative
\nauthority, a new legislative power, not created or authorised by the
\nCouncil’s Act.\n<\/p>\n
478. We are unable to agree with him that the obiter dicta of the Judicial Committee deals
\nwith the same subject as Burah’s 5 I.A. 178 case. Burah’s’ case was not concerned with
\nthe power to amend the Constitution but was concerned only with legislation enacted by
\nthe Indian Legislature. This clearly appears from the passage just cited from Lefroy. The
\nGovernor-General in Council had no power to amend the Government of India Act, under
\nwhich it functioned.\n<\/p>\n
479. Reference was also made to the observations of one of us in Delhi Municipality v.
\nB.C. & W. Mills A.I.R. (1968) S.C. 1232 at p. 1266 where I had observed as follows:
\nApart from authority, in my view Parliament has full power to delegate
\nlegislative authority to subordinate bodies. This power flows, in my
\njudgment, from Article 246 of the Constitution. The word “exclusive”
\nmeans exclusive of any other legislation and not exclusive of any
\nsubordinate body. There is, however, one restriction in this respect and
\nthat is also contained in Article 246. Parliament must pass a law in respect
\nof an item or items of the relevant list. Negatively this means that
\nParliament cannot abdicate its functions.\n<\/p>\n
480. Reference was also invited to another passage where I had observed:
\nThe case of 1919 AC 935 provides an instance of abdication of functions
\nby a legislature. No inference can be drawn from this case that delegations
\nof the type with which we are concerned amount to abdication of
\nfunctions.\n<\/p>\n
481. It is clear these observations are contrary to many decisions of this Court and, as I
\nsaid, I made these observations apart from authority.\n<\/p>\n
482. But neither this Court nor the Judicial Committee in Queen v. Burah 5 I.A. 178 :
\n(1878) 3 A.C. 889 were concerned with an amending power, and the importance of the
\nobiter observations of the Privy Council lies in the fact that even in exercise of its
\namending power the legislature could not “create and endow with its own capacity a new
\nlegislative power not created by the Act to which it owes its own existence,” and the fact
\nthat in Canada the doctrine of limited delegated legislation does not prevail as it does in
\nIndia.\n<\/p>\n
483. It has been urged before us that in fact there has been no delegation of the amending
\npowers to the State legislatures by Article 31C and what has been done is that Article
\n31C lifts the ban imposed by Part III from certain laws. I am unable to appreciate this
\nidea of the lifting of the ban. Fundamental rights remain as part of the Constitution and
\non the face of them they guarantee to every citizen these fundamental rights. But as soon
\nas the State legislates under Article 31C and the law abrogates or takes away these
\nConstitutional rights, these fundamental rights cease to have any effect. The amendment
\nis then made not by Parliament as the extent of the amendment is not known till the State
\nlegislates. It is when the State legislates that the extent of the abrogation or abridgement
\nof the fundamental rights becomes clear. To all intents and purposes it seems to me that it
\nis State legislation that effects an amendment of the Constitution. If it be assumed that
\nArticle 31C does not enable the States to amend the Constitution then Article 31C would
\nbe ineffective because the law which in effect abridges or takes away the fundamental
\nrights would have been passed not in the form required by Article 368, i.e. by 2\/3rd of the
\nmajority of Parliament but by another body which is not recognised in Article 368 and
\nwould be void on that ground.\n<\/p>\n
484. The learned Solicitor General, relying on Mohamed Samsudeen Kariapper v. S.S.
\nWijesinha (1968) A.C. 717; 743 urged that there can be implied amendment of the
\nConstitution and Article 31C may be read as an implied amendment of Article 368. What
\nthe Judicial Committee decided in this case was that a bill having received a certificate in
\nthe hands of the Speaker that the number of votes cast in favour thereof in the House of
\nRepresentatives amounted to no lass than two-thirds of the whole number of Members of
\nthe House in effect amounted to a bill for the amendment or repeal of any of the
\nprovisions of the order, and the words “amendment or repeal” included implied
\namendment.\n<\/p>\n
485. Menzies, J., speaking for the Judicial Committee, observed:
\nApart from the proviso to Sub-section (4) therefore the board has found no
\nreason for not construing the words “amend or repeal” in the earlier part of
\nSection 29(4) as extending to amendment or repeal by inconsistent law….
\nA bill which, if it becomes an Act, does amend or repeal some provision
\nof the order is a bill “for the amendment or repeal of a provision of the
\norder.\n<\/p>\n
Later, he observed:\n<\/p>\n
The bill which became the Act was a bill for an amendment of Section 24
\nof the Constitution simply because its terms were inconsistent with that
\nsection. It is the operation that the bill will have upon becoming law which
\ngives it its Constitutional character, not any particular label which may be
\ngiven to it. A bill described as one for the amendment of the Constitution,
\nwhich contained no operative provision to amend the Constitution would
\nnot require the prescribed formalities to become a valid law whereas a bill
\nwhich upon its passing into law would, if valid, alter the Constitution
\nwould not be valid without compliance with those formalities.\n<\/p>\n
486. We are not here concerned with the question which was raised before the Judicial
\nCommittee because no one has denied that Article 31C is an amendment of the
\nConstitution. The only question we are concerned with is whether Article 31C can be
\nread to be an implied amendment of Article 368, and if so read, is it valid, i.e., within the
\npowers of Parliament to amend Article 368 itself.\n<\/p>\n
487. It seems to me that Article 31C cannot be read to be an implied amendment of
\nArticle 368 because it opens with the words “notwithstanding anything contained in
\nArticle 13” and Article 31C does not say that “notwithstanding anything contained in
\nArticle 368.” What Article 31C does is that it empowers legislatures, subject to the
\ncondition laid down in Article 31C itself, to take away or abridge rights conferred by
\nArticles 14, 19 and 31. At any rate, if it is deemed to be an amendment of Article 368, it
\nis beyond the powers conferred by Article 368 itself. Article 368 does not enable
\nParliament to constitute another legislature to amend the Constitution, in its exercise of
\nthe power to amend Article 368 itself.\n<\/p>\n
488. For the aforesaid reasons I hold that Section 3 of the Constitution (Twenty-fifth
\nAmendment) Act 1971 is void as it delegates power to legislatures to amend the
\nConstitution.\n<\/p>\n
PART-VII.-Twenty-Ninth Amendment
\nThe Constitution (Twenty-Ninth Amendment) reads:\n<\/p>\n
2. Amendment of Ninth Schedule
\nIn the Ninth Schedule to the Constitution after entry 64 and before the
\nExplanation, the following entries shall be inserted, namely:\n<\/p>\n
65. The Kerala Land Reforms (Amendment) Act, 1969
\n(Kerala Act 35 of 1969).\n<\/p>\n
66. The Kerala Land Reforms (Amendment) Act, 1971
\n(Kerala Act 25 of 1971).\n<\/p>\n
489. The effect of the insertion of the two Kerala Acts in the Ninth Schedule is that the
\nprovisions of Article 31-B get attracted. Article 31-B which was inserted by Section 5 of
\nthe Constitution (First Amendment) Act, 1951, reads:\n<\/p>\n
Insertion of new Article 31B.\n<\/p>\n
490. After Article 31A of the Constitution as inserted by Section 4, the following article
\nshall be inserted, namaly:\n<\/p>\n
31B. Validation of certain Acts and Regulations
\nWithout prejudice to the generality of the provisions contained in Article
\n31A, none of the Acts and Regulations specified in the Ninth Schedule nor
\nany of the provisions thereof shall be deemed to be void, or ever to have
\nbecome void, on the ground that such Act, Regulation or provision is
\ninconsistent with, or takes away or abridges any of the rights conferred by,
\nany provisions of this Part, and notwithstanding any judgment, decree or
\norder of any court or tribunal to the contrary, each of the said Acts and
\nRegulations shall, subject to the power of any competent Legislature to
\nrepeal or amend it continue in force.\n<\/p>\n
491. The First Amendment had also inserted Article 3-A and the Niath Schedule
\nincluding 13 State enactments dealing with agrarian, reforms.\n<\/p>\n
492. Before dealing with the points debated before us, it is necessary to mention that a
\nnew Article 31-A was substituted by the Constitution (Fourth Amendment) Act, 1955, for
\nthe original article with retrospective effect. The new article contained original Article
\n31A(1) as Clause (a) and added Clauses (b) to (e) and also changed the nature of the
\nprotective umbrella. The relevant part of Article 31A(1) as substituted has already been
\nset out.\n<\/p>\n
493. Under Article 31-A as inserted by the First Amendment a law was protected even if
\nit was inconsistent with or took away or abridged any rights conferred by any provisions
\nof Part III. Under the Fourth Amendment the protective umbrella extended to only Article
\n14, Article 19 or Article 31. The Seventeenth Amendment further amended the definition
\nof the word “estate” in Article 31A. It also added seven Acts to the Ninth Schedule.\n<\/p>\n
494. The argument of Mr. Palkhivala, on this part of the case, was two fold. First, he
\ncontended, that Article 31B, as originally inserted, had intimate relations with agrarian
\nreforms, because at that stage Article 31-A dealt only with agrarian reforms. The words
\n“without prejudice to the generality of the provisions contained in Article 31A”,
\naccording to him, pointed to this connection. He, in effect, said that Article 31-B having
\nthis original meaning did not change the meaning or its scope when a new Article 31-A
\ncontaining Clauses (b) to (e) were included.\n<\/p>\n
495. I am unable to accede to these contentions. The ambit of Article 31-B has been
\ndetermined by this Court in three decisions. In State of Bihar v. Maharajadhiraja Sir
\nKameshwar Singh<\/a> (1952) S.C.R. 889; 914-15, Patnjali Sastri, C.J., rejected the limited
\nmeaning suggested above by Somayya, and observed:\n<\/p>\n
“There is nothing in Article 31-B to indicate that the specific mention of
\ncertain statutes was only intended to illustrate the application of the
\ngeneral words of Article 31-A. The opening words of Article 31-B are
\nonly intended to make clear that Article 31-A should not be restricted in
\nits application by reason of anything contained in Article 31-B and are in
\nno way calculated to restrict the application of the latter article or of the
\nenactments referred to therein to acquisition of “estates.”\n<\/p>\n
496. He held that the decision in Sibnath Banerji’s (1945) F.C.R. 195 case afforded no
\nuseful analogy.\n<\/p>\n
497. In Visweshwar Rao v. State of Madhya Pradesh<\/a> (1952) S.C.R. 1020-1037. Mahajan,
\nJ., repelled the argument in these words:\n<\/p>\n
In my opinion the observations in Sibnath Banerji’s case far from
\nsupporting the contention raised negatives it. Article 31-B specifically
\nvalidates certain acts mentioned in the Schedule despite the provisions of
\nArticle 31-A and is not illustrative of Article 31-A. but stands independent
\nof it.\n<\/p>\n
498. In H.B. Jeejeebhoy v. Assistant Collector, Thana<\/a> (1965) 1 S.C.R. 636-648, to which
\ndecision I was a party, Subha Rao, C.J., observed that “Article 31-B is not governed by
\nArticle 31-A and that Article 31-B is a Constitutional device to place the specified
\nstatutes beyond any attack on the ground that they infringe Part III of the Constitution.\n<\/p>\n
499. I may mention that the validity of the device was not questioned before the Court
\nthen.\n<\/p>\n
500. But even though I do not accept the contention that Article 31-B can be limited by
\nwhat is contained in Article 31-A, the question arises whether the Twenty-Ninth
\nAmendment is valid.\n<\/p>\n
501. I have held that Article 368 does not enable Parliament to abrogate or take away
\nfundamental rights. If this is so, it does not enable Parliament to do this by any means,
\nincluding the device of Article 31-B and the Ninth Schedule. This device of Article 31-B
\nand the Ninth Schedule is bad insofar as it protects statutes even if they take away
\nfundamental rights. Therefore, it is necessary to declare that the Twenty-Ninth
\nAmendment is ineffective to protect the impugned Acts if they take away fundamental
\nrights.\n<\/p>\n
502. In this connection I may deal with the argument that the device of Article 31B and
\nthe Ninth Schedule has uptill now been upheld by this Court and it is now too late to
\nimpeach it. But the point now raised before us has never been raised and debated before.
\nAs Lord Atkin observed in Proprietary Articles Trade Association v. Attorney-General
\nfor Canada (1931) A.C. 310; 317.\n<\/p>\n
Their Lordships entertain no doubt that time alone will not validate an Act
\nwhich when challenged is found to be ultra vires; nor will a history of a
\ngradual series of advances till this boundary is finally crossed avail to
\nprotect the ultimate encroachment.\n<\/p>\n
503. If any further authority is needed, I may refer to Attorney-General for Australia v.
\nThe Queen and the Boilermakers’ Society of Australia (1957) A.C. 288; 323. The Judicial
\nCommittee, while considering the questionwhether certain sections of the Conciliation
\nand Arbitration Act, 1904 1952 were ultra vires inasmuch as the Commonwealth Court of
\nConciliation and Arbitration had been invested with the executive powers alongwith the
\njudicial powers, referred to the point why for a quarter of century no litigant had attacked
\nthe validity of this obviously illegitimate union, and observed:
\nWhatever the reason may be, just as there was a patent invalidity in the
\noriginal Act which for a number of years went unchallenged, so far a
\ngreater number of years an invalidity which to their Lordships as to the
\nmajority of the High Court has been convincingly demonstrated, has been
\ndisregarded. Such clear conviction must find expression in the appropriate
\njudgment.\n<\/p>\n
504. We had decided not to deal with the merits of individual cases and accordingly
\nCounsel had not addressed any arguments on the impugned Acts passed by the Kerala
\nState Legislature. It would be for the Constitution Bench to decide whether the impugned
\nActs take away fundamental rights. If they do, they will have to be struck down. If they
\nonly abridge fundamental rights, it would be for the Constitution Bench to determine
\nwhether they are reasonable abridgements essential in the public interest.\n<\/p>\n
505. Broadly speaking, Constitutional amendments hitherto made in, Article 19 and
\nArticle 15 and, the agrarian laws enacted by various States furnish illustrations of
\nreasonable abridgement of fundamental rights in the public interest.\n<\/p>\n
506. It was said during the arguments that one object of Article 31-B was to prevent time-
\nconsuming litigation, which held up implementation of urgent reforms. If a petition is
\nfiled in the High Court or a suit is filed in a subordinate court or a point raised before a
\nmagistrate, challenging the validity of an enactment it takes years before the validity of
\nan enactment is finally determined. Surely, this is not a good reason to deprive persons of
\ntheir fundamental rights. There are other ways available to the Government to expedite
\nthe decision. It may for example propose ordinary legislation to enable parties to
\napproach the Supreme Court for transfer of such cases to the Supreme Court for
\ndetermination of substantial questions of interpretation of the Constitution.
\nPART VIII : Conclusions
\nTo summarise, I hold that:\n<\/p>\n
(a) Golak Nath’s (1967) 2 S.C.R. 762 case declared that a
\nConstitutional amendment would be bad if it infringed
\nArticle 13(2), as this applied not only to ordinary
\nlegislation but also to an amendment of the Constitution.\n<\/p>\n
(b) Golak Nath’s (1967) 2 S.C.R. 762 case did not decide
\nwhether Article 13(2) can be amended under Article 368 or
\ndetermine the exact meaning of the expression “amendment
\nof this Constitution” in Article 368.\n<\/p>\n
(c) The expression “amendment of this Constitution” does
\nnot enable Parliament to abrogate or take away,
\nfundamental rights or to completely change the
\nfundamental features of the Constitution so as to destroy its
\nidentity. Within these limits Parliament can amend every
\narticle.\n<\/p>\n
(d) The Constitution (Twenty-fourth Amendment) Act,
\n1971, as interpreted by me, has been validly enacted.\n<\/p>\n
(e) Article 368 does not enable Parliament in its constituent
\ncapacity to delegate its function of amending the
\nConstitution to another legislature or to itself in its ordinary
\nlegislative capacity.\n<\/p>\n
(f) Section 2 of the Constitution (Twenty-fifth Amendment)
\nAct, 1971, as interpreted by me, is valid.\n<\/p>\n
(g) Section 3 of the Constitution (Twenty-fifth
\nAmendment) Act, 1971 is void as it delegates power to
\nlegislatures to amend the Constitution.\n<\/p>\n
(h) The Constitution (Twenty-Ninth Amendment) Act,
\n1971 is ineffective to protect the impugned Acts if they
\nabrogate or take away fundamental rights. The Constitution
\nBench will decide whether the impugned Acts take away
\nfundamental rights or only abridge them, and in the latter
\ncase whether they effect reasonable abridgements in the
\npublic interest.\n<\/p>\n
507. The Constitution Bench will determine the validity of the Constitution (Twenty-
\nsixth Amendment) Act, 1971 in accordance with this judgment, and the law.\n<\/p>\n
508. The cases are remitted to the Constitution Bench to be decided in accordance with
\nthis judgment, and the law. The parties will bear their own costs.
\nShelat and Grover, JJ.\n<\/p>\n
509. All the six writ petitions involve common questions as to the validity of the 24th,
\n25th and 29th amendments to the Constitution. It is not necessary to set out the facts
\nwhich have already been succinctly stated in the judgment of the learned Chief Justice.\n<\/p>\n
510. It was considered, when the larger bench was constituted, that the decision of the
\nquestions before us would hinge largely on the correctness or otherwise of the decision of
\nthis court in I.C. Golak Nath and Ors. v. State of Punjab and Anr. [1967] 2 S.C.R. 762,
\naccording to which it was held, by majority, that Article 13(2) of the Constitution was
\napplicable to Constitutional amendments made under Article 368 and that for that reason
\nthe fundamental rights in Part III could not be abriged in any manner or taken away. The
\ndecision in Golak Nath has become academic, for even on the assumption that the
\nmajority decision in that case was not correct, the result on the questions now raised
\nbefore us, in our opinion, would just be the same. The issues that have been raised travel
\nfar beyond that decision and the main question to be determined now is the scope, ambit
\nand extent of the amending power conferred by Article 368. On that will depend largely
\nthe decision of the other matters arising out of the 25th and the 29th amendments.\n<\/p>\n
511. The respective positions adopted by learned Counsel for the parties diverge widely
\nand are irreconcilable. On the side of the petitioners, it is maintained inter alia that the
\npower of the amending body (Parliament) under Article 368 is of a limited nature. The
\nConstitution gave the Indian citizens the basic freedoms and a polity or a form of
\ngovernment which were meant to be lasting and permanent. Therefore, the amending
\npower does not extend to alteration or destruction of all or any of the essential features,
\nbasic elements and fundamental principles of the Constitution which power, it is said,
\nvests in the Indian people alone who gave the Constitution to themselves, as is stated in
\nits Preamble.\n<\/p>\n
512. The respondents, on the other hand, claim an unlimited power for the amending
\nbody. It is claimed that it has the full constituent power which a legal sovereign can
\nexercise provided the conditions laid down in Article 368 are satisfied. The content and
\namplitude of the power is so wide that, if it is so desired, all rights contained in Part III
\n(Fundamental Rights) such as freedom of speech and expression; the freedom to form
\nassociations or unions and the various other freedoms guaranteed by Article 19(1) as also
\nthe right to freedom of religion as contained in Articles 25 to 28 together with the
\nprotection of interests of minorities (to mention the most prominent ones) can be
\nabrogated and taken away. Similarly, Article 32 which confers the right to move this
\nCourt, if any fundamental right is breached, can be repealed or abrogated. The directive
\nprinciples in Part IV can be altered drastically or even abrogated. It is claimed that
\ndemocracy can be replaced by any other form of government which may be wholly
\nundemocratic, the federal structure can be replaced by a unitary system by abolishing all
\nthe States and the right of judicial review can be completely taken away. Even the
\nPreamble which declares that the People of India gave to themselves the Constitution, to
\nconstitute India into a Sovereign Democratic Republic for securing the great objectives
\nmentioned therein can be amended; indeed it can be completely repealed. Thus,
\naccording to the respondents, short of total abrogation or repeal of the Constitution, the
\namending body is omnipotent under Article 368 and the Constitution can, at any point of
\ntime, be amended by way of variation, addition or repeal so long as no vacuum is left in
\nthe governance of the country.\n<\/p>\n
513. These petitions which have been argued for a very long time raise momentus issues
\nof great Constitutional importance. Our Constitution is unique, apart from being the
\nlongest in the world. It is meant for the second largest population with diverse people
\nspeaking different languages and professing varying religions. It was chiselled and
\nshaped by great political leaders and legal luminaries, most of whom, had taken an active
\npart in the struggle for freedom from the British yoke and who knew what domination of
\na foreign rule meant in the way of deprivation of basic freedoms and from the point of
\nview of exploitation of the millions of Indians. The Constitution is an organic document
\nwhich must grow and it must take stock of the vast socioeconomic problems, particularly,
\nof improving the lot of the common man consistent with his dignity and the unity of the
\nnation.\n<\/p>\n
514. We may observe at the threshold that we do not propose to examine the matters
\nraised before us on the assumption that Parliament will exercise the power in the way
\nclaimed on behalf of the respondents nor did the latter contend that it will be so done. But
\nwhile interpreting Constitutional provisions it is necessary to determine their width or
\nreach in fact the area of operation of the power, its minimum and maximum dimensions
\ncannot be demarcated or determined without fully examining the rival claims. Unless that
\nis done, the ambit, content, scope and extent of the amending power cannot be properly
\nand correctly decided.\n<\/p>\n
515. For our purposes it is not necessary to go prior to the year 1934. It was in that year
\nthat the Indian National Congress made the demand for a Constituent Assembly as part of
\nits policy. This demand was repeated in the Central Legislative Assembly in 1937 by the
\nrepresetatives of the Congress. By what is known as the Simla Conference 1945 the
\nCongress repeated its stand that India could only accept the Constitution drawn by the
\npeople. After the end of World War II the demand was put forward very strongly by the
\nIndian leaders including Mahatma Gandhi. Sir Stratford Cripps representing Britain had
\nalso accepted the idea that an elected body of Indians should frame the Indian
\nConstitution.(The facts have been taken mainly from the Indian Constitution, Cornerstone
\nof a Nation, by Granville Austin). In September 1945 the newly elected British Labour
\nGovernment announced that it favoured the creation of a constituent body in India.
\nElections were to be held so that the newly elected provincial legislatures could act as
\nelectoral bodies for the Constituent Assembly. A parliamentary delegation was sent to
\nIndia in January 1946 and this was followed by what is known as the Cabinet Mission.
\nThere were a great deal of difficulties owing to the differences between the approach of
\nthe Indian National Congress and the Muslim League led by Mr. M.A. Jinnah. The
\nCabinet Mission devised a plan which was announced on May 16, 1946. By the end of
\nJune, both the Muslim League and the Congress had accepted it with reservations. The
\nConstituent Assembly was elected between July-August 1946 as a result of the
\nsuggestion contained in the statement of the Cabinet Mission. The Attlee Government’s
\nefforts to effect an agreement between the Congress and the Muslim League having
\nfailed, the partition of the country came as a consequence of the declaration of the British
\nGovernment on June 3, 1947. As a mult of that declaration certain changes took place in
\nthe Constituent Assembly. There was also readjustment of representation of Indian States
\nfrom time to time between December 1946 and November 1949. Many Smaller States
\nmerged into the provinces, many united to from union of States and some came to be
\nadministered as commissioner’s provinces. There was thus a gradual process by which the
\nConstituent Assembly became fully representative of the various communities and
\ninterests, political, intellectual, social and cultural. It was by virtue of Section 8 of the
\nIndian Independence Act 1947 that the Constituent Assembly was vested with the legal
\nauthority to frame a Constitution for India.\n<\/p>\n
516. The first meeting of the Constituent Assembly took place on December 9, 1946
\nwhen the swearing in of members and election of a temporary president to conduct the
\nbusiness until the installation of a permanent head, took place. On December 13, 1946
\nPandit Jawahar Lal Nehru moved the famous “Objectives Resolution” giving an outline,
\naims and objects of the Constitution. This resolution was actually passed on January 22,
\n1947 by all members of the Constituent Assembly (standing) and it declared among other
\nmatters that all power and authority of the sovereign Independent India, its constituent
\nparts and organs of Government are derived from the people. By November 26, 1949 the
\ndeliberations of the Constituent Assembly had concluded and the Constitution had been
\nframed. As recited in the Preamble it was on that date that the people of India in the
\nConstituent Assembly adopted, enacted and gave to themselves “this Constitution” which
\naccording to Article 393 was to be called “The Constitution of India”. In accordance with
\nArticle 394 that Article and the other Articles mentioned therein were to come into force
\nat once but the remaining provisions of the Constitution were to come into force on the
\n26th day of January 1950.\n<\/p>\n
517. Before the scheme of the Constitution is examined in some detail it is necessary to
\ngive the pattern which was followed in framing it. The Constituent Assembly was
\nunfettered by any previous commitment in evolving a Constitutional pattern “suitable to
\nthe genius and requirements of the Indian people as a whole”. The Assembly had before
\nit the experience of the working of the Government of India Act 1935, several features of
\nwhich could be accepted for the new Constitution. Our Constitution borrowed a great
\ndeal from the Constitutions of other countries, e.g. United Kingdom, Canada, Australia,
\nIreland, United States of America and Switzerland. The Constitution being supreme all
\nthe organs and bodies owe their existence to it. None can claim superiority over the other
\nand each of them has to function within the four-corners of the Constitutional provisions.
\nThe Preamble embodies the great purposes, objectives and the policy underlying its
\nprovisions apart from the basic character of the State which was to come into existence
\ni.e. a Sovereign Democratic Republic. Parts III and IV which embody the fundamental
\nrights and directive principles of state policy have been described as the conscience of the
\nConstitution(The Indian Constitution by Granville Austin p. 50) The legislative power
\ndistributed between the Union Parliament and the State Legislatures cannot be so
\nexercised as take away or abridge the fundamental rights contained in Part III. Powers of
\nthe Union and the States are further curtailed by conferring the right to enforce
\nfundamental rights contained in Part III by moving the Supreme Court for a suitable relief
\nSee generally, Kania C.J. in A.K. Gopalan v. The State [1950] S.C.R. 88 at pp. 96-97,
\nArticle 32 itself has been constituted a fundamental right. Part IV containing the directive
\nprinciples of State policy was inspired largely by similar provisions in the Constitution of
\nthe Eire Republic (1937). This Part, according to B.N. Rao; is like an Instrument of
\nInstructions from the ultimate sovereign, namely, the people of India (B.N. Rao, India’s
\nConstitution in the Making p. 393). The Constitution has all the essential elements of a
\nfederal structure as was the case in the Government of India Act 1935, the essence of
\nfederalism being the distribution of powers between the federation or the Union and the
\nStates or, the provinces. All the legislatures have plenary powers but these are controlled
\nby the basic concepts of the Constitution itself and they function within the limits laid
\ndown in it Per Gajendragadkar C.J. in Special Reference No. 1 of 1964, [1965] 1 S.C.R.
\n413 at p. 445. All the functionaries, be they legislators, members of the executive or the
\njudiciary take oath of allegiance to the Constitution and derive their authority and
\njurisdiction from its provisions. The Constitution has entrusted to the judicature in this
\ncountry the task of construing the provisions of the Constitution and of safeguarding the
\nfundamental rights Ibid p. 446. It is a written and controlled Constitution. It can be
\namended only to the extent of and in accordance with the provisions contained therein,
\nthe principal provision being Article 368. Although our Constitution is federal in its
\nstructure it provides a system modelled on the British parliamentary system. It its the
\nexecutive that has the main responsibility for formulating the governmental policy by
\n“transmitring it into law” whenever necessary. ‘The executive function comprises both the
\ndetermination of the policy as well as carrying it into execution. This evidently includes
\nthe initiation of legislation, the maintenance of order, the promotion of social and
\neconomic welfare, the direction of foreign policy, in fact the carrying on or supervision of
\nthe general administration of the State.” R.S. Ram Jaway a Kapur and Ors. v. The State of
\nPunjab (1955) 2 S.C.R. 225 at p. 236. With regard to the civil services and the position of
\nthe judiciary the British model has been adopted inasmuch as the appointment of judges
\nboth of the Supreme Court of India and of the High Courts of the States is kept free from
\npolitical controversies. Their independence has been assured. But the doctrine of
\nparliamentary sovereignty as it obtains in England does not prevail here except to the
\nextent provided by the Constitution. The entire scheme of the Constitution is such that it
\nensures the sovereignty and integrity of the country as a Republic and the democratic way
\nof life by parliamentary institutions based on free and fair elections.\n<\/p>\n
518. India is a secular State in which there is no State religion. Special provisions have
\nbeen made in the Constitution guaranteeing the freedom of conscience and free
\nprofession, practice and propagation of religion and the freedom to manage religious
\naffairs as also the protection of interests of minorities. The interests of scheduled castes
\nand the scheduled tribes have received special treatment. The Rule of Law has been
\nensured by providing for judicial review. Adult suffrage, the “acceptance of the fullest
\nimplications of democracy” is one of the most striking features of the Constitution.
\nAccording to K.M. Pannikar, “it may well be claimed that the Constitution is a solemn
\npromise to the people of India that the legislature will do everything possible to renovate
\nand reconstitute the society on new principles (Hindu Society at crossroads (By K.M.
\nPannikar) at pages 63-64).\n<\/p>\n
519. We may now look at the Preamble.\n<\/p>\n
520. It reads:\n<\/p>\n
We, THE PEOPLE OF INDIA, having solemnly resolved to constitute
\nIndia into a SOVEREIGN DEMOCRATIC REPUBLIC and to secure to
\nall its citizens:\n<\/p>\n
JUSTICE, social, economic and political;\n<\/p>\n
LIBERTY of thought, expression, belief, faith and worship;\n<\/p>\n
EQUALITY of status and of opportunity; and to promote among them all;
\nFRATERNITY assuring the dignity of the individual and the unity of the
\nNation;\n<\/p>\n
IN OUR CONSTITUENT ASSEBMLY this twenty-sixth day of
\nNovember 1949, do HEREBY ADOPT, ENACT AND GIVE TO
\nOURSELVES THIS CONSTITUTION.\n<\/p>\n
It may be mentioned that this Preamble and indeed the whole Constitution was drafted in
\nthe light of and directions contained in the “OBJECTIVES RESOLUTION” adopted on
\nJanuary 22, 1947.\n<\/p>\n
521. According to Granville Austin (Cornerstone of a nation (Indian Constitution) by
\nGranville Austin, p. 75), directive principles of State policy set forth the humanitarian
\nsocialist precepts that were the aims of the Indian social revolution. Granville Austin,
\nwhile summing up the interrelationship of fundamental rights and directive principles,
\nsays that it is quite evident that the fundamental rights and the directive principles were
\ndesigned by the members of the Assembly to be the chief instruments in bringing about
\nthe great reforms of the social revolution. He gives the answer to the question whether
\nthey have helped to bring the Indian society closer to the Constitution’s goal of social,
\neconomic and political justice for all in the affirmative (Indian Constitution (Cornerstone
\nof a nation) by Granville Austin p. 113). Das C.J. in Re : Kerala Education Bill 1957
\n[1959] S.C.R. 995 at p. 1020 made the following observations with regard to Parts III and
\nIV:\n<\/p>\n
While our Fundamental Rights are guaranteed by Part III of the
\nConstitution, Part IV of it on the other hand, lays down certain directive
\nprinciples of State policy. The provisions contained in that Part are not
\nenforceable by any court but the principles therein laid down are,
\nnevertheless, fundamental in the governance of the country and it shall be
\nthe duty of the State to apply these principles in making laws. Article 39
\nenjoins the State to direct its policy towards securing, amongst other
\nthings, that the citizens, men and women, equally, have the right to an
\nadequate means of livelihood.\n<\/p>\n
Although in the previous decisions of this Court in State of Madras v. Smt. Champdkam
\nDorairajan [1951] S.C.R. 525 at p. 531 and Mohd. Hanif Qureshi and Ors. v. The State of
\nBihar [1959] S.C.R. 629 it had been held that the directive principles of State policy had
\nto conform to and run subsidiary to the Chapter of Fundamental Rights, the learned Chief
\nJustice was of the view which may be stated in his own words:\n<\/p>\n
Nevertheless in determining the scope and ambit of the fundamental rights
\nrelied on by or on behalf of any person or body the court may not entirely
\nignore these directive principles of State policy laid down in Part IV of the
\nConstitution but should adopt the principle of harmonious construction
\nand should attempt to give effect to both as much as possible.\n<\/p>\n
522. The first question of prime importance involves the validity of the Constitution
\nAmendment Act 1971 (hereinafter called the 24th Amendment). It amended Article 368
\nof the Constitution for the first time. According to the Statement of Objects and Reasons
\nin the Bill relating to the 24th amendment, the result of the judgment of this Court in
\nGolak Nath’s [1967] 2 S.C.R. 762 case has been that Parliament is considered to have no
\npower to take away or curtail any of the fundamental rights guaranteed by Part III of the
\nConstitution even if it becomes necessary to do so for giving effect tot the Directive
\nPrinciples of State Policy and for attainment of the Objectives set out in the Preamble to
\nthe Constitution. It became, therefore, necessary to provide expressly that Parliament has
\nthe power to amend any provision of the Constitution including the provisions contained
\nin Part III.\n<\/p>\n
523. Article 368 is in a separate Part i.e. Part XX. Its marginal note before the 24th
\nAmendment was “Procedure for amendment of the Constitution”. It provided in the
\nsubstantive portion of the Article how the Constitution “shall stand amended” when “An
\nAmendment of this Constitution” was initiated by the introduction of a Bill in either
\nHouse of Parliament. The following conditions had to be satisfied:\n<\/p>\n
(i) The Bill had to be passed in each House by a majority of the total
\nmembership of that House and by a majority of not less than two-thirds of
\nthe members of that House present and voting.\n<\/p>\n
(ii) The Bill had to be presented for the assent of the President and his
\nassent had to be obtained.\n<\/p>\n
Under the proviso, it was necessary to obtain ratification of legislatures of not less than
\none half of the States by Resolutions before presenting the Bill to the President for assent
\nif the amendment sought to make any change in the Articles, Chapters etc. mentioned in
\nClauses (a) to (e) Clause (e) was “the provisions of this Article”.\n<\/p>\n
524. The 24th Amendment made the following changes:\n<\/p>\n
(i) The marginal heading has been substituted by “Power of Parliament to
\namend the Constitution and procedure there-for”.\n<\/p>\n
(ii) Article 368 has been re-numbered as Clause (2).\n<\/p>\n
(iii) Before Clause (2), the following clause has been inserted:
\nNotwithstanding anything in this Constitution, Parliament may in exercise
\nof the Constituent power amend by way of addition, variation or repeal
\nany provision of this Constitution in accordance with the procedure laid
\ndown in this article.\n<\/p>\n
(iv) In Clause (2) as renumbered, for the words “it shall be presented to
\nPresident for his assent and upon such assent being given to the Bill” the
\nwords “it shall be presented to the President who shall give his assent to
\nthe Bill and thereupon” have been substituted.\n<\/p>\n
(v) A new Clause (3) has been inserted, namely:\n<\/p>\n
(3) Nothing in Article 13 shall apply to any amendment
\nmade under this article.\n<\/p>\n
It may be mentioned that by the 24th amendment Clause (4) has been inserted in Article
\n13 itself. It is:\n<\/p>\n
(4) Nothing in this Article shall apply to any amendment of this
\nConstitution made under Article 368.\n<\/p>\n
525. On behalf of the petitioners, Mr. Palkhivala stated that he need not for the purposes
\nof this case dispute the 24th Amendment in so far as it leads to the following results:\n<\/p>\n
(i) The insertion of the express provision in Article 368 that the source of
\nthe amending power is the Article itself.\n<\/p>\n
(ii) The President is bound to give assent to any Bill duly passed under
\nthat Article.\n<\/p>\n
The following three results have, however, been the subject of great deal of argument:\n<\/p>\n
(i) The substitution of the words in Article 368 “amend by way of
\naddition, variation or repeal…” in place of the concept ‘amendment’.\n<\/p>\n
(ii) Making it explicit in the said Article that when Parliament makes a
\nConstitutional amendment under the Article it acts “in exercise of its
\nconstituent power”.\n<\/p>\n
(iii) The express provision in Article 13 and 368 that the bar in the former
\nArticle against abridging or taking away any of the fundamental rights
\nshould not apply to an amendment made under the latter Article.
\nIn the judgment of Chief Justice Subba Rao with whom four learned judges agreed in
\nGolaK Nath’s case the source of the amending power was held to reside in Article 248
\nread with entry 97 of List I to the Seventh Schedule. Whether that view is sustainable or
\nnot need not be considered here now owing to the concession made by Mr. Palkhivala
\nthat by amendment of Article 368 such a power could be validly located in that Article
\neven if it be assumed that it did not originally reside there. The real attack, therefore, is
\ndirected against the validity of the 24th Amendment in so far as the three results
\nmentioned above are concerned. It has been maintained that if the effect of those results
\nis that the Parliament has clothed itself with legal sovereignty which the People of India
\nalone possess, by taking the full constituent power, and if the Parliament can in exercise
\nof that power alter or destroy all or any of the ‘essential features’ of the Constitution, the
\n24th Amendment will be void. The fundamental rights embodied in Part III are a part of
\nthe ‘essential features’ and if their essence or core can be damaged or taken away, the 24th
\namendment will be void and illegal.\n<\/p>\n
526. The position taken up on behalf of the respondents is that so far as Article 368 is
\nconcerned, the 24th Amendment has merely clarified the doubts cast in the majority
\njudgment in Golak Nath. That Article, as it originally stood, contained the constituent
\npower by virtue of which all or any of the provisions of the Constitution including the
\nPreamble could be added to, varied or repealed. In other words, the power of amendment
\nwas unlimited and unfettered and was not circumscribed by any such limitations as have
\nbeen suggested on behalf of the petitioners. Therefore, the crux of the matter is the
\ndetermination of the true ambit, scope and width of the amending provisions contained in
\nArticle 368 before the changes and alterations made in it by the 24th Amendment. If the
\nArticle conferred the power of the amplitude now covered by the 24th Amendment
\nnothing new has been done and the amendment cannot be challenged. If, however, the
\noriginal power though having the constituent quality was a limited one, it could not be
\nincreased. In other words the amending body cannot enlarge its own powers.\n<\/p>\n
527. What then is the meaning of the word “amendment” as used in Article 368 of the
\nConstitution. On behalf of the respondents it has been maintained that “amendment” of
\nthis Constitution” can have only one meaning. No question, can arise of resorting to other
\naids in the matter of interpretation or construction of the expression “amendment.” On the
\nother hand, the argument of Mr. Palkhivala revolves on the expression “amendment”
\nwhich can have more than one meaning and for that reason it is essential to discover its
\ntrue import as well as ambit by looking at and taking into consideration other permissible
\naids of construction. No efforts have been spared on both sides to give us all the
\nmeanings of the words “amendment” and “amend” from the various dictionaries as also
\nauthoritative books and opinions of authors and writers.\n<\/p>\n
528. It is more proper, however, to look for the true ‘meaning’ of the word “amendment”
\nin the Constitution itself rather than in the dictionaries. Let us first analyse the scheme of
\nArticle 368 itself as it stood before the 24th Amendment.\n<\/p>\n
(i) The expression “amendment of the Constitution” is not defined or
\nexplained in any manner although in other Parts of the Constitution the
\nword “amend” as will be noticed later has been expanded by use of the
\nexpression “amend by way of addition, variation or repeal.\n<\/p>\n
(ii) The power in respect of amendment has not been conferred in express
\nterms. It can be spelt out only by necessary implication.\n<\/p>\n
(iii) The proviso uses the words “if such amendment seeks to make any
\nchange in”. It does not use the words “change of” or “change” simpliciter.\n<\/p>\n
(iv) The provisions of the Constitution mentioned in the proviso do not
\nshow that the basic structure of the Constitution can be changed if the
\nprocedure laid down therein is followed. For instance, Clause (a) in the
\nproviso refers to Articles 54 and 55 which relate to the election of the
\nPresident. It is noteworthy that Article 52 which provides that there shall
\nbe a President of India and Article 53 which vests the power of the Union
\nin the President and provides how it shall be exercised are not included in
\nClause (a). It is incomprehensible that the Constitution makers intended
\nthat although the ratification of the legislatures of the requisite number of
\nStates should be obtained if any changes were to be made in Articles 54
\nand 55 but that no such ratification was necessary if the office of the
\nPresident was to be abolished and the executive power of the Union was to
\nbe exercised by some other person or authority.\n<\/p>\n
(v) Another Article which is mentioned in Clause (a) is Article 73 which
\ndeals with the extent of the executive power of the Union. So far as the
\nVice-President is concerned there is no mention of the relevant Articles
\nrelating to him. In other words the States have been given no voice in the
\nquestion whether the office of the Vice-President shall be continued or
\nabolished or what the method of his election would be.\n<\/p>\n
(vi) The next Article mentioned in Clause (a) is 162 which deals with the
\nextent of the executive power of the States. The Articles relating to the
\nappointment and conditions of service of a Governor, Constitution and
\nfunctions of his council of ministers as also the conduct of business are not
\nmentioned in Clause (a) or any other part of the proviso.\n<\/p>\n
(vii) Along with Articles 54, 55, 73 and 162. Article 241 is mentioned in
\nClause (a) of the proviso. This Article dealt originally only with the High
\nCourts for States in Part C of the First Schedule.\n<\/p>\n
(viii) Chapter IV of Part V of the Constitution deals with the Union
\nJudiciary and Chapter V of Part VI with the High Courts in the States.
\nAlthough these have been included in Clause (b) of the proviso it is
\nsurprising that Chapter VI of Part VI which relates to Subordinate
\nJudiciary is not mentioned at all, which is the immediate concern of the
\nStates.\n<\/p>\n
(ix) Chapter I of Part XI which deals with legislative relations between the
\nUnion and the States is included in Clause (b) of the proviso but Chapter II
\nof that Part which deals with Administrative Relations between the Union
\nand the States and various other matters in which the States would be
\nvitally interested are not included.\n<\/p>\n
(x) The provisions in the Constitution relating to services under the State
\nas also with regard to Trade and Commerce are not included in the
\nproviso.\n<\/p>\n
(xi) Clause (c) of the proviso mentions the lists in the Seventh Schedule.
\nClause (d) relates to the representation of States in Parliament and Clause\n<\/p>\n
(c) to the provisions of Article 368 itself.\n<\/p>\n
529. The net result is that the provisions contained in Clauses (a) and (b) of the proviso
\ndo not throw any light on the logic, sequence or systematic arrangement in respect of the
\ninclusion of those Articles which deal with the whole of the federal structure. These
\nclauses demonstrate that the reason for including certain Articles and excluding other
\nfrom the proviso was not that all Articles dealing with the federal structure or the States
\nhad been selected for inclusion in the proviso. The other unusual result is that if the
\nfundamental rights contained in Part III have to be amended that can be done without
\ncomplying with the provisions of the proviso. It is difficult to understand that the
\nConstitution makers should not have thought of ratification by the States if such
\nimportant and material rights were to be abrogated or taken away wholly or partially. It is
\nalso interesting that in order to meet the difficulty created by the omission of Articles 52
\nand 53 which relate to there being a President in whom the executive functions of the
\nUnion would vest, the learned Solicitor General sought to read by implication the
\ninclusion of those Articles because according to him, the question of election cannot arise
\nwith which Articles 54 and 55 are concerned if the office of President is abolished.\n<\/p>\n
530. We may next refer to the use of the words “amendment” or “amended” in other
\narticles of the Constitution. In some articles these words in the context have a wide
\nmeaning and in another context they have a narrow meaning. The group of articles which
\nexpressly confer power on the Parliament to amend are five including Article 368. The
\nfirst is Article 4. It relates to laws made under Articles 2 and 3 to provide for amendment
\nof the First and the Second Schedules and supplemental, incidental and consequential
\nmatters. The second Article is 169 which provides for abolition or creation of Legislative
\nCouncils in States. The third and the fourth provisions are paras 7 and 21 of the 5th and
\n6th Schedules respectively which have to be read with Article 244 and which deal with
\nthe administration of Scheduled Areas and Tribal Areas. The expression used in Articles
\n4 and 169 is “amendment”. In paras 7 and 21 it is the expanded expression “amend by
\nway of addition, variation or repeal” which has been employed. Parliament has been
\nempowered to make these amendments by law and it has been expressly provided that no
\nsuch law shall be deemed to be an amendment of the Constitution for the purpose of
\nArticle 368.\n<\/p>\n
531. It is apparent that the word “amendment” has been used in a narrower sense in
\nArticle 4. The argument that if it be assumed that Parliament is invested with wide
\npowers under Article 4 it may conceivably exercise power to abolish the legislative and
\nthe judicial organs of the State altogether was refuted by this Court by saying that a State
\ncannot be formed, admitted or set up by law under Article 4 by the Parliament which
\ndoes not conform to the democratic pattern envisaged by the Constitution Mangol Singh
\nand Anr. v. Union of India [1967] 2 S.C.R. 109 at p. 112. 88 at pp. 96-97. Similarly any
\nlaw which contains provisions for amendment of the Constitution for the purpose of
\nabolition or creation of legislative councils in States is only confined to that purpose and
\nthe word “amendment” has necessarily been used in a narrow sense. But in Paras 7 and
\n21 the expanded expression is employed and indeed an attempt was made even in the
\nConstituent Assembly for the insertion of a new clause before Clause (1) of draft Article
\n304 (Present Article 368). The amendment (Constituent Assembly Debates Vol. 9, p.
\n1663) (No. 3239) was proposed by Mr. H.V. Kamath and it was as follows:
\nAny provision of this Constitution may be amended, whether by way of
\nvariation, addition or repeal, in the manner provided in this article.
\nMr. Kamath had moved another amendment in draft Article 304 to substitute the words
\n“it shall upon presentation to the President receive his assent”. Both these amendments
\nwere negatived by the Constituent Assembly Ibid. It is noteworthy that the 24th
\namendment as now inserted has introduced substantially the same amendments which
\nwere not accepted by the Constituent Assembly.\n<\/p>\n
532. The Constituent Assembly, must be presumed to be fully aware of the expanded
\nexpression, as on September 17, 1949 it had substituted the following section in place of
\nthe old Section 291 of the Government of India Act 1935 by means of Constituent
\nAssembly Act 4 of 1949:\n<\/p>\n
291. Power of the Governor General to amend certain provisions of the
\nAct and order made thereunder.-\n<\/p>\n
(1) The Governor General may at any time by Order make
\nsuch amendments as he considers necessary whether by
\nway of addition, modification, or repeal, (emphasis
\nsupplied) in the provisions of this Act or of any Order made
\nthereunder in relation to any Provincial Legislature with
\nrespect to any of the following matters, that is to say,-\n<\/p>\n
(a) …\n<\/p>\n
The word “amendment” has also been used in certain Articles like Article 107 dealing
\nwith legislative procedure and Article 111 which enables the President to send a message
\nrequesting the Houses to consider the desirability of introducing amendments etc.,
\n“Amendment” as used in these Articles could only have a limited meaning as is apparent
\nfrom the context. On behalf of the petitioners a great deal of reliance has been placed on
\nthe contrast between the use of the word “amendment” in Article 4 and 169 and paras 7
\nand 21 of the 5th and 6th Schedules which use the composite expression “amend by way
\nof addition, variation or repeal.” It is pointed out that in Article 368 it is only the word
\n“amendment” which has been used and if the Constitution makers intended that it should
\nhave the expanded meaning then there was no reason why the same phraseology would
\nnot have been employed as in paras 7 and 21 or as has been inserted now by the 24th
\namendment. The steps in this argument are:\n<\/p>\n
(i) The contrast in the language employed in the different provisions of the
\nConstitution in respect of amendment;\n<\/p>\n
(ii) conferment of the wider power for the purpose of the 5th and 6th
\nSchedules which empower the Parliament to alter and repeal the
\nprovisions of those Schedules relating to the institutions contemplated by
\nthem, the law making authority set up under them and the fundamental
\nbasis of administration to be found in the two Schedules.\n<\/p>\n
(iii) the wide language used in paras 7 and 21 of the two Schedules was
\nmeant for the purpose that at a proper time in the future or whenever
\nconsidered necessary the entire basic structure of the Schedules could be
\nrepealed and the areas and tribes covered by them could be governed and
\nadministered like the rest of India.\n<\/p>\n
(iv) the use of the word “amendment” simpliciter in Article 368 must have
\na narrower meaning than the composite expression “amend” or
\n“amendment” by way of addition, variation or repeal and must correspond
\nto the meaning of the word “amend” or “amendment” in Articles 4 and\n<\/p>\n
169.\n<\/p>\n
(v) The power of amending the Constitution is not concentrated in Article
\n368 alone but it is diffused as it is to be found in the other Articles and
\nprovisions mentioned. The reason why it was added that no law passed by
\nthe Parliament under those provisions shall be deemed to be an
\namendment of this Constitution for the purpose of Article 368 was only
\nmeant to clarify that the form and manner prescribed by Article 368 was
\nnot to be followed and the Parliament could, in the ordinary way, by
\nfollowing the procedure laid down for passing legislative enactments
\namend the Constitution to the extent mentioned in those Articles and
\nprovisions.\n<\/p>\n
533. The learned Advocate General of Maharashtra, who appears for respondent No. 1,
\nhas laid a great deal of emphasis on the fact that Article 368 is the only Article which is
\ncontained in a separate Part having the title “Amendment of the Constitution”. It is under
\nthat article that all other provisions including Aricles 4, 169 and paras 7 and 21 of the 5th
\nand 6th Schedules respectively can be amended. The latter group of articles contain a
\nlimited power because those Articles are subordinate to Article 368. This is illustrated by
\nthe categorical statement contained in each one of those provisions that no such law
\namending the Constitution shall be deemed to be an amendment there of for the purpose
\nof Article 368. As regards the composite expression “amend by way of addition, variation
\nor repeal” employed in paras 7 and 21 of the two Schedules, it has been pointed out that
\nClause (2), in which the words “Amendment of this Constitution” are used clearly shows
\nthat addition, variation or repeal of any provision would be covered by the word
\n“amendment”. According to the learned Attorney General the word “amendment” must
\nmean, variation addition or repeal. He has traced the history behind paras 7 and 21 of
\nSchedules 5 and 6 to illustrate that the expression “amend by way of addition, variation
\nor repeal” has no such significance and does not enlarge the meaning of the word
\n“amendment”. Our attention has been invited to a number of Articles in the Constitution
\nitself out of which mention may be made of Articles 320(5) and 392(1) where the
\nexpressions used were “such modification, whether by way of repeal or amendment” and
\n“such adoption whether by way of modification, addition or omission”. It has been urged
\nthat the expression “amendment of this Constitution” has acquired substantive meaning
\nover the years in the context of a written Constitution and it means that any part of the
\nConstitution can be amended by changing the same either by variation, addition or repeal.\n<\/p>\n
534. Dr. B.R. Ambedkar who was not only the Chairman of the Drafting Committee but
\nalso the main architect of the Constitution made it clear (Constituent Assembly Debates
\nVol. 9, page 1661) that the articles of the Constitution were divided into different
\ncategories; the first category was the one which consisted of articles which could be
\namended by the Parliament by a bare majority; the second set of articles were such which
\nrequired the two-third majority. This obviously had reference to the group of articles
\nconsisting of Articles 4, 169 and paras 7 and 21 of the two Schedules and Article 368
\nrespectively. The scheme of the amending provisions outlined by Dr. B.R. Ambedkar
\nseems to indicate that the Constitution makers had in mind only one distinction between
\nthe amending power conferred by the other Articles and Article 368. No such distinction
\nwas present to their mind of the nature suggested by the learned Advocate General that
\nthe amending power conferred by Articles other than Article 368 was of a purely
\nsubordinate nature. In one sense the power contained in the first group of Articles can be
\nsaid to be subordinate in those Articles themselves could be amended by the procedure
\nprescribed by Article 368. But that Article itself could be amended by the same
\nprocedure. It would not, therefore, be wrong to say that the amending power was of a
\ndiffused kind and was contained in more than one provision of the Constitution. It
\nappears that the statement in the articles and provisions containing the amending power
\nother than Article 368 that any amendment made under those articles would not amount
\nto an amendment under Article 368 merely embodied the distinction emphasised by Dr.
\nB.R. Ambedkar that one category could be amended by the Parliament by a bare majority
\nand all the other articles could be amended by the said body but only by following the
\nform and manner prescribed by Article 368. Although prima facie it would appear that
\nthe Constitution makers did not employ the composite expression in Article 368 for
\ncertain reasons and even rejected Mr. Kamath’s amendment which pointedly brought to
\ntheir notice that it was of material importance that the expanded expression should be
\nused, it may not be possible to consider this aspect as conclusive for the purpose of
\ndetermining the meaning of the word “amendment” in Article 368.\n<\/p>\n
535. According to Mr. Palkhivala there can be three possible meanings of amendment:\n<\/p>\n
(i) to improve or better; to remove an error, the question of improvement
\nbeing considered from the standpoint of the basic philosophy underlying
\nthe Constitution but subject to its essential features.\n<\/p>\n
(ii) to make changes which may not tall within (i) but which do not alter or
\ndestroy any of the basic features, essential elements or fundamental
\nprinciples of the Constitution.\n<\/p>\n
(iii) to make any change whatsoever including changes falling outside (ii).
\nHe claims that the preferable meaning is that which is contained in (i) but what is stated
\nin (ii) is also a possible construction. Category (iii) should be ruled out altogether.
\nCategory (i) and (ii) have a common factor, namely that the essential features cannot be
\ndamaged or destroyed.\n<\/p>\n
536. On behalf of the respondents it is not disputed that the words “amendment of this
\nConstitution” do not mean repeal or abrogation of this Constitution. The amending
\npower, however, is claimed on behalf of the respondents to extend to addition, alteration,
\nsubstitution, modification, deletion of each and every provision of the Constitution. The
\nargument of the Attorney General is that the amending power in Article 368 as it stood
\nbefore the 24th amendment and as it stands now has always been and continues to be the
\nconstituent power, e.g., the power to deconstitute or reconstitute the Constitution or any
\npart of it. Constitution at any point of time cannot be so amended by way of variation,
\naddition or repeal as to leave a vacuum in the government of the country. The whole
\nobject and necessity of amending power is to enable the Constitution to continue and
\nsuch a constituent power, unless it is expressly limited in the Constitution itself, can by
\nits very nature have no limit because if any such limit is assumed, although not expressly
\nfound in the Constitution, the whole purpose of an amending power will be nullified. It
\nhas been pointed out that in the Constitution First Amendment Act which was enacted
\nsoon after the Constitution of India came into force, certain provisions were inserted,
\nothers substituted or omitted and all these were described as amendments of the article
\nmentioned therein. In the context of the Constitution, amendment reaches every provision
\nincluding the Preamble and there is no ambiguity about it which may justify having resort
\nto either looking at the other Articles for determining the ambit of the amendatory power
\nor taking into consideration the Preamble or the scheme of the Constitution or other
\npermissible aids to construction.\n<\/p>\n
537. A good deal of reliance has been placed on behalf of the respondents on Article 5 of
\nthe Constitution of the United States hereinafter called the ‘American Constitution’ which
\ndeals with amendment and its interpretation by the American courts. Reference has been
\nmade to the writings of authors and writers who have dealt with the meaning of the word
\n“amendment” in the American Constitution. It has been argued that in Article 5 of that
\nConstitution the word used is “amendments” and our Constitution makers had that word
\nin mind when they employed the expression “amendment of this Constitution” in Article\n<\/p>\n
368. We propose to refer to the decision from other countries including those of the
\nSupreme Court of the United States later. We wish to observe, at this stage, that our
\nfounding fathers had primarily the Constitutions of Canada, Australia, Eire, U.S.A. and
\nSwitzerland in view apart from that of Japan. The whole scheme and language of Article
\n368 is quite different from the amending provisions in Constitutions of those countries.
\nFor instance, in U.S.A., Eire, Australia, Switzerland and Japan the people are associated
\nin some manner or the other directly with the amending process. It would be purely
\nspeculative or conjectural to rely on the use of the word “amend” or “amendment” in the
\nConstitution of another country unless the entire scheme of the amending section or
\narticle is also kept in mind. In India Parliament is certainly representative of the people
\nbut so are similar institutions in the countries mentioned above and yet there is a
\nprovision for ratification by convention or referendum or submission of the proposed law
\nto electors directly. Another way of discovering the meaning on which both sides relied
\non is to refer to the various speeches in the Constituent Assembly by the late Prime
\nMinister Pandit Jawahar Lal Nehru and late Dr. B.R. Ambedkar the Chief Architects of
\nthe Constitution. The position which emerges from an examination of their speeches does
\nnot lead to any clear and conclusive result. Their Speeches show that our Constitution
\nwas to be an amendable one and much rigidity was not intended. Pandit Nehru time and
\nagain emphasised that while the Constitution was meant to be as solid and as permanent a
\nstructure as it could be, nevertheless there was no permanence in the Constitution and
\nthere should be certain flexibility; otherwise it would stop a nation’s growth. Dr.
\nAmbedkar, while dealing with draft Article 25 corresponding to the present Article 32,
\nsaid that the most important Article without which the Constitution would be a nullity
\nand which was the very soul of the Constitution and the heart of it was that Article. But
\nwhat he said at a later stage appears to suggest that that article itself could be amended
\nand according to the respondents even abrogated. This illustration shows that nothing
\nconclusive can emerge by referring to the speeches for the purpose of interpretation of the
\nword “amendment”.\n<\/p>\n
538. It is not possible to accept the argument on behalf of the respondents that
\namendment can have only one meaning. This word or expression has several meanings
\nand we shall have to determine its true meaning as used in the context of Article 368 by
\ntaking assistance from the other permissible aids to construction. We shall certainly bear
\nin mind the Well known principles of interpretation and construction, particularly, of an
\ninstrument like a Constitution. A Constitution is not to be construed in any narrow and
\npedantic sense. A broad and liberal spirit should inspire those whose duty it is to interpret
\nit Gwyer C.J. In Re. C.P. & Berar Sales of Motor Spirit & Motor Lubricants Taxation Act
\n1938 [1939] F.C.R. 18 adopted the words of Higgins J., of the High Court of Australia
\nfrom the decision in Attorney General for New South Wales v. The Brewery Employees
\nUnion of New South Wales etc. [1908] 6 C.L.R. 469 at pp. 611-612 according to which
\neven though the words of a Constitution are to be interpreted on the same principles of
\ninterpretation as are applied to any ordinary law, these very principles of interpretation
\nrequire taking into account the nature and scope of the Act remembering that “it is a
\nConstitution, a mechanism under which laws are to be made and not a mere Act which
\ndeclares what the law is to be”. [1939] F.C.R. 18, 37. The decision must depend on the
\nwords of the Constitution as provisions of no two Constitutions are in identical terms.
\nThe same learned Chief Justice said that the “grant of the power in general terms standing
\nby itself would no doubt be construed in the wider sense, but it may be qualified by other
\nexpress provisions in the same enactment, by the implication of the context, and even by
\nconsiderations arising out of what appears to be the general scheme of the Act.” ibid p.\n<\/p>\n
42. The observations of Lord Wright in fames v. Commonwealth of Australia [1936]
\nA.C. 578 at p. 613 were also quoted in the aforesaid judgment of the Federal Court of
\nIndia at page 73:\n<\/p>\n
The question, then, is one of construction and in the ultimate resort must
\nbe determined upon the actual words used read not in a vacuo but as
\noccurring in a single complex instrument, in which one part may throw
\nlight on another. The Constitution has been described as the federal
\ncompact, and the construction must hold a balance between all its parts.
\nApart from the historical background and the scheme of the Constitution the use of the
\nPreamble has always been made and is permissible if the word “amendment” has more
\nthan one meaning. Lord Green in Bidis v. General Accident, Fire and Life Assurance
\nCorporation [1948] 2 All. E.R. 998 pointed out that the words should never be interpreted
\nin vacuo because few words in the English language have a natural or ordinary meaning
\nin the sense that they must be so read that their meaning is entirely independent of their
\ncontext. The method which he preferred was not to take the particular words and attribute
\nto them a sort of prima facie meaning which may have to be displaced or modified. To
\nuse his own words “it is to read the statute as a whole and ask oneself the question.
\nIn this state, in this context, relating to this subject matter, what is the true
\nmeaning of that word?”\n<\/p>\n
We shall first deal with the Preamble in our Constitution. The Constitution makers gave
\nto the preamble the pride of place. It embodied in a solemn form all the ideals and
\naspirations for which the country had struggled during the British regime and a
\nConstitution was sought to be enacted in accordance with the genius of the Indian people.
\nIt certainly represented an amalgam of schemes and ideas adopted from the Constitutions
\nof other countries. But the constant strain which runs throughout each and every article of
\nthe Constitution is reflected in the Preamble which could and can be made sacrosanct. It
\nis not without significance that the Preamble was passed only after draft articles of the
\nConstitution had been adopted with such modifications as were approved by the
\nConstituent Assembly. The preamble was, therefore, meant to embody in a very few and
\nwell defined words the key to the understanding of the Constitution.\n<\/p>\n
539. It would be instructive to advert to the various stages through which the Preamble
\npassed before it was ultimately adopted by the Constituent Assembly. In the earlier draft
\nof the Union Constitution the Preamble was a somewhat formal affair. The one drafted by
\nB.N. Rau said:\n<\/p>\n
We, the People of India, seeking to promote the common good, do hereby,
\nthroughout chosen representatives, enact, adopt and give to ourselves this
\nConstitution.\n<\/p>\n
The Union Constitution Committee provisionally accepted the draft Preamble of B.N.
\nRau and reproduced it in its report of July 4, 1947 without any change with the tacit
\nrecognition, at that stage, that the Preamble would finally be based on the Objectives
\nResolution.\n<\/p>\n
540. On July 18, 1947, Pandit Nehru in a statement observed that the Preamble was
\ncovered more or less by the Objectives Resolution which it was intended to incorporate in
\nthe final Constitution. Three days later, while moving the report of the Union
\nConstitution Committee, he suggested that it was not at that stage necessary to consider
\nthe Preamble since the Assembly stood by the basic principles laid down in the
\nObjectives Resolution and these could be incorporated in the Preamble later. The
\nsuggestion was accepted and further consideration of the Preamble was held over.\n<\/p>\n
541. The Drafting Committee considered the Preamble at a number of its meetings in
\nFebruary 1948. The Committee omitted that part of the Objectives Resolution which
\ndeclared that the territories of India would retain the status of automonous units with
\nresiduary powers. By this time the opinion had veered round for a strong centre with
\nresiduary powers. The Drafting Committee felt that the Preamble should be restricted “to
\ndefining the essential features of the new State and its basic socio-political objectives and
\nthat the other matters dealt with in the Resolution could be more appropriately provided
\nin the substantial parts of the Constitution”. Accordingly it drafted the Preamble, which
\nsubstantially was in the present form.\n<\/p>\n
542. Meanwhile important developments had taken place in regard to the Indian States.
\nWith the completion of the process of merger and integration of the Indian States the
\nprinciple had been accepted (i) of sovereign powers being vested in the people, and (ii)
\nthat their Constitutions should be framed by the Constituent Assembly and should form
\nintegrated part of the new Constitution. On October 12, 1949, Sardar Patel declared in the
\nAssembly that the new Constitution was “not an alliance between democracies and
\ndynasties, but a real union of the Indian people, built on the basic concept of the
\nsovereignty of the people.\n<\/p>\n
543. The draft preamble was considered by the Assembly on October 17, 1949. The
\nobject of putting the Preamble last, the President of Assembly explained, was to see that
\nit was in conformity with the Constitution as accepted. Various amendments were at this
\nstage suggested, but were rejected. One of such was the proposal to insert into it the
\nwords “In the name of God”. That was rejected on the ground that it was inconsistent
\nwith the freedom of faith which was not only promised in the Preamble itself but was also
\nguaranteed as a fundamental right (Constituent Assembly Debates Vol. 10, pp. 432-442).\n<\/p>\n
544. An amendment was moved in the Constituent Assembly to make it clear beyond all
\ndoubt that sovereignty vested in the people. It was not accepted on the short ground that
\n“the Preamble as drafted could convey no other meaning than that the Constitution
\nemanated from the people and sovereignty to make this Constitution vested in them (The
\nFraming of India’s Constitution by B. Shiva Rao, p. 131)\n<\/p>\n
545. The history of the drafting and the ultimate adoption of the Preamble shows:
\n(1) that it did not “walk before the Constitution” as is said about the
\npreamble to the United States Constitution;\n<\/p>\n
(2) that it was adopted last as a part of the Constitution:\n<\/p>\n
(3) that the principles embodied in it were taken mainly from the
\nObjectives Resolution;\n<\/p>\n
(4) the Drafting Committee felt, it should incorporate in it “the essential
\nfeatures of the “new State”:\n<\/p>\n
(5) that it embodied the fundamental concept of sovereignty being in the
\npeople.\n<\/p>\n
546. In order to appreciate how the preamble will assist us in discovering the meaning of
\nthe word “amendment” employed in Article 368 we may again notice the argument
\npresented by the respondents that the amending body can alter, vary or repeal any
\nprovision of the Constitution and enact it and apply that process to the entire Constitution
\nshort of total repeal and abrogation. It is maintained on behalf of the Respondents that by
\nvirtue of the amending power even the preamble can be varied, altered or repealed. Mr.
\nPalkhivala, however, relics a great deal on the preamble for substantiating the contention
\nthat “amendment” does not have the widest possible meaning as claimed by the
\nrespondents and there are certain limitations to the exercise of the amending power and,
\ntherefore, the expression “amendment” should be construed in the light of those
\nlimitations. All the elements of the Constitutional structure, it is said, are to be found in
\nthe preamble and the amending body cannot repeal or abrogate those essential elements
\nbecause if any one of them is taken away the edifice as erected must fall.\n<\/p>\n
547. The learned Advocate General of Maharashtra, says that the preamble itself is
\nambiguous and it can be of no assistance in that situation. It has further been contended
\nthat the concepts recited in the preamble, e.g., human dignity, social and economic justice
\nare vague; different schools of thought hold different notions of their concepts. We are
\nwholly unable to accede to this contention. The preamble was finalised after a long
\ndiscussion and it was adopted last so that it may embody the fundamentals underlying the
\nstructure of the Constitution It is true that on a concept such as social and economic
\njustice there may be different schools of thought but the Constitution makers knew what
\nthey meant by those concepts and it was with a view to implement them that they enacted
\nParts III (Fundamental Rights) and Part IV (Directive Principles of State Policy) – both
\nfundamental in character-on the one hand, basic freedoms to the individual and on the
\nother social security, justice and freedom from exploitation by laying down guiding
\nprinciples for future governments.\n<\/p>\n
548. Our court has consistently looked to the preamble for guidance and given it a
\ntranscedental position while interpreting the Constitution or other laws. It was so referred
\nin Behram Khurshid Pesikaka’s [1955] 1 S.C.R. 613 at p. 653 case. Bhagwati J., in
\nBasheshar Nath v. Commissioner of Income-tax<\/a> [1959] Suppl. 1 S.C.R. 528 Rajasthan
\nwhen considering the question of waiver of a fundamental right referred to the preamble
\nand to the genesis of declaration of fundamental rights which could be traced to the report
\nof the Nehru Committee of 1928. He proceeded to say “the object sought to be achieved
\nwas, as the preamble to the Constitution states….” In Re Kerala Education Bill 1957
\n[1959] S.C.R. 995 this Court referred to the preamble extensively and observed that the
\nfundamental rights were provided for “to implement and fortify the supreme purpose set
\nforth in the preamble”. The court also made use of the “inspiring and nobly expressed
\npreamble to our Constitution” while expressing opinion about the legality of the various
\nprovisions of the Kerala Education Bill 1957. It is unnecessary to multiply citations from
\njudgments of this Court in which the preamble has been treated almost as sacrosanct and
\nhas been relied on or referred to for the purpose of interpreting legislative provisions. In
\nother countries also following the same system of jurisprudence the preamble has been
\nreferred to for finding out the Constitutional principles underlying a Constitution. In Rex
\nv. Hess [1949] Dom. L.R. 199 at p. 208 it was said:\n<\/p>\n
I conclude further that the opening paragraph of the preamble to the
\nB.N.A. Act 1867, which provided for a “Constitution similar in principle
\nto that of the United Kingdom” thereby adopted the same Constitutional
\nprinciples and hence Section 1025A is contrary to the Canadian
\nConstitution and beyond the competence of Parliament or any provincial
\nlegislature to enact so long as our Constitution remains in its present form
\nof a Constitutional democracy.\n<\/p>\n
In John Switzman v. Freda Elbling & Attorney General of the Province of Quebec [1957]
\nCanada L.R. 285 at p. 326 (Supreme Court), Abbot J., relied on the observations of Duff
\nC.J., in an earlier decision in Re Alberta Statutes [1938] S.C.R. 100 (Canada) which was
\naffirmed in Attorney General for Alberta v. Attorney General for Canada [1939] A.C.
\n117-that view being that the preamble of the British North America Act showed plainly
\nenough that the Constitution of the Dominion was to be similar in principle to that of the
\nUnited Kingdom. The statute contemplated a Parliament working under the influence of
\npublic opinion and public discussion. In McCawley v. The King Lord Birkenhead [1920]
\nA.C. 691 at p. 711 (Lord Chancellor) while examining the contention that the
\nConstitution Act of 1867 (Queensland, Australia) enacted certain fundamental organic
\nprovisions of such a nature which rendered the Constitution sterotyped or controlled
\nproceeded to observe at page 711:\n<\/p>\n
It may be premised that if a change so remarkable were contemplated one
\nwould naturally have expected that the legislature would have given some
\nindication, in the very lengthy preamble of the Act, of this intention. It has
\nbeen seen that it is impossible to point to any document or instrument
\ngiving to, or imposing upon the Constitution of Queensland this quality
\nbefore the year 1867. Yet their Lordships discern nowhere in the preamble
\nthe least indication that it is intended for the first time to make provisions
\nwhich are sacrosanct or which at least can only be modified by methods
\nnever previously required.\n<\/p>\n
549. In re. Berubari Union and Exchange of Enclaves [1960] 3 S.C.R. 250 an argument
\nhad been raised that the preamble clearly postulated that the entire territory of India was
\nbeyond the reach of Parliament and could not be affected either by ordinary legislation or
\neven by Constitutional amendment. The Court characterized that argument as extreme
\nand laid down the following propositions:\n<\/p>\n
1. A preamble to the Constitution serves as a key to open the minds of the
\nmakers, and shows the general purposes for which they made the several
\nprovisions in the Constitution;\n<\/p>\n
2. The preamble is not a part of our Constitution;\n<\/p>\n
3. It is not a source of the several powers conferred on government under
\nthe provisions of the Constitution;\n<\/p>\n
4. Such powers embrace those expressly granted in the body of the
\nConstitution “and such as may be implied from those granted”;\n<\/p>\n
5. What is true about the powers is equally true about the prohibitions and
\nlimitations;\n<\/p>\n
6. The preamble did not indicate the assumption that the first part of
\npreamble postulates a very serious limitation on one of the very important
\nattributes of sovereignty, viz., ceding territory as a result of the exercise of
\nthe sovereign power of the State of treaty-making and on the result of
\nceding a part of the territory.\n<\/p>\n
550. On behalf of the respondents reliance has been placed on this case for the
\nproposition that no limitation was read by virtue of the preamble. A careful reading of the
\njudgment shows that what was rejected was the contention that the preamble was the
\nsource of power. Indeed, it was held that the preamble was not even a part of the
\nConstitution and that one must seek power and its scope in the provisions of the
\nConstitution. The premise for the conclusion was that a preamble is not the source of
\npower since it is not a part of the Constitution. The learned Advocate General of
\nMaharashtra has himself disputed the conclusion in the aforesaid judgment that the
\npreamble is not a part of the Constitution. It is established that it was adopted by the
\nConstituent Assembly after the entire Constitution had been adopted.\n<\/p>\n
551. Mr. Palkhivala has given an ingenious explanation as to why the preamble cannot be
\nregarded as a part of our Constitution. He makes a distinction between the concept of the
\nConstitution and the concept of the Constitution’s statutes. The last words in the preamble
\n“This Constitution is the Constitution which follows the preamble, “according to Mr.
\nPalkhivala. It starts with Article 1 and ended originally with the Eighth Schedule and now
\nends with the Ninth Schedule after the First Amendment Act 1951. It is sought to be
\nconcluded from this that the way in which the preamble has been drafted, indicates that
\nwhat follows or is annexed to the preamble is the Constitution of India. It is further
\nargued that:\n<\/p>\n
The Constitution statute of India consist of two parts-one, the preamble
\nand the other the Constitution: The preamble is a part of the Constitution
\nstatute, but is not a part of the Constitution. It precedes it; The preamble
\ncame into force on Nov. 26, 1949 and not 26th January 1950 as contended
\non behalf of Respondent No. 1<\/span>\n<\/p>\n
552. There is a clear recital in the preamble that the people of India gave to themselves
\nthis Constitution on the 26th day of November 1949. Even if the preamble was actually
\nadopted by the Constitutent Assembly at a later date, no one can question the statement
\nmade in the Preamble that the Constitution came into force on the date mentioned therein.
\nThe preamble itself must be deemed by a legal fiction to have come into force with effect
\nfrom 26th November 1949. Even if this is a plausible conclusion, it does not appear to be
\nsufficient to support the observation in the Berubari case that the preamble was not a part
\nof the Constitution. To our mind, it hardly makes any substantial difference whether the
\npreamble is a part of the Constitution or not. The preamble serves several important
\npurposes. Firstly, it indicates the source from which the Constitution comes viz. the
\npeople of India. Next, it contains the enacting clause which brings into force the
\nConstitution. In the third place, it declares the great rights and freedoms which the people
\nof India intended to secure to all citizens and the basic type of government and polity
\nwhich was to be established. From all these, if any provision in the Constitution had to be
\ninterpreted and if the expressions used therein were ambiguous, the preamble would
\ncertainly furnish valuable guidance in the matter, particularly when the question is of the
\ncorrect ambit, scope and width of a power intended to be conferred by Article 368.\n<\/p>\n
553. The stand taken up on behalf of the respondents that even the preamble can be
\nvaried, altered or repealed, is an extraordinary one. It may be true about ordinary statutes
\nbut it cannot possibly be sustained in the light of the historical background, the
\nObjectives Resolution which formed the basis of the preamble and the fundamental
\nposition which the preamble occupies in our Constitution. It constitutes a land-mark in
\nIndia’s history and sets out as a matter of historical fact what the people of India resolved
\nto do for moulding their future destiny. It is unthinkable that the Constitution makers ever
\nconceived of a stage when it would be claimed that even the preamble could be abrogated
\nor wiped out.\n<\/p>\n
554. If the preamble contains the fundamentals of our Constitution, it has to be seen
\nwhether the word amendment in Article 368 should be so construed that by virtue of the
\namending power the Constitution can be made to suffer a complete loss of identity or the
\nbasic elements on which the Constitutional structure has been erected, can be eroded or
\ntaken away. While dealing with the preamble to the United States, Constitution it was
\nobserved by Story (Commentaries on the Constitution of the United States, 1833 edition,
\nVolume I), that the preamble was not adopted as a mere formulary; but as a solemn
\npromulgation of a fundamental fact, vital to the character and operations of the
\nGovernment. Its true office is to expound the nature and extent and application of the
\npowers actually conferred by the Constitution and not substantially to create them Story,
\npara 462 at p. 445.\n<\/p>\n
555. Now let us examine the effect of the declarations made and the statements contained
\nin the preamble on interpretation of the word “amendment” employed in Article 368 of
\nthe Constitution. The first thing which the people of India resolved to do was to constitute
\ntheir country into a Sovereign Democratic Republic. No one can suggest that these words
\nand expressions are ambiguous in any manner. Their true import and connotation is so
\nwell known that no question of any ambiguity is involved. The question which
\nimmediately arises is whether the words “amendment or amended” as employed in
\nArticle 368 can be so interpreted as to confer a power on the amending body to take away
\nany of these three fundamental and basic characteristics of our polity. Can it be said or
\neven suggested that the amending body can make institutions created by our Constitution
\nundemocratic as opposed to democratic; or abolish the office of the President and,
\ninstead, have some other head of the State who would not fit into the conception of a
\n“Republic” The width of the power claimed on behalf of the respondents has such large
\ndimension that even the above part of the preamble can be wiped out from which it would
\nfollow that India can cease to be a Sovereign Democratic Republic and can have a polity
\ndenuded of sovereignty, democracy and Republican character.\n<\/p>\n
556. No one has suggested-it would be almost unthinkable for anyone to suggest-that the
\namending body acting under Article 368 in our country will ever do any of the things
\nmentioned above, namely change the Constitution in such a way that it ceases to be a
\nSovereign Democratic Republic. But while examining the width of the power, it is
\nessential to see its limits, the maximum and the minimum; the entire ambit and
\nmagnitude of it and it is for that purpose alone that this aspect is being examined. While
\nanalysing the scope and width of the power claimed by virtue of a Constitutional
\nprovision, it is wholly immaterial whether there is a likelihood or not of such an
\neventuality arising.\n<\/p>\n
557. Mr. Palkhivala cited example of one country after another in recent history where
\nfrom a democratic Constitution the amending power was so utilized as to make that
\ncountry wholly undemocratic resulting in the negation of democracy by establishment of
\nrule by one party or a small oligarchy. We are not the least impressed by these instances
\nand illustrations. In the matter of deciding the questions which are before us, we do not
\nwant to be drawn into the political arena which, we venture to think, is “out of bounds”
\nfor the judiciary and which tradition has been consistently followed by this Court. [See
\nWanchoo J, as he then was in Golak Nath [1967] 2 S.C.R. 762 at p. 850].\n<\/p>\n
558. Since the respondents themselves claim powers of such wide magnitude that the
\nresults which have been briefly mentioned can flow apart from others which shall
\npresently notice, the consequences and effect of suggested construction have to be taken
\ninto account as has been frequently done by this Court. Where two constructions are
\npossible the court must adopt that which will ensure smooth and harmonious working of
\nthe Constitution and eschew the other which will lead to absurdity or give rise to practical
\ninconvenience or make well-established provisions of existing law nugatory State of
\nPunjab v. Ajaib Singh and Anr.<\/a> [1953] S.C.R. 254 at page 264; Director of Customs,
\nBaroda v. Dig Vijay Singhji Spining & Weaving Mills Ltd.<\/a> [1962] 1 S.C.R. p. 896.\n<\/p>\n
559. In Don John Francis Douglas Liyange and Ors. v. The Queen [1967] (I) A.C. 259,
\nLord Pearson declined to read the words of Section 29(1) of the Ceylon Constitution as
\nentitling the Parliament to pass legislation which usurped the judicial power of the
\njudicature by passing an Act of Attainder against some persons or instructing a judge to
\nbring in a verdict of guilty against someone who is being tried-if in law such usurpation
\nwould otherwise be contrary to the Constitution.\n<\/p>\n
560. In Maxwell’s Interpretation of Statutes (12th Edition), Chapter 5 deals with
\nrestrictive construction and the very first section contains discussion on the question
\nwhether the consequences of a particular construction being adopted can be considered
\nand examples have been given from cases decided in England with reference to the
\nconsequences. According to American Jurisprudence, Vol. 50, 1962 Reprint at pp. 372,
\n373 there are cases in which consequences of a particular construction are in and of
\nthemselves, conclusive as to the correct solution of the question.\n<\/p>\n
561. The learned Advocate General of Maharashtra has contended that the proper way of
\nconstruing an amending provision is not to take into consideration any such speculation
\nthat the powers conferred by it, would be abused. It has also been said that any court
\ndeciding the validity of a law cannot take into consideration extreme hypothetical
\nexamples or assume that a responsible legislature would make extravagant use of the
\npower The Bank of Toronto v. Lambe (1887) 12 A.C. 575 at pp. 586-587.\n<\/p>\n
562. According to Mr. Palkhivala, the test of the true width of a power is not how
\nprobable it is that it may be exercised but what can possibly be done under it; that the
\nabuse or misuse of power is entirely irrelevant; that the question of the extent of the
\npower cannot be mixed up with the question of its exercise and that when the real
\nquestion is as to the width of the power, expectation that it will never be used is as wholly
\nirrelevant as an imminent danger of its use. The court does not decide what is the best
\nwhat is the worst. It merely decides what can possibly be done under a power if the words
\nconferring it are so construed as to have an unbounded and limitless width, as claimed on
\nbehalf of the respondents.\n<\/p>\n
563. It is difficult to accede to the submission on behalf of the respondents that while
\nconsidering the consequences with reference to the width of an amending power
\ncontained in a Constitution any question of its abuse is involved. It is not for the courts to
\nenter into the wisdom or policy of a particular provision in a Constitution or a statute.
\nThat is for the Constitution makers or for the parliament or the legislature. But that the
\nreal consequences can be taken into account while judging the width of the power is well
\nsettled. The Court cannot ignore the consequences to which a particular construction can
\nlead while ascertaining the limits of the provisions granting the power. According to the
\nlearned Attorney General, the declaration in the preamble to our Constitution about the
\nresolve of the people of India to constitute it into a Sovereign, Democratic Republic is
\nonly a declaration of an intention which was made in 1947 and it is open to the amending
\nbody now under Article 368 to change the Sovereign Democratics Republic into some
\nother kind of polity. This by itself shows the consequence of accepting the construction
\nsought to be put on the material words in that article for finding out the ambit and width
\nof the power conferred by it.\n<\/p>\n
564. The other part of the Preamble may next be examined. The Sovereign Democratic
\nRepublic has been constituted to secure to all the citizens the objectives set out. The
\nattainment of those objectives forms the fabric of and permeates the whole scheme of the
\nConstitution. While most cherished freedoms and rights have been guaranteed the
\ngovernment has been laid under a solemn duty to give effect to the Directive Principles.
\nBoth Parts III and IV which embody them have to be balanced and harmonised-then
\nalone the dignity of the individual can be achieved. It was to give effect to the main
\nobjectives in the Preamble that Parts III and IV were enacted. The three main organs of
\ngovernment legislative, executive and judiciary and the entire mechanics of their
\nfunctioning were fashioned in the light of the objectives in the Preamble, the nature of
\npolity mentioned therein and the grand vision of a united and free India in which every
\nindividual high or low will partake of all that is capable of achievement. We must,
\ntherefore, advert to the background in which Parts III and IV came to be enacted as they
\nessentially form a basic element of the Constitution without which its identity will
\ncompletely change.\n<\/p>\n
565. It is not possible to go back at any length to the great struggle for freedom from
\nBritish Rule and the attainment of independence. The British executive’s arbitrary acts,
\ninternments and deportations without trial and curbs on the liberty of the press and
\nindividuals are too well known to every student of Indian history to be specifically
\nmentioned. This was before some essential rights based on British Common law and
\njurisprudence came to be embodied in various Parliamentary enactments. According to
\nB.N. Rau Year Book of Human Rights 1947, human rights, with few exceptions, were
\nnot guaranteed by the Constitution (Government of India Act). Shiva Rao has in his
\nvaluable study Framing of India’s Constitution (B. Shiva Rao) given the various stages
\nbeginning with 1895 Constitution of India Bill framed by the Indian National Congress
\nwhich envisaged a Constitution guaranteeing a number of freedoms and rights. Two
\nevents at a later stage exercised a decisive influence on the Indian leaders. One was the
\ninclusion of a list of fundamental rights in the Constitution of Irish Free State in 1921 and
\nthe other, the problem of minorities. Ibid p. 172.\n<\/p>\n
566. The next steps were the report of the Nehru Committee in 1928, the reiteration of the
\nresolve at the session of the Indian National Congress at its Karachi Session in March
\n1931 and omitting some details, the deliberations of the Sapru Committee appointed by
\nthe All India Parties Conference (1944-45). The British Cabinet Mission in 1946
\nrecommended the setting up of an Advisory Committee for reporting inter alia on
\nfundamental rights. Before reference is made to the Objectives Resolution adopted in
\nJanuary 22, 1947 it must be borne in mind that the post war period in Europe had
\nwitnessed a fundamental orientation in juristic thinking, particularly in West Germany,
\ncharacterized by a farewell to positivism, under the influence of positivist legal thinking.
\nDuring the pre-war period most of the German Constitutions did not provide for judicial
\nreview which was conspicuously absent from the Weimar Constitution even though Hugo
\nPreuss, often called the Father of that Constitution, insisted on its inclusion. After World
\nWar II when the disastrous effects of the positivist doctrines came to be realized there
\nwas reaction in favour of making certain norms immune from amendment or abrogation.
\nThis was done in the Constitution of the Federal Republic of Germany. The atrocities
\ncommitted during Second World War and the world wide agitation for human rights
\nultimately embodied in the U.N. Declaration of Human Rights on, which a number of the
\nprovisions in Parts III and IV of our Constitution are fashioned must not be forgotten
\nwhile considering these matters. Even in Great Britain, where the doctrine of the legal
\nsovereignty of Parliament has prevailed since the days of Erskinc, Blackstone, Austin and
\nlastly Dicey, the new trend in judicial decisions is to hold that there can be at least
\nprocedural limitations (requirement of form and manner) on the legislative powers of the
\nlegislature. This follows from the decisions in Moore v. The Attorney General for the
\nIrish Free State (1935) A.C. 484; Attorney General for New South Wales v. Trethowan
\n(1932) A.C. 526. The Objective’s Resolution declared, inter alia, the firm, and the solemn
\nresolve to proclaim India as Independent Sovereign Republic and to draw up for her
\nfuture governance a Constitution. Residuary powers were to vest in the States. All power
\nand authority of the Sovereign Independent India, its constituent parts and organs of
\ngovernment, were derived from the people and it was stated:\n<\/p>\n
(5) wherein shall be guaranteed and secured to all the people of India,
\njustice, social, economic and political; equality of status, of opportunity,
\nand before the law; freedom of thought, expression, belief, faith, worship,
\nvocation, association and action, subject to law and public morality; and
\n(6) wherein adequate safeguards shall be provided for minorities,
\nbackward and tribal areas, and depressed and other backward classes; and
\n(7) whereby shall be maintained the integrity of the territory of the
\nRepublic and its sovereign rights on land, sea, and air according to justice
\nand the law of civilised nations, and\n<\/p>\n
567. It may be recalled that as regards the minorities the Cabinet Mission had recognised
\nin their report to the British Cabinet on May 6, 1946 only three main communities;
\ngeneral, muslims and sikhs. General community included all those who were non-
\nmuslims or non-sikhs. The Mission had recommended an Advisory Committee to be set
\nup by the Constituent Assembly which was to frame the rights of citizens, minorities,
\ntribals and excluded areas. The Cabinet Mission statement had actually provided for the
\ncession of sovereignty to the Indian people subject only to two matters which were; (1)
\nwillingness to conclude a treaty with His Majesty’s Government to cover matters arising
\nout of transfer of power and (2) adequate provisions for the protection of the minorities.
\nPursuant to the above and paras 5 and 6 of the Objectives Resolution the Constituent
\nAssembly set up an Advisory Committee on January 24, 1947. The Committee was to
\nconsist of representatives of muslims, the depressed classes or the scheduled castes, the
\nsikhs, christains, parsis, anglo-Indians, tribals and excluded areas besides the Hindus
\nConstituent Assembly Debates Vol. 2 pages 330-349. As a historical fact it is safe to say
\nthat at a meeting held on May 11, 1949 a resolution for the abolition of all reservations
\nfor minorities other than the scheduled castes found whole hearted support from an
\noverwhelming majority of the members of the Advisory Committee. So far as the
\nscheduled castes were concerned it was felt that their peculiar position would necessitate
\nspecial reservation for them for a period of ten years. It would not be wrong to say that
\nthe separate representation of minorities which had been the feature of the previous
\nConstitutions and which had witnessed so much of communal tension and strife was
\ngiven up in favour of joint electorates in consideration of the guarantee of fundamental
\nrights and minorities rights which it was decided to incorporate into the new Constitution.
\nThe Objectives Resolution can be taken into account as a historical fact which moulded
\nits nature and character. Since the language of the Preamble was taken from the
\nresolution itself the declaration in the Preamble that India would be a Sovereign,
\nDemocratic Republic which would secure to all its citizens justice, liberty and equality
\nwas implemented in Parts III and IV and other provisions of the Constitution. These
\nformed not only the essential features of the Constitution but also the fundamental
\nconditions upon and the basis on which the various groups and interests adopted the
\nConstitution as the Preamble hoped to create one unified integrated community. The
\ndecision of the Privy Council in the Bribery Commissioner v. Pedrick Ranasinghe [1965]
\nA.C. 172 at pp. 193-194 will require a more detailed discussion in view of the elaborate
\narguments addressed on both sides based on it. But for the present all that need be
\npointed out is that the above language is borrowed mainly from the judgment of Lord
\nPearce who, after setting out Section 29 of the Ceylon Constitutional Order which gave
\nParliament the power to make laws for the peace, order and good government of the
\nisland, said with regard to Clause (2) according to which no law could prohibit or restrict
\nthe free excrcise of any religion,
\nThere follow (b), (c) and (d), which set out further entrenched religious
\nand racial matters, which shall not be the subject of legislation. They
\nrepresent the solemn balance of rights between the citizens of Ceylon, the
\nfundamental conditions on which inter se they accepted the Constitution;
\nand these are therefore unalterable under the Constitution.\n<\/p>\n
Another opposite observation in this connection was made in In re the Regulation and
\nControl of Aeronautics in Canada [1932] A.C. 54 at p. 70 while interpreting the British
\nNorth America Act 1867. It was said that inasmuch as the Act embodied a compromise
\nunder which the original provinces agreed to federate, it is important to keep in mind that
\nthe preservation of the rights of minorities was a condition on which such minorities
\nentered into the federation and the foundation upon which the whole structure was
\nsubsequently erected.\n<\/p>\n
568. Our Constitution is federal in character and not unitary. In a federal structure the
\nexistence of both the Union and the States is indispensable and so is the power of judicial
\nreview. According to Dicey: Law of the Constitution by A.V. Dicey p. 144.
\nA federal State derives its existence from the Constitution, just as a
\ncorporation derives its existence from the grant by which it is created.
\nHence every power, executive, legislative or judicial, whether it belong to
\nthe nation or to the individual States, is subordinate to and controlled by
\nthe Constitution. Law of the Constitution by A.V. Dicey p. 144.
\nThe object for which a federal State is formed involves a division of authority between
\nthe national government and the separate States. Ibid p. 151. Federalism can flourish only
\namong communities imbued with a legal spirit and trained to reverence the law. Swiss
\nfederalism, according to Dicey, “fails, just where one would expect it to fail, in
\nmaintaining that complete authority of the courts which is necessary to the perfect federal
\nsystem”. Ibid p. 180. The learned Advocate General of Maharashtra while relying a great
\ndeal on Dicey’s well known work in support of his other points, has submitted that
\nalthough he was one of the greatest writers on the law of English Constitution, his book
\nwas concerned with two or three guiding principles which pervade the modern
\nConstitution of England. The discussion of federal government in his book was a
\nsubordinate part and the discussion was designed to bring out sharply the two or three
\nguiding principles of the English Constitution by contrast with the different principles
\nunderlying the Constitution of the federal government. Reliance has been placed on
\nProfessor Wheare’s statement in his book Federal Government, 4th Edn. (1963) that the
\nSwiss Courts are required by the Constitution to treat all laws passed by the federal
\nassembly as valid though they may declare Cantonal laws to be void and that does not
\nconstitute such a departure from the federal principle that the Swiss people cannot be
\nregarded as having a federal Constitution and a federal government. Switzerland is
\nprobably the only country having a federal Constitution where full-fledged right of
\njudicial review is not provided. We are unable to understand how that can have any
\nrelevancy in the presence of judicial review having been made an integral part of our
\nConstitution.\n<\/p>\n
569. It is pointed out on behalf of the petitioners that the scheme of Article 368 itself
\ncontains intrinsic pieces of evidence to give a limited meaning to the word “amendment”.
\nFirstly, Article 368 refers to “an amendment of this Constitution”, and the result of the
\namendment is to be that “the Constitution shall stand amended”. As the Constitution has
\nan identity of its own, an amendment, made under a power howsoever widely worded
\ncannot be such as would render the Constitution to lose its character and nature. In other
\nwords, an amendment cannot be such as would denude the Constitution of its identity.
\nThe amending power is conferred on the two Houses of Parliament, whose identity is
\nclearly established by the provisions in the Constitution. It must be the Parliament of the
\nSovereign Democratic Republic. It is not any Parliament which has the amending power,
\nbut only that Parliament which has been created by the Constitution. In other words, it
\nmust continue to be the Parliament of a sovereign and democratic republic. The
\ninstitution of States must continue to exist in order that they may continue to be
\nassociated with the amending power in the cases falling under the proviso. If the
\nrespondents are right, the proviso can be completly deleted since Article 368 itself can be
\namended. This would be wholly contrary to the scheme of Article 368 because two
\nagencies are provides for amending the provisions covered by the proviso. One agency
\ncannot destroy the other by the very exercise of the amending power. The effect of
\nlimitless amending power in relation to amendment of Article 368 cannot be conducive to
\nthe survival of the Constitution because the amending power can itself be taken away and
\nthe Constitution can be made literally unamendable or virtually unamendable by
\nproviding for an impossible majority.\n<\/p>\n
570. While examining the above contentions, it is necessary to consider the claim of the
\nrespondents that the amending body under Article 368 has the full constituent power. It
\nhas been suggested that on every occasion the procedure is followed as laid down in
\nArticle 368 by the two Houses of Parliament and the assent of the President is given there
\nis the reproduction of the functions of a Constituent Assembly. In other words, the
\nParliament acts in the same capacity as a Constituent Assembly when exercising the
\npower of amendment under the said Article. This argument does not take stock of the
\nadmission made on behalf of the respondents that the entire Constitution cannot be
\nrepealed or abrogated by the amending body. Indisputably, a Constituent Assembly
\nspecially convened for the purpose would have the power to completely revise, repeal or
\nabrogate the Constitution. This shows that the amending body under Article 368 cannot
\nhave the same powers as a Constituent Assembly. Even assuming that there is reference
\non the nature of power between enacting a law and making an amendment, both the
\npowers are derived from the Constitution. The amending body has been created by the
\nConstitution itself. It can only exercise those powers with which it has been invested.
\nAnd if that power has limits, it can be exercised only within those limits.\n<\/p>\n
571. The respondents have taken up the position that even if the power was limited to
\nsome extent under Article 368, as it originally stood, that power could be enlarged by
\nvirtue of Clause (e) of the proviso. It must be noted that the power of amendment lies in
\nthe first part of Article 368. What Clause (e) in the proviso does is to provide that if
\nArticle 368 is amended, such an amendment requires ratification by the States, besides
\nthe larger majority provided in the main part. If the amending power under Article 368
\nhas certain limits and not unlimited Article 368 cannot be so amended as to remove these
\nlimits nor can it be amended so as to take away the voice of the states in the amending
\nprocess. If the Constitution makers were inclined to confer the full power of a Constituent
\nAssembly, it could have been easily provided in suitable terms. If, however, the original
\npower was limited to some extent, it could not be enlarged by the body possessing the
\nlimited power. That being so, even where an amending power is expressed in wide terms,
\nit has to be exercised within the framework of the Constitution. It cannot abrogate the
\nConstitution or frame a new Constitution or alter or change the essential elements of the
\nConstitutional structure. It cannot be overlooked that the basic theory of our Constitution
\nis that “Pouvoir Constituent”, is vested in the people and was exercised, for and on other
\nbehalf by the Constituent Assembly for the purpose of framing the Constitution.\n<\/p>\n
572. To say, as has been said on behalf of the respondents, that there are only two
\ncategories of Constitutions, rigid or controlled and flexible or uncontrolled and that the
\ndifference between them lies only in the procedure provided for amendment is an over-
\nsimplification. In certain Constitutions there can be procedural and or substantive
\nlimitations on the amending power. The procedural limitations could be by way of a
\nprescribed form and manner without the satisfaction of which no amendment can validly
\nresult. The form and manner may take different forms such as a higher majority either in
\nthe houses of the concerned legislature sitting jointly or separately or by way of a
\nconvention, referendum etc. Besides these limitations, there can be limitations in the
\ncontent and scope of the power. To illustrate, although the power to amend under Article
\n5 of the U.S. Constitution resides ultimately in the people, it can be exercised in either of
\nthe modes as might be prescribed by the Congress viz. through ratification by the State
\nlegislatures or through conventions, specially convened for the purpose. The equal
\nsuffrage in the Senate granted to each of the States, cannot be altered without the consent
\nof the State. The true distinction between a controlled and an uncontrolled Constitution
\nlies not merely in the difference in the procedure of amendment, but in the fact that in
\ncontrolled Constitutions the Constitution has a higher status by whose touch-stone the
\nvalidity of a law made by the legislature and the organ set up by it is subjected to the
\nprocess of judicial review. Where there is a written Constitution which adopts the
\npreamble of sovereignty in the people there is firstly no question of the law-making body
\nbeing a sovereign body for that body possesses only those powers which are conferred on
\nit. Secondly, however representative it may be, it cannot be equated with the people. This
\nis especially so where the Constitution contains a Bill of Rights for such a Bill imposes
\nrestraints on that body, i.e. it negates the equation of that body with the people.\n<\/p>\n
573. Before concluding the topic on the interpretation or construction of the words
\n“amendment of this Constitution” in Article 368, it is necessary to deal with some
\nAmerican decisions relating to Article 5 of the American Constitution on which a great
\ndeal of reliance was placed on behalf of the respondents for establishing that the’ word
\n“amendment” has a precise and definite meaning which is of the widest amplitude. The
\nfirst relates to the 18th amendment, known as the National Prohibition cases in the State
\nof Rhode Island v. A. Mitchel Palmer 64 L. Ed. 946. In that case and other cases heard
\nwith it, elaborate arguments were addressed involving the validity of the 18th amendment
\nand of certain features of the National Prohibition Law, known as Volstead Act, which
\nwas adopted to enforce the amendment. The relief sought in each case was an injunction
\nagainst the execution of that Act. The Court merely stated its conclusions and did not
\ngive any reasons-a matter which was profoundly regretted by Chief Justice White. From,
\nthe conclusions stated and the opinion of the Chief Justice it appears that a good deal of
\ncontroversy centered on Section 2 of the amendment which read “Congress and the
\nseveral States shall have concurrent power to enforce this Article by appropriate
\nlegislation”. In the dissenting opinion of Mr. Justice Mckenna it was said that the
\nConstitutional validity of the 18th amendment had also been attacked and although he
\ndissented in certain other matters he agreed that the 18th amendment was a part of the
\nConstitution of the United States. The learned Advocate General of Maharashtra has
\nplaced a great deal of reliance on this decision. His argument is that though the judgment
\nin the Rhode Island case gives no reasons, yet it is permissible to look at the elaborate
\nbriefs filed by the counsel in several cases and their oral arguments in order to understand
\nwhat was argued and what was decided. One of the main contentions raised was that the
\n18th amendment was not in fact an amendment, for an amendment is an alteration or
\nimprovement of that which is already there in the Constitution and that term is not
\nintended to include any addition of a new grant of power. The judgment shows that this
\nargument was not regarded even worth consideration and was rejected outright. Now it is
\nsignificant that most of the justices including the Chief Justice who delivered judgments
\ndealt only with the questions which had nothing to do with the meaning of the word
\n“amendment”. It is not possible to derive much assistance from this judgment.\n<\/p>\n
574. In J.J. Dhillon v. R.W. Gloss<\/a> 65 L. Ed. 994 it was observed that an examination of
\nArticle 5 discloses that it was intended to invest Congress with a wide range of power in
\nproposing amendments. However, the following observations are noteworthy and have
\nbeen relied upon in support of the case of the petitioners that according to the United
\nStates Constitution it is the people who get involved in the matter of amendments. “A
\nfurther mode of proposal-as yet never invoked-is provided, which is, that on application
\nof two-third of the States, Congress shall call a convention for the purpose. When
\nproposed in either mode, amendments, to be effective must be ratified by the legislatures
\nor by convention in three fourths of the States as the one or the other mode of ratification
\nmay be proposed by the Congress”. Thus the people of the United States, by whom the
\nConstitution was ordained and established, have made it a condition for amending that
\ninstrument that the amendment be submitted to representative assemblies in the several
\nStates and be ratified in three-fourths of them. The plain meaning of this is (a) that all
\namendments must have the sanction of the people of the United States, the original
\nfountain of power, acting through representative assemblies, and (b) that ratification by
\nthese assemblies in three-fourths of the States shall be taken as a decisive expression of
\nthe people’s will and be binding on all.\n<\/p>\n
575. Although all the amendments were made by the method of ratification by the
\nrequisite number of State legislatures, the convention mode was adopted when the 18th
\namendment was repealed by the 21st amendment Another case, United States of America
\nv. William H. Sprague and William J. Howey 75 L. Ed. 640, 644, will be discussed more
\nfully while considering the question of implied limitations. All that it establishes for the
\npurpose of meaning of amendment is that one must look to the plain language of the
\nArticle conferring the power of amendment and not travel outside it. Article 5, it was
\nsaid, contained procedural provisions for Constitutional change by amendment without
\nany present limitation whatsoever except that no State might be deprived of equal
\nrepresentation in the Senate without its consent. Mr. Justice Douglas while delivering the
\nopinion of the court in Howard Joseph Whitehill v. Wilson Elkins 19 L. Ed. 2d. 228
\nstated in categorical terms that the Constitution prescribes the method of “alteration” by
\namending process in Article 5 and, while the procedure for amending it is restricted there
\nis no restraint on the kind of amendment that may be offered. Thus the main submission
\non behalf of the counsel for the respondents has been that Article 5 of the United States
\nConstitution served as model for Article 368 of our Constitution.\n<\/p>\n
576. Article V provides different modes of amendment These may be analysed as
\nfollows:\n<\/p>\n
577. The proposals can be made-,
\n(1) By two thirds of both Houses of the Congress or
\n(2) By a Convention for proposing amendments to be called by the
\nCongress on the application of legislatures of two-thirds of the States.\n<\/p>\n
578. The ratification of the proposals has to be made by
\n(1) Legislatures of three fourths of the States or
\n(2) by Conventions in three fourths thereof (as one of the other mode of
\nratification may be proposed by the Congress)
\nIn Hawke v. Smith 64 L. Ed. 871, the question raised was whether there was any conflict
\nbetween Article 5 of the U.S. Constitution which gave power to the Congress to provide
\nwhether the ratification should be by State Legislatures or Conventions and the
\nConstitution of Ohio as amended. The Supreme Court held that Article 5 was grant of
\nauthority by the people to Congress. The determination of the method of ratification was
\nthe exercise of the national power specifically granted by the Constitution and that power
\nwas limited to two methods, by the State Legislatures or by Conventions. The method of
\nratification, however, was left to the choice of Congress. The language of the Article was
\nplain and admitted of no doubt in its interpretation. In that case the Constitution of Ohio
\neven after amendment which provided for referendum vested the legislative power
\nprimarily in a General Assembly consisting of a Senate and a House of Representatives.
\nThough the law making power of a State was derived from the people the power to ratify
\na proposed amendment to the Federal Constitution had its source in that Constitution. The
\nact of ratification by the State derived its authority from the federal Constitution.
\nTherefore, in order to find out the authority which had the power to ratify, it was Article
\n5, to which one had to turn and not to the State Constitution. The choice of means of
\nratification was wisely withheld from conflicting action in the several States.\n<\/p>\n
579. On behalf of the respondents it is claimed that these decisions establish that the
\npower of amendment conferred by Article 5 was of the widest amplitude. It could be
\nexercised through the representatives of the people, both in the Congress and the State
\nLegislatures. In the case of Article 368 also Parliament consists of representatives of the
\npeople and the same analogy can be applied that it is a grant of authority by the people to
\nthe Parliament. This argument loses sight of the fact that under the American theory of
\ngovernment, power is inherent in the people including the right to alter and amend the
\norganic instrument of government. Indeed, practically all the State Constitutions associate
\nthe people with the amending process. The whole basis of the decisions of the Supreme
\nCourt of the United States and of some of the State Supreme Courts is that it is the people
\nwho amend the Constitution and it is within their power to make the federal Constitution
\nor unmake it. The reason is quite obvious. So far as Article 5 of the American
\nConstitution is concerned, out of the alternative methods provided for amendment, there
\nis only one in which the people cannot get directly associated, whereas in the others they
\nare associated with the amending process, e.g., proposal of amendment by two-thirds of
\nboth Houses of Congress and its ratification by conventions in three-fourths of the States
\nor a proposal of amendment by a convention called on the application of two-thirds of the
\nState Legislatures and its ratification by either convention in three-fourths of the States or
\nby the Legislature of the same number of States.\n<\/p>\n
580. The meaning of the words “amendment of this Constitution” as used in Article 368
\nmust be such which accords with the true intention of the Constitution makers as
\nascertainable from the historical background, the Preamble, the entire scheme of the
\nConstitution, its structure and framework and the intrinsic evidence in various Articles
\nincluding Article 368. It is neither possible to give it a narrow meaning nor can such a
\nwide meaning be given which can enable the amending body to change substantially or
\nentirely the structure and identity of the Constitution. Even the concession of the learned
\nAttorney General and the Advocate General of Maharashtra that the whole Constitution
\ncannot be abrogated or repealed and a new one substituted supports the conclusion that
\nthe widest possible meaning cannot be given to it.\n<\/p>\n
581. Coming to the question of what has been called ‘inherent and implied limitations’ to
\nthe amending power in Article 368 of our Constitution. Mr. Palkhivala has maintained
\nthat inherent limitations are those which inhere in any authority from its very nature,
\ncharacter and composition whereas implied limitations are those which are not expressed
\nbut are implicit in the scheme of the Constitution conferring the power. He maintains that
\nthe “rule is established beyond cavil that in construing the Constitution of the United
\nStates, what is implied is as much a part of the instrument as what is expressed”,
\nAmerican Jurisprudence (2d), Vol. 16, p. 251 Although the courts have rejected in
\nvarious cases a plea that a particular inherent or implied limitation should be put upon
\nsome specific Constitutional power, no court, says Mr. Palkhivala, has ever rejected the
\nprinciple that such limitations which are fairly and properly deducible from the scheme of
\nthe Constitution should be read as restrictions upon a power expressed in general terms.
\nSeveral decisions of our court, of the Privy Council, Irish courts, Canadian and Australian
\ncourts have been cited in support of the contention advanced by him. The approach to this
\nquestion has essentially to be to look at our own decisions first. They fall in two
\ncategories. In one category are those cases where limitations have been spelt out of
\nConstitutional provisions; the second category consists of such decisions as have laid
\ndown that there is an implied limitation on legislative power.\n<\/p>\n
582. Taking up the cases of the first category, before 1955, Article 13(2) was read as
\ncontaining an implied limitation that the State could acquire property only for a public
\npurpose. (The Fourth Amendment expressly enacted this limitation in 1955). It was
\nobserved in Chiranjit Lal Chowdhauri v. The Union of India and Ors.<\/a> [1950] S.C.R. 869
\nat p. 902 that one limitation imposed upon acquisition or taking possession of private
\nproperty which is implied in the clause is that such taking must be for a public purpose.
\nMahajan J., (later Chief Justice) said in the State of Bihar v. Maharajadhiraja Sir
\nKameshwar Singh of Darbhanga and Ors.<\/a> [1952] S.C.R. 889 at p. 934 that the existence
\nof a public purpose is undoubtedly an implied condition of the exercise of compulsory
\npower of acquisition by the State. The power conferred by Articles 3 and 4 of the
\nConstitution to form a new State and amend the Constitution for that purpose has been
\nstated to contain the implied limitation that the new State must conform to the democratic
\npattern envisaged by the Constitution and the power which Parliament can exercise is not
\nthe power to override the Constitution Mangal Singh and Anr. v. Union of India<\/a> [1967] 2
\nS.C.R. 109 at p. 112 scheme. It may be mentioned that so far as Article 368 is concerned
\nthere seems to have been a good deal of debate in Golak Nath’s case on the question
\nwhether there were any inherent or implied limitations. Dealing with the argument that in
\nexercise of the power of amendment Parliament could not destroy the structure of the
\nConstitution but it could only modify the provisions thereof within the framework of its
\noriginal instrument for its better effectuation, Subba Rao C.J. observed that there was no
\nnecessity to express any opinion on this all important question owing to the view which
\nwas being taken with regard to the meaning of the word “law” in Article 13(2). But it was
\nrecognised that the argument had considerable force. Wanchoo J. (as he then was)
\nconsidered the question of implied limitations at some length but felt that if any implied
\nlimitation that basic features of the Constitution cannot be changed or altered, were to be
\nput on the power of amendment, the result would be that every amendment made in the
\nConsitution would involve legal wrangle. On the clear words of Article 368 it was not
\npossible to infer any implied limitation on the power of amendment Hidayatullah J., (later
\nChief Justice) discussed the question of implied limitations and referred to the spate of
\nwritings on the subject. He expressed no opinion on the matter because he felt that in our
\nConstitution Article 13(2) took in even consitutional amendments. Bachawat J., disposed
\nof the matter by saying that the argument overlooked the dynamic character of the
\nConstitution. Ramaswami J., clearly negatived the argument based on implied limitations
\non the ground that if the amending power is an adjunct of sovereignty it does not admit of
\nany limitation.\n<\/p>\n
583. The cases which fall in the second category are decidedly numerous. It has been
\nconsistently laid down chat there is an implied limitation on the legislative power; the
\nlegislature cannot delegate the essentials of the legislative function. Mukherjea J. (who
\nlater became Chief Justice) in Re. Delhi Laws Act 1912 case (1951) S.C.R. 747 at pp.
\n984-985 stated in clear language that the right of delegation may be implied in the
\nexercise of legislative power only to the extent that it is necessary to make the exercise of
\nthe power effective and complete. The same implied limitation on the legislature, in the
\nfield of delegation, has been invoked in Raj Narain Singh v. Patna Administration [1955]
\n2 S.C.R. 290; Hari Shankar Bagla v. State of Madhya Pradesh<\/a> [1955] 1 S.C.R. 380;
\nVasantlal Sanjanwala v. State of Bombay<\/a> [1961] 1 S.C.R. 341; The Municipal
\nCorporation of Delhi v. Birla Cotton Mills<\/a> [1968] 3 S.C.R. 251 and Grewal D.S. v. State
\nof Punjabi [1959] Supp. 1 S.C.R. 792. Implied limitations have also been placed upon the
\nlegislature which invalidates legislation usurping the judicial power : See for instance
\nShri Prithvi Cotton Mills Ltd. v. Broach Borough Municipality and Ors.<\/a> (1970) 1 S.C.R.
\n388 at pp. 392-393 and Municipal Corporation of the City of Ahmedabad Etc. v. New
\nShorock Spg. and Wvg. Co. Ltd.<\/a> etc. (1971) 1 S.C.R. 288 at pp. 294-297.\n<\/p>\n
584. Before we go to cases decided by the courts in other countries it may be useful to
\nrefer to some of the Constitutional provisions which are illustrative of the concept of
\nimplications that can be raised from the language and context thereof. The first provision
\nin point is Article 368 itself. It has been seen at the stage of previous discussion that the
\npower to amend is to be found in that Article only by implication as there is no express
\nconferment of that power therein. The learned Solicitor General made a concession that
\nvarious Articles are included by implication in the clauses of the provision by reason of
\nthe necessity for giving effect to the express power contained therein, e.g., Articles 52
\nand 53 must be so read as to impliedly include the power to amend Articles 54 and 55
\nwhich are not expressly mentioned in Clause (a) of the proviso. It has been implied that
\nthe President has been made a formal or a Constitutional head of the executive and the
\nreal executive power vests in the council of ministers and the Cabinet R.S. Ram Jawaya
\nKapur and Ors. v. The State of Punjab [1955] 2 S.C.R. 225. Article 53 declares that the
\nexecutive power of the Union shall be vested in the President; Article 74 provides for a
\ncouncil of ministers headed by the Prime Minister to aid and advise the President in
\nexercise of his functions. Article 75 says that the Prime Minister shall be appointed by the
\nPresident and the other ministers shall be appointed by him on the advice of the Prime
\nMinister. The ministers shall hold office during the pleasure of the President and the
\ncouncil of ministers shall be collectively responsible to the House of the People.
\nAlthough the executive power of the President is apparently expressed in unlimited
\nterms, an implied limitation has been placed on his power on the ground that he is a
\nformal or Constitutional head of the executive and that the real executive power vests in
\nthe council of ministers. This conclusion which is based on the implications of the
\nCabinet System of government can be said to constitute an implied limitation on the
\npower of the President and the GovernOrs.\n<\/p>\n
585. It may be mentioned in all fairness to the Advocate General of Maharashtra that the
\ncourt did not desire him to address in detail about the President or the Governor being a
\nConstitutional head and the implications arising from the system of Cabinet Government.
\nThe decisions thereon are being referred to for the purpose of noticing that according to
\nthem the President or the Governor though vested with full executive powers cannot
\nexercise them personally and it is only the council of ministers which exercises all the
\nexecutive functions. This is so, notwithstanding the absence of any express provisions in
\nthe Constitution to that effect.\n<\/p>\n
586. Next, reference may be made to the decisions of the Privy Council relied on by one
\nside or the other for deciding the question under consideration. The Advocate General of
\nMaharashtra laid much stress on the principle enunciated in Queen v. Burah (1878) 3
\nA.C. 889 at pp. 904-5, which according to him, has been consistently followed by the
\nFederal Court and this Court. The principle is that when a question arises whether the
\nprescribed limits have been exceeded the court must look to the terms of the instrument
\n“by which affirmatively, the legislative powers were created and by which, negatively,
\nthey were restricted. If what has been done is legislation within the general scope of the
\naffirmative words which give the power, and if it violates no express condition or
\nrestriction by which that power is limited…it is not for any court of justice to inquire
\nfurther, or to enlarge constructively those conditions or restrictions”. The ratio of that
\ndecision is that conditional legislation is to be distinguished from delegation of legislative
\npower and that conditional legislation is within the power of the legislature in the absence
\nof any express words prohibiting conditional legislation. The oft-quoted words about the
\naffirmative conferment of power and absence of express restriction on the power are used
\nonly to repel the contention that conditional legislation was barred by implication. It is
\nsignificant that if Queen v. Burah (1878) 3 A.C. 889 at pp. 904-5 is to be treated as laying
\ndown the principle that the powers in a Constitution must be conferred only in affirmative
\nwords the argument of the respondents itself will suffer from the infirmity that it is only
\nby necessary implication from the language of Article 368 (before the 24th Amendment)
\nthat the source of the amending power can be said to reside in that Article. There were no
\nsuch words in express or affirmative terms which conferred such a power. Indeed in
\nGolak Nath’s (1967) 2 S.C.R. 762 case there was a sharp divergence of opinion on this
\npoint. Subba Rao C.J. with whom four other judges agreed held that the source of the
\namending power was to be found in the provisions conferring residuary provisions,
\nnamely, Article 248 read with Entry 97 in the Seventh Schedule. The other six judges
\nincluding Hidayatullah J. were of the view that the power was to be found in Article 368
\nitself.\n<\/p>\n
587. In The Initiative and Referendum Act [1919] A.C. 935 the position briefly was that
\nthe British North America Act 1867, Section 92, head I, which empowered a Provincial
\nLegislature to amend the Constitution of the Province, “excepting as regards the office of
\nthe Lieutenant-Governor,” excluded the making of a law which abrogated any power
\nwhich the Crown possessed through the Lieutenant Governor who directly represented
\nthe Crown. The Legislative Assembly of Manitoba passed the Initiative and Referendum
\nAct. It compelled the Lieutenant Governor to submit a proposed law to a body of voters
\ntotally distinct from the legislature of which he was the Constitutional head. The Privy
\nCouncil was of the opinion that under the provisions of that law the Lieutenant Governor
\nwas rendered powerless to prevent a proposed law when passed in accordance with the
\nAct from becoming actual law. The language of the Act could not be construed otherwise
\nthan as intended, seriously affecting the position of the Lieutenant Governor as an
\nintegral part of the legislature and to detract from the rights which were important in the
\nlegal theory of that position. Section 92 of the Act of 1867 entrusted the legislative power
\nin a Province to its legislature and that legislature only. A body that has power of
\nlegislation on the subjects entrusted to it, the power being so ample as that enjoyed by a
\nProvincial legislature in Canada, could while “preserving its own capacity intact seek the
\nassistance of a subordinate agency…but it does not follow that it can create and endow
\nwith its own capacity a new legislative power not created by the Act to which it owes
\nown existence” Ibid at p. 945.\n<\/p>\n
588. This case is more in point for consideration of validity of that part of the 25th
\nAmendment which inserted Article 31-C but it illustrates that an implied limitation was
\nspelt out from the Constitutional provisions of the British North America Act 1867 which
\nconferred legislative power on the legislatures of provinces as constituted by that Act.\n<\/p>\n
589. McCawley v. The King (1920) A.C. 691 was another case involving Constitutional
\nquestions. The legislature of Queensland (Australia) had power to include in an Act a
\nprovision not within the express restrictions contained in the Order in Council of 1959.
\nBut inconsistent with the term of the Constitution of Queensland, without first amending
\nthe term in question under the powers of amendments given to it, the Industrial
\nArbitration Act of 1916 contained provisions authorising the Government in Council to
\nappoint any Judge of the Court of Industrial Arbitration to be a Judge of the Supreme
\nCourt of Queensland. After explaining the distinction between a controlled and an
\nuncontrolled Constitution, their Lordships proceeded to examine the contention that the
\nConstitution of Queensland could not be altered merely by enacting legislation
\ninconsistent with its article; it could only be altered by an Act which in plain and
\nunmistakable language referred to it; asserted the intention of the legislature to alter it,
\nand consequentially gave effect to that intention by its operative provisions. That
\nargument was repelled by saying Ibid p. 706.\n<\/p>\n
It was not the policy of the Imperial Legislature at any relevant period to
\nshackle or control in the manner suggested, the legislative power of the
\nNascent Australian Legislations.\n<\/p>\n
Section 5 of the Colonial Laws Validity Act 1865 was held to have clearly conferred on
\nthe colonial legislatures a right to establish courts of judicature and to abolish and
\nreconstitute them. A question had been raised that the Constitution Act of 1867 enacted
\ncertain fundamental organic provisions of such a nature as to render the Constitution
\ncontrolled. It was said that if a change of that nature was contemplated, there would have
\nbeen some indication in the very lengthy preamble of the Act, of that intention. Their
\nLordships could observe nowhere in the preamble the least indication that it was intended
\nfor the first time to make provisions which were sacrosanct, or which at least could only
\nbe modified by methods never previously required. It was finally held that the legislature
\nof Queensland was the master of its own household except in so far as its power had in
\nspecial cases been restricted. No such restriction had been established and none in fact
\nexisted.\n<\/p>\n
590. The Advocate General of Maharashtra has sought to deduce the following
\npropositions from the dissenting judgment of Issacs and Rich JJ of the Australian High
\nCourt which was approved by the Privy Council in the above case:
\n(1) Unless there is a special procedure prescribed for amending any part of
\nthe Constitution, the Constitution is uncontrolled and can be amended by
\nthe manner laid down for enacting ordinary law and, therefore, a
\nsubsequent law inconsistent with the Constitution would pro-tanto repeal
\nthe Constitution.\n<\/p>\n
(2) A Constitution largely or generally uncontrolled may contain one or
\nmore provisions which prescribe a different procedure for amending them.
\nIn that case an ordinary law cannot amend them and the procedure must be
\nstrictly followed if the amendment is to be effected.\n<\/p>\n
(3) The implication on limitation of power ought not to be imported from
\ngeneral concepts but only from express or necessarily implied limitations
\n(emphasis supplied).\n<\/p>\n
(4) While granting powers to the colonial legislatures, the British
\nParliament as far back as 1865 refused to put limitations of vague
\ncharacter, but limited those limitations to objective standards e.g., statutes,
\nstatutory regulations, etc. to objective standards.\n<\/p>\n
591. We have already repelled at an earlier stage Pp. 70-71 the contention that the only
\ndistinction between a controlled and an uncontrolled Constitution is that in the former the
\nprocedure prescribed for amending any part of the Constitution has to be strictly
\nfollowed. The second proposition is of a similar nature and can hardly be disputed. As
\nregards the third and fourth proposition all that need be said is that implied limitation
\nwhich was sought in McCawley’s case by counsel for the respondents was that the
\nQueensland legislature should first amend the Constitution and then pass an Act which
\nwould otherwise have been inconsistent, for the Constitution had not been amended. That
\ncontention in terms was rejected. The Constitution in McCawley’s case was uncontrolled
\nand therefore the Queensland legislature was fulley empowered to enact any Constitution
\nbreaking law. Moreover Lord Birkenhead in an illuminating passage in McCawley’s
\n[1920] A.C. 691 at pp. 703-704 case has himself referred to the difference of view among
\nwriters upon the subject of Constitutional law which may be traced “mainly to the spirit
\nand genius of the nation in which a particular Constitution has its birth”. Some
\ncommunities have “shrunk from the assumption that a degree of wisdom and foresight
\nhas been conceded to their generation which will be, or may be, wanting to their
\nsuccessors”. Those who haw adopted the other view probably believed that “certainty and
\nstability were in such a matter the supreme desiderata”. It was pointed out that different
\nterms had been employed by the text book writers to distinguish between those who
\ncontrasted forms of Constitution. It was added:\n<\/p>\n
Their special qualities may perhaps be exhibited as clearly by calling the
\none a controlled and the other an uncontrolled Constitution as by any other
\nnomenclature.\n<\/p>\n
592. Lord Birkenhead did not make any attempt to define the two terms “controlled” and
\n“uncontrolled” as precise legal terms, but merely used them as convenient expressions.\n<\/p>\n
593. The next case of importance is Attorney General for New South Wales v.
\nTrethowan. (1932) A.C. 526 The Constitution Act, 1902 enacted by the legislature of
\nNew South Wales, was amended in 1929 by adding Section 7-A which provided that no
\nBill for abolishing the Legislative Council should be presented to the Governor for His
\nMajesty’s assent until it had been approved by a majority of the electors voting upon a
\nsubmission made in accordance with the section. The same provision was to apply to a
\nBill for repealing that section. In 1930 two Bills were passed by the Legislature. One was
\nto repeal Section 7-A and the other to abolish the Legislative Council. Neither of the two
\nBills had been approved in accordance with Section 7-A. Reference was made to Section
\n5 of the Colonial Laws Validity Act 1865, which conferred on the Legislature of the State
\nfull power to make laws inter alia in respect of the Constitution in such “manner and
\nform” as might from time to time be provided by any Act of Parliament Letters Patent,
\nColonial law in force in the colony etc. It was held that the whole of Section 7-A was
\nwithin the competence of the legislature of the State under Section 5 of the Colonial
\nLaws Validity Act. The provision that the Bills must be approved by the electors before
\nbeing presented was a provision as to form and manner and accordingly the Bills could
\nnot lawfully be presented unless and until they had been approved by a majority of the
\nelectors voting. A number of contentions were raised, out of which the following may be
\nnoted:\n<\/p>\n
(a) The Legislature of New South Wales was given by the Imperial
\nStatutes plenary power to alter the Constitution, powers and procedure of
\nsuch Legislature.\n<\/p>\n
(b) When once the Legislature had altered either the Constitution or
\npowers and procedure, the Constitution and powers and procedure as they
\npreviously existed ceased to exist and were replaced by the new
\nConstitution and powers.\n<\/p>\n
594. According to their lordships the answer depended entirely upon a consideration of
\nthe meaning of Section 5 of the Colonial Laws Validity Act read with Section 4 of the
\nConstitution statute assuming that the latter section still possessed some operative effect.
\nThe whole of Section 7-A was held to be competently enacted. The Privy Council,
\nhowever, held that the repealing Bill after its passage through both Chambers could not
\nbe lawfully presented for the Royal assent without having first received the approval of
\nthe electors in the prescribed manner. In order to be validly passed, the law must be
\npassed in the manner prescribed by Section 7-A which was in force for the time being.
\nTrethowan’s case (supra) fully illustrates how the Privy Council enforced such limitations
\neven though they were of a procedural nature which had been provided in a
\nConstitutional statute relating to the form and manner in which any such statute could be
\naltered or repealed.\n<\/p>\n
595. These decisions, in particular, (Trethowan’s case) illustrate that the Privy Council
\nhas recognised a restriction on the legislative powers of a sovereign legislature even
\nthough that is confined only to the form and manner laid down in a Constitution for
\namending the Constitution Act In a country which still sticks to the theory of
\nParliamentary sovereignty, limitations of any other nature would be regarded as
\nsomewhat non-conformist and unorthodox.\n<\/p>\n
596. The decision of the Privy Council in the Bribery Commissioner v. Pedrick
\nRanasinghe [1965] A.C. 172 has been heavily relied on by both sides. On behalf of the
\npetitioners support has been sought from the observations relating to rights regarded as
\nfundamental, being unalterable. What had happened there was that by virtue of Section
\n41 of the Bribery Amendment Act 1956, a provision was made for the appointment of a
\nBribery Tribunal which was in conflict with the requirement in Section 55 of the Ceylon
\nConstitution (Order in Council 1946), hereinafter called the ‘Ceylon Constitution Act’,
\naccording to which the appointment of Judicial Officers was vested in the Judicial
\nService Commission. Section 29 of the Ceylon Constitution Act provided by Sub-section
\n(1) that subject to the provisions of the Order, the Parliament had the power to make laws
\nfor the peace, order and good government of the island. By Sub-section (2) it was
\nprovided that no such law shall (a) prescribe or restrict the free exercise of any religion
\netc. This was followed by Clauses (b), (c) and (d) which set out further religious and
\nracial matters, which according to their Lordships, could not be the subject of legislation.
\nIn the words of their Lordships “they represent the solemn balance of rights between the
\ncitizens of Ceylon, the fundamental conditions on which inter se they accepted the
\nConstitution; and these are therefore unalterable under the Constitution”. By Sub-section
\n(3) any law made in contravention of Sub-section (2) was to be void to the extent of such
\ncontravention. Sub-section (4) may be reproduced below:\n<\/p>\n
(4) In the exercise of its powers under this section, Parliament may amend
\nor repeal any of the provisions of this Order, or of any other Order of Her
\nMajesty in Council in its application to the Island:\n<\/p>\n
Provided that no Bill for the amendment or repeal of any of
\nthe provisions of this Order shall be presented for the Royal
\nAssent unless it has endorsed on it a certificate under the
\nhand of the Speaker that the number of votes cast in favour
\nthereof in the House of Representatives amounted to not
\nless than two-thirds of the whole number of Members of
\nthe House (including those not present).\n<\/p>\n
Every certificate of the Speaker under this sub-section shall be conclusive
\nfor all purposes and shall not be questioned in any court of law.\n<\/p>\n
597. The Bribery Amendment Act 1958 had not been enacted in accordance with the
\nprovisions contained in Sub-section (4) of Section 29 of the Ceylon Constitution Act. As
\nit involved a conflict with the Constitution, it was observed that a certificate of the
\nSpeaker as required by Sub-section (4) was a necessary part of the Act making process.
\nThe point which engaged the serious attention of the Privy Council was that when a
\nsovereign Parliament had purported to enact a Bill and it had received the Royal, Assent,
\ncould it be a valid Act in course of whose passing there was a procedural defect, or was it
\nan invalid Act which Parliament had no power to pass in that manner ? A distinction was
\nmade while examining the appellant’s arguments between Section 29(3) ‘which expressly
\nmade void any Act passed in respect of the matters entrenched in and prohibited by
\nSection 29(2); whereas Section 29(4) made no such provisions, but merely couched the
\nprohibition in procedural terms. Reliance had been place on behalf of the appellant
\nBribery Commissioner on the decision in McCawley’s case. It was pointed out that
\nMcCawley’s case, so far as it was material, was in fact opposed to the appellant’s
\nreasoning. It was distinguished on the ground that the Ceylon legislature had purported to
\npass a law which being in conflict with Section 55 of the Ceylon Constitution Act, must
\nbe treated, if it was to be valid, as an implied alteration of the Constitutional provisions
\nabout the appointment of judicial officers. It was held that such alterations, even if
\nexpressed, could only be made by laws which complied with the special legislative
\nprocedure laid down in Section 29(4). The Ceylon Legislature did not have the general
\npower to legislate so as to amend its Constitution by ordinary majority resolutions such as
\nthe Queensland Legislature was found to have under Section 2 of its Constitution Act.\n<\/p>\n
598. The learned Advocate General of Maharashtra has referred to the arguments in
\nRanasinghe’s case and has endeavoured to explain the observations made about the
\nentrenched provisions being unalterable by saying that the same were obiter. According
\nto him it was not the respondent’s case that any provision was unamendable. The
\nreferences to the solemn compact etc. were also obiter because the appeal did not raise
\nany question about the rights of religion protected by Sub-section (2) or Section 29 and
\nthe issues were entirely different. It is claimed that this decision supports the position
\ntaken up on behalf of the respondents that it is only the form and manner which is
\nmaterial in a controlled Constitution and that the above decision is an authority for the
\nproposition that in exercise of the amending power a controlled Constitution can be
\nconverted into an uncontrolled one. Any implied limitations on Parliament’s amending
\npower here can be abrogated by an amendment of Article 368 itself and the amending
\npower can be enlarged by an exercise of that very power. According to Mr. Palkhivala
\nthis argument is wholly fallacious. Firstly, the observations of the Privy Council Ibid p.
\n198 is merely on the form and manner of amendment and has nothing to do with
\nsubstantive limitations on the power of amendment. Placing limits on the amending
\npower cannot be confused with questions of special legislative process which is also
\nreferred to by their Lordships. Ibid portions D to E Secondly, the Ceylon Constitution
\nauthorised the Parliament to amend or repeal the Constitution, which power is far wider
\nthan the power of amendment simpliciter conferred by Article 368. It is suggested that
\nRanasinghe’s case is a direct authority against the respondents since it held the religious
\nand racial rights to be unalterable, which clearly implies that Parliament had no
\ncompetence to take away those rights even in exercise of its power to amend the
\nConstitution by following the prescribed form and manner in Sub-section (4) of Section
\n29 of the Ceylon Constitution Act. The material importance of this case is that even
\nthough observations were made by the Lordships which may in a sense be obiter those
\nwere based on necessary implications arising from Section 29 of the Ceylon Constitution
\nAct and were made with reference to interpretation of Constitutional provisions which
\nhad a good deal of similarity (even on the admission of the Advocate General of
\nMaharashtra) with some parts of our Constitution, particularly those which relate to
\nfundamental rights.\n<\/p>\n
599. Don John Francis Douglas Liyange v. The Queen [1967] 1 A.C. 259 is another
\ndecision on which strong reliance has been placed on behalf of the petitioners. The
\nCeylon Parliament passed an Act which substantially modified the Criminal Procedure
\nCode inter alia by purporting to legalise an ex-post facto detention for 60 days of any
\nperson suspected of having committed an offence against the State. This class of offences
\nfor which trial without a jury by three Judges nominated by the Minister for Justice could
\nbe ordered was widened and arrest without a warrant for waging war against the Queen
\ncould be effected. New minimum penalties for that offence were provided. The Privy
\nCouncil held that the impugned legislation involved a usurpation and infringement by the
\nlegislature of judicial powers inconsistent with the written Constitution of Ceylon which,
\nwhile not in terms vesting judicial functions in the judiciary, manifested an intention to
\nsecure in the judiciary a freedom from political, legislative and executive control and in
\neffect left untouched the judicial system established by the Charter of Justice of 1833.
\nThe legislation was struck down as void. Their Lordships observed inter alia that powers
\nin case of countries with written Constitutions must be exercised in accordance with the
\nterms of the Constitution from which they were derived. Reference was made to the
\nprovisions in the Constitution for appointment of Judges by the Judicial Service
\nCommission and it was pointed out that these provisions manifested an intention to
\nsecure in the judiciary a freedom from political, legislative and executive control. It was
\nsaid that these provisions were wholly appropriate in a Constitution which intended that
\njudicial power shall vest only in the judicature. And they would be inappropriate in a
\nConstitution by which it was intended that judicial power should be shared by the
\nexecutive or the legislature.\n<\/p>\n
600. There seems to be a good deal of substance in the submission of Mr. Palkhivala that
\nthe above decision is based on the principle of implied limitations; because otherwise
\nunder Section 29(1) of the Ceylon Constitution Act Parliament was competent to make
\nlaws for the peace, order and good government of the island subject to the provisions of
\nthe Order. Strong observations were made on the true nature and purpose of the
\nimpugned enactments and it was said that the alterations made by them in the functions
\nof the judiciary constituted a grave and deliberate incursion in the judicial sphere. The
\nfollowing passage is noteworthy and enlightening:\n<\/p>\n
If such Acts as these were valid the judicial power could be wholly
\nabsorbed by the legislature and taken out of the hands of the judges. It is
\nappreciated that the legislature has no such general intention. It was beset
\nby a grave situation and it took grave measures to deal with it, thinking,
\none must presume, that it had power to do so and was acting rightly. But
\nthat consideration is irrelevant, and gives no validity to acts which infringe
\nthe Constitution. What is done once, if it be allowed, may be done again
\nand in a lesser crisis and less serious circumstances. And thus judicial
\npower may be eroded. Such an erosion is contrary to the clear intention of
\nthe Constitution.\n<\/p>\n
601. Mohamed Samsudden Kariapper v. S.S. Wijesinha and Anr. [1968] Appeal Cases
\n717 has been cited on behalf of the State of Kerala for the proposition that judicial power
\ncould, by an amendment of our Constitution, be transferred to the legislature thus
\nnegativing the principle of implied limitation. In that case a report had been made under
\nthe Commission of Inquiry Act about certain allegations of bribery having been proved
\nagainst some members of the Parliament of whom the appellant was one. Under a certain
\nAct civil disabilities on persons to whom the Act applied were imposed. It also contained
\na provision that in the event of inconsistency with existing law, the Act should prevail.
\nThe appellant challenged the validity of that Act on the ground that it was inconsistent
\nwith the Constitution and was usurpation of the judicial power. It may be mentioned that
\nthe Speaker had, in accordance with the proviso to Section 29(4) of the Constitution of
\nCeylon, endorsed a certificate under his hand on the bill for imposition of civic
\ndisabilities (Special Provisions) Act. The Privy Council held that the said Act was an
\nexercise of legislative power and not the usurpation of judicial power. The Constitution
\nof Ceylon was a controlled Constitution and the Act was an inconsistent law; the Act was
\nto be regarded as amending the Constitution unless some provisions denying the Act
\nConstitutional effect was to be found in the Constitutional restrictions imposed on the
\npower of amendment. Apart from the proviso to Section 29(4) of the Constitution Act,
\nthere was no reason for not construing the words “amend or repeal” in that provision as
\nextending to amendment or repeal by inconsistent law. The Act, therefore, amended the
\nConstitution. Finally upon the merits it was observed that in view of the conclusion that
\nthe Act was a law and not an exercise of judicial power it was not necessary to consider
\nthe question whether Parliament could, by a law passed in accordance with the proviso to
\nSection 29(4), both assume judicial power and exercise it in the one law.\n<\/p>\n
602. The above decision can certainly be invoked as an authority for the proposition that
\neven in a controlled Constitution where the form and manner had been followed of
\namending it, an Act, which would be inconsistent with it and which did not in express
\nterms state that it was an amending Act, would have the effect of altering the
\nConstitution. But it does not support any suggestion, as has been made on behalf of the
\nrespondents, that judicial power could, by an amendment of our Constitution, be
\ntransferred to the legislature. Moreover, as expressly stated by their lordships, the Ceylon
\nConstitution empowered the Parliament “to amend or repeal” the Constitution and,
\ntherefore, there can be no comparison between the scope of the Ceylon Parliament’s
\namending power and that of the amending body under Article 368.\n<\/p>\n
603. We may next deal with the Australian decisions because there has been a good deal
\nof discussion in them about implied limitations which can arise in the absence of express
\nlimitations. The subject matter of most of the decisions has been the Commonwealth’s
\ntaxing power. Section 51 of the Australian Constitution grants power to legislate with
\nregard to taxation to the Commonwealth in wide terms but with certain express
\nreservations, viz., that duties of customs should be uniform, that the taxing laws must not
\ndiscriminate between States, nor must revenue laws give preference to one State over
\nanother State. Section 114 bars the Commonwealth from taxing property of any kind
\nbelonging to a State. In Amalgamated Society of Engineers v. Adelaide Steamship Co.
\nLtd. [1920] 28 C.L.R. 129 the High Court of Australia accepted the principles of
\nconstruction of a Constitution laid down by the Privy Council in Reg v. Burah [1878] 3
\nA.C. 889 and Att. Gen. of Ontario v. Att. Gen. of Canada [1912] A.C. 571 viz., that the
\nonly way in which a court can determine whether the prescribed limits of legislative
\npower had been exceeded or not was “by looking to the terms of the instrument by which
\naffirmatively, the legislative powers are created, and by which negatively, they are
\nrestricted”; nothing was to be read into it on ground of policy of necessity arising or
\nsupposed to arise from the nature of the federal form of government nor were
\nspeculations as to the motives of the legislature to be entered into by the Court. These
\nwords would apparently appear to reject any proposition as to implied limitations in the
\nConstitution against an exercise of power once it is ascertained in accordance with the
\nordinary rules of construction. Such an interpretation of the Engineers’ case [1920] 28
\nC.L.R. 129 supposed to have buried for ever the principle of implied limitations, has not
\nbeen unanimously accepted nor has the above criterion laid down been adhered to. In Att.
\nGen. of New South Wales v. Brewery Employees Union [1908] 6 C.L.R. 469 at pp. 611-
\n612, Higgins, J. cautioned that “although the words of the Constitution are to be
\ninterpreted on the same principles of interpretation as are applied to any ordinary law,
\nthese very principles of interpretation compel us to take into account the nature and scope
\nof the Act-“to remember that it is a Constitution, a mechanism under which laws are to be
\nmade, and not a mere Act which declares what the law is to be”. Sir Owen Dixon in
\nAustralian Railways Union v. Victorian Railway Commissioners [1930] 44 C.L.R. 319,
\n390 and later in West v. Commissioner of Taxation [1937] 56 C.L.R. 657, 682
\nformulated what in his view was the basic principle laid down in Engineers’ case (Supra)
\nand made observations relating to reservations of qualifications, which he thought had
\nbeen made, concerning the prima facie rule of interpretation which that decision laid
\ndown. In Ex-parte Professional Engineers Association [1959] 107 C.L.R. 208, 239 he
\nonce again adverted to the Engineers’ case and suggested that perhaps “the reservations
\nand qualifications therein expressed concerning the federal power of taxation and laws
\ndircted specially to the states and also perhaps the prerogative of the Crown received too
\nlittle attention.” The question as to implied limitations was directly raised and decided in
\nthe Melbourne Corporation v. Commonwealth. [1947] 74 C.L.R. 31 It was held that
\nSection 48 of the Banking Act, 1945, prohibiting banks from conducting banking
\nbusiness for a state and for any authority of the state, including a local government
\nauthority was invalid. Two contentions were raised in that case : (1) that the impugned
\nAct was not a law on banking within Section 51(xiii) because it was not a law with
\nrespect to banking, and (2) that the grant of power in Section 51(xiii) must be read
\nsubject to limitations in favour of the State because it appears in a federal Constitution, so
\nthat even if Section 48 could be treated as a law with respect to banking, it was stall
\ninvalid since its operation interfered with the states in the exercise of their governmental
\nfunctions. The second contention was accepted by the majority. Latham C.J. stated that
\nlaws which discriminated against states or which unduly interfered with states in the
\nexercise of their functions of government were not laws authorised by the Constitution,
\neven if they were laws with respect to a subject matter within the legislative power of the
\nCommonwealth Parliament. Rich J., held that the Constitution expressly provided for the
\ncontinued existence of the States and that, therefore, any action on the part of the
\nCommonwealth, in purported exercise of its Constitutional powers, which would prevent
\na State from continuing to exist or function as such was necessarily invalid because of
\ninconsistency with the express provisions of the Constitution. Stark, J. said that the
\nfederal character of the Australian Constitution carried implications of its own, that the
\ngovernment was a dual system based upon a separation of organs and of powers and,
\nconsequently, maintenance of the States and their powers was as much the object of the
\nConstitution as maintenance of the Commonwealth and its powers. Therefore, it was
\nbeyond the power of either to abolish or destroy the other.\n<\/p>\n
604. The same contention was raised in a recent case of Victoria v. The Commonwealth
\n[1971] 45 A.L.J. 251, where the Pay-roll Tax Act, 1941 and the Pay-roll Tax Assessment
\nAct, 1941-1969 were impugned. These Acts were passed by the Commonwealth
\nParliament for financing the provisions of the Child Endowment Act, 1941 and casting
\nthe burden on employers by taxing wages paid by them. The Crown in right of a State
\nwas in each State a considerable employer of labour, and in some States of industrial
\nlabour. The Crown in right of a State was included in the definition of ’employer’ for the
\npurpose of the Act. The question raised for decision was about the Constitutional validity
\nof the Act in so far as it purported to impose upon the State of Victoria an obligation to
\npayroll tax rated to the amount of salaries and wages paid to its public servants employed
\nin certain department named in its statement of claim.\n<\/p>\n
605. The contention raised by the State of Victoria as summarised by Barwick, C.J. was
\nthat though the impugned Act fell under the enumerated power of taxation in Section 51
\nof the Constitution Act, that section did not authorise the imposition of a tax upon the
\nCrown in the right of a State because there was an implied Constitutional limitation upon
\nthat Commonwealth power operating universally, that is to say, as to all the activities of a
\nState. The point most pressed, however, was in a somewhat limited form, viz., that the
\nlegislative power with respect to taxation did not extend to authorise the imposition of a
\ntax upon “any essential governmental activity” of a State and therefore, at the least, the
\npower under Section 51 did not authorise a tax upon the State in respect of wages paid to
\nits civil servants. In other words such a limitation, whether of universal or of limited
\noperation, was derived by implication from the federal nature of the Constitution, and
\ntherefore, to levy a tax rated to the wages paid to its servants employed in departments of
\ngovernments, so trenched upon the governmental functions of the State as to burden,
\nimpair and threaten the independent exercise of those functions. All the seven judges
\nagreed, firstly, that the Act was valid, and secondly, upon the proposition laid down in
\nthe Engineers’ case (Supra) as also in certain other decisions that where a power was
\ngranted to the Commonwealth by a specific provision such as Section 51(ii), the
\nCommonwealth could pass a law which would bind the States as it would bind
\nindividuals. The difference amongst the judges, however, arose as regards the question of
\nimplied limitation on such a power, however, expressly granted. Barwick C.J. and Owen
\nJ. were of the view that a law which in substance takes a State or its powers or functions
\nof government as its subject matter is invalid because it cannot be supported upon any
\ngranted legislative power but there is no implied limitation on a Commonwealth
\nlegislative power under the Constitution arising from its federal nature. McTiernan J. was
\nalso of the view that there was no necessary implication restraining the Commonwealth
\nfrom making the law. However, Menzies, Windeyer, Walsh and Gibbs JJ. held in
\ncategorial terms that there is an implied limitation on Commonwealth legislative power
\nunder the Constitution on account of its federal nature. According to Menzies J. a
\nConstitution providing for indissoluble federal Commonwealth must protect both
\nCommonwealth and States. The States were not outside the Constitution. Accordingly
\nalthough the Constitution clearly enough subjected the States to laws made by
\nCommonwealth Parliament it did so with some limitation. Windeyer J., read the
\nMelbourne Corporation case (Supra) as confirming the principle of implication and added
\nthat the court in reading the Constitution “must not shy away from the word `implication’
\nand disavow every concept that it connotes.” Walsh J. rejected the contention that it was
\ninconsistent with the principles of construction laid down in Engineers’ case that the
\nambit of power with respect to enumerated subject matter should be restricted in any way
\notherwise than by an express provision specially imposing some defined limitation upon
\nit and observed:\n<\/p>\n
there is a substantial body of authority for the proposition that the federal
\nnature of the Constitution does give rise to implications by which some
\nlimitations are imposed upon the extent of the power of the
\nCommonwealth Parliament to subject the States to its legislation.
\nAccording to Gibbs J., the ordinary principles of statutory interpretation did not preclude
\nthe making of implications when they were necessary to give effect to the intention of the
\nlegislature as revealed in the statute as a whole. The intention of the Imperial Parliament
\nin enacting the Constitution was to give effect to the wishes of the Australian people to
\njoin in a federal union and to establish a federal and not a unitary system. In some
\nrespects the Commonwealth was placed in a position of supremacy as the national
\ninterest required but it would be inconsistent with the very basis of federation that the
\nCommonwealth’s power should extend to reducing the states to such a position of
\nsubordination that their very existence as independent units would be dependent upon the
\nmanner in which the Commonwealth exercises its powers, rather than on the legal limits
\nof the powers themselves. He proceeded to say:\n<\/p>\n
Thus, the purpose of the Constitution, and the scheme by which it is
\nintended to be given effect, necessarily give rise to implications as to the
\nmanner in which the Commonwealth and the States respectively may
\nexercise their powers, vis-a-vis each other.\n<\/p>\n
606. The Advocate General of Maharashtra does not dispute that there are necessary
\nimplications in a federal Constitution such as, for example, that any law violating any
\nprovision of the Constitution is void even in the absence of an express declaration to that
\neffect. Again it is a necessary implication of a republican Constitution that the sovereign
\nof a foreign State-United Kingdom cannot place Indian territory in groups by Orders in
\nCouncil as provided in the Fugutive Offenders Act, and, therefore, that Act is inconsistent
\nwith the Republican Constitution of India, and is not continued in force by Article 372;
\nsee State of Madras v. G.C. Menon<\/a> [1955] 1 S.C.R. 280. But he maintains that the
\nprinciple of Queen v. Burah is not in any way displaced. Burah’s case, according to him,
\nlaid down principles of interpretation and in doing so the Privy Council itself enunciated
\nthe doctrine of ultra vires which is a necessary implication of an Act of the British
\nParliament creating bodies or authorities with limited powers. An attempt has been made
\nto show that the judgment of Chief Justice Barwick in the above Australian decision
\nstated the basic principle of construction correctly and those principles are applicable to
\nour Constitution also since the decision was based on Queen v. Burah [1878] 3 A.C. 889
\nwhich has been consistently followed by this Court. We have already dealt with that
\ndecision and we are unable to agree that Queen v. Burah stands in the way of drawing
\nimplications where the purpose of the Constitution and the scheme by which it is
\nintended to be given effect, necessarily give rise to certain implications.\n<\/p>\n
607. Turning to the Canadian decisions we need refer only to those which have a material
\nbearing on the questions before us. In The Attorney General of Nova Scotia v. The Att.
\nGen. of Canada [1951] Can. L. Rep. 31 the Constitutionality of an Act respecting the
\ndelegation of jurisdiction from the Parliament of Canada to the Legislature of Nova
\nScotia and vice versa was canvassed. The Supreme Court of Canada held that since it
\ncontemplated delegation by Parliament of powers exclusively vested in it by Section 91
\nof the British North America Act to the Legislature of Nova Scotia; and delegation by
\nthat Legislature of powers, exclusively vested in Provincial Legislature under Section 92
\nof the Act to Parliament, it could not be Constitutionally valid. The principal ground on
\nwhich the decision was based was that the Parliament of Canada and each Provincial
\nLegislature is a sovereign body within its sphere, possessed of exclusive jurisdiction to
\nlegislate with regard to the subject matter assigned to it under Section 91 or Section 92 as
\nthe case may be. Neither is capable, therefore, of delegating to the other the powers with
\nwhich it has been vested nor of receiving from the other the power with which the other
\nhas been vested. The learned Chief Justice observed that the Constitution of Canada
\n“does not belong either to the Parliament or to the Legislatures; it belongs to the country
\nand it is there that the citizens of the country will find the protection of the rights to
\nwhich they are entitled.\n<\/p>\n
608. Although nothing was expressly mentioned either in Section 91 or Section 92 of the
\nBritish North America Act a limitation was implied on the power of Parliament and the
\nProvincial Legislatures to delegate legislative power. Mention may also made of John
\nSwitzman v. Freda Elbling (1957) Can. L.R. (Supreme Court) 285 at p. 327 (to which we
\nhave already referred while dealing with the question of the use of the preamble.) In that
\ncase the validity of the Act respecting communistic propaganda of the Province of
\nQuebec was held to be ultra vires of the Provincial Legislature. Abbot J., after referring to
\nvarious decisions of the Privy Council as also the Supreme Court of Canada See in
\nparticular the observation of Duff C.J. in Alberta Statutes Case (1938) SCR (Canada) 100
\nat pages 132-133 said that the Canada Election Act, the provisions of the British North
\nAmerica Act which provided for Parliament meeting at least once a year and for the
\nelection of a new Parliament at least every five years and the Senate and House of
\nCommons Act, were examples of enactments which made specific statutory provisions
\nfor ensuring the exercise of the right of public debate and public discussion. “Implicit in
\nall such legislation is the right of candidates for Parliament or for a Legislature and of
\ncitizens generally, to explain, to criticize, debate and discuss in the freest possible manner
\nsuch matters as the qualifications, the policies, and the political, economic and social
\nprinciples advocated by such candidates or by the political parties or groups of which
\nthey may be member”. That right could not be abrogated by a Provincial Legislature and
\nits power was limited to what might be necessary to protect purely private rights. He was
\nfurther of the opinion that according to the Canadian Constitution, as it stood, Parliament
\nitself could not abrogate this right of discussion and debate.\n<\/p>\n
609. The Advocate General of Maharashtra has pointed out that these decisions relate to
\nthe legislative competence of provicial legislatures to effect civil liberties like freedom of
\nspeech, religion or to legislate in respect of criminal matters. They are not relevant for the
\npurpose of determining the amending power under the Constitution. So far as the civil
\nrights are concerned in Canada it is noteworthy, according to the Advocate General, that
\nthe Canadian Bill of Rights 1960 makes the rights therein defeasible by an express
\ndeclaration that an Act of Parliament shall operate notwithstanding the Canadian Bill of
\nRights. It has also been submitted that the well known writers of Constitutional law both
\nof Australia and Canada have not attached any signficance or accepted the principle of
\nimplied limitations. See W.A. Wynes, Legislative, Executive and Judicial powers in
\nAustralia and Bora Laskin, The Canadian Constitutional Law. The opinions of authors
\nand writers have been cited before us so extensively, by both sides, that we find a great
\ndeal of conflict in their expression of opinion and it will not be safe to place any reliance
\non them. The judges who have read limitations by implication are well known and of
\nrecognised eminence and it is not fair to reject their views for the reasons suggested by
\nthe Advocate General.\n<\/p>\n
610. We need hardly deal at length with the Irish decisions. The principle emerging from
\nthe majority decision in The State (at the prosecution of Jermiah Ryan v. Captain Michael
\nLenons and Ors. (1935) Irish Reports 170 that under Section 50 of the 1922 Constitution
\n(which provided for Constitutional amendment by ordinary legislation during the first
\nperiod of 8 years which was subsequently extended to 16 years) an ordinary law
\ninconsistent with the provisions of the Constitution had the effect of amendment of the
\nConstitution, caused considerable debate. During the controversy it was strongly urged
\nthat the power of Constitutional amendment was not identical with pouvoir constitutent;
\nthat it was not within the competence of agencies invested with the power of
\nConstitutional amendment to drastically revise the structural organisation of a State, to
\nchange a monarchical into a republican and a representative into a direct form of
\ngovernment. The argument was based on the conception underlying Article 2 of the
\nFrench Law of 1884 which provided that the republican form of government could not be
\nmade subject of Constitutional amendment. Section 50 of that Constitution, in particular,
\nwas criticized as being too pliant for the first period of 8 years and too rigid for the period
\nfollowing it Leo Kohn, The Constitution of the Irish Free State pp. 257-259. After the
\n1937 Constitution which became a model for our Constitution makers the trend of
\njudicial thinking underwent a transformation and instead of treating an Act inconsistent
\nwith the Constitution as having the effect of impliedly amending the Constitution such an
\nAct was regarded as invalid to the extent of its inconsistency with the Constitution. See
\nEdmund Burke v. Lenon (1940) Ir. Reports 136 and Margaret Buckley v. Att. Gen. of
\nEire (1950) Ir. Reports 67. The 1922 Constitution was considered to be of such “light
\nweight” that there were no fewer than 27 Acts expressed to be Acts impliedly amending
\nthat Constitution See generally J.M. Kelly, Fundamental Rights on the Irish Law and
\nConstitution (1968) 1-17 within a period of 15 years. During the period 1922-27 the
\njudges were used to the British idea of sovereignty of Parliament and notions of
\nfundamental; law were foreign to their training and tradition. The 1937 Constitution is
\nmore rigid than its predecessor though Article 51 permits the Oireachtas to amend the
\nConstitution during the first three years by ordinary legislation. Such legislation,
\nhowever, is expressly excepted unlike Article 50 of the 1922 Constitution from the
\namending power. Mention may be made of The State v. The Minister for Justice etc.
\n[1967] Ir. Rep. 106 in which it was held that the provisions of Section 13 of the Lunatic
\nAsylums (Ireland) Act 1875 which prevented an accused person from appearing before
\nthe District Court on the return date of his remand constituted interference with an
\nexercise of judicial power to administer justice. This case and similar cases e.g., Margaret
\nBuckley v. Att. Gen. of Eire [1950] Ir. Rep. 67 may not afford much assistance in
\ndetermining the question about implied limitation to the amending power in a
\nConstitution because they deal with the question mostly of repugnancy of ordinary
\nlegislation to Constitutional provisions. The main decision however, was in Ryan’s
\n[1935] Ir. Rep. 170 case in which Kennedy C.J. drew various implications from the
\nConstitution but the majority of judges declined to do so and read the word “amendment”
\nas wide enough to allow the repeal of a number of articles, however important in
\nsubstance they might be.\n<\/p>\n
611. It is equally unnecessary to deal with the argument on behalf of the respondents that
\nthe Privy Council in Moore v. Attorney General of Irish Free State [1935] A.C. 484
\nrejected the contention of the counsel based on the reasoning of Kennedy C.J. Moore’s
\ncase was decided principally on the effect of the passing of the statute of Westminster as
\nis clear from the summing up of the position by their Lordships. Ibid p. 498\n<\/p>\n
612. As regards the position in the United States of America a great deal of reliance has
\nbeen placed on behalf of the respondents on United States of America v. William H.
\nSprague. 75 L. Ed. 640. According to that decision the choice between submission of a
\nproposed amendment to the federal Constitution to State Legislatures and submission to
\nState Conventions under Article 5 of the Constitution was in the sole discretion of
\nCongress irrespective of whether the amendment was one dealing with the machinery of
\ngovernment or with matters affecting the liberty of the citizen. It was argued that
\namendments may be of different kinds, e.g., mere changes in the character of federal
\nmeans of machinery on the one hand, and matters affecting the liberty of the citizen, on
\nthe other. It was said that the framers of the Constitution accepted the former sort to be
\nratified by the legislature whereas they intended that the latter must be referred to the
\npeople because not only of lack of power in the legislature to ratify but also because of
\ndoubt as to their truly representing the people. The Court observed that where the
\nintention was clear there was no room for construction and no excuse for interpolation or
\naddition and it had been repeatedly and consistently declared in earlier decisions that the
\nchoice of mode rested solely in the discretion of the Congress. It is sought to be
\nconcluded from this decision that the Supreme Court of the United States refused to read
\nany implications of the nature argued in that case.\n<\/p>\n
613. Mr. Palkhivala says that the decision in U.S. v. W.H. Sprague (Supra) has no
\nrelevance to the questions before us. All that it laid down was that the Congress had the
\nsole discretion to decide whether a proposed amendment should be submitted to State
\nLegislatures or to the State conventions. The language of Article 5 itself shows that sole
\ndiscretion in this matter is conferred on the Congress irrespective of whether the
\namendment deals with the machinery of government or with matters affecting the rights
\nand liberties of the citizen. Sprague’s case it is suggested, was merely a fresh attempt after
\nthe decision of the Supreme Court in the State of Rhode Island v. A. Mitchell Palmer 64
\nL. Ed. 946 to argue that the 18th amendment which introduced prohibition was
\nunConstitutional since it was ratified by the State Legislatures and the attempt rightly
\nfailed. For the reasons suggested by Mr. Palkhivala which appear to have a good deal of
\nsubstance we are unable, to derive any help from U.S. v. W.H. Sprague.\n<\/p>\n
614. The Advocate General of Maharashtra has invoked another principle to the effect
\nthat unless the power of amendment is co-extensive with the judicial power of
\ninvalidating laws made under the Constitution the judiciary would be supreme; therefore,
\nthe power of amendment should be co-extensive with judicial power. This follows from
\nwhat has been repeatedly held by this Court that under our Constitution none of the three
\ngreat departments of the State is supreme and it is only the Constitution which is supreme
\nand which provides for a government of laws and not of men. The reply of Mr.
\nPalkhivala is that if the Constitution is supreme, as it is, it necessarily follows that there
\nmust be limitation on the amending power because if there are ‘no limitations the
\nlegislature would be supreme and not the Constitution. If the legislature’s power of
\namending Constitution were coextensive with the judicial power of invalidating laws
\nmade under the Constitution, the legislature can bend the Constitution to its wheel in
\nevery way which will lead to a result contrary to what has been provided in the
\nConstitution, namely, that there are three great departments of the State and no one can
\nhave supremacy over the other. When the judiciary places a limitation on the amending
\npowers, says, Mr. Palkhivala, only as a matter of true construction the consequence is not
\nthat the judiciary is supreme but that the Constitution is supreme. It is claimed that on his
\narguments, the legislature, executive and judiciary remain coordinate which is the correct
\nposition under the Constitution. If the respondent’s argument is accepted the amending
\npower is absolute and limitless. It can make the judiciary and the executive completely
\nsubordinate to it or take over their powers.\n<\/p>\n
615. We are unable to see how the power of judicial review makes the judiciary supreme
\nin any sense of the word. This power is of paramount importance in a federal
\nConstitution. Indeed it has been said that the heart and core of a democracy lies in the
\njudicial process; (per Bose J., in Bidi Supply Co. v. The Union of India<\/a> [1956] S.C.R.\n<\/p>\n
267). The observations of Patanjali Sastri C.J. in State of Madras v. V.G. Row<\/a> [1952]
\nS.C.R. 597 which have become locus classicus need alone be repeated in this connection.
\nJudicial review is undertaken by the courts “not out of any desire to tilt at legislative
\nauthority in a crusador’s spirit, but in discharge of a duty plainly laid upon them by the
\nConstitution.” The respondents have also contended that to let the court have judicial
\nreview over Constitutional amendments would mean involving the court in political
\nquestions. To this the answer may be given in the words of Lord Porter in
\nCommonwealth of Australia v. Bank of New South Wales [1950] A.C. 235 at 310:
\nThe problem to be solved will often be not so much legal as political,
\nsocial or economic, yet it must be solved by a court of law. For where the
\ndispute is, as here, not only between Commonwealth and citizen but
\nbetween Commonwealth and intervening States on the one hand and
\ncitizens and States on the other, it is only the Court that can decide the
\nissue, it is vain to invoke the voice of Parliament.\n<\/p>\n
There is ample evidence in the Constitution itself to indicate that it creates a system of
\nchecks and balances by reason of which powers are so distributed that none of the three
\norgans it sets up can become so pre-dominant as to disable the others from exercising and
\ndischarging powers and functions entrusted to them. Though the Constitution does not
\nlay down the principle of separation of powers in all its rigidity as is the case in the
\nUnited Constitution but it envisages such a separation to a degree as was found in
\nRanasinghe’s case. The judicial review provided expressly in our Constitution by means
\nof Article 226 and 32 is one of the features upon which hinges the system of checks and
\nbalances. Apart from that, as already stated, the necessity for judicial decision on the
\ncompetence or otherwise of an Act arises from the very federal nature of a Constitution
\n(per Haldane, L.C. in Att. Gen. for the Commonwealth of Australia v. Colonial Sugar
\nRefining Co. [1914] A.C. 237 and Ex parte Walsh and Johnson, In re Yates. (1925) 37
\nC.L.R. 36 at p. 58. The function of interpretation of a Constitution being thus assigned to
\nthe judicial power of the State, the question whether the subject of a law is within the
\nambit of one or more powers of the legislature conferred by the Constitution would
\nalways be a question of interpretation of the Constitution. It may be added that at no stage
\nthe respondents have contested the proposition that the validity of a Constitutional
\namendment can be the subject of review by this Court. The Advocate General of
\nMaharasthra has characterised judicial review as undemocratic. That cannot, however, be
\nso in our Constitution because of the provisions relating to the appointment of judges, the
\nspecific restriction to which the fundamental rights are made subject, the deliberate
\nexclusion of the due process clause in Article 21 and the affirmation in Article 141 that
\njudges declare but not make law. To this may be added the none two rigid amendatory
\nprocess which authorises amendment by means oft 2\/3 majority and the additional
\nrequirement of ratification.\n<\/p>\n
616. According to the learned Attorney General the entire argument on the basis of
\nimplied limitations is fundamentally wrong. He has also relied greatly on the decision in
\nBurah’s case and other similar decisions. It is pointed out that there can be no inherent
\nlimitation on the power of amendment having regard to the purpose for which the power
\nis needed. The argument about the non-amendability of the essential framework of the
\nConstitution is illusive because every part of a Constitutional document admits of the
\npossibility of imperfect drafting or ambiguity. Even basic concepts or ideals undergo
\nprogressive changes. It has been strenuously urged that the Constitution read as a whole
\ndid not contemplate the perpetuation of the existing social and economic inequalities and
\na duty has been cast on the State to organise a new social order. The Attorney General
\nquoted the opinion of several writers and authors in support of his contention that there
\nmust be express words of limitation in a provision which provides for amendment of the
\nConstitution from which it follows that no implied limitations can be read therein.\n<\/p>\n
617. The correct approach to the question of limitations which may be implied in any
\nlegislative provisions including a Constitutional document has to be made from the point
\nof view of interpretation. It is not a novel theory or a doctrine which has to be treated as
\nan innovation of those who evolve heterodox methods to substantiate their own thesis.
\nThe argument that there are no implied limitations because there are no express
\nlimitations is a contradiction in terms. Implied limitations can only arise where there are
\nno express limitations. The contention of the learned Attorney General that no
\nimplications can be read in an amending power in a Constitution must be repelled in the
\nwords of Dixon J. in West v. Commissioner of Taxation (N.S.W.) [1936-37] 56 C.L.R.
\n657:\n<\/p>\n
Since the Engineers’ case a notion seems to have gained currency that in
\ninterpreting the Constitution no implications can be made. Such a method
\nof construction would defeat the intention of any instrument, but of all
\ninstruments a written Constitution seems the last to which it could be
\napplied\n<\/p>\n
618. We are equally unable to hold that in the light of the Preamble, the entire scheme of
\nthe Constitution the relevant provisions thereof and the context in which the material
\nexpressions are used in Article 368 no implied limitations arise to the exercise of the
\npower of amendment. The respondents do not dispute, that, certain limitations arise by
\nnecessary implication e.g., the Constitution cannot be abrogated or repealed in its entirety
\nand that the India’s polity has to be a Sovereign Democratic Republic, apart from several
\nother implications arising from Article 368 which have been noticed.\n<\/p>\n
619. The argument that the Nation cannot grow and that the objectives set out in the
\nPreamble cannot be achieved unless the amending power has the ambit and the width of
\nthe power of a Constitutent Assembly itself or the People themselves appears to be based
\non grounds which do not have a solid bask The Constitution makers provided for
\ndevelopment of the country in all the fields social, economic and political. The structure
\nof the Constitution has been erected on the concept of an egalitarian society. But the
\nConstitution makers did not desire that it should be a society where the citizen will not
\nenjoy the various freedoms and such rights as are the basic elements of those freedoms,
\ne.g., the right to equality, freedom of religion etc., so that his dignity as an individual may
\nbe maintained. It has been strongly urged on behalf of the respondents that a citizen
\ncannot have any dignity if he is economically or socially backward. No one can dispute
\nsuch a statement but the whole scheme underlying the Constitution is to bring about
\neconomic and social changes without taking away the dignity of the individual. Indeed,
\nthe same has been placed on such a high pedestal that to ensure the freedoms etc. their
\ninfringement has been made justiciable by the highest court in the land. The dictum of
\nDas C.J. in Kerala Education Bill case paints the true picture in which there must be
\nharmony between Parts III and IV; indeed the picture will get distorted and blurred if any
\nvital provision out of them is cut out or denuded of its identity.\n<\/p>\n
620. The basic structure of the Constitution is not a vague concept and the apprehensions
\nexpressed on behalf of the respondents that neither the citizen nor the Parliament would
\nbe able to understand it are unfounded. If the historical background, the Preamble, the
\nentire scheme of the Constitution, the relevant provisions thereof including Article 368
\nare kept in mind there can be no difficulty in discerning that the following can be
\nregarded as the basic elements of the Constitutional structure. (These cannot be
\ncatalogued but can only be illustrated).\n<\/p>\n
1. The supremacy of the Constitution.\n<\/p>\n
2. Republican and Democratic form of Government and sovereignty of the
\ncountry.\n<\/p>\n
3. Secular and federal character of the Constitution.\n<\/p>\n
4. Demarcation of power between the legislature, the executive and the
\njudiciary.\n<\/p>\n
5. The dignity of the individual (secured by the various freedoms and
\nbasic rights in Part III and the mandate to build a welfare State contained
\nin Part IV.\n<\/p>\n
6. The unity and the integrity of the nation.\n<\/p>\n
621. The entire discussion from the point of view of the meaning of the expression
\n“amendment” as employed in Article 368 and the limitations which arise by implications
\nleads to the result that the amending power under Article 368 is neither narrow nor
\nunlimited. On the footing on which we have proceeded the validity of the 25th
\namendment can be sustained if Article 368, as it originally stood and after the
\namendment, is read in the way we have read it. The insertion of Articles 13(4) and 368(3)
\nand the other amendments made will not affect the result, namely, that the power in
\nArticle 368 is wide enough to permit amendment of each and every Article of the
\nConstitution by way of addition, variation or repeal so long as its basic elements are not
\nabrogated or denuded of their identity.\n<\/p>\n
622. We may next deal with the validity of the Constitution (25th Amendment) Act.
\nSection 2 of the Amending Act provides:\n<\/p>\n
2. In Article 31 of the Constitution,-\n<\/p>\n
(a) for Clause (2), the following clause shall be substituted,
\nnamely:\n<\/p>\n
(2) No property shall be compulsorily
\nacquired or requisitioned save for a public
\npurpose and save by authority of a law
\nwhich provides for acquisition or
\nrequisitioning of the property for a amount
\nwhich may be fixed by such law or which
\nmay be determined in accordance with such
\nprinciples and given in such manner as may
\nbe specified in such law; and no such law
\nshall be called in question in any court on
\nthe ground that the amount so fixed or
\ndetermined is not adequate or that the whole
\nor any part of such amount is to be given
\notherwise than in cash:\n<\/p>\n
Provided…\n<\/p>\n
(b) after Clause (2A), the following clause shall be inserted,
\nnamely:\n<\/p>\n
(2B) Nothing in Sub-clause (f) of Clause (1)
\nof Article 19 shall affect any such law as is
\nreferred to in Clause (2).\n<\/p>\n
As stated in the Statement of Objects and Reasons to the Bill (No. 106 of 1971) the word
\n“compensation” was sought to be omitted from Article 31(2) and replaced by the word
\n“amount”. It was being clarified that the said “amount” may be given otherwise than in
\ncash. It was also provided that Article 19(1)(f) shall not apply to any law relating to
\nacquisition or requisitioning of property for a public purpose. The position of the
\nrespondents is that “compensation” had been given the meaning of market value or the
\njust equivalent of what the owner had been deprived of according to the decisions of this
\nCourt. See State of West Bengal v. Mrs. Bela Bannerji and Ors.<\/a> (1954) S.C.R. 558. That
\nhad led to the 4th Amendment Act 1955. The later decisions (2) Vajravelu Mudaliar v.
\nSpecial Deputy Collector, Madras<\/a> (1965) S.C.R. 614 and Union of India v. Metal
\nCorporation of India and Anr.<\/a> [1967] 1 S.C.R. 255 had continued to uphold the concept
\nof “compensation” i.e. just equivalent of the value of the property acquired in spite of the
\namendments made in 1955. In State of Gujarat v. Shantilal Mangaldas and Ors.<\/a> [1969] 3
\nS.C.R. 341 the decision in Metal Corporation of India [1967] 1 S.C.R. 255 was overruled
\nwhich itself was virtually overruled by R.C. Cooper v. Union of India.<\/a> [1970] 3 S.C.R.\n<\/p>\n
530. According to the Advocate General of Maharashtra, if Shantilal Mangaldas etc. had
\nnot been overruled by R.C. Cooper v. Union of India the<\/a>re would have been no necessity
\nof amending Article 31(2).\n<\/p>\n
623. The first question that has to be determined is the meaning of the word “amount”.
\nUnlike the word “compensation” it has no legal connotation. It is a neutral, colourless
\nword. The dictionary meanings do not help in arriving at its true import as used in a
\nConstitutional provision. It can be anything from one paisa to an astronomical figure in
\nrupees. Its meaning has, therefore, to be ascertained by turning to the context in which it
\nis used and the words preceding it as well as following it.\n<\/p>\n
624. The scheme of Article 31(2) now is:\n<\/p>\n
(1) The property has to be compulsorily acquired or requisitioned.
\n(2) It has to be for a public purpose.\n<\/p>\n
(3) It has to be by a law.\n<\/p>\n
(4) The law must provide for an amount which may be-\n<\/p>\n
(i) fixed by such law or\n<\/p>\n
(ii) which may be determined in accordance with such
\nprinciples as may be specified in such law.\n<\/p>\n
(5) The law shall not be questioned in a Court on the ground:\n<\/p>\n
(i) The amount so fixed or determined is not adequate or\n<\/p>\n
(ii) the whole or any part of such amount is to be given
\notherwise than in cash.\n<\/p>\n
It is significant that the amount can be determined in accordance with specified
\nprinciples, if it is not fixed by the law itself. Moreover, its adequacy cannot be questioned
\nin a court. The use of the word “principles” and the question of inadequacy can only arise
\nif the amount has some norm. If it has no norm no question of specifying any principles
\narises nor can there be any occasion for the determination of its adequacy. The very fact
\nthat the court is debarred from going into the question of adequacy shows that the
\n“amount” can be adequate or inadequate. Even if it is inadequate, the fixation or
\ndetermination of that amount is immune from any challenge. It postulates the existence of
\nsome standard or norm without which any enquiry into adequacy becomes wholly
\nunnecessary and irrelevant Moreover, either method of giving an amount must bring
\nabout the same result In other words, if Rs. 1000 is the amount to be given for acquisition
\nof a property, it must be either fixed or must be determinable by the principles specified
\nin the event of its not being fixed. It could not be intended that the two alternative modes
\nshould lead to varying results, i.e., it could be fixed at Rs. 1000 but if the principles are
\nspecified they do not yield that figure.\n<\/p>\n
625. The Advocate General of Maharashtra says that the right of the owner is just what
\nthe government determines it to be. It can give what it pleases and when it choses to do
\nso. Such an argument is untenable and introduces an element of arbitrariness which
\ncannot be attributed to the Parliament.\n<\/p>\n
626. In Shantilal Mangal Das, which, on the submission of the Advocate General,
\nenunciated the correct principles relating to Article 31(2) as it then stood, it was laid
\ndown that something fixed or determined by the application of specified principles which
\nwas illusory or could in no sense be regarded as compensation was not bound to be
\nupheld by the Courts, “for to do so would be to grant a charter of arbitrariness and permit
\na device to defeat the Constitutional guarantees”. It was added that the principles could be
\nchallenged on the ground that they were irrelevant to the determination of compensation
\nbut not on the plea that what was awarded was not just or fair compensation. Thus it was
\nopen to the courts to go into the question of arbitrariness of the amount fixed or its being
\nillusory even under the law laid down in Shantilal Mangaldas (supra). The relevance of
\nthe principles had also been held to be justiciable. R.C. Cooper’s case did not lay down
\ndifferent principles. But the observations made therein were understood to mean that the
\nconcept of just equivalent not accepted in Shantilal’s case was restored. The amendment
\nnow made is apparently aimed at removing that concept and for that reason the word
\n“amount” has been substituted in place of “compensation”. This is particularly so as we
\nfind no reason for departing from the well-settled rule that in such circumstances the
\nParliament made the amendment knowing full well the ratio of the earlier decisions.\n<\/p>\n
627. The Advocate General of Maharashtra has submitted that the fixing of the amount or
\nalternatively specifying the principles for determining that amount is entirely within the
\njudgment of the legislature and the whole object of the amendment is to exclude judicial
\nreview which had been introduced by the courts on the basis of the concept of
\ncompensation. But even then the members of the legislature must have some basis or
\nprinciples before them to fix the amount as the same cannot be done in an arbitrary way.
\nHe, however, gave an unusual explanation that in the Cabinet system of government it is
\nfor the government to determine the amount or specify such principles as it choses to do.
\nThe legislators belonging to the ruling party are bound to support the measure whether
\nthe basis on which the amount has been determined is disclosed to them or not. It is
\nwholly incomprehensible how there can be any legislative judgment or decision unless
\nthere is room for debate and discussion both by members of the ruling party and the
\nopposition. For any discussion on the “amount” fixed or the principles specified the entire
\nbasis has to be disclosed. There can be no basis if there is no standard or norm.\n<\/p>\n
628. The learned Solicitor General agrees that Article 31(2) after amendment still binds
\nthe legislature to provide for the giving to the owner a sum of money either in cash or
\notherwise. In fixing the “amount”, the legislature has to act on some principle. This is not
\nbecause of any particular obligation arising out of Article 31(2), but from the general
\nnature of legislative power itself. Whatever, the subject or the nature of legislation it
\nalways proceeds on a principle it is based on legislative policy. The principle may include
\nconsiderations of social justice: Judicial review on the ground of inadequacy of the
\n“amount” and the manner of payment is excluded by express language. No other question
\nis excluded. The expropriated owner still continues to have a fundamental right. This
\nargument is not quite the same as that of the learned Solicitor General.\n<\/p>\n
629. It is true that the “amount” to be paid to an owner may not be the market value. The
\nprice of the property might have increased owing to various factors to which no
\ncontribution has been made by the owner. The element of social justice may have to be
\ntaken into consideration. But still on the learned Solicitor General’s argument, the right to
\nreceive the “amount” continues to be a fundamental right That cannot be denuded of its
\nidentity. The obligation to act on some principle while fixing the amount arises both from
\nArticle 31(2) and from the nature of the legislative power. For, there can be no power
\nwhich permits in a democratic system an arbitrary use of power. If an aggrieved owner
\napproaches the court alleging that he is being deprived of that right on the grounds now
\nopen to him, the Court cannot decline to look into the matter. The Court will certainly
\ngive due weight to legislative judgment. But the norm or the principles of fixing or
\ndetermining the “amount” will have to be disclosed to the Court. It will have to be
\nsatisfied that the “amount” has reasonable relationship with the value of the property
\nacquired or requisitioned and one or more of the relevant principles have been applied
\nand further that the “amount” is neither illusory nor it has been fixed arbitrarily, nor at
\nsuch a figure that it means virtual deprivation of the right under Article 31(2). The
\nquestion of adequacy or inadequacy, however, cannot be gone into.\n<\/p>\n
630. As to the mode of payment, there is nothing to indicate in the amended Article that
\nany arbitrary manner of payment is contemplated. It is well known that a discretion has to
\nbe exercised reasonably.\n<\/p>\n
631. As regards Clause (2B) inserted in Article 31 which makes Article 19(1)(f)
\ninapplicable, there is no reason for assuming that a procedure will be provided which will
\nnot be reasonable or will be opposed to the rules of natural justice. Section 2 of the 25th
\namendment can be sustained on the construction given to it above.\n<\/p>\n
632. We now come to the most controversial provision of 25th Amendment, namely,
\nSection 3 which inserted the following Article:\n<\/p>\n
31C Notwithstanding anything contained in Article 13, no law giving
\neffect to the policy of the State towards securing the principles specified in
\nClause (b) or Clause (c) of Article 39 shall be deemed to be void on the
\nground that it is inconsistent with, or takes way or abridges any of the
\nrights conferred by Article 14, Article 19 or Article 31; and no law
\ncontaining a declaration that it is for giving effect to such policy shall be
\ncalled in question in any court on the ground that it does not give effect to
\nsuch policy:\n<\/p>\n
Provided that where such law is made by the Legislature of
\na State, the provisions of this Article shall not apply thereto
\nunless such law, having been reserved for the consideration
\nof the President, has received his assent.\n<\/p>\n
According to the Statement of Objects and Reasons contained in Bill No. 106 of 1971,
\nthe new Article has been introduced to provide that if any law is passed to give effect to
\nthe Directive Principles contained in Clauses (b) and (c) of Article 39 and contains a
\ndeclaration to that effect, such law shall not be deemed to be void on the ground that it
\ntakes away or abridges any of the rights contained in Articles 14, 19 or 31 and shall not
\nbe questioned on the ground that it does not give effect to these principles. For this
\nprovision to apply in case of laws made by State legislatures, it is necessary that the
\nrelevant Bill should be reserved for the consideration of the President and receive his
\nassent.\n<\/p>\n
633. Article 39 contains certain principles of policy to be followed by the State. It enjoins
\nthe State inter alia to direct its policy towards securing:\n<\/p>\n
39 (b) that the ownership and control of the material resources of the
\ncommunity are so distributed as best to subserve the common good;\n<\/p>\n
(c) that the operation of the economic system does not result in the
\nconcentration of wealth and means of production to the common
\ndetriment;\n<\/p>\n
634. These provisions together with the other provisions of the Constitution contain one
\nof the main objectives, namely, the building of A welfare State and an egalitarian social
\norder in our country. As stated before, the fundamental rights and the directive principles
\nhave been described as the “conscience of our Constitution”. The Constitution makers
\nhad, among others, one dominant objective in view and that was to ameliorate and
\nimprove the lot of the common man and to bring about a socio-economic transformation
\nbased on principles of social justice. While the Constitution makers envisaged
\ndevelopment in the social, economic and political fields, they did not desire that it should
\nbe a society where a citizen will not have the dignity of the individual. Part III of the
\nConstitution shows that the founding fathers were equally anxious that it should be a
\nsociety where the citizen will enjoy the various freedoms and such rights as are the basic
\nelements of those freedoms without which there can be no dignity of individual. Our
\nConstitution makers did not contemplate any disharmony between the fundamental rights
\nand the directive principles. They were meant to supplement one another. It can well be
\nsaid that the directive principles prescribed the goal to be attained and the fundamental
\nrights laid down the means by which that goal was to be achieved. While on behalf of the
\npetitioners greater emphasis has been laid on the fundametal rights, counsel for the
\nrespondents say that the fundamental rights should be subordinate to the directive
\nprinciples. The Constituent Assembly did not accept such a proposal made by B.N. Rau.
\nIt has been suggested that a stage has been reached where it has become necessary to
\nabrogate some of the basic freedoms and rights provided the end justifies the means. At
\nan earlier stage in the development of our Constitutional law a view was taken that the
\nDirective Principles of State Policy had to conform and run subsidiary to the Chapter on
\nFundamental Rights, but Das C.J. in Kerala Education Bill, 1957, laid down the rule of
\nharmonious construction and observed that an attempt should be made to give effect to
\nboth the fundamental rights and the directive principles.\n<\/p>\n
635. According to Mr. Palkhivala, Article 31C destroys several essential features of the
\nConstitution. He says that there is a vital distinction between two cases (a) where
\nfundamental rights are amended to permit laws to be validly passed which would have
\nbeen void before the amendment and (b) the fundamental rights remain unamended, but
\nthe laws which are void as offending those rights are validated by a legal fiction that they
\nshall not be deemed to be void. He further points out that on the analogy of Article 31(C)
\nit would be permissible to have an omnibus Article that notwithstanding anything
\ncontained in the Constitution no law passed by Parliament or any State legislature shall
\nbe deemed to be void on any ground whatsoever. Article 31(C) according to him, gives a
\nblank charter not only to Parliament but all the State Legislatures to amend the
\nConstitution. On the other hand, the argument on behalf of the respondents is that Article
\n31(C) is similar to Articles 31(A) and 31(B) and that the object of inserting the Article is
\nto free certain kinds of laws from the limitation on legislative power imposed by
\nconferment of fundamental rights by Part III of the Constitution. As those rights were
\njusticiable under Article 32, says the Advocate General of Maharashtra, the only way of
\ndoing so was to exclude judicial review of legislation in respect of those laws. If Article
\n31(A) is valid, there is no reason or justification for saying that Article 31(C) suffers from
\nall the vices pointed out by Mr. Palkhivala.\n<\/p>\n
636. According to the Solicitor General, Article 31(C) protects only law and not mere
\nexecutive action. Law can be made by either Parliament or the State Legislatures. Article
\n31(C) has been enacted for the purpose of achieving the objectives set out in Clauses (b)
\nand (c) of Article 39. The law enacted under it will operate on “material resources”,
\nconcentration of wealth and “means of production”. The legislative effort would
\ngenerally involve (i) nationalisation of material resources of the community and (ii)
\nimposition of control on the production, supply and distribution of the products of key
\nindustries and essential commodities. It, therefore, impinges on a particular kind of
\neconomic system only.\n<\/p>\n
637. The question of the validity of Article 31(C) to our mind has to be examined mainly
\nfrom two points of view; the first is its impact on the various freedoms guaranteed by
\nArticle 19, the abrogation of the right of equality guaranteed by Article 14 and the right
\nto property contained in Article 31. The second is whether the amending body under
\nArticle 368 could delegate its amending power to the legislatures of the Union and the
\nStates. Alternatively, whether the Parliament and the State Legislatures can, under Article
\n31(C), amend the Constitution without complying with the form and manner laid down in
\nArticle 368. Now it is quite obvious that under Article 31(C) a law passed by the
\nParliament or the State Legislatures shall not be deemed to be void on the ground that it
\nis inconsistent with or takes away or abridges any of the rights conferred by Articles 14,
\n19 and 31 so long as the law is declared to be one for giving effect to the policy of the
\nState towards securing the principles specified in Clause (b) and Clause (c) of Article 39.
\nIf Article 31(C) is aimed at the removal of a particular economic system, as suggested by
\nthe Solicitor General, it is difficult to understand why the freedoms contained in Clauses\n<\/p>\n
(a) to (d) of Article 19 as also the right of equality under Article 14 had to be taken away.
\nThe power of enacting Constitution breaking laws has been entrusted even to a small
\nmajority in a State Legislature. Mr. Palkhivala points out that the freedom of the Press,
\nfor instance, can be destroyed under Article 31(C) as the respondents claim the right to
\nnationalise any industrial or economic activity. Moreover, a person can be put in prison
\nfor commending a policy contrary to the government’s policy. Such legislation cannot be
\nchallenged as Article 19(1)(a) will not apply and Article 21 permits deprivation of
\npersonal liberty according to procedure established by law. The case in the State of
\nBombay and Anr. v. F.N. Balsara<\/a> [1951] S.C.R. 682 is in point. Commending the use of
\nan intoxicant had been made an offence. It was struck down by this Court as violative of
\nArticle 19(1)(a). If Article 31(C) is Constitutional, such a provision made in a law
\nenacted under it relating to matters falling within Article 39(a) and (b) would be valid. As
\na matter of fact no cogent or convincing explanation has been given as to why it was
\nnecessary to take away all the freedoms guaranteed by Article 19 and for the abrogation
\nof the prized right of equality under Article 14 of which has been described as the basic
\nprinciple of republicanism. State of West Bengal v. Anwar Ali Sarkar<\/a> (per Patanjali
\nSastri C.J.) [1952] S.C.R. 284 at pp. 293, (Ibid p. 313 Mahajan J.). This Article combines
\nthe English doctrine of the rule of law and the equal protection clause of the 14th
\nAmendment to the American Constitution. Basheshar Nath v. The Commissioner of
\nIncome Tax, Delhi and Rajasthan<\/a> (per Das C.J.) [1959] Supp. 1 S.C.R. 528 at 551. It
\nfollows, therefore, that Article 31(C) impinges with full force or several fundamental
\nrights which are enabled to be abrogated by the Parliament and the State Legislatures.\n<\/p>\n
638. As regards the question of delegation of amending power, it is noteworthy that no
\namendment has been made in Article 368 itself to enable delegation of constituent power.
\nThe delegation of such power to the State Legislatures, in particular, involves serious
\nconsequences. It is well settled that one legislature cannot create another legislative body.
\nThis has been laid down very clearly in two decisions of the Privy Council. In the
\nInitiative and Referendum Act [1919] A.C. 935 which has already been discussed See
\npage 88 by us no doubt was entertained that a body that had the power of legislation on
\nthe subjects entrusted to it, even though, the power was so ample as that enjoyed by a
\nprovincial legislature in Canada, could not create and endow with its own capacity a new
\nlegislative power not created by the Act to which it owed its own existence. Attorney
\nGeneral of Nova Scotia v. The Attorney General of Canada [1951] Can. L.R. 31 is
\nanother direct authority for the view that the Parliament of Canada or any of the
\nlegislatures could not abdicate their powers and invest for the purpose of legislation
\nbodies, which by the very terms of the British North American Act were not empowered
\nto accept such delegation and to legislate on such matters. The distinction made by
\ncounsel on behalf of the respondents and the cases relied on by them have been fully
\ndiscussed in the judgment of the learned Chief Justice and we need not go over the same
\nground.\n<\/p>\n
639. The only way in which the Constitution can be amended, apart from Articles 4, 169
\nand the relevant paras in Schedules V and VI of the Constitution, is by the procedure laid
\ndown by Article 368. If that is the only procedure prescribed, it is not possible to
\nunderstand how by ordinary laws the Parliament or the State Legislatures can amend the
\nConstitution, particularly, when Article 368 does not contemplate any other mode of
\namendment or the setting up of another body to amend the Constitution. The other
\ndifficulty which immediately presents itself while examining Article 31(C) is the effect of
\nthe declaration provided for in the Article. It is possible to fit in the scheme of Article
\n31(C) any kind of social or economic legislation. If the courts are debarred from going
\ninto the question whether the laws enacted are meant to give effect to the policy set out in
\nArticle 39(b) and (c), the Court will be precluded from enquiring even into the incidental
\nencroachment on rights guaranteed under Articles 14, 19 and 31. This is not possible with
\nregard to laws enacted under Article 31(A). Those laws can be sustained if they infringe
\nthe aforesaid Articles only to the extent necessary for giving effect to them. Although on
\nbehalf of the respondents it is said that the Court can examine whether there is any nexus
\nbetween the laws made under Article 31(C) and Article 39(b) and (c), there would hardly
\nbe any law which can be held to have no nexus with Article 39(b) and (c), the ambit of
\nwhich is so wide.\n<\/p>\n
640. The essential distinction between Article 31(A) and 31(C) is that the former is
\nlimited to specified topics; whereas the latter does not give the particular subjects but
\nleaves it to the legislatures to select any topic that may purport to have some nexus with
\nthe objectives in Article 39(b) and (c). In other words, Article 31(C) deals with objects
\nwith unlimited scope.\n<\/p>\n
641. The argument that Article 31(C) lifts the ban placed on State Legislature and
\nParliament under Articles 14, 19 and 31 and further that it may be considered as an
\namendment of Article 368, has been discussed by the learned Chief Justice in his
\njudgment delivered today and we adopt, with respect, his reasoning for repelling them.\n<\/p>\n
642. In our judgment Article 31(C) suffers from two kinds of vice which seriously affect
\nits validity. The first is that it enables total abrogation of fundamental rights contained in
\nArticles 14, 19 and 31 and, secondly, the power of amendment contained in Article 368 is
\nof special nature which has been exclusively conferred on the Parliament and can be
\nexercised only in the manner laid down in that Article. It was never intended that the
\nsame could be delegated to any other legislature including the State Legislatures.\n<\/p>\n
643. The purpose sought to be achieved by Article 31(C) may be highly laudable as
\npointed out by the learned Solicitor General, but the same must be achieved by
\nappropriate laws which can be Constitutionally upheld. We have no option, in view of
\nwhat has been said except to hold that the validity of Article 31(C) cannot be sustained.\n<\/p>\n
644. The last matter for determination is the validity of the 29th Amendment Act, 1972.
\nThe challenge is only against the inclusion of two Acts, namely, the Kerala Land
\nReforms (Amendment) Act 1969 and a similar Kerala Act of 1971 in the Ninth Schedule
\nto the Constitution.\n<\/p>\n
645. The main argument on behalf of the petitioners haw been confined to the
\nrelationship between Article 31(A) and Article 31(B). It has been contended that Article
\n31(B) is intimately linked with Article 31(A) and, therefore, only those legislative
\nenactments which fall under Article 31(A) can be included in the 9th Schedule under
\nArticle 31(B). This matter is no longer open to argument as the same stands settled by a
\nseries of decisions of this Court See State of Bihar v. Maharajadhiraj Sir Kameshwar
\nSingh of Darbhanga and Ors.<\/a>; [1952] S.C.R. 889 Visweshwar Rao v. The State of
\nMadhya Pradesh<\/a> [1952] S.C.R. 1020 and N.B. Jeejeebhoy v. Assistant Collector, Thana
\nPrant, Thana.<\/a> [1965] 1 S.C.R. 636. In all these cases it was held that Article 31 (B) was
\nindependent of Article 31(A). A matter which has been settled for all these years cannot
\nbe re-opened now. It will still be open, however, to the Court to decide whether the Acts
\nwhich were included in the Ninth Schedule by 29th Amendment Act or any provision
\nthereof abrogates any of the bask elements of the Constitutional structure or denudes
\nthem of their identity.\n<\/p>\n
646. Our conclusions may be summarised as follows:\n<\/p>\n
1. The decision in Golak Nath has become academic, for even if it be
\nassumed that the majority judgment that the word ‘law’ in Article 13(2),
\ncovered Constitutional amendments was not correct, the result on the
\nquestions, wider than those raised in Golak Nath, now raised before us
\nwould be just the same.\n<\/p>\n
2. The discussion on the 24th Amendment leads to the result that-\n<\/p>\n
(a) the said amendment does no more than to clarify in
\nexpress language that which was implicit in the unamended
\nArticle 368 and that it does not or cannot add to the power
\noriginally conferred thereunder;\n<\/p>\n
(b) though the power to amend cannot be narrowly
\nconstrued and extends to all the Articles it is not unlimited
\nso as to include the power to abrogate or change the
\nidentity of the Constitution or its basic features;\n<\/p>\n
(c) even if the amending power includes the power to
\namend Article 13(2), a question not decided in Golak Nath,
\nthe power is not so wide so as to include the power to
\nabrogate or take away the fundamental freedoms; and\n<\/p>\n
(d) the 24th Amendment Act, read as aforesaid, is valid.\n<\/p>\n
3. Clause (2) of Article 31, as substituted by Section 2 of the 25th
\nAmendment, does not abrogate any basic element of the Constitution nor
\ndoes it denude it of its identity because-\n<\/p>\n
(a) the fixation or determination of “amount” under that
\nArticle has to be based on some norm or principle which
\nmust be relevant for the purpose of arriving at the amount
\npayable in respect of the property acquired or requisitioned;\n<\/p>\n
(b) the amount need not be the market value but it should
\nhave a reasonable relationship with the value of such
\nproperty;\n<\/p>\n
(c) the amount should neither be illusory nor fixed
\narbitrarily; and\n<\/p>\n
(d) though the courts are debarred from going into the
\nquestion of adequacy of the amount and would give due
\nweight to legislative judgment, the examination of all the
\nmatters in (a), (b) and (c) above is open to judicial review.\n<\/p>\n
4. As regards Clause (2B) inserted in Article 31 which makes Article
\n19(1)(f) inapplicable, there is no reason to suppose that for determination
\nof the amount on the principles laid down in the law any such procedure
\nwill be provided which will be unreasonable or opposed to the rules of
\nnatural justice.\n<\/p>\n
5. On the above view Section 2 of the 25th Amendment is valid.\n<\/p>\n
6. The validity of Section 3 of the 25th Amendment which introduced
\nArticle 31C in the Constitution cannot be sustained because the said
\nArticle suffers from two vices. The first is that it enables abrogation of the
\nbasic elements of the Constitution inasmuch as the fundamental rights
\ncontained in Articles 14, 19 and 31 can be completely taken away and,
\nsecondly, the power of amendment contained in Article 368 is of a special
\nnature which has been exclusively conferred on Parliament and can be
\nexercised only in the manner laid down in that Article. The same could not
\nbe delegated to any other legislature in the country. Section 3, therefore,
\nmust be declared to be unConstitutional and invalid.\n<\/p>\n
7. The 29th Amendment is valid. However, the question whether the Acts
\nincluded in the Ninth Schedule by that amendment or any provision of
\nthose Acts abrogates any of the basic elements of the Constitutional
\nstructure or denudes them of their identity will have to be examined when
\nthe validity of those Acts comes up for consideration.\n<\/p>\n
647. The petitions are remitted to the Constitution Bench to be decided in accordance
\nwith this judgment and the law. The Constitution Bench will also decide the validity of
\nthe 26th Amendment in the light of our judgment.\n<\/p>\n
K.S. Hegde and A.K. Mukherjea, JJ.\n<\/p>\n
648. In these writ petitions questions of great Constitutional importance have arisen for
\nconsideration. Herein we are called upon to decide the Constitutional validity of the 24th,
\n25th, 26th and 29th Amendments to the Constitution. We have had the advantage of
\nhearing long and illuminating arguments covering over 65 working days. We have been
\nreferred to numerous decisions of this Court and of the courts in England, United States,
\nCanada, Australia, Germany, Ireland and Ceylon. Our attention has also been invited to
\nvarious writings of jurists, present and past, of several countries. For paucity of time, we
\nhave not taken up the question of the validity of the 26th Amendment. That question can
\nbe conveniently considered later after this bench decides certain fundamental questions of
\nlaw arising for decision. For the same reason we have also refrained from going into the
\nmerits of various writ petitions at this stage. At present we are merely deciding the scope
\nand validity of the 24th, 25th and 29th Amendments to the Constitution.\n<\/p>\n
649. In order to decide the validity of the Amendments referred to earlier, it is necessary
\nto go into the scope of the power conferred on Parliament under Article 368 of the
\nConstitution as it stood prior to its amendment by the 24th Amendment Act which came
\ninto force on November 5, 1971. Article 368 is the only article found in Part XX of the
\nConstitution. The title of that part is “Amendment of the Constitution.” Its marginal note
\nas it originally stood read “Procedure for amendment of the Constitution”. The Article
\nread thus:\n<\/p>\n
An amendment of this Constitution may be initiated only by the
\nintroduction of a Bill for the purpose in either House of Parliament, and
\nwhen the Bill is passed in each House by a majority of the total
\nmembership of that House and by a majority of not less than two-thirds of
\nthe members of that House present and voting, it shall be presented to the
\nPresident for his assent and upon such assent being given to the Bill, the
\nConstitution shall stand amended in accordance with the terms of the Bill:
\nProvided that if such amendment seeks to make any change
\nin-\n<\/p>\n
(a) Article 54, Article 55, Article 73, Article
\n162 or Article 241, or\n<\/p>\n
(b) Chapter IV of Part V, Chapter V of Part
\nVI, or Chapter I of Part XI, or\n<\/p>\n
(c) any of the Lists in the Seventh Schedule,
\nor\n<\/p>\n
(d) the representation of States in
\nParliament, or\n<\/p>\n
(e) the provisions of this article,
\nthe amendment shall also require to be ratified by the Legislatures of not
\nless than one half of the States by resolutions to that effect passed by those
\nLegislatures before the Bill making provision for such amendment is
\npresented to the President for assent.\n<\/p>\n
650. The petitioners’ learned Counsel, Mr. Palkhivala, advanced twofold arguments as to
\nthe scope of that Article. His first contention was that in the exercise of its powers under.
\nArticle 368 as it stood before its amendment, it was impermissible for Parliament to take
\naway or abridge any of the rights conferred by Part III of the Constitution. His second
\nand more comprehensive argument was that the power conferred on the Parliament under
\nArticle 368 did not permit it to damage or destroy any of the basic or fundamental
\nfeatures or essential elements of the Constitution. The arguments on these two aspects
\nnaturally ran into each other. But for a proper legal approach, it is necessary to keep them
\napart as far as possible. Hence while considering the correctness of the first contention,
\nwe shall not take into consideration the importance of the Fundamental Rights. On this
\naspect, our approach to Article 368 will be purely based on the language of Article 368
\nand Article 13. The importance or transcendental character of the Fundamental Rights as
\nwell as the implied or inherent limitations on the amending power, if any, will be
\nconsidered While dealing with the second of the two alternative contentions advanced by
\nMr. Palkhivala.\n<\/p>\n
651. We shall first take up the question whether by the exercise of the power of
\namendment conferred by Article 368, as it originally stood, Parliament could have taken
\naway any of the Fundamental Rights conferred by Part III. According to Mr. Palkhivala,
\nArticle 368 as it stood before its amendment merely laid down the procedure for
\namendment; the power to amend the Constitution must be found somewhere else in the
\nConstitution; the power to be exercised by Parliament under Article 368 in legislative in
\ncharacter and the resulting product is ‘law’, hence such a law, in view of Article 13(2)
\nwhich says “The State shall not make any law which takes away or abridges the rights
\nconferred by this Part and any law made in contravention of this clause shall, to the
\nextent of the contravention, be void”, cannot validly take away or abridge any of the
\nFundamental Rights. He further contended that the word ‘law’ in Article 13(1) means and
\nincludes not merely legislative enactments but also Constitutional measures. The Counsel
\nurged, there is no reason why a different meaning should be given to the word ‘law’ in
\nArticle 13(2). A more important argument of his was that the power to amend the
\nConstitution, even if, it is assumed to be contained in Article 368, is by no means an
\nexclusive power because in certain respects and subject to certain conditions, the
\nConstitution can also be amended by Parliament by a simple majority by enacting a law
\nin the same manner as other legislative measures are enacted. In this connection he drew
\nour attention to Articles 4, 169, Paragraph 7 of the Vth Schedule and Paragraph 21 of the
\nVIth Schedule. Counsel urged that if the amendment of the provisions of the Constitution
\nreferred to therein is considered as the exercise of constituent power and consequently
\nsuch an amendment is not a “law” within the meaning of that expression in Article 13,
\nthen Parliament by a simple majority of the members present and voting if the rule
\nregarding the quorum is satisfied, can take away or abridge any of the Fundamental
\nRights of certain sections of the public in this country.\n<\/p>\n
652. On the other hand, the learned Attorney General, the learned Advocate General for
\nthe State of Maharashtra, appearing for the State of Kerala and the other Counsel
\nappearing for the various States contended that a plain reading of Article 368 shows that
\nthe power to amend the Constitution as well as the procedure of amendment are both
\ncontained in that Article; once the form and the manner laid down in that Article have
\nbeen complied with, the result is the amendment of the Constitution. According to them,
\nthe expression “an amendment of this Constitution” in Article 368 means an amendment
\nof each and every provision or part of the Constitution; once the form and manner
\nprovided in Article 368 have been complied with, the amended Article is as effective as
\nthe original Article itself; and, therefore, as in the case of the original Article, the validity
\nof the amended Article also cannot be challenged. They further contended that ‘law’ in
\nArticle 13 means only legislative enactments or ordinances, or orders or bye-laws or rules
\nor regulations or notifications or customs or usages having the force of law in the
\nterritory of India and that expression does not include a Constitutional law, though in a
\ncomprehensive sense, a Constitutional law is also a law. They further contended that the
\nword ‘law’ in Article 13 must be harmoniously construed with Article 368 and, if ‘it is so
\nconstrued, there is no room for doubt that the expression ‘law’ in Article 13 does not
\ninclude a Constitutional law. They repudiated the contention of Mr. Palkhivala that there
\nwas any Constitutional law as such in force when the Constitution came into force. Hence
\naccording to them the expression ‘law’ in Article 13(2) does not take in the amendment of
\nthe Constitution. According to them, laws enacted under Article 4, Article 169, Paragraph
\n7 of Schedule V and Paragraph 21 of Schedule VI are not to be deemed as amendments
\nto the Constitution as is laid down in those provisions, though in fact they do amend the
\nConstitution in certain respects and they are no different from the other legislative
\nmeasures enacted by Parliament; hence the laws enacted under those provisions cannot
\ntake away or abridge any of the Fundamental Rights. We have now to see which one of
\nthose lines of reasoning is acceptable.\n<\/p>\n
653. The question whether Fundamental Rights can be abridged by Parliament by the
\nexercise of its power under Article 368 in accordance with the procedure laid down
\ntherein came up for consideration before this Court very soon after the Constitution came
\ninto force. The validity of the Constitution (1st Amendment) Act 1951 came up for the
\nconsideration of this Court in Sankari Prasad Singh Deo v. Union of India and State of
\nBihar [1952] S.C.R. 89. In that case the scope of Article 368 vis-a-vis Article 13(2) was
\ndebated. This Court rejecting the contention of the petitioners therein that it was
\nimpermissible for Parliament to abridge any of the Fundamental Rights under Article
\n368, held that “although ‘law’ must ordinarily include Constitutional law, there is a clear
\ndemarcation between ordinary Jaw which is made in exercise of legislative power, and
\nConstitutional law, which is made in exercise of constituent power”. This Court held that
\n“in the context of Article 13, ‘law’ must be taken to mean rules or regulations made in
\nexercise of ordinary legislative power and not amendments to the Constitution made in
\nexercise of constituent power, with the result that Article 13(2) does not affect the
\namendments made under Article 368”. In the case this Court also opined that the power
\nto amend the Constitution was explicitly conferred on Parliament by Article 368 and the
\nrequirement of a different majority was merely procedural. It rejected the contention that
\nArticle 368 is a complete code by itself and upheld the contention of the Government that
\nwhile acting under Article 368, Parliament can adopt the procedures to be adopted,
\nexcept to the extent provided in Article 368, in enacting other legislative measures.\n<\/p>\n
654. The power of Parliament to abridge Fundamental Rights under Article 368 was
\nagain considered by this Court in Sajjan Singh v. State of Rajasthan [1965] 1 S.C.R. 933.
\nIn that case two questions were considered viz. (1) Whether the amendment of the
\nConstitution in so far as it purported to take away or abridge the rights conferred by Part
\nIII of the Constitution was within the prohibition of Article 13(2) and (2) Whether
\nArticles 31-A and 31-B (as amended by the 17th Amendment Act) sought to make
\nchanges in Article 132, Article 136 and Article 226 or any of the Lists in the VIIth
\nSchedule and therefore the conditions prescribed in the proviso to Article 368 had to be
\nsatisfied. It is clear from the judgment of the Court that the first question was not debated
\nbefore the Court though the majority judges as well as the minority judges did consider
\nthat question evidently without any assittance from the bar. On both those questions
\nChief Justice Gajendragadkar speaking for himself and Wanchoo and Raghubar Dayal JJ.
\nconcurred with the view taken by this Court in Sankari Prasad’s case. But Hidayatullah J.
\n(as he then was) and Mudholkar J. doubted the correctness of that decision on the first
\nquestion but concurred with the view taken by the majority of judges on the second
\nquestion. Hidayatullah and Mudholkar JJ. agreed in dismissing the writ petitions as the
\npetitioners had not challenged the correctness of the decision of this Court in Sankari
\nPrasad’s case on the first question.\n<\/p>\n
655. The question whether any of the Fundamental Rights can be abridged or taken away
\nby Parliament in exercise of its power under Article 368 again came up for consideration
\nbefore this Court in I.C. Golaknath and Ors. v. State of Punjab (1957) 2 S.C.R. 762. This
\ncase was heard by a full court of eleven judges. In that case by a majority of six to five
\nthis Court came to the conclusion that Sankari Prasad’s case as well as Sajjan Singh’s case
\nwere not correctly decided. The majority held that the expression ‘law’ in Article 13(2)
\nincludes Constitutional amendments as well. The minority agreeing with the earlier
\ndecisions held that the expression ‘law’ in Article 13(2) does not include Constitutional
\namendments. Five of the majority judges namely Subba Rao C.J., Shah, Sikri, Shelat and
\nVaidialingam JJ. held that Article 368 in terms only prescribes the various steps in the
\nmatter of amendment and that the Article assumes the existence of the power to amend
\nsomewhere else in the Constitution. According to them the mere completion of the
\nprocedural steps mentioned in Article 368 cannot bring about a valid amendment of the
\nConstitution. In their opinion, the power to amend cannot be implied from Article 368.
\nThey declined to infer such a power by implication in Article 368 as they thought it was
\nnot necessary since Parliament has under Article 248 read with Item 97 of List I of the
\nVIIth Schedule plenary power to make any law including the law to amend the
\nConstitution subject to the limitations contained therein. They observed that the power of
\nParliament to amend the Constitution may be derived from Article 245, Article 246 and
\nArticle 248 read with Item 97 of List I. The remaining six judges held that the power of
\namendment is not derived from Article 248 read with Entry 97 of List I of the VIIth
\nSchedule. Wanchoo J. (as he then was) and Bhargava, Mitter and Bachawat JJ. held that
\nthe power to amend is to be found in Article 368 and Ramaswami J. held that Article 368
\nconfers on Parliament the right (power) to amend the Constitution. Hidayatullah J. (as he
\nthen was) held that Article 368 outlines a process, which, if followed strictly, results in
\nthe amendment of the Constitution; that article gives the power to no particular person or
\npersons, and that the power of amendment, if it can be called a power at all, is a
\nlegislative power but it is sui generis and exists outside the three Lists in Schedule VII of
\nthe Constitution. This reasoning of Hidayatuulah J. may be reasonably read to suggest
\nthat the power of amendment] is necessarily implied in Article 368. The majority of the
\njudges who held that it was impermissible for Parliament to take away or abridge any of
\nthe Fundamental Rights by an amendment of the Constitution did not proceed to strike
\ndown the the 1st, 4th and 17th Amendments. Five of them relied on the doctrine of
\n“Prospective Overruling” (Subba Rao C.J., Shah, Sikri, Shelat and Vaidialingam JJ.) and
\nHidayatullah J. relied on the doctrine of acquiescence to save those amendments.
\nEvidently in an attempt to get over the effect of the decision in Golak Nath’s case,
\nParliament has enacted the 24th Amendment Act, 1971, and the same has been ratified by
\nmore than one half of the Legislatures of the States.\n<\/p>\n
656. Now, turning back to the contentions advanced on behalf of the parties, we shall first
\ndeal with the contention of the Union and some of the States that once the “form and
\nmanner” prescribed in Article 368 are complied with, the Constitution stands amended
\nand thereafter the validity of the amendment is not open to challenge. This contention
\ndoes not appear to be a tenable one. Before a Constitution can be validly amended, two
\nrequirements must be satisfied. Firstly, there must be the power to amend the provision
\nsought to be amended; and secondly, the “form and the manner” prescribed in Article 368
\nmust be satisfied. If the power to amend the Article is wanting, the fact that Parliament
\nhas adhered to the form and manner prescribed in Article 368 becomes immaterial. Hence
\nthe primary question is whether Parliament has power to abridge or take away any of the
\nFundamental Rights prescribed in Part III of the Constitution ?\n<\/p>\n
657. In order to find out whether Parliament has the power to take away or abridge any of
\nthe Fundamental Rights in exercise of its power under Article 368, we must first ascertain
\nthe true scope of that Article. As seen earlier in Sankari Prasad’s case, this Court ruled
\nthat the power to amend the Constitution is to be found in Article 368. The same view
\nwas taken by the majority of judges in Sajjan Singh’s case as well as in Golak Nath’s
\ncase. We respectively hold that view to be the correct view. As mentioned earlier, Part
\nXX of the Constitution which purports to deal with amendment of the Constitution
\ncontains only one Article, i.e. Article 368. The title of that Part is “Amendment of the
\nConstitution.” The fact that a separate part of the Constitution is reserved for the
\namendment of the Constitution is a circumstance of great significance-see Don John
\nFrancis Douglas Liyanage and Ors. v. The Queen [1967] 1 A.C. 259 at 287 and State of
\nU.P. v. Manbodhan Lal Srivastava<\/a> [1958] S.C.R. 533 at 544. The provisions relating to
\nthe amendment of the Constitution are some of the most important features of any
\nmodern Constitution. All modern Constitutions assign an important place to the
\namending provisions. It is difficult to accept the view expressed by Subba Rao C.J. and
\nthe learned judges who agreed with him that the power to amend the Constitution is not
\nto be found even by necessary implication in Article 368 but must be found elsewhere. In
\ntheir undoubtedly difficult task of finding out that power elsewhere they had to fall back
\non Entry 97 of List I. Lists I to III of the VIIth Schedule of the Constitution merely divide
\nthe topics of legislation among the Union and the States. It is obvious that these lists have
\nbeen very carefully prepared. They are by and large exhaustive. Entry 97 in List I was
\nincluded to meet some unexpected and unforeseen contingencies. It is difficult to believe
\nthat our Constitution-makers who were keenly conscious of the importance of the
\nprovision relating to the amendment of the Constitution and debated that question for
\nseveral days, would have left this important power hidden in Entry 97 of List I leaving it
\nto the off chance of the courts locating that power in that Entry. We are unable to agree
\nwith those learned judges when they sought to place reliance on Article 245, Article 246
\nand Article 248 and Entry 97 of List I for the purpose of locating the power of
\namendment in the residuary power conferred on the Union. Their reasoning in that regard
\nfails to give due weight to the fact that the exercise of the power under those articles is
\n“subject to the provisions of this Constitution”. Hardly few amendments to the
\nConstitution can be made subject to the existing provisions of the Constitution. Most
\namendments of the Constitution must necessarily impinge on one or the other of the
\nexisting provisions of the Constitution. We have no doubt in our minds that Article 245 to
\nArticle 248 as well as the Lists in the VIIth Schedule merely deal with the legislative
\npower and not with the amending power.\n<\/p>\n
658. Now corning back to Article 368, it may be noted that it has three components;
\nfirstly, it deals with the amendment of the Constitution; secondly, it designates the body
\nor bodies which can amend the Constitution, and lastly, it prescibes the form and the
\nmanner in which the amendment of the Constitution can be effected. The Article does not
\nexpressly confer power to amend; the power is necessarily implied in the Article. The
\nArticle makes it clear that the amendment of the Constitution can only be made by
\nParliament but in cases falling under the proviso, ratification by legislatures of not less
\nthan one-half of the States is also necessary. That Article stipulates various things. To
\nstart with, the amendment to the Constitution must be initiated only by the introduction of
\na Bill for that purpose in either House of Parliament. It must then be passed in each
\nHouse by a majority of the total membership of that House and by a majority of not less
\nthan two-thirds of the members of that House present and voting and if the amendment
\nseeks to make any change in the provisions mentioned in the proviso, it must be ratified
\nby not less than one-half of the State Legislatures. Thereafter, it should be presented to
\nthe President for his assent It further says that upon such assent being given to the Bill
\n“the Constitution shall stand amended in accordance with the terms of the Bill”. To
\nrestate the position, Article 368 deals with the amendment of the Constitution. The
\nArticle contains both the power and the procedure for amending the Constitution. No
\nundue importance should be attached to the marginal note which says “Procedure for
\namendment of the Constitution”. Marginal note plays a very little part in the construction
\nof a stautory provision. It should have much less importance in construing a
\nConstitutional provision. The language of Article 368 to our mind is plain and
\nunambiguous. Hence we need not call into aid any of the rules of construction about
\nwhich there was great deal of debate at the hearing. As the power to amend under the
\nArticle as it originally stood was only implied, the marginal note rightly referred to the
\nprocedure of amendment. The reference to the procedure in the marginal note does not
\nnegative the existence of the power implied in the Article.\n<\/p>\n
659. The next question is whether the power conferred under Article 368 is available for
\namending each and every provision of the Constitution. The Article opens by saying “An
\namendment of this Constitution” which means an amendment of each and every
\nprovision and part of the Constitution. We find nothing in that Article to restrict its scope.
\nIf we read Article 368 by itself, there can be no doubt that the power of amendment
\nimplied in that Article can reach each and every Article as well as every part of the
\nConstitution.\n<\/p>\n
660. Having ascertained the true scope of Article 368, let us now turn to Article 13. A
\ngreat deal of reliance was placed by the learned Counsel for the petitioners on the
\nexpression ‘law’ found in Article 13(1) and (2). As seen earlier, the two judges in Sajjan
\nSingh’s case as well as the majority of judges in Golak Nath’s case opined that ‘law’ in
\nArticle 13(2) also includes Constitutional law i.e. law which amends the Constitution and
\nwe see no substance in the contention that the amendment of a Constitution is not ‘law’.
\nThe Constitution is amended by enacting Amendment Acts. The Constitution is not only
\na law but the paramount law of the country. An amendment of that law must necessarily
\nbe a law. The fact that the word ‘law’ is not used in Article 368 is of little significance.
\nFor that matter Article 110 also does not provide that a Bill when assented to by the
\nPresident becomes law. The amendment of a Constitution is initiated by a Bill and it goes
\nthrough the procedure laid down in Article 368, supplemented wherever necessary by the
\nprocedure prescribed in Article 107; see Sankari Prasad’s case. The Bill when passed by
\nboth the Houses of Parliament and, in matters coming under the proviso to Article 368,
\nafter securing the necessary ratification by the State Legislatures, is presented to the
\nPresident for his assent The procedure adopted is the same as that adopted in enacting an
\nordinary statute except to the extent provided in Article 368. Even if it had been different,
\nthere can be hardly any doubt that the amendment of a Constitution is ‘law’. In Sankari
\nPrasad’s case, Patanjali Sastri J. (as he then was) speaking for the Court had no doubt in
\nruling that the expression ‘law’ must ordinarily include ‘Constitutional law’. The same
\nview was taken by all the judges in Sajjan Singh’s case and also by most of the judges in
\nGolak Nath’s case.\n<\/p>\n
661. But the question still remains whether our Constitution makers by using the
\nexpression ‘law’ in Article 13(2) intended that that expression should also include the
\nexercise of Parliament’s amending power under Article 368. We have earlier explained
\nthe scope and extent of Article 368. In understanding the meaning of the word ‘law’s in
\nArticle 13(2) we should bear in mind the scope of Article 368. The two Articles will have
\nto be construed harmoniously. The expression ‘law’ may mean one of two things, namely,
\neither those measures which are enumerated in Article 13(3) as well as statutes passed by
\nlegislatures or in addition thereto Constitutional laws (amendments) as well. In this
\nconnection reference may be made to a passage in Corpus Juris Secundum (Vol. XVI-
\nTitle Constitutional Law Article 1, p. 20), which says:\n<\/p>\n
The term ‘Constitution’ is ordinarily employed to designate the organic law
\nin contradistinction to the terms ‘law’ which is generally used to designate
\nstatutes or legislative enactments. Accordingly, the term ‘law’ under this
\ndistinction does not include a Constitutional amendment. However, the
\nterm ‘law’ may, in accordance with the context in which it is used,
\ncomprehend or include the Constitution or a Constitutional provision or
\namendment\n<\/p>\n
662. It is true that Article 13(3) contains an inclusive definition of the term ‘law’ and,
\ntherefore, the question whether it includes Constitutional amendment also cannot be
\nanswered with reference to that clause. All the same, since the expression ‘law’ can have
\ntwo meanings, as mentioned earlier, we must take that meaning which harmonises with
\nArticle 368. As mentioned earlier, Article 368 is unambiguous, whereas Article 13 is
\nambiguous because of the fact that the word ‘law’ may or may not include Constitutional
\namendment. Further, when we speak of ‘law’ we ordinarily refer to the exercise of
\nlegislative power. Hence, law’ in Article 13(2) must be construed as referring to the
\nexercise of an ordinary legislative power.\n<\/p>\n
663. An examination of the various provisions of our Constitution shows that it has made
\na distinction between “the Constitution” and “the laws”. The two are invariably treated
\nseparately-see Article 60, 61, proviso to Article 73(1), Article 75(4) read with the Third
\nSchedule, Article 76(2); Article 124(6) read with the Third Schedule, Article 148(5),
\nArticle 159 and Article 219 read with the Third Schedule. These provisions clearly
\nestablish that the Constitution-makers have not used the expression ‘law’ in the
\nConstitution as including Constitutional law.\n<\/p>\n
664. Mr. Palkhivala contended that the term ‘law’ in Article 13(1) includes Constitutional
\nlaw also. Wanchoo J. speaking for himself and on behalf of two other judges in
\nGolaknath’s case held that on the day the Constitution came into force, no Constitutional
\nlaw was in force. Therefore in his view, the term ‘law’ in Article 13(1) can only refer to
\nlegislative measures or ordinances or bye-laws, rules, regulations, notifications, customs
\nand usages. Mr. Palkhivala contended that the said finding is not correct. In that
\nconnection he referred to the treaties and agreements entered into between the former
\nRulers of the Indian States and the Central Government as well as to certain other
\nmeasures which were in force when the Constitution came into force which, according to
\nhim, are ‘Constitutional law’ and, on that basis, he contended that certain Constitutional
\nlaws were in force on the day when the Constitution came into force. We are not satisfied
\nthat this contention is correct. Under Article 395, the Indian Independence Act, 1947 as
\nwell as the Government of India Act, 1935, were repealed. The laws which were
\ncontinued under Article 372 after the Constitution came into force did not operate on
\ntheir own strength. For their validity they had to depend on Article 372 and that Article
\nmade it clear that those laws will continue to be in force “subject to the other provisions
\nof the Constitution”. Anyway it is not necessary to decide the question whether those
\nlaws are Constitutional laws. Article 13(1) does not refer to ‘laws’ as such. It refers to
\n“laws in force in the territory of India immediately before the commencement of this
\nConstitution”. It identifies certain laws and determines the extent of their validity. The
\nscope of Article 13(1) does not bear on the interpretation of the expression ‘law’ in Article
\n13(2).\n<\/p>\n
665. We shall now examine the contention of Mr. Palkhivala based on Articles 4, 169,
\nParagraph 7 of Schedule V and Paragraph 21 of Schedule VI. He contended and we have
\nno doubt that he did so rightly,-that the Constitution can be amended not only under
\nArticle 368 but also under Article 4, Article 169, Paragraph 7 of Schedule V and
\nParagraph 21 of Schedule VI. Amendments under these provisions can be effected by
\nParliament by a simple majority vote of the members present in the House and voting, if
\nthe prescribed quorum is there. If the two Houses do not agree on any amendment under
\nthose provisions, the same has to be decided by a Joint sitting of the two Houses as
\nprovided in Article 108. That is because of the express exclusion of the application of
\nArticle 368 to the amendments made under those provisions. According to Mr.
\nPalkhivala, by the exercise of its power under the aforementioned provisions, Parliament
\ncan in certain respects take away or abridge the Fundamental Rights of a section of the
\npeople of this country. He painted a gloomy picture as to what can happen by the exercise
\nof power by Parliament under those provisions. It is true that the power conferred under
\nthe aforementioned provisions is amending power but those provisions make it clear that
\nthe exercise of the power under those provisions shall not be “deemed to be the
\namendment of the Constitution for the purpose of Article 368”.\n<\/p>\n
666. This brings us to a consideration, what exactly is the intent of the expression “No
\nsuch law as aforesaid shall be deemed to be an amendment of this Constitution for the
\npurpose of Article 368”. There can be little doubt that these words merely mean that the
\nform and manner prescribed in Article 368 need not be compiled with. Once this position
\nis accepted any law made under those provisions takes the character of an ordinary law
\nand that law becomes subject to the other provisions of the Constitution including Article
\n13(2).\n<\/p>\n
667. Counsel either side took us through the debates of the Constituent Assembly relating
\nto Article 368. Naturally each one of them relied on those passages from the speeches of
\nthe various members who took part in the debate and, in particular, on the speeches of
\nlate Prime Minister Nehru and the then Law Minister Dr. Ambedkar, which supported
\ntheir contention. Having gone through those speeches, we feel convinced that no
\nconclusive inference can be drawn from those speeches as to the intention of those
\nspeakers. Hence, we need not go into the question at this stage whether it is permissible
\nfor us to place reliance on those speeches for finding out the true scope of Article 368.\n<\/p>\n
668. Mr. Palkhivala placed a great deal of reliance on the stages through which the
\npresent Article 13 passed. It is seen from the Constituent Assembly records that when the
\nConstituent Assembly was considering the provision which resulted in Article 13(2), Mr.
\nSanthanam one of the members of the Constituent Assembly moved an amendment to
\nmake it clear that the expression ‘law’ in Article 13(2) does not include an amendment of
\nthe Constitution under draft Article 304 (present Article 368) and that the amendment
\nwas accepted by Sardar Patel, Chairman of the Advisory Committee. On the basis of that
\ndecision, Sir B.N. Rau, the Constitutional Adviser redrafted the concerned provision by
\nspecifically excluding from its operation amendments of the Constitution. When this
\nmatter went before the Drafting Committee consisting of emient lawyers, they redrafted
\nthe clause thus:\n<\/p>\n
The State shall not make any law which takes away or abridges the rights
\nconferred by this part and any law made in contravention of this clause
\nshall to the extent of contravention be void.\n<\/p>\n
669. In other words, the drafting committee deleted from Sir B.N. Rau’s draft those words
\nwhich specifically excluded from the operation of the clause amendments of the
\nConstitution. From these circumstances, Mr. Palkhivala seeks to draw the inference that
\nthe Constituent Assembly finally decided to bring within the scope of Article 13(2)
\nConstitutional amendments also. We are unable to accept this contention. It is not clear
\nwhy the drafting committee deleted the reference to the amendment of the Constitution in
\nArticle 13(2). It is possible that they were of the opinion that in view of the plain
\nlanguage of the provision relating to the amendment of the Constitution i.e. draft Article
\n304, it was unnecessary to provide in Article 13(2) that the amendment of the
\nConstitution does not come within its scope.\n<\/p>\n
670. It is true that this Court has characterised the Fundamental rights as “paramount” in
\nA.K. Gopalan v. State of Madras<\/a> [1950] S.C.R. 88 at 198, as “sacrosanct” in State of
\nMadras v. Smt. Champakam Dorairajan,<\/a> [1951] S.C.R. 525, as “rights served by the
\npeople” in Pandu M.S.M. Sharma v. Shri Sri Krishna Sinha,<\/a> [1959] Supp. 1 S.C.R. 806 as
\n“inalienable and inviolable” in Smt. Ujjam Bhai v. State of U.P.<\/a> [1963] 1 S.C.R. 778 and
\nas “transcendental” in several other cases. In so describing the Fundamental Rights in
\nthose cases, this Court could not have intended to say that the Fundamental Rights alone
\nare the basic elements or fundamental features of the Constitution. Mr. Palkhiwala
\nconceded that the basic elements and fundamental features of the Constitution are found
\nnot merely in Part III of the Constitution but they are spread out in various other parts of
\nthe Constitution. They are also found in some of the Directive Principles set out in Part
\nIV of the Constitution and in the provisions relating to the sovereignty of the country, the
\nRepublic and the Democratic character of the Constitution. According to the Counsel,
\neven the provisions relating to the unity of the country are basic elements of the
\nConstitution.\n<\/p>\n
671. It was urged that since even amendment of several provisions of minor significance
\nrequires the concurrence of the legislatures of the majority of the States it is not likely
\nthat the Constitution makers would have made the amendment of the provisions relating
\nto Fundamental Rights a plaything of the Parliament This argument, however, does not
\nlead to any definite conclusion. It is not unlikely that the Constitution-makers thought
\nthat the states are specially interested in the provisions mentioned in the proviso to
\nArticle 368, so that the amendment of those provisions should require ratification by the
\nlegislatures of the majority of the States. When the language of Article 368 is plain, as we
\nthink it is, no question of construction of that Article arises. There is no need to delve into
\nthe intention of the Constitution-makers.\n<\/p>\n
672. Every Constitution is expected to endure for a long time. Therefore, it must
\nnecessarily be elastic. It is not possible to place the society in a straight jacket. The
\nsociety grows, its requirements change. The Constitution and the laws may have to be
\nchanged to suit those needs. No single generation can bind the course of the generation to
\ncome. Hence every Constitution wisely drawn up provides for its own amendment. We
\nshall separately consider the contention of Mr. Palkhivala that our Constitution embodies
\ncertain features which are so basic that no free and civilised society can afford to discard
\nthem and in no foreseeable future can those features become irrelevant in this country.
\nFor the present we shall keep apart, for later consideration. Mr. Palkhivala’s contention
\nthat the Parliament which is only a constituted body cannot damage or destroy the
\nessential features of the Constitution. Up till now we have merely confined our attention
\nto the question as to the scope and reach of Article 368. This Court has always attached
\ngreat importance to the Fundamental Rights guaranteed under our Constitution. It has
\ngiven no less imporotance to some of the Directive Principles set out in Part IV. The
\nDirective Principles embodied in Part IV of the Constitution or at any rate most of them
\nare as important as the rights of individuals. To quote the words of Graville Austin (The
\nIndian Constitution-Corner Stone of a Nation, page 50):\n<\/p>\n
The Indian Constitution is first and foremost a social document. The
\nmajority of its provisions are either directly aimed at furthering the goals
\nof social revolution by establishing the conditions necessary for its
\nachievement yet despite the permeation of the entire Constitution by the
\naim of national renaissance, the core of the commitment to the social
\nrevolution lies in Parts III and IV, in the Fundamental Rights and the
\nDirective Principles of State Policy. These are the conscience of the
\nConstitution.\n<\/p>\n
673. Therefore to implement the duties imposed on the States under Part IV, it may be
\nnecessary to abridge in certain respects the rights conferred on the citizens or individuals
\nunder Part III, as in the case of incorporation of Clause 4 in Article 15 to benefit the
\nbackward classes and Scheduled Castes and Scheduled Tribes and the amendment of
\nArticle 19(2) with a view to maintain effectively public order and friendly relations with
\nforeign States. Hence we are unable to construe the amending power in a narrow or
\npedantic manner. That power, under any circumstance, must receive a broad and liberal
\ninterpretation. How large it should be is a question that requires closer examination. Both
\non principle as well as on the language of Article 368, we are unable to accede to the
\ncontention that no right guaranteed by Part III can be abridged.\n<\/p>\n
674. This Court is always reluctant to overrule its earlier decisions. There must be
\ncompelling reasons for overruling an earlier decision of this Court. As seen earlier, there
\nare already conflicting decisions as to the scope of Article 368. As far back as 1951, in
\nSankari Prasad’s case, this Court took the view that the power of amendment conferred
\nunder Article 368 included within itself the power to abridge and take away the
\nFundamental Rights incorporated in Part III of the Constitution. The correctness of that
\nview was not challenged in several other decisions. The same view was taken in Sajjan
\nSingh’s case. That view was negatived in Golakhnath’s case by a very narrow majority.
\nBearing in mind the disastrous effect that decision would have had on many important
\nlaws that had been enacted by the Union and the States between the years 1951 to 1967,
\nthis Court by relying on the doctrines of prospective overruling and the doctrine of
\nacquiescence did not invalidate those laws.\n<\/p>\n
675. One other circumstance of great significance is that the 1st Amendment to the
\nConstitution was carried out by the provisional Parliament which consisted of the very
\nmembers who were the members of the Constituent Assembly. It should be remembered
\nthat members of the Constituent Assembly continued as the members of the provisional
\nParliament till the General Election in 1952. They must have been aware of the intention
\nwith which Article 368 was enacted. These are important circumstances. The
\ninterpretation we place on a Constitutional provision, particularly on a provision of such
\ngreat importance as Article 368 must subserve national interest. It must be such as to
\nfurther the objectives intended to be achieved by the Constitution and to effectuate the
\nphilosophy underlying it. To quote the memorable words of Chief Justice Marshall we
\nmust not forget that we are expounding a Constitution.\n<\/p>\n
676. We now come to the second contention of Mr. Palkhivala that the word ‘amendment’
\nhas a limited meaning and Article 368 does not permit any damage to or destruction of
\nthe basic or fundamental features or essential elements of the Constitution. Mr.
\nPalkhivala urged that the word “amendment” or “amend” ordinarily means ‘to make
\ncertain changes or effect some improvements in a text’. Those words do not, according to
\nhim, except under special circumstances mean the widest power to make any and every
\nchange in a document, including a power to abrogate or repeal the basic features of that
\ndocument. The same, he contended, is true of a power to amend a statute or a
\nConstitution. In support of his contention, he invited our attention to the various
\nmeanings given to the word “amendment” or “amend” in several dictionaries. He further
\nurged that in construing the meaning of the word “amendment” in Article 368, we must
\ntake into consideration the donee to whom the power to amend the Constitution is
\ngranted, the atmosphere in which the Constitution came to be enacted, the consequences
\nof holding that power is unlimited in scope as well as the scheme of the Constitution. He
\nurged that in the final analysis, the duty of the Court is to find out the true intention of the
\nfounding fathers and therefore the question before us is whether the founding fathers
\nintended to confer on Parliament, a body constituted under the Constitution, power to
\ndamage or destroy the very basis on which our Constitution was erected. On the other
\nhand it was contended on behalf of the Union of India, State of Kerala as well as the
\nother States that the power of amendment conferred under Article 368 is of the widest
\namplitude. It brooks no limitation. It is a power which can be used to preserve the
\nConstitution, to destroy the Constitution and to re-create a new Consitution. It was
\ncontended that the society can never be static, social ideals and political and economic
\ntheories go on changing and every Constitution in order to preserve itself needs to be
\nchanged now and then to keep in line with the growth of the society. It was further
\ncontended that no generation can impose its Will permanently on the future generations.
\nWise as our founding fathers were, wisdom was not their sole monopoly. They
\nthemselves realised it. They knew that in a changing world, there can be nothing
\npermanent and, therefore, in order to attune the Constitution to the changing concepts of
\npolitics, economics and social ideas, they provided in Article 368 a machinery which is
\nneither too flexible nor too rigid and makes it possible to so reshape the Constitution as to
\nmeet the requirements of the time. According to them by following the form and manner
\nprescribed in Article 368, Parliament can exercise the same power which the Constituent
\nAssembly could have exercised. We have now to consider which one of the two
\ncontentions is acceptable.\n<\/p>\n
677. While interpretating a provision in a statute or, Constitution the primary duty of the
\ncourt is to find out the legislative intent. In the present case our duty is to find out the
\nintention of the founding fathers in enacting Article 368. Oridnarily the legislative intent
\nis gathered from the language used. If the language employed is plain and unambiguous,
\nthe same must be given effect to irrespective of the consequences that may arise. But if
\nthe language employed is reasonably capable of more meanings than one, then the Court
\nwill have to call into aid various well settled rules of construction and in particular, the
\nhistory of the legislation-to find out the evil that was sought to be remedied and also in
\nsome cases the underlying purpose of the legislation-the legislative scheme and the
\nconsequences that may possibly flow from accepting one or the other of the
\ninterpretations because no legislative body is presumed to confer a power which is
\ncapable of misuse.\n<\/p>\n
678. It was conceded at the bar that generally speaking, the word “amendment” like most
\nwords in English or for that matter in any language, has no precise meaning. Unlike
\n“sale” or “exercise”, it is not a term of law. It is capable of receiving a wide meaning as
\nwell as a narrow meaning. The power to amend a Constitution in certain context may
\ninclude even a power to abrogate or repeal that Constitution. It may under certain
\ncircumstances mean a power to effect changes within narrow limits. It may sometime
\nmean a power that is quite large but yet subject to certain limitations. To put it shortly,
\nthe word “amendment” without more, is a colourless word. It has no precise meaning. It
\ntakes its colour from the context in which it is used. It cannot be interpreted in vacuo.
\nFew words in English language have a natural, or ordinary meaning in the sense that they
\nmust be so read that their meaning is entirely independent of the context. As observed by
\nHolmes J. in Towne v. Eiser. 215 U.S. 418 at 425 “A word is not a crystal, transparent
\nand unchanged; it is the skin of a living thought and may vary greatly in colour and
\ncontent according to circumstances and the time in which it is used”. We must read the
\nword “amendment” in Article 368 not in isolaion but as occurring in a single complex
\ninstrument, Article 368 is a part of the Constitution. The Constitution confers various
\npowers on legislatures as well as on other authorities. It also imposes duties on those
\nauthorities. The power conferred under Article 368 is only one such power. Unless it is
\nplain from the Constitutional scheme that the power conferred under Article 368 is a
\nsuper power and is capable of destroying all other powers, as contended on behalf of the
\nUnion and the States, the various parts of the Constitution must be construed
\nharmoniously for ascertaining the true purpose of Article 368.\n<\/p>\n
679. In our Constitution unlike in the Constitution of the United States of America the
\nwords “amendment” and “amend” have been used to convey different meanings in
\ndifferent places. In some Articles they are used to confer a narrow power, a power merely
\nto effect changes within prescribed limits-see Articles 4, 107(2), 111, 169(2), 196(2),
\n197(2) and 200. Under Paragraph 7 of the Fifth Schedule as well as Paragraph 21 of the
\nSixth Schedule to the Constitution, a much larger power to amend those Schedules has
\nbeen conferred on Parliament. That power includes power to amend “by way of addition,
\nvariation or repeal”. Similar is the position under the repealed Article 243(2), Article
\n252(2) and 350(5). It is true that the power to amend conferred under the Fifth and Sixth
\nSchedules is merely a power to amend those Schedules but if the Constitution-makers
\nwere of the opinion that the word “amendment” or “amend” included within its scope,
\nunless limited otherwise, a power to add, vary, or repeal, there was no purpose in
\nmentioning in those Articles or parts “amend by way of addition, variation or repeal”. In
\nthis connection it may also be remembered that the Constituent Assembly amended
\nSection 291 of the Government of India Act, 1935 on August 21, 1949 just a few days
\nbefore it approved Article 368 i.e. on September 17, 1949. The amended Section 291
\nempowered the Governor-General to amend certain provisions of the 1935 Act “by way
\nof addition, modification or repeal”. From these circumstances, there is prima facie
\nreason to believe that our Constitution makers made a distinction between a mere power
\nto amend and a power to amend by way of “addition, modification or repeal”. It is one of
\nthe accepted rules of construction that the courts should presume that ordinarily the
\nlegislature uses the same words in a statute to convey the same meaning. If different
\nwords are used in the same statute, it is reasonable to assume that, unless the context
\notherwise indicates, the legislature intended to convey different meanings by those
\nwords. This rule of interpretation is applicable in construing a Constitution as well.\n<\/p>\n
680. Now that we have come to the conclusion that the word “amendment” in Article 368
\nis not a word of precise import and has not been used in the various Articles and parts of
\nthe Constitution to convey always the same precise meaning, it is necessary to take the
\naid of the other relevant rules of construction to find out the intention of the Constitution
\nmakers.\n<\/p>\n
681. The question whether there is any implied limitation on the amending power under
\nArticle 368 has not been decided by this Court till now. That question did not come up
\nfor consideration in Sankari Prasad’s case. In Sajjan Singh’s case neither the majority
\nspeaking through Gajendragadkar C.J. nor Hidayatullah J. (as he then was) went into that
\nquestion. But Mudholkar J. did foresee the importance of that aspect. He observed in the
\ncourse of his judgment:\n<\/p>\n
We may also have to bear in mind the fact that ours is a written
\nConstitution. The Constituent Assembly which was the repository of
\nsovereignty could well have created a sovereign Parliament on the British
\nmodel. But instead it enacted a written Constitution, created three organs
\nof State, made the Union executive responsible to Parliament and the State
\nexecutive to the State legislatures, erected a federal structure and
\ndistributed legislative power between Parliament and the State
\nLegislatures; recognised certain rights as fundamental and provided for
\ntheir enforcement, prescribed forms of oaths of office or affirmations
\nwhich require those who subscribe to them to owe true allegiance to the
\nConstitution and further require the members of the Union Judiciary and
\nof the Higher judiciary in the States, to uphold the Constitution. Above all,
\nit formulated a solemn and dignified preamble which appears to be an
\nepitome of the basic features of the Constitution. Can it not be said that
\nthese are indicia of the intention of the Constituent Assembly to give a
\npremanency to the basic features of the Constitution ?\n<\/p>\n
It is also a matter for consideration whether making a change in a basic
\nfeature of the Constitution can be regarded merely as an amendment or
\nwould it be, in effect, rewriting a part of the Constitution; and if the latter,
\nwould it be within the purview of Article 368 ?\n<\/p>\n
682. For the first time in Golak Nath’s case, the contention that the power of amendment
\nunder Article 368 is subject to certain inherent and implied limitations was urged. Subba
\nRao C.J. speaking for himself and four of his colleagues, while recognising the force of
\nthat contention refrained from pronouncing on the same. Wanchoo J. (as he then was)
\nspeaking for himself and two other judges opined that the power under Article 368 is a
\nvery wide power but it may not include a power to abrogate the Constitution. He did
\nexplain what he meant by “abrogate the Constitution”. Hidayatullah J. (as he then was)
\ndid not address himself to that question. Bachawat J. side-stepped that question by saying
\nthat the impugned amendments did not destroy any, basic feature of the Constitution, The
\nonly judge who rejected the contention that there are inherent or implied limitations on
\nthe amending power was Ramaswami J. >From the above discussion it is seen that in
\ncases that came up for consideration before this Court in the past several judges did
\nconsider the possibility of having some limitation on the amending power under Article
\n368 though they did not definitely pronounce on that question.\n<\/p>\n
683. One of the well-recognised rules of construction is the rule laid down in Heydon’s
\ncase. What was the mischief that the Constitution-makers intended to remedy? What was
\nthe purpose intended to be achieved by the Constitution? To answer this question it is
\nnecessary to make a brief survey of our Nationalist movement ever since 1885 and the
\nobjectives sought to be achieved by that movement.\n<\/p>\n
684. The objectives underlying our Constitution began to take their shape as a result of
\nthe forces that operated in the national struggle during the British rule when the British
\nresorted to arbitrary acts of oppression such as brutal assaults on unarmed satyagrahis,
\ninternments, deportations, detention without trial and muzzling of the press. The
\nharshness with which the executive operated its repressive measures strengthened the
\ndemand for Constitutional guarantees of Fundamental Rights. As far back as 1895, the
\nConstitution of India Bill, prepared by some eminent Indians, envisaged for India a
\nConstitution guaranteeing to everyone of our citizens freedom of expression, inviolability
\nof one’s house, right to property, equality before the law, equal opportunity of admission
\nto public offices, right to present claims, petitions and complaints and right to personal
\nliberty. After the publication of the Montague-Chelmsford Report, the Indian National
\nCongress at its special session held in Bombay in August 1918 demanded that the new
\nGovernment of India Act should contain “Declaration of Rights of the people of India as
\nBritish citizens”. The proposed declaration was to embody among other things,
\nguarantees in regard to equality before the law, protection in respect of life and liberty,
\nfreedom of speech and press and right of association. In its Delhi Session in December of
\nthe same year, the Congress passed another resolution demanding the immediate repeal
\nof all laws, regulations and ordinances restricting the free discussion of political
\nquestions and conferring on the executive the power to arrest, detain, intern, extern or
\nimprison any British subject in India outside the process of ordinary Civil or Criminal
\nlaw and the assimilation of the law of sedition to that of England. The Commonwealth of
\nIndia Bill, finalised by the National Convention in 1926 embodied a specific declaration
\nof rights visualising for every person certain rights in terms practically identical with the
\nrelevant provisions of the Irish Constitution. The problems of minorities in India further
\nstrengthened the general argument in favour of inclusion of Fundamental Rights in the
\nIndian Constitution. In its Madras Session in 1927, the Indian National Congress firmly
\nlaid down that the basis of the future Constitution must be a declaration of Fundamental
\nRights. In 1928, the Nehru Committee in its report incorporated a provision for
\nenumeration of such rights, recommending their adoption as a part of the future
\nConstitution of India. The Simon Commission, rejected the demand on the plea that an
\nabstract declaration of such rights was useless unless there existed “the will and the
\nmeans to make them effective”. In 1932, in its Karachi Session, the Indian National
\nCongress reiterated its resolve to regard a written guarantee of Fundamental Rights as
\nessential in any future Constitutional set up in India. The demand for the incorporation of
\nthe Fundamental Rights in the Constitutional document was reiterated by the Indian
\nleaders at the Round Table Conferences. The Joint Select Committee of the British
\nParliament rejected those demands. The Sapru Committee (1944-45) was of the opinion
\nthat in the peculiar circumstances of India, the Fundamental Rights were necessary not
\nonly as assurance and guarantees to the minorities but also prescribing a standard of
\nconduct for the legislatures, governments and the courts. The Committee felt that it was
\nfor the Constitution-making body to enumerate first the list of Fundamental Rights and
\nthen to undertake their further division into justiciable and non-justiciable rights and
\nprovide a suitable machinery for their enforcement.\n<\/p>\n
685. The atrocities committed during the Second World War and the world wide agitation
\nfor human rights, the liberties guaranteed in the Atlantic Charter, the U.N. Charter and
\nthe Declaration of Human Rights by the Human Rights’ Commission strengthened the
\ndemand for the incorporation of Fundamental Rights in our Constitution. The British
\nCabinet Mission in 1946 recognised the need for a written guarantee of Fundamental
\nRights in the Constitution of India. It accordingly recommended the setting up of an
\nadvisory committee for reporting, inter alia, on Fundamental Rights. By the Objectives
\nResolution adopted on January 22, 1947, the Constituent Assembly solemnly pledged
\nitself to draw up for India’s future governance a Constitution wherein “shall be
\nguaranteed and secured to all the people of India justice, social, economic and political,
\nequality of status, of opportunity and before the law; freedom of thought, expression,
\nbelief, faith, worship, vocation, association and action subject to law and public morality
\nand wherein adequate safeguard would be provided for minorities, backward and tribal
\nareas and depressed and other backward classes”. The close association between political
\nfreedom and social justice has become a common concept since the French Revolution.
\nSince the end of the first World War, it was increasingly recognised that peace in the
\nworld can be established only if it is based on social justice. The most modern
\nConstitutions contain declaration of social and economic principles, which emphasise,
\namong other things, the duty of the State to strive for social security and to provide work,
\neducation and proper condition of employment for its citizens. In evolving the
\nFundamental Rights and the Directive Principles, our founding fathers, in addition to the
\nexperience gathered by them from the events that took place in other parts of the world,
\nalso drew largely on their experience in the past. The Directive Principles and the
\nFundamental Rights mainly proceed on the basis of Human Rights. Representative
\ndemocracies will have no meaning without economic and social justice to the common
\nman. This is a universal experience. Freedom from foreign rule can be looked upon only
\nas an opportunity to bring about economic and social advancement. After all freedom is
\nnothing else but a chance to be better. It is this liberty to do better that is the theme of the
\nDirective Principles of State Policy in Part IV of the Constitution.\n<\/p>\n
686. The Objectives Resolution passed by the Constituent Assembly in January 1947, is a
\ndefinite landmark. It is a precursor to the preamble to our Constitution. It sets out in detail
\nthe objectives that were before our Constitution-makers. Those objectives have now been
\nincorporated in the preamble to our Constitution which reads:
\nWE, THE PEOPLE OF INDIA, having solemnly resolved to constitute
\nIndia into a SOVEREIGN DEMOCRATIC REPUBLIC and to secure to
\nall its citizens:\n<\/p>\n
JUSTICE, social, economic and political;\n<\/p>\n
LIBERTY of thought, expression, belief, faith and worship;\n<\/p>\n
EQUALITY of status and of opportunity;\n<\/p>\n
and to promote among them all
\nFRATERNITY assuring the dignity of the individual and the unity of the
\nNation;\n<\/p>\n
IN OUR CONSTITUENT ASSEMBLY this twenty-sixth day of
\nNovember, 1949 do HEREBY ADOPT, ENACT AND GIVE TO
\nOURSELVES THIS CONSTITUTION.\n<\/p>\n
687. From the preamble it is quite clear that the two primary objectives that were before
\nthe Constituent Assembly were (1) to constitute India into a Sovereign Democratic
\nRepublic and (2) to secure to its citizens the rights mentioned therein. Our founding
\nfathers, at any rate, most of them had made immense sacrifices for the sake of securing
\nthose objectives. For them freedom from British rule was an essential step to render
\nsocial justice to the teeming millions in this country and to secure to one and all in this
\ncountry the essential human rights. Their Constitutional plan was to build a welfare state
\nand an egalitarian society.\n<\/p>\n
688. Now that we have set out the objectives intended to be achieved by our founding
\nfathers, the question arises whether those very persons could have intended to empower
\nthe Parliament, a body constituted under the Constitution to destroy the ideals that they
\ndearly cherished and for which they fought and sacrificed.\n<\/p>\n
689. If the nature of the power granted is clear and beyond doubt the fact that it may be
\nmisused is wholly irrelevant. But, if there is reasonable doubt as to the nature of the
\npower granted then the Court has to take into consideration the consequences that might
\nensue by interpreting the same as an unlimited power. We have earlier come to the
\nconclusion that the word “amendment” is not an expression having a precise cannotation.
\nIt has more than one meaning. Hence it is necessary to examine the consequence of
\naccepting the contention of the Union and the States. Therefore let us understand the
\nconsequences of conceding the power claimed. According to the Union and the States
\nthat power inter alia, includes the power to (1) destroy the sovereignty of this country and
\nmake this country a satellite of any other country; (2) substitute the democratic form of
\ngovernment by monarchical or authoritarian form of government; (3) break up the unity
\nof this country and form various independent States; (4) destroy the secular character of
\nthis country and substitute the same by a theocratic form of government; (5) abrogate
\ncompletely the various rights conferred on the citizens as well as on the minorities; (6)
\nrevoke the mandate given to the States to build a Welfare State; (7) extend the life of the
\ntwo Houses of Parliament indefinitely; and (8) amend the amending power in such a way
\nas to make the Constitution legally or at any rate practically unamendable. In fact, their
\ncontention was that the legal sovereignty, in the ultimate analysis rests only in the
\namending power. At one stage, Counsel for the Union and the States had grudgingly
\nconceded that the power conferred under Article 368 cannot be used to abrogate the
\nConstitution but later under pressure of questioning by some of us they changed their
\nposition and said that by ‘abrogation’ they meant repeal of the Constitution as a whole.
\nWhen they were asked as to what they meant by saying that the power conferred under
\nArticle 368 cannot be used to repeal the Constitution, all that they said was that while
\namending the Constitution, at least one clause in the Constitution must be retained though
\nevery other clause or part of the Constitution including the preamble can be deleted and
\nsome other provisions substituted. Their submission in short was this that so long as the
\nexpression the “Constitution of India” is retained, every other article or part of it can be
\nreplaced. They tried to tone down the effect of their claim by saying that, though legally,
\nthere is no limitation on the amending power, there are bound to be political compulsions
\nwhich make it impermissible for Parliament to exercise its amending power in a manner
\nunacceptable to the people at large. The strength of political reaction is uncertain. It
\ndepends upon various factors such as the political consciousness of the people, their level
\nof education, strength of the various political organizations in the country, the manner in
\nwhich the mass media is used and finally the capacity of the government to suppress
\nagitations. Hence the peoples’ will to resist an unwanted amendment cannot be taken into
\nconsideration in interpreting the ambit of the amending power. Extra legal forces work in
\na different plane altogether.\n<\/p>\n
690. We find it difficult to accept the contention that our Constitution-makers after
\nmaking immense sacrifices for achieving certain ideals made provision in the
\nConstitution itself for the destruction of those ideals. There is no doubt as men of
\nexperience and sound political knowledge, they must have known that social, economic
\nand political changes are bound to come with the passage of time and the Constitution
\nmust be capable of being so adjusted as to be able to respond to those new demands. Our
\nConstitution is not a mere political document. It is essentially a social document. It is
\nbased on a social philosophy and every social philosophy like every religion has two
\nmain features, namely, basic and circumstantial. The former remains constant but the
\nlatter is subject to change. The core of a religion always remains constant but the
\npractices associated with it may change. Likewise, a Constitution like ours contains
\ncertain features which are so essential that they cannot be changed or destroyed. In any
\nevent it cannot be destroyed from within. In other words, one cannot legally use the
\nConstitution to destroy itself. Under Article 368 the amended Constitution must remain
\n‘the Constitution’ which means the original Constitution. When we speak of the
\n‘abrogation’ or ‘repeal’ of the Constitution, we do not refer to any form but to substance. If
\none or more of the basic features of the Constitution are taken away to that extent the
\nConstitution is abrogated or repealed. If all the basic features of the Constitution are
\nrepealed and some other provisions inconsistent with those features are incorporated, it
\ncannot still remain the Constitution referred to in Article 368. The personality of the
\nConstitution must remain unchanged.\n<\/p>\n
691. It is also necessary to bear in mind that the power to amend the Constitution is
\nconferred on Parliament, a body constituted under the Constitution. The people as such
\nare not associated with the amendment of the Constitution. From the preamble we get
\nthat it is the people of this country who conferred this Constitution on themselves. The
\nstatement in the preamble that the people of this country conferred the Constitution on
\nthemselves is not open to challenge before this Court. Its factual correctness cannot be
\ngone into by this Court which again is a creature of the Constitution. The facts set out in
\nthe preamble have to be accepted by this Court as correct. Anyone who knows the
\ncomposition of the Constituent Assembly can hardly dispute the claim of the members of
\nthat Assembly that their voice was the voice of the people. They were truly the
\nrepresentatives of the people, even though they had been elected under a narrow
\nfranchise. The Constitution framed by them has been accepted and worked by the people
\nfor the last 23 years and it is too late in the day now to question, as was sought to be done
\nan one stage by the Advocate-General of Maharashtra, the fact, that the people of this
\ncountry gave the Constitution to themselves.\n<\/p>\n
692. When a power to amend the Constitution is given to the people, its contents can be
\nconstrued to be larger than when that power is given to a body constituted under that
\nConsitution. Two-thirds of the members of the two Houses of Parliament need not
\nnecessarily represent even the majority of the people of this country. Our electoral system
\nis such that even a minority of voters can elect more than two-thirds of the members of
\nthe either House of Parliament. That is seen from our experience in the past. That apart,
\nour Constitution was framed on the basis of consensus and not on the basis of majority
\nvotes. It provides for the protection of the minorities. If the majority opinion is taken as
\nthe guiding factor then the guarantees given to the minorities may become valueless. It is
\nwell known that the representatives of the minorities in the Constituent Assembly gave
\nup their claim for special protection which they were demanding in the past because of
\nthe guarantee of Fundamental Rights. Therefore the contention on behalf of the Union
\nand the States that the two-thirds of the members in the two Houses of Parliament are
\nalways authorised to speak on behalf of the entire people of this country is unacceptable.\n<\/p>\n
693. The President of India under Article 60 of the Constitution is required to take an
\noath before he assumes his office to the effect that he will “to the best of his ability
\npreserve, protect and defend the Constitution”. Somewhat similar oaths have to be taken
\nby the Governors of States, Ministers at the Centre and in the States, Judges of the
\nsuperior courts and other important functionaries. When the President of India is
\ncompelled to give assent to a Constitutional amendment which might destroy the basic
\nfeatures of the Constitution, can it be said that he is true to his oath to “preserve, protect
\nand defend the Constitution” or does his oath merely mean that he is to defend the
\namending power of Parliament ? Can the amending power of Parliament be considered as
\nthe Constitution? The whole scheme and the structure of our Constitution proceeds on the
\nbasis that there are certain basic features which are expected to be permanent.\n<\/p>\n
694. Implied limitations on the powers conferred under a statute constitute a general
\nfeature of all statutes. The position cannot be different in the case of powers conferred
\nunder a Constitution. A grant of power in general terms of even in absolute terms may be
\nqualified by other express provisions in the same enactment or may be qualified by the
\nimplications of the context or even by considerations arising out of what appears to be the
\ngeneral scheme of the statute. In Re The Central Provinces and Berar (Central Provinces
\nand Berar Act No. XIV of 1938 [1939] F.C.R. p. 18, Sir Maurice Gwyer C.J. observed at
\np. 42:\n<\/p>\n
A grant of the power in general terms, standing by itself, would no doubt
\nbe construed in the wider sense; but it may be qualified by other express
\nprovisions in the same enactment, by the implications of the context, and
\neven by considerations arising out of what appears to be the general
\nscheme of the Act.\n<\/p>\n
695. Lord Wright in James v. Commonwealth of Australia [1936] A.C. 578 at 613 stated
\nthe law thus:\n<\/p>\n
The question, then, is one of construction, and in the ultimate resort must
\nbe determined upon the actual words used, read not in vacuo but as
\noccurring in a single complex instrument, in which one part may throw
\nlight on another. The Constitution has been described as the federal
\ncompact, and the construction must hold a balance between all its parts.\n<\/p>\n
696. Several of the powers conferred under our Constitution have been held to be subject
\nto implied limitations though those powers are expressed in general terms or even in
\nabsolute terms. The executive power of the Union is vested in the President and he is
\nauthorised to exercise the same either directly or through officers subordinate to him in
\naccordance with the Constitution. Under Article 75, it is the President who can appoint
\nthe Prime Minister and the Ministers are to hold office during his pleasure. Despite this
\nconferment of power in general and absolute terms, because of the scheme of the
\nConstitution, its underlying principles and the implications arising from the other
\nprovisions in the Constitution, this Court has held in several cases that the President is a
\nConstitutional head and the real executive power vests in the Cabinet. Similarly though
\nplenary powers of legislation have been conferred on the Parliament and the State
\nlegislatures in respect of the legislative topics allotted to them, yet this Court has opined
\nthat by the exercise of that power neither Parliament nor the State legislatures can
\ndelegate to other authorities their essential legislative functions nor could they invade on
\nthe judicial power. These limitations were spelled out from the nature of the power
\nconferred and from the scheme of the Constitution. But, it was urged on behalf of the
\nUnion and the States that, though there might be implied limitations on other powers
\nconferred under the Constitution, there cannot bo any implied limitations on the
\namending power. We see no basis for this distinction. The amending power is one of the
\npowers conferred under the Constitution whatever the nature of that power might be. That
\napart, during the course of hearing the learned Solicitor-General had to concede that there
\nare certain implied limitations on the amending power itself. The amending power of
\nParliament in certain respects is subject to the express limitations placed on it by the
\nproviso to Article 368. Article 368 prescribes that if Parliament wants to amend Article
\n54, the Article dealing with the election of the President, the amendment in question must
\nbe ratified by the legislatures of not less than one half of the States. No such express
\nlimitation is placed on the amending power of Parliament in respect of Article 52 which
\nprovides that there shall be a President of India. If it be held that Article 52 can be
\namended without complying with the requirements of the proviso to Article 368, the
\nlimitation placed on Parliament in respect of the amendment of Article 54 becomes
\nmeaningless. When this incongruity was pointed out to the learned Solicitor-General, he
\nconceded that in view of the fact that before Article 54 can be amended, the form and the
\nmanner laid down in proviso to Article 368 has to be followed, it follows as a matter of
\nimplication that the same would be the position for the amendment of Article 52. The
\nonly other alternative inference is that Article 52 can never be amended at all. It is not
\nnecessary to go into the other implications that may arise from the language of Article\n<\/p>\n
368.\n<\/p>\n
697. From what has been said above, it is clear that the amending power under Article
\n368 is also subject to implied limitations. The contention that a power to amend a
\nConstitution cannot be subject to any implied limitation is negatived by the observations
\nof the Judicial Committee in The Bribery Commissioner v. Rana Singhe [1965] A.C. 172.
\nThe decision of the Judicial Committee in Liyange’s case (supra) held that Ceylon
\nParliament was incompetent to encroach upon the judicial power also lends support to
\nour conclusion that there can be implied limitations on the amending power.\n<\/p>\n
698. In support of the contention that there can be no implied limitations on the amending
\npower, our attention was invited to writings of various jurists of eminence. Most of the
\nwritings relate to the amending power under Article 5 of the United States Constitution. It
\nis true that in the United States most of the writers are of opinion that there is no implied
\nlimitation on the amending power under the United States Constitution. The Supreme
\nCourt of the United States has not specifically pronounced on this question. The only
\ncase in which the question of implied limitation on the amending power under the United
\nStates Constitution came up for consideration was Rhode Island v. Palmer 64 L. Edn.\n<\/p>\n
946. In that case the Supreme Court of United States rejecting the contention that the 18th
\nAmendment-National Prohibition Amendment-was outside the amending power under
\nArticle 5 because of implied limitations on that power, held that the Amendment was
\nvalid. The Supreme Court, however, did not discuss the question of implied limitations
\non the amending power as such. In fact the judgment that was rendered in that case gave
\nno reasons. Only certain questions were formulated and answered. It is not clear from the
\njudgment whether the particular limitation pleaded was rejected’ or whether the plea of
\nimplied limitation on the amending power was rejected though writers of most text books
\nhave taken the view that the court rejected the plea of implied limitations on the
\namending power. It may be noted that in the United States not a single human right has
\nbeen taken away or even its scope narrowed. There the controversy centred round two
\nquestions viz. (1) abolition of slavery and (2) prohibition of sale and consumption of
\nliquor. We will not be justified in expounding our Constitution on the basis of the
\ncontroversies relating to those issues. Article 5 of the U.S. Constitution is not similar to
\nArticle 368 of our Constitution. In the former Article, there is an express limitation on the
\namending power i.e. regarding the representation of the States in the Senate. Further the
\namendment under Article 5 of the United States Constitution can be proposed either by
\nthe Congress or by State Conventions. They may be ratified either by a minimum of 3\/4th
\nof the State Legislatures or by Conventions held in at least 3\/4th of the States. Whether a
\nparticular amendment should be ratified by the State Legislatures or by the State
\nConventions is entirely left to the discretion of the Congress. As held by the United States
\nSupreme Court, the decision of the Congress on that question is final. The Constitution
\nmakers must have proceeded on the basis that the Congress is likely to require the
\namendment of basic elements or fundamental features of the Constitution to be ratified by
\nState Conventions. The scheme of no two Constitutions is similar. Their provisions are
\nnot similar. The language employed in the amending clauses differ from Constitution to
\nConstitution. The objectives lying behind them also are bound to differ. Each country has
\nits own needs, its own philosophy, its own way of life and above all its own problems.
\nHence in our opinion, we will be clouding the issues, if we allow ourselves to be
\nburdened either by the writings of the various writers on other Constitutions or by the
\ndecisions rendered on the basis of the provisions of the other Constittuions, though
\nCounsel on either side spared no efforts to place before us various opinions expressed by
\nvarious writers as well as the decisions rendered by several courts including the State
\nCourts in United States of America.\n<\/p>\n
699. The rule laid down by the Judicial Committee in R. v. Burah (1878) I.A. 178 that “if
\nwhat has been done is legislation, within the general scope of the affirmative words
\nwhich give the power, and if it violates no express condition or restriction by which that
\npower is limited it is not for any court of Justice to inquire further, or to enlarge
\nconstructively those conditions and restrictions” was heavily relied on by Mr. Seervai.
\nThat decision, however, has been confined to the interpretation of conditional legislations
\nand the rule that it laid down has not been applied while considering the question whether
\nthere are any implied limitations on any of the powers conferred under a statute or
\nConstitution.\n<\/p>\n
700. It was strenuously urged on behalf of the Union and the States that if we come to the
\nconclusion that there are implied or inherent limitations on the amending power of
\nParliament under Article 368, it would be well nigh impossible for Parliament to decide
\nbefore hand as to what amendments it could make and what amendments it is forbidden
\nto make. According to the Counsel for the Union and the States, the conceptions of basic
\nelements and fundamental features are illusive conceptions and their determination may
\ndiffer from judge to judge and therefore we would be making the task of Parliament
\nimpossible if we uphold the contention that there are implied or inherent limitations on
\nthe amending power under Article 368. We are unable to accept this contention. The
\nbroad contours of the basic elements or fundamental features of our Constitution are
\nclearly delineated in the preamble. Unlike in most of the other Constitutions, it is
\ncomparatively easy in the case of our Constitution to discern and determine the basic
\nelements or the fundamental features of our Constitution. For doing so, one has only to
\nlook to the preamble. It is true that there are bound to be border line cases where there
\ncan be difference of opinion. That is so in all important legal questions. But the courts
\ngenerally proceed on the presumption of Constitutionality of all legislations. The
\npresumption of the Constitutional validity of a statute will also apply to Constitutional
\namendments. It is not correct to say that what is difficult to decide does not exist at all.
\nFor that matter, there are no clear guidelines before the Parliament to determine what are
\nessential legislative functions which cannot be delegated, what legislations do invade on
\nthe judicial power or what restrictions are reasonable restrictions in public interest under
\nArticle 19(2) to 19(6) and yet by and large the legislations made by Parliament or the
\nState legislatures in those respects have been upheld by courts. No doubt, there were
\noccasions when courts were constrained to strike down some legislations as ultra vires
\nthe Constitution. The position as regard the ascertainment of the basic elements or
\nfundamental features of the Constitution can by no means be more difficult than the
\ndifficulty of the legislatures to determine before hand the Constitutionality of legislations
\nmade under various other heads. Arguments based on the difficulties likely to be faced by
\nthe legislatures are of very little importance and they are essentially arguments against
\njudicial review.\n<\/p>\n
701. Large number of decisions rendered by courts in U.S.A., Canada, Australia, United
\nKingdom, Ceylon and Ireland, dealing with the question of implied limitations on the
\namending power and also as regards the meaning of the word “amendment” were read to
\nus at the hearing. Such of those that are relevant have been considered by the learned
\nChief Justice in the judgment just now delivered. We entirely agree with the views
\nexpressed by him and we cannot usefully add to the same.\n<\/p>\n
702. It was contended on behalf of the Union and the States that, the Constitution should
\nnot be treated as something sacred. It should be regarded just in the same way as we
\nregard other human institutions. It should be possible to alter every part of it from time to
\ntime so as to bring it in harmony with the new and changed conditions. In support of this
\ncontention we were invited to the writings of the various writers such as Burgess, Bryce,
\nWillis, Orfield, Weaver Livingston etc. It was further urged that the Constituent
\nAssembly knowing that, it will disperse, had arranged for the recreation of a Constituent
\nAssembly, under Article 368 in order to so shape the Constitution as to meet the demands
\nof the time. However, attractive these theories may sound in the abstract, on a closer
\nexamination, it will be seen that they are fallacious, more particularly in a Constitutionals
\nset up like ours. We have earlier noticed chat under our electoral system, it is possible for
\na party to get a 2\/3rd majority in the two Houses of Parliament even if that party does not
\nget an absolute majority of votes cast at the election. That apart, when a party goes to
\nelection, it presents to the electorate diverse programmes and holds out various promises.
\nThe programmes presented or the promises held out need not necessarily include
\nproposals for amending the Constitution. During the General Elections to Parliament in
\n1952, 1957, 1962 and 1967, no proposal to amend the Constitution appears to have been
\nplaced before the electorate. Even when proposals for amendment of the Constitution are
\nplaced before the electorate as was done by the Congress Party in 1971, the proposed
\namendments are not usually placed before the electorate. Under these circumstances, the
\nclaim that the electorate had given a mandate to the party to amend the Constitution in
\nany particular manner is unjustified. Further a Parliamentary Democracy like ours
\nfunctions on the basis of the party system. The mechanics of operation of the party
\nsystem as well as the system of Cabinet government are such that the people as a whole
\ncan have little control in the matter of detailed law-making. “…on practically every issue
\nin the modern State, the serried millions of voters cannot do more than accept or reject
\nthe solutions; offered. The stage is too vast to permit of the nice shades of quantitative
\ndistinction impressing themselves upon the public mind. It has rarely the leisure, and
\nseldom the information, to do more than indicate the general tendency of its will. It is in
\nthe process of law-making that the subtler adjustments must be effected.” (Laski : A
\nGrammar of Politics; Fifth Edn. pp. 313-314).\n<\/p>\n
703. The assertion that either the majority of members of Parliament or even 2\/3rd
\nmembers of Parliament speak on behalf of the nation has no basis in fact. Indeed it may
\nbe possible for the ruling party to carry through important Constitutional amendments
\neven after it has lost the confidence of the electorate. The members of Lok Sabha are
\nelected for a term of five years. The ruling party or its members may or may not enjoy the
\nconfidence of the electorate throughout their terms of office. Therefore it will not be
\ncorrect to say that whenever Parliament amends the Constitution, it must be held to have
\ndone it as desired by the people.\n<\/p>\n
704. There is a further fallacy in the contention that whenever Constitution is amended,
\nwe should presume that the amendment in question was made in order to adapt the
\nConstitution to respond to the growing needs of the people. We have earlier seen that by
\nusing the amending power, it is theoretically possible for Parliament to extend its own
\nlife indefinitely and also, to amend the Constitution in such a manner as to make it either
\nlegally or practically unamendable ever afterwards. A power which is capable of being
\nused against the people themselves cannot be considered as a power exercised on behalf
\nof the people or in their interest.\n<\/p>\n
705. On a careful consideration of the various aspects of the case, we are convinced that
\nthe Parliament has no power to abrogate or emasculate the basic elements or fundamental’
\nfeatures of the Constitution such as the sovereignty of India, the democratic character of
\nour polity, the unity of the country, the essential features of the individual freedoms
\nsecured to the citizens. Nor has the Parliament the power to revoke the mandate to build a
\nWelfare State and egalitarian society. These limitations are only illustrative and not
\nexhaustive. Despite these limitations, however, there can be no question that the
\namending power is a wide power and it reaches every Article and every part of the
\nConstitution. That power can be used to reshape the Constitution to fulfil the obligations
\nimposed on the State. It can also be used to reshape the Constitution within the limits
\nmentioned earlier, to make it an effective instrument for social good. We are unable to
\nagree with the contention that in order to build a Welfare State, it is necessary to destroy
\nsome of the human freedoms. That, at any rate is not the perspective of our Constitution.
\nOur Constitution envisages that the States should without delay make available to all the
\ncitizens of this country the real benefits of those freedoms in a democratic way. Human
\nfreedoms are lost gradually and imperceptibly and their destruction ‘is generally followed
\nby authoritarian rule. That is what history has taught us. Struggle between liberty and
\npower is eternal. Vigilance is the price that we like every other democratic society have
\nto pay to safeguard the democratic values enshrined in our Constitution. Even the best of
\ngovernments are not averse to have more and more power to carry out their plans and
\nprogrammes which they may sincerely believe to be in public interest. But a freedom
\nonce lost is hardly ever regained except by revolution. Every encroachment on freedoms
\nsets a pattern for further encroachments. Our Constitutional plan is to eradicate poverty
\nwithout destruction of individual freedoms.\n<\/p>\n
706. In the result we uphold the contention of Mr. Palkhivala that the word “amendment”
\nin Article 368 carries with it certain limitation and, further, that the power conferred
\nunder Article 368 is subject Co certain implied limitations though that power is quite
\nlarge.\n<\/p>\n
707. Next, we shall take up for consideration the contentions of Mr. Palkhivala regarding
\nthe validity of the 24th, 25th and 29th Amendments.\n<\/p>\n
708. It was contended on behalf of the petitioners that in enacting the 24th Amendment
\nAct, the Parliament has exceeded its powers. It has purported to enlarge its limited power
\nof amendment into an unlimited power, by the exercise of which it can damage or destroy
\nthe basic elements or fundamental features of the Constitution. It was said that such an
\nexercise is an unlawful usurpation of power. Consequently, the 24th Amendment Act is
\nliable to be struck down. To pronounce on that contention, it is necessary to examine at
\nthe very outset whether the 24th Amendment Act has really enlarged the powers of the
\nParliament. If we come to the conclusion that it has not enlarged the power of the
\nParliament, as we think it has not, the various contentions of Mr. Palkhivala do not arise
\nfor consideration.\n<\/p>\n
709. Now let us see what is the true effect of the Constitution 24th Amendment Act,
\n1971. That Act amended Article 13 and Article 368. By that Act one more sub-article has
\nbeen added to Article 13 viz. Sub-article (4) which reads thus:
\nNothing in this article shall apply to any amendment of this Constitution
\nmade under Article 368.\n<\/p>\n
710. Section 3 of that Act which amends Article 368 reads.\n<\/p>\n
Article 368 of the Constitution shall be renumbered as Clause (2) thereof,
\nand-\n<\/p>\n
(a) for the marginal heading to that article the following
\nmarginal heading shall be substituted, namely:\n<\/p>\n
Power of Parliament to amend the Constitution and
\nprocedure therefor”.\n<\/p>\n
(b) before Clause (2) as so-renumbered, the following
\nclause shall be inserted, namely:\n<\/p>\n
Notwithstanding anything in the Constitution, Parliament
\nmay in exercise of its constituent power amend by way of
\naddition, variation or repeal any provision of this
\nConstitution in accordance with the procedure laid down in
\nthis article.\n<\/p>\n
(c) in Clause (2) as so re-numbered, for the words “it shall
\nbe presented to the President for his assent and upon such
\nassent being given to the Bill”, the words “It shall be
\npresented to the President who shall give his assent to the
\nBill and thereupon” shall be substituted;\n<\/p>\n
(d) after Clause (2) as so re-numbered, the following clause
\nshall be inserted, namely-\n<\/p>\n
(3) Nothing in Article 13 shall apply to any amendment made under this
\nArticle.\n<\/p>\n
711. The material changes effected under this Act are:\n<\/p>\n
1. Addition of Clause (4) to Article 13 and Clause (3) to Article 368;\n<\/p>\n
2. Change in the marginal heading;\n<\/p>\n
3. Specific mention of the fact that the power is conferred on the Parliament to amend the
\nConstitution;\n<\/p>\n
4. The power conferred on the Parliament is claimed to be a constituent power;\n<\/p>\n
5. That power is described as a power to “amend by way of addition, variation or repeal
\nof any provision of this Constitution” and\n<\/p>\n
6. Making it obligatory for the President to give assent to the Bill amending the
\nConstitution.\n<\/p>\n
712. In our opinion the 24th Amendment has not made any material change in Article
\n368 as it stood originally. It is true the original Article did not say specifically that the
\npower to amend rested with Parliament. On the other hand, while setting out the
\nprocedure of amendment, it referred to the functions of the two Houses of Parliament and
\nthe President. Because of the fact that Parliament was not specifically referred to in
\nArticle 368, as it originally stood, the learned Advocate General of Maharashtra wanted
\nus to spell out that the power conferred under Article 368, as it originally stood was not
\nconferred on Parliament as such but on the two Houses of Parliament. We have earlier
\nrejected that contention. We agree with the learned Attorney General that the power in
\nquestion had been conferred on Parliament. Article 79 says that “There shall be a
\nParliament for the Union, which shall consist of the President and two Houses to be
\nknown respectively as the Council of States and the House of the People”. Whether an
\nenactment refers to the three components of Parliament separately or whether all the three
\nof them are compendiously referred to as Parliament, in law it makes no difference. In
\nSankari Prasad’s case, in Sajjan Singh’s case as well as in Golaknath’s case, each one of
\nthe Judges who delivered judgments specifically mentioned that the power to amend the
\nConstitution was vested in Parliament though there was difference of opinion on the
\nquestion whether that power could be traced to Article 368 or Article 248 read with Entry
\n97 of List I. There is no ground for taking a different view.\n<\/p>\n
713. We have already come to the conclusion that Article 368 as it originally stood
\ncomprehended both power as well as procedure to amend the Constitution. Hence the
\nchange effected in the marginal note has no significance whatsoever. The marginal note
\nas it stood earlier was in a sense incomplete. The expression ‘constituent power’ is used to
\ndescribe only the nature of the power of amendment. Every amending power, however
\nlarge or however small it might be, is a fact of a constituent power. The power, though
\ndescribed to be ‘constituent power’, still continues to be an ‘amending power’. The scope
\nand ambit of the power is essentially contained in the word ‘amendment’. Hence, from the
\nfact that the new article specifically refers to that power as a constituent power, it cannot
\nbe understood that the contents of the power have undergone any change. The power
\nconferred under the original Article being a limited power to amend the Constitution, the
\nconstituent power to amend the Constitution referred to in the amended Article must also
\nbe held to carry with it the limitation to which that power was subject earlier. There is
\nalso no significance in the substitution of the expression “amend by way of addition,
\nvariation or repeal of any provision of this Constitution” found in the amended Article in
\nthe place of the expression “amendment of the Constitution” found in the original Article.
\nEvery power to amend a statute must necessarily include within itself some power to
\nmake addition, variation or repeal of any provision of the statute. Here again, the power
\nconferred under the original Article being a limited one, that limitation will continue to
\noperate notwithstanding the change in the phraseology. The words ‘addition, variation or
\nrepeal’ only prescribe the modes or manner by which an ‘amendment’ may be made, but
\nthey do not determine the scope of the power of ‘amendment’. The original Article 368
\nmentioned that after the bill for amendment of the Constitution is passed by the two
\nHouses of Parliament in the manner prescribed in Article 368 “it shall be presented to the
\nPresident for his assent and upon such assent being given to the Bill, the Constitution
\nshall stand amended in accordance with the terms of the bill”. The amended Article
\nmakes a change. It prescribes that when the Bill is presented to the President, he “shall
\ngive his assent to the Bill”. Some comment was made at the bar about the
\ninappropriateness of commanding the President to give his assent to the Bill. That is a
\nquestion of propriety. The substance of the matter is that when the Bill is presented to the
\nPresident, he shall not withhold his assent. This change cannot be said to have damaged
\nor destroyed any basic element of the Constitution. In fact Article 111 which deals with
\nthe assent to the Bills specifically prescribes that when a money Bill, after having been
\npassed by the Houses of Parliament is presented to the President he “shall not withhold
\nassent therefrom”. Hence it cannot be said that the change made in Article 368 relating to
\nthe assent of the President has any great importance in the scheme of our Constitution. In
\nfact under our Constitution the President is only a Constitutional head. Ordinarily he has
\nto act on the advice of the cabinet. There is no possibility of the Constitution being
\namended in opposition to the wishes of the cabinet.\n<\/p>\n
714. The only change that remains to be considered is as to the exclusion of the
\napplication of Article 13 to an amendment of the Constitution. We have earlier come to
\nthe conclusion that Article 13 as it stood earlier did not bar the amendment of the
\nConstitution. Article 13(4) and 368(3) make explicit what was implicit.\n<\/p>\n
715. It was contended that by means of the 24th Amendment Parliament intended to and
\nin fact purported to enlarge its amending power. In this connection reliance was placed
\non the statement of objects and reasons attached to the Bill which resulted in the 24th
\nAmendment. The power of Parliament does not rest upon its professed intention. It
\ncannot acquire a power which it otherwise did not possess. We are unable to accept the
\ncontention that Clause (e) to the proviso to Article 368 confers power on Parliament to
\nenlarge its own power. In our judgment the power to amend the Constitution as well as
\nthe ordinary procedure to amend any part of the Constitution was and is contained in the
\nmain part of the Article. The proviso merely places further restrictions on the procedure
\nto amend the articles mentioned therein. Clause (e) to the proviso stipulates that Article
\n368 cannot be amended except in the manner provided in the proviso. In the absence of
\nthat clause, Article 368 could have been amended by following the procedure laid down
\nin the main part. At best Clause (e) of the proviso merely indicates that Article 368 itself
\ncomes within its own purview. As we have already seen, the main part of Article 368 as it
\nstood earlier, expressly lays down only the procedure to be followed in amending the
\nConstitution. The power to amend is only implied therein.\n<\/p>\n
716. It is difficult to accept the contention that an implied power was impliedly permitted
\nto be enlarged. If that was so, there was nomeaning in limiting that power originally.
\nLimitation on the power to amend the Constitution would operate even when Article 368
\nis amended. A limited power cannot be used to enlarge the same power into an absolute
\npower. We respectfully agree with the observation of Hidayatullah J. (as he then was) in
\nGolaknath’s case that what Parliament cannot do directly, it also cannot do indirectly. We
\nhave earlier held that the “amendment of this Constitution” means the amendment of
\nevery part of the Constitution. It cannot be denied that Article 368 is but a part of the
\nConstitution. Hence, the mere fact that the mover of the 24th Amendment Act, in the
\nStatement of Objects and Reasons laid claim to certain power does not go to show that
\nParliament either endorsed that claim or could have conferred on itself such a power. It
\nmust be deemed to have exercised only such power as it possessed. It is a well-accepted
\nrule of construction that if a provision is reasonably capable of two interpretations the
\nCourt must accept that interpretation which makes the provsion valid. If the power
\nconferred on Parliament to amend the Constitution under Article 368 as it stood
\noriginally is a limited power, as we think it is, Parliament cannot enlarge the scope of that
\npower-see Attorney General for the State of New South Wales v. The Brewery
\nEmployees Union of New South Wales; 6, C.L.R. 469 Ex Parte Walsh and Johnson; In
\nRe Yates; 37, C.L.R. 36 at p. 67 and Australian Communist Party v. The Commonwealth
\n83, C.L.R. p 1.\n<\/p>\n
717. For the reasons mentioned heretofore, the scope of Parliament’s power to amend the
\nConstitution or any part thereof must be held to have remained as it was before the 24th
\nAmendment notwithstanding the alterations made in the phraseology of Article 368. The
\n24th Amendment made explicit, what was implicit in the unamended Article 368. In this
\nview of the matter the 24th Amendment must be held to be valid.\n<\/p>\n
718. This takes us to the validity of the Constitution 25th Amendment Act. It is necessary
\nto examine the scope and effect of that Act for deciding the question whether that Act or
\nany one of its provisions can be held to be outside the amending power of the Parliament.
\nThat Act has three sections. We are not concerned with the first section which sets out the
\nshort title. Clause (a) of the second section amends Article 31(2). Clause (b) of that
\nsection incorporates into the Constitution Article 31(2B). Section 3 introduces into the
\nConstitution a new Article viz. Article 31C.\n<\/p>\n
719. Let us first take up the newly substituted Article 31(2) in the place of the old Article
\n31(2) and examine its scope. To do so, it is necessary to examine the history of that
\nArticle.\n<\/p>\n
720. Article 31(2) has undergone several changes. As originally enacted it read thus:
\nNo property, movable or immovable, including any interest in, or in any
\ncompany owning, any commercial or industrial undertaking, shall be taken
\npossession of or acquired for public purposes under any law authorising
\nthe taking of such possession or such acquisition, unless the law provides
\nfor compensation for the property taken possession of or acquired and
\neither fixes the amount of the compensation, or specifies the principles on
\nwhich, and the manner in which, the compensation is to be determined and
\ngiven.”\n<\/p>\n
721. That Article was amended first by the Fourth Amendment Act 1955 and, thereafter
\nby the Twenty-fifth Amendment Act, 1971. At a later stage, it will be necessary for us to
\ncompare Article 31(2) as it stood after the Fourth Amendment Act and as it stands after
\nthe Twenty-fifth Amendment Act. Hence we shall quote them side by side.
\nArticle 31(2) as substituted by Article 3(2) as susbtituted by the 4th
\nAmendment Act 1955 the 25th Amendment Act 1971 No property shall be
\ncompulsorily No property shall be compulsorily acquired or
\nrequisitioned save for acquired or requisitioned save for a public
\npurpose and save by a public purpose and save by authority of a law
\nwhich provides for authority of a law which provides compensation for
\nthe property so for acquisition or requisitioning acquired or
\nrequisitioned and either of the property for an amount fixes the amount
\nof the compensation which may be fixed by such law or specifies the
\nprinciples on or which may be determined in which and the manner in
\nwhich, accordance with such principles the compensation is to be
\ndetermined and given in such manner as may mined and given; and no such
\nlaw be specified in such law; and shall be called in question in any no
\nsuch law shall be called court on the ground that the in question in
\nany court on the compensation provided by that law is ground that the
\namount so fixed not adequate. or determined is not adequate or that the
\nwhole or any part of such amount is to be given otherwise than in cash:
\nProvided that in making any law providing for the compulsory
\nacquisition of any property of an educatioanl institution established
\nand administered by a minority, referred to Clause (1) of Article 30,
\nthe State shall eusure that the amount fixed by or determined under
\nsuch law for the acquisition of such property is Such as would not
\nrestrict or abrogate the right guaranteed uder that clause.\n<\/p>\n
722. For finding out the true scope of Article 31(2), as it stands now, the learned
\nAdvocate General of Maharashtra as well as the Solicitor General has taken us through
\nthe history of this Article. According to them the Article as it stands now truly represents
\nthe intention of the Constitution makers. In support of that contention, we were asked to
\ngo through the Constituent Assembly debates relating to that article. In particular, we
\nwere invited to go through the speeches made by Pandit Nehru, Sir Alladi Krishnaswami
\nAyyar, Dr. Munshi and Dr. Ambedkar. In our opinion, it is impermissible for us to do so.
\nIt is a well settled rule of construction that speeches made by members of a legislature in
\nthe course of debates relating to the enactment of a statute cannot be used as aids for
\ninterpreting any of the provisions of the statute. The same rule is applicable when we are
\ncalled upon to interpret the provisions of a Constitution. This Court ruled in State of
\nTravancore Cochin and Ors. v. Bombay Co. Ltd. [1952] S.C.R. 113 that speeches made
\nby the members of the Constituent Assembly in the course of the debates on the draft
\nConstitution cannot be used as aid for interpreting the Constitution. In the course of his
\njudgment Patanjali Sastri C.J. speaking for the Constitution Bench observed at p. 1121 of
\nthe Report:\n<\/p>\n
It remains only to point out that the use made by the learned Judges below
\nof the speeches made by the members of the Constituent Assembly in the
\ncourse of the debates on the draft Constitution is unwarranted. That this
\nform of extrinsic aid to the interpretation of statutes is not admissible has
\nbeen generally accepted in England, and the same rule has been observed
\nin the construction of Indian Statutes-see Administrator-General of Bengal
\nv. Prem Nath Mallick [(1895 22 I.A. 107, 118]. The reason behind the rule
\nwas explained by one of us in Gapalan’s case [1950] S.C.R. 88, at 144
\nthus:\n<\/p>\n
A speech made in the course of the debate on a bill could at
\nbest be indicative of the subjective intent of the speaker,
\nbut it could not reflect the inarticulate mental process lying
\nbehind the majority vote which carried the Bill. Nor is it
\nreasonable to assume that the minds of all those legislators
\nwere in accord”, or as it is more tersely put in a American
\ncase-\n<\/p>\n
Those who did not speak may not have agreed with those
\nwho did; and those who spoke might differ from each
\nother-United States v. Trans-Missouri Freight Association
\n169 U.S. 290, 318.\n<\/p>\n
723. No decision of this Court dissenting from the view taken in the above case was
\nbrought to our notice. But it was urged that this Court had ignored the rule laid down in
\nBombay Co.’s case (supra) in Golaknath’s case as well as in what is popularly known as
\nthe Privy Purse (1971) 3, S.C.R. 9 case. We do not think that this statement is accurate. In
\nGolaknath’s case, Subba Rao C.J. referred to certain portions of speeches made by Pandit
\nNehru and Dr. Ambedkar. But he made it clear at p. 792 of the Report, the specific
\npurpose for which he was referring to those speeches. This is what he stated:
\nWe have referred to the speeches of Pandit Jawaharlal Nehru and Dr.
\nAmbedkar not with a view to interpret the provisions of Article 368 which
\nwe propose to do on its own terms, but only to notice the transcendental
\ncharacter given to the fundamental rights by two of the important
\narchitects of the Constitution.\n<\/p>\n
724. Bachawat J. in the course of his judgment also referred to some of the speeches
\nmade during the debates on Article 368. But before doing so this is what he observed at
\np. 922 of the report:\n<\/p>\n
Before concluding this judgment I must refer to some of the speeches
\nmade by the members of the Constituent Assembly in the course of
\ndebates on the draft Constitution. These speeches cannot be used as aids
\nfor interpreting the Constitution-see State of Travancore Cochin and Ors.
\nv. The Bombay Co. Ltd. Accordingly I do not rely on them as aids to
\nconstruction. But I propose to refer to them, as Shri A.K. Sen relied
\nheavily on the speeches of Dr. B.R. Ambedkar. According to him, the
\nspeeches of Dr. Ambedkar show that he did not regard the fundamental
\nrights as amendable. This contention is not supported by the speeches.\n<\/p>\n
725. From these observations, it is clear that the learned judges were not referring to the
\nspeeches as aids for interpreting any of the provisions of the Constitution.\n<\/p>\n
726. Now, let us turn to this Court’s Judgment in the Privy Purse case. Shah J. (as he then
\nwas) in the course of his judgment (at p. 83 of the report) quoted a portion of the speech
\nof the Home Minister Sardar Patel not for the purpose of interpreting any provision of the
\nConstitution but for showing the circumstances which necessitated the giving of certain
\nguarantees to the former ruler. That speech succinctly sets out why certain guarantees had
\nto be given to the rulers. Hence it is not correct to say that Shah J. speaking for himself
\nand six other Judges had used the speech of Sardar Patel in aid of the construction of any
\nof the articles of the Constitution It is true Mitter J. in his dissenting judgment (at p. 121
\nof the report) used the speech of Shri T.T. Krishnamachari in aid of the construction of
\nArticle 363 but the learned judge no where in his judgment discussed the question
\nwhether the speeches made by the members of the Constituent Asembly were admisible
\nin aid of interpreting any provision of the Constitution.\n<\/p>\n
727. Before concluding the discussion on this topic, it is necessary to refer to one more
\ndecision of this Court i.e. Union of India v. H.S. Dhillon.<\/a> [1972] 2 S.C.R. 33 In that case
\nthis Court was called upon to decide whether the provision in the Wealth Tax Act, 1957
\nproviding for the levy of tax on the capital value of agricultural property were
\nConstitutionally sustainable. By a majority of four against three, this Court upheld the
\nlevy. Sikri C.J. who spoke for himself and two other judges after sustaining the validity
\nof the provision on an examination of the relevant provisions of the Constitution as well
\nas the decided cases referred to some of the speeches made during the debates in the
\nConstituent Assembly in support of the conclusion already reached by him. Before
\nreferring to those speeches this is what the learned judge observed at p. 58:
\nWe are, however, glad to find from the following extracts from the debates
\nthat our interpretation accords with what was intended.\n<\/p>\n
728. From this it is clear that the learned Judge did not seek any aid from the speeches for
\nthe purpose of interpreting the relevant provision. It is necessary to note that the learned
\njudge did not dissent from the view earlier taken by the Court in Bombay Co. Ltd.’s case
\n(supra). Hence the law as laid down in Bombay Co.’s case is binding on us and its
\ncorrectness was not challenged before us.\n<\/p>\n
729. The learned Advocate General of Maharashtra is right in his contention that for
\nfinding out the true scope of Article 31(2), as it stands at present, it is necessary for us to
\nfind out the mischief that was intended to be remedied by the present amendment. In
\nother words, we must find out what was the objective intended to be achieved by that
\namendment. The original Article 31(2) first came up for consideration by this Court in
\nState of West Bengal v. Mrs. Bela Bannerjee and Ors.,<\/a> [1954] S.C.R. 558 wherein
\nPatanjali Sastri C.J. speaking for the Court observed:\n<\/p>\n
While it is true that the legislature is given the discretionary power of
\nlaying down the principle which should govern the determination of the
\namount to be given to the owner for the property appropriated, such
\nprinciples must ensure that what is determined as payable Must be
\ncompensation, that is, a just equivalent of what the owner has been
\ndeprived of. Within the limits of this basic requirement of full
\nindemnification of the expropriated owner, the Constitution allows free
\nplay to the legislative judgment as to what principles should guide the
\ndetermination of the amount payable. Whether such principles take into
\naccount all the elements which make up the true value of the property
\nappropriated and exclude matters which are to be neglected is a justiciable
\nissue to be adjudicated by the Court. This, indeed, was not disputed.\n<\/p>\n
730. We are told that Article 31(2) came to be amended by means of the 4th Amendment
\nAct in view of the decision of this Court in Mrs. Bela Banerjee’s case. The scope of the
\narticle as amended by the 4th Amendment Act was considered by this Court in P.
\nVairayelu Mudaliar v. Special Deputy Collector, Madras and Anr.<\/a> [1965] 1 S.C.R. 614.
\nTherein Subba Rao J. (as he then was) speaking for a bench consisting of himself,
\nWanchoo, Hidayatullah, Raghubar Dayal and Sikri JJ. observed (at p. 626):
\nThe fact that Parliament used the same expressions namely
\n“compensation” and “Principles” as were found in Article 31 before the
\nAmendment is a clear indication that it accepted the meaning given by this
\nCourt to those expressions in Mrs. Bela Banerjee’s case. It follows that a
\nLegislature in making a law of acquisition or requisition shall provide for
\na just equivalent of what the owner has been deprived of or specify the
\nprinciples for the purpose of ascertaining the “just equivalent” of what the
\nowner has been deprived of. If Parliament intended to enable a Legislature
\nto make such a law without providing for compensation so defined, it
\nwould have used other expressions like “price”, “consideration” etc.\n<\/p>\n
731. Proceeding further the learned judge observed:\n<\/p>\n
The real difficulty is, what is the effect of ouster of jurisdiction of the
\ncourt to question the law on the ground that the “compensation” provided
\nby the law is not adequate ? It will be noticed that the law of acquisition or
\nrequisition is not wholly immune from scrutiny by the Court. But what is
\nexcluded from the court’s jurisdiction is that the said law cannot be
\nquestioned on the ground that the compensation provided by that law is
\nnot adequate. It will further be noticed that the clause excluding the
\njurisdiction of the Court also used the word “compensation” indicating
\nthereby that what is excluded from the court’s jurisdiction is the adequacy
\nof the compensation fixed by the legislature. The argument that the word
\n“compensation” means a just equivalent for the property acquired and,
\ntherefore, the court can ascertain whether it is a “just equivalent” or not
\nmakes the amendment of the Constitution nugatory. It will be arguing in a
\ncircle. Therefore, a more reasonable interpretation is that neither the
\nprinciples prescribing the “just equivalent” nor the “just equivalent” can be
\nquestioned by the court on the ground of the inadequacy of the
\ncompensation fixed or arrived at by the working of the principles. To
\nillustrate; a law is made to acquire a house, its value at the time of
\nacquisition has to be fixed; there are many modes of valuation namely
\nestimate by the engineer, value reflected by comparable sales,
\ncapitalisation of rent and similar others. The application of different
\nprinciples may lead to different results. The adoption of one principle may
\ngive a higher value and the adoption of another principle may give a lesser
\nvalue. But nonetheless they are principles on which and the manner in
\nwhich compensation is determined. The court cannot obviously say that
\nthe law should have adopted one principle and not the other, for it relates
\nonly to the question of adequacy. On the other hand, if a law lays down
\nprinciples which are not relevant to the property acquired or to the value
\nof the property at or about the time it is acquired, it may be said that they
\nare not principles contemplated by Article 31(2) of the Constitution…. In
\nsuch cases the validity of the principles can be scrutinized. The law may
\nalso prescribe a compensation which is illusory it may provide for the
\nacquisition of a property worth lakhs of rupees for a paltry sum of Rs. 100.
\nThe question in that context does not relate to the adequacy of the
\ncompensation for it is no compensation at all. The illustrations given by us
\nare not exhaustive. There may be many others falling on either side of the
\nline. But this much is clear. If the compensation is illusory or if the
\nprinciples prescribed are irrelevant to the value of the property at or
\nabout the time of its acquisition, it can be said that the legislature
\ncommitted a fraud on power, and therefore, the law is bad. It is a use of
\nthe protection of Article 31 in a manner which the Article hardly intended.
\n(emphasis supplied)\n<\/p>\n
733. The principles that emerge from the decision in Vajravelu’s case are: (1)
\ncompensation means just equivalent of the value of the property acquired; (2) principles
\nprescribed must be principles which provide for compensation; (3) adequacy of
\ncompensation fixed or to be determined on the basis of the principles set out cannot be
\ngone into by the court; (4) the principles fixed must be relevant to the property acquired
\nor to the value of the property at about the time it is acquired; (5) the compensation fixed
\nshould not be illusory and (6) courts have power to strike down a law on the ground of
\nfraud on power if the principles fixed are irrelevant or if the compensation granted is
\nillusory.\n<\/p>\n
734. The next decision cited to us is the decision of this Court in Union of India v. Metal
\nCorporation of India Ltd. and Anr.<\/a> (1967) 1, S.C.R. p. 255. It is a decision of a Division
\nBench consisting of Subba Rao C.J. and Shelat J. As that decision was overruled by this
\nCourt in State of Gujarat v. Shantilal Mangaldas and Ors.<\/a> (1969) 3, S.C.R. 341 it is not
\nnecessary to refer to its ratio.\n<\/p>\n
735. This takes us to the decision of this Court in Shantilal’s case. This case related to the
\nacquisition of some landed property on behalf of the Borough Municipality of
\nAhmedabad for making town planning scheme under the Bombay Town Planning Act,
\n1955. Sections 53 and 57 of that Act fixed certain principles for the determination of
\ncompensation for the land acquired. The High Court of Gujarat declared that those
\nprovisions were ultra vires in so far as they authorised the local authority to acquire land
\nunder a Town Planning Scheme and as a corollary to that view declared invalid the City
\nWall Improvement Town Planning Scheme No. 5 framed in exercise of the powers
\nconferred under the Act. In doing so they purported to follow the decision of this Court in
\nVajravelu Mudaliar’s case. A Constitution Bench of this Court reversed the decision of
\nthe Gujarat High Court. In that case Shah J. speaking for the Court elaborately reviewed
\nthe earlier decisions of this Court bearing on Article 31(2). After doing so, he observed at
\np. 365 of the report:\n<\/p>\n
Reverting to the amendment made in Clause (2) of Article 31 by the
\nConstitution (Fourth Amendment) Act, 1955, it is clear that adequacy of
\ncompensation fixed by the Legislature or awarded according to the
\nprinciples specified by the Legislature for determination is not justiciable.
\nIt clearly follows from the terms of Article 31(2) as amended that the
\namount of compensation payable if fixed by the Legislature, is not
\njusticiable, because the challenge in such a case, apart from a plea of
\nabuse of legislative power, would be only a challenge to the adequacy of
\ncompensation. If compensation fixed by the Legislature-and by the use of
\nthe expression “compensation” we mean what the legislature justly regards
\nas proper and fair recompense for compulsory expropriation of property
\nand not something which by abuse of legislative power though called
\ncompensation is not a recompense at all or is something illusory-is not
\njusticiable, on the plea that it is not a just equivalent of the property
\ncompulsorily acquired is it open to the courts to enter upon an enquiry
\nwhether the principles which are specified by the Legislature for
\ndetermining compensation do not award to the expropriated owner a just
\nequivalent ? In our view, such an enquiry is not open to the Court under
\nthe statutes enacted after the amendments made in the Constitution by the
\nConstitution (Fourth Amendment) Act. If the quantum of compensation
\nfixed by the Legislature is not liable to be canvassed before the Court on
\nthe ground that it is not a just equivalent, the principles specified for
\ndetermination of compensation will also not be open to challenge on the
\nplea that the compensation determined by the application of those
\nprinciples is not a just equivalent. The right declared by the Constitution
\nguarantees that compensation shall be given before a person is
\ncompulsorily expropriated of his property for a public purpose. What is
\nfixed as compensation by statute, or by the application of principles
\nspecified for determination of compensation is guaranteed; it does not
\nmean however that something fixed or determined by the application of
\nspecified principles which is illusory or can in no sense be regarded as
\ncompensation must be upheld by the Courts, for, to do so, would be to
\ngrant a charter of arbitrariness and permit a device to defeat the
\nConstitutional guarantee. But compensation fixed or determined on
\nprinciples specified by the Legislature cannot be permitted to be
\nchallenged on the somewhat indefinite plea that it is not a just or fair
\nequivalent. Principles may be challenged on the ground that they are
\nirrelevant to the determination of compensation, but not on the plea that
\nwhat is awarded as a result of the application of those principles is not just
\nor fair compensation. A challenge to a statute that the principles specified
\nby it do not award a just equivalent will be in clear violation of the
\nConstitutional declaration that inadequacy of compensation provided is
\nnot justicable.\n<\/p>\n
(emphasis supplied)\n<\/p>\n
736. The Advocate General of Maharashtra contended that if only this decision had not
\nbeen indirectly overruled by the Bank Nationalisation case R.C. Cooper v. Union of India<\/a>
\n[1970] 3 S.C.R. 530 there would have been no occasion to further amend Article 31(2).
\nThat being so, it is necessary to find out clearly as to what are the principles enunciated in
\nthis decision. This decision firmly laid down that any arbitrary fixation of recompense is
\nliable to be struck down by the court as an abuse of legislative power. It further laid down
\nthat the principles laid down may be challenged on the ground that they are not relevant
\nfor the purpose of determining the recompense payable to the owner of the property
\nacquired. If the recompense fixed or determined is either not arbitary or illusory or if the
\nprinciples fixed are relevant to the purpose of acquisition or requisition of the property in
\nquestion, the courts cannot go into the question of adequacy of the payment.\n<\/p>\n
737. Then came the Bank Nationalisation case. The majority judgment in that case was
\ndelivered by Shah J. (as he then was). In that judgment he referred somewhat extensively
\nto the decision in Shantilal Mangaldas’s case and other cases rendered by this Court. He
\ndid not purport to deviate from the rule laid down in Shantital’s case. The ratio of that
\ndecision relating to Article 31(2) is found at p. 598 of the report. The learned judge
\nobserved:\n<\/p>\n
Both the lines of thought (in Vajravelu’s case and Shantilal’s case) which
\nconverge in the ultimate result, support the view that the principle
\nspecified by the law for determination of compensation is beyond the pale
\nof challenge, if it is relevant to the determination of compensation and is a
\nrecognised principle applicable in the determination of compensation for
\nproperty compulsorily acquired and the principle is appropriate in
\ndetermining the value of the class of property sought to be acquired. On
\nthe application of the view expressed in P. Vajravelu Mudaliar’s case or in
\nShantilal Mangaldas’s case, the Act in our judgment is liable to be struck
\ndown as it fails to provide Co the expropriated banks compensation
\ndetermined according to relevant principles.\n<\/p>\n
738. Proceeding further the learned judge observed at p. 599:\n<\/p>\n
We are unable to hold that a principle specified by the Parliament for
\ndetermining compensation of the property to be acquired is conclusive. If
\nthat view be expressed, the Parliament will be invested with a charter of
\narbitrariness and by abuse of legislative process, the Constitutional
\nguarantee of the right to compensation may be severely impaired. The
\nprinciple specified must be appropriate to the determination of
\ncompensation for the particular class of property sought to be acquired. If
\nseveral principles are appropriate and one is selected for determination of
\nthe value of the property to be acquired, selection of that principle to the
\nexclusion of other principles is not open to the challenge for the selection
\nmust be left to the wisdom of the Parliament.\n<\/p>\n
739. It is clear from the passages we have quoted above that this case also emphasised
\nthat the power of the Parliament to fix the compensation for the property acquired is not
\nan arbitrary power. Further, the principles prescribed for determining the compensation
\nmust be relevant to the subject matter of acquisition or requisition. That decision also laid
\ndown that both the questions whether the compensation has been fixed arbitrarily or
\nwhether the principles laid down are irrelevant are open to judicial review.\n<\/p>\n
740. Let us now examine Article 31(2) as it stands now in the light of the decisions
\nalready referred to. The only material changes made in that Article under the 25th
\nAmendment Act are:\n<\/p>\n
(1) in place of the word ‘compensation’, the word ‘amount’ has been used
\nand
\n(2) an additional clause viz. “or that the whole or any part of such amount
\nis to be given otherwise than in cash” has been added.\n<\/p>\n
741. We are not concerned in this case as to the effect of the additional clause. No
\narguments were advanced on that aspect. All that we are concerned with is as to what is
\nthe effect of the substitution of the word “amount” in place of the word “compensation”.
\nAs seen earlier, the word “compensation” has been interpreted in the various decisions
\nreferred to earlier as “just equivalent” of the value of the property taken. That concept has
\nnow been removed. In other respects, the Article has not been altered. It remains what it
\nwas. We have earlier noticed that the decisions of this Court have firmly laid down that
\nwhile examining the validity of law made under Article 31(2) as it stood after it was
\namended under the 4th Amendment Act, it was open to the Court to go into the questions
\nwhether the compensation had been fixed arbitrarily and whether the same was illusory.
\nThose decisions further ruled that the Court can go into the relevant of the principles
\nfixed. Parliament would have undoubtedly known the ratio of those decisions. That is
\nalso the legal presumption. Hence if the Parliament intended to take away the judicial
\nreview in any respect other than relating to the adequacy of the amount fixed, it would
\nhave expressed its intention by appropriate words. We find no such words in the Article
\nas it stands. Therefore, it is reasonable to assume that it has accepted the interpretation
\nplaced by this Court in all respects except as regards the concept of compensation. That
\nthis is the mischief which the 25th Amendment seeks to remedy by amending Article
\n31(2) is also clear from the language of the amended Article itself. It says that the law
\nshall not be called in question on the ground that the amount fixed or determined is not
\nadequate. What is an adequate amount ? An amount can be said to be adequate only when
\nthe owner of the property is fully compensated, that is when he is paid an amount which
\nis equivalent in value to the property acquired or requisitioned. And that is also what is
\nconnoted by the concept of ‘compensation’ as interpreted by this Court. Therefore, stated
\nbriefly, what the 25th Amendment makes non-justiciable is an enquiry into the question
\nwhether the amount fixed or determined is an equivalent value of or ‘compensation’ for
\nthe property acquired or requisitioned.\n<\/p>\n
742. The word “amount” is a neutral word. Standing by itself, it has no norm and is
\ncompletely colourless. The dictionary meaning of the word appropriate to the present
\ncontext is “sum total or a figure”. We have to find out its connotation from the context. In
\nso doing, we have to bear in mind the fact that Article 31(2) still continues to be a
\nfundamental right. It is not possible to accept the contention of the learned Advocate
\nGeneral of Maharashtra and the learned Solicitor General that the right of the owner at
\npresent is just to get whatever the Government pleases to give, whenever it pleases to
\ngive and however it pleases to give. A position so nebulous as that cannot be considered
\nas a right much less a fundamental right, which Article 31(2) still claims to be.\n<\/p>\n
743. It is difficult to believe that Parliament intended to make a mockery of the
\nfundamental right conferred under Article 31(2). It cannot be that the Constitution while
\npurporting to preserve the fundamental right of the citizens to get an “amount” in lieu of
\nthe property taken for public purpose has in fact robbed him of all his right.\n<\/p>\n
744. Undoubtedly Article 31 empowers the legislature to acquire or requisition the
\nproperty of a citizen for an “amount”. What does the word “amount” mean in that Article
\n? As we have already said, that word by itself does not disclose any norm. But then the
\nword “amount” is followed by the words “which may be fixed by such law or which may
\nbe determined in accordance with such principles and given in such manner as may be
\nspecified in such law and no such law shall be called in question in any court on the
\nground that the amount so fixed or determined is not adequate.\n<\/p>\n
745. If the expression “amount” has no norm and is just what the Parliament stipulates,
\nthere can be no question of prescribing principles for determining that “amount”; nor is
\nthere any scope for finding out its adequacy. The legislatures are permitted under the
\namended Article 31(2) either to fix the “amount” to be paid in lieu of the property
\nacquired or to lay down the principles for determining that “amount”. These two
\nalternative methods must bring about nearly the same result. If the relevancy of the
\nprinciples fixed can be judicially reviewed-as indeed they must be-in view of the
\ndicisions referred to earlier, we fail to see how the fixation of the “amount” which is the
\nalternative method of determining the recompense to be paid in lieu of the property taken
\nis excluded from judicial review.\n<\/p>\n
746. The word “fixed” in Article 31(2) connotes or postulates that there must be some
\nstandard or principle by the application of which the legislature calculates or ascertains
\ndefinitely the amount. In Bouviar’s Law Dictionary (1946) at p. 421, the word ‘fix’ is
\ndefined thus: “To determine; to settle. A Constitutional provision to the effect that the
\nGeneral Assembly shall fix the compensation of officers means that it shall prescribe or
\n‘fix’ the rule by which such compensation is to be determined”. (See also Fraser Henlein
\nPvy. Ltd. v. Cody (1945) 70, C.L.R. 100 at 128 cited in Saunders, Words and Phrases:
\nLegally Defined Vol. 2, p. 258 (1969). This being the meaning of the word ‘fix’ it would
\nbe necessary for the legislature to lay down in the law itself or otherwise indicate the
\nprinciples on the basis of which it fixes the amount for the acquisition or requisitioning of
\nthe property. If this construction is placed on the first mode of determining the amount,
\nthen there would be no difference between this method, and the other method whereby
\nthe legislature lays down the principles and leaves it for any other authority to determine
\nthe amount in accordance with such principles. Whether the legislature adopts one or the
\nother method, the requirement of Article 31(2) would be the same, namely, there must be
\nprinciples on the basis of which the amount is determined. Such an amount may be
\ndetermined either by the legislature or by some other authority authorised by the
\nlegislature. The content of the right in Article 31(2) is not dependent upon whether the
\nlegislature chooses one or the other method of determining the amount. There is no
\ncontradiction between these two methods. It is true that in both cases, the judicial review
\nis necessarily limited because it cannot extend to the examination of the adequacy of the
\namount fixed or to be determined. It was conceded on behalf of the contesting
\nrespondents that the court can go into the question whether the “amount” fixed is illusory.
\nThis very concession shows the untenability of the contention advanced on behalf of the
\nUnion. For determining whether the “amount” fixed is illusory or not, one has first to
\ndetermine the value of the property because without knowing the true value of the
\nproperty, no court can say that the “amount” fixed is illusory. Further, when Article 31(2)
\nsays that it is not open to the court to examine whether the “amount” fixed or determined
\nis adequate or not, it necessarily means that the “amount” payable has to be determined
\non the basis or principles relevant for determining the value of the property acquired or
\nrequisitioned. There can be no question of adequacy unless the “amount” payable has
\nbeen determined on the basis of certain norms and not arbitrarily, without having regard
\nto the value of the property.\n<\/p>\n
748. Further, Article 31(2) provides for fixing or determining the amount for the
\nacquisition or requisitioning of the property. The State action is still described as
\n‘acquisition or requisition’ and not ‘confiscation’. Therefore, the principles for fixing or
\ndetermining the amount must be relevant to the ‘acquisition or requisition’, and not to
\n‘confiscation’. The amount fixed or determined should not make it appear that the
\nmeasure is one of confiscation. The principles for fixing or determining the amount may
\nbe said to be relevant to the acquisition or requisition when they bear reasonable
\nrelationship to the value of the property acquired or requisitioned.\n<\/p>\n
749. Further there is practical difficulty in accepting the contention that the word
\n“amount” in the context in which it is used, has no norm. The amount has to be fixed by
\nthe legislatures which means by the members of the legislatures. When a law for
\nacquisition of certain types of property is enacted, it is not as if the members of the
\nlegislature-each and every one of them who participates in the making of the law would
\nfirst go and inspect the property to be acquired and then assess the value of that property.
\nIn the very nature of things, the “amount” payable has to be determined on the basis of
\ncertain principles. If that be so, as it appears to us to be obvious, then the legislators must
\nhave some principles before them to determine the amount. In this connection the
\nAdvocate-General of Maharashtra tried to give an explanation, which appears to us to be
\nunsatisfactory and unacceptable. His contention was that our democracy is worked on the
\nbasis of party system. The ruling party has the majority of the members of the legislature
\nbehind it. Therefore, the members of the opposition party need not know the basis of
\nfixation of the value of the property acquired. Even the members of the ruling party need
\nnot be told about the basis on which the value is fixed. The option before them is either to
\naccept the amount fixed by the cabinet or by the Minister concerned or to reject the
\nproposal and face the consequences. If this is the true position, it is, in our opinion, a
\nnegation of parliamentary democracy. Our democracy like all true parliamentary
\ndemocracies is based on the principles of debate and discussion. As far as possible,
\ndecisions in the legislatures are arrived at on the basis of consensus. Our Constitution
\ndoes not provide for one party rule where there is no room for opposition. Opposition
\nparties have an important role to play under our Constitution. Members belonging to the
\nopposition parties have as much right to participate in making laws as the members
\nbelonging to the ruling party. Further the learned Advocate General is not correct in his
\nassumption that the function of the members belonging to the ruling party is to blindly
\nsupport a measure sponsored by the executive. They also have a right, nay, a duty to
\nmould every measure by debate and discussion. If the question of fixation of “amount”
\nunder Article 31(2) is considered as the exclusive function of the executive, then, not
\nonly the judicial review will be taken away, even the legislature will not have the
\nopportunity of examining the correctness or appropriateness of the “amount” fixed. A
\npower so arbitrary as that can speedily degenerate into an instrument of oppression and is
\nlikely to be used for collateral purposes. Our Constitution has created checks and
\nbalances to minimise the possibility of power being misused. We have no doubt that the
\ntheory propounded by the Advocate General of Maharashtra will be repudiated by our
\nlegislatures and the cabinets as something wholly foreign to our Constitution.\n<\/p>\n
750. If we bear in mind the fact that the “amount” in question is to be paid in lieu of the
\nproperty taken, then, it follows that it must have a reasonable relationship with the value
\nof the property taken. It may not be the market value of the property taken. The market
\nvalue of a property is the result of an inter-action of various forces. It may not have any
\nreasonable relationship with the investment made by its successive owners. The price of
\nthe property acquired might have shot up because of various contributions made by the
\nsociety such as improvements effected by the State in the locality in question or the
\nconversion of a rural area into an urban area. It is undoubtedly open to the State to
\nappropriate to itself that part of the market value of a property which is not the result of
\nany contribution made by its owners. There may be several other relevant grounds for
\nfixing a particular “amount” in a given case or for adopting one or more of the relevant
\nprinciples for the determination of the price to be paid. In all these matters the legislative
\njudgment is entitled to great weight. It will be for the aggrieved party to clearly satisfy
\nthe Court that the basis adopted by the legislature has no reasonable relationship to the
\nvalue of the property acquired or that the “amount” to be paid has been arbitrarily fixed or
\nthat the same is an illusory return for the property taken. So long as the basis adopted for
\ncomputing the value of the property is relevant to the acquisition in question or the
\namount fixed can be justified on any such basis, it is no more open to the court to
\nconsider whether the amount fixed or to be determined is adequate. But it is still open to
\nthe court to consider whether “amount” in question has been aribtrarily determined or
\nwhether the same is an illusory return for the property taken. It is also open to the court to
\nconsider whether the principles laid down for the determination of the amount are
\nirrelevant for the acquisition or requisition in question. To put it differently, the judicial
\nreview under the amended Article 31(2) lies within narrow limits. The court cannot go
\ninto the question whether what is paid or is payable is compensation. It can only go into
\nthe question whether the “amount” in question was aribtrarily fixed as illusory or whether
\nthe principles laid down for the purpose of determining the “amount” payable have
\nreasonable relationship with the value of the property acquired or requisitioned.\n<\/p>\n
751. If the amended Article 31(2) is understood in the manner as laid down above, the
\nright to property cannot be said to have been damaged or destroyed. The amended Article
\n31(2) according to us fully protects the interests of the individual as well as that of the
\nsociety. Hence its validity is not open to challenge.\n<\/p>\n
752. Now, let us rurn to Article 31(2B). It says that “Nothing in Sub-clause (f) of Clause
\n(1) of Article 19 shall affect any such law as is referred to in Clause (2)”. This provision
\nhas no real impact on the right conferred under Article 31(2). Article 31(2) empowers the
\nState to compulsorily acquire or requisition property for public purpose. When property
\nis acquired or requisitioned for public purpose, the right of the owner of that property to
\nhold or dispose of that property is necessarily lost. Hence there is no anti-thesis between
\nArticle 19(1)(f) and Article 31(2). That being so, the only assistance that the owner of the
\nproperty acquired or requisitioned would have obtained from Article 19(1)(f) read with
\nSub-article (5) of that Article would be the right to insist that the law made under Article
\n31(2) as it stood before its recent amendment, should have to conform to some reasonable
\nprocedure both in the matter of dispossessing him as well as in the matter of determining
\nthe “amount” payable to him. In a way, those rights are protected by the principles of
\nnatural justice.\n<\/p>\n
753. For the reasons mentioned above, we are unable to accept the contention urged on
\nbehalf of the petitioners that Section 2 of the 25th Amendment Act, 1971 is invalid.\n<\/p>\n
754. This takes us to Section 3 of the 25th Amendment Act which now stands as Article
\n31C of the Constitution. This Article empowers the Parliament as well as the Local
\nLegislatures to enact laws giving effect to, the policy of the State towards securing the
\nprinciples specified in Clause (b) or Clause (c) of Article 39, completely ignoring in the
\nprocess, Articles 14, 19 and 31. Further it lays down that if the law in question contains a
\ndeclaration that it is for giving effect to such policy, that Jaw shall not be called in
\nquestion in any court on the ground that it does not give effect to such policy. The
\nproviso to that Article prescribes that where such law is made by the legislature of a
\nState, the provisions of Article 31C shall not apply thereto unless such law, having been
\nreserved for the consideration of the President has received his assent. This Article has
\ntwo parts. The first part says that laws enacted by Parliament as well as by the Local
\nLegislatures for giving effect to the policy of the State towards securing the principles
\nspecified in Clause (b) or Clause (c) of Article 39 shall not be deemed to be void on the
\nground that it is inconsistent with or takes away or abridges any of the rights conferred by
\nArticles 14, 19 and 31 notwithstanding anything contained in Article 13 and the second
\npart provides that no law containing a declaration that is for giving effect to such policy
\nshall be called in question in any court on the ground that it does not give effect to such
\npolicy. Clauses (b) and (c) of Article 39 do not prescribe any subject matter of legislation.
\nThey contain certain objectives to be achieved. The methods to be adopted to achieve
\nthose objectives may be numerous. Those clauses cover a very large field of social and
\neconomic activities of the Union and the States. Clause (b) of Article 39 says that the
\nState shall direct its policy towards securing that the ownership and control of the
\nmaterial resources of the community are so distributed as best to subserve the common
\ngood and Clause (c) of that Article says that the State shall direct its policy towards
\nsecuring that the operation of the economic system does not result in the concentration of
\nwealth and means of production to the common detriment. These two provisions lay
\ndown a particular political philosophy. They in conjunction with some other provisions of
\nthe Constitution direct the State to build a Welfare State.\n<\/p>\n
755. No one can deny the importance of the Directive Principles. The Fundamental
\nRights and the Directive Principles constitute the ‘conscience’ of our Constitution. The
\npurpose of the Fundamental Rights is to create an egalitarian society, to free all citizens
\nfrom coercion or restriction by society and to make liberty available for all. The purpose
\nof the Directive Principles is to fix certain social and economic goals for immediate
\nattainment by bringing about a non-violent social revolution. Through such a social
\nrevolution the Constitution seeks to fulfil the basic needs of the common man and to
\nchange the structure of bur society. It aims at making the Indian masses free in the
\npositive sense.\n<\/p>\n
756. Part IV of the Constitution is designed to bring about the social and economic
\nrevolution that remained to be fulfilled after independence. The aim of the Constitution is
\nnot to guarantee certain liberties to only a few of the citizens but for all. The Constitution
\nvisualizes our society as a whole and contemplates that every member of the society
\nshould participate in the freedoms guaranteed. To ignore Part IV is to ignore the
\nsubstance provided for in the Constitution, the hopes held out to the Nation and the very
\nideals on which our Constitution is built Without faithfully implementing the Directive
\nPrinciples, it is not possible to achieve the Welfare State contemplated by the
\nConstitution. A society like ours steeped in poverty and ignorance satisfying the
\nminimum economic needs of every citizen of this country. Any Government which fails
\nto fulfil the pledge taken under the Constitution cannot be said to have been faithful to the
\nConstitution and to its commitments.\n<\/p>\n
757. Equally, the danger to democracy by an over emphasis on duty cannot be
\nminimised. Kurt Reizler, a German Scholar, from his experience of the tragedy of the
\nNazi Germany warned:\n<\/p>\n
If…these duties of man should be duties towards the “public welfare” of
\nthe “society” and the State, and rights are made conditional on the
\nfulfilment of these duties, the duties will uproot the rights. The rights will
\nwither away…(the) State can use the allegedly unfulfilled duties to shove
\naside rights.-Any Bill of Rights that makes the rights conditional on duties
\ntowards society or the State, however strong its emphasis on human
\ndignity, freedom, God or whatever else, can be accepted by any
\ntotalitarian leader. He will enforce the duties while disregarding the right.\n<\/p>\n
758. Indeed the balancing process between the individual rights and the social needs is a
\ndelicate one. This is primarily the responsibility of the “State” and in the ultimate analysis
\nof the courts as interpreters of the Constitution and the laws.\n<\/p>\n
759. Our founding fathers were satisfied that there is no anti-thesis between the
\nFundamental Rights and the Directive Principles. One supplements the other. The
\nDirectives lay down the end to be achieved and Part III prescribes the means through
\nwhich the goal is to be reached. Our Constitution does not subscribe to the theory that
\nend justifies the means adopted. The Counsel for the petitioners urged that the
\nFundamental Rights are not the cause of our failure to implement the Directive
\nPrinciples. According to him, it is not the Constituion that has failed as; but we have
\nfailed to rise up to its expectations. He urged that the attack against Fundamental Rights
\nis merely an alibi and an attempt to find a scape-goat on the part of those who were
\nunable or willing to implement the Directives. These allegations are ‘denied on behalf of
\nthe Union and the States. It was urged on their behalf that interpretations placed by the
\ncourts on some of the Articles in Part III of the Constitution have placed impediments in
\nthe way of States, in implementing the Directives. These controversies are not capable of
\nbeing decided by courts.\n<\/p>\n
760. There is no doubt that the power conferred under Article 31C, if interpreted in the
\nmanner contended on behalf of the Union and the States would result in denuding
\nsubstantially the contents of the right to equality, the right to the seven freedoms
\nguaranteed under Article 19 and the right to get some reasonable return by the person
\nwhose property is taken for public purpose. Unlike Article 31A, Article 31C is not
\nconfined to some particular subjects. It can take in a very wide area of human activities.
\nThe power conferred under it, is an arbitrary power. It is capable of being used for
\ncollateral purposes. It can be used to stifle the freedom of speech, freedom to assemble
\npeaceably, freedom to move freely throughout India, freedom to reside and settle in any
\npart of India, freedom to acquire, hold and dispose of property and freedom to practise
\nany profession or carry on any occupation, trade or business. The power conferred under
\nthat provision is a blanket power. Even a small majority in a legislature can use that
\npower to truncate or even destroy democracy. That power can be used to weaken the
\nunity and integrity of this country. That Article is wholly out of tune with our
\nConstitution. Its implications are manifold. There is force in the contention of the
\npetitioners that this Article has the potentiality of shaking the very foundation of our
\nConstitution.\n<\/p>\n
761. What is the nature of the power conferred under Article 31C ? It is claimed to have
\nempowered Parliament and the State Legislatures to enact laws pro tanto abrogating
\nArticles 14, 19 and 31. A power to take away directly or indirectly a right guaranteed or a
\nduty imposed under a Constitution, by an ordinary law, is a power to pro tanto abrogate
\nthe Constitution. If the legislature is empowered to amend the Constitution by ordinary
\nlegislative procedure, any law enacted by it, even if it does not purport to amend the
\nConstitution, but all the same, is inconsistent with one or more of the provisions of the
\nConstitution has the effect of abrogating the Constitution to the extent of inconsistency.
\nThat position is clear from the judgment of the Judicial Committee in McCawley v. The
\nKing [1920] A.C. 691. In other words, the power conferred under the Article is a power
\nto amend the Constitution in certain essential respects while enacting legislations coming
\nwithin the purview of that Article. It is a power not merely to abridge but even to take
\naway the rights guaranteed under Articles 14, 19 and 31 by ordinary law. Further that
\npower is conferred not only on the Parliament but also on the State Legislatures.\n<\/p>\n
762. Article 368 specifically provides that amendment of the Constitution can be done
\nonly in the manner provided therein. It is true that there are provisions in the Constitution
\nunder which the Parliament can amend some parts of the Constitution by ordinary law-
\nsee Article 2 to 4, Article 169, Paragraph 7 of Schedule V and Paragraph 21 of Schedule
\nVI. But these provisions clearly provide that the laws enacted under those provisions “are
\nnot to be deemed as amendments to the Constitution for the purpose of Article 368”.
\nThere are also some transitional provisions in the Constitution which can be changed by
\nthe Parliament by law. Leaving aside for separate consideration Article 31-A, which was
\nfirst introduced by the 1st Amendment Act, 1951, there is no provision in the
\nConstitution apart from Article 31(4) which permitted the State Legislatures to enact laws
\ncontravening one or more of the provisions in Part III. Article 31(4) relates to legislations
\npending before the State Legislatures at the time the Constitution came into force. Their
\nscope was known to the Constitution-makers. That provision was enacted to protect
\ncertain Zamindari Abolition laws which were on the anvil. But it must be remembered
\nthat the original provisions in the Constitution were not controlled by Article 368. That
\nArticle is as much a creature of the Constitution as the other Articles are. The form and
\nmanner prescribed in Article 368 did not govern the procedure of the Constituent
\nAssembly. The mandates contained in Article 368 are applicable only to the amendments
\nmade to the Constitution. The power to amend the Constitution was exclusively given to
\nthe Parliament and to no other body. The manner of exercising that power is clearly
\nprescribed. Article 31C gives a very large power to the State Legislatures as well as to
\nParliament to pro tanto amend the Constitution by enacting laws coming within its ambit.
\nTo put it differently, Article 31C permits the State Legislatures and the Parliament to
\nenact Constitution-breaking laws by a simple majority vote of the members present and
\nvoting, if the rule regarding quorum is satisfied.\n<\/p>\n
763. It cannot be said that Article 31C is similar to Articles 4, 169, Paragraph 7 of
\nSchedule V and Paragraph 21 of Schedule VI. Each one of those Articles makes it clear
\nthat the laws passed under those Articles are not to be deemed to be an amendment of the
\nConstitution for the purpose of Article 368. Those laws cannot affect the basic features of
\nthe Constitution. They operate within narrow fields.\n<\/p>\n
764. The learned Advocate-General of Maharashtra contended that Article 31C lifts the
\nban placed on the State Legislatures and Parliament under Articles 14, 19 and 31. It is
\ntrue that there are several provisions in the Constitution which lift the ban placed by one
\nor the other Article of the Constitution on the legislative power of the State Legislatures
\nand Parliament e.g. Articles 15(4), 16(3), 16(4), 16(5), 19(2) to 19(6), 22(3), 22(6), 23(2),
\n28(2), 31(4), 31(6) etc. Each one of these Articles lifts the limitations placed on the
\nlegislative power of the legislatures by one or more of the provisions of the Constitution
\nparticularly those contained in Part III. But when the limitation is so lifted, there will be
\nno conflict between the law enacted and Article 13. In such a situation, there is no
\noccasion for providing that the law enacted will not be deemed to be void
\nnotwithstanding anything contained in Article 13. The laws made under the provisions set
\nout earlier cannot in their very nature take away any of the fundamental features of the
\nConstitution. They can merely modify one or other of those features. Article 31C
\nproceeds on the basis that the laws enacted under that Article are in conflict with Article
\n13 and are prima facie void. Otherwise there was no purpose in providing in that Article
\n“Notwithstanding anything contained in Article 13, no law giving effect to the policy of
\nthe State towards securing the principles specified in Clause (b) or Clause (c) of Article
\n39 shall be deemed to be void on the ground that it is inconsistent with or takes away or
\nabridges any rights conferred by Article 14, Article 19 or Article 31….” Hence the
\ncontention that limitations imposed by Articles 14, 19 and 31 on the legislative power of
\nthe Union and the States are lifted to the extent provided in Article 31C cannot be
\naccepted.\n<\/p>\n
765. It is true that there is some similarity between the laws made under Article 31A and
\nthose made under Article 31C. The scope of the latter article is much wider than that of
\nthe former. The character of the laws made under both those Articles is somewhat
\nsimilar. It was urged that if laws made under Article 31-A, without more, are valid even
\nif they take away or abridge the rights conferred under Articles 14, 19 and 31, for the
\nsame reason, laws made under Article 31C must also be held valid. It was contended,
\nnow that this Court has upheld the validity of Article 31-A, we should also uphold the
\nvalidity of Article 31C. In that connection, reliance was placed on the following
\nobservations of Brandies J. of the United States Supreme Court in Lesser v. Garnett : 66
\nL. Ed. p. 595(511)=258 U.S.13.\n<\/p>\n
This Amendment (19th Amendment) is in character and phraseology
\nprecisely similar to the 15th. For each the same method of adoption was
\npursued. One cannot be valid and the other invalid. That the 15th is
\nvalid…has been recognised and acted upon for half a century…. The
\nsuggestion that the 15th was incorporated in the Constitution not in
\naccordance with law, but practically as a war measure which has been
\nvalidated by acquiescence cannot be entertained.\n<\/p>\n
766. These observations do not lay down any principle of law. The validity of the 19th
\nAmendment was upheld on various grounds and not merely because the 15th amendment
\nwas upheld.\n<\/p>\n
767. The laws enacted under Article 31A by their very nature can hardly abrogate the
\nrights embodied in Articles 14, 19 and 31. Those laws can encroach upon the rights
\nguaranteed under Articles 14, 19 and 31 only to the extent necessary for giving effect to
\nthem. The laws made must be those made under the topics of legislation mentioned in
\nArticle 31A. Hence the encroachment of the rights guaranteed under Article 14, 19 and
\n31 must necessarily be incidental. If the encroachment is found to be excessive, the same
\ncan be struck down. In this connection reference may be usefully made to the decision of
\nthis Court in Akadasi Padhan v. State of Orissa<\/a> [1963] Supp. 2 S.C.R. 691. Therein the
\nvalidity of a provision of a statute enacted under Article 19(6)(ii) i.e. law providing for
\nState monopoly in Kendu Leaves, came up for consideration. The question for decision
\nbefore the Court was whether that law can unreasonably encroach upon the right
\nguaranteed under Article 19(1)(g). That question was answered by Gajendragadkar J. (as
\nhe then was) speaking for the Court, thus:\n<\/p>\n
“A law relating to” a State monopoly cannot, in the context include all the
\nprovisions contained in the said law whether they have direct relation with
\nthe creation of the monopoly or not. In our opinion, the said expression
\nshould be construed to mean the law relating to the monopoly in its
\nabsolutely essential feature. If a law is passed creating a State monopoly,
\nthe Court should enquire what are the provisions of the said law which are
\nbasically and essentially necessary for creating the State monopoly. It is
\nonly those essential and basic provisions which are protected by the latter
\npart of Article 19(6). If there are other provisions made by the Act which
\nare subsidiary, incidental or helpful to the operation of the monopoly, they
\ndo not fall under the said part and their validity must be judged under the
\nfirst part of Article 19(6). In other words, the effect of the amendment
\nmade in Article 19(6) is to protect the law relating to the creation of
\nmonopoly and that means that it is only the provisions of the law which
\nare integrally and essentially connected with the creation of the monopoly
\nthat are protected. The rest of the provisions which may be incidental do
\nnot fall under the latter part of Article 19(6) and would inevitably have to
\nsatisfy the test of the first part of Article 19(6).\n<\/p>\n
768. The same principle was reiterated by the full Court in the Bank Nationalisation case.\n<\/p>\n
769. As far back as in 1951 this Court ruled in State of Bombay and Anr. v. F.N. Balsara<\/a>
\n[1951] S.C.R. 682 that merely because law was enacted to implement one of the
\nDirective Principles, the same cannot with impunity encroach upon the Fundamental
\nRights. The ratio of Akadasi Padhan’s case would be equally applicable in respect of the
\nlaws made under Article 31A which speaks of the “law providing for the” topics
\nmentioned therein. But that ratio cannot be effectively applied when we come to laws
\nmade under Article 31C. The reach of Article 31C is very wide. It is possible to fit into
\nthe scheme of that Article almost any economic and social legislation. Further, the Court
\ncannot go into the question whether the laws encted do give effect to the policy set out in
\nArticle 39(b) and (c). We were told on behalf of the Union and the States that it is open to
\nthe courts to examine whether there is a nexus between the laws made under Article 31C
\nand Article 39(b) and (c) and all that the courts are precluded from examining is the
\neffectiveness of the law in achieving the intended purpose. But, such a power in its very
\nnature is tenuous. There can be few laws which can be held to have no nexus with Article
\n39(b) and (c). At any rate, most laws may be given the appearance of aiming to achieve
\nthe objectives mentioned in Article 39(b) and (c). Once that facade is projected, the laws
\nmade can proceed to destroy the very foundation of our Constitution. Encroachment of
\nvaluable Constitutional guarantees generally begins imperceptibly and is made with the
\nbest of intentions but, once that attempt is successful further encroachments follow as a
\nmatter of course, not perhaps with any evil motives, and may be, out of strong
\nconvictions regarding the righteousness of the course adopted and the objectives intended
\nto be achieved but they may all the same be wholly unConstitutional. Lord Atkin
\nobserved in Proprietary Articles Traders Association and Ors. v. Attorney General for
\nCanada and Ors. [1931] A.C. 311 at 317.\n<\/p>\n
Both the Act and the sections have a legislative history which is relevant
\nto the discussion. Their Lordships entertain no doubt that time alone will
\nnot validate an Act which when challenged is found to be ultea vires; nor
\nwill a history of a gradial series of advances till this boundary is finally
\ncrossed avail to protect the ultimate encroachment.\n<\/p>\n
770. The observation of Lord Atkin “nor will a history of a gradual series of advances till
\nthis boundary is finally crossed avail to protect the ultimate encroachment” is extremely
\napposite for our present purpose. The First Amendment Act permitted enactment of
\nConstitution breaking laws in respect of one subject; the Fourth Amendment Act enlarged
\nthat field and permitted the Legislatures to make laws ignoring Articles 14, 19 and 31 in
\nrespect of five subjects. Now the Twenty-Fifth Amendment has finally crossed the
\nboundary.\n<\/p>\n
771. It cannot be said that under Article 31C Parliament merely delegated its own
\namending power to State Legislatures and such a delegation is valid. The power
\nconferred on Parliament under Article 368 in its very nature is one that cannot be
\ndelegated. It is a special power to be exclusively exercised by Parliament and that in the
\nmanner prescribed in Article 368. The State Legislatures are not institutions subordinate
\nto Parliament. Parliament as well as State Legislatures in their respective allocated fields
\nare supreme. Parliament cannot delegate its legislative powers-much less the amending
\npower-to the State Legislatures. The question whether the legislatures can confer power
\non some other independent legislative body to exercise its legislative power came up for
\nconsideration before the Judicial Committee in re The Initiative and Referendum Act
\n[1919] A.C. p. 935 at 945 P.C. Therein Viscount Haldane speaking for the Board
\nobserved:\n<\/p>\n
Section 92 of the Act of 1867 (British North American Act) entrusts the
\nlegislative power in a Province to its legislature and to that legislature
\nonly. No toubt a body with a power of legislation on the subjects entrusted
\nto it so ample as that enjoyed by a Provincial Legislature in Canada, could,
\nwhile preserving its own capacity intact, seek the assistance of subordinate
\nagencies, as had been done in Hodge v. The Queen 19 App. Cas. 117 the
\nLegislature of Ontario was held entitled to entrust to a Board of
\nCommissioners authority to enact regulations relating to Tavernes; but it
\ndoes not follow that it can create and endow with its own capacity a new
\nlegislative power not created by the Act to which it owes its own
\nexistence. Their Lordships do no more than draw attention to the gravity
\nof the Constitutional questions which thus arise.\n<\/p>\n
772. In Queen v. Burah, (1878) 5 I.A. 178 at 194 the Judicial Committee observed:
\nTheir Lordships agree that the Governor General in Council could not, by
\nany form of enactment, create in India, and arm with general legislative
\nauthority, a new legislative power, not created or authorised by the
\nCouncils’ Act.\n<\/p>\n
773. We respectfully agree with these observations. From these observations it follows
\nthat Parliament was incompetent to create a new power-a power to ignore some of the
\nprovisions of the Constitution-and endow the same on the State Legislatures. That power
\nwas exclusively conferred on Parliament so that the unity and integrity of this country
\nmay not be jeopardised by parochial considerations. The Constitution makers were
\nevidently of the opinion that the sovereignty of the country, the democratic character of
\nthe polity, and the individual liberties etc. would be better safeguarded if the amending
\npower is exclusively left in the hands of the Parliament. This exclusive conferment of
\namending power on the Parliament is one of the basic features of the Constitution and the
\nsame cannot be violated directly or indirectly. Article 31A made a small dent on this
\nfeature and that went unnoticed. That provision is now protected by the principle of stare
\ndecisis. Public interest will suffer if we go back on these decisions and take away the
\nprotection given to many statutes. Now, to use the words of Lord Atkin in the Proprietary
\nArticles Traders Association’s case, the ‘boundary line has been crossed’ and a challenge
\nto the very basic conceptions of the Constitution is posed. Hence the neglect or avoidance
\nof the question in previous cases cannot be accepted as a sound argument.\n<\/p>\n
774. In Queen v. Kirby and Ors. (1956) 94, C.L.R. 295 Dixon C.J. observed:
\nThese cases, and perhaps other examples exist, do no doubt add to the
\nweight of the general considerations arising from lapse of time, the neglect
\nor avoidance of the question in previous cases and the very evident
\ndesirability of leaving undisturbed assumptions that have been accepted as
\nto the validity of the provisions in question. At the same time, the Court is
\nnot entitled to place very great reliance upon the fact that, in cases, before
\nit where occasions might have been made to raise the question for
\nargument and decision, this was not done by any member of the Court and
\nthat on the contrary all accepted the common assumption of the parties and
\ndecided the case accordingly. Undesirable as it is that doubtful questions
\nof validity should’ go by default, the fact is that, the court usually acts
\nupon the presumption of validity until the law is specifically challenged.\n<\/p>\n
775. Similar was the view expressed by Viscount Simonds speaking for the Judicial
\nCommittee in Attorney-General of Commonwealth of Australia v. The Queen and Ors.
\n95, C.L.R. 529 at 547
\nIt is therefore asked and no one can doubt that it is a formidable question,
\nwhy for a quarter of a century no litigant has attacked the validity of this
\nobviously illegitimate unions. Why in Alexannder’s case (1918) 25, C.L.R.\n<\/p>\n
434) itself was no challenge made ? How came it that in a series of cases,
\nwhich are enumerated in the majority and the dissentient, judgments it was
\nassumed without question that the provisions now impugned were valid ?
\nIt is clear from the majority judgment that the learned Chief Justice and
\nthe Judges who shared his opinion were heavily pressed by this
\nconsideration. It could not be otherwise. Yet they were impelled to their
\nconclusion by the clear conviction that consistently with the Constitution
\nthe validity of the impugned provision could not be sustained. Whether the
\nresult would have been different if their validity had previously been
\njudicially determined after full argument directed to the precise question
\nand had not rested on judicial dicta and common assumption it is not for
\ntheir Lordships to say. Upon a question of the applicability of the doctrine
\nof stare decisis to matters of far reaching Constitutional importance they
\nwould imperatively require the assistance of the High Court itself. But
\nhere no such question arises. Whatever the reason may be, just as there
\nwas a patent invalidity in the original Act which for a number of years
\nwent unchallenged, so far a greater number of years an invalidity which to
\ntheir Lordships as to the majority of the High Court has been convincingly
\ndemonstrated, has been disregarded. Such clear conviction must find
\nexpression, in the appropriate judgment.\n<\/p>\n
776. The contention that Article 31C may be considered as an amendment of Article 368
\nis not tenable. It does not purport to be so. That Article does not find a place in Part XX
\nof the Constitution. It is not shown as a proviso to Article 368, the only Article which
\ndeals with the amendment of the Constitution as such. Article 31C does not say that the
\npowers conferred under that Article are available “notwithstanding anything contained in
\nArticle 368” or “notwithstanding anything in this Constituion”. There is no basis for
\nholding that the Parliament intended that Article 31C should operate as an amendment of
\nArticle 368. We have earlier come to the conclusion that the State Legislatures cannot be
\ninvested with the power to amend the Constitution.\n<\/p>\n
777. If the purpose of Article 31C is to secure for the Government, the control of means
\nof production in certain economic spheres exclusively or otherwise, the same can be
\nachieved by the exercise of legislative power under Article 31(2) or under Article 31(2)
\nread with Article 19(6)(ii). If on the other hand, the object is to reduce the existing
\neconomic disparity in the country, that object can be achieved by exercising the various
\npowers conferred on the legislatures under the Constitution, in particular by the exercise
\nof the power to tax, a power of the largest amplitude. That power can be exercised
\nwithout discriminating against any section of the people. One of the basic underlying
\nprinciples of our Constitution is that every governmental power, which includes both the
\npower of the executives as well as of the legislatures, must be so exercised as to give no
\nroom for legitimate complaint, that it was exercised with an evil eye or an uneven hand.\n<\/p>\n
778. For the reasons mentioned above, we hold that Article 31C permits the destruction
\nof some of the basic features of our Constitution and consequently, it is void.\n<\/p>\n
779. Lastly, we come to the validity of the 29th Amendment Act, 1972. Contentions
\nrelating to the 29th Amendment Act of the Constitution lie within narrower limits. The
\nonly plea taken was that if any of the provisions in the two Acts included in the IXth
\nSchedule to the Constitution by means of the 29th Amendment Act does not satisfy the
\nrequirements of Article 31A(1)(a), the said provision does not get the protection of
\nArticle 31-B.\n<\/p>\n
780. As a result of the 29th Amendment Act, the Kerala Land Reforms (Amendment)
\nAct, 1969, (Kerala Act 33 of 1969) and Kerala Land Reforms (Amendment) Act, 1971
\n(Kerala Act 25 of 1971) were added as items 65 and 66 in the IXth Schedule of the
\nConstitution. The IXth Schedule is an appendage to Article 31-B, which says:
\nWithout prejudice to the generality of the provisions contained in Article
\n31A none of the Acts and Regulations specified in the Ninth Schedule nor
\nany of the provisions thereof shall be deemed to be void, or ever to have
\nbecome void, on the ground that such Act, Regulation or provision is
\ninconsistent with or takes away or abridges any of the rights conferred by,
\nany provisions of this Part and notwithstanding any judgment, decree or
\norder of any court or tribunal to the contrary, each-of the said Acts and
\nRegulations shall, subject to the power of any competent Legislature to
\nrepeal or amend it, continue in force.\n<\/p>\n
781. The learned Counsel for the petitioners did not challenge the validity of Article 31B.
\nIts validity has been accepted in a number of cases decided by this Court. His only
\ncontention was that before any Act or any provision in an Act, included in the IXth
\nSchedule can get the protection of Article 31B, the Act or the provision in question must
\nsatisfy the requirements of one or the other of the provisions in Article 31A. For this
\ncontention of his, he relied on the opening words of Article 31B namely “without
\nprejudice to the generality of the provisions contained in Article 31A”. He urged that, if
\nArticle 31B had been an independent provision having no connection whatsoever with
\nArticle 31A as contended on behalf of the contesting respondents, there was no occasion
\nfor using the words referred to earlier in Article 31B. He also attempted to trace the
\nhistory of Articles 31A and 31B and establish that there is link between those two
\nArticles. Though there is some force in those contentions, the question of law raised is no
\nmore res integra. It Is concluded by a scries of decisions of this Court and we see no
\njustification to reopen that question.\n<\/p>\n
782. In State of Bihar v. Maharajadhiraja Sir Kameshwar Singh of Darbhanga and Ors.<\/a>
\n[1952] S.C.R. 889 a contention similar to that advanced by Mr. Palkhivala was advanced
\nby Mr. Somayya. That contention was rejected by Patanjali Sastri C.J. speaking for the
\nCourt with these observations:\n<\/p>\n
Mr. Somayya, however, submitted that the opening words of Article 31-B,
\nnamely “Without prejudice to the generality of the provisions contained in
\nArticle 31A” showed that the mention of particular statutes in Article 31-B
\nread with the Ninth Schedule was only illustrative, and that, accordingly,
\nArticle 31-B could not be wider in scope.. Reliance was placed in support
\nof this argument upon the decision of the Privy Council in Sibnath
\nBanerji’s case. (1945) F.C.R. 195). I cannot agree with that view. There is
\nnothing in Article 31-B to indicate that the specific intention of certain
\nstatutes was only intended to illustrate the application of the general words
\nof Article 31-A. The opening words of Article 31-B are only intended to
\nmake clear that Article 31-A should not be restricted in its application by
\nreason of anything contained in Article 31-B and are in no way calculated
\nto restrict the application of the latter article or of the enactments referred
\nto therein to acquisition of “estates”.\n<\/p>\n
783. In Vishweshwar Rao v. The State of Madhya Pradesh (1952) S.C.R. 1020 Mahajan
\nJ. (as he then was) reiterated the same view. He observed:\n<\/p>\n
It was contended that Article 31-B was merely illustrative of the rule
\nstated in Article 31-A and if Article 31-A had no application, that article
\nalso should be left out of consideration….\n<\/p>\n
On the basis of the similarity of the language in the opening part of Article
\n31-B with that of Sub-section (2) of Section 2 of the Defence of India Act
\n“without prejudice to the generality of the provisions contained in Article
\n31-A”, it was urged that Article 31-B was merely illustrative of Article 31-
\nA and as the latter was limited in its application to estates as defined
\ntherein, Article 31-B was also so limited. In my opinion, the observations
\nin Sibnath Bannerjee’s case far from supporting the contention raised,
\nnegatives it. Article 31-B specifically validates certain Acts mentioned in
\nthe Schedule despite the provisions of Article 31-A, but stands
\nindependent of it. The impugned Acts in this situation qua the acquisition
\nof the eight malguzari villages cannot be questioned on the ground that it
\ncontravenes the provisions of Article 31(2) of the Constitution or any of
\nthe other provisions of Part III.\n<\/p>\n
784. A similar view was expresed by this Court in N.B. Jeejeebhoy v. Assistant
\nCollector, Thana Prant. Thana<\/a> [1965] 1, S.C.R. 636 Therein Subba Rao J. (as he then
\nwas) speaking for the Court observed thus:\n<\/p>\n
The learned Attorney General contended that Article 31-A and Article 31-
\nB should be read together and that if so read Article 31-B would only
\nillustrate cases that would otherwise fall under Article 31-A and, therefore,
\nthe same construction as put upon Article 31-B should also apply to
\nArticle 31-A of the Constitut on. This construction was sought to be based
\nupon the opening words of Article 31-B, namely “without prejudice to the
\ngenerality of the provisions contained in Article 31-A”. We find it difficult
\nto accept this argument. The words “Without prejudice to the generality of
\nthe provisions” indicate that the Acts and regulations specified in the
\nNinth Schedule would have the immunity even if they did not attract
\nArticle 31-A of the Constitution. If every Act in the 9th Schedule would
\nbe covered by Article 31-A, this article would become redundant. Indeed,
\nsome of the Acts mentioned therein, namely, items 14 to 20 and many
\nother Acts added to the 9th Schedule, do not appear to relate to estates as
\ndefined in Article 31-A(2) of the Constitution. We, therefore, hold that
\nArticle 31-B is not governed by Article 31A and that Article 31B is a
\nConstitutional device to place the specified statutes beyond any attack on
\nthe ground that they infringe Part III of the Constitution….\n<\/p>\n
785. Several other decisions of this Court proceed on the basis that Article 31-B is
\nindependent of the Article 31A. It is too late in the day to reopen that question. Whether
\nthe Acts which were brought into the IXth Schedule by the 29th Amendment Act or any
\nprovision in any of them abrogate any of the basic elements or essential features of the
\nConstitution can be examined when the validity of those Acts is gone into.\n<\/p>\n
786. For the foregoing reasons, we reject the contention of the petitioners that before an
\nAct can be included in the IXth Schedule, it must satisfy the requirements of Article 31-
\nA.\n<\/p>\n
787. In the result we hold:\n<\/p>\n
(1) The power to amend the Constitution under Article 368 as it stood
\nbefore its amendment empowered the Parliament by following the form
\nand manner laid down in that Article, to amend each and every Article and
\neach and every Part of the Constitution.\n<\/p>\n
(2) The expression “law” in Article 13(2) even before Article 13 was
\namended by the 24th Amendment Act, did not include amendments to the
\nConstitution.\n<\/p>\n
(3) Though the power to amend the Constitution under Article 368 is a
\nvery wide power, it does not yet include the power to destroy or
\nemasculate the basic elements or the fundamental features of the
\nConstitution.\n<\/p>\n
(4) The 24th Amendment Act did not enlarge the amending power of the
\nParliament It merely made explicit what was implicit in the original
\nArticle. Hence it is valid.\n<\/p>\n
(5)(A) The newly substituted Article 31(2) does not destroy the right to
\nproperty because-\n<\/p>\n
(i) the fixation of “amount” under that Article should have
\nreasonable relationship with the value of the property
\nacquired or requisitioned;\n<\/p>\n
(ii) the principles laid down must be relevant for the
\npurpose of arriving at the “amount” payable in respect of
\nthe property acquired or requisitioned;\n<\/p>\n
(iii) the “amount” fixed should not be illusory and\n<\/p>\n
(iv) the same should not be fixed arbitrarily.\n<\/p>\n
5(B) The question whether the “amount” in question has been fixed
\narbitrarily or the same is illusory or the principles laid down for the
\ndetermination of the same are relevant to the subject matter of acquisition
\nor requisition at about the time when the property in question is acquired
\nor requisitioned are open to judicial review. But it is no more open to the
\ncourt to consider whether the “amount” fixed or to be determined on the
\nbasis of the principles laid down is adequate.\n<\/p>\n
(6) Clause 2(b) of the 25th Amendment Act which incorporated Article 31
\n(2B) is also valid as it did not damage or destroy any essential features of
\nthe Constitution.\n<\/p>\n
(7) Clause (3) of the 25th Amendment Act which introduced into the
\nConstitution Article 31C is invalid for two reasons i.e. (1) it was beyond
\nthe amending power of the Parliament in so far as the amendment in
\nquestion permits destruction of several basic elements or fundamental
\nfeatures of the Constitution and (2) it empowers the Parliament and the
\nState Legislatures to pro tanto amend certain human freedoms guaranteed
\nto the citizens by the exercise of their ordinary legislative power.
\n(8) The 29th Amendment Act is valid but whether the Acts which were
\nbrought into the IXth Schedule by that Amendment or any provision in
\nany of them abrogate any of the basic elements or essential features of the
\nConstitution will have to be examined when the validity of those Acts is
\ngone into.\n<\/p>\n
In the circumstances of the case we direct the parties to
\nbear their own costs in these cases uptill this stage.\n<\/p>\n
A.N. Ray, J.\n<\/p>\n
788. The validity of the Constitution 24th, 25th and 29th Amendment Acts is challenged.
\nThe Constitution 24th Amendment Act amended Article 368. Article 368 in the
\nunamended form speaks of “Amendment of this Constitution” and how the Constitution
\nshall stand amended. The Constitution 24th Amendment Act enacts that Parliament may
\nin exercise of its constituent power amend by way of addition, variation or repeal any
\nprovision of this Constitution in accordance with the procedure laid down in that Article.
\nThe other part of the amendment is that nothing in Article 13 shall apply to any
\namendment under Article 368. The Constitution 25th Amendment Act has amended
\nArticle 31(2) and also Article 31(2A). The effect of these two amendments with regard to
\nArticles 31(2) and 31 (2A) is two-fold. First, no property shall be compulsorily acquired
\nor requsitioned save for a public purpose and save by authority of law which provides for
\nan amount which may be fixed by law or which may be determined in accordance with
\nsuch principles. Secondly, nothing in Article 19(1)(f) shall affect any law as is referred to
\nin Article 31(2). The second part of the Constitution 25th Amendment Act is introduction
\nof Article 31C which enacts that notwithstanding anything contained in Article 13 no law
\ngiving effect to the policy of the State towards securing principles prescribed in Clauses\n<\/p>\n
(b) and (c) of Article 39 shall be deemed to be void on the ground that it is inconsistent
\nwith or takes away or abridges any of the rights conferred by Articles 14, 19 and 31; and
\nno law containing a declaration that it is for giving effect to such policy shall be called in
\nquestion in any court on the ground that it does not give effect to such policy. By the
\nConstitution 29th Amendment Act the Kerala Land Reforms Amendment Act 1969 and
\nthe Kerala Land Reforms Amendment Act 1971 have been introduced into the Ninth
\nSchedule of the Constitution.\n<\/p>\n
789. The principal question which falls for determination is whether the power to amend
\nis under any express limitation of Article 13(2). Another question is whether there are
\nimplied and inherent limitation on the power of amendment. Can there be any implied or
\ninherent limitation in the face of any express power of amendment without any
\nexception? Question have been raised that essential features of the Constitution cannot be
\namended. Does the Constitution admit of distinction between essential and non-essential
\nfeatures ? Who is to determine what the essential features are? Who is the authority to
\npronounce as to what features are essential? The preeminent question is whether the
\npower of amendment is to be curtailed or restricted, though the Constitution does not
\ncontain any exception to the power of amendment. The people gave the Constitution to
\nthe people. The people gave the power of amendment to Parliament. Democracy proceeds
\non the faith and capacity of the people to elect their representatives and faith in the
\nrepresentatives to represent the people. Thoroughout the history of man-kind if any
\nmotive power has been more potent than another it is that of faith in themselves. The
\nideal of faith in ourself is of the greatest help to us. Grote the historian of Greece said that
\nthe diffusion of Constitutional morality, not merely among the majority of any
\ncommunity but throughout the whole, is the indispensible condition of a government at
\nonce free and peaceful. By Constitutional morality Grote meant a paramount reverence
\nfor the forms of the Constitution, with a perfect confidence in the bosom of every citizen
\namidst the bitterness of party contest that the forms of the Constitution will not be less
\nsacred in the eyes of opponents than in his own. The question is “He that planted the car,
\nshall he nor hear? or he that made the eye, shall he no see”.\n<\/p>\n
790. The real question is whether there is any power to amend the Constitution and if so
\nwhether there is any limitation on the power. The answer to this question depends on
\nthese considerations. First, what is the correct ratio and effect of the decision in I.C.
\nGolak Nath and Ors. v. State of Punjab and Anr. (1967) 2 S.C.R. 762. Second, should
\nthat ratio be upheld. Third, is there any limitation on the power to amend the
\nConstitution. Fourth, was the 24th Amendment validly enacted. If it was, is there any
\ninherent and implied limitation on that power under Article 368 as amended.\n<\/p>\n
791. The scope and power under Article 368 as it stood prior to the Constitution (24th)
\nAmendment Act to amend the Constitution falls for consideration.\n<\/p>\n
792. Two principal questions arise. First, is the Constitution as well as an amendment to
\nthe Constitution law within the meaning of Article 13(2). Second, is there any implied
\nand inherent limitation on the power of amendment apart from Article 13(2).\n<\/p>\n
793. Mr. Palkhivala contends that the unamended Article 368 was subject to Article
\n13(2). It is said that amendment of the Constitution is law, and, therefore, any law which
\ncontravenes fundamental rights is void. It is also said that Article 368 does not prevail
\nover or override Article 13. The four bars under Article 13 are said to be these. The bar is
\nimposed against the State, that is to say the totality of all the forces of the State. Second,
\nall categories of law are covered by the bar, whether they are Constitutional amendments
\nor bye-laws or executive Orders and Notifications. Third, all laws in force under Article
\n372 and all laws to be brought into force at any future date are brought within the scope
\nof this bar. Fourth, the effect of the bar is to render the law void.\n<\/p>\n
794. Mr. Palkhivala said that the preamble makes it clear that the object of the
\nConstitution is to secure basic human freedom, and this guarantee will be meaningless if
\nthe Legislature against whom the guarantee is to operate is at liberty to abrogate the
\nguarantees. It is said that law is comprehensive enough to include both ordinary law and
\nConstitutional law. The various forms of oath in the Third Schedule of the Constitution
\nrefer to “Constitution as by law established”. It is, therefore, submitted by the petitioner
\nthat the Constitution itself was originally established by law and every amendment has
\nlikewise to be established by law in order to take effect. It is emphasised that the
\nConstitutional amendment is a law, and, therefore, the word “law” in Article 13(2)
\nincludes Constitutional amendments.\n<\/p>\n
795. The Attorney General and Mr. Seervai said that the Constitution is the supreme
\nhigher law. An amendment to the Constitution is in exercise of constituent power. The
\namending power is not a legislative power. Law in Article 13(2) embodies the doctrine of
\nultra vires to render void any law enacted under the Constitution.\n<\/p>\n
796. This Court in Shankari Prasad Singh Deo v. Union of India and State of Bihar
\n(1952) S.C.R. 89 and Sajjan Singh v. State of Rajasthan (1965) 1 S.C.R. 933 examined
\nthe power to amend the Constitution.\n<\/p>\n
797. In Shankari Prasad case the Constitution First Amendment Act was challenged. The
\nprincipal contention was that the First Amendment in so far as it purported to take away
\nor abridge the rights conferred by Part III of the Constitution fell within the prohibition of
\nArticle 13(2) of the Constitution.\n<\/p>\n
798. The unanimous view of this Court in Shankari Prasad case was that although law
\nmust ordinarily include Constitutional law there is a clear demarcation between ordinary
\nlaw which is made in exercise of legislative power and Constitutional law which is made
\nin exercise of constituent power. In the absence of a clear indication to the contrary it is
\ndifficult to hold that the framers of the Constitution intended to make the fundamental
\nrights immune of Constitutional amendment The terms of Article 368 are general to
\nempower Parliament to amend the Constitution without any exception. Article 13(2)
\nconstrued in the context of Article 13 means that law in Article 13(2) would be relateable
\nto exercise of ordinary legislative power and not amendment to the Constitution.\n<\/p>\n
799. The Constitution Fourth Amendment Act came into existence on 5 October, 1963.
\nThe Constitution Seventeenth Amendment Act came into force on 20 June, 1964. By the
\nSeventeenth Amendment Act Article 31A Clause (1) was amended by inserting one more
\nproviso. A fresh Sub-clause (a) was substituted for original Sub-clause (a) of Clause (2)
\nof Article 31 retrospectively. 44 Acts were added in the Ninth Schedule. The validity of
\nthe Seventeenth Amendment was challenged before this Court in Sajjan Singh case.\n<\/p>\n
800. The main contention in Sajjan Singh case was that the power prescribed by Article
\n226 was likely to be affected by the Seventeenth Amendment, and, therefore, it was
\nnecessary that the special procedure laid down in the proviso to Article 368 should have
\nbeen followed. The Seventeenth Amendment Act was said to be invalid because that
\nprocedure was not followed.\n<\/p>\n
801. The majority view of this Court in Sajjan Singh case was that Article 368 plainly
\nand unambiguously meant amendment of all the provisions of the Constitution. The word
\n“law” in Article 13(2) was held not to take in the Constitution Amendment Acts passed
\nunder Article 368. It was also said that fundamental rights in Article 19 could be
\nregulated as specified in Clauses (2) to (6) and, therefore, it could not be said to have
\nbeen assumed by the Constitution makers that fundamental rights were static and
\nincapable of expansion. It was said that the concept of public interest and other important
\nconsiderations which are the basis of Clauses (2) to (6) in Article 19 “may change and
\nmay even expand”. The majority view said that “The Constitution makers knew that
\nParliament could be competent to make amendments in those rights (meaning thereby
\nfundamental rights) so as to meet the challenge of the problem which may arise in the
\ncourse of socio economic progress and the development of the country”.\n<\/p>\n
802. The minority view in Sajjan Singh case doubted the correctness of the unanimous
\nview in Shankari Prasad case. The doubt was on a question as to whether fundamental
\nrights could be abridged by exercise of power under Article 368. The minority view in
\nSajjan Singh case was that the rights of society are made paramount and are placed above
\nthose of the individual. But the minority view was also that though fundamental rights
\ncould be restricted under Clause (2) to (6) of Article 19 there could be no “removal or
\ndebilitation” of such rights.\n<\/p>\n
803. In Golak Nath case the Punjab Security of Land Tenures Act, 1953 was challenged
\nas violative of fundamental rights and as not being protected by the Constitution First
\nAmendment Act, 1951, the Constitution Fourth Amendment Act, 1955 and the
\nConstitution Seventeenth Amendment Act, 1964. The validity of the Mysore Reforms
\nAct, 1962 as amended by Act 14 of 1965 was also challenged on the same grounds. The
\nPunjab Act and the Mysore Act were included in the Ninth Schedule. It was common
\ncase that if the Seventeenth Amendment Act adding the Punjab Act and the Mysore Act
\nin the Ninth Schedule was valid the two Acts could not be impugned on any ground.\n<\/p>\n
804. The majority decision of this Court in Golak Nath case was that an amendment of
\nthe Constitution was law within the meaning of Article 13(2). There were two reasonings
\nin the majority view arriving at the same conclusion. The majority view where Subba
\nRao, C.J., spoke was as follows: The power to amend the Constitution is derived from
\nArticles 245, 246 and 248 of the Constitution and not from Article 368. Article 368 deals
\nonly with procedure. Amendment is a legislative process. Amendment is law within the
\nmeaning of Article 13. Therefore, if an amendment takes away or abridges rights
\nconferred by Part III of the Constitution it is void. The Constitution First Amendment
\nAct, the Constitution Fourth Amendment Act and the Constitution Seventeenth
\nAmendment Act abridged the scope of fundamental rights. On the basis of earlier
\ndecisions of this Court the Constitution Amendment Acts were declared to be valid. On
\nthe application of the doctrine of prospective over-ruling the amendments will continue to
\nbe valid. Parliament will have no power from the date of this decision (meaning thereby
\nthe decision in Golak Nath case) to amend any of the provisions of Part III of the
\nConstitution so as to take away or abridge the fundamental rights. The Constitution
\nSeventeenth Amendment Act holds the field. Therefore, the Punjab Act and the Mysore
\nAct cannot be questioned.\n<\/p>\n
805. The concurring majority view of Hidayatullah, J. was this. The fundamental rights
\nare outside the amendatory process if the amendment seeks to abridge or take away any
\nof the rights. The First, the Fourth and the Seventh Amendment Acts being Part of the
\nConstitution by acquiescence for a long time cannot be chellenged. These Constitution
\nAmendment Acts contain authority for the Seventeenth Amendment Act. Any further
\ninroad into fundamental lights as they exist on the date of the decision will be illegal and
\nunConstitutional unless it complies with Part III in general and Article 13(2) in particular.
\nThe constituent body will have to be Convened for abridging or taking away fundamental
\nrights. The Punjab Act and the Mysore Act are valid not because they are included in the
\nNinth Schedule of the Constitution but because they are protected by Article 31A and the
\nassent of the President.\n<\/p>\n
806. The two views forming the majority arrived at the same conclusion that an
\namendment of the Constitution being law within the meaning of Article 13(2) would be
\nunConstitutional if such an amendment abridged any fundamental right. The leading
\nmajority view did not express any final opinion as to whether fundamental rights could be
\nabridged by Parliament exercising its residuary power and calling a Constituent
\nAssembly “for making a new Constitution or radically changing it”. The concurring
\nmajority view held that the fundamental rights could be abridged by suitably amending
\nArticle 368 to convoke Constituent Assembly. The concurring majority view was that a
\nConstituent Assembly could be called by passing a law under Entry 97 of List I and then
\nthat Assembly would be able to abridge or take away fundamental rights.\n<\/p>\n
807. The minority view of five learned Judges expressed in 3 judgments as against the
\nmajority view of six learned Judges in Golak Nath case was this.\n<\/p>\n
808. Wanchoo, J. spoke for himself and two concurring learned Judges as follows.
\nArticle 368 contains both the power and the procedure for amendment of the
\nConstitution. It is incomprehensible that the residuary power of Parliament will apply to
\namendment of the Constitution when the procedure for amendment speaks of amendment
\nby ratification by the States. When an entire part of the Constitution is devoted to
\namendment it will be more appropriate to read Article 368 as containing the power to
\namend because there is no specific mention of amendment in Article 248 or in any Entry
\nof List I. The Constitution is the fundamental law and without express power to affect
\nchange legislative power cannot effect any change in the Constitution. Legislative Acts
\nare passed under the power conferred by the Constitution. Article 245 which gives power
\nto make law for the whole or any part of India is subject to the provisions of the
\nConstitution. If, however, power to amend is in Article 248 read with the residuary Entry
\nin List I that power is to be exercised subject to the Constitution and it cannot change the
\nConstitution which is the fundamental law. It is because of the difference between the
\nfundamental law and the legislative power under the Constitution that the power to
\namend cannot be located in the Residuary Entry which is law making power under the
\nConstitution.\n<\/p>\n
809. Article 368 confers power on Parliament subject to the procedure provided therein
\nfor amendment of any provision of the Constitution, It is impossible to introduce in the
\nconcept of amendment, any idea of improvement. The word “amendment” must be given
\nits full meaning. This means that, by amendment an existing Constitution or law can be
\nchanged. This change can take the form either of addition to the existing provisions, or
\nalteration of existing provisions and their substitution by others or deletion of certain
\nprovisions altogether. An amendment of the Constitution is not an ordinary law made
\nunder the powers conferred under Chapter I of Part XI of the Constitution, and therefore,
\nit cannot be subject to Article 13(2). It is strange that the power conferred by Article 368
\nwill be limited by putting an interpretation on the word “law” in Article 13(2) which will
\ninclude Constitutional law also. The possibility of the abuse of any power has no
\nrelevance in considering the question about the existence of the power itself. The power
\nof amendment is the safety valve which to a large extent provides for stable growth and
\nmakes violent revolution more or less unnecessary.\n<\/p>\n
810. The two other supporting minority views were these. Bachawat, J. arrived at these
\nconclusions. No limitation on the amending power can be gathered from the language of
\nArticle 368. Therefore, each and every part of the Constitution may be amended under
\nArticle 368. The distinction between the Constitution and the laws is so fundamental that
\nthe Constitution is not regarded as a law or a legislative Act. It is because a Constitution
\nAmendment Act can amend the Constitution that it is not a law and Article 368 avoids all
\nreference to law making by Parliament. As soon as a Bill is passed in conformity with
\nArticle 368 the Constitution stands amended in accordance with the terms of the Bill.
\nAmendment or change in certain Articles does not mean necessarily improvement.\n<\/p>\n
811. Ramaswami, J. expressed these views. The definition of law in Article 13(3) does
\ninclude in terms a Constitutional amendment though it includes any ordinance, order,
\nbye-law, rule, regulation, notification, custom or usage. The language of Article 368 is
\nperfectly general and empowers Parliament to amend the Constitution without any
\nexception whatever. If it had been intended by the Constitution makers that the
\nfundamental righto guaranteed under Part III should be completely outside the scope of
\nArticle 368 it is reasonable to assume that they would have made an express provision to
\nthat effect. The expression “fundamental” does not lift the fundamental rights above the
\nConstitution itself. In a matter of Constitutional amendment it is not permissible to
\nassume that there will be abuse of power and then utilise it as a test for finding out the
\nscope of amending power.\n<\/p>\n
812. The majority view in Golak Nath case was that an amendment of the Constitution
\npursuant to Article 368 is law within the meaning of Article 13(2), and, therefore, an
\namendment of the Constitution abridging fundamental rights will be void. The majority
\nview was on the basis that there was conflict between Article 13(2) and Article 368 and
\nthis basis was the result of the nature and quality of fundamental rights in the scheme of
\nthe Constitution.\n<\/p>\n
813. It is, therefore, to be seen at the threshold as to whether there is any conflict between
\nArticle 13(2) and Article 368, namely, whether amendment of Constitution is law within
\nthe meaning of law in Article 13(2). Article 368 provides in clear and unambiguous terms
\nthat an amendment bill after compliance with the procedure stated therein and upon the
\nPresident giving assent to such bill the Constitution shall stand amended in accordance
\nwith the terms of the bill. This Constitutional mandate does not admit or provide any
\nscope for any conflict with any other Article of the Constitution. This is the fundamental
\nlaw. No other Article of the Constitution has limited its scope. The moment the President
\ngives his assent to an amendment bill the amendment becomes a part of the Constitution.
\nThere cannot be a law before the assent of the President. Therefore, the validity of any
\nsuch supposed law cannot arise. An amendment of the Constitution becomes a part of the
\nfundamental law. The legality of an amendment is no more open to attack than of the
\nConstitution itself. The opening part of amended Article 368, viz., “An Amendment of
\nthis Constitution may be initiated” and its concluding part before the proviso, viz., “The
\nConstitution shall stand amended” show clearly that the whole Constitution can be
\namended and no part of the Constitution is excluded from the amendment. Herein lies the
\nvital distinction between the Constitution and the ordinary law.\n<\/p>\n
814. The distinction lies in the criterion of validity. The validity of an ordinary law can be
\nquestioned. When it is questioned it must be justified by reference to a higher law. In the
\ncase of the Constitution the validity is inherent and lies within itself. The validity of
\nConstitutional law cannot be justified by reference to another higher law. Every legal rule
\nor norm owes its validity to some higher legal rule or norm. The Constitution is the basic
\nnorm. The Constitution generates its own validity. It is valid because it exists. The
\nConstitution is binding because it is the Constitution. Any other law is binding only if and
\nin so far as it is in conformity with the Constitution. The validity of the Constitution lies
\nin the social fact of its acceptance by the community. The Constitutional rules are
\nthemselves the basic rules of the legal system. The Constitution prevails over any other
\nform of law not because of any provision to that effect either in the Constitution or else
\nwhere but because of the underlying assumption to that effect by the community. If
\nParliament passes a law under any of the items in the Union List abridging a fundamental
\nright and also provides in that law itself that it shall not be invalid notwithstanding
\nanything in Article 13 or Part III of the Constitution, yet the law made by Parliament will
\nbe invalid to the extent of its inconsistency with Part III of the Constitution. It will be
\ninvalid because Article 13 occurs in the Constitution which is supreme. The impugned
\nAct cannot enact that it will be valid notwithstanding the Constitution.\n<\/p>\n
815. The real distinction is that Constitutional law is the source of all legal validity and is
\nitself always valid. Ordinary law on the other hand must derive its validity from a higher
\nlegal source, which is ultimately the Constitution. Law in Article 13(2) of the
\nConstitution could only mean that law which needs validity from a higher source and
\nwhich can and ought to be regarded as invalid when it comes in conflict with higher law.
\nIt cannot possibly include a law which is self validating and which is never invalid. The
\ndefinition of law in Article 13 enumerates more or less exhaustively all forms of law
\nwhich need validation from higher source and which are invalid when they are in conflict
\nwith the Constitution. The definition does not mention Constitutional amendment. It is
\nbecause an amendment being the Constitution itself can never be invalid. An amendment
\nis made if the procedure is complied with. Once the procedure is complied with it is a
\npart of the Constitution,\n<\/p>\n
816. The expression “law” has been used in several Articles in Part III of the
\nConstitution. These are Articles 17, 19 Clauses (2) to (6), 21, 22, 25, 26, 31, 33, 34 and\n<\/p>\n
35. To illustrate, Article 17 states that untouchability is abolished and its practice in any
\nform is forbidden. Article 17 also states that the enforcement of any disability arising out
\nof untouchability shall be an offence punishable in accordance with law. The word “law”
\nin Article 17 does not mean the Constitution. The Constitution leaves the matter of
\nenforcement and punishment to law.\n<\/p>\n
817. The foundation of the majority view in Golak Nath case that Article 13(2) takes in
\nConstitutional law within its purview is that an amendment is a legislative process and is
\nan exercise of legislative power. The majority relied on the decision in McCawley v. The
\nKing (1920) A.C. 691 and the Bribery Commissioner v. Pedrick Ranasinghe 1965 A.C.
\n172 in support of the view that there is no distinction between ordinary legislation and
\nConstitutional amendment. The basis of the unanimous decision in Shankari Prasad case
\nwas on the distinction between legislative power and the constituent power. Therefore,
\nthe majority view in Golak Nath case overruled the view in Shankari Prasad case. Article
\n13(2) expressly declares that law taking away or abridging the rights conferred by Part III
\nshall be void. This principle embodies the doctrine of ultra vires in a written Constitution.
\nThe observation of Kania, C.J. in A.K. Gopalan v. The State of Madras<\/a> 1950 S.C.R. 88
\nthat Article 13(2) was introduced ex majore cautela because even if Article 13 were not
\nthere any law abridging or taking away fundamental rights would be void to the extent of
\ncontravention or repugnancy with fundamental rights in Part III refers to the doctrine of
\nultra vires which is a necessary implication of our Constitution. Therefore, there is no
\ndistinction between Article 13(2) which expressly affirms the doctrine of ultra vires and
\nthe necessary implication of the doctrine of ultra vires which has been applied to every
\npart of our Constitution. If the express doctrine of ultra vires prevented an amendment of
\nPart III of the ‘Constitution contrary to its terms, equally an amendment of other parts of
\nthe Constitution contrary to their terms would be prevented by the implied doctrine of
\nultra vires. The result would be that an amendment of the Constitution which contravened
\nthe terms of the existing Constitution would be void. This would result in absurdity. That
\nis why Article 368 expressly provides for the amendment of the Constitution.\n<\/p>\n
818. Mr. Palkhivala on behalf of the petitioner submitted that Constitution amendment
\nwas law, within Article 13(2) and was void to the extent to which it contravened the
\nfundamental rights and Article 368 did not prevail over or override Article 13 for these
\nreasons. Reference was made to the form of oath in the Third Schedule which uses the
\nwords “Constitution as by law established”. This is said to mean that our Constitution
\nwas originally established by law and, therefore, every amendment thereto was likewise
\nto be established by law. Article 13(1) is also said to cover Constitutional law because
\nthough Article 395 repealed the Indian Independence Act, 1947 and the Government of
\nIndia Act 1935 the Constitutional laws of the Indian Princely States or some other
\nConstitutional laws of British India were in existence. Therefore, the word “Law” in
\nArticle 13(2) will also include Constitutional law. The word “law” in Article 13(2) will in
\nits ordinary sense embrace Constitutional law, and there is no reason for reading the word
\n“law”, in a restricted sense to confine it to ordinary laws. The real question is not whether
\nthere are any words of limitation in Articles 368 but whether there are any words of
\nlimitation in Article 13(2). It was amplified to mean if a limitation has to be read in either
\nof the two Articles 368 and 13(2) there is no reason why it should be read in such a way
\nas to enable parliament to take away or abridge fundamental rights.\n<\/p>\n
819. In Article 368 the word “law” is not used at all. Consequently the language of
\nArticle 368 raises no question about the applicability of Article 13(2). It is inconceivable
\nthat Constitutional laws of Indian Princely States or Constitutional laws of British India
\nexist as Constitutional laws after the coming into existence of our Constitution. Our
\nConstitution is the only fundamental law. All other laws which continue under our
\nConstitution are ordinary laws. The fundamental error in including amendment of the
\nConstitution in law under Article 13(2) is by overlooking the vital difference between the
\nconstituent and the legislative powers and in wrongly equating these powers. The
\ndefinition of “State” in Article 12 includes Parliament. Part V of the Constitution contains
\nprovisions relating to the powers of the three organs of the Union Government. Chapter II
\nof Part V relates to the legislative power of Parliament. Under Article 79 Parliament is
\nthe Union Legislature provided for by the Constitution. Therefore, law in Article 13(2)
\nmust mean a law of Parliament functioning under Chapter II of Part V. It cannot mean the
\nConstitution itself or an amendment of the Constitution. The reason is that the
\nConstitution with its amendment is the supreme authority and the three organs of the
\nState derive their powers from this supreme authority.\n<\/p>\n
820. The word “law” when used in relation to Constitutional law which is fundamental
\nlaw and ordinary law is not a mere homonym. If the word “law” here is not a mere
\nhomonym then it is a mistake to think that all the instances to which it is applied must
\npossess either a single quality or a single set of qualities in common. There is some
\ngeneral test or criterion whereby the rules of the fundamental law or the rules of the
\nsystem of ordinary laws are tested and identified. When the word “law” is spoken in
\nconnection with Constitutional law it cannot have the same meaning as ordinary law. It is
\nnot arbitrary to use the word “law” in relation to Constitutional law in spite of its
\ndifference from ordinary law.\n<\/p>\n
821. Mr. Palkhivala contended that Constitutional laws of Princely States and of British
\nIndia prior to our Constitution survived as laws in force under Article 372. Article 372
\nbecame necessary to make a provision similar to Section 292 of the Government of India
\nAct, 1935 following the repeal of the 1935 Act and the Indian Independence Act, 1947.
\nThe purpose of Article 372 is to negative the possibility of any existing law in India being
\nheld to be no longer in force by reason of the repeal of the law authorising its enactment.
\nA saving clause of the type of Article 372 is put in to avoid challenge to laws made under
\nthe repealed Constitution. The total volume of law in the then British India had the legal
\nauthority up to 14 August 1947 by reason of the Government of India Act 1935. The
\nGovernment of India Act 1935 with adaptations and the Indian Independence Act 1947
\npreserved the authority of those laws upto 25 January 1950. In so far as it is indisputable
\nthat the Government of India Act, 1935 and the Indian Independence Act, 1947 were
\nrepealed, the repeal of those Acts was repeal of the Constitutional law represented by
\nthose Acts. By our Constitution there was a repeal of all other Constitutional laws
\noperating in our country. There was repeal of “Constitution” in Princely States.\n<\/p>\n
822. A distinction arises between the provisions of a Constitution which are described as
\nConstitutional law and provisions of a statute dealing with a statute which is treated to
\nhave Constitutional aspects. An example of the latter type is a statute which provides for
\nthe judicature. Mr. Seervai rightly said that the two distinct senses of Constitutional law
\nare mixed up in the contention of Mr. Palkhivala. In the first sense, Constitutional law is
\napplicable to a provision of the Constitution, and in the second sense, to a law enacted
\nunder the Constitution dealing with certain classes of subject matter. Laws of the second
\nclass fluctuate. An amendment of the Constitution becomes a part of the Constitution
\nitself. Mr. Seervail rightly contended that in order to show that law in Article 13(2)
\nincludes amendment of the Constitution it is also necessary to show that the expression
\n“laws in force” in Article 13(1) includes Constitution amendment or the Constitution
\nitself It is impossible to accept the submission that the word “law” in Article 13(2)
\nincludes the Constitution. The Constitution itself cannot include the Constitution. It is the
\nConstitution which continues the laws in force. Therefore, law in Article 13 is law other
\nthan the Constitution and a fortiori it is other than amendment to the Constitution.\n<\/p>\n
823. In non-British territory on the Constitution coming into force the Constitution of
\nPrincely States lost its character as Constitutional law in the strict sense. It is in that strict
\nsense that Wanchoo, J. rightly said in Golak Nath case that on our Constitution coming
\ninto existence no other Constitutional law survived. Article 393 of our Constitution says
\nthat the Constitution may be called the “Constitution of India”. The Preamble recites that
\nthe People in the Constituent Assembly gave this Constitution meaning thereby the
\nConstitution of India. Therefore, the people gave themselves no other Constitution. All
\nother laws whatever their previous status as strict Constitutional law became subordinate
\nlaws subject to the provisions of our Constitution and this position is clear from the
\nlanguage of Article 372.\n<\/p>\n
824. In a broad sense law may include the Constitution and the law enacted by the
\nlegislature. There is however a clear demarcation between ordinary law in exercise of
\nlegislative power and Constitutional law which is made in exercise of constituent power.
\nTherefore, a power to amend the Constitution is different from the power to amend
\nordinary law. It was said by Mr. Palkhivala that legislative power is power to make law
\nand constituent power is the power to make or amend Constitutional law and since law in
\nits ordinary sense, includes Constitutional law the legislative power is the genus of which
\nthe constituent power is the species. The difference between legislative and constituent
\npower in a flexible or uncontrolled Constitution is conceptual depending upon the subject
\nmatter. A Dog Act in England is prima facie made in exercise of legislative power. The
\nBill of Rights was made in the exercise of constituent power as modifying the existing
\nConstitutional arrangement But this conceptual difference does not produce different
\nlegal consequences, since the provisions of a Dog Act inconsistent with the earlier
\nprovisions of the Bill of Rights would repeal those provisions pro tanto. In a rigid or
\ncontrolled Constitution the distinction between legislative power and constituent power is
\nnot only conceptual but material and vital in introducing legal consequences. In a
\ncontrolled Constitution it is not correct to say that legislative power is the genus of which
\nconstituent power is the species. The question immediately arises as to what the
\ndifferentia is which distinguishes that species from other species of the same genus. It
\nwould be correct to say that the law making power is the genus of which legislative
\npower and constituent power are the species. The differentia is found in the different
\nprocedure prescribed for the exercise of constituent power as distinguished from that
\nprescribed for making ordinary laws. The distinction between legislative power and
\nconstituent power is vital in a rigid or controlled Constitution, because it is that
\ndistinction which brings in the doctrine that a law ultra vires the Constitution is void,
\nsince the Constitution is the touchstone of validity and that no provision of the
\nConstitution can be ultra vires.\n<\/p>\n
825. The legislatures constituted under our Constitution have the power to enact laws on
\nthe topics indicated in Lists I to III in the Seventh Schedule or embodied specifically in
\ncertain provisions of the Constitution. The power to enact laws carries with it the power
\nto amend or repeal them. But these powers of legislatures do not include any power to
\namend the Constitution, because it is the Constituent Assembly which enacted the
\nConstitution and the status given by Article 368 to Parliament and the State legislatures,
\nis the status of a Constituent Assembly. The distinction between the power to amend the
\nConstitution and the ordinary power to enact laws is fundamental to all federal
\nConstitution. When Parliament is engaged in the amending process it is not legislating. It
\nis exercising a particular power which is sui generis bestowed upon it by the amending
\nclause in the Constitution. Thus an amendment of the Constitution under Article 368 is
\nconstituent law and not law within the meaning of Article 13(2) and law as defined in
\nArticle 13(3)(a).\n<\/p>\n
826. The procedure that Bill for amendment of the Constitution has to be introduced in
\neither House of Parliament and passed by both Houses does not alter the status of
\nParliament to amend the Constitution as a Constituent Assembly and does not assimilate
\nit to that of the Union legislature. At this stage it may be stated that in Shankari Prasad
\ncase it was said that law in general sense may include the Constitution and the procedure
\nof amendment is assimilated to ordinary legislative procedure. Assimilation of procedure
\ndoes not make both the procedure same. Nor are the two separate powers to be lost sight
\nof. The Constituent Assembly which has summoned on 19 December, 1946 to frame a
\nConstitution was also invested after independence with legislative power. It framed the
\nConstitution as the Constituent Assembly. It enacted ordinary laws as legislature. Under
\nArticle V of the American Constitution the Congress functions not as a legislature but as
\na Constituent Assembly. In Australia when a Bill for amendment has to be passed by
\nCommonwealth Parliament and then has to be submitted to the verdict of the electorate
\nthe process is not ordinary legislative process of the Commonwealth Parliament. In our
\nConstitution when the amendment falls within the proviso to Article 368 it requires that
\nthe amendment must be ratified by at least one half of the State legislatures and the
\nprocess is radically different from ordinary legislative procedure. The Union legislature
\nacting under Chapter II of Part V has no connection with the State legislatures. Therefore,
\nwhen amendment is affected under the proviso to Article 368 Parliament does not act as a
\nUnion legislature. The feature that in the passage of the bill for amendment of the
\nConstitution the House of Parliament has to adopt the procedure for ordinary legislation
\nhas little bearing. If the intention of the framers of the Constitution was to leave to the
\nUnion legislature the power to effect amendments of the Constitution it would have been
\nsufficient to insert a provision in Chapter II of Part V in that behalf without enacting a
\nseparate part and inserting a provision therein for amendment of the Constitution.\n<\/p>\n
827. Under Clause (e) of Article 368 the Article itself can be amended. Therefore, an
\namendment of Article 368 providing that provisions in Part III can be amended will be
\nConstitutional. If it was intended by Article 13(2) to exclude Part III altogether from the
\noperation of Article 368 Clause (e) would not have been enacted. The Constituent
\nAssembly thus enacted Article 368 so that the power to amend should not be too rigid nor
\ntoo flexible. Clause (s) of Article 368 requires an amendment to be ratified by not less
\nthan half the number of States. The title of Part XX and the opening words of Article 368
\nshow that a provision is being made for “amendment of this Constitution” which in its
\nordinary sense means every part of the Constitution. This would include Article 368
\nitself. There is no limitation imposed upon or deception made to the amendments which
\ncan be made. It is not permissible to add to Article 368 words of limitation which are not
\nthere.\n<\/p>\n
828. The initiative for an amendment of the Constitution is with Parliament and not with
\nthe States. A bill for amendment is to be introduced in either House of Parliament. Again,
\na bill must be passed by each House by not less than two thirds of the members present
\nand voting, the requisite quorum in each House being a majority of its total membership.
\nIn cases coming under the proviso the amendment must be ratified by the legislatures of
\nnot less than half the number of States. Ordinary legislative process is very different; A
\nbill initiating a law may be passed by majority of members present and voting at a sitting
\nof each House and at a joint sitting of House, the quorum for the meeting of either House
\nbeing one tenth of the total members of the House.\n<\/p>\n
829. The legislative procedure is prescribed in Articles 107 to 111 read with Article 100.
\nArticle 100 states “save as otherwise provided in the Constitution all questions at any
\nsitting of either House or joint sitting shall be determined by a majority of votes of the
\nmembers present and voting”. Though Article 368 falls into two parts of the Article is
\none integral whole as is clear from the words “the amendment shall also require to be
\nratified”. The first part of Article 368 requires that a bill must be passed in each House
\n(1) by majority of the total membership of that House and (2) by a majority of not less
\nthan two thirds of the members of that House present and voting. These provisions rule
\nout a joint sitting of either House under Article 108 to resolve the disagreement between
\nthe two Houses. Again the majority required to pass a bill in each House is not a majority
\nof members of that House present and voting as in Article 100 but a majority of the total
\nmembership of each House and a majority of not less than two thirds of the members of
\nthat House present and voting. These provisions are not only important safeguards when
\namending the Constitution, but also distinguishing features of Constituent power as
\nopposed to legislative power. Under the first part of unamended Article 368 when a bill is
\npassed by requisite majority of each House the bill must be presented for the President’s
\nassent.\n<\/p>\n
830. Parliament’s power to enact laws is not dependent on State legislature, nor can it be
\nfrustrated by a majority of State legislatures. The provisions in the proviso to Article 368
\nfor ratification by the legislatures of the State constitute a radical departure from the
\nordinary legislative process of Parliament, State legislative process of ratification cannot
\npossibly be equated with ordinary legislative process. If the bill is not ratified the bill
\nfails. If it is ratified it is to be presented to the President for his assent. If the President
\nassents the procedure prescribed by Article 368 gomes to an end and the consequence
\nprescribed comes into operation that the Constitution shall stand amended in accordance
\nwith the bill. But the result is not law, but a part of the Constitution and no court can
\npronounce any part of the Constitution to be invalid.\n<\/p>\n
831. The exercise of the power of ratification by the State legislatures is constituent
\npower and not ordinary law making power. It cannot be said that Article 368 confers
\nconstituent power under its proviso but not under the main part. If the procedure has been
\nfollowed the invalidity of an amendment cannot arise.\n<\/p>\n
832. The provisions in Articles 4, 169, paragraph 7(2) of the Fifth Schedule and
\nparagraph 21(2) of the Sixth Schedule were referred to for the purpose of showing that
\nthe word “law” is used in those provisions relating to amendments to the Constitution. It
\nis, therefore, said that similar result will follow in the case of all amendments. These four
\nprovisions confer on Parliament limited power of amendment. There are two features
\ncommon to all these provisions. First, they confer on Parliament a power to make a law
\nwhich inter alia provides for the specific class of amendments. Second, each of these
\nprovisions states that “no such law as aforesaid shall be deemed to be an amendment of
\nthe Constitution for the purpose of Article 368”. The power to amend under any of these
\nfour provisions is a specific power for specific amendments and not a legislative power
\ncontained in the Legislative List or Residuary Legislative List.\n<\/p>\n
833. The amendment under Article 4 follows a law providing for the formation of new
\nStates and alteration of areas, boundaries and names of existing States. It is obligatory on
\nParliament to make amendment of Schedules 1 and 4 and it is necessary to make
\namendments which are supplemental, incidental and consequential. In making such a law
\nin so far as it affects the State but not Union territory a special procedure has to be
\nfollowed.\n<\/p>\n
834. Under Article 169 which provides for the abolition or creation of a State legislative
\nCouncil Parliament has power to make a necessary law on a resolution being passed by
\nthe State Legislative Assembly for such abolition or creation by a majority of the
\nmembership of the Assembly and by majority of not less than two thirds of the members
\npresent and voting. It Parliament makes such a law that law must make the necessary
\namendments to the Constitution.\n<\/p>\n
835. Schedules 5 and 6 provide for the administration of the Scheduled and Tribal areas
\nwhich are governed by Part X and not by Part XI by which the Union and States are
\ngoverned. The Scheduleds provide a mode of governance of those areas which is
\nradically different from the Government of the States and the Union. Part X of the
\nConstitution unlike Part XI is not “subject to the provisions of this Constitution”.
\nParagraph 7 of Schedule 5 and paragraph 21 of Schedule 6 confer on Parliament a power
\nto amend the schedules by law but no special procedure is prescribed for making such a
\nlaw.\n<\/p>\n
836. No question relating to those four provisions, however arises in the present case. In
\nArticle 368 the word “law” is not based at all. These four provisions for amendment deal
\nwith matters in respect of which it was considered desirable not to impose requirements
\nof Article 368, and, therefore, it became necessary expressly to provide that such
\namendments shall not be deemed to be amendments of the Constitution for the purpose of
\nArticle 368. These four provisions indicate the distinction between the constituent power
\nand the legislative power. If the power of amendment was located in the residuary Entry
\nNo. 97 in the Union List it would not have been necessary to grant that power of
\namendment again in these four provisions. These four provisions indicate that the
\nConstitution makers intended to confer on Parliament power to make amendments in the
\nprovisions of the Constitution and having provided for a particular procedure to be
\nfollowed in respect of matters covered by those four provisions it conferred a general
\npower on Parliament to make an amendment to the other Articles after complying with
\nthe requirements of Article 368.\n<\/p>\n
837. The majority view in Golak Nath case said that Parliament could call a Constituent
\nAssembly either directly under the residuary power or pass a law under the Residuary
\nEntry to call a Constituent Assembly for amendment of fundamental rights. Of the two
\nviews forming the majority one view did not express any opinion as to whether such a
\nConstituent Assembly could take away or abridge fundamental rights but the other view
\nexpressed the opinion that such a Constituent Assembly could abridge fundamental
\nrights. The majority view in Golak Nath case was that Parliament is a constituted body
\nand not a constituent body and a constituted body cannot abridge or take away
\nfundamental rights. The majority view indicates that a constituent power was required to
\namend the fundamental rights.\n<\/p>\n
838. The majority view has totally ignored the aspect that constituent power is located in
\nArticle 368, and, therefore, amendment under the Article is not a law within the meaning
\nof Article 13(2). If Parliament is a constituted body as was said by the majority view in
\nGolak Nath case it would be difficult to hold that such a body could bring about a
\nConstituent Assembly. The well-known principle that what cannot be done directly
\ncannot be achieved indirectly will establish the basic infirmity in that majority view. If
\nfundamental rights can be abridged by Parliament calling a Constituent Assembly under
\nthe Residuary Entry such Constituent Assembly will be a body different from Parliament
\nand will frame its own rules of business and Article 368 cannot have any application.
\nThat will have a strange and startling result.\n<\/p>\n
839. In the scheme of the Constitution containing Article 368 a Constituent Assembly
\nwill be called extra Constitutional means and not one under the Constitution. A
\nConstitution can be amended only in accordance with the process laid down in the
\nConstitution. No other method is Constitutionally possible than that indicated in the
\nprovision for amendment of the Constitution. Once the Constitution has vested the power
\nto amend in the bodies mentioned therein that is the only body for amending the
\nConstitution. The people who gave the Constitution have expressed how it is to be
\nchanged.\n<\/p>\n
840. The distinction between constituent and legislative power is brought out by the
\nfeature in a rigid Constitution that the amendment is by a different procedure than that by
\nwhich ordinary laws may be altered. The amending power is, therefore, said to be a re-
\ncreation of the Constituent Assembly every time Parliament amends re-creation in
\naccordance with Article 368.\n<\/p>\n
841. The two decisions in McCawley v. The King 1920 A.C. 691 and The Bribery
\nCommissioner v. Pedrick Ranasinghe 1965 A.C. 172 on which the majority view in
\nGolak Nath case relied to hold that amendment to the Constitution is an ordinary
\nlegislative process do not support that conclusion. The difference between flexible or
\nuncontrolled and rigid or controlled Constitutions in regard to amendment is that there
\nmay be special methods of amendment in rigid or controlled Constitution. In a rigid
\nConstitution amendment is not by exercise of ordinary legislative power. The power to
\namend is, therefore, described in a rigid Constitution as constituent power because of the
\nnature of the power. In a flexible Constitution the procedure for amendment is the same
\nas that of making ordinary law. A Constitution being uncontrolled the distinction between
\nlegislative and constituent powers gets obliterated because any law repugnant to the
\nConstitution pro tanto repeals a Constitution as was held in McCawley case. Dicey in his
\nLaw of the Constitution (10th Ed.) illustrates the view by his opinion that if the Dentists
\nAct said anything contrary to the Bill of Rights which can be described as Constitutional
\ndocument the Dentists Act would prevail. In a flexible or unwritten Constitution the word
\nConstitutional law is imprecise as it is used in respect of subject matter of law, e.g. a law
\ndealing with the legislature. In a rigid or written Constitution whatever is in the
\nConstitution would be the law of the Constitution.\n<\/p>\n
842. In McCawley case the validity of the appointment of McCawley as a Judge of the
\nSupreme Court of Queensland was challenged as void on the allegation that Section 6
\nSub-section (6) of the Industrial Arbitration Act of 1916 was contrary to the provisions of
\nthe Constitution of Queensland 1867. The Industrial Arbitration Act of 1916 by Section 6
\nSub-section (6) authorised the Governor to appoint any Judge of the Court of Industrial
\nArbitration to be a Judge of the Supreme Court of Queensland and provided that a Judge
\nso appointed shall have the jurisdiction of both offices and shall hold office as a Judge of
\nthe Supreme Court during good behaviour. The sub-section further provided that Judge of
\nthe Court of Industrial Arbitration shall hold office for seven years. The Governor in
\nCouncil by commission reciting Section 6 Sub-section (6) appointed McCawley who was
\na Judge and the President of the Court of Industrial Arbitration to be a Judge of the
\nSupreme Court during good behaviour. By Sections 15 and 16 of the Constitution of
\n1867 the period during which Judges of the Supreme Court were to hold office was
\nduring good behaviour. The contention was that the appointment of McCawley under the
\nIndustrial Arbitration Act 1916 for a limited period of seven years was invalid since the
\nAct was inconsistent with the Constitution Act 1867 and further that the Act of 1916
\ncould not repeal or modify the provisions of the Constitution Act.\n<\/p>\n
843. The Privy Council held that the Legislature of Queensland had power both under the
\nColonial Laws Validity Act 1865 Section 5 and apart therefrom under Clauses 2 and 22
\nof the Order-in-Council of 1859, Section 7 of the Act 18 & 19 Vict. c. 54 and Sections 2
\nand 9 of the Constitution Act of 1867 to authorise the appointment of a Judge of the
\nSupreme Court for a limited period. Section 7 of the Act 18 & 19 Vict. c. 54 intended an
\norder in Council to make provision for the government of the Colony and for the
\nestablishment of a legislature. The Order-in-Council 1859 by Clause 2 gave full power to
\nthe legislature of the Colony to make further provision in that behalf. The Order-in-
\nCouncil of 1859 by Clause 22 gave the legislature full power and authority from time to
\ntime to make laws altering or repealing all or any of the provisions of this Order in the
\nsame manner as any other laws for the good Government of the colony.\n<\/p>\n
844. Section 5 of the Colonial Laws Validity Act gave the legislature full power to alter
\nthe Constitution.\n<\/p>\n
845. Section 2 of the Constitution Act of 1867 gave the legislature power to make laws
\nfor the peace, welfare and good government of the Colony. Section 9 of the Constitution
\nrequired a two thirds majority of the legislative Council and Legislative Assembly as a
\ncondition precedent of the validity of legislation altering the Constitution of the
\nLegislative Council. Section 6 Sub-section (6) which authorised an appointment as a
\nJudge of the Supreme Court only during the period during which the person appointed
\nwas a Judge of the Court of Industrial Arbitration was found to be valid legislation. It was
\nfound that the Constitution of Queensland was a flexiable as distinct from rigid
\nConstitution. Power to alter the Constitution by ordinary law was also said to exist both
\nin virtue of the Colonial Laws Validity Act, 1865 Section 5 and independently of that Act
\nin virtue of Clause 22 of the Order in Council 1859 and Sections 2 and 9 of the
\nConstitution Act of 1867.\n<\/p>\n
846. The decision in McCawlay case shows that unless there is a special procedure
\nprescribed for amending any part of the Constitution the Constitution is uncontrolled and
\ncan be amended by the manner prescribed for enacting an ordinary law and therefore a
\nsubsequent law inconsistent with the Constitution would pro tanto repeal the
\nConstitution. The decision also established that a Constitution largely or generally
\nuncontrolled may contain one or more provisions which prescribe a different procedure
\nfor amending the provisions of the Constitution. If this is prescribed the procedure for
\namendment must be strictly followed.\n<\/p>\n
847. The legislature of Queensland was found to be master of its own household except
\nin so far as its powers were restricted in special cases. No such restriction was established
\nin the case before the Privy Council. The legislature had plenary power there. The
\nlegislature was not required to follow any particular procedure or to comply with any
\nspecified conditions before it made any law inconsistent with any of the provisions of
\nConstitutional document.\n<\/p>\n
848. The contention of the respondent in McCawley case was that the Constitution of
\nQueensland was controlled and that it could not be altered merely by enacting legislation
\ninconsistent with its Articles but that it could be altered by an Act which in plain and
\nunmistakable intention of the legislature to alter consequently gave effect to that intention
\nby operative provisions. The Judicial Committee thought this Constitution would amount
\nto a Constitution which was neither controlled nor uncontrolled. It was not controlled
\nbecause the future generation could by a merely formal Act correct it at pleasure. It was
\nsaid to be not uncontrolled because the framers prescribed to their successors a particular
\nmode by which they are allowed to effect Constitutional changes. Section 22 of the Order
\nin Council conferred power and authority in legislature from time to time to make laws
\naltering or repealing all or any of the provisions of the Order in Council in the same
\nmanner as any other laws for the good government of the country. The Constitution Act
\nof 1867 was contended to enact certain fundamental organic provisions of such a nature
\nas to render the Constitution controlled. It was found impossible to point to any document
\nor instruction giving or imposing on the Constitution of Queensland such a quality. The
\ndecision in McCawley case related to uncontrolled Constitution which gave the
\nlegislature full power to make laws except on one subject and, therefore, a law made by
\nthe legislature under such a Constitution could pro tanto conflict with and repeal the
\nConstitution. That is not our Constitution.\n<\/p>\n
849. In Ranasinghe case the validity of the appointment of Bribery Tribunal was
\nchallenged. The Supreme Court of Ceylon took the view that the Bribery Tribunal was
\nnot appointed by the Judicial Service Commission in accordance with the provisions of
\nSection 55 of the Ceylon Constitution Order in Council. It was, therefore, not lawfully
\nappointed. It was common ground that the appointment of the Bribery Tribunal was not
\nin accordance with Section 55 of the Ceylon Constitution Order in Council, 1946. Section
\n55 vested in the Judicial Service Commissioner the appointment, dismissal and
\ndisciplinary control of Judicial Officers, viz., Judges of lesser rank. The removal of
\nJudges of the Supreme Court could be by the Governor General on an address of the
\nSenate and the House of Representatives.\n<\/p>\n
850. Section 29 of the Ceylon (Constitution) Order in Council provided in Sub-sections
\n(1), (2), (3) and (4) as follows:\n<\/p>\n
29(1) Subject to the provisions of this Order, Parliament shall have power
\nto make laws for the peace, order and good government of the Island.
\n(2) No such law shall-(a) prohibit or restrict the free exercise of any
\nreligion;\n<\/p>\n
(3) Any law made in contravention of Sub-section (2) of this section shall,
\nto the extent of such contravention, be void.\n<\/p>\n
(4) In the exercise of its powers under this section Parliament may amend
\nor repeal any of the provisions of this Order, or of any other Order of Her
\nMajesty in Council in its application to the Island:\n<\/p>\n
Provided that no Bill for the amendment or repeal of any of the provisions
\nof this Order shall be presented for the Royal Assent unless it has
\nendorsed on it a certificate under the hand of the Speaker that the number
\nof votes cast in favour thereof in the House of Representatives amounted
\nto not less than two-thirds of the whole number of Members of the House
\n(including those not present).\n<\/p>\n
Every certificate of the Speaker under this sub-section shall be conclusive
\nfor all purposes and shall not be questioned in any court of law.\n<\/p>\n
851. The Judicial Committee found that there was a conflict between Section 55 of the
\nCeylon Constitution Order and Section 41 of the Bribery Amendment Act. The Privy
\nCouncil found that Section 29(4) of the order was attracted but the requirements of
\nSection 29(4) had not been complied with and, therefore, the appointment of the Bribery
\nTribunal was invalid. The certificate of the Speaker under the proviso to Section 29(4) of
\nthe Ceylon Constitution Order was an essential part of the legislative process. There was
\nno such certificate in the case of the legislation under which the appointment of the
\nimpugned Tribunal was made. The Judicial Committee said that a legislature has no
\npower to ignore the conditions of law making that are imposed by the regulating
\ninstrument. This restriction exists independently of the question whether the legislature is
\nsovereign as the legislature of Ceylon or whether the Constitution is uncontrolled as
\nhappened in McCawley case with regard to the Constitution of Queensland.\n<\/p>\n
852. The Judicial Committee said “A Constitution can, indeed, be altered or amended by
\nthe legislature, if the regulating instrument so provides and if the terms of those
\nprovisions are complied with; and the alteration or amendment may include the change or
\nabolition of these provisions. But the proposition which is not acceptable is that a
\nlegislature, once established, has some inherent power derived from the mere fact of its
\nestablishment to make a valid law by the resolution of a bare majority which its own
\nconstituent instrument has said shall not be valid law unless made by a different type of
\nmajority or by a different legislative process”.\n<\/p>\n
853. It was contended that just as the legislature of the Colony of Queensland had power
\nby mere majority vote to pass an Act that was inconsistent with the provisions of the
\nexisting Constitution of that Colony as to the tenure of Judicial Office so the legislature
\nof Ceylon had no less a power to depart from the requirements of a section such as
\nSection 55 of the Ceylon Constitution, notwithstanding the wording of Sections 18 and
\n29(4). Section 18 in effect says that a legislation can be passed by a majority of votes
\nsubject to the provisions in Section 29(4) of the Constitution. The Judicial Committee
\nsaid that in McCawley case the legislature had full power to make laws by a majority
\nexcept upon one subject that was not in question and the legislation was held to be valid
\nbecause it was treated as pro tanto an alternation of the Constitution which was neither
\nfundamental in the sense of being beyond change nor so constituted as to require any
\nspecial process to pass a law upon the topic dealt with. The word “fundamental” in the
\nsense of “being beyond change” refers to express limitations as to power or manner and
\nform of change. These words do not mean as Mr. Palkhivala contended that there are
\nfundamental features of the Constitution which cannot be amended.\n<\/p>\n
854. The legislature purported to pass a law which being in conflict with Section 55 of
\nthe Order in Council must be treated if it is to be valid, as an implied alteration of the
\nConstitutional provisions about the appointment of judicial officers. Such alterations
\ncould only be made by laws which complied with the special legislative procedure laid
\ndown in Section 29(4). The provisions in Section 29(4) were found not to confer on the
\nCeylon legislature the general power to legislature so as to amend the Constitution by
\nordinary majority resolution which the Queensland legislature was found to have under
\nSection 2 of the Queensland Constitution Act\n<\/p>\n
855. Ranasinghe case shows that Parliament which by its own Act imposed procedural
\nconditions upon the legislative process is no more limited or non-sovereign than a
\nlegislature which has such conditions imposed on it by the Constitutional instrument. A
\nConstitutional instrument which places procedural restraints upon the forms of law
\nmaking places the legislature under a compulsion to obey them. In McCawley case it was
\nsaid that the Colonial Legislature with plenary powers could treat the Constitutional
\ndocument which defined its powers as if it were a Dog Act This proposition as a result of
\nRanasinghe case is narrowed to the extent that where provisions for procedural special
\nmajority are laid down in the Constitutional document they cannot be treated as a
\nprovision in the Dog Act might be.\n<\/p>\n
856. These decisions indicate the distinction between procedural and substantive
\nlimitations on the legislative process. In Ranasinghe case the issue was one of personal
\nliberty in the sense that the respondent claimed the right not to be imprisoned except by a
\nvalid law. No question was raised about the right of religion protected by Sections 29(2)
\nand (3) of the Ceylon Constitution. It was also not the respondent’s case there that any
\nprovision was unamendable. It would be unusual for the Privy Council to say by way of
\nan obiter dictum that a provision was not amendable contrary to the respondent’s
\nsubmission. Though the Privy Council did not use the words “legislative and constituent”
\nin distinguishing ordinary law from law amending the Constitution, the Privy Council in
\nreferring to the Ceylon Constitution instrument showed that the familiar distinction is the
\nbasis of the judgment.\n<\/p>\n
857. The Privy Council is dealing with Section 29 took note of the special heading under
\nwhich Section 29 appears in the Constitution. That special heading is “legislative power
\nand procedure”. The opening words of Section 29 are that subject to the provisions of this
\norder Parliament shall have powers to make laws. These are similar to the opening words
\nin Article 245 of our Constitution. Section 18 of the Ceylon Constitution prescribes the
\nordinary legislative procedure for making laws by a bare majority unless otherwise
\nprovided for by the Constitution, which is to be found in Section 29(4) of the Ceylon
\nConstitution. Our Constitution in Article 100 makes an identical provision for ordinary
\nlegislative procedure. Section 29(2) confers rights of freedom of religion and Section
\n29(3) states that no laws shall be made prohibiting or restricting such freedom. Part III of
\nour Constitution contains among other fundamental rights, rights to freedom of religion.
\nSection 29(3) expressly makes laws in contravention of Section 29(2) void to the extent
\nof contravention. Article 13(2) of our Constitution expressly makes law which takes
\naway or abridges fundamental rights void to the extent of the contravention. Section
\n29(4) of the Ceylon Constitution dealing with the amendment of the Constitution does
\nnot expressly make void a law amending the Constitution.\n<\/p>\n
858. It follows from McCawley case and Ranasinghe case that a legislature has no power
\nto ignore the conditions of law making imposed upon it which regulate its power to make
\nlaw. The Ceylon legislature had no general power to legislate so as to amend its general
\npower by ordinary majority resolution such as Queensland legislature was found to have
\nunder Section 2 of the Queensland Constitution. Peace, order and good government in
\nSection 29(1) of the Ceylon Constitution is not the same as amendment contemplated in
\nSection 29(4) of the Ceylon Constitution. In Ranasinghe case the Judicial Committee
\nreferred to the social compact. The compact is this. The inhabitants of Ceylon accepted
\nthe Ceylon Constitution on the footing that the various rights conferred, liabilities
\nimposed and duties prescribed under the law cannot be altered in the ordinary course of
\nlegislation by a bare majority. But if all these were to be changed then such a change
\ncould only be made under the strongest safeguard of the amending process which in the
\ncase of Ceylon was not less than two-third of the absolute membership. These rights are
\nthe solemn compact. These valuable rights are conferred on the people. Under ordinary
\nlaw by ordinary majority they cannot be taken away.\n<\/p>\n
859. The absence of an express provision in Section 29(4) of the Ceylon Constitution that
\nan amendment of the Constitution in contravention of the terms of that sub-section shall
\nbe void need not support the conclusion that such an amendment was valid. Section 29(1)
\nof the Ceylon Constitution is expressed to be “subject to the provisions of this Order” and
\nany power under Section 29(4) is expressly subject to the proviso there. The Privy
\nCouncil held that the opening words of Section 29 introduced into the Constitution of
\nCeylon the necessarily implied doctrine of ultra vires. The proposition will apply directly
\nto the same opening words of our Article 245. The Privy Council accepted the distinction
\nmade in McCawlay case between controlled and uncontrolled Constitutions by
\nemphasising the observation in McCawley case with reference to Section 9 of the
\nQueensland Constitution. The description of Section 29(2) of the Ceylon Constitution as
\nan entrenched provision means that it can be amended but only by special procedure in
\nSection 29(4). That is the meaning of the word “entrenched”. This meaning alone is
\nconsistent with the clear language of the amending power and also with the decision.
\nSection 29(4) does not limit the sovereignty of the Ceylon legislature because the
\nlegislature can always pass the amendment after getting two-thirds majority and the
\ncertificate.\n<\/p>\n
860. Counsel for the respondent in Ranasinghe case stated that there was no limitation
\nexcept the procedure and even that limitation could be removed by amendment
\ncomplying with Sub-section (4). The Privy Council affirmed that position. There is
\nnothing to prevent by appropriate amendment a deletion of Section 29(4) of the Ceylon
\nConstitution which would then empower Parliament to achieve the power to amend by an
\nordinary majority. Section 29(1) is not legislative power alone but a composite power
\nwhen read along with Section 29(4) in the context of the Ceylon Constitution. It includes
\nboth legislative and constituent power. Sub-sections (2) and (3) of Section 29 are not the
\ngrant of power but limitation on power. Its terms show that limitation is at any rate on the
\nlegislative power of enacting laws contrary to Sub-sections (2) and (3) of Section 29. If
\nSection 29(1) is a composite legislative and constituent power and Sub-section (2) and
\n(3) are a restraint on legislative power the constituent power under Sub-section (4)
\nremains unaffected. The sequiter is that Section 29(4) is consistent only with the view
\nthat so far as amendment of Sub-sections (2) and (3) is concerned amendment is permited
\nand there is no limitation on constituent power under Section 29(4). The Privy Council
\ntook the widest view of the amending power. In fact the narrower view was not argued.\n<\/p>\n
861. Our Constitution in Article 13(2) by its express declaration with reference to law
\nand the State widely defined has no higher efficacy in rendering a law in contravention of
\nits terms void than the opening words of Article 245 have in rendering a law void in
\ncontravention of term mentioned therein. Therefore, in treating Article 13(2) as having
\nthat effect in regard to Constitutional amendment the majority judgment in Golak Nath
\ncase was inept. In rejecting the distinction between legislative and constitutent powers the
\nleading majority view in Golak Nath case was induced by the absence of the use of the
\nlabels but the same concepts were clearly indicated by the Privy Council by wholly
\ndescribing the characteristic features of legislative and constituent powers.\n<\/p>\n
862. If Article 368 had begun with a non-obstante clause it could not have been said that
\namendment under Article 368 would be law within the meaning of Article 13(2). The
\nAttorney General rightly said that there is no non-obstante clause in Article 368 because
\nof the quality of amending power and because the amending power is a constituent power
\nand not ordinary legislative power. This is the position of the amending clause in a
\nwritten Constitution. When the power under Article 368 is exercised Parliament acts as a
\nrecreation of Constituent Assembly. Therefore, such power cannot be restricted by or
\nwidened by any other provision. As soon as an amendment is made it becomes a part of
\nthe Constitution. An amendment prevails over the Article or Articles amended. The fact
\nthat Article 368 confers constitutent powers is apparent from the special conditions
\nprescribed in the Article. Those conditions are different from ordinary law making
\nprocess. Article 368 puts restraints on the ordinary law making process and thus confers
\nconstituent power. The Constituent Assembly was fully aware that if any limitation was
\nto be put on the amending power the limitation would have to be expressly provided for.
\nArticle 305 of the Draft Constitution provided reservation of seats for certain sections of
\npeople in the legislature for 10 years. This reservation was not accepted by the
\nConstituent Assembly. This shows that if the Drafting Committee or the Constituent
\nAssembly wanted to exclude fundamenal rights from the operation of Article 368
\ncorresponding to Article 304 in the Draft Constitution they could have expressly done so.\n<\/p>\n
863. In Ghulam Sarwar v. Union of India<\/a> (1967 2 S.C.R. 271 it was said there was a
\ndistinction between deprivation of fundamental rights by force of a Constitutional
\nprovision itself and such deprivation by an order made by President in exercise of a
\npower conferred on him under Constitutional provision. The dissenting view in Ghulam
\nSarwar case was that an order of the President was not a law within the meaning of
\nArticle 13(2). In Mohd. Yakub v. State of Jammu & Kashmir<\/a> (1968) 2 S.C.R. 227 the
\nmajority view of the Constitution Bench was that an order of the President under Article
\n359 was not law within the meaning of Article 13(2). There is no distinction between
\nArticle 358 and Article 359(1). Article 358 by its own force suspends the fundamental
\nrights guaranteed by Article 19. Article 359(1) on the other hand does not suspend any
\nfundamental rights of its own force but it gives force to order by the President declaring
\nsuspension of the enforcement of any fundamental right during the period of emergency.
\nIn Mohd. Yakub case it was said that it could not mean that an order under Article 359(1)
\nsuspending the enforcement of a particular fundamental right had still to be tested under
\nthe vary fundamental right which it suspended. Mohd. Yakub case establishes that the
\nexpression “law” in Article 13(2) is not all embracing in spite of the exclusive definition
\nof law in Article 13(3)(a).\n<\/p>\n
864. The word “law” appears in various Articles of our Constitution but not in Article\n<\/p>\n
368. The reason is that the power under Article 368 is not a power to make ordinary laws
\nunder the Constitution but is the constituent power. There could be no law within the
\nmeaning of Article 13(2) at any stage before the amendment became a part of the
\nConstitution under Article 368. There is no hiatus between an amendment being a law
\nand thereafter a part of the Constitution. Immediately upon the passage of the Bill for the
\namendment the Constitution stands amended.\n<\/p>\n
865. The historical background of Article 13(2) throws some light on the question as to
\nwhether Article 13(2) prevails over Article 368. On 17 March, 1947 the Constitutional
\nAdvisor Sir B.N. Rau had addressed a letter to the members of Central and Provincial
\nlegislatures. A questionnaire was annexed to that letter. Question No. 27 was “What
\nprovisions should be made regarding amendments to the Constitution”. A note was
\nappended to that question which will be found in Shiva Rao Framing of India’s
\nConstitution referred to as Shiva Rao Vol. II pp. 448-451. The methods of amendment of
\nConstitution in the United Kingdom, Canada, Australia, United States of America,
\nSwitzerland and Ireland were elucidated in that note. The note also drew attention that the
\nfact that in various Constitution express limitations were put on amending certain
\nprovisions of the Constitution. The portion of the note relating to the Constitution of
\nAustralia indicated such limitations.\n<\/p>\n
866. The draft report of the sub-Committee on fundamental rights dated 3 April 1947
\ncontained an annexure which dealt with fundamental rights. See Shiva Rao Vol. II p. 137
\nseq. Clause 2 of the annexure was as follows:\n<\/p>\n
Any law or usage in force within the territories of the Union immediately
\nbefore the commencement of this Constitution and any law which may
\nhereafter be made by the State inconsistent with the provisions of this
\nChapter\/Constitution shall be void to the extent of such inconsistency.\n<\/p>\n
867. The Constitutional Adviser suggested that the word “Constitution” was preferable to
\nthe word “chapter” because the entire Constitution was to prevail over law.\n<\/p>\n
868. On 23 April, 1947 the Advisory Committee on Fundamental Rights presented an
\ninterim report addressed to the President of the Constituent Assembly containing an
\nannexure providing for justiciable fundamental rights. See Shiva Rao Vol. II pp. 294-296
\nseq. Clause 2 of the Annexure to that report was as follows:\n<\/p>\n
All existing laws, notification, regulations, customs or usages in force
\nwithin the territories of the Union inconsistent with the rights guaranteed
\nunder this part of the Constitution shall stand abrogated to the extent of
\nsuch inconsistency nor shall the Union or any unit may make any law
\ntaking away or abridging any such right.\n<\/p>\n
869. Clause 2 of the annexure to the interim report was discussed in the Constituent
\nAssembly on 29 April, 1947. Shri K. Santhanam moved an amendment to Clause 2. The
\namendment was as follows : In Clause 2 for the words “nor shall the Union or any unit
\nmake any law taking away or abridging any such right” the following be substituted:
\n“Nor shall any such right be taken away or abridged except by an amendment of the
\nConstitution”. The amendment was accepted as will appear in Constituent Assembly
\nDebates Vol. III p. 416.\n<\/p>\n
870. In October, 1947 the Draft Constitution was prepared by the Constitutional Advisor.
\nClause 9(2) of the said Draft Constitution which later on corresponded to Article 13(2) of
\nour Constitution was as follows:\n<\/p>\n
Nothing in this Constitution shall be taken to empower the State to make
\nany law which curtails or taking away any of the rights conferred by
\nChapter II of this Part except by way of amendment of this Constitution
\nunder Section 232 and any law made in contravention of this sub-section
\nshall, to the extent of the Contravention, be void.\n<\/p>\n
871. It will be seen that Clause 9(2) in the Draft Constitution included the qualification
\n“except by way of amendment of the Constitution under Section 232”. Clause 232 in the
\nDraft Constitution prepared by the Constitutional Advisor became Article 304 in the
\nConstitution prepared by the Drafting Committee and eventually became Article 368 of
\nour Constitution. In Shiva Rao, Vol. III p. 325 it appears that the Drafting Committee on
\n30 October, 1947 at a meeting gave a note forming the minutes of that meeting that
\nClause 9(2) should be revised as follows:\n<\/p>\n
The State shall not make any law which takes away or abridges the rights
\nconferred by this Part and any law made in contravention of this sub-
\nsection shall, to the extent of the contravention, be void.\n<\/p>\n
872. No reason is recorded in these minutes as to why the resolution adopted by the
\nConstituent Assembly by passing Shri Santhanam’s amendment was disregarded. No
\nindication was given in the forwarding letter of Dr. Ambedkar in the Note appended
\nthereto as to why the amendment of Shri Santhanam which had been accepted by the
\nConstituent Assembly was deleted. Nor does the Draft Constitution indicate either by
\nsidelines or in any other manner that the decision of the Constituent Assembly had been
\ndisregarded.\n<\/p>\n
873. This history of the formation and framing of Article 13(2) shows that the intention
\nof the Constitutent Assembly was that Article 13(2) does not control the Article relating
\nto the amending of the Constitution. It must be assumed that the Drafting Committee
\nconsisting of eminent men considered that an express exclusion of the amending Article
\nfrom the operation of the clause corresponding to Article 13(2) was unnecessary and the
\nfear that that Article would cover the amending Article was groundless. It also appears
\nthat no discussion took place after the Draft Constitution had been presented to the
\nConstituent Assembly by Dr. Ambedkar on the deletion or disregard of Shri Santhanam’s
\namendment. The history of Article 13(2) shows that the Constituent Assembly clearly
\nfound that it did not apply to an amendment of the Constitution.\n<\/p>\n
874. The distinction between constitutent and legislative power in a written Constitution
\nis of enormous magnitude. No provision of the Constitution can be declared void because
\nthe Constitution is the touchstone of validity. There is no touchstone of validity outside
\nthe Constitution. Every provision in a controlled Constitution is essential or so thought by
\nthe framers because of the protection of being amendable only in accordance with the
\nConstitution. Every Article has that protection. The historical background of Article
\n13(2) indicates that the Constitution-makers dealt separately with legislative power by
\nproviding for the same in Part XI and entrusted the constituent power to authorities
\nmentioned in Article 368 and that authority has the same power as the Constituent
\nAssembly because it has not put any fetter upon it. The draft Article 305 which provided
\nfor a limitation as to time for amendment of certain matters was eventually deleted. If the
\nframers of the Constitution wanted to forbid something they would say so.\n<\/p>\n
875. The vitality of the constituent power not only indicates that the Constitution is in the
\nwords of Maitland the suprema potestas but also the fact that the amending power is put
\nin a separate Article and Part of the Constitution establishing that it deals with a topic
\nother than legislative power and the power is meant to be exhaustive leaving nothing
\nuncovered. The vary fact that amending power is not put in any legislative power or is
\nnot attached to a subject which is the subject matter of legislative power leaving aside the
\nfour sets of provisions, namely, Articles 4, 169, paragraph 7 Schedule 5 and paragraph 21
\nSchedule 6 containing specific power of amendment shows that that amending power was
\nmeant to be exhaustive and plenary. If a power of amendment without any express
\nlimitation was given it was because a legal Constitutional way of bringing a change in the
\nConstitution was desirable or necessary. Otherwise there would be no legal way of
\neffecting the change. It cannot be attributed to the framers of the Constitution that they
\nintended that the Constitution or any part of it could be changed by unConstitutional or
\nillegal methods.\n<\/p>\n
876. If an amendment of the Constitution is made subject to Article 13(2) the necessary
\nconclusion then is that no amendment of the Constitution is possible. The opening words
\nof Article 245 which deals with legislative power indicate that any law made under
\nArticle 246(1) read with List I of the Seventh Schedule is subject to the limitations on
\nlegislative power imposed by all the Articles in the Constitution. These limitations cannot
\nbe altered or amended in exercise of legislative power, if the power of amendment is said
\nto be located in the Residuary Entry 97 in List I. The history of residuary power in the
\nGovernment of India Act, 1935 whose scheme was adopted in the Constitution shows
\nthat the topic of amendment was not only present to the mind of the Constitutent
\nAssembly but also that the Constituent power could not reside in the residuary power.\n<\/p>\n
877. The conclusions on the question as to whether Article 13(2) overrides Article 368
\nare these. Article 13(2) relates to laws under the Constitution. Laws under the
\nConstitution are governed by Article 13 (2). Article 368 relates to power and procedure
\nof amendment of the Constitution. Upon amendment of the Constitution the Constitution
\nshall stand amended. The Constitution is self validating and self executing. Article 13(2)
\ndoes not override Article 368. Article 13(2) is not a fundamental right. The Constitution
\nis the touchstone. The constituent power is sui generis. The majority view in Golak Nath
\ncase that Article 13(2) prevails over Article 368 was on the basis that there was no
\ndistinction between constituent and legislative power and an amendment of the
\nConstitution was law and that such law attracted the opening words of Article 245 which
\nin its turn attracted the provisions of Article 13(2). Parliament took notice of the two
\nconflicting views which had been taken of the unamended Article 368, took notice of the
\nfact that the preponderating judicial opinion, namely, the decisions in Shankari Prasad
\ncase Sajjan Singh case and the minority views of five learned Judges in Golak Nath case
\nwere in favour of the view that Article 368 contained the power of amendment and that
\npower was the constituent power belonging to Parliament Wanchoo, J. rightly said in
\nGolak Nath case that the power under Article 368 is a constituent power to change the
\nfundamental law, that is to say, the Constitution and is distinct from ordinary legislative
\npower. So long as this distinction is kept in mind Parliament will have power under
\nArticle 368 to amend the Constitution and what Parliament does under Article 368 is not
\nordinary law making which is subject to Article 13(2) or any other Article of the
\nConstitution. This view of Wanchoo, J. was adopted by Parliament in the Constitution
\n24th Amendment Act which made explicit that under Article 368 Parliament has the
\nconstituent power to amend this Constitution.\n<\/p>\n
878. In order to appreciate and assess Mr. Palkhivala’s other contention of implied and
\ninherent limitations on the amending power, it is necessary to find out the necessity and
\nimportance of the amending power to arrive at the true meaning of the expression
\n“amendment”.\n<\/p>\n
879. Mr. Palkhivala made these submissions. The word “amendment” means on the one
\nhand not the power to alter or destroy the essential features and on the other there are
\ninherent and implied limitations on the power of amendment. It is imperative to consider
\nthe consequences of the plea of limited power and also of the plea of limitless power. The
\ntest of the true width of a power is not how probable it is that it may be exercised, but
\nwhat can possibly be done under it. The hope and expectation that it will never be used is
\nnot relevant. Reliance is placed on the observations in Maxwell on the Interpretation of
\nStatutes, 12th Ed. (1969) pp. 103-106 that it is important to consider the effects or
\nconsequences which would result from it, for they often point out the real meaning of the
\nwords, before adopting any proposed construction of a passage susceptible of more than
\none meaning. The reasonableness of the consequences which follow from a particular
\nconstruction on the one hand and the unreasonable result on the other are the two
\nalternatives in the quest for the true intention of Parliament. Crawford Construction of
\nStatutes (1940 Ed.) pp. 286-290 was referred to for the proposition that where the statute
\nis ambiguous or susceptible to more than one meaning, the construction which tends to
\nmake the statute unreasonable should be avoided. Uncertainty, friction or confusion on a
\nconstruction is to be avoided because preference is to be given to the smooth working of
\nthe statute. The Court adopts which is just reasonable and sensible rather than that which
\nis none of these things. It is not to be presumed that the legislature intended the
\nlegislation to produce inequitable results. Usurpation of power contrary to the
\nConstitution is to be avoided.\n<\/p>\n
880. Reliance was placed by Mr. Palkhivala on American Jurisprudence 2d. Vol. 16
\nArticle 59 at pp. 231-232, Article 72 at p. 251, Article 287 at pp. 270-71 and Article 88 at
\npp. 273-74 in support of these propositions. First, questions of Constitutional construction
\nare in the main governed by the same general principles which control in ascertaining the
\nmeaning of all written instruments particularly statutes. External aids or arbitrary rules
\napplied to the construction of a Constitution are of uncertain value and should be used
\nwith hesitation and circumspection. Second, Constitutions are general and many of the
\nessentials with which Constitutions treat are impliedly controlled or dealt with by them
\nand implication plays a very important part in Constitutional construction. What is
\nimplied is as much a part of the instrument as what is expressed. Third, a Court may look
\nto the history of the times and examine the state of things existing when the Constitution
\nwas framed and adopted. The Court should look to the nature and object of the particular
\npowers, duties and rights in question with all the light and aids of the contemporary
\nhistory. Fourth, proceedings of conventions and debates are of limited value as explaining
\ndoubtful phrases. Similarly, the opinions of the individual members are seldom
\nconsidered as of material value.\n<\/p>\n
881. Mr. Palkhivala said that the word “amend” may have three meanings. First, it may
\nmean to improve or better to remove an error, the quality of improvement being
\nconsidered from the stand point of the basic philosophy underlying the Constitution.
\nSecond, it may mean to make changes which may not fall within the first meaning but
\nwhich do not alter or destroy any of the basic essential or any of the essential features of
\nthe Constitution. Third, it may mean to make any changes in the Constitution including
\nchanges falling outside the second meaning. The first meaning was preferred. The second
\nwas said to be a possible construction. The third was ruled out.\n<\/p>\n
882. The crux of the matter is the meaning of the word “amendment” The Oxford
\nDictionary meaning of the word is to make professed improvements in a measure before
\nParliament; formally, to alter in detail, though practically it may be to alter its principle,
\nso as to thwart it. The Oxford Dictionary meanings are also alteration of a bill before
\nParliament; a clause, paragraph, or words proposed to be substituted for others, or to be
\ninserted in a bill (the result of the adoption of which may even be to defeat the measure).
\nIn Words and Phrases Permanent Edition, Volume 3 the meaning of the word “amend”
\nand “amendment” are change or alteration. Amendment involves an alteration or change,
\nas by addition, taking away or modification. A broad definition of the word “amendment”
\nwill include any alteration or change. The word “amendment” when used in connection
\nwith the Constitution may refer to the addition of a provision on a new independent
\nsubject, complete in itself and wholly disconnected from other provisions, or to some
\nparticular article or clause, and is then used to indicate an addition to, the striking out, or
\nsome change in that particular article or clause.\n<\/p>\n
883. The contention that the word “amendment” in Article 368 should bear a limited
\nmeaning in view of the expression “amend by way of addition, variation or repeal any of
\nthe provisions of this Schedule” occurring in paragraphs 7 and 21 in Schedules 5 and 6, is
\nunsound for the following reasons.\n<\/p>\n
884. First, the power of amendment conferred by the four provisions, namely, Article 4
\nread with Articles 2 and 3, Article 169, paragraphs 7 and 21 in Schedules 5 and 6 is a
\nlimited power. It is limited to specific subjects. The exercise of the power of amendment
\nunder those four provisions, if treated by Articles themselves, is an uncontrolled power
\nsince the power can be exercised by an ordinary law. But as a part of the Constitution the
\npower is a subordinate power because these Articles themselves are subject to the
\namending provisions of Article 368. Article 368 is the only provision of the Constitution
\nwhich provides for the amendment of this Constitution which means the Constitution of
\nIndia and every part hereto. It may be mentioned that in construing Article 368 the title of
\nthe part “Amendment of the Constitution” is an important aid to construction. The
\nmarginal note which speaks of the procedure of amendment is not complete by itself
\nbecause the procedure when followed results in the product, namely, an amendment of
\nthe Constitution which is not only a matter of procedure.\n<\/p>\n
885. Second, these four provisions which are in the same terms, namely, “no such law
\nshall be deemed to be an amendment of this Constitution for the purpose of Article 368”
\nshow that but for these terms the amendment would have fallen within Article 368 and
\nwas being taken out of it This is an important consideration particularly in connection
\nwith Schedules 5 and 6 which provide that Parliament may, from time to time by law,
\namend by way of addition, variation or repeal any of the provisions of this Schedule.
\nThese provisions show that an amendment by way of addition, variation or repeal will
\nalso fall within the amendment of the Constitution provided for in Article 368 but is
\nbeing taken out of Article 368. This express exclusion contains intrinsic evidence that the
\nmeaning of the word “amendment” in Article 368 includes amendment by way of
\naddition, alteration or repeal.\n<\/p>\n
886. Third, paragraphs 7 and 21 in Schedules 5 and 6 which provide that Parliament may
\nfrom time to time by law, amend by way of addition, variation or repeal indicate the
\nnecessity of amendments from time to time. The expression “by way of” does not enlarge
\nthe meaning of the word “amendment” but clarifies. The expression “by way of” shows
\nthat the words addition, variation or repeal are substitutes of the word “amendment” and
\nare forms of intention. The whole Schedule cannot be repealed either by paragraph 7 or
\nby paragraph 21, because Article 244 provides for the administration of Scheduled Areas
\nand tribal areas on the application of the two respective Schedules. The words “from time
\nto time” also indicate that because of subject matter amendments may be from time to
\ntime. The history behind the two Schedules originates in Section 91 and 92 of the
\nGovernment of India Act, 1935 dealing with excluded areas and partially excluded areas.\n<\/p>\n
887. Fourth, reference was made to Section 9(1)(c) of the India Independence Act 1947
\nwhich empowered the Governor General to make omissions from, additions to and
\nadaptations and modification to the Government of India Act, 1935. The Government of
\nIndia Third Amendment Act 1949 amended Section 291 of the 1935 Act and empowered
\nthe Governor General to make such amendments as he considers necessary whether by
\nway of addition, modification or repeal. It was, therefore, said that when our Constitution
\ndid not use the expression “by way of addition, modification or repeal” the word
\n“amendment” in Article 368 will have a narrower meaning. The expression “amendment”
\nhas been used in several Articles of the Constitution. These are Articles 4(1) and (2),
\n108(4), 109(3), and 4, 111, 114(2), 169(2), 196(2), 198(3) and (4), 200, 201, 204(2),
\n207(1), (2), 240(2), 274(1), 304(b) and 349. In every case amendment is to be by way of
\nvariation, addition or repeal. Again, different expression have been used in other Articles.
\nIn Article 35(b) the words are alter, repeal. In Article 243(1) the words are repeal or
\namend. In Article 252(2), the expression is amend or repeal. In Article 254(2) proviso the
\nwords are add to, amending, variation or repeal. In Article 320(4) the words are such
\nmodifications whether by way of repeal or amendment. In Article 372(1) the words are
\naltered or repealed or amended. In Article 372(2) the words are such adaptations and
\nmodifications by way of repeal or amendment. In Article 392(1) the expression is such
\nadaptations by way of modification, addition or commission. Again, in Article 241(2) the
\nwords are modification or exceptions. In Article 364 the words used are exceptions or
\nmodifications. In Article 370(1)(d) and (3) the words are modifications and exceptions.
\nAgain, in Schedule 5 paragraph 5(1) and Schedule 6 paragraphs 12(a), (b), 19(1)(a) the
\nword used are exceptions or modifications. Modifications in Article 370(1)(d) must be
\ngiven the widest meaning in the context of a Constitution and in that sense it includes an
\namendment and it cannot be limited to such modifications as do not make any radical
\ntransformation.\n<\/p>\n
888. The several Constitution Amendment Acts show that amendments to the
\nConstitution are made by way of addition, substitution, repeal. The Attorney General is
\nright in his submission that the expression “amendment of this Constitution” has a clear
\nsubstantive meaning in the context of a written Constitution and it means that any part of
\nthe Constitution can be amended by changing the same either by variation, addition of
\nrepeal.\n<\/p>\n
889. The words “Amendment of this Constitution may be initiated” and the words
\n“Constitution shall stand amended in accordance with the terms of the Bill” in Article 368
\nindicate that the word “amendment” is used in an unambiguous and clear manner. The
\nAttorney General said that our Constitution is not the first nor is the last one to use the
\nword “amendment”. The American Constitution in 1787 used the word “amend”. Several
\nConstitutions of other countries have used the word “amend”. The word “amend” is used
\nin a Constitution to mean any kind of change. In some Constitutions the words alteration
\nor revision have been used in place of the word amend or along with the word
\namendment. Some times alteration and revision of the Constitution are also spoken of as
\namendment of the Constitution.\n<\/p>\n
890. Constitutional provisions are presumed to have been carefully and deliberately
\nframed. The words alterations or amendments, the words amendments or revisions, the
\nwords revision and alteration are used together to indicate that these words have the same
\nmeaning in relation to amendment and change in Constitution.\n<\/p>\n
891. The meaning and scope of amending power is in the object and necessity for
\namendment in a written Constitution.\n<\/p>\n
892. The various amendments which have already been carried out to our Constitution
\nindicate that provisions have been added, or varied or substituted. The Attorney General
\ngave two correct reasons for the object and necessity of the power of amendment in a
\nwritten Constitution. First, the object and necessity of amendment in a written
\nConstitution means that the necessity is for changing the Constitution in an orderly
\nmanner, for otherwise the Constitution can be changed only by an extra Constitutional
\nmethod or by revolution, Second, the very object of amendment is to make changes in the
\nfundamental law or organic law to make fundamental changes in the Constitution, to
\nchange the fundamental or the basic principles in the Constitution. Otherwise there will
\nbe no necessity to give that importance to the high amending power to avoid revolution.\n<\/p>\n
893. The object of amendment is to see that the Constitution is preserved. Rebellion or
\nrevolution is an illegal channel of giving expression to change. The “consent of the
\ngoverned” is that each generation has a right to establish its own law. Conditions change.
\nMen Change, Opportunities for corresponding change in political institutions and
\nprinciples of Government therefore arise. An unamendable Constitution was the French
\nConstitution which by an amendment to the Constitution adopted in 1884 declared that
\nthe National Assembly shall never entertain a proposal for abolition of the republican
\nform of Government. The United States Constitution provided that no amendment could
\nbe made prior to 1808 affecting the First and Fourth Clauses of Section 9 of Article 1
\nrelative to the prohibition of the importation of slaves, and that no State without its
\nconsent shall be deprived of equal suffrage in the Senate. These are examples of limiting
\nthe sovereign power of the people to change the Constitution.\n<\/p>\n
894. An unamendable Constitution is said to be the worst tyranny of time. Jefferson said
\nin 1789 that each generation has a right to determine a law under which it lives. The earth
\nbelongs in usufruct to the living; the dead have neither powers nor rights over it. The
\nmachinery of amendment is like a safety valve. It should not be used with too great
\nfacility nor should be too difficult. That will explode and erode the Constitution.\n<\/p>\n
895. Most Constitutions are rigid in the sense that they are amendable only by a different
\nprocess than that by which ordinary laws may be altered. Thus they distinguish clearly
\nbetween the constituent power and the legislative power, each being exerciseable by
\ndifferent organs according to different processes. Chief Justice Marshall said that the
\nopponents of change want changes just as much as any one else. They want however to
\ndetermine what the changes shall be.\n<\/p>\n
896. Amendment is a form of growth of the Constitution inasmuch as amendment means
\nfundamental changes. The Constitution devises special organs or special methods to
\namend or change the fundamental principles that create the Government. The methods of
\namendment may be by ordinary law making body as in Great Britain or by the ordinary
\nlaw making body with special procedure or unusual majority or by special organs of
\ngovernment created for the purpose such as Constitutional convention or by the electorate
\nin the form of referendum or of initiating a referendum. In case a written Constitution
\nmakes no provision for amendment it is usually held that the national law making body
\nby ordinary procedure may amend the Constitution. If a Constitution provides the method
\nof amendment that method alone is legal. Any other method of amendment would be a
\nrevolution. The deliberative and restrictive processes and procedure ensure a change in
\nthe Constitution in an orderly fashion in order to give the expression to social necessity
\nand to give permanence to the Constitution.\n<\/p>\n
897. The people expressed in the Preamble to our Constitution gave the Constitution
\nincluding the power to amend the Constitution to the bodies mentioned in Article 368.
\nThese bodies represent the people. The method to amend any part of the Constitution as
\nprovided for in Article 368 must be followed. Any other method as for example
\nconvening Constituent Assembly or Referendum will be extra Constitutional or
\nrevolutionary. In our Constitution Article 368 restricts only the procedure or the manner
\nand form required for amendment but not the kind or the character of the amendment that
\nmay be made. There are no implied limitations to the amending power. The Attorney
\nGeneral summed up pithily that the Constitution Acts not only for the people but on the
\npeople.\n<\/p>\n
898. The Attorney General relied on several American decisions in support of these
\npropositions. First, the word “amendment” does not mean improvement. The view in
\nLivermore v. Waite 102 Cal. 118 of a single learned Judge that amendment means
\nimprovement was not accepted in Edwards v. Lesseur South Western Reporter Vol. 33, p.
\n1130. Second, ratification by people of States would be void when a federal amendment
\nproposed by Congress is required to be ratified by the legislatures of the States. Ex-parte
\nDillon Federal Reporter No. 262 p. 563. The legislature is a mere agency for ratification
\nof a proposed amendment. Ex-parte Dillon did not accept the view of the learned single
\nJudges in Livermore v. Waite that amendment means only improvement. Third, the
\nargument that the word “amendment” carries its own limitations regarding fundamental
\nprinciples or power of State or control of the conduct of the individuals by devising a
\nmethod of referendum by State legislatures is adding a new method of amendment. This
\nis not permissible. Feigenspan v. Bodine 264 Federal Reporter 186. The only method of
\namendment is that prescribed by the Constitution. The theory of referendum by State
\nlegislatures is not valid. Fourth, the assumption that ratification by State legislatures will
\nvoice the will of the people is against the prescribed method of amendment and grant of
\nauthority by the people to Congress in the manner laid down in Article V of the American
\nConstitution. It is not the function of Courts or legislative bodies to alter the method
\nwhich the Constitution has fixed. Ratification is not an act of legislation. It derives its
\nauthority from the Constitution. Hawke v. Smith 253 U.S. 221; Dillon v. Gloss 256 U.S.
\n358, Leser v. Garnett 258 U.S. 130. Fifth, the power of amendment extends to every part
\nof the Constitution. In amending the Constitution the General Assembly acts in the
\ncharacter and capacity of a convention expressing the supreme will or the sovereign
\npeople and is unlimited in its power save by the Constitution. Ex-parte Mrs. D.C. Kerby
\nAmerican Law Reports Annotated, Vol. 36, p. 1451. Sixth, the argument that
\namendments which touch rights of the people must be by convention is rejected by
\nSupreme Court in American Article V of the American Constitution is clear in statement
\nand meaning and contains no ambiguity. Where the intention is clear there is no room for
\nconstruction. Rhode Island v. Palmer 253 U.S. 350; U.S. v. Sprague 282 U.S. 716.
\nSeventh, principles of the Constitution can be changed under Article V Schneiderman v.
\nUnited States of America 320 U.S. 118. Eight, the Constitution provides the method of
\nalteration. While the procedure for amending the Constitution is restricted here is no
\nrestraint on the kind of amendment that may be made. Whitehall v. Elkins 389 U.S. 54.\n<\/p>\n
899. Except for special methods of amendment in a rigid or controlled Constitution
\nalthough the methods may vary in different Constitutions and except for express
\nlimitations, if any, in rigid or controlled Constitutions, the meaning and scope of the
\namending power is the same in both the flexible and rigid forms.\n<\/p>\n
900. The flexible Constitution is one under which every law of every description can be
\nlegally changed with the same case and in the same manner by one and the same body.
\nLaws in a flexible Constitution are called Constitutional because they refer to subjects
\nsupposed to affect the fundamenal institutions of the State, and not because they are
\nlegally more sacred or difficult to change than other laws.\n<\/p>\n
901. A rigid Constitution is one under which certain laws generally known as
\nConstitutional or fundamental laws cannot be changed in the same manner as ordinary
\nlaws. The rigidity of the Constitution consists in the absence of any right of the
\nlegislatures when acting in its ordinary capacity to modify or repeal definite laws termed
\nConstitutional or fundamental. In a rigid Constitution the term “Constitution” means a
\nparticular enactment belonging to the Articles of the Constitution which cannot be legally
\nchanged with the same ease and in the same manner as ordinary laws.\n<\/p>\n
902. The special machinery for Constitutional amendment is the limitation of the power
\nof the legislature by greater law than by the law of the ordinary legislation. The
\nConstituent Assembly knowing that it will disperse and leave the actual business of
\nlegislation to another body, attempts to bring into the Constitution that it promulgates as
\nmany guides to future action as possible. It attempts to arrange for the “recreation of a
\nconstituent assembly” whenever such matters are in future to be considered, even though
\nthat assembly be nothing more than the ordinary legislature acting under certain
\nrestrictions. There may be some elements of the Constitution which the constituent
\nassembly wants to remain unalterable. These elements are to be distinguished from the
\nrest. The Fifth Clause in the United States Constitution is that no State without its own
\nconsent shall be deprived of its equal suffrage in the Senate. The Attorney General rightly
\nsard that just as there are no implied limitation in flexible Constitutions similarly there
\nare no implied limitations in a rigid Constitution. The difference is only in the method of
\namendment. Amendment can be made by ordinary legislature under certain restrictions,
\nor by people through referendum or by majority of all the units of a federal State or by a
\nspecial convention.\n<\/p>\n
903 In a rigid Constitution the legislatures by reason of their well matured long and
\ndeliberately formed opinion represent the will of the undoubted majority. But even such
\nwill can be thwarted in the amendment of the organic law by the will of the minority. In
\ncase where the requisite majority is not obtained by the minority thwarting an
\namendment, there is just as much danger to the State from revolution and violence as
\nthere is from what is said to be the caprice of the majority. The safeguards against radical
\nchanges’ thus represent a better way and a natural way of securing deliberation, maturity
\nand clear consciousness of purpose without antagonising the actual source of power in
\nthe democratic state.\n<\/p>\n
904. The term “amendment” connotes a definite and formal process of Constitutional
\nchange. The force of tradition and custom and the judicial interpretation may all affect
\nthe organic structure of the State. These processes of change are the evolution of
\nConstitution.\n<\/p>\n
905. The background in which Article 368 was enacted by the Constituent Assembly has
\nan important aspect on the meaning and scope of the power of amendment.\n<\/p>\n
906. On 12 November, 1946 Sir B.N. Rau Constitutional Adviser prepared a brochure
\ncontaining Constitution of the British Commonwealth Countries and the Constitutions of
\nother countries. Different countries having different modes of amendments were referred
\nto. In the same volume the fundamental rights under 13 heads were extracted from 13
\nselected countries like U.S.A., Switzerland, Germany, Russia, Ireland, Canada, Australia.
\nTwo features follow from that list. First, there is no absolute standard as to what
\nconstitutes fundamental right. There is no such thing as agreed fundamental rights of the
\nworld. Second, fundamental rights which are accepted in our Constitution are not
\nsuperior to fundamental rights in other Constitutions nor can it be said that the
\nfundamental rights are superior to Directive Principles in our Constitution.\n<\/p>\n
907. On 17 March, 1947 a questionnaire was circulated under the subject as to what
\nprovisions should be made regarding the amendment of the Constitution. The draft clause
\nof amendment to the Constitution prepared by the Constitutional Adviser at that time
\nindicates that an amendment may be initiated in either House of the Union Parliament
\nand when the proposed amendment is passed in each House by a majority of not less than
\ntwo thirds of the total number of members of that House and is ratified by the legislatures
\nof not less than two thirds of the units of the Union, excluding the Chief Commissioners’
\nProvinces, it shall be presented to the President for his assent; and upon such assent being
\ngiven the amendment shall come into operation. There were two explanations to that
\nclause.\n<\/p>\n
908. On 29 April, 1947 Shri Santhanam’s amendment to the draft clause was accepted.
\nThe amendment was “that this clause also if necessary may be amended in the same way
\nas any other clause in the Constitution”. In June, 1947 the drafting of the amending clause
\nstarted. Originally it was Numbered 232. Eventually, Articles 304 and 305 came into
\nexistence in place of draft Article 232. The first draft of the amendment clause was given
\nby Sir B.N. Rau in March, 1947. By June, 1947 and thereafter he recommended the
\nprocedure favoured by Sir Alladi Krishnaswami Ayyar and Sir Gopalswami Ayyangar,
\nnamely, passage by two thirds majority in Parliament and ratification by like majority of
\nProvincial legislatures. On 21 February, 1948 the draft Constitution was ready. Draft
\nArticles 304 and 305 related to amendment Article 305 provided for reservation of seats
\nfor minorities for ten years unless continued in operation by an amendment of the
\nConstitution.\n<\/p>\n
909. The following features emerge. First, the Constituent Assembly made no distinction
\nbetween essential and non-essential features. Secondly, no one in the Constituent
\nAssembly said that fundamental rights could not be amended. The framers of the
\nConstitution did not have any debate on that. Thirdly, even in the First Constitution
\nAmendment debate no one doubted change or amendment of fundamental rights. At no
\nstage it appeared that fundamental rights are absolute. While a Constitution should be
\nmade sound and basic it should be flexible and for a period it should be possible to make
\nnecessary changes with relative facility.\n<\/p>\n
910. Certain amendments to Article 304 were proposed. One proposed amendment No.
\n118 was that amendment was to be passed in two Houses by a clear majority of the total
\nmembership of each House. Another proposed amendment No. 210 was that for a period
\nof three years from the commencement of the Constitution, any amendment certified by
\nthe President to be not one of substance might be made by a simple majority. This also’
\nstated that it would include any formal amendment recommended by a majority of the
\nJudges of the Supreme Court on the ground of removing difficulties in the administration
\nof the Constitution or for the purpose of carrying out the Constitution in public interest.
\nThe third proposed amendment No. 212 was that no amendment which is calculated to
\ninfringe or restrict or diminish the scope of any individual rights, any rights of a person or
\npersons with respect to property or otherwise, shall be permissible and any amendment
\nwhich is or is likely to have such an effect shall be void and ultra vires of any legislature.
\nIt is noteworthy that this amendment was withdrawn. See Constituent Assembly Debates
\nVol. IX p. 1665.\n<\/p>\n
911. In the first category the framers devised amendment by Parliament by a simple
\nmajority. These are Articles 2 and 4 which deal with States. As far as creation or re-
\nConstitution of States is concerned, it is left to Parliament to achieve that by a simple
\nmajority. Again, draft Article 148A which eventually became Article 169 dealing with
\nUpper Chambers in the States gave Parliament power to abolish the Upper Chambers or
\nto create new Second Chambers. Schedules 5 and 6 were left to be amended by
\nParliament by simple majority. The second category of amendment requires two thirds
\nmajority. It is in that connection that the statement of Dr. Ambedkar “If the future
\nParliament wishes to amend any particular Article which is not mentioned in Part III or
\nArticle 304 all that is necessary for them is to have the two thirds majority then they can
\namend it” was invoked by Mr. Palkhivala to support his submission that Part III was
\nunamendable. That is totally misreading the speech. The speech shows that some Articles
\nwould be amendable by bare majority, others would require two thirds majority and the
\nthird category would require two thirds majority plus ratification by the States.\n<\/p>\n
912. Proceedings in the Constituent Assembly show that the whole Constitution was
\ntaken in broad prospective and the amendments fell under three categories providing for
\nsimple majority, or two thirds; majority or two thirds majority and ratification by the
\nStates. These different procedures were laid down to avoid rigidity.\n<\/p>\n
913. The Constitution First Amendment Act which added Article 15 (4), substituted
\nwords in Articles 19(2) and Article 19(6), inserted Article 31A indicates interesting
\nfeatures. The two criticisms at that time were as to what was the hurry and secondly that
\nthe Government was trying to take more power to itself. The answers are that a
\nConstitution which is responsive to the people’s will and their ideas and which can be
\nvaried here and there, will command respect and people will not fight against change.
\nOtherwise, if people feel that it is unchangeable and cannot be touched, the only tiling to
\nbe done by those who wish to change it is to try to break it. That is a dangerous thing and
\na bad thing.\n<\/p>\n
914. In this background there is no doubt about the meaning and scope of Article 368.
\nThe Attorney General rightly said that if there be any doubt contemporaneous practical
\nexposition of the Constitution is too strong and obstinate to be shaken or controlled. In
\nMopherson v. Blacker 146 U.S. 1 it is said that where plain and clear words occur there is
\nno difficulty but where there is doubt and ambiguity contemporaneous and practical
\nexposition is a great weight. In The Automobile Transport (Rajasthan) Ltd. v. The State
\nof Rajasthan and Ors.<\/a> (1963) 1 S.C.R. 491 this Court took notice of the feature that
\nConstitution makers had deep knowledge of Constitutions and Constitutional problems of
\nother countries.\n<\/p>\n
915. Mr. Seervai relying on British Coal Corporation v. King (1935) A.C. 500 submitted
\nthat in interpreting a constituent or organic statute that construction most beneficial to the
\nwidest possible amplitude of powers must be adopted. A strict construction applicable to
\npenal or taxing statute will be subversive of the real intention of Parliament if applied to
\nan Act passed to ensure peace, order and good government. Largest meaning is given to
\nthe allocated specific power. If there are no limitations on the power it is the whole
\npower. Grant of power of amendment cannot be cut down except by express or implied
\nlimitations. The conclusion is that the meaning of the word amendment is wide and not
\nrestricted.\n<\/p>\n
916. The contention of Mr. Palkhivala on behalf of the petitioner is that under Article 368
\nas it stood prior to the amendment there were implied and inherent limitations on the
\npower of amendment. It was said that the word “amendment” would preclude the power
\nto alter or destroy the essential features and the basic elements and the fundamental
\nprinciples of the Constitution. This contention was amplified as follows. The Constitution
\nis given by the people unto themselves. The power to decide upon amendment is given to
\nthe 5 year Parliament which is a creature of the Constitution. Article 368 does not start
\nwith the non-obstante clause. Article 368 uses the word “amendment” simpliciter. Less
\nsignificant amendment powers in others parts of the Constitution use the words “add,
\nalter, repeal or vary” in addition to the word “amendment”, as will appear in Articles 31B,
\n25(b), 252(2), 372, 372A(2), paragraph 7 Schedule 5, paragraph 21 Schedule 6. Article
\n368 talks of an amendment of this Constitution and does not extend the amending power
\nto “all or any of the provisions of this Constitution”. On a wide construction of the word
\n“amendment” all fundamental rights can be taken away by the requisite majority whereas
\nmuch less significant matters require the concurrence of at least half the States under the
\nproviso to that Article.\n<\/p>\n
917. The basic human freedom are all of the most fundamental importance to all the
\nStates and all the citizens. Article 32 is no less important to the citizens of States than
\nArticle 226. The Preamble is not a part or provision of the Constitution. Therefore, the
\nPreamble cannot be amended under Article 368. The nature and the contents of the
\nPreamble are such that it is incapable of being amended. If the Preamble is unalterable it
\nnecessarily follows that those features of the Constitution which are necessary to give
\neffect to the Preamble are unalterable. Fundamental rights are intended to give effect to
\nthe Preamble. They cannot, therefore, be abridged or taken away. The provisions of
\nArticle 368 themselves can be amended under that very Article. If the word “amendment”
\nis read in the widest sense Parliament will have the power to get rid of the requisite
\nmajority required by Article 368 and make any Constitutional amendments possible by
\nbare majority, Parliament can provide that hereafter the Constitution shall be
\nunamendable. Parliament can reduce India to a status which is neither sovereign nor
\ndemocratic nor republic and where the basic human rights are conspicuous by their
\nabsence.\n<\/p>\n
918. Mr. Palkhivala submits that the principle of inherent or implied limitations on power
\nto amend the controlled Constitution stems from three basic features. First, the ultimate
\nlegal sovereignty resides in the people. Second, Parliament is only a creature of the
\nConstitution. Third, power to amend the Constitution or destroy the essential features of
\nthe Constitution is an application of ultimate legal sovereignty.\n<\/p>\n
919. Mr. Palkhivala enumerated 12 essential features. These were as follows : (1) The
\nsupremacy of the Constitution. (2) The sovereignty of India. (3) The integrity of the
\ncountry. (4) The democratic way of life. (5) The republican form of Government. (6) The
\nguarantee of basic human rights elaborated in Part III of the Constitution. (7) A secular
\nState. (8) A free and independent judiciary. (9) The dual structure of the Union and the
\nStates. (10) The balance between the legislature, the executive and the judiciary. (11) a
\nParliamentary form of Government as distinct from the presidential form of Government.
\n(12) Article 368 can be amended but cannot be amended to empower Parliament to alter
\nor destroy any of the essential features of the Constitution, make Che Constitution
\nliterally or practically unamendable, make it generally amendable by a bare majority in
\nParliament, confer the power of amendment either expressly or in effect on the State
\nLegislatures and delete the proviso and deprive the States of the power of ratification
\nwhich is today available to them in certain broad areas.\n<\/p>\n
920. The Constitution 24th Amendment Act was impeached by Mr. Palkhivala on three
\ngrounds. First, by substituting the words “amend by way of addition, variation or repeal”
\nin place of the word “amendment” in Article 368 the power was widened. Second, the
\n24th Amendment made explicit that when Parliament makes a Constitutional amendment
\nunder Article 368 it acts in exercise of constituent power. Third, it had provided by
\namendment in Articles 13 and 368 that the power in Article 13(2) against abridging or
\ntaking away of the fundamental rights shall not apply to any amendment under Article\n<\/p>\n
368. The Constitution 24th Amendment Act is, therefore, to be construed as empowering
\nParliament to exercise full constituent power of the people and to vest in Parliament the
\nultimate legal sovereignty of the people as authorising Parliament to alter or destroy all or
\nany of the essential features, basic elements and fundamental principles of the
\nConstitution. Likewise, Parliament is construed by the Constitution 24th Amendment Act
\nto be authorised to damage or destroy the essence of all or any of the fundamental rights.
\nTherefore, the amendment must be illegal and invalid.\n<\/p>\n
921. In the alternative it was submitted on behalf of the petitioner that if the Constitution
\n24th Amendment is valid it can be only on a reading down of the amended provisions of
\nArticle 13 and 368 which reading would preserve the original inherent and implied
\nlimitations. Even after the Constitution 24th Amendment Act Parliament will have no
\npower to alter or destroy the essential features of the Constitution and secondly,
\nfundamental rights are among the essential features of the Constitution and, therefore, the
\nessence of any of the fundamental rights cannot be altered or destroyed or damaged even
\nwhen they are sought to be abridged.\n<\/p>\n
922. The Attorney General stressed the background in which Article 368 was enacted by
\nthe Constituent Assembly to show that any limitation on the amending power was never
\nin controversy. The only controversy was regarding the degree of flexibility of an
\namendment of all the provisions of the Constitution. Our Constitution has adopted three
\nmethods of amendment of the Constitution. Certain provisions of the Constitution may be
\namended by a simple majority in Parliament. Others may be amended by two-thirds
\nmajority. The third category relates to provisions where amendments must be ratified by
\none half of the States. This scheme strikes a good balance by protecting the rights of the
\nStates while leaving the remainder of the Constitution easy to amend. Of the three ways
\nof amending the Constitution two are laid down in Article 368 itself and the third is
\nprovided for in about 24 other Articles.\n<\/p>\n
923. The Constitutional Adviser incorporated in his draft Constitution prepared by him in
\nOctober, 1947 a recommendation contained in the supplementary Report of the Union
\nConstitution Committee. Following the recommendation of the Advisory Committee he
\nincluded a proviso that the provisions in the Constitution relating to the reservation of
\nseats for the Muslims, the Scheduled Castes, the Scheduled Tribes, the Indian Christians
\nand the Sikhs, either in the Federal Parliament or in any Provincial Legislature, should
\nnot be amended before the expiry of ten years from the commencement of the
\nConstitution.\n<\/p>\n
924. The Drafting Committee in February, 1948 considered the provisions for
\namendment. It made three material changes in the provisions made by the Constitution
\nAdviser. First, the Committee framed a self contained and independent Article regarding
\nthe reservation of seats in the legislatures for minorities. These provisions could not be
\namended for a period of ten years and would then cease to have effect unless continued in
\noperation by an amendment of the Constitution. The second proposed change gave a
\nlimited power of initiating Constitutional amendments to the State legislatures. This
\npower related to two matters. These were the methods of choosing Governors and the
\nestablishment or abolition of Legislative Councils in the States. The third amendment
\nsuggested was that changes in any of the legislative lists (not merely federal List) should
\nreceive ratification of at least one half of the Provincial legislatures and one third of the
\nlegislatures of Indian States.\n<\/p>\n
925. The entire history of the power of amendment of the Constitution shows first that the
\nDraft Constitution eliminates the elaborate and difficult procedures such as a decision by
\nconvention or a reterendum. The powers of amendments are left with the legislatures of
\nthe Union and the States. Secondly, it is only for amendments of specific matters that the
\nratification by the State legislatures is required. All other Articles are left to be amended
\nby Parliament with only limitation of majority of not less than a two-thirds of the
\nmembers of each House present and voting and the majority of the total membership of
\neach House. Thirdly, the provisions for amendment of the Constitution Were made
\nsimple and not difficult when comparison is made with the American and the Australian
\nConstitutions.\n<\/p>\n
926. The theory of inherent and implied limitations on the amending power is based on
\nthe assumption of a narrow and restricted meaning of the word amendment to suggest
\nthat the basic features or the essential features and the democratic republican character of
\nthe Constitution cannot be damaged and destroyed. Emphasis is laid on the Preamble of
\nthe Constitution to suggest that inherent and implied limitations all spring from the
\nPreamble. The Preamble is said not to be a part of the Constitution. The Preamble is said
\nto be unalterable. Therefore, it is contended that other provisions which gave effect to the
\nPreamble cannot be amended.\n<\/p>\n
927. Reliance is placed on the decision of this Court in Berubari case (1960) 3 S.C.R. 250
\nin support of the proposition that the Preamble is not a part of the Constitution. The
\nconclusion drawn is that no amendment of the Constitution inconsistent with the
\nPreamble can be made. The Preamble is said to be an implied limitation on the power of
\namendment. This Court in Berubari case said that the Preamble has never been regarded
\nas the source of any substantive power, because such powers are expressly granted in the
\nbody of the Constitution. This Court said “what is true about the powers is equally true
\nabout prohibitions and limitations”. In Berubari case it was suggested that the Preamble
\nto the Constitution postulated that like a democratic republican form of the Government
\nthe entire territory of India was beyond the reach of Parliament and could not be affected
\neither by ordinary legislation or even by Constitutional amendment. The Preamble was
\ninvoked to cut down the power to cede territory either by ordinary law or by amendment
\nof the Constitution. This Court said that the Preamble is, in the words of Story “a key to
\nopen the minds of the makers, but nevertheless the Preamble could not be said to
\npostulate a limitation on one of the very important attributes of sovereignty”. This Court
\nrejected the theory that the Preamble can impose serious limitations on the essential
\nattribute of sovereignty. The suggested limitation that the Preamble affirmed the
\ninviolability of the territory of India so that the power of amendment should be implied
\nlimited to exclude the ceding territory, is negatived by this decision.\n<\/p>\n
928. The petitioner’s contention that the Preamble is not a part of the Constitution is
\nnullified by the petitioner’s reference to and reliance on the Preamble as the source of all
\ninherent limitations. The Berubari case held that Article I could be amended under Article
\n368 and a part of the territory of India could be ceded by such amendment. The Preamble
\ndid not limit the power to cede territory by-amendment of Article I.\n<\/p>\n
929. In the Berubari case there is an observation that the Preamble is not a part of the
\nConstitution. The Preamble was taken up by the Constituent Assembly at the end as it
\nhad to be in conformity with the Constitution. The Preamble was debated and voted upon
\nand the motion “The Preamble stand part of the Constitution” was adopted. Therefore,
\nMr. Seervai rightly contended that the Preamble is an integral part of the status. The
\nPreamble can be repealed (See Craies on Statute 6th Ed. page 200 seq. and Halsbury
\nLaws of England, 3rd Ed. Vol. 36 p. 370).\n<\/p>\n
930. In Gopalan case (1950) S.C.R. 88 an argument was advanced on the Preamble that
\nthe people gave themselves guaranteeing to the citizens fundamental rights, and,
\ntherefore, the provisions of Part III must be construed as being paramount to the
\nlegislative will as otherwise the fundamental rights to life and personal liberty would
\nhave no protection against legislative action. Patanjali Sastri, J., said that the high
\npurpose and spirit of the Preamble as well as the Constitutional significance of a
\ndeclaration of Fundamental Rights should be borne in mind. The language of the
\nprovisions, it was said there, could not be stretched in disregard of the cardinal rule of
\ninterpretation of any enactment, Constitution or other, that its spirit no less than its
\nintendment should be collected primarily from the natural meaning of the words used.
\nThe words “procedure established by law” in Article 21 must be taken to refer to a
\nprocedure which had a statutory origin. The word “law” was said not to mean the
\nimmutable and universal principle of natural justice. The reasoning given by Patanjali
\nSastri, J. was “no procedure is known or can be said to have been established by such
\nvague and uncertain concepts as the immputable and universal principles of natural
\njustice”. This Court in Gopalan case refused to read due process as an implication of the
\nConstitution.\n<\/p>\n
931. In the Kerala Education Bill 1957 case (1959) S.C.R. 995 Das, C.J. referred to the
\nPreamble and said “to implement and fortify the supreme purpose set forth in the
\nPreamble, Part III of our Constitution has provided for us certain fundamental rights”. In
\nthe same case, Das, C.J. said “so long as the Constitution stands as it is and is not altered,
\nit is inconceiveably the duty of this Court to uphold the fundamental rights and thereby
\nhonour our sacred obligation to the minority community who are of our own”. This
\nobservation shows that fundamental rights can be amended and the Preamble does not
\nstand in the way.\n<\/p>\n
932. In Basheshar Nath v. The C.I.T. Delhi (1955) Supp. 1 S.C.R. 528 Bhagwati, J.
\nreferred to the Preamble in discussing the question of waiver of fundamental right and
\ncompared our Preamble to the Preamble to the United States Constitution. The Preamble
\nto the American Constitution is without the Bill of Rights and the Bill of Sights which
\nbecame part of the United States Constitution substantially altered its character and
\nbroadly speaking, differed in no way, in principle, from our fundamental rights.\n<\/p>\n
933. The Preamble is properly resorted to where doubts or ambiguities arise upon the
\nwords of the enacting part. If the enacting words are clear and unambiguous, there is little
\nroom for interpretation, except the cases leading to an obvious absurdity, or to a direct
\noverthrow of the intention expressed in the Preamble. This is the view of Story. The
\nPreamble can never be resorted to enlarge the powers confided to the general government
\nThe Preamble can expound the nature, extent and application of the powers actually
\nconferred by the Constitution and not substantively create them.\n<\/p>\n
934. The decision of this Court in Gopalan case, the Coal Bearing Areas Act case (1962)
\n1 S.C.R. 44, and State of Rajasthan v. Leela Jain<\/a> (1965) 1 S.C.R. 276 are that if the
\nlanguage of the enactment is clear the Preamble cannot nullify or cut down the
\nenactment. The Judicial Committee in The Secretary of State for India in Council v.
\nMaharajah of Bobbili I.L.R. 43 Mad. 529 said that the legislature may well intend that the
\nenacting part should extend beyond the apparent ambit of the Preamble or the immediate
\nmischief. See also Attorney General v. Prince Ernest Augustus of Haneyar 1957 A.C.\n<\/p>\n
436. The American decision in Henning Jacobson v. Commonwealth of Massachusetts
\n197 U.S. 11 indicates that power is not conferred by the Preamble but must be found in
\nthe Constitution.\n<\/p>\n
935. The Preamble may be relevant in the case of an ambiguity in an enactment in a
\nstatute. A statute does not contain an amending power for the simple reason that the
\nstatute can be amended under legislative power. The Attorney General rightly said that
\nthe Preamble in a Constitution refers to the frame of the Constitution at the time of the
\nPreamble, and, therefore, it can possibly have no relevance to the constituent power in the
\nfuture, when that Constitution itself can be changed. The position would be the same so
\nfar as the Preamble is concerned whether the constituent power is exercised by the
\namending body provided for by the people themselves in the Constitution or by
\nreferendum if so provided for in the Constitution. The Attorney General supported his
\nsubmission by relying on the views of Canaway and Wynes on the similar interpretation
\nof Section 128 of the Australian Constitution.\n<\/p>\n
936. Canaway in the Failure of Federalism in Australia in discussing Section 128 of the
\nAustralian Constitution under the heading “Alteration of the Constitution” expresses the
\nview that the section must be read as a substantive grant of power to alter the Constitution
\nand that the negative form of the section in no way detracts from the amplitude of that
\npower. Canaway further says that it is not permissible to refer to the Preamble in
\nconnection with the effect of Section 128 and if nevertheless such reference is made there
\nis nothing adverse to the conclusion that there is full power of amendment. The Preamble
\nrecites a preliminary agreement to unite in one indissoluble Federal Commonwealth.
\nSection 128 of the Australian Constitution forms an integral part of the Constitution. As
\nfrom the time of the agreement it must have been contemplated that the Constitution
\nshould be alterable to the full extent of power conferred by that section. Therefore, the
\nword “alter” in Section 128 of the Australian Constitution is not restricted by any
\nreference to the Preamble.\n<\/p>\n
937. Wynes in Legislative, Executive and. Judicial Powers in Australia 4th Ed. at pp.
\n505-506 expresses the view that apart from the rule which excludes the Preamble
\ngenerally from consideration in statutory interpretation it is clear that, when all is said
\nand done, the Preamble at the most is only a recital of a present intention. The insertion
\nof an express reference to an amendment in the Constitution itself is said to operate as a
\nqualification upon the mere recital of the reasons for its creation.\n<\/p>\n
938. At the second reading of the Draft Constitution in the Constituent Assembly a
\nresolution was adopted that the Preamble do form part of our Constitution. The Preamble
\nis a part of the Constitution. On 26 November, 1949 certain Articles of the Constitution
\nwere brought into force. Article 393 did come into force on 26 November, 1949.
\nTherefore, the Preamble did not come into force on 26 November, 1949. As regards
\ngeneral laws the position is that the Preamble has been treated as part of the statute.\n<\/p>\n
939. Clear Constitutional provisions are imperative both on the legislatures and the
\nCourts. Where a Constitutional provision is comprehensive in scope and leaves no room
\nfor interpretation the Court is without power to amend, add to or detract from a
\nConstitutional provision or to create exceptions thereof by implication (See Corpus Juris
\nSecumdum Vol. 16 p. 65). Where the people express themselves in careful and measured
\nterms in framing the Constitution and they leave as little as possible to implications,
\namendments or changes in the existing order or conditions cannot be left to inserting
\nimplications by reference to the Preamble which is an expression of the intention at the
\ntime of the framing of the Constitution. Therefore, the power to amend the Constitution is
\nnot restricted and controlled by the Preamble.\n<\/p>\n
940. The contention that essential features are not amendable under Article 368 as it
\nstood before the Constitution 24th Amendment Act is not only reading negative
\nrestrictions on the express power of amendment but is also putting the clock back. One of
\nthe salutary principles of construction of a statute is to be found in R.V. Burah 3 A.C.\n<\/p>\n
889. It was a case to determine whether the prescribed limitations of a colonial legislature
\nhad been exceeded. The Judicial Committee said that a duty must be performed by
\nlooking to the terms of the instrument by which affirmatively legislative powers are
\ncreated, and by which, negatively, they are restricted. “If what has been done is
\nlegislation within the general scope of the affirmative words which give power, and if it
\nviolates no express condition or restriction by which that power is limited, it is not for,
\nany court of justice to enquire further or to enlarge constructively those conditions and
\nrestrictions”. The maxim Expressum facit cessare taciturn was similarly applied in Webb
\nv. Outrim 1907 A.C. 89. The theory of implied and inherent limitations can be best
\ndescribed as a subtle attempt to annihilate the affirmative power of amendment. Lord
\nHalsbury in Fielding v. Thomas 1896 A.C. 600 said that if the legislature had full power
\nto make laws it was difficult to see how the power was taken away. The power is always
\nsufficient for the purpose. Lord Dunedin in Whiteman v. Sadler 1910 A.C. 514 said
\n“express enactment shuts the door to further implication”.\n<\/p>\n
941. It was said that the essential features could be amended by way of improvement but
\ncould not be damaged or destroyed. It was said India could not be converted into a
\ntotalitarian dictatorship. The entire approach of the petitioner to the power of amendment
\ncontained in Article 368 ignores the fact that the object of the Constitution is to provide
\nfor the organs of State like the judicature, legislature and the executive for the
\ngovernance of the country. Apart from the essential functions of defence against external
\naggression and of maintenance of internal order a modern State is organised to secure the
\nwelfare of the people. India is a sovereign democratic republic which means that
\nParliament and State legislatures are elected on adult universal suffrage. The country is
\ngoverned by the Cabinet system of government with ministries responsible to the House
\nok the People and to the Legislative Assemblies respectively. In a democracy the
\ndetermination of policies to be pursued can only be determined by a majority vote cast at
\nelection and then by a majority of the elected representatives in the legislature. Holmes,
\nJ., said “In a democracy the people have the right to embody their opinion in law”.\n<\/p>\n
942. The argument that if unbridled power were conferred the Constitution could be
\nsubverted or destroyed is not supported by actual experience in India. Mr. Seervai
\nemphasised that since 1951 when Shankari Prasad case recognised unlimited power of
\namendment till Golak Nath case in 1967 the normal democratic process of the
\ndepartments of the State functioned as provided by the Constitution. Elections have been
\nheld as provided by the Constitution. If any body or organised party were bent upon
\nsubverting our free Constitution, then even if there were no power of amendment,
\nParliament has powers which would enable such destruction to be brought about. Great
\nand wide powers are conferred for the governance of great sovereign countries and such
\npowers cannot be withheld on the ground that they may be used externally or
\noppressively. Well settled principles of construction in interpreting Constitutions
\npreclude limiting the language of the Constitution by political, juristic or social concepts
\nindependently of the language of the Constitution to be interpreted. This Court in Deep
\nChand v. State of Uttar Pradesh and Ors.<\/a> (1959) Supp. 2 S.C.R. 8 relied on the test laid
\ndown in Queen v. Burah (1878) 5 I.A. 179 that the terms of the instrument by which
\naffirmatively the powers are created, and by which they are negatively restricted are to be
\nlooked into. The Judicial Committee in Attorney General for Ontario v. Attorney General
\nfor Canada 1912 A.C. 571 tersely stated the legal principles as follows : “If the text is
\nexplicit the text is conclusive, alike in what it directs and what it forbids”. This is the
\ngolden rule of construction of a written Constitution.\n<\/p>\n
943. In Gopalan case 1950 S.C.R. 88 this Court was invited to read into the Constitution
\nimplications derived from the “spirit of the Constitution”. Kania, C.J. said that to strike
\ndown the law on an assumed principle of construction would be “to place in the hands of
\nthe judiciary powers too great and too indefinite either for its own security or the
\nprotection of private rights”. Kania, C.J. also said that a large and liberal interpretation
\nshould be given to the Constitution. That does not mean that a Court is free to stretch or
\npervert the language of the Constitution in the interest of any legal or Constitutional
\ntheory. This Court in Keshavan Madhavan Menon v. The State of Bombay<\/a> 1951 S.C.R.
\n228 rejected the contention that the spirit of the Constitution should be invoked in
\ninterpreting the Constitution. In Benoari Lal Sharma case 72 I.A. 57, the Privy Council
\nreversed the judgment of the Federal Court observing that questions of jurisprudence or
\npolicy were not relevant to the construction of power conferred in an affirmative
\nlanguage and not restricted in any negative terms.\n<\/p>\n
944. A Constitution is essentially a frame of government laying down governmental
\npowers exercisable by the legislature, executive and the judiciary. Even so other
\nprovisions are included in the Constitution of a country which provisions are considered
\nby the framers of that Constitution to have such special importance that those should be
\nincluded in the Constitution or organic law. Thus all provisions of the Constitution are
\nessential and no distinction can be made between essential and non-essential features
\nfrom the point of view of amendment unless the makers of the Constitution make it
\nexpressly clear in the Constitution itself. The Attorney General rightly said that if the
\npositive power of “amendment of this Constitution” in Article 368 is restricted by raising
\nthe walls of essential features or core of essential features, the clear intention of the
\nConstituent Assembly will be nullified and that would make a mockery of the
\nConstitution and that would lead to destruction of the Constitution by paving the way for
\nextra Constitutional or revolutionary changes in the Constitution. The theory of implied
\nand inherent limitations cannot be allowed to act as a boa constrictor to the clear and
\nunambiguous power of amendment.\n<\/p>\n
945. If there is no express prohibition against amendment in Article 368 the ommission
\nof any such restriction did not intend to impose any restriction. When certain restrictions
\nare imposed it is not intended that other undefined restrictions should be imposed by
\nimplication. The general rule is not to import into statutes words which are not found
\nthere. Words are not to be added by implication into the language of a statute unless it is
\nnecessary to do so to give the paragraph sense and meaning in its context. If a matter is
\naltogether omitted from statute it is not allowable to insert it by implication. Where the
\nlanguage of an Act is clear and explicit, effect is to be given to it whatever may be the
\nconsequences. The words of the statute speak the intention of the legislature. Where the
\nreading of a statute produces an intelligible result there is no ground for reading any
\nwords or changing any words according to what may be supposed intention of the
\nlegislature. If a statute is passed for the purpose of enabling something to be done but
\nomits to mention in Terms some detail which is of great importance to the proper
\nperformance of the work which the statute has in contemplation the courts are at liberty
\nto infer that the statute by implication empowers the details to be carried out. The
\nimplication is to empower the authority to do that which is necessary in order to
\naccomplish the ultimate object.\n<\/p>\n
946. The implication sought to be raised by Mr. Palkhivala is for the purpose of reading
\nnegative words into Article 368 to destroy the positive power to amend. The provisions
\nof out Constitution in the light of historical background and special problems of the
\ncountry will show that no provision can be considered as non-essential. The Constitution-
\nmakers did not think so. The Attorney General rightly contended that no one has the
\npower or authority to say that any single provision is more essential than another or that
\nthe amending power under Article 368 does not operate on any provision on the ground
\nof alleged essentiality when Article 368 provides amendment of this Constitution which
\nobviously means the whole Constitution including every provision. In a Constitution
\ndifferent methods of amendment may be laid down depending upon the degree of
\nimportance attached to particular parts of the Constitution. Apart from the language of
\nArticle 368 the draft Constitution as it emerged through the Constitutuent Assembly
\nshows that no provision of the Constitution was excepted from the amending power.\n<\/p>\n
947. The provisions for the purpose of amendment were divided into four categories. The
\nfirst two categories are to be found in Article 368. Certain provisions require ratification
\nby the requisite number of States as are mentioned in the proviso. Other provisions which
\ndo not fall within the proviso are amendable by a double majority provided there. The
\nthird category consists of Articles 4, 169, 240(1), paragraph 7 Schedule 5, and paragraph
\n21 Schedule 6. The fourth category consists of provisions which were said by the
\nAttorney General to confer enabling power on Parliament to change the provisions by by
\nthe expression “unless Parliament otherwise provides” or similar expression. He gave the
\nexamples which are Articles 73(2), 100(3), 105(3), 118(2), 120(2), 125, 133(3), 171(2),
\n189(3), 194(3), 210(2), 241(2), 283(1) and (2), 285(1) and (2), 343(3), 345, 348(1).\n<\/p>\n
948. The character of the provisions which are amendable under the proviso to Article
\n368 itself shows that petitioner’s submission that essential features are unamendable is a
\nbaseless vision. Article 54 speaks of the method of election of the President. This may be
\nchanged. The manner or scale of representation of the different States in regard to the
\nelection of the President may also be changed. The executive power of the Union and the
\nStates may be changed. Chapter IV of Part V (the Union Judiciary), Chapter V of Part VI
\n(the High Courts in the States) are also mentioned in Article 368 as liable to be changed.
\nArticle 141 may also be changed. Chapter I of Part XI and the Seventh Schedule
\n(legislative relations between Union and the States) may be changed. The representation
\nof the States in Parliament (Articles 80 and 81) may be changed. The number of
\nrepresentation may be increased or reduced. The method of election of such
\nrepresentatives as Parliament may by law prescribe and the number of the members of the
\nHouse of the People may be increased or reduced. The method of election to the House of
\nPeople may be changed. Finally the provisions of Article 368 itself, which is the most
\nimportant part of the Constitution may be changed.\n<\/p>\n
949. To find out essential or non-essential features is an exercise in imponderables. When
\nthe Constitution does not make any distinction between essential and non-essential
\nfeatures it is incomprehensible as to how such a distinction can be made. Again, the
\nquestion arises as to who will make such a distinction. Both aspects expose the egregious
\ncharacter of inherent and implied limitations as to essential features or core of essential
\nfeatures of the Constitution being unamendable. Who is to judge what the essential
\nfeatures are ? On what touchstone are the essential features to be measured? Is there any
\nyardstick by which it can be gauged ? How much is essential and how much is not
\nessential? How can the essential features or the core of the essential features be
\ndetermined? If there are no indications in the Constitution as to what the essential
\nfeatures are the task of amendment of the Constitution becomes an unpredictable and
\nindeterminate task. There must be an objective data and standard by which it can be
\npredicated as to what is essential and what is not essential. If Parliament cannot judge
\nthese features Parliament cannot, amend the Constitution. If, on the other hand,
\namendments are carried out by Parliament the petitioner contends that eventually court
\nwill find out as to whether the amendment violates or abridges essential features or the
\ncore of essential features. In the ultimate analysis it is the Court which will pronounce on
\nthe amendment as to whether it is permissible or not. This construction will have the
\neffect of robbing Parliament of the power of amendment and reposing the final power of
\nexpressing validity of amendment in the courts.\n<\/p>\n
950. Mr. Palkhivala said that though the essential features could be amended the core of
\nessential features could not be amended. He said that there was no esoteric test to find out
\nwhat is essential and what is not essential and if no precise definition could be given that
\nwas no reason to hold that the essential features and the core of essential features could
\nbe amended. It was said that the appreciation of the trained judicial mind is the only way
\nto find out what essential features are.\n<\/p>\n
951. Mr. Seervai rightly contended that there is no foundation for the analogy that just as
\nJudges test reasonableness in law, similarly the judicial mind will find out the essential
\nfeatures on the test of, reasonableness. Reasonableness in law is treated as an objective
\ncriterion because reason inheres in man as rational being. The citizen whose rights are
\naffected applies reason and when he assails a law he possesses a standard by which he
\ncan persuade the Court that the law is unreasonable. The legislature which makes a law
\nhas the standard of reasonableness and has the further qualification to apply the standard
\nbecause of familiarity with the needs, desires and the wants of the people whom the
\nlegislature represents. As regards the Judge not only does he share the reasonableness of
\nthe reasonable man but his trained mind enables him to see certain aspects clearly. The
\nprocess of judicial review of legislation as laid down by Courts is that the Court will start
\nwith the presumption that laws enacted are reasonable. The objective standard is
\nreasonableness. That is why in the law of contract reasonable price is to be ascertained by
\nthe Courts. In the law of torts the Courts find out what reasonable care is. In the law of
\nproperty reasonable conduct is found out by the Courts to avoid evil consequences.
\nReasonableness is to be judged with reference to the right which is restricted when
\nArticle 19 is considered.\n<\/p>\n
952. The American Courts evolved a test of reasonableness by the doctrine of substantive
\ndue process which means not that the law is unreasonable but that on political, social and
\neconomic grounds the majority of Judges consider that the law ought not be permitted to
\nbe made. The crucial point is that in contradistinction to the American Constitution where
\nrights are couched in wide general terms leaving it to the Courts to evolve necessary
\nlimitations our Constitution limited it by precise words of limitation as for example in
\nArticles 19 and 21. In Article 21 the Constitution-makers substituted “procedure
\nestablished by law” for the words “due process of law”. The reason for the change was
\nthat the procedure established by law was specific. The framers of the Constitution
\nnegatived the vague undefinite reasonableness of laws on political, social and economic
\ngrounds. In Gopalan case due process was rejected, by clearly limiting the rights acquired
\nand by eliminating the indefinite due process. The Constitution makers freed judicial
\nreview of subjective determination. Due process as a test of invalidity of law was
\ndeliberately withheld or denied. Courts are not concerned with the wisdom or policy of
\nlegislation. The Courts are equally not concerned with the wisdom and policy of
\namendments to the Constitution.\n<\/p>\n
953. Reliance was placed by Mr. Palkhivala on Ridge v. Baldwin 1964 A.C. 40 where it
\nis said that opinions that natural justice is so vague as to be practically meaningless, are
\ntainted by the perennial fallacy that because something cannot be cut and dried or nicely
\nweighed or measured therefore it does not exist. In the same case it was said that the idea
\nof negligence is equally insusceptible or exact definition, but what a reasonable man
\nwould regard as fair procedure in particular circumstances and what he would regard as
\nnegligence in particular circumstances are equally capable of serving as tests in law.
\nExtracting those observations it was said by Mr. Palkhivala that though the border-line
\nbetween essential features and non-essential features could not be stated or it was not
\npossible to specify exhautively the amendment which could be invalid on that principle
\nyet there was no reason why the principle of inherent and implied limitations to amend
\nour Constitution should not be accepted. Inherent and implied limitations cannot originate
\nin an oracle when the Constitution does not contain any express prohibition against
\namending any provision. When Article 368 speaks of changes in the provisions of the
\nConstitution as are set out in Clauses (a) to (d) of the proviso it is manifest that the
\nmakers of the Constitution expressed their intention with unerring accuracy that features
\nwhich can broadly be described as federal features, and from that point of view “Essential
\nfeatures” could be amended. In the face of these express provisions it is impossible to
\nhold that the Constitution does not contemplate an amendment of the so called essential
\nfeatures of the Constitution. The proviso confers that power with relation to the judiciary,
\nthe executive and the legislature, none of which could be said to be inessential. Indeed it
\nis difficult to imagine that the Constitution contained any provision which was
\ninessential. It need be hardly said that amendment not only means alteration, addition or
\nrepeal of provision but also deletion of some part, partial repeal and addition of a new
\npart.\n<\/p>\n
954. It was said that if our Parliamentary system was changed to a Presidential system it
\nwould be amending the core of our Constitution. But such a change is permissible under
\nArticle 368. Whether the people would adopt such an amendment is a different matter
\nand does not fall for consideration here. The core of the federal form of Government in
\nour country is greater power in the Union Parliament than States for preserving the
\nintegrity of the country. There can be changes by having a confederation or by conferring
\ngreater power on the Centre. Those contentions about unamendability of essential
\nfeatures do not take into consideration that the extent and character of any change in the
\nprovisions of the Constitution is to be determined by legislatures as amending bodies
\nunder Article 368 and as representatives of the people in a democracy and it is not the
\nfunction of the Courts to make any such determination.\n<\/p>\n
955. Mr. Palkhivala contends that the Constitution 24th Amendment Act is
\nunConstitutional because Parliament cannot exceed the alleged implied and inherent
\nlimitations on the amending power as it stood before the 24th Amendment. The 24th
\nAmendment has substituted the marginal note “Power of Parliament to amend the
\nConstitution and procedure therefor” for the original note “procedure for amendment of
\nthe Constitution”. This change is due to the fact that according to the leading majority
\njudgment in Golak Nath case the unamended Article dealt only with the procedure for
\namendment and that the power of amendment was in the residuary power of legislation.
\nThe 24th Amendment has declared that the power to amend the Constitution is in Article\n<\/p>\n
368. That was the view of this Court in earlier decisions. That was the minority view in
\nGolak Nath case. By amendment that view has become the Constitutional mandate.\n<\/p>\n
956. The other change as a result of the 24th Amendment is that “Parliament may in the
\nexercise of its constituent power amend” in place of words “amendment of this
\nConstitution may be initiated”. The reasons for this change are to give effect to the
\ndecisions of this Court in Shankari Prasad case which in considering the validity of the
\nFirst Amendment recognised and affirmed the vital distinction between constituent power
\nand legislative power and decided that the word “law” in Article 13(2) applied to the
\nexercise of legislative power and did not apply to an amendment of the Constitution. In
\nSajjan Singh case the same distinction was upheld by the majority of this Court. In Golak
\nNath case the majority and the concurring judgment denied the distinction between
\nlegislative and constituent power and held that Article 13(2) applied to an amendment of
\nthe Constitution under Article 368 because there was no distinction between legislative
\nand constituent power. As a consequence the leading majority judgment in Golak Nath
\ncase held that Parliament could not amend fundamental rights. The dissenting judgments
\nin Golak Nath case upheld the vital distinction between legislative and constituent powers
\nand held that the decision in Shankari Prasad case and the majority decision in Sajjan
\nSingh case were correct and that Parliament had power to amend the fundamental rights
\nsince an amendment of the Constitution was not law within the meaning of Article 13(2).
\nThese features give the reason why the expression “Parliament may in the exercise of
\nconstituent power” was introduced by the 24th Amendment. Parliament took notice of
\ntwo conflicting views and the unamended Article 368. Parliament took notice of the
\npreponderating judicial opinion in favour of the view that Article 368 contained the
\npower of amendment and that power was a constituent power. Wanchoo, J. held that the
\npower under Article 368 is constituent power to change the fundamental law, that is to
\nsay the Constitution. The constituent power under the Constitution belonged to
\nParliament because the Constitution gave it. The Amendment made explicit what the
\njudgment in Shankari Prasad case and the majority judgment in Sajjan Singh case and the
\ndissenting judgment in Golak Nath case said, namely that Parliament has the constituent
\npower to amend the Constitution.\n<\/p>\n
957. The unamended Article used the words “An amendment of this Constitution”. The
\n24th Amendment used the words “Parliament may…amend by way of addition, variation
\nor repeal any provision of this Constitution”. This has been done because the leading
\nmajority judgment in Golak Nath case expressed the view that there is considerable force
\nin the argument that the expression “amendment” in Article 368 has a positive and
\nnegative content in exercise of which Parliament cannot destroy the structure of the
\nConstitution but it can only modify the provisions thereof within the framework of the
\noriginal instrument for its better effect. This observation in Golak Nath case raised a
\ndoubt as to the meaning of the word “amendment”. The 24th Amendment has expressly
\nclarified that doubt.\n<\/p>\n
958. The leading majority judgment and the concurring judgment in Golak Nath case
\nboth held that the fundamental rights could not be amended by Parliament. The leading
\nmajority judgment with reference to the meaning of the word “amendment” and without
\ndeciding the matter observed that there was great force in the argument that certain
\nfundamental features e.g. the concept of federalism, the institutions of the President and
\nthe Parliamentary executive could not be abolished by amendment. Shankari Prasad case,
\nSajjan Singh case and the dissenting minority judgment in Golak Nath case took the view
\nthat every provision of the Constitution could be amended in exercise of constituent
\npower. As a necessary corollary, the 24th Amendment excludes the operation of Article
\n13 by amending Article 13 by a new Sub-article (4) that nothing in Article 13 shall apply
\nto any amendment of this Constitution under Article 368. The amendment of Article 13
\nby an insertion of Sub-article (4) is also reinforced by the opening words introduced in
\nArticle 368 by the 24th Amendment, viz., notwithstanding anything contained in this
\nConstitution, which would certainly exclude Article 13.\n<\/p>\n
959. The Constitution 24th Amendment Act raises three aspects. First, does the word
\n“amend” include abrogation or repeal of the whole Constitution? Does amendment mean
\nthat there is some feature of the Constitution which cannot be changed. Secondly, what
\nlight does the proviso to Article 368 throw on the nature of the amending power and on
\nthe doctrine of inherent and implied limitations on the amending power that essential
\nfeatures of the Constitution cannot be damaged or destroyed. Thirdly, does Clause (e) of
\nthe proviso to Article 368 enable Parliament and the requisite majority of the States to
\nincrease the power of amendment that was conferred by Article 368.\n<\/p>\n
960. Article 368 in the unamended form contained power as well as self executing
\nprocedure which if followed by the prescribed authorities would result in an amendment
\nof the Constitution. Both the Attorney General and Mr. Seervai rightly said that the words
\n“Constitution shall stand amended” in Article 368 will exclude a simple repeal that is
\nwithout substituting anything in place of the repealed Constitution. If the Constitution
\nwere totally repealed and a vacuum was created it could not be said that the Constitution
\nstands amended. The Constitution means the mode in which a State is constituted or
\norganised specially as to the location of sovereign power. The Constitution also means
\nthe system or body of fundamental principles according to which the nation, State and
\nbody politic is constituted and governed. In the case of a written Constitution the
\nConstitution is more fundamental than any particular law and contains a principle with
\nwhich all legislation must be in harmony. Therefore, an amendment of the Constitution is
\nan amendment of something which provides a system according to which a State or
\nnation is governed. An amendment of the Constitution is to make fundamental changes in
\nthe Constitution. Fundamental or basic principles can be changed. There can be radical
\nchange in the Constitution like introducing a Presidential system of government for a
\ncabinet system or a unitary system for a federal system. But such amendment would in its
\nwake bring all consequential changes for the smooth working of the new system.\n<\/p>\n
961. However radical the change the amendment must provide for the mode in which the
\nState is constituted or organised. The question which was often put by Mr. Palkhivala
\ndrawing a panorama of a totalitarian State in place of the existing Constitution can be
\nsimply answered by saying that the words “The Constitution shall stand amended”
\nindicate that the Constitution of India is being referred to. The power of amendment is
\nunlimited so long as the result is an amended Constitution, that is to say, an organic
\ninstrument which provides for the making interpretation and implementation of law.\n<\/p>\n
962. The theory of unamendability of so called essential features is unmeritorious in the
\nface of express provisions in Article 368 particularly in Clauses (a) to (d) of the proviso.
\nClauses (a) to (d) relate to 66 Articles dealing with some of the most important features
\nof the Constitution. Those Articles relate to the judiciary, the legislature and the
\nexecutive. The legislative relations between the Union and the States and the distribution
\nof legislative power between them are all within the ambit of amendment.\n<\/p>\n
963. The question which was raised by Mr. Palkhivala as to whether under proviso (e) to
\nthe unamended Article 368 the power of amendment could be increased is answered in
\nthe affirmative. The reasons broadly stated are three.\n<\/p>\n
964. First, under Article 368 proviso (e) any limitation on the power of amendment
\nalleged to be found in any other Article of the Constitution can be removed. The full
\nmagnitude of the power of amendment which would have existed but for the limitation
\ncould be restored and the power of amendment increase. In Golak Nath case the majority
\nview was that Article 13(2) operated as a limitation on the power of amendment. The
\n24th Amendment took note of that decision and removed all doubts by amending Article
\n13(2) and providing a new Sub-article (4) there and also by amending Article 368 to the
\neffect that Article 13(2) shall not apply to any amendment of the Constitution. If the
\nexpress limitation which had been judicially held to constitute a bar to the amendment of
\nfundamental rights could be removed by amending Article 368 under Clause (e) to the
\nproviso any other alleged implied limitation can be similarly removed.\n<\/p>\n
965. Secondly, judicial decisions show that by amending the Article conferring the power
\nof amendment a greater power to amend the Constitution can be obtained than was
\nconferred by the original Article. In Ryan case 1935 Irish Report 170 all the learned
\nJudges excepting the Chief Justice held that by first amending Section 50 of the Irish
\nConstitution which conferred the power of amendment subject to certain restrictions
\nthereon so as to remove the restrictions contained in that section, the Irish Parliament
\neffectively increased its power in the sense that an amendment could be made which
\nthose express restrictions would have prohibited. Again in Ranasinghe case 1965 A.C.
\n172 it was said that a legislature has no power to ignore the conditions of law making that
\nare imposed by the instrument which regulates its power. This restriction created by the
\ninstrument exists independently of the question whether the legislature is sovereign or
\nwhether the Constitution is uncontrolled. The Judicial Committee held that “such a
\nConstitution can indeed be altered or amended by the legislature if the regulating
\ninstrument so provides and if the terms of those provisions are complied with and the
\nalteration or amendment may include the change or abolition of those very provision”.
\nThus a controlled Constitution can be converted into an uncontrolled Constitution vastly
\nincreasing the power of amendment.\n<\/p>\n
966. Thirdly, the power to amend the amending Article must include the power to add,
\nalter or repeal any part of that Article and there is no reason why the addition cannot
\nconfer a power of amendment which the authorities named in Article 368 did not possess.
\nBy the exercise of the amending power provision can be made which can increase the
\npowers of Parliament or increase the powers of the States. Again, by amendment future
\namendments can be made more difficult. The picture drawn by Mr. Palkhivala that a
\nfuture amendment would be rendered impossible either by absolutely forbidding
\namendment or by prescribing an impractically large majority does not present any legal
\nimpediment to such an amendment. The safeguard against such action is external. The
\ncontingency of any such amendment being proposed and accepted is extremely remote
\nbecause such an amendment might sow the seeds of revolution which would be the only
\nway to bring about the change in the Constitution. The Solicitor General rightly said that
\nthe effect of the amendment is that “it shall stand amended in accordance with the terms
\nof the Bill”. The product is not required to be “this Constitution”. It will not be identically
\nthe old Constitution. It will be a changed or amended Constitution and its resemblance
\nwill depend on the extent of the change. More rigid process like referendum or initiative
\nor greater majority or ratification by a larger number of States might be introduced by
\namendment.\n<\/p>\n
967. It is important to note that proviso (e) to Article 368, namely, the power to amend
\nArticle 368 is unlike perhaps some Constitutions which were before the Constituent
\nAssembly when our Constitution was framed. Neither the American nor the Australian
\nConstitution provided for any power to amend the amending provision itself. The
\nAttorney General rightly contended that this forcefully expresses a clear and deliberate
\nintention of the Constituent Assembly that apart from providing for a less rigid amending
\nformula the Constituent Assembly took care to avoid the controversy in America as to
\nwhether express limitation on Article V of the American Constitution itself regarding
\nequal suffrage of the States in the Senate could be amended or the controversy in
\nAustralia as to whether Section 128 of the Australian Constitution itself could be
\namended as there was no express limitation on such amendment. The Constituent
\nAssembly provided in Clause (e) to Article 368 express and specific power of
\namendment of Article 368 itself.\n<\/p>\n
968. The amplitude of the amending power in our Constitution stands in bold relief in
\ncomparison with Article V of the American Constitution, Section 128 of the Australian
\nConstitution and Section 50 of the Irish Constitution none of which confers such a power.
\nDr. Wynes in his Legislative Powers in Australia 4th Ed. p. 505 expresses the view that
\nthough Section 128 is negative in form but the power of amendment extends to alteration
\n“of this Constitution” and this power is implied by its terms. Dr. Wynes also states that by
\nthe consent of the States the last part of Section 128 could be amended. This is only to
\nillustrate as to how other Constitutions are understood by jurists in their countries. Our
\nArticle 368 contains no express limitation on the power of amendment. The provision of
\nClause (e) in the proviso to Article 368 is not limited to federal features.\n<\/p>\n
969. The words “amendment of this Constitution” in Section 50 of the Irish Constitution
\nwhich formed the subject of decision in Ryan case 1935 Irish Report 170 were read by
\nKennedy, C.J. in his dissenting view to mean that if power to amend Section 50 itself was
\nintended to be given the framers of the Constitution would have said so. Mr. Palkhivala
\nrelied on this dissenting view. Other learned Judges who formed the majority held that
\nthe words “amendment of this Constitution” conferred power to amend that Section 50 as
\nwell. If no intention to amend that section itself is expressed there is nothing which can
\nbe implied was the dissent. Therefore, it would follow even according to the dissent that
\nno implied limitations on the power of amendment can be read in Section 50 if an express
\npower of amendment has been conferred by the Constitution.\n<\/p>\n
970. Mr. Palkhivala contended that the people reserved the power to themselves to amend
\nthe essential features of the Constitution and if any such amendment were to be made it
\nshould be referred to the people by referendum. It was said that the Constitution makers
\ndid not intend that essential features should be damaged or destroyed even by the people,
\nand therefore, the Constitution did not provide for referendum. The other contention on
\nbehalf of the petitioner was that referendum was not provided for because it might have
\nbeen difficult to have the Constitution accepted on those terms. The second view would
\nnot eliminate the introduction of referendum as a method of amendment. If a referendum
\nwere introduced by an amendment people would have complete power to deal with
\nessential features. The other question would be as to whether the Preamble and the
\nfundamental rights would be a limitation on the power of the people. On behalf of the
\npetitioner it was said that it was not necessary to decide the questions. Both the Attorney
\nGeneral and Mr. Seervai correctly said that the submissions made on behalf of the
\npetitioner indicated that if essential features could be amended by the people the very fact
\nthat the Constituent Assembly did not include referendum as one of the methods of
\namendment and that the Constitution makers excluded no part of the Constitution from
\namendment established that the amendment of a written Constitution can be legally done
\nonly by the method prescribed by the Constitution. If the method of referendum be
\nadopted for purpose of amendment as suggested by Mr. Palkhivala that would be extra
\nConstitutional or revolutionary. The amending body to amend the Constitution represents
\nthe will of the people.\n<\/p>\n
971. Therefore, as long as Article 368 may be amended under proviso (e) any amendment
\nof the Constitution by recourse to referendum would be revolutionary. Mr. Palkhivala on
\nbehalf of the petitioner did not rely on the majority decision in Golak Nath case that the
\nfundamental rights could be abridged or taken away only by convening a Constituent
\nAssembly, but based his argument on a theory of legal sovereignty of the people. The
\nConstitution is binding on all the organs of government as well as on the people. The
\nAttorney General rightly submitted that the concept of popular sovereignty is well settled
\nin parliamentary democracy and it means that the people express their will through their
\nrepresentatives elected by them at the general election as the amending body prescribed
\nby the Constitution.\n<\/p>\n
972. Are fundamental rights unamendable? Mr. Palkhivala contended that apart from
\nArticle 13(2) fundamental rights are based on Universal Declaration of Human Rights
\nand are natural rights, and, therefore, they are outside the scope of amendment. In Golak
\nNath case the majority view declined to pronounce any opinion on alleged essential
\nfeatures other than fundamental rights. The concurring view was that fundamental rights
\nwere unamendable because they were fundamental. Wanchoo, J. for himself and two
\nother learned Judges and Ramaswami, J. rightly rejected the theory of implied
\nlimitations. The three reasons given by Wanchoo, J. are these. First, the doctrine of
\nessential and non-essential features would introduce uncertainty. Secondly, constituent
\npower of amendment does not admit of any impediment of implied restrictions. Thirdly,
\nbecause there is no express limitation there can be no implied limitation.\n<\/p>\n
973. Mr. Seervai correctly contended that there is intrinsic evidence in the provisions of
\nPart III itself that our Constitution does not adopt the theory that fundamental rights are
\nnatural rights or moral rights which every human being is at all times to have simply
\nbecause of the fact that as opposed to other things he is rational and moral. The language
\nof Article 13(2) shows that these rights are conferred by the people of India under the
\nConstitution and they are such rights as the people thought fit to be in the organised
\nsociety or State which they were creating. These rights did not belong to the people of
\nIndia before 26 January 1950 and would not have been claimed by them. Article 19
\nembodies valuable rights. Rights under Article 19 are limited only to citizens. Foreigners
\nare human beings but they are not given fundamental rights because these rights are
\nconferred only on citizens as citizens.\n<\/p>\n
974. Article 33 enacts that Parliament may by law modify rights conferred by Part III in
\ntheir application to Armed Forces. Parliament may restrict or abrogate any of the rights
\nconferred by Part III so as to ensure the proper discharge of the duties of the Armed
\nForces and the maintenance of discipline among them. Therefore, Article 33 shows that
\ncitizens can be denied some of these rights. If these are natural rights these cannot be
\nabrogated. Article 34 shows that Parliament may by law indemnify any person in respect
\nof any act done by him in connection with the maintenance or restoration of order in any
\narea where martial law was in force or validate any sentence passed, punishment
\ninflicted, forfeiture ordered or other act done under martial law in such area. Article 34
\nagain shows restriction on rights conferred by Part III while martial law is in force in any
\narea. The dominant concept is social good. Where there is no restraint the society fails.\n<\/p>\n
975. Articles 352 and 358 also illustrate as to how while the proclamation of emergency
\nis in operation provisions of Article 19 are suspended during emergency. The framers of
\nthe Constitution emphasised the social content of those rights. The basic concept of
\nfundamental right is therefore a social one and it has a social function. These rights are
\nconferred by the Constitution. The nature of restriction on fundamental rights shows that
\nthere is nothing natural about those rights. The restrictions contemplated under Article
\n19(2) with regard to freedom of speech are essential partis of a well organised developed
\nsociety. One must not look at location of power but one should see how it acts. The
\nrestrictions contemplated in Article 19 are basically social and political. Friendly
\nrelations with foreign states illustrate the political aspect of restrictions. There are similar
\nrestrictions on right to move freely. The protection of Scheduled Tribes is also reasonable
\nin the interest of society. This Court in Basheshar Nath v. C.I.T. Delhi (1959) Supp. 1.
\nS.C.R. 528 said that there are no natural rights under our Constitution and natural rights
\nplayed no part in the formulation of the provisions therein.\n<\/p>\n
976. Articles 25 and 26 by their opening words show that the right to the freedom of
\nreligion is subject to the paramount interest of society and there is no part of the right
\nhowever important to devotee which cannot and in many cases have not been denied in
\ncivilised society.\n<\/p>\n
977. Subba Rao, C.J. in Golak Nath case equated fundamental rights with natural rights
\nor promodial rights. The concurring majority view in Golak Nath case, however, said that
\nthere is no natural right in property and natural rights embrace the activity outside the
\nstatus of citizen. Fundamental rights as both the Attorney General and Mr. Seervai rightly
\ncontended are given by the Constitution, and, therefore, they can be abridged or taken
\naway by the people themselves acting as an organised society in a State by the
\nrepresentatives of the people by means of the amending process laid down in the
\nConstitution itself. There are many Articles in Part III of our Constitution which cannot
\nin any event be equated with any fundamental right in the sense of natural right. To
\nillustrate Article 17 deals with abolition of untouchability. Article 18 speaks of abolition
\nof titles. Article 20 deals with protection in respect of conviction for offences. Article 23
\nrefers to prohibition of traffic in human beings and forced labour. Article 24 deals with
\nprohibition of employment of children in factories, etc. Article 27 speaks of freedom as to
\nliability for taxes levied for promotion of any particular religion. Article 28 contemplates
\nfreedom as to attendance at religious instruction or religious worship in certain
\neducational institutions. Article 29 deals with protection of interests of minorities. Article
\n31(2) prior to the Constitution 25th Amendment Act spoke of payment of just equivalent
\nfor acquisition or requisition of property. Article 31(4) deals with legislation pending at
\nthe commencement of the Constitution. Articles 31(5) and (6) save certain types of laws.
\nArticle 31A saves laws providing for acquisition of estates etc. Article 32 confers right to
\nmove the Supreme Court.\n<\/p>\n
978. The Constitution is the higher law and it attains a form which makes possible the
\nattribution to it of an entirely new set of validity, the validity of a statute emanating from
\nthe sovereign people. Invested with statutory form and implemented by judicial review
\nhigher law becomes juristically the most fruitful for people. There is no higher law above
\nthe Constitution.\n<\/p>\n
979. Mr. Palkhivala relied on an Article by Conrad on Limitation of Amendment
\nProcedure and the Constitutional Power. The writer refers to the West German Provincial
\nConstitution which has expressly excluded basic rights from amendment. If that is so the
\nquestion of basic rights being unamendable on the basis of higher law or natural law does
\nnot arise. The conclusion of the writer is that whereas the American courts did not
\nconsider declaring a Constitutional norm void because of a conflict with higher law the
\nGerman Jurisprudence broadened the concept of judicial review by recourse to natural
\nlaw. The post-war Constitution of West Germany distinguished between superior and
\ninferior Constitutional norms in so far as certain norms are not subject to amendment
\nwhereas others are.\n<\/p>\n
980. The Attorney General relied on Friedmann Legal Theory 5th Ed. on pp. 350 seq. to
\nshow that there was a revival of natural law theory in contemporary German Legal
\nPhilosophy. This theory of natural law springs from the reaction against the excess of the
\nNazi regime. The view of Friedmann is that natural law may disguise to pose itself the
\nconflict between the values which is a problem of constant and painful adjustment
\nbetween competing interests, purposes and policies. This conflict is resolved by ethical or
\npolitical evolution which finds place in legislative policies and also on the impact of
\nchanging ideas on the growth of law.\n<\/p>\n
981. Fundamental rights are social rights conferred by the Constitution. There is no law
\nabove the Constitution. The Constitution does not recognise any type of law as natural
\nlaw. Natural rights are summed up under the formula which became common during the
\nPuritan Revolution namely life, liberty and property.\n<\/p>\n
982. The theory of evolution of positive norms by supra-positive law as distinguished
\nfrom superior positive law had important consequences in the post-war revival of natural
\nlaw in some countries particularly Germany. Most of the German Constitutions from the
\nearly 19th Century to the Nazi Regime did not provide for judicial review. Under the
\nWeimar regime, the legislature reigned supreme and legal positivism was brought to an
\nextreme. The re-action after World War II was characterised by decreases of legislative
\npower matched by an increase of judicial power. It is in this context that Conrad’s writing
\non which Mr. Palkhivala relied is to be understood. The entire suggestion is that norms
\ncould not only be judged by a superior law namely Constitutional law but by natural law
\nto broaden the scope of judicial review. The acceptance of the doctrine of judicial review
\nhas been considered as a progress in Constitutional theory made between Declaration of
\nIndependence and the Federal Convention at Philadelphia.\n<\/p>\n
983. On the one hand there is a school of extreme natural law philosophers who claim
\nthat a natural order establishes that private capitalism is good and socialism is bad. On the
\nother hand, the more extreme versions of totalitarian legal philosophy deny the basic
\nvalue of the human personality as such. Outside these extremes, there is a far greater
\ndegree of common aspirations. The basic autonomy and dignity of human personality is
\nthe moral foundation of the teaching of modern natural law philosophers, like Maritain. It
\nis in this context that our fundamental rights and Directive Principles are to be read as
\nhaving in the ultimate analysis a common good. The Directive Principles do not
\nconstitute a set of subsidiary principles to fundamental rights of individuals. The
\nDirective Principles embody the set of social principles to shape fundamental rights to
\ngrant a freer scope to the large scale welfare activities of the State. Therefore, it will be
\nwrong to equate fundamental rights as natural, inalienable, primodial rights which are
\nbeyond the reach of the amendment of the Constitution. It is in this context that this Court
\nin Basheshar Nath v. C.I.T. Delhi (1959) Supp. 1 S.C.R. 528 said that the doctrine of
\nnatural rights is nothing but a foundation of shifting sand.\n<\/p>\n
984. Mr. Seervai rightly said that if the power of amendment of the Constitution is co-
\nextensive with the power of the judiciary to invalidate laws, the democratic process and
\nthe co-ordinate nature of the great departments of the State are maintained. The
\ndemocratic process is maintained because the will of the people to secure the necessary
\npower to enact laws by amendment of the Constitution is not defeated. The democratic
\nprocess is also respected because when the judiciary strikes down a law on the ground of
\nlack of power, or on the ground of violating a limitation on power, it is the duty of the
\nlegislature to accept that position, but if it is desired to pass the same law by acquiring the
\nnecessary power, an amendment validly enacted enables the legislatures to do so and the
\ndemocratic will to prevail. This process harmonises with the theory of our Constitution
\nthat the three great departments of the State, the legislature, the judiciary and the
\nexecutive are co-ordinate and that none is superior to the other. The normal interaction of
\nenactment of law by the legislation, of interpretation by the courts, and of the amendment
\nof the Constitution by the legislature, go on as they were intended to go on.\n<\/p>\n
985. If the power of amendment does not contain any limitation and if this power is
\ndenied by reading into the Constitution inherent limitations to extinguish the validity of
\nall amendments on the principles of essential features of the Constitution which are
\nundefined and untermed, the courts will have to lay down a new Constitution.\n<\/p>\n
986. It is said that the frame of the Government cannot be changed or abrogated by
\namendment of the Constitution. There is before us no aspect of abrogation of the form of
\nGovernment of the changes apprehended by the petitioners like the abrogation of the
\njudiciary or extending the life of Parliament.\n<\/p>\n
987. The problems of the times and the solutions of those problems are considered at the
\ntime of framing the Constitution. But those who frame the Constitution also know that
\nnew and unforseen problems may emerge, that problems once considered important may
\nlose their importance, because priorities have changed; that solutions to problems once
\nconsidered right and inevitable are shown to be wrong or to require considerable
\nmodification; that judicial interpretation may rob certain provisions of their intended
\neffect; that public opinion may shift from one philosophy of government to another.
\nChanges in the Constitution are thus actuated by a sense of duty to the people to help
\nthem get what they want out of life. There is no destiny of man in whose service some
\nmen can rightfully control others; there are only the desires and performances and
\nambitions that men actually have. The duty to maximise happiness means that it is easier
\nto give people what they want than to make them want what you can easily give. The
\nframers of the Constitution did not put any limitation on the amending power because the
\nend of a Constitution is the safety, the greatness and well being of the people. Changes in
\nthe Constitution serve these great ends and carry out the real purposes of the Constitution.\n<\/p>\n
988. The way in which the doctrine of inherent and implied limitations was invoked by
\nMr. Palkhivala in interpreting the Constitution was that the test of power under the
\nConstitution must be to ascertain the worst that can be done in exercise of such power.
\nMr. Palkhivala submitted that if unbridled power of amendment were allowed the basic
\nfeatures of our Constitution, namely, the republican and\/or democratic form of
\ngovernment and fundamental Tights could be destroyed and India could be converted into
\na totalitarian dictatorship. The Court was invited to take into account the consequences of
\nthe kind described. Mr. Palkhivala suggested that a wide power of amendment would
\nlead to borrow his words to the liquidation of our Constitution.\n<\/p>\n
989. The Attorney General rightly said that the unambiguous meaning of amendment
\ncould not be destroyed to nurse the theory of implied limitations. He also said that the
\nlive distinction between power and exercise of power is subject to popular will and
\npopular control. The theory of implied and inherent limitation was a repudiation of
\ndemocratic process. The Attorney General and Mr. Seervai also rightly said that the
\napproach of the petitioner to the power of amendment contained in Article 368 of the
\nConstitution ignores the fact that the object of the Constitution is to provide for
\ndepartments of States like the judiciary, the legislature and the executive for the
\ngovernance of a country. Apart from the essential functions of defence against external
\naggression and of maintenance of internal order a modern State is organised to secure the
\nwelfare of the people. Parliament and State legislatures are elected on adult universal
\nsuffrage. The country is governed by the Cabinet system of Government with ministries
\nresponsible to the Houses of Parliament and to the Legislative Assemblies.\n<\/p>\n
990. In a democracy the determination of the right policies to be pursued can only be
\ndetermined by a majority vote cast at election and then by a majority of the elected
\nrepresentatives in the legislature. Democracy proceeds on the faith in the capacity to elect
\ntheir representatives, and faith in the representatives to represent the people. The
\nargument that the Constitution of India could be subverted or destroyed might have
\nhortative appeal but it is not supportable by the actual experience in our country or in any
\ncountry. The two basic postulates in democracy are faith in human reason and faith in
\nHuman nature. There is no higher faith than faith in democratic process. Democracy on
\nadult suffrage is a great experiment in our country. The roots of our democracy are in the
\ncountry and faith in the common man. That is how Mr. Seervai said that between 1951
\nwhen this Court recognised in Sankari Prasad case unlimited power of amendment till
\nGolak Nath decision in 1967 the normal democratic process in our country functioned as
\nprovided by the Constitution.\n<\/p>\n
991. The principle underlying the theory of taking consequences into account is best
\nexpressed in Vacher & Sons v. London Society of Compositors 1913 A.C. 107, where it
\nwas said that if any particular construction in construing the words of a statute was
\nsusceptible to more than one meaning, it was legitimate to consider the consequences
\nwhich would result from any particular construction. The reason is that there are many
\nthings which the legislation is presumed not to have intended to bring about and therefore
\na construction which would not lead to any of these things should be preferred to one
\nwhich would lead to one or more of them.\n<\/p>\n
992. The doctrine of consequences has no application in construing a grant of power
\nconferred by a Constitution. In considering a grant of power the largest meaning should
\nbe given to the words at the power in order to effectuate it fully. The two exceptions to
\nthis rule are these. First, in order to reconcile powers exclusively conferred on different
\nlegislatures, a narrower meaning can be given to one of the powers in order that both may
\noperate as fully as is possible. (See C.P. & Berar case 1938 F.C.R. 18 and Province of
\nMadras v. Governor General 72 I.A. 93). Second, technical terms must be given their
\ntechnical meaning even though it is narrower than the ordinary or popular meaning. The
\nState of Madras v. Gannon Dunkerley & Co. (Madras) Ltd.<\/a> 1959 S.C.R. 379. In our
\nConstitution powers are divided between federation and the States. An attempt must be
\nmade to find the power in some entry or other because it must be assumed that no power
\nwas intended to be left out.\n<\/p>\n
993. The theory of consequences is misconstrued if it is taken to mean that considerations
\nof policy, wisdom and social or economic policies are included in the theory of
\nconsequences. In Vacher case it was said that the judicial tribunal, has nothing to do with
\nthe policy of any Act and the only duty of the Court is to expound the language of the Act
\nin accordance with the settled rules of construction. In Attorney General for Ontario v.
\nAttorney General for Dominions 1912 A.C. 571 the Privy Council refused to read an
\nimplication in the Constitution of Canada that there was no power to refer a matter for the
\nadvisory opinion of the highest Court because advisory opinions were prejudicial to the
\ncorrect administration of justice and were embarrassing to Judges themselves who
\npronounced them, for humanly speaking it would be difficult for them to hear a case on
\nmerits if they have already expressed an opinion. The Privy Council rejected this
\nargument and said that so far as it was a matter of wisdom and policy it was for the
\ndetermination of Parliament. In Bank of Toronto v. Lambe (1887) 12 A.C. 575 the Privy
\nCouncil was invited to hold that the legislature of a province could not levy a tax on
\ncapital stock of the Bank, for that power might be exercised to destroy the Bank
\naltogether. The Privy Council observed that if on a true construction of Section 92 of the
\nBritish North America Act the power fell within the section, it would be wrong to deny
\nits existence because by some possibility it might be abused.\n<\/p>\n
994. The absurdity of the test of the worst that can be done in exercise of power is
\ndemonstrated by the judgment of Chief Justice Taft in Gross-man 69 L.Ed. 527 where it
\nwas said that if those who were in separate control of each of the three branches of
\nGovernment were bent upon defeating the action of the other, normal operations of
\nGovernment would come to a halt and could be paralysed. Normal operations of the
\nGovernment assume that all three branches must co-operate if Government is to go on.
\nWhere the meaning is plain the Court must give effect to it even if it considers that such a
\nmeaning would produce unreasonable result. In the Bihar Land Reforms case 1952
\nS.C.R. 889 Mahajan, J. said that agrarian laws enacted by the legislature and protected by
\nArticles 31(3) and (4) provided compensation which might appear to the Court unjust and
\ninequitable. But the Court gave effect to Articles 31(3) and (4) because the results were
\nintended and the remedy for the injustice lay with the legislature and not with the Court.
\nThe construction to avoid absurdity must be used with great caution.\n<\/p>\n
995. In Grundt case 1948 Ch. 145 it was said in choosing between two possible meanings
\nof ambiguouos words, the absurdity or the nonabsurdity of one conclusion as compared
\nwith another might be of assistance and in any event was not to be applied as to result in
\ntwisting the language into a meaning which it could not bear.\n<\/p>\n
996. The Attorney General rightly submitted that if power is conferred which is in clear
\nand unambiguous language and does not admit of more than one construction there can
\nbe no scope for narrowing the clear meaning and width of the power by considering the
\nconsequences of the exercise of the power and by so reading down the power. The
\nquestion is not what may be supposed to be intended but what has been said. See Ross v.
\nIllison 1930 A.C. 1. The Supreme Court in Damselle Howard v. Illinois Central Rail
\nRoad Co. 207 U.S. 463 said that you cannot destroy in order to save or save in order to
\ndestroy. The real import is that a new law cannot be made by construction. The question
\nis one of intention. A meaning cannot be different which it cannot reasonably bear or will
\nbe inconsistent with the intention. The very basis of Parliamentary democracy is that the
\nexercise of power is always subject to the popular will and popular control. The
\npetitioner’s theory of implied and inherent limitations is a repudiation of this democratic
\nprocess. The underlying theory of democratic government is “the right of a majority to
\nembody their opinion in law subject to the limitations imposed by the Constitution”, per
\nHolmes, J. in Lochner v. New York 198 U.S. 45. In our Constitution Article 368 contains
\nno express limitation on the amendment of any provision of the Constitution.\n<\/p>\n
997. Mr. Palkhivala relied on the amending provisions in the Constitution of America,
\nCanada, Australia, Ireland and Ceylon and also decisions on the power of amendment in
\nthose countries in support of his submissions that a restricted meaning should be
\nattributed to the word “amendment” and implied and inherent limitations should be read
\ninto the meaning and power of amendment.\n<\/p>\n
998. Mr. Palkhivala also relied on the opinion of Cooley in a Treatise on the
\nConstitutional Limitations at pages 36-37 that “a written Constitution is in every instance
\na limitation upon the powers of government in the hands of agents; for there never was a
\nwritten republican Constitution which delegated to functionaries all the latent powers
\nwhich lie dormant in every nation, and are boundless in extern, and incapable of
\ndefinition”. This view of Cooley is not relevant to the amending power in Article V of the
\nAmerican Constitution. This view relates to the legislative power that a written
\nConstitution is a limitation upon the powers of the Government, namely, the legislature,
\nthe executive and the judiciary.\n<\/p>\n
999. The other views of Cooley in Constitutional Limitations at pages 341-343, 345-348,
\n351-354 are these. First except where the Constitution has imposed limitations upon the
\nlegislative power it must be considered as practically absolute, whether it operates
\naccording to natural justice or not in any particular case. Second, in the absence of
\nConstitutional restraint the legislative department of a State Government has exclusive
\nand ample power and its utterance is the public policy of the State upon that subject, and
\nthe Courts are without power to read into the Constitution a restraint of the legislature
\nwith respect thereto. Third, if the Courts are not at liberty to declare statutes void because
\nof their apparent injustice of impolicy, neither can they do so because they appear to the
\nminds of the Judges to violate fundamental principles of republican Government, unless
\nit shall be found that those principles are placed beyond legislative encroachment by the
\nConstitution. The principles of republican government are not a set of inflexible rules,
\nvital and active in the Constitution, though unexpressed, but they are subject to variation
\nand modification from motives of policy and public necessity. Fourth, the Courts are not
\nat liberty to declare an act void, because in their opinion it is opposed to a spirit supposed
\nto pervade the Constitution, but not expressed in words.\n<\/p>\n
1000. Mr. Palkhivala relied on the views of George Skinner published in 18 Michigan
\nLaw Review (1919-1920) pages 21-225 to build the theory of implied and inherent
\nlimitations. The views extracted are these. The power given by the Constitution cannot be
\nconstrued to authorise a destruction of other powers in the same instrument. The essential
\nform and character of the Government, being determined by the location and distribution
\nof power, cannot be changed, only the exercise of governmental functions can be
\nregulated. A somewhat different view of Skinner in the same Law Review is that it is not
\nlikely that the Supreme Court would put any limitations upon the power of Congress to
\npropose amendments and in construing the Fifth Article it would be unwilling to say
\nCongress had proposed an amendment which it did not deem necessary. The discretion is
\nleft entirely with Congress.\n<\/p>\n
1001. The other view on which Mr. Palkhivala relied is of William L. Marbury published
\nin 33 Harvard Law Review (1919-1920) at pp. 223-235. The views which Mr. Palkhivala
\nextracted are that it may be safely premised that the power to amend the Constitution was
\nnot intended to include the power to destroy it. Marbury relies on Livermore v. Waite 102
\nCal. 118 where it is stated that the term “amendment” implies such an addition or change
\nwithin the lines of the original instrument as will effect an improvement, or better carry
\nout the purpose for which it was framed.\n<\/p>\n
1002. There are other views of Marbury on which the Attorney General relied and which
\nwere not extracted by Mr. Palkhivala. Those views are that after excluding from the
\nscope of its amending power in Article V of the American Constitution such amendments
\nas take away legislative powers of the State there is still left a very broad field for its
\noperation. All sorts of amendments might be adopted which would change the framework
\nof the federal Government, the thing which the Constitution was created to establish,
\nwhich would change the distribution of power among the various departments of the
\nGovernment, place additional limitations upon them, or abolish old guarantees of civil
\nliberty and establish new ones.\n<\/p>\n
1003. The Attorney General also relied on the view of Frierson published in 33 Harvard
\nLaw Review pp. 659-666 as a reply to Marbury. Frierson’s view is that the security for
\nthe States was provided for by the provision for the necessity of ratification by three-
\nfourths of the States. The Constitution committed to Congress and not to the Courts the
\nduty of determining what amendments were necessary. The rights of the States would
\ncertainly be safer in the hands of three-fourths of the States themselves. This is
\nconsidered by the framers of the Constitution to ensure integrity of States.
\n1004. The Attorney General also relied on the view of McGovney published in Vol. 20
\nColumbia Law Review. McGovney points out a distinction between a political society or
\nState on the one hand and governmental organs on the other to appreciate that
\nConstitutional limitations are against governmental organs. The writer’s view is that an
\nindividual has no legal rights against a sovereign organised political society except what
\nthe society gives. The doctrine of national sovereignty means that people who made the
\nexisting distribution of powers between the federal and the State Governments may alter
\nit. Amendment is left to legislatures because as a matter of convenience the legislatures
\ngenerally express the will of the people. In the Constitution the people prescribe the
\nmanner in which they shall amend the Constitution. McGovney states that an amendment
\nof a particular statute means usually it is a change germane to the subject matter of that
\nstatute. Any change in the Government of the nation is germane to the Constitution. Any
\nchange altering the dispositions of power would therefore be germane to the purposes of
\nthe instrument. McGovney’s view is that it is clear that no limitation on the amending
\npower can be found in this notion of necessity for germaneness.
\n1005. The Attorney General also relied on an Article “On the views of W.F. Dodd
\npublished in 30 Yale Law Journal p. 321 seq. and of H.W. Taft, published in 16 Virginia
\nLaw Review p. 647 seq. The view of Dodd is this. There are no implied limitations on the
\namending power. The Supreme Court in the National Prohibition cases rejected the
\narguments presented in favour of implied limitations. To narrow down the meaning of
\namendment or to adopt implied limitations would not only narrow down the use of the
\namending power but would also leave the question of amending power in each case to
\njudicial decision without the guidance of any legal principle. Taft’s view is that by reason
\nof the Tenth Amendment which provided that the powers not delegated to the United
\nStates by the Constitution nor prohibited by it to the States are reserved to the States
\nrespectively or to the people, the amending power in Article V of the American
\nConstitution was not limited by the Tenth Amendment
\n1006. The question which has arisen on the Fifth Article of the American Constitution is
\nwhether there are implied limitations upon the power to amend. The two express
\nlimitations were these. First, no amendment which may be made prior to 1808 shall in
\nany manner effect the First and the Fourth clauses in the Ninth Section of the First
\nArticle. That Limitation became exhausted by passage of time. The second express
\nlimitation is that no State without its consent shall be deprived of its equal suffrage in the
\nSenate. The express limitation is to safeguard the equal representation of the smaller
\nStates in the Senate. The limitation can only be changed by unanimous consent of the
\nStates.\n<\/p>\n
1007. The 18th Amendment was vigorously attacked in the National Prohibition Cases on
\nthe ground that it overstepped alleged implied limitations on the Constitution amending
\npower. The arguments advanced were these. First, the 18th Amendment which introduced
\nprohibition was not in fact an amendment for an amendment is an alteration or
\nimprovement of that which is already contained in the Constitution and the term is not
\nintended to include any addition of entirely new grants of power. Secondly, the
\namendment was not an amendment within the meaning of the Constitution because it is in
\nits nature legislation and that an amendment of the Constitution can only affect the
\npowers of government and cannot act directly upon the rights of individuals. Third, that
\nthe Constitution in all its parts looks to an indestructible nation composed of
\nindestructible States. The power of amendment was given for the purpose of making
\nalterations and improvements and any attempt to change the fundamental basis of the
\nUnion is beyond the power delegated by the Fifth Article. The decision in the National
\nProhibition Cases is that there is no limit on the power to amend the Constitution except
\nthat State may not without its consent be deprived of its equal suffrage in the Senate.
\n1008. In Rhode Island v. Palmer 253 U.S. 350 the 18th Amendment was challenged to be
\nnot within the purview of Article V. The judgment in Rhode Island case was that the
\namendment was valid. In Rhode Island case the grounds of attack were that the
\namendment was legislative in character and an invasion of natural rights and an
\nencroachment on the fundamental principles of dual sovereignty but the contentions were
\noverruled.\n<\/p>\n
1009. In Hawke v. Smith 253 U.S. 221 a question arose as to whether the action of the
\nGeneral Assembly of Ohio ratifying the 18th Amendment known as National Prohibition
\ncould be referred to the electors of the State under the provisions of the State
\nConstitution. It was held that these provisions of he State were inconsistent with the
\nConstitution of the United States. The decision of the Court was unanimous. The two
\nmethods of ratification prescribed by Article V of the Constitution are by action of the
\nlegislatures of the three-fourths of the States or conventions in the like number of States.
\nThe determination of the method of ratification is the exercise of a national power
\nspecifically granted by the Constitution. That power is conferred upon Congress. Article
\nV was held to be plain and to admit of no doubt in its interpretation. The choice of means
\nof ratification was wisely withheld from conflicting action in the several States.
\n1010. Again, in Lesser v. Garnett 258 U.S. 130 there was a suit to strike out the names of
\nwomen from the register of voters on the ground that the State Constitution limited
\nsuffrage to men and that the 19th Amendment to the Federal Constitution was not validity
\nadopted. The 19th Amendment stated that right of citizens to vote shall not be denied on
\naccount of sex. It was contended that the amending power did not extend to that situation.
\nThe Supreme Court there rejected that contention. The Supreme Court said that the
\nfunction of a State legislature in ratifying the proposed amendment to the federal
\nConstitution like the function of Congress in proposing the amendment is a federal
\nfunction derived from the federal Constitution; and it transcends any limitations sought to
\nbe imposed by the people of a State.\n<\/p>\n
1011. In United States v. Sprague 282 U.S. 716 a contention was advanced that the 10th
\nAmendment recognised a distinction between powers reserved to the States and powers
\nreserved to the people and that State legislatures were competent to delegate only the
\nformer to the National Government; delegation of the latter required action of the people
\nthrough conventions in the several states. The 18th Amendment being of the latter
\ncharacter, the ratification by State legislatures was contended to be invalid. The Supreme
\nCourt rejected the argument. It found the language of Article V too clear to admit of
\nreading any exceptions into it by implication.\n<\/p>\n
1012. The decisions in Rhode Island v. Palmer 253 U.S. 350, Hawke v. Smith 253 U.S.
\n221, Leser v. Garnett 258 U.S. 130 and United States v. Sprague 282 U.S. 716 are all
\nauthorities for the proposition that there is no implied limitation on the power to amend.
\nThe 18th Amendment was challenged on the ground that ordinary legislation could not be
\nembodied in a Constitutional amendment and that Congress cannot Constitutionally
\npropose any amendment which involves the exercise or relinquishment of the sovereign
\npowers of a State. The 19th Amendment was attacked on the narrower ground that a State
\nwhich had not ratified the amendment would be deprived of its equal suffrage in the
\nSenate because its representatives in that body would be persons not of its choosing. The
\nSupreme Court brushed aside these arguments as wholly unworthy of serious attention
\nand held both the amendments valid.\n<\/p>\n
1013. Mr. Palkhivala contended the word “amendment” in Article 368 would take its
\ncolour from the words “change in the provisions” occurring in the proviso. The American
\ndecisions illustrate how the Supreme Court consistently rejected the attempts to limit the
\nmeanings of the word “amend” in Article V of their Constitution because of the reference
\nto ratification by legislatures or conventions. Where words are read in their context there
\nis no question of implication for context means parts that precede or follow any particular
\npassage or text and fix its meaning.\n<\/p>\n
1014. The rule of nosciitur a sociis means that where two or more words which are
\nsusceptible of analogous meaning are coupled together, they are understood to be used in
\ntheir cognate sense. They take their colour from each other, the meaning of the more
\ngeneral being restricted to a sense analogous to that of the less general.
\n1015. This rule has been found to have no application to Article V of the American
\nConstitution because conventions and legislatures are both deliberative bodies and if an
\namendment can be submitted either to the legislatures of States or to conventions at the
\nabsolute discretion of the Congress, it is difficult to say that the character of the
\namendment is in any way affected by the machinery by which the amendment is to be
\nratified. In Rhode Island case the contention that an amendment of the Constitution
\nshould be ratified by conventions and not by legislatures was rejected. In Sprague case
\nthe contention that matters affecting the liberty of citizens could only be ratified by
\nconventions was not accepted and the Supreme Court refused to read any implication into
\nArticle V of the American Constitution. The Supreme Court said that in spite of the clear
\nphraseology of Article V, the Court was asked to insert into it a limitation on the
\ndiscretion conferred on it by the Congress. The Supreme Court did not accept any
\nimplied limitation. Where the intention is clear there is no room for construction and no
\nexcuse for interpolation or addition. In Feigenspan v. Bodine 264 F. 186 it has been said
\nwhen the people delegated the power of amendment to their representatives the power of
\namendment cannot be excluded in any way other than prescribed nor by any
\ninstrumentality other than there designated.\n<\/p>\n
1016. Mr. Palkhivala relied on some Canadian decisions the Initiative and Referendum
\ncase 1919 A.C. 935, Switzmen v. Elbling 1957 Canada Law Reports 285, Rex v. Hess
\n(1949) 4 Dominion Law Report 199; and Saumur v. City of Quebec and Attorney
\nGeneral of Quebec (1953) 4 D.L.R. 641 and Chabot v. School Commissioners of
\nLamorandiere and Attorney General for Quebec (1958) 12 D.L.R. 796, in support of
\nthree propositions. First, unlimited legislative jurisdiction of the Dominion Parliament in
\nCanada is under inherent limitation by reason of the preamble to the British North
\nAmerica Act which states that the Constitution is similar in principle to the United
\nKingdom. Second, the Dominion legislature cannot detract from the basic rights of
\nfreedom of speech and political association which are available in the United Kingdom.
\nThird, rights which find their source in natural law cannot be taken away by positive law.
\n1017. In the Initiative and Referendum case the Judicial Committee said that Section 92
\nof the British North America Act entrusted legislative power in a province to its
\nlegislature and to that legislature only. A power of legislation enjoyed by a provincial
\nlegislature in Canada can while preserving its own capacity intact seek the assistance of
\nsubordinate agencies as in Hodge v. Queen 9 App. Cas. 117 the legislature of Ontario
\nwas held to be entitled to entrust to the Board of Commissioners authority to enact
\nregulations. It does not follow that such a legislature can create and endow with its own
\ncapacity a legislative power. The Initiative and Referandum case decided that in the
\nabsence of clear and unmistakable language the power which the Crown possessed
\nthrough a person directly representing the Crown could not be abrogated. The Lieutenant
\nGovernor under the British North America Act referred to as the B.N.A. Act was an
\nintegral part of the legislature. The Initiative and Referendum Act was found to be one
\nwhich wholly excluded the Lieutenant Governor from legislative authority. The only
\npowers of veto and disallowance preserved by the Initiative and Referendum Act were
\nrelated to acts of legislative Assembly as distinguished from Bills. Therefore the powers
\nof veto and disallowance referred to could only be those of the Governor General under
\nSection 90 of the B.N.A. Act and not the powers of the Lieutenant Governor which are at
\nan end when a Bill has become an Act. Section 11 of the Act provided that when a
\nproposal for repeal of some law has been approved by majority of the electors voting that
\nlaw is automatically to be deemed repealed, at the end of 30 days after the publication in
\nthe Gazette. Thus the Lieutenant Governor appears to be wholly excluded from the
\nlegislative authority. The Initiative and Referendum decision related to an Act of the
\nlegislature and secondly to the Act being ultra vires the provisions of the B.N.A. Act.
\nThis is not at all, relevant to the amending power of a Constitution. The Act was found to
\nbe invalid because the machinery which it provided for making the Laws was contrary to
\nthe machinery set up by the B.N.A. Act. The impugned Act rendered the Lieutenant
\nGovernor powerless to prevent a law which had been submitted to voters from becoming
\nan actual law if approved by the voters. The impugned Act set up a legislature different
\nfrom that constituted by the B.N.A. Act and this the legislature had no power to do.
\n1018. The other Canadian decisions are based on three views. The first view is based on
\nthe preamble to the B.N.A. Act that the Provinces expressed their desire to be federally
\nunited into one Dominion, with a Constitution similar to that of the United Kingdom. The
\ncorollary extracted from the preamble is that neither Parliament nor Provincial
\nlegislatures may infringe on the traditional liberties because of the Preamble to the
\nB.N.A. Act and a reference to British Constitutional History. The second view expressed
\nin the decisions is that the basic liberties are guaranteed by implication in certain sections
\nof the B.N.A. Act. Section 17 establishes a Parliament for Canada. Section 50 provides
\nthat no House of Commons shall continue longer than five years. These sections are read
\nby the Canadian decisions to mean that freedom of speech and freedom of political
\nassociation should continue. The third view is that some rights find their source in natural
\nlaw which cannot be taken away by positive law.\n<\/p>\n
1019. The first view found expression in Switzman case. There was an Act respecting
\ncommunistic propaganda. The majority Judges found that the subject matter was not
\nwithin the powers assigned to the Province by Section 92 of the B.N.A. Act. They further
\nheld that the Act constituted unjustifiable interference with freedom of speech and
\nexpression essential under the democratic form of government established in Canada. The
\nCanada Elections Act, the B.N.A. Act provided for election of Parliament every five
\nyears, meeting of Parliament once a year. It was contended that it was implicit in all
\nlegislations the right of candidates to criticise, debate and discuss political, economic and
\nsocial principles.\n<\/p>\n
1020. Hess case raised a question of jurisdiction of the Court to grant bail. Under Section
\n1025A of the Criminal Code a person was detained in custody. Section 1025A provided
\nthat an accused might be detained in custody without bail pending an appeal to the
\nAttorney General.\n<\/p>\n
1021. The Saumur case related to a municipal bye-law requiring permission for
\ndistribution of books and tracts in the city streets. The Saumur case relied on the
\nobservations of Duff, C.J. in Re Albert Legislation 1938 S.C.R. 100 that the right of free
\npublic discussion on public affairs is the breath of life for parliamentaly institutions.
\n1022. In Chabot case public schools in the Province of Quebec were operated by School
\nCommissioners elected by tax payers of whom the religious majority were Catholics. A
\ndissident tax payer raised the question as to whether dissidents might establish their own
\nschools or they might send them to a school of a neighbouring municipality and
\nthereupon become exempt from paying tax. The majority held that certain regulations
\npassed by the Catholic Committee were intra vires because they must be construed as
\nconfined to Catholic children.\n<\/p>\n
1023. The Canadian decision show first that certain Judges relying on the Preamble to the
\nB.N.A. Act that the Canadian Constitution is to be similar in principle to that of the
\nUnited Kingdom raised the vires of some of the legislations affecting freedom of speech.
\nSecondly, the Canadian Constitution was given by the British Parliament and if the
\nJudges who used such dicta referred to that part of the Preamble they were emphasising
\nthat the rights of the Canadian people were similar to those in England. Thirdly, it has to
\nbe remembered that the Canadian Constitution has been developed through usage and
\nconventions.\n<\/p>\n
1024. None of these decisions relates to amendment of the Constitution. None of these
\ndecisions indicates that there is any inherent limitation on the amendment of the
\nConstitution. The Preamble to the B.N.A. Act shows that the Canadian Constitution
\nenjoined observance of fundamental principles in British Constitutional practice. The
\ngrowth of the Canadian Constitution was through such usage and convention. Our
\nConstitution is of a sovereign independent republican country. Our Constitution does not
\ndraw sustenance from any other Constitution. Our Constitution does not breathe through
\nconventions and principles of foreign countries.\n<\/p>\n
1025. There are no explicit guaranteed liberties in the British North America Act. In
\nCanada the Constitutional issue in civil liberties legislation is simply whether the
\nparticular supersession or enlargement is competent to the Dominion or the Province as
\nthe case may be. Apart from the phrase “civil rights in the Province” in Section 92(13)
\nthere is no language in Sections 91 and 92 which even remotely expresses civil liberties
\nvalues.\n<\/p>\n
1026. The Canadian Bill of Rights assented to in 1960 in Section 2 states that every law
\nof Canada shall unless it is expressly declared by an Act of Parliament of Canada that it
\nshall operate notwithstanding the Canadian Bill, of Rights be so construed and applied as
\nnot to abrogate, or infringe or authorise abrogation abridgement or infringement of any of
\nthe rights of freedom recognised and declared. The view of Laskin in Canadian
\nConstitutional Law (3rd Edition) (1969) is that in terms of legislative power the political
\nliberties represent independent Constitutional values which are exclusively in federal
\nkeeping. Since the enactment of the Canadian Bill of Rights the question has hardly any
\nsubstantive effect because the Canadian Parliament can make a declaration in terms of
\nSection 2 of the Bill of Rights that a law abrogating a freedom in the Bill of Rights is
\noperative.\n<\/p>\n
1027. Mr. Palkhivala relied on the Australian decisions in Taylor v. Attorney General of
\nQueensland 23 C.L.R. 457 and Victoria v. Commonwealth 45 Australian Law Journal
\n251 in support of the proposition that there is inherent and implied limitation on the
\npower of amendment.\n<\/p>\n
1028. In Taylor case the Parliamentary Bills Referendum Act of 1908 was challenged.
\nThe Parliament Bills Referendum Act provided that when a Bill passed by the Legislative
\nAssembly in two successive sessions has in the same two sessions been rejected by the
\nLegislative Council, it may be submitted by referendum to the electors, and, if affirmed
\nby them, shall be presented to the Governor for His Majesty’s assent, and upon receiving
\nsuch assent the Bill shall become an Act of Parliament in the same manner as if passed by
\nboth Houses of Parliament, and notwithstanding any law to the contrary. The Australian
\nStates Constitution Act, 1907 provided that it shall not be necessary to reserve, for the
\nsignification of His Majesty’s pleasure thereon, any Bill passed by the legislatures of any
\nof the States if the Governor has previously received instructions from His Majesty to
\nassent and does assent accordingly to the Bill.\n<\/p>\n
1029. In 1915 the Legislative Assembly of Queensland passed a Bill to amend the
\nConstitution of Queensland by abolishing the Legislative Council. The Bill was passed
\nby the Legislative Assembly. The Legislative Council rejected the Bill. The Legislative
\nAssembly again passed the Bill The Legislative Council again rejected the Bill. The
\nGovernor in accordance with the Parliamentary Bills Referendum Act 1908 issued
\nregulations providing for the taking of the Referendum polls. It was argued that the
\nConstitution ought to have been first amended.\n<\/p>\n
1030. The questions for the opinion of the Court were : (1) Is the Constitution Act,
\nAmendment Act of 1908 a valid and effective Act of Parliament? (2) Is the Parliamentary
\nBills Referendum Act of 1908 a valid and effective Act of Parliament ? (3) Is there power
\nto abolish the Legislative Council of Queensland by an Act passed in accordance with the
\nprovisions of the Parliamentary Bills Referendum Act of 1908 ? (4) Was the Referendum
\nvalid ?\n<\/p>\n
1031. The Colonial Laws Validity Act 1865 in Section 5 conferred full power on every
\nrepresentative legislature to make laws respecting the Constitution, powers and
\nprocedures of such legislature; provided that such laws shall have been passed in such
\nmanner and form as may from time to time be required by any Act of Parliament, letters
\npatent, Order in Council, or colonial laws for the time being in force in the said colony.
\nThe Parliamentary Bills Referendum Act was held to be an Act respecting the powers of
\nthe legislature. Section 5 of the Colonial Laws Validity Act provided the authority for the
\nlegislation.\n<\/p>\n
1032. Mr. Palkhivala extracted three propositions from the Taylor case. First, probably
\nthe power to make laws respecting the Constitution, power and procedure of such
\nlegislature does not extend to authorise the elimination of the representative character of
\nthe legislature within the meaning of the Act p. 468 per Barton, J. Second, probably the
\nrepresentative character of the legislature is a basic condition of the power relied on, and
\nis preserved by the word “such” in the collocation of words in the Constitution “of such
\nlegislature” p. 474 per Issacs, J. Third, when power is given to a Colonial legislature to
\nalter the Constitution of the legislature that must be read subject to the fundamental
\nconception that consistently with the very nature of the Constitution as an Empire, the
\nCrown is not included in the ambit of such power p. 474 per Issacs, J.
\n1033. The decision in Taylor case was to the effect that the Acts did not alter the
\nrepresentative character of the legislature as defined in Section 1 of the Colonial Laws
\nValidity Act, 1865, nor did they affect the position of the Crown. The first two
\npropositions on which Mr. Palkhivala relied, namely, the observations of Barton and
\nIssacs, JJ. p. 468 and p. 474 were both prefaced by the word “probably” which amply
\nshows that the observations are obiter. The question whether the representative character
\nof the legislature could be changed or whether the Crown could be eliminated did not call
\nfor decision. The other learned Judges Gavan Duffy and Rich, JJ. said “It may perhaps be
\nthat the legislature must always remain a representative legislature as defined by the
\nstatute, but it is unnecessary in the present case to determine whether that is so or not”.
\n1034. Issacs, J. held in that case that the word “legislature” did not include the Crown
\nbecause Section 7 of the Colonial Laws Validity Act used the expression “legislature”
\nfollowed by the words “or by persons or bodies of persons for the time being acting as
\nsuch legislature” to show that the legislature was exclusive of the Crown. The assent of
\nthe Queen or the Governor was thus regarded as an additional factor. Therefore, Issacs, J.
\nsaid that when a power is given to the Colonial legislature to alter the Constitution that
\nmust be read subject to the fundamental conception, that the Crown is not included in the
\nambit of such power. Those observations are made in the context of the provisions of the
\nColonial Laws Validity Act where a “colony” as defined to include all of Her Majesty’s
\npossessions abroad”. The observations therefore mean that when power to alter the
\nConstitution was conferred upon a colony which is a part of Her Majesty’s possessions
\nabroad it is reasonable to assume that such power did not include power to eliminate the
\nQueen as a part of a colonial legislature.\n<\/p>\n
1035. The representative character of the legislature does not involve any theory of
\nimplied limitation on the power of amendment. Such legislature as was emphasised by
\nIssacs, J. shows that the limitation on the power of amendment flowed from express
\nlanguage of Section 5 of the Colonial Laws Validity Act and was not dependent upon any
\nimplication.\n<\/p>\n
1036. In the State of Victoria case the validity of the Pay-Roll Tax Act, 1941 was
\nimpugned on the ground that it was beyond the legislative competence of the
\nCommonwealth. The Pay Roll Tax Assessment Act 1941-69 made the Crown liable to
\npay tax on the wages payable to named categories of employees of the State of Victoria.
\nThe Commonwealth Parliament, in the exercise of its power under Section 51(ii) of the
\nConstitution to make laws with respect to taxation, but so as not to discriminate between
\nStates or parts of State was held competent to include the Crown in right of a State in the
\noperation of a law imposing tax or providing for the assessment of a tax. The inclusion of
\nthe Crown in right of a State in the definition of “employed” in Section 3(1) of the Pay-
\nRoll Tax Assessment Act 1941-1969 thus making the Crown in right of a State liable to
\npay the tax in respect of wages paid to employees including employees of departments
\nengaged in strictly governmental functions was also held to be a valid exercise of the
\npower of the Commonwealth under Section 51 of the Constitution. Section 114 of the
\nConstitution enacts ban on the imposition by the Commonwealth of a tax on property of a
\nState. This ban was not offended. A law which in substances takes a State or its powers
\nor functions of government as its subject matter is invalid because it cannot be supported
\nupon any grant of legislative power, but there is no implied limitation on Commonwealth
\nlegislative power under the Constitution arising from the federal nature of the
\nConstitution. There was no necessary implication restraining the Commonwealth from
\nmaking a law according to the view of three learned Judges. Four other learned Judges
\nheld that there is an implied limitation as lack of Commonwealth legislative power but
\nthe Act did not offend such limitation.\n<\/p>\n
1037. The limitation which was suggested to be accepted was that a Commonwealth law
\nwas bad if it discriminated against States in the sense that it imposed some special burden
\nor disability upon them so that it might be described as a law aimed at their restriction or
\ncontrol.\n<\/p>\n
1038. In the Australian case Barwick, C.J. stated that the basic principles of construction
\nof the Australian Constitution were definitely enunciated in the Amalgamated Society of
\nEngineers v. Adelaide Steamship Co. Ltd. (1920) 28 C.L.R. 129 which unequivocally
\nrejected the doctrine that there was an implied prohibition in the Constitution against the
\nexercise in relation to a State of a legislative power of the Commonwealth in accordance
\nwith the ordinary rules of Constitution.\n<\/p>\n
1039. Mr. Palkhivala relied on some Irish cases in support of theory of implied and
\ninherent limitations.\n<\/p>\n
1040. In Rayan case 1935 Irish Report 170 the validity of amendment of Article 50 of the
\nIrish Constitution which came into existence in 1922 fell for consideration. Article 50
\nprovided that within 8 years from the commencement of the Constitution amendments to
\nthe Constitution were to be made by ordinary legislation. After the expiry of 8 years
\namendments were to be made by referendum. The other provision in Article 50 was that
\namendment “shall be subject to the provisions of Article 47” of the Constitution. Article
\n47 made provisions for the suspension in certain events of any Bill for a period of 90
\ndays and for the submission of any bill so suspended to referendum if demand should be
\nmade. By an Amendment Act in 1928 reference to the provisions of Article 47 was
\nrepealed. In 1929 before the expiry of 8 years there was an amendment of the
\nConstitution whereby the period of 8 years was changed to 16 years. Both the
\namendments were upheld. Amendment were challenged on two grounds : First, that many
\nArticles of the Constitution are so fundamental as to be-incapable of alteration. Second,
\nArticle 50 does not authorise any change in these fundamental Articles.
\n1041. The decision of the Judicial Committee in Moore and Ors. v. Attorney General for
\nthe Irish Free State and Ors. 1935 A.C. 484 throws a flood of light on the question of
\namendment of the amending power in a written Constitution. The Treaty and the
\nConstituent Act scheduled to the Irish Free Constitution Act, 1922 being parts of an
\nImperial Act formed parts of the statute law of the United Kingdom. The first clause of
\nthe Treaty provided that Ireland shall have the same Constitutional status in the
\ncommunity of nations known as the British Empire as the Dominion of Canada,
\nCommonwealth of Australia, the Dominion of New Zealand, and the Union of South
\nAfrica with a Parliament having force to make laws for the peace, order and good
\ngovernment of Ireland and an Executive responsible to that Parliament and shall be styled
\nand known as the Irish Free State. The second clause of the Treaty provided that the law
\npractice and Constitutional usage governing the relationship of the Crown or the
\nrepresentative of the Crown and of the Imperial Parliament to the Dominion of Canada
\nshall govern their relationship to the Irish Free State. Of the Articles of the Constitution,
\nArticle 12 created a legislature known as the Oireachtas and the sole and exclusive power
\nof making laws for the peace, order and good government of the Irish Free State was
\nvested in the Oireachtas.\n<\/p>\n
1042. Article 50 provided that amendments of the Constitution within the terms of the
\nScheduled Treaty might be made by the Oireachtas. Article 66 provided that the Supreme
\nCourt of the Irish Free State would have appellate jurisdiction from all decisions of the
\nHigh Court and the decision of the Supreme Court would be final and conclusive. The
\nproviso to that Article stated that nothing in the Constitution shall impair the right of any
\nperson to petition His Majesty for special leave to appeal from the Supreme Court to His
\nMajesty in Council. The proviso to Article 66 was inserted to give effect to Article 2 of
\nthe Treaty and hence under Article 50 of the Constitution it was argued that the proviso to
\nArticle 66 could not be amended in the way it was sought to amend it by abolishing the
\nright of appeal. Article 50 contained another limitation that amendments within the terms
\nof the Treaty might be made. Clause 2 of the Treaty provided that relations with the
\nImperial Parliament should be the same as the Canadian. By Amendment Act No. 6 of
\n1933 the words “within the terms of the Treaty” were deleted from Article 50. Thereafter
\nAmendment Act No. 22 of 1933 was passed abrogating right of appeal to the Privy
\nCouncil.\n<\/p>\n
1043. The Judicial Committee in Moore case noticed that “Mr. Wilfrid Greene for the
\npetitioners rightly conceded that Amendment Act No. 16 of 1929 which substituted for
\nthe 8 years specified in Article 50 as the period during which amendment might be made
\nwithout a referendum a period of 16 years was regular and that the validity of the
\nsubsequent amendments could not be attacked on the ground that they had not been
\nsubmitted to the people by referendum.\n<\/p>\n
1044. It was argued by Mr. Greene in that case that the Constituent Assembly having
\naccomplished its work went out of existence leaving no successor and no body in
\nauthority capable of amending the Constituent Act. The argument was in effect that the
\nConstitution was a semi rigid Constitution that is one capable of being amended in detail
\nin the different Articles according to their terms, but not susceptible of any alteration so
\nfar as concerns the Constituent Act, unless perhaps by the calling together of a new
\nConstitution assembly by the people of Ireland. The decision of the Supreme Court of
\nIreland in Ryan case was referred to by the Judical Committee. The Judicial Committee
\nheld that the Oireachtas had power to repeal or amend the Constitution Act and in
\nrepealing or amending of parts of an imperial Statute, namely, the Irish Free State
\nConstitution Act, 1922 what the Oireachtas did must be deemed to have been done in the
\nWay in which alone it could legally be done, that is by virtue of the powers given by the
\nstatute. The abolition of appeals to Privy Council was a valid amendment.
\n1045. The decision in Liyanage v. Queen (1967) 1 A.C. 259 was also relied on by Mr.
\nPalkhivala for the theory of implied and inherent limitations. The Criminal Law
\nAmendment Act passed by the Parliament of Ceylon in 1962 contained substantial
\nmodifications of the Criminal Procedure Code. There was ex post facto legislation of
\ndetention for 60 days of any person suspected of having committed an offence against the
\nState by widening the class of offences for which trial without jury by three judges
\nnominated by the Minister of Justice would be ordered. An arrest without warrant for
\nwaging war against the Queen became permissible and new minimum penalties for that
\noffence were prescribed and for conspiring to wage war against the Queen and overawe
\nthe government by criminal force, and by widening the scope of that offence. The Act
\nalso provided for the admission in evidence of certain confessions and statements to the
\npolice inadmissible under the Evidence Code. The Act was expressed to be retrospective
\nto cover an abortive coup d’etat on 27 January, 1962 in which Liyanage and others took
\npart, and was to cease to be operative after the conclusion of all legal proceedings
\nconnected with or incidental to any offence against the State committed on or about the
\ndate of the commencement of the Act, whichever was later. The second Criminal Law
\nAmendment Act of 1962 (No. 31 of 1962) substituted the Chief Justice for the Minister
\nof Justice as the person to nominate the three Judges but left unaffected other provisions
\nfor the former Act.\n<\/p>\n
1046. The Supreme Court of Ceylon convicted the appellants and sentenced them to 10
\nyears rigorous imprisonment the minimum prescribed by the Criminal Law Act 1 of
\n1962.\n<\/p>\n
1047. The Privy Council, held the legislation to be ultra vires on two grounds. The Acts
\ncould not be challenged on the ground that they were contrary to fundamental principles
\nof Justice. The Colonial Laws Validity Act 1865 which provided that colonial laws
\nshould be void to the extent of repugnancy to an Act of the United Kingdom, and should
\nnot be void on the ground of repugnancy to the law of England did not leave in existence
\na fetter or repugnancy to some vague and unspecified law of natural justice. The Ceylon
\nIndependence Act 1947 conferred on the Ceylon Parliament full legislative powers of a
\nsovereign independent State. The Acts were declared to be bad because they involved a
\nusurpation and infringement, by the legislature of judicial powers inconsistent with the
\nwritten Constitution of Ceylon. The silence of the Constitution as to the vesting of
\njudicial power was inconsistent with any intention that it should pass to or be shared by
\nthe executive or the legislature. The ratio of the decision is that the legislature could not
\nusurp judicial power. There is an observation at page 289 of the report that Section 29(1)
\nof the Ceylon Constitution confers power on Parliament to pass legislation which does
\nnot enable a law to usurp the judicial power of the judicature. The Judicial Committee
\nanswered the question which was posed as to what the position would be if Parliament
\nsought to procure such a result by first amending the Constitution by a two-thirds
\nmajority by stating that such a situation did not arise there and if any Act was passed
\nwithout recourse to Section 29(4) of the Ceylon Constitution it would be ultra vires. The
\nJudicial Committee found that under Section 29(4) of the Ceylon Constitution there could
\nbe an amendment only by complying with the proviso, which would be the manner and
\nform and would not be a limitation on the width of the power. The Ceylon case is not an
\nauthority for the proposition of implied and inherent limitation on the amending power.
\n1048. In Liyanage case the Privy Council rejected the contention that powers of the
\nCeylon Legislation should be cut down by reference to the vague and uncertain
\nexpression “fundamental principles of British Law”. In deciding whether the Constitution
\nof Ceylon provided for a separation between the legislature and the judiciary the Privy
\nCouncil did not refer to consequences at all, but referred to the fact that the provisions
\nrelating to the legislature and the judicature were found in two separate parts of the
\nConstitution. The provisions for appointment of the subordinate judiciary by a
\nCommission consisting exclusively of Judges with a prohibition against any legislator
\nbeing a member thereof and the further provision that any attempt to influence the
\ndecision was a criminal offence were held by the Judicial Committee to show that the
\njudiciary was intended to be kept separate from the legislature and the executive. This
\nconclusion was based on a pure construction of the provisions of the Act. The reference
\nto consequences was in a different context. The Privy Council recognised that the
\nimpugned law dealt with a grave exceptional situation and were prepared to assume that
\nthe legislature believed that it had power to enact it.\n<\/p>\n
1049. Again in Kariappar case 1968 A.C. 717 the Judicial Committee considered a
\nCeylon Act which was inconsistent with the Ceylon Constitution. The Act imposed civic
\ndisabilities for 7 years on person to whom the Act applied and provided for the vacation
\nof the scat as a Member of Parliament. The words amend or repeal in Section 29(4) of the
\nCeylon Constitution were read by the Judicial Committee to cover an amendment or
\nrepeal by inconsistent act. The plain words amend or repeal did not admit ambiguity.
\n1050. To introduce into our Constitution the doctrine of implied and inherent limitations
\non the meaning of the word “amendment” by upholding the power to amend the essential
\nfeatures but not the core on the theory that only people can change by referendum is to
\nrewrite the Constitution. The decisions in Ranasinghe case 1965 A.C. 172 and Kariappar
\ncase 1968 A.C. 717 are authorities for two propositions. First, that in the exercise of the
\npouter of amendment a controlled Constitution can be converted into an uncontrolled
\none. Second, the word “amendment” means alteration. In Ibralebbe case 1964 A.C. 900
\nthe Judicial Committee said that if the Ceylon legislature abrogated the appeal to the
\nPrivy Council it would be an amendment of its judicial structure.
\n1051. The decision in Mangal Singh v. Union of India (1967) 2 S.C.R. 109 has been
\nrelied on by Mr. Palkhivala in support of the proposition that the power of amendment is
\nsubject to implied limitation. Article 4 of the Constitution which was interpreted in
\nMangal Singh case has to be read with Articles 2 and 3. Article 4 contains a limited
\npower of amendment, limited to amend Schedules 1 and 4 as may be necessary to give
\neffect to a law mentioned in Articles 2 and 3 and of making supplemental, incidental and
\nconsequential provisions. Shah, J. in Mangal Singh case said that power with which
\nParliament is invested by Articles 2 and 3 is a power to admit, establish or form new
\nStates or to admit, establish or admit new States which conform to the democratic pattern
\nenvisaged by the Constitution and is not a power to override the Constitutional scheme. It
\nis manifest that when a new State is created in accordance with Articles 2 and 3 the
\namendment under Article 4 will be followed up as necessary to give effect to the same.
\nSuch an amendment does not override the Constitutional scheme. It is an amending
\npower of a limited nature and is supplemental, incidental or consequential to the
\nadmission, establishment or formation of a State as contemplated by the Constitution.
\nThis decision does not say that there are implied limitations to the amending power.
\n1052. The petitioner challenges the legality and the validity of the Constitution (25th)
\nAmendment Act.\n<\/p>\n
1053. The Constitution (25th) Amendment Act has first amended Article 31(2), second
\nadded Article 31 (2B) and third introduced Article 31C. Article 31(2) is amended in two
\nrespects. First, it substituted the word “amount” for the word “compensation” for property
\nacquired or requisitioned. Second, it is provided that the acquisition or requisition law
\nshall not be called in question on the ground that whole or any part of the amount is to be
\ngiven otherwise than in cash. Article 31 (2B) has been inserted to the effect that nothing
\nin Sub-clause (f) of Clause (1) of Article 19 shall effect any such law as is referred to in
\nClause (2).\n<\/p>\n
1054. Article 31C states that notwithstanding anything contained in Article 13 no law
\ngiving effect to the policy of the State towards securing the principles specified in Clause\n<\/p>\n
(b) or Clause (c) of Article 39 shall be deemed to be void on the ground that it is
\ninconsistent with or takes away or abridges any of the rights conferred by Article 14 or
\nArticle 19 or Article 31 and no law containing a declaration that it is for giving effect to
\nsuch policy shall be called in question in any court on the ground that it does not give
\neffect to such policy. It is provided that where such law is made by the legislature of a
\nState the provisions of this Article shall not apply thereto unless such law having been
\nreserved for the consideration of the President has received his assent.
\n1055. The basic controversy is really regarding the right to property and the acquisition
\nof property by the State. The Constitution of India was intended to achieve political
\nliberty on the one hand and economic and social, liberty on the other for all citizens of
\nIndia. The Directive Principles in the Constitution are also fundamental in the governance
\nof the country and it shall be the duty of the State to apply these principles in making
\nlaws. That is Article 37. It can be achieved by making changes in the economic and social
\nstructure of the society.\n<\/p>\n
1056. The resolutions of the Congress in 1929, 1931, 1945 and the objective resolution of
\n22 January, 1947 and the resolution of All-India Congress Working Committee in 1947
\nare not only a remembrance of things past. In 1929 the Congress resolution was that it
\nwas essential to make revolutionary changes in the economic and social structure of the
\nsociety and to remove the gross inequalities. It was also resolved that political freedom
\nmust include the economic freedom of the starving millions. In such economic and social
\nprogramme the State is to own or control the key industries and services, mineral
\nresources, railways, waterways, shipping and other means of public transport. In 1945 the
\nWorking Committee said that the concentration of wealth and power in the hands of
\nindividuals and groups was to be prevented. Social control of the mineral resources and
\nof the principal methods of production and distribution in land, industry and in other
\ndepartments of national activity would be necessary to develop the country into
\ncooperative commonwealth. In the case of industries which in their nature must be run on
\na large scale and on centralised basis, it was felt that they should belong to the
\ncommunity and they should be so organised that the workers become not only co-sharers
\nin the profits but also increasingly associated with the management and administration of
\nthe industry. Land and all other means of production as well as distribution and exchange
\nmust belong to and be regulated by the community in its own interest. The framers of the
\nConstitution wanted a social structure which would avoid the acquisitive economy of
\nprivate capitalism and the regimentation of a totalitarian State.
\n1057. In this background the Constitution was created with the object of effecting social
\nrevolution. The core of the commitment to the social revolution lies in Part III and Part
\nIV of the Constitution. They are described to be “conscience of the Constitution”. The
\nobject of Part III was to “liberate the power of man equally for distribution to the
\ncommon good”. The State would have to bear the responsibility for the welfare of
\ncitizens. The Directive Principles are a declaration of economic independence so that our
\ncountry men would have economic as well as political control of the country.
\n1058. The centre of the fundamental rights is said by Mr. Palkhivala to be Articles 14, 19
\nand 31. It is right to property. But the Directive Principles are also fundamental. They can
\nbe effective if they are to prevail over fundamental rights of a few in order to subserve
\nthe common good and not to allow economic system to result to the common detriment.
\nIt is the duty of the State to promote common good. If the motives for co-operating with
\nothers consist in the mere desire to promote their private good they would be treating
\ntheir fellowmen as means only and not also an end. The notion of common good was
\nneeded to explain away the difference between the principles of reasonable self love and
\nbenevolence. The distribution of material resources is to subserve the common good. The
\nownership and control of the material resources is to subserve common good. The
\neconomic system is to work in such a manner that there is no concentration of wealth to
\nthe common detriment. Again, the economic system is to work in such a manner that the
\nmeans of production are not used to the common detriment.\n<\/p>\n
1059. The declaration of human rights on which Mr. Palkhivala relied for the
\nunamendability of fundamental rights is rightly said by the Attorney General to be no
\nimpediment to the power of amendment nor to support the petitioner’s contention
\nregarding the inviolability of the right to property. For the purpose of promoting the
\ngeneral welfare in a democratic State the Directive Principles were said by the Attorney
\nGeneral to be fundamental in achieving rights of men and economic and social rights for
\nhuman dignity. Every citizen asserts enjoyment for fundamental rights under the
\nConstitution. It becomes the corresponding duty of every citizen to give effect to
\nfundamental rights of all citizens, dignity of all citizens, by allowing the State to achieve
\nthe Directive Principles. The duty of the State is not limited to the protection of
\nindividual interest but extends to acts for the achievement of the general welfare in all
\ncases where it can safely act and the only limitations on the governmental actions are
\ndictated by the experience of the needs of time. A fundamental right may be regarded as
\nfundamental by one generation. It may be considered to be inconvenient limitation upon
\nlegislative power by another generation. Popular sovereignty means that the interest
\nwhich prevails must be the interest of the mass of men. If rights are built upon property
\nthose who have no property will have no rights. That is why the State has to balance
\ninterest of the individual with the interest of the society. Industrial democracy is the
\nnecessary complement to polticial democracy. The State has to serve its members by
\norganising an avenue of consumption. This can be done by socialisation of those
\nelements in the common welfare which are integral to the well being of the community.
\n1060. The petitioner’s challenge to the amendment on Article 31(2) is as follows. The
\nright to property is one of the essential features of the Constitution. It is the hand maid to
\nvarious other fundamental rights. The right to freedom of the Press under Article 19(1)(a)
\nis meaningless if the publisher could be deprived of his printing plant and the building in
\nwhich it is housed without compensation. The fundamental right under Article 19(1)(c) to
\nform trade unions will be denuded of its true content if the property of a trade union
\ncould be acquired by the State without compensation. The right to practise any profession
\nor carry on any occupation, trade or business under Article 19(1)(g) will be the right to do
\nforced labour for the State if the net savings from the fruits of a citizen’s personal
\nexertion are liable to be acquired by the State without compensation. The freedom of
\nreligion in Article 26 will lose a great deal of its efficacy if the institutions maintained by
\na community for its religious and charitable purposes could be acquired without
\ncompensation. The implication of the proviso to Article 31(2) is that the State may fix
\nsuch an amount for acquisition of the property as may abridge or abrogate any of the
\nother fundamental rights. Exercise of fundamental rights would be affected by the
\ndeprivation of property without compensation in the legal sense and the only exception to
\nthis power of the State is the case of educational institution dealt with in the proviso.
\nArticle 31(2) as a result of the Constitution (25th) Amendment Act will empower the
\nState to fix an amount on a basis which need not be disclosed even to the members of the
\nlegislature and which may have no relation to the property sought to be acquired. The
\namount is not to satisfy any of the principles of compensation. It need not be paid in cash
\nand it will yet not be considered to be a ground of challenge to the validity of law. Article
\n31(2) has nothing to do with estate, zamindaries, land reforms or agrarian reforms which
\nare specifically dealt with by Article 31A.\n<\/p>\n
1061. The right to acquire, hold and dispose of property under Article 19(1)(f) is subject
\nunder Article 19(5) to reasonable restrictions in the interests of the general public If
\nArticle 19(5) permits such reasonable restrictions it is said by the petitioner that the only
\nobject of making Article 19(1)(f) inapplicable by Article 31(2B) is to enable acquisition
\nand requisition laws to contain restrictions or provisions which are unreasonable and not
\nin the public interest. Reliance was placed by Mr. Palkhivala on the Bank Nationalisation
\ncase (1970) 3 S.C.R. 530 and the observations at p. 577 that if Article 19(1)(f) applied to
\nacquisition or requisition, law which permitted a property to be taken without the owner
\nbeing heard where the rules of natural justice would require the owner to be heard, would
\nbe void as offending Article 19(1)(f). Extracting that observation it is said that the
\namount fixed without giving him a hearing or amending the Land Acquisition Act to
\nprovide that any man’s land or house can be acquired without notice to the owner to show
\ncause or to prove what amount should be fairly paid to him for the property acquired will
\ndamage the essence or core of fundamental right to property.\n<\/p>\n
1062. After the substitution of the neutral expression “amount” for “compensation” in
\nArticle 31(2) by the Constitution (25th) Amendment Act the Article still binds the
\nlegislature to provide for the giving to the owner a sum of money either in cash or
\notherwise. The legislature may either lay down principles for the determination of the
\namount or may itself fix the amount. Before the amendment the interpretation of Article
\n31(2) was that the law was bound to provide for the payment of compensation in the
\nsense of equivalent in value of the property acquired. This was the interpretation given in
\nthe Bank Nationalisation case even after the Constitution 24th Amendment Act, which
\nsaid that the adequacy of compensation could not be challenged. The Constitution 25th
\nAmendment Act states that the law no longer need provide for the giving of equivalent in
\nvalue of the acquired property. The quantum of the amount if directly fixed by the law
\nand the principles for its quantification are matters for legislative judgment. Specification
\nof principles means laying down general guiding rules applicable to all persons or
\ntransactions covered thereby. In fixing the amount the legislature will act on the general
\nnature of the legislative power. The principle may be specified. The principle which may
\nbe acted upon by the legislature in fixing the amount may include considerations of social
\njustice as against the equivalent in value of the property acquired. Considerations of
\nsocial justice will include the relevant Directive Principles particularly in Article 39(b)
\nand (c). These principles are to subserve the common good and to prevent common
\ndetriment. The question of adequacy has been excluded from Article 31(2) by the
\nConstitution Fourth Amendment Act. It cannot be said that the legislature would be under
\nthe necessity of providing a standard to measure an adequacy with reference to fixing the
\namount. The Constitution does not allow judicial review of a law on the ground of
\nadequacy of the amount and the manner as to how such amount is to be given otherwise
\nthan in cash.\n<\/p>\n
1063. If the word “compensation” as it stood prior to the amendment of Article 31(2)
\nmust mean equivalent value in cash it is said by the Solicitor General that the
\nconcentration of wealth will remain unchanged and justice social, economic, and political
\namplified in Articles 39, 41, 42, 43, 45, 46 and 47 will be thwarted. The fulfilment of the
\nDirective Principles is in a sense more fundamental than the mere right to property. Re-
\nadjustment in the social order may not be practicable in a smooth manner unless the
\nDirective Principles are effectively implemented. The emergence of a new social order is
\na challenge to present day civilisation. If nations wanted independence and supremacy in
\nthe latter half of the 19th century and the first half of the 20th century individual dignity,
\nindividual freedom, individual status in a well organised and well planned society are
\nopening the frontiers since the mid-century. In this background the 25th Amendment
\nprotects the law in one respect, namely, that amount payable to the owner is no longer to
\nbe measured by the standard of equivalent in value of the acquired property. The
\nquantum cannot be a matter for judicial review. Ever since the Fourth Amendment the
\nadequacy of compensation is excluded by the Constitution. The reason is that the
\nConstitution declares in clear terms that adequacy is not justiciable and therefore, it
\ncannot be made justiciable in an indirect manner by holding that the same subject matter
\nwhich is expressly barred is contained implicitly in some other provision and is,
\ntherefore, open to examination.\n<\/p>\n
1064. Just as principles which were irrelevant to compensation were invalid prior to the
\nConstitution 25th Amendment it was said that if any principles are adopted which are
\nirrelevant to the concept of amount as a legal concept or as having a norm the law would
\nbe invalid because the amount would be purely at the will or at the discretion of the State.
\nTherefore, it was said that when the law fixes the amount it might indicate the principles
\non which the amount had been arrived at or the Court might enquire into on which the
\namount had been fixed. Any contrary view according to the petitioner would mean that
\nunder Article 31(2) state would have authority to specify principles which could be
\narbitrary or specify the amount which could be arbitrary.\n<\/p>\n
1065. It was also said that as a result of the proviso to Article 31(2) after the 25th
\nAmendment the law providing for compulsory acquisition of property of an educational
\ninstitution established by a minority referred to in Article 31(1) the State was to ensure
\nthat the amount fixed or determined was such as would not restrict or abrogate the right
\nguaranteed under that clause. The amount would have to be higher than the amount
\nwhich would be sufficient not to damage the essence of that right. But under Article 31(2)
\nafter the 25th Amendment where the proviso did not apply it was said that the core or
\nessence of the fundamental rights would be damaged or destroyed.
\n1066. The word “amount” in Article 31(2) after the 25th Amendment is to be read in the
\nentire collocation of words. No law shall be called in question in any Court on the ground
\nthat the amount so fixed or determined is inadequate or the whole or part of it or any part
\nof such amount is given in cash. In Article 31(2) the use of the word “amount” in
\nconjunction with payment in cash shows that a sum of money is being spoken of. Amount
\nis a sum meaning a quantity or amount of money, or, in other words, amount means a
\nsum of money.\n<\/p>\n
1067. Article 31(2) prior to as well as after the 25th Amendment indicates two
\nalternatives to the legislatures either to specify the principles for determination of the
\namount or to fix the amount or “compensation” prior to the amendment. In fixing the
\namount or compensation the legislature is not required to set out in the law the principles
\non which compensation had been fixed in the unamended clause or the amount is fixed in
\nthe amended clause.\n<\/p>\n
1068. Article 19(1)(f) provides that all citizens shall have the right to hold, acquire or
\ndispose of property whereas Article 31(2) deals with law by which the property is
\nacquired. Such law acquiring property directly extinguishes the right to hold or dispose of
\nproperty acquired. Article 19(1)(f) is excluded from Article 31(2) in order to make
\nArticle 31(2) self contained. The right to hold property cannot coexist with the right of
\nthe State to acquire property. That is why Article 31(2) is to be read with Article 31A,
\n31B and 31C, all the Articles being under the heading “Right to Property”.
\n1069. It has been held by this Court in F.N. Rana case (1964) 5 S.C.R. 294 that Land
\nAcquisition Act does not give the right of quasi-judicial procedure or the requirements of
\nnatural justice as Section 5A of that Act has been held to be administrative. It has also
\nbeen held by this Court that a Requisition Act which did not give a right of representation
\nbefore an order for requisition was made did not violate Article 19(1)(f). (See S.N. Nandi
\nv. State of West Bengal A.I.R. 1971 SC 961).\n<\/p>\n
1070. The other part of the 25th Amendment which is challenged by the petitioner is
\nArticle 31C. Article 31C is said by Mr. Palkhivala to destroy several essential features of
\nthe Constitution for these reasons. First, there is a distinction between cases where the
\nfundamental rights are amended and laws which would have been void before the 25th
\nAmendment are permitted to be validly passed and cases where the fundamental rights
\nremain unamended but the laws which are void as offending those rights are validated by
\na legal fiction that they shall not be deemed to be void. The law is in the first case
\nConstitutional in reality whereas in the second case the law is unConstitutional in reality
\nbut is deemed by a fiction of law not to be void with the result that laws which violate the
\nConstitution are validated and there is a repudiation of the Constitution. If Article 31C is
\nvalid it would be permissible to Parliament to amend the Constitution so as to declare all
\nlaws to be valid which are passed by Parliament or State legislatures in excess of
\nlegislative competence or which violate basic human rights enshrined in Part III or the
\nfreedom of inter-State Trade in Article 301. Article 31C gives a blank charter to
\nParliament and the State legislatures to defy the Constitution or damage or destroy the
\nsupremacy of the Constitution. Secondly, Article 31C subordinates fundamental rights to
\nDirective Principles. The right to enforce fundamental rights is guaranteed under Article\n<\/p>\n
32. The Directive Principles are not enforceable by reason of Article 37. Yet it is said that
\nwhile giving effect to Directive Principles fundamental rights are abrogated. Thirdly,
\nwhereas an amendment of a single fundamental right would require a majority of at least
\ntwo-thirds of the members of Parliament present and voting, a law within Article 31C
\nwhich overrides and violates several fundamental rights can be passed by a simple
\nmajority. Fourthly, every fundamental right is an essential feature of the Constitution and
\nArticle 31C purports to take away a large number of those fundamental rights. Fifthly, the
\nCourt is precluded from considering whether law under Article 31C is such that it can
\npossibly secure Directive Principles in question. Sixthly, no State legislature can amend
\nthe fundamental rights or any other part of the Constitution but Article 31C empowers the
\nState legislaure to pass laws which virtually involve repeal of the fundamental rights.
\nPower of amending the Constitution is delegated to State legislatures.
\n1071. Finally, it is said that the fundamental rights under Article 14, 19 and 31 which are
\nsought to be superseded by Article 31C are necessary to make meaningful specific rights
\nof the minorities which are guaranteed by Articles 25 to 30. The proviso to Article 31(2)
\nshows that in the case of acquisition of property of an educational institution established
\nby a minority an amount fixed should be such as not to restrict or abrogate the right of the
\nminorities under Article 31. It is, therefore, said that the implication is that if property is
\nacquired in cases other than those of minorities an amount can be fixed which restricts or
\nabrogates any of the fundamental rights. Again, it is said that if a law violates the right of
\nthe minority under Articles 25 to 30 such a law would be no law. Therefore, deprivation
\nof property under such law would violate Article 31(1). But the 25th Amendment by
\nArticle 31C abrogates Article 31(1) and minorities can be deprived of their properties
\nheld privately or upon public, charitable or religious trusts by law which violates Articles
\n25 to 30.\n<\/p>\n
1072. The pre-eminent feature of Article 31C is that it protects only law. Therefore, any
\nquestion of violation of Article 31(1) does not arise. Law referred to in Article 31C must
\nbe made either by Parliament or by the State legislature, according to the legislative
\nprocedure for enacting a law. There are several Articles in the Constitution where the
\nexpression “law” with reference to the authority to make law has been used. These are
\nArticles 17, 19(2) to (6), 21, 22, 23(1), 26, 31, 33, 34 and 35. These Articles indicate that
\nthe expression “law” there means law made by the legislature in accordance with its
\nordinary legislative procedure. The expression “law” does not include within itself
\nordinance, order, bye-law; rule, regulation, notification, custom or usage having the force
\nof law nor an amendment of the Constitution in accordance with the procedure prescribed
\nin Article 368. In Article 13 the term “law” has been used in a wide sense. For this a
\ndefinition was given in Article 13(3) to include certain other categories. The definition in
\nArticle 13(3) is expressly limited for Article 13. Law in Article 31C must have the same
\nmeaning as it has in other Articles generally, namely, a statute passed by the legislature.
\n1073. It is true that such law may need details to be filled up by other agencies but the
\nessential elements of Article 31C must be supplied directly by that enactment. A question
\narose with reference to Article 254 as to whether a clause of the Sugar Control Order
\n1955 made under the Essential Commodities Act had the effect of repealing the
\ncorresponding Uttar Pradesh State Law. This Court held that the power of repeal was
\nvested in Parliament and Parliament alone could exercise it by enacting an appropriate
\nprovision in that regard. Parliament could not delegate the power of repeal to any
\nexecutive authority. (See Ch. Tika Ramji and Ors. Etc. v. The State of Uttar Pradesh and
\nOrs.<\/a> 1956 S.C.R. 393).\n<\/p>\n
1074. Article 31C is inextricably bound up with Article 39(b) and (c) because the purpose
\nand the phraseology in both the Articles are essentially identifical. The legislative efforts
\nto implement Directive Principles in Article 39 (b) and (c) were set in motion in some
\nStates to achieve reforms in land law. Articles 31A and 31B were introduced by the
\nConstitution First Amendment Act 1951. The main reason for introducing Articles 31A
\nand 31B was to exclude the operation of Part III as a whole from those provisions. The
\ntrue relationship between Directive Principles in Part IV and the fundamental rights in
\nPart III became clear. It was realised that though the liberty of individual was valuable it
\nshould not operate as an insurmountable barrier against the achievement of Directive
\nPrinciples. In Sajjan Singh case (1965) 1 S.C.R. 933 it was said that “the rights of society
\nare made paramount and they are placed above those of the individual”. In the Bihar
\nLand Reforms case 1952 S.C.R. 889 it was said that “a fresh outlook which placed the
\ngeneral `interest of the community above the interest of the individuals, pervades over
\nConstitution”.\n<\/p>\n
1075. Law contemplated in Article 31C will operate on the ownership and control of the
\nmaterial resources of the community to be distributed as best to subserve the common
\ngood. The operation of the economic system should not result in concentration of wealth.
\nMeans of production should not be used to the common detriment. The ownership and
\ncontrol of the material resources of the community can be achieved by nationalisation
\nand planned economy. The operation of the economic system will mean imposition of
\ncontrol on the production, supply and distributions of products of key industries and
\nessential commodities. There can be laws within Schedule 7 List III Entries No. 42, 43;
\nList I Entry No. 52 to 54 and List II Entries No. 23, 24, 26 and 27.\n<\/p>\n
1076. The provisions in Article 31C that no law containing a declaration that it is for
\ngiving effect to such policy shall be called in question in any court on the ground that it
\ndoes not give effect to such policy was questioned by the petitioner to exclude judicial
\nreview and, therefore, to be illegal. Article 31C was in the second place said to enable the
\nState legislatures to make discriminatory laws destructive of the integrity of India.
\nThirdly, Article 31C was said to delegate the amending power to State legislatures or
\nParliament in its ordinary legislative capacity.\n<\/p>\n
1077. The declaration mentioned in Article 31C is for giving effect to the policy of the
\nState towards securing the principles in Article 39 (b) or (c). Such a declaration in a law
\nshall not be called in question on the ground that it does not give effect to such policy.
\nThe laws which receive protection under Article 31C are laws for securing the Directive
\nPrinciples of Articles 39(b) and (c). The nexus or connection between the law and the
\nobjectives set out in Article 39(b) and (c) is a condition precedent for the applicability of
\nArticle 31C. On behalf of the Union and the State it was not contended that whether there
\nwas such nexus or not was not justiciable. The real reason for making the declaration free
\nfrom question in a Court of law on the ground that it does not give effect to such policy is
\nto leave legislative policy and wisdom to the legislature. The legislative measure might
\nnot according to some views give effect to Directive Principles. Therefore, legislatures
\nare left in charge of formulating their policy and giving effect to it through legislation. It
\nis the assessment and judgment of such measures which is sought to be excluded from
\njudicial review by the declaration.\n<\/p>\n
1078. In order to decide whether a statute is within Article 31C the court may examine
\nthe nature and the character of legislation and the matter dealt with as to whether there is
\nany nexus or the law to the principles mentioned in Article 39(b) and (c). If it appears that
\nthere no nexus between the legislation and the objectives and principles mentioned in
\nArticle 39(b) and (c) the legislation will not be within the protective umbrella. The Court
\ncan tear the veil to decide the real nature of the statute if the facts and circumstances
\nwarrant such a course.\n<\/p>\n
1079. The reason for excepting Articles 14, 19 and 31 from Article 31C is the same as in
\nArticle 31A. The Solicitor General rightly said that the fear of discrimination is allayed
\nby three safeguards. The first and the foremost safeguard is the good sense of the
\nlegislature and the innate good sense of the community. The second safeguard is the
\nPresident’s assent. The third safeguard is that in appropriate cases it can be found as to
\nwhether there is any nexus between law and Directive Principles sought to be achieved.
\nThere is no better safeguard than the character of the citizen, the character of the
\nlegislature, the faith of the people in the representatives and the responsibility of the
\nrepresentatives to the nation. No sense of irresponsibility can be ascribed or attributed to
\nthe representatives of the people. The exclusion of Article 14 is to evolve new principles
\nof equality in the light of Directive Principles. The exclusion of Article 19 is on the
\nfooting that laws which are to give effect to Directive Principles will constitute
\nreasonable restrictions on the individual’s liberty. The exclusion of Article 31(2) is to
\nintroduce the consideration of social justice in the matter of acquisition. Directive
\nPrinciples are not limited to agrarian reforms. Directive Principles are necessary for the
\nuplift and growth of industry in the country.\n<\/p>\n
1080. Article 31(4) and 31(6) speak of certain class of laws not being called in question
\non the ground of contravention of Article 31(2). Article 31A relates to law of the class
\nmentioned therein not to be void on the ground that it is inconsistent with or takes away
\nor abridges any of the fundamental rights conferred by Articles 14, 19 and 31. Article
\n15(4) states that nothing in Article 15 or in Article 29(2) shall prevent the State from
\nmaking any special provision for the advancement of any socially and educationally
\nbackward classes of citizens or for the Scheduled Castes and the Scheduled Tribes.
\nArticle 31(5)(b)(ii) states that nothing in Article 31(2) shall affect the provisions of any
\nlaw which the State may make for the promotion of public health. Article 33 speaks of
\nlaw with regard to members of the Armed Forces charged with the maintenance of public
\norder, so as to ensure the proper discharge of their duties and the maintenance of
\ndiscipline among them and for that purpose the operation of some fundamental right in
\nPart III is modified.\n<\/p>\n
1081. The Solicitor General rightly said that similarly Article 31C creates a legislative
\nfield with reference to the object of legislation. It is similar to laws contemplated in
\nArticle 15(4), Article 31(5)(b)(ii) and Article 33. Each of these Articles carves out an
\nexception to some Article or Articles conferring fundamental rights. The field carved out
\nby the various Articles are of different dimensions. The entire process of exception of the
\nlegislative field from the operation of some of the Articles relating to fundamental rights
\nis the mandate of the Constitution. It is wrong to say that the Constitution delegates
\npower of amendment to Parliament or the States. As a result of the 25th Amendment the
\nexisting legislative field is freed from the fetters of some provisions of Part III of our
\nConstitution on the legislative power.\n<\/p>\n
1082. Article 31C substantially operates in the same manner in the industrial sphere as
\nArticle 31A operates in the agrarian sphere. The problems are similar in nature though of
\ndifferent magnitude. The Constitutional method adopted to solve the problem is similar.
\nThe Solicitor General is correct in summing up Article 31C as an application of the
\nprinciples underlying Articles 31(4) and 31(6) and Article 31A to the sphere of industry.
\n1083. A class of legislation can be identified and the legislative field can be carved out
\nfrom the operation of fundamental rights or some of those can be excluded by a provision
\nof the Constitution. Articles 31(4) and 31(6) identify the laws with reference to the period
\nduring which they were made. Article 31(4) relates to a bill pending at the
\ncommencement of the Constitution in the legislature of a State to have been passed by
\nsuch legislature and to have received the assent of the President to be not called in
\nquestion on the ground that it contravenes Article 31(2). Article 31(6) relates to law of
\nthe State enacted not more than 18 months from the commencement of the Constitution
\nto he submitted to the President for his certification and upon certification by the
\nPresident not to be called in question on the ground of contravention of Article 31(2).
\nArticles 31(2) and 31A identify the legislative field with reference to the subject matter of
\nlaw. Articles 15(4) and 33 and Article 31(5)(b)(ii) identify laws with reference to the
\nobjective of the legislature. The exceptions to some part or some Articles of Part III of
\nthe Constitution is created by the Constitution and any law which is made pursuant to
\nsuch power conferred by the Constitution does not amend the operation or application of
\nthese Articles in Part III of the Constitution. The crux of the matter is that modification or
\nexception regarding the application of some of the Articles in Part III is achieved by the
\nmandate of the Constitution and not by the law which is to be made by Parliament or
\nState under Article 31C. Therefore, there is no delegation of amending powers. There is
\nno amendment of any Constitutional provision by such law.\n<\/p>\n
1084. The Constitution First Amendment Act 1951 introduced Articles 31A and 31B and
\nSchedule 9 which are to be read together. Article 31A excluded a challenge under the
\nwhole of Part III for the laws of the kind mentioned in that Article. Article 31B
\nrestrospectively validated laws mentioned in Schedule 9 from challenge under Part III
\nand also on the ground that they violated Section 299 of the Government of India Act,
\n1935. It may be stated here that Parliament which passed the Constitution First
\nAmendment Act 1951 was the Constituent Assembly functioning as a legislature, till
\nelections were held and a Parliament as provided for under the Constitution could be
\nformed. Articles 31A and 31B carried out the intention of the framers of the Constitution
\nas stated in Articles 31(4) and 31(6) that land legislation or agrarian reform was to be
\nenforced and fundamental rights were not to be allowed to stand in the way of
\nimplementing the Directive Principles of State Policy contained in Article 39. The
\nfundamental right conferred under Article 31(2) was subordinated to Article 39(b) and (c)
\nin order to protect laws referred to in Article 31(4) and 31(6). When that object failed and
\nthe law was struck down under Article 14, Parliament gave effect to the policy
\nunderlying Articles 31(4) and 31(6) by excluding a challenge under every Article in Part
\nIII. In the Bihar Land Reforms case this Court said that the purpose behind the Bihar
\nLand Reform Act was to bring about a reform of the land distribution system in Bihar for
\nthe general benefit of the community and the legislature was the best judge of what was
\ngood for the community and it was not possible for this Court to say that there was no
\npublic purpose behind the acquisition contemplated in the statute.
\n1085. This Court in State of West Bengal v. Bela Banerjee<\/a> 1954 S.C.R. 558 held that the
\nword “compensation” means just equivalent or full indemnity for the property
\nexpropriated. In Dwarkadas Srinivas v. Sholapur Spg & Wvg. Co. Ltd. 1954 S.C.R. 674
\nthis Court struck down the law for taking over the management of Sholapur Mills on the
\nground that it amounted to acquisition and since no compensation was provided for, the
\nlaw was held to be void. The Constitution Fourth Amendment Act 1955 came to remedy
\nthe implementation of essential welfare legislation. One of the measures in the Fourth
\nAmendment Act was the amendment of Article 31 by making adequacy of compensation
\nnon-justiciable and the other was to amend Article 31A. The formula which had been
\nused in Articles 31(4) and 31(6) to exclude the contravention of Article 31(2) was
\nadopted with regard to adequacy of compensation. As a result of the amendment of
\nArticle 31A new categories were added to the Article and new Acts were added to the
\nNinth Schedule. The 17th Amendment Act made changes in Article 31A(1) and the
\nproviso and amended Schedule 9 by inserting new Acts therein.\n<\/p>\n
1086. The successive amendments of the Constitution merely carried out the principle
\nembodied in Article 31 Clauses (4) and (6) that legislation designed to secure the public
\ngood and to implement the Directives under Article 39(b) and (c) should have priority
\nover individual rights and that therefore fundamental rights were to fee subordinate to
\nDirective or State Policy.\n<\/p>\n
1087. Article 31(2) as it originally stood spoke of compensation for acquisition or
\nrequisition of property. The meaning given to compensation by the Court was full market
\nvalue. There was no scope for giving effect to the word “compensation”. There was no
\nflexibility of social interest in Article 31(2). Every concept of social interest became
\nirrelevant by the scope of Article 13(2). It is this mischief which was sought to be
\nremedied by the 25th Amendment. If Directive Principles are to inter-play with Part III
\nlegislation will have to give expression to such law. Parts III and IV of the Constitution
\ntouch each other and modify. They are not parallel to each other. Different legislation
\nwill bring in different social principles. These will not be permissible without social
\ncontent operating in a flexible manner. That is why in the 25th Amendment Article 31(2)
\nis amended to eliminate the concept of market value for property which is acquired or
\nrequisitioned.\n<\/p>\n
1088. If compensation means an amount determined on principles of social justice there
\nwill be general harmony between Part III and Part IV. Secondly, if compensation means
\nmarket price then the concept of property right in Part III is an absolute right to own and
\npossess property or to receive full price, while the concept of property right in Part IV is
\nconditioned by social interest and social justice. There would be an inherent conflict in
\nworking out the Directive Principles of Part IV with the guarantee in Part III. That is why
\nClauses (4) and (6) of Article 31 illustrate the vital principle that to make effective a
\nlegislative effort to bring about changes in accordance with Directive Principles
\nparticularly those contained in Article 39(b) and (c) Article 31(2) may have to be
\nabridged. The social interest and justice may vary from time to time and territory to
\nterritory and individual rights may have to be limited.\n<\/p>\n
1089. Just as the amount can be fixed on principles of social justice the principles for
\ndetermining the amount can be specified on the same consideration of social justice.
\nAmount is fixed or the principles are specified by the norm of social justice in accordance
\nwith Directive Principles.\n<\/p>\n
1090. In amending Article 31(2) under the 25th Amendment by substituting the word
\n“amount” for “compensation” the amount fixed is made non-justiciable and the
\njurisdiction of the Court is excluded because no reasons for fixing such amount would or
\nneed appear in the legislation. If any person aggrieved by the amount fixed challenges the
\nCourt can neither go into the question of adequacy nor as to how the amount is fixed. If
\nadequacy cannot be questioned any attempt to find out as to why the particular amount is
\nfixed or how that amount has been fixed by law will be examining the adequacy which is
\nforbidden as the Constitutional mandate. If one alleges that the amount is illusory one
\nwill meet the insurmountable Constitutional prohibition that the adequacy or the alleged
\narbitrariness of the amount fixed is not within the area of challenge in courts.
\n1091. The amount fixed is not justiciable. The adequacy cannot be questioned. The
\ncorrectness of the amount cannot be challenged. The principles specified are not
\njusticiable.\n<\/p>\n
1092. If on the other hand, the legislature does not fix the amount but specifies the
\nprinciples for determining the amount, the contention that principles for determining the
\namount must not be irrelevant loses all force because the result determining the amount
\nby applying the specified principles cannot be challenged on the ground of inadequacy. If
\nprinciples are specified for determining the amount and as a result of the application of
\nthe principles the result is less than the market value it will result in the same question of
\nchallenging adequacy.\n<\/p>\n
1093. The relevancy of the principles cannot be impugned. Nor can the reasonableness of
\nthe principles be impeached.\n<\/p>\n
1094. Article 14 has the flexibility of classification. Article 19 has the flexibility of
\nreasonable restrictions. Social justice will determine the nature of the individual right and
\nalso the restriction on such right. Social justice will require modification or restriction of
\nrights under Part III. The scheme of the Constitution generally discloses that the
\nprinciples of social justice are placed above individual rights and whenever or wherever it
\nis considered necessary individual rights have been subordinated or cat down to give
\neffect to the principles of social justice. Social justice means various concepts which are
\nevolved in the Directive Principles of the State.\n<\/p>\n
1095. The 25th Amendment has amended Article 31(2) and also introduced Article
\n31(2B) in order to achieve two objects. The first is to eliminate the concept of market
\nvalue in the amount fixed for acquisition or requisition of the property. The second is to
\nexclude in Clause (2B) of Article 31 the applicability of Article 19(1)(f). Articles 31A
\nand 31B applied to acquisition and requisition of property. The purpose of Article 31C is
\nto confer by Constitutional mandate power on Parliament and State to make laws for
\ngiving effect to Directive Principles. The significance of the total exclusion of Part III
\nfrom Articles 31A and 31B is that it brings about in unmistakable manner the true
\nrelationship between the provisions of Part IV and Part III of the Constitution.
\n1096. With reference to land legislation subordination of fundamental rights of individual
\nto the common good was clear in Clauses (4) and (6) of Article 31. It was made clearer
\nby the Constitution First Amendment Act which introduced Articles 31A, 31B and
\nSchedule 9. Articles 31A, 31B, Schedule 9 and Article 31C merely removed the
\nrestrictions which Part III of the Constitution imposes on legislative power. Article 31A
\nafter the Fourth Amendment removed the restrictions on legislative power imposed by
\nArticles 14, 19 and 31. In enacting Clauses (b), (c) and (d) in Article 31A Parliament was
\ngiving effect to social control which though less urgent than land reform became in
\ncourse of time no less vital. Article 31B by the First Amendment retrospectively
\nvalidated the laws specified in Schedule 9 by retrospectively removing all invalidity from
\nthe law because of the transgression of rights in Part III. Again, the seven new Acts added
\nin the Ninth Schedule by the Fourth Amendment Act had nothing to do with agrarian
\nreform, but dealt with subjects of great national importance. The Constitution Fourth
\nAmendment Act was intended to remove the barriers of Articles 14, 19 and 31(2) in
\nrespect of land legislation considered essential for public good.
\n1097. State legislatures cannot remove the fetter. They have no power to amend the
\nConstitution. Parliament cannot remove the fetter by ordinary law. By amendment of the
\nConstitution Parliament can remove the fetter by either deleting one or more fundamental
\nright or rights or by excluding certain laws or certain kinds of laws from the fetter.
\n1098. The pattern of Articles 31A, 31B, the Ninth Schedule and Article 31C is best
\nunderstood by the observations of Patanjali Sastri, C.J. in Shankari Prasad case and of
\nWanchoo, J. in Golak Nath case. Patanjali Sastri, C.J. said in Shankari Prasad case
\n“Articles 31A and 31B really seek to save a certain class of laws and certain specified
\nlaws already passed from the combined operation of Article 13 read with other relevant
\nArticles of Part III. The new Articles being thus essentially amendments of the
\nConstitution have the power of enacting them. It was said that Parliament could not
\nvalidate the law which it has no power to enact. The proposition holds good whether the
\nvalidity of the impugned provision turns on whether the subject matter, falls within or
\nwithout the jurisdiction of the legislature which passed it. But to make law, which
\ncontravenes the Constitution, Constitutionally valid is a matter of Constitutional
\namendment and as such it falls within the exclusive power of Parliament”. Wanchoo, J.
\nsaid of Article 31B “The laws had already been passed by the State legislature and it was
\ntheir Constitutional infirmity, if any, which was being cured by the device adopted in
\nArticle 31B read with the Ninth Schedule…. Parliament alone could do it under Article
\n368 and there was no need for any ratification under the proviso for amendment of Part
\nIII is not entrenched in the proviso”.\n<\/p>\n
1099. The conclusiveness of declaration introduced by the 25th Amendment in a law
\nunder Article 31C is to be appreciated in the entire context of Article 31C. In removing
\nrestrictions of Part III in respect of a law under Article 31C there is no delegation of
\npower to any legislature. There is only removal of restriction on legislative power
\nimposed by Articles 14, 19 and 31. Article 31C does not confer any power to amend the
\nConstitution. The exclusion of Article 31 is a necessary corollary to protecting the
\nimpugned law from challenge under Articles 14, 19 and 31 because Article 13(2) would
\nbut for its exclusion in Article 31C render such laws void. The declaration clause is
\ncomparable to Section 6(3) of the Land Acquisition Act “1894 which contains a
\nconclusive evidence clause that declaration shall be conclusive evidence that the land is
\nneeded for a public purpose and for a company as the case may be. A conclusive
\ndeclaration would not be permissible so as to defeat a fundamental right. In Article 31(5)
\nit is provided that nothing in Clause (2) shall effect (a) the provisions of any existing law
\nother than a law to which the provisions of Clause (6) apply and since the Land
\nAcquisition Act 1894 is an existing law the conclusive declaration clause prevails and is
\nnot justiciable. See Babu Barkya Thakur v. The State of Bombay and Ors.<\/a> (1961) 1
\nS.C.R. 128. The same view was reiterated by this Court in Smt. Somavanti and Ors. v.
\nThe State of Punjab and Ors.<\/a> (1963) 2 S.C.R. 774 that a declaration under the Land
\nRequisition Act was not only conclusive about the need but was also conclusive for the
\nneed was for a public purpose.\n<\/p>\n
1100. Conclusive proof is defined in the Indian Evidence Act. It is, therefore, seen that
\nthe legislative power carries with it the power to provide for conclusive proof so as to
\noust the jurisdiction of a Court. The declaration is for the purpose of excluding the
\nprocess of evaluation of legislation on a consideration of the virtues and defects with a
\nview to seeing if the laws has led to the result intended. If a question arises as to whether
\na piece of legislation with such declaration has a nexus with the Directive Principles in
\nArticle 39(b) and (c) the Court can go into the question for the purpose of process of
\nidentification of the legislative measure on a consideration of the scope and object and
\npith and substance of the legislation. Therefore, the 25th Amendment is valid.
\n1101. A contention was advanced on behalf of the petitioner that Article 31B applies to
\nagrarian reforms or in the alternative Article 31B is linked to Article 31A and is to be
\nread as applying to laws in respect of five subject matters mentioned in Article 31A. The
\n13 Acts mentioned in the Ninth Schedule as enacted by the First Amendment Act, 1951
\ndealt with estates and agrarian reforms. There is nothing in Article 31B to indicate that it
\nis linked with the same subject matter as Article 31A. In the Bihar Land Reforms case
\nPatanjali Sastri, C.J. said at pp. 914-915 of the report (1952 S.C.R. 889) that the opening
\nwords of Article 31B are only intended to make clear that Article 31A should not be
\nrestricted in ‘its application by reason of anything contained in Article 31B and are not in
\nany way calculated to restrict the application of the latter Article or of the enactments
\nreferred to therein to acquisition of estates.\n<\/p>\n
1102. In Vishweshwar Rao v. State of Madhya Pradesh 1952 S.C.R. 1020 it was urged
\nthat Article 31B was merely illustrative of Article 31A and as the latter was limited in is
\napplication to estates as defined therein Article 31B was also similarly limited. That
\ncontention was rejected and it was said that Article 31B specifically validates certain
\nActs mentioned in the Schedule despite the provisions of Article 31A and is not
\nillustrative of Article 31A but stands independent of it.\n<\/p>\n
1103. Again, in Jeejibhoy v. Assistant Collector (1965) 1 S.C.R. 616 it was contended
\nthat Articles 31A and 31B should be read together and if so read Article 31B would only
\nillustrate the cases that would otherwise fall under. Article 31B, and, therefore, the same
\nconstruction as put upon Article 31B should apply to Article 31A. This Court did not
\naccept the argument It was said that the words “without prejudice to the generality of the
\nprovisions contained in Article 31A” indicate that the Acts and Regulations specified in
\nthe Ninth Schedule would have the same immunity even if did not attract Article 31A of
\nthe Constitution. If every Act in the Ninth Schedule would be covered by Article 31A,
\nArticle 31B would be redundant Some of the Acts mentioned in the Ninth Schedule,
\nnamely, items 14 to 20 and many other Acts added to the Ninth Schedule, do not appear
\nto relate to estates as defined in Article 31A(2) of the Constitution. It was, therefore, held
\nin Jeejibhoy case that Article 31B was a Constitutional device to place the specific statute
\nbeyond any attack on the ground that they infringe Part III of the Constitution.
\n1104. The words “without prejudice to the generality of the provisions contained in
\nArticle 31A” occurring in Article 31B indicate that Article 31B stands independent of
\nArticle 31A. Article 31B and the Schedule are placed beyond any attack on the ground
\nthat they infringe Part III of the Constitution. Article 31B need not relate to any particular
\ntype of legislation. Article 31B gives a mandate and complete protection from the
\nchallenge of fundamental rights to the Scheduled Acts and the Regulations. Article 31A
\nprotects laws in respect of five subject matters from the challenge of Articles 14, 19 and
\n31, but not retrospectively. Article 31B protects Scheduled Acts and the Regulations and
\nnone of the Scheduled Acts are deemed to be void or even to have become void on the
\nground of contravention of any fundamental right.\n<\/p>\n
1105. The validity of the Constitution 29th Amendment Act lies within a narrow
\ncompass. Article 31B has been held by this Court to be a valid amendment. Article 31B
\nhas also been held by this Court to be an independent provision. Article 31B has no
\nconnection with Article 31A. The Bihar Land Reforms case and Jeejibhoy case are well
\nsettled authorities for that proposition. It, therefore, follows that Mr. Palkhivala’s
\ncontention cannot be accepted that before the Acts can be included in the Ninth Schedule
\nrequirements of Article 31A are to be complied with.\n<\/p>\n
1106. For the foregoing reasons these are the conclusions.\n<\/p>\n
1107. First, the power to amend the Constitution is located in Article 368. Second, neither
\nthe Constitution nor an amendment of the Constitution can be or is law within the
\nmeaning of Article 13. Law in Article 13 means laws enacted by the legislature subject to
\nthe provision of the Constitution. Law in Article 13(2) does not mean the Constitution.
\nThe Constitution is the supreme law. Third, an amendment of the Constitution is an
\nexercise of the constituent power. The majority view in Golak Nath case is with respect
\nwrong. Fourth, there are no express limitations to the power of amendment. Fifth, there
\nare no implied and inherent limitations on the power of amendment. Neither the Preamble
\nnor Article 13(2) is at all a limitation on the power of amendment. Sixth, the power to
\namend is wide and unlimited. The power to amend means the power to add, alter or
\nrepeal any provision of the Constitution. There can be or is no distinction between
\nessential and in-essential features of the Constitution to raise any impediment to
\namendment of alleged essential features. Parliament in exercise of constituent power can
\namend any provision of this Constitution. Under Article 368 the power to amend can also
\nbe increased. The 24th Amendment is valid. The contention of Mr. Palkhivala that
\nunlimited power of amendment would confer power to abrogate the Constitution is
\nrightly answered by the Attorney General and Mr. Seervai that amendment does not mean
\nmere abrogation or wholesale repeal of the Constitution. The Attorney General and Mr.
\nSeervai emphasised that an amendment would leave an organic mechanism providing the
\nConstitution organisation and system for the State. If the Constitution cannot have a vital
\ngrowth it needs must wither. That is why it was stressed on behalf of the respondents that
\norderly and peaceful changes in a Constitutional manner would absorb all amendments to
\nall provisions of the Constitution which in the end would be “an amendment of this
\nConstitution”.\n<\/p>\n
1108. The 25th Amendment is valid. The adequacy of amount fixed or the principles
\nspecified cannot be the subject matter of judicial review. The amendment of Article
\n31(2B) is valid. Article 31(2) is self contained and Articles 31(2) and 19(1)(f) are
\nmutually exclusive. Amendment of fundamental right prior to the amendment was and is
\nnow after the 24th Amendment valid. Article 31C does not delegate or confer any power
\non the State legislature to amend the Constitution. Article 31C merely removes the
\nrestrictions of Part III from any legislation giving effect to Directive Principles under
\nArticle 39(b) and (c). The power of Parliament and of State legislatures to legislate on the
\nclass of legislation covered by Article 31C is rendered immune from Articles 14, 19 and\n<\/p>\n
31.
\n1109. The inclusion of the Kerala Act 35 of 1969 and the Kerala Act 25 of 1971 by the
\n29th Amendment in the Ninth Schedule is valid. Article 31B is independent of Article
\n31A.\n<\/p>\n
1110. In the result the contentions of Mr. Palkhivala fail. Each party will pay and bear its
\nown costs. The petitions will be placed before the Constitution Bench for disposal in
\naccordance with law.\n<\/p>\n
P. Jaganmohan Reddy, J.\n<\/p>\n
1111. The detailed contentions addressed before us for 66 days have been set out in the
\njudgment of My Lord the Chief Justice just pronounced, and I would only refer to such of
\nthose as are necessary for dealing with the relevant issues. Though I agree with some of
\nthe conclusions arrived at by him, but since the approach in arriving at a conclusion is as
\nimportant as the conclusion itself, and particularly in matters involving vital
\nConstitutional issues having a far-reaching impact on fundamental freedoms of the
\npeople of this country and on the social objectives which the State is enjoined to achieve
\nunder the Directive Principles of State Policy, I consider it my duty to express my views
\nin my own way for arriving at those conclusions.\n<\/p>\n
1112. In this case the validity of the Constitution (Twenty-fourth) and (Twenty-fifth)
\nAmendment Acts of 1971 and the Constitution (Twenty-ninth) Amendment Act of 1972
\nhas been challenged as being outside the scope of the power of amendment conferred on
\nParliament by Article 368 of the Constitution and consequently void.
\n1113. The validity of the Twenty-fourth Amendment would depend upon the
\ninterpretation of two crucial articles, Article 13 and Article 368, and two words, one in
\neach article, namely, `law’ in the former, and ‘amendment’ in the latter. For the purposes
\nof ascertaining the true intent and scope of these articles in I.C. Golaknath and Ors. v.
\nState of Punjab, (1967) 2 S.C.R. 762 the basic question which the Court first considered
\nwas, where was power to amend the Constitution of India to be found? Subba Rao, C.J.,
\nwith whom Shah and Sikri, JJ., as they then were, and Shelat and Vaidialingam, JJ.,
\nconcurred, (hereinafter referred to as the leading majority judgment), held that the power
\nwas contained in Articles 245, 246 and 248 read with Entry 97 of List I of Schedule VII,
\nand not in Article 368 which only provided for the procedure to amend the Constitution.
\nHidayatullah, J., as he then was, in his concurring judgment held that the procedure of
\namendment, if it can be called a power at all, is a legislative power, but it is sui generis
\nand outside the three Lists of the Constitution, and that Article 368 outlines a process
\nwhich, if followed strictly, results in the amendment of the Constitution. He was,
\ntherefore, of the view that the Article gives power to no particular person or persons. All
\nthe named authorities have to act according to the letter of the Article to achieve the
\nresult.\n<\/p>\n
1114. Wanchoo, J. as he then was, for himself and two other Judges, Bachawat and
\nRamaswami, JJ., found the power in Article 368 itself and not in Articles 245, 246 and
\n248 read with Entry 97 of List I.\n<\/p>\n
1115. It is, therefore, contended by the learned Advocate-General of Maharashtra, firstly,
\nthat the finding in the leading majority judgment that the fundamental rights cannot be
\namended is based on the decision that the amending power is to be found in the residuary
\nArticle 248 read with Entry 97 of List I of Schedule VII. This finding is deprived of its
\nfoundation, since six Judges held that the amending power is not to be found in the
\nresiduary Article and Entry 97 of List I. Secondly, the conclusion that the fundamental
\nrights cannot be amended was reached by the leading majority judgment on the basis that
\nArticle 13(2) was attracted by the opening words of Article 245 and, therefore, a law
\namending the Constitution under entry 97 of List I was a law referred to in Article 245,
\nand as it was in conflict with Article 13(2) the law was void.\n<\/p>\n
1116. It is again contended that this conclusion loses its validity once its basis is
\ndestroyed by five Judges holding that the amending power is not to be found in entry 97
\nof List I, but in Article 368. In view of the conclusion of Hidayatullah, J., that the power
\nof amendment as well as procedure therefor was contained in Article 368 itself, he
\nsubmits that there is no ratio binding on this Court unless it be that the power of
\namendment is not in the residuary article but in Article 368. This argument is of little
\nvalidity, because the ratio of the decision, where a question is directly raised before the
\nCourt for decision, is that which it decides, and in that case wherever the power may have
\nbeen found, whether in Article 368 or in the residuary entry 97 of List I of Schedule VII,
\nthe controversy was whether an amendment made under Article 368 is a ‘law’ within the
\nmeaning of Article 13(2), and if it is so, a State cannot make a law taking away or
\nabridging fundamental rights conferred by Part III of the Constitution. That question
\nbeing answered in the affirmative by the majority, the ratio of Golaknath’s decision is that
\nan amendment under Article 368 is a ‘law’ within the meaning of Article 13(2). What the
\nleading majority judgment in that case did not decide, however, is whether Article 368
\nitself could be amended under the proviso of that article conferring a power to amend the
\nwhole Constitution. At p. 805, Subba Rao, C.J., observed, “In the view we have taken on
\nthe scope of Article 368 vis-a-vis the fundamental rights, it is also unnecessary to express
\nour opinion on the question whether the amendment of the fundamental rights is covered
\nby the proviso to Article 368.” While five Judges who were in minority held that each
\nand every article of the Constitution could be amended in exercise of the power under,
\nand by following the procedure in, Article 368, Hidayatullah, J., held that by amending.
\nArticle 368, Parliament could not do indirectly what it could not do directly, namely,
\namend Article 13(2) or override the provisions thereunder, because as he said, “The
\nwhole Constitution is open to amendment. Only two dozen articles are outside the reach
\nof Article 368. That too because the Constitution has made them fundamental.” (See p.\n<\/p>\n
878). There is, therefore, warrant for the submission that Golaknath’s case is not
\ndeterminative of the question now raised before this Court as to whether the power to
\namend Article 368 could be exercised to amend the fundamental rights in Part III. At any
\nrate, five of the six Judges who expressed an opinion on this aspect support the
\nproposition that this can be done.\n<\/p>\n
1117. It was also submitted that no question in fact arose for decision in Golaknath’s case
\nthat in future Parliament could not amend the fundamental rights, because what that case
\nwas concerned with was the past exercise of the power to amend the fundamental rights,
\nand, therefore, the observations in the majority judgments of Subba Rao, C.J., and
\nHidayatullah, J., as he then was, about the future exercise of that power are clearly obiter.
\nIt may be pointed out that the majority judgment as well as the minority judgment
\nconcurred in dismissing the petition, the former on the ground that the First, Fourth and
\nSeventeenth Amendments were not affected either on the basis of the doctrine of
\nprospective overruling or on the basis of acquiescence or on the ground that they were
\nmade by virtue of a valid exercise of the amending power under Article 368. On this
\nbasis it is submitted that no ratio can be found in that case for the majority declaring that
\nParliament in future cannot amend fundamental rights which is binding on this Court nor
\ncan it amend the amending article to take away or abridge fundamental rights.
\n1118. Whether the First, Fourth and Seventeenth Amendments have been rightly held to
\nbe valid or not, the ratio of the decision as was observed earlier is that under Article 368
\nas it was before its amendment, Parliament could not amend the Constitution to take
\naway or abridge any of the fundamental rights conferred by Part III of the Constitution,
\nand that question will only assume importance if this Court comes to the conclusion,
\nfollowing Hidayatullah, J.’s, decision, that Parliament cannot amend Article 368 under
\nproviso (e) thereof to take away or abridge any of the fundamental rights or to amend
\nArticle 13(2) making it subject to an amendment under Article 368. If such a power
\nexists, the question whether an amendment in Article 368 is a ‘law’ ‘within the meaning of
\nArticle 13(2) may not prima facie be of significance. There are, however, two aspects to
\nthis problem, firstly, whether ‘law’ in Article 13(2) includes an amendment of the
\nConstitution under Article 368: and secondly, if this Court holds that ‘law’ in Article
\n13(2) does not include an amendment under Article 368, then the question would be, has
\nthe Constitution (Twenty-fourth) Amendment purported to exercise a power in effecting
\nthat amendment which was not granted under that Article ? In other words, are there any
\nlimitations to the amending power under Article 368 ? If, as was held by Hidayatullah, J.,
\nthat the power of amendment conferred on Parliament under Article 368 is not a
\nconstituent power, and any amendment made thereunder is a legislative power, which is
\n‘law’ within the meaning of Article 13(2), then Parliament cannot do indirectly what it
\ncannot do directly.\n<\/p>\n
1119. The first question which would arise for decision is what does ‘law’ in Article 13(2)
\nsignify, and is there any internal evidence which would indicate that that word has been
\nused to include an amendment under Article 368, and if it does, whether it is subject to
\nany limitations, and if so, what ? It is contended that the word ‘law’ in Article 13(2) not
\nonly includes ordinary legislative law, but also Constitutional law.
\n1120. It may not, in my view, be necessary to examine the submission, that an
\namendment under Article 368 is not made in exercise of the constituent power but has
\nbeen made by a constituent body, if on examination of the provisions of Part III, there is
\nintrinsic evidence therein which points to the irresistible conclusion that Article 13(2)
\nwas meant only to place an embargo on a law made by a Legislature so-called in
\ncontradistinction to an amendment of the Constitution under Article 368 which no doubt
\nis also a law in its generic sense, as indeed was the view taken in Sankari Prasad Singh
\nDeo v. Union of India and State of Bihar [1952] S.C.R. 89, Sajjan Singh v. State of
\nRajasthan [1965] 1 S.C.R. 933 and Golaknath’s case by some of the learned Judges. The
\nframers of the Constitution have defined “law” in Sub-clause (a) of Clause (3) of Article
\n13 and that this definition would on the first impression appear to apply to only Clause
\n(2) of that Article. But it would also, having regard to the words “unless the context
\notherwise requires”, apply to Clause (1) thereof. While the expression “laws in force” has
\nbeen defined in Sub-clause (b) of Clause (3) for the purposes of Clause (1) as including
\nlaws passed or made by Legislatures or other competent authorities before the
\ncommencement of the Constitution, an Ordinance, a bye-law, rule, regulation,
\nnotification, custom or usage having in the territory of India the force of law saved by
\nArticle 372 would, by virtue of Sub-clause (a) of Clause (3), equally apply to Clause (1)
\nof Article 13.\n<\/p>\n
1121. Again, though Sub-clause (a) of Clause (3) contains an inclusive definition of the
\nword ‘law’ and does not specifically refer to a law made by Parliament or the Legislatures
\nof States, it cannot be, nor has it been denied, that laws made by them are laws within the
\nmeaning of Article 13(2). What is contended, however, is that it also includes an
\namendment of the Constitution or Constitutional laws. No elaborate reasoning is
\nnecessary in support of the proposition that the word “law” in Article 13(2) includes a
\nlaw made by Parliament or a Legislature of the State. When an Ordinance made either by
\nthe President under Article 123 or by a Governor under Article 213, in exercise of his
\nlegislative power which under the respective Sub-clause (2) has the same force and effect
\nas an act of Parliament or the Legislature of a State assented to by the President or the
\nGovernor, as the case may be, is included in Article 13(3)(a), a law passed by Parliament
\nor a Legislature of a State under Article 245 which specifically empowers Parliament for
\nmaking laws for the whole or any part of India or any part of a State and the Legislature
\nof a State for the whole or any part of a State, would be equally included within the
\ndefinition of “law”. Article 246 to 255 deal with the distribution of legislative powers
\nbetween Parliament and the State Legislatures to make laws under the respective Lists in
\nthe Seventh Schedule, and further provides under Article 248(1) and (2) that Parliament
\nhas exclusive power to make any law with respect to any matter not enumerated in the
\nConcurrent List or State List including the power of imposing tax not mentioned in either
\nof those Lists.\n<\/p>\n
1122. Whereas Article 13(3)(a) has sepcifically included within the definition of ‘law’,
\ncustom or usage having in the territory of India the force of law, and even though it has
\nnot specifically mentioned an amendment made under Article 368 or a law made by
\nParliament or a Legislature it would certainly include a law made by the latter organs by
\nreason of the legislative provisions of the Constitution referred to above. Having regard
\nto the importance of the amending power, whether it is considered as a constituent power
\nor as a constituted power, the omission to include it specifically would, it is contended,
\nindicate that it was not in the contemplation of the framers of the Constitution to extend
\nthe embargo in Article 13(2) to an amendment under Article 368. To my mind what is
\ndifficult to envisage is that while the framers included minor legislative acts of the State
\nwithin the definition of ‘law’ in Article 13(3), they did not think of including an
\namendment of the Constitution therein, even though attempts were made towards that end
\ntill the final stages of its passage through the Constituent Assembly. It is contended that
\nthe answer to this could be that the framers did not include specifically a law made by the
\nLegislature in that definition, and as such all laws whether legislative or amendments of
\nthe Constitution would come within its purview. This argument loses its significance in
\nview of the fact that the enumeration of laws like rule, bye-law, regulation and
\nnotification which have their source and existence in the legislative law clearly indicate
\nthe inclusion of a law made by Parliament or a Legislature of a State. It is not that the
\nframers did not consider meticulously any objections to or defects in the definitions as I
\nwill show when dealing with the various stages of the consideration of the draft article.
\n1123. It may be necessary first to examine whether in the context of the inclusive
\ndefinition of ‘law’, and not forgetting that an amendment under Article 368 could also be
\ntermed ‘law’, the prohibition that the State cannot take away or abridge the rights
\nconferred under any of the provisions of Part III is confined to those categories of law to
\nwhich I have specifically referred, namely, to the law made by Parliament or a
\nLegislature of the State and to those indicated in Article 13(3)(a). The law referred to in
\nArticle 14, Clauses (3) and (5) of Article 16, Article 17, Clauses (2) to (6) of Article 19,
\nArticle 20, Article 21, Clauses (4) and (7) of Article 22, Clause (1) of Article 23, Clause
\n(2) of Article 25, Article 31, Clause (3) of Article 32, Articles 33, 34 and Clause (a) of
\nArticle 35, is, in my view, a law which the Parliament or a Legislature of the State or
\nboth, as the case may be, is required to make for giving force to the rights or is permitted
\nto make to restrict the rights conferred by Part III. In other words, the permissible limits
\nare indicated therein. Further under Article 15 the words ‘special provision’ and in Clause
\n(4) of Article 16 the making of any provision by the State, and Clause (2) of Article 23
\nimposing of a compulsory service by the State for public purposes, or preventing the
\nState from doing or permitting it to take certain actions under Article 28, Clause (2) of
\nArticle 29 and Clause (2) of Article 30 can either be by an ordinary legislative law or by
\nan order or notification issued by the Government which may or may not be under any
\nlaw but may be in the exercise of a purely executive power of the Government of India or
\nthe Government of a State having the force of law.\n<\/p>\n
1124. Even where reasonable restrictions are permitted as in Clauses (2) to (6) of Article
\n19 or where restrictions or abrogation of the totality of fundamental rights contained in
\nPart III have been permitted in respect of members of the armed forces or the forces
\ncharged with the maintenance of public order under Article 33, or where it is sought to
\nindemnify persons in the service of the Union or a State or any other person, it is the
\nParliament that has been empowered to make a law in that re-regard. Article 35, it may be
\nnoticed, begins with a non obstante clause, “Notwithstanding anything in this
\nConstitution – (a) Parliament shall have, and the Legislature of a State shall not have,
\npower to make laws….” This non obstante clause has the effect of conferring the power of
\nlegislation in respect of matters mentioned therein to Parliament exclusively which it
\nwould not have otherwise had, because some of the powers were exercisable by the State
\nLegislatures. Hidyatullah, J., however, thought that the opening words in Article 35 were
\nmore than the non obstante clause and excluded Article 368 – a conclusion based on
\ncomparison of that Article with Article 105-A of the Australian Constitution in respect of
\nwhich New South Wales v. The Commonwealth 36 C.L.R. 155 had held that it was an
\nexception to Section 128 (See Golaknath’s case at p. 902). Wynes, however, did not agree
\nwith this view of the High Court of Australia: See Legislative, Executive and Judicial
\npowers in Australia, pp. 695-698. With this view, Hidayatullah, J., did not agree. In my
\nview it is unsafe to rely on cases which arise under other Constitutions. Apart from this,
\nArticle 35 is not in pari materia with Article 105-A of the Australian Constitution which
\ndeals with the binding nature of the financial agreement made thereunder. The analogy is,
\ntherefore, inapplicable, nor is there anything in the subject-matter of Article 35 to
\nsafeguard it from being amended under Article 368. On the other hand, this article
\nempowers Parliament to give effect to fundamental rights and gives no indication to
\ndelimit the power of amendment under Article 368.\n<\/p>\n
1125. It is true that the Constitution itself has provided the limitations that can be
\nimposed on the fundamental rights guaranteed in Part III, but those limitations can only
\nbe effected by ordinary law as opposed to Constitutional law and nor imposing those
\nlimitations an amendment of the Constitution is not needed. Once a right is conferred on
\nthe citizen, to what extent the right can be restricted, or where a State is prohibited from
\nacting in any particular manner to what extent it is permitted, is to be regulated only by
\nan ordinary law. If so, the bar against exceeding the permissible limits must prima facie
\nbe against the State making such a law. In the circumstances, could it be said that the
\nframers of the Constitution contemplated the inhibition in Article 13(2) to operate on any
\nthing other than ordinary law ? To limit the extent and ambit of the power under Article
\n368 in which there is no reference to a law, by including within the ambit of the
\ndefinition of ‘law’ in Article 13(3)(a) for purposes of Article 13(2), an amendment
\neffected under Article 368, is to restrict the power of amendment by a strained
\nconstruction or to impute to the framers of the Constitution a lack of respect to the
\namending power by making the bar of Article 13(2) applicable to it by mere implication,
\nwhen in respect of minor instruments they were careful enough to include them in the
\ndefinition of ‘law’.\n<\/p>\n
1126. While this is so, a consideration of the conspectus of various rights in Part III when
\nread with Article 13(2) would, in my view, prohibit the taking away or abridging of those
\nrights by a law made by the Legislature namely the Parliament, Legislature of a State, or
\nby executive action. This conclusion of mine will be substantiated if Article 13(2) is read
\nalong with each of the Articles in Part III, in so far as any of them contain the word ‘law’
\nwhich indeed it can be so read. The object of incorporating Article 13(2) was to avoid its
\nrepetition in each of the Articles conferring fundamental rights. Only one instance of this
\nmay be given in support of my conclusion. Clauses (2) to (6) of Article 19 which are
\nlimitations on the freedoms in Article 19(1)(a) to (g) respectively are couched in similar
\nterms, and if I were to take one of these clauses for illustrating the point, it would amply
\ndemonstrate that the framers used the word ‘law’ in both Article 13(2) and Clauses (2) to
\n(6) of Article 19 only in the sense of an ordinary law. Sub-clause (a) of Clause (1) of
\nArticle 19 and Clause (2) of that Article, if so read with Article 13(2) of the Constitution
\nas it stood on January 26, 1950, may be redrafted as under:\n<\/p>\n
19(1). All citizens shall have the right-\n<\/p>\n
(a) to freedom of speech and expression;\n<\/p>\n
…\n<\/p>\n
(2) The State shall not make any law which takes away or abridges the
\nrights conferred by this article and any law made in contravention of this
\nclause shall, to the extent of the contravention, be void:\n<\/p>\n
Provided that nothing in Sub-clause (a) of Clause (1) shall
\naffect the operation of any existing law in so far as it relates
\nto, or prevent the State from making any law relating to
\nlibel, slander, defamation, contempt of court or any matter
\nwhich offends against decency or morality or which
\nundermines the security of, tends to overthrow, the State.\n<\/p>\n
Clause (2) in the above draft incorporates the entire Clause (2) of Article 79 except that
\ninstead of Part III the word ‘article’ has been used, and Clause (2) of Article 19 has been
\nincorporated as a proviso.\n<\/p>\n
1127. In the alternative, if Clauses (2) to (6) of Article 19 are read as a proviso to Article
\n13(2), they would appear as follows:\n<\/p>\n
The State shall not make any law which takes away or abridges the rights
\nconferred by this Part and any law made in contravention of this clause
\nshall, to the extent of the contravention, be void:\n<\/p>\n
Provided nothing in Sub-clause (a) of Clause (1) of Article 19 shall affect
\nthe operation of any existing law in so far as it relates to, or prevent the
\nState from making any law relating to, libel, slander, defamation,
\ncontempt of court or any matter which offends against the decency or
\nmorality or which undermines the security of, tends to overthrow, the
\nState.\n<\/p>\n
In each of the Clauses (3) to (6) of Article 19 the expression ‘any existing law in so far as
\nit imposes or prevents the State from making any law imposing’ has been uniformly used,
\nand if these clauses are read as provisos just in the same way as Clause (2) of Article 19
\nhas been read in either of the manner indicated above, the word ‘law’ in all these clauses
\nas well as in Clause (2) of Article 13 would be the same and must have the same
\nmeaning. Similarly, Article 16(3) and (5) and Article 22(3) may also be so read. In
\nreading the above articles or any other article in Part III with Article 13(2) it appears to
\nme that the words `law’, ‘in accordance with law’, or ‘authority of law’ clearly indicate that
\n‘law’ in Article 13(2) is that which may be made by the ordinary legislative organs. I shall
\nalso show, when I examine the various stages through which the corresponding draft
\narticle which became Article 13(2), passed through the Drafting Committee and the
\nConstituent Assembly, that the proviso to Article 8 would lead to a similar conclusion.
\n1128. Though the word ‘State’ has a wider meaning and may include Parliament or
\nParliament and the State Legislature acting together when to effect an amendment under
\nArticle 368, in the context of the restrictions or limitations that may be imposed by law
\non certain specified grounds mentioned in any of the provisions of Part III, particularly
\nthose referred to above, could only be a law made by the Legislature otherwise than by
\namendment of the Constitution, or to impose any restriction or limitation within the
\npermissible limits on the fundamental rights under any of the provisions of Part III, an
\namendment of the Constitution is not necessary and hence could not have been so
\nintended. It is also submitted that the definition of the word ‘State’ in Article 12 read with
\nArticle 13(2) would prohibit the agencies of the State jointly and separately from
\neffecting an amendment, the same being a law, from abridging or taking away any of the
\nrights conferred by Part III or in amending Article 13(2) itself. In this connection
\nHidayatullah, J., in Golaknath’s case at p. 865 – read the definition of the word ‘State’ in
\nArticle 12 as connoting, “the sum total of all the agencies which are also individually
\nmentioned in Article 12”, and hence, “by the definition all the parts severally are also
\nincluded in the prohibition”. In other words, he has taken the definition to mean and
\nconnote that all the agencies acting together, namely, the Parliament and the Legislatures,
\nand if the two Houses of Parliament under Article 368(1) or the two Houses of
\nParliament and the Legislatures acting together under the proviso, can effect an
\namendment that amendment would be a law made by the State within the meaning of
\nArticle 13(2). At p. 866 this is what he said: “If the State wields more power than the
\nfunctionaries there must be a difference between the State and its agencies such as
\nGovernment, Parliament, the Legislatures of the States and the local and other authorities.
\nObviously, the State means more than any of these or all of them put together. By making
\nthe State subject to Fundamental Rights it is clearly stated in Article 13(2) that any of the
\nagencies acting alone or all the agencies acting together are not above the Fundamental
\nRights. Therefore, when the House of the people or the Council of States introduces a
\nBill for the abridgement of the Fundamental rights, it ignores the injunction against it and
\neven if the two Houses pass the Bill the injunction is next operative against the President
\nsince the expression “Government of India” in the General Clauses Act means the
\nPresident of India. This is equally true of ordinary laws and laws seeking to amend the
\nConstitution”. He drew support from Article 325 of the Constitution of Nicargua in which
\nspecifically it was stated that, “That agencies of the Government, jointly or separately,
\nare forbidden to suspend the Constitution or to restrict the rights granted by it, “except in
\nthe cases provided therein”. In our Constitution he observed, “the agencies of the State
\nare controlled jointly and separately and the prohibition is against the whole force of the
\nState acting either in its executive or legislative capacity”. With great respect this
\nargument is based on an assumption which is not warranted by the definition of the word
\n‘State’ in Article 12. Nor is it in my view permissible to draw support from a provision of
\nanother Constitution which is differently worded. The assumption that ‘State’ would mean
\nall the agencies of the Government jointly or separately when the agencies of the State
\nhave been separately enumerated, is not justified. The prohibition in Article 13(2) would
\nbe against each of them acting separately. There is no question of Parliament or the State
\nLegislatures or Parliament or either local authorities or other authorities acting together or
\nany one of these acting in combination. Nor under the Constitution can such combination
\nof authorities acting together make a law. The State as Hidayatullah, J., envisages,
\nbecause of the inclusive definition, means “more than any of them or all of them put
\ntogether” which in my view is a State in the political sense and not in a legal sense. Under
\nArticle 51 of the Directive Principles, it is enjoined that the State shall endeavour to
\npromote international peace and security; or maintain just and honourable relations
\nbetween nations, etc., which in the context, can only mean Government or Parliament of
\nIndia. Item 10 of List I of the Seventh Schedule read with Article 246 vests the power of
\nlegislation in respect of “foreign affairs, all matters which bring the Union into relation
\nwith the foreign countries” in those agencies. The words ‘unless the context otherwise
\nrequires’, in my view, refer to those agencies acting separately. If drawing an inference
\nfrom other Constitutions is permissible in interpreting a definition, and I have said that it
\nis not, a reference to Article 9 in the Burmese Constitution would show that the
\ndefinition, of the State is not an inclusive definition, but it defines the State as meaning
\nthe several organs referred therein. I do not, therefore, think that reasoning would indicate
\nthat Article 13(2) puts an embargo on an amendment made under Article 368, nor does it
\nwarrant the making of a distinction between the State and the Government in order to
\nhold that these organs cannot acting together make an amendment affecting rights in Part
\nIII.\n<\/p>\n
1129. Another reason for arriving at this conclusion is that if amendment to the
\nConstitution is a ‘law’, the Constitution as such would also be a law. But the framers of
\nthe Constitution distinguished the ‘Constitution’ from ‘law’ or ‘laws’, by making evident
\ntheir intention by using the word ‘law’ in contradistinction to the ‘Constitution’ indicating
\nthereby that the word ‘law’ wherever referred to, means only an ordinary legislative law,
\nwhile the ‘Constitution’ as something distinct from it. In Article 60 the President, and in
\nArticle 159 the Governor, is required to take oath when assuming office, to preserve,
\nprotect and defend the Constitution and the law. Under Article 61 the President can only
\nbe impeached for the violation of the Constitution. While specifying the extent of the
\nexecutive power in Sub-clauses (a) and (b) of Clause (1) of Article 73 it is provided by
\nthe proviso that the power referred to in Sub-clause (a) shall not, save as expressly
\nprovided in this Constitution or in any law made by Parliament, extend in any State to
\nmatters with respect to which the Legislature of the State has also power to make laws.
\nHere the words ‘law’ and ‘laws’ are definitely referable to the law made by Parliament and
\nthe Legislature of the State. The oath that a Minister of the Union is to take under Article
\n75(1) is set out in Schedule III, that he will do right to all manner of people in accordance
\nwith the Constitution and the law. Judges of the Supreme Court and the High Court are
\nrequired to uphold the Constitution and the laws : see Articles 124(6) and 219 each read
\nwith Schedule III. It is provided in Article 76(2) that the Attorney-General is required to
\ndischarge the function conferred on him by or under this Constitution or any other law for
\nthe time being in force. Again in Article 148(5) dealing with the conditions of service of
\npersons serving in the Indian Audit and Accounts Department, etc., they are made subject
\nto the provisions of this Constitution and of any law made by Parliament. Even though
\nthe framers referred to the Constitution as by law established in some of the provisions,
\nthey have, when dealing distinctly with the Constitution and the law or laws, specified
\nthem as referable to the legislative law. The Constitution, however, was not so described
\nexcept where it is intended to be emphasised that it had the force of law as envisaged by
\nthe words ‘as by law established’.\n<\/p>\n
1130. If this view is correct, and I venture to suggest that it is, a question would arise as
\nto whether Article 13(2) is really redundant, and should the Court so construe it as to
\nimpute to the framers an intention to incorporate something which has no purpose. The
\nCourt, it is well established, should not ordinarily construe any provision as redundant
\nand, therefore, must give effect to every provision of a Statute or law. In support of this
\nline of reasoning it is contended that in so far as Article 13(1) is concerned, ‘a law in
\nforce’ has been defined in Article 13(3)(b), but by virtue of Article 372(1) and
\nExplanation I therein the same result would be achieved and any pre-Constitution
\nConstitutional law which acquires the force of law by virtue of that Article is “subject to
\nthe other provisions” of the Constitution and consequently to the provisions in Part III.
\nSimilarly any law made after the Constitution came into force would be void to the extent
\nof its repugnancy with any of the provisions of the Constitution including those in Part III
\nbecause of the doctrine of ultra vires. If so, it is argued, there was no purpose in enacting
\nArticle 13(2). On the other hand, the petitioner’s learned advocate submits that Article
\n13(2) has a purpose, in that among the laws in force there would be saved some laws of a
\nConstitutional nature which were in force in the erstwhile princely States or even under
\nthe Government of India Act, 1935 where the Governor-General had made orders of that
\nnature. As it was pointed out to the Constituent Assembly by Sardar Vallabhbhai Patel on
\nthe 29th April, 1947 that such may be the position, Article 13(1), it is said, has been
\nincorporated in Part III, and for the same reason in order to protect fundamental rights
\nwhich were basic human freedoms from being taken away or abridged even by an
\namendment of the Constitution, that Article has been incorporated. A reference to the
\nlatter would show that what Sardar Vallabhbhai Patel said was that they had not sufficient
\ntime to examine in detail the effect of Clause (2) of the draft article on the mass of
\nexisting legislation and that clause was, therefore, subject to examination of its effect on
\nthe existing laws which will be done before the Constitution is finally drafted and the
\nclause finally adopted. There is nothing in the proceedings or debates to indicate that
\ncertain Constitutional laws were intended to be saved or that that law was to include an
\namendment of the Constitution, nor is the contention that Article 13(1) was specially
\ndesigned to save pre-existing Constitutional laws notwithstanding that the Government of
\nIndia Act and the Indian Independence Act were repealed by Article 395. If there be in
\nforce any Constitutional laws other than those repealed these are by Article 372(1) given
\nthe same force as any of the ordinary legislative law subject to the other provisions of the
\nConstitution and such laws continue to be in force only until altered, repealed or amended
\nby a competent legislature or other competent authority. There is no indication whatever
\nthat these laws were accorded a status similar to any of the provisions of the Constitution,
\nnor could they co-exist with them in the sense that they can only be dealt with by an
\namendment under Article 368. Kania, C.J. in A.K. Gopalan’s case had no doubt pointed
\nout that, the inclusion of Article 13(1) & (2) appear to be. “a matter of abundant caution”,
\nand that, “Even in their absence if any of the fundamental rights was “infringed by any
\nlegislative enactment, the Court has always the power to declare the enactment to the
\nextent it transgresses the limits, invalid”. Hidayatullah, J., as he then was, in Sajjan
\nSingh’s case at p. 961 – commenting on the above passage of Kania, C.J., pointed out that,
\nThe observation is not clear in its meaning. There was undoubtedly a great purpose which
\nthis article achieves. It is probable that far from belittling the importance of Article 13 the
\nlearned Chief Justice meant rather to emphasise the importance and the commanding
\nposition of Fundamental Rights in that even without Article 13 they would have the same
\neffect on other laws. To hold that Article 13 framed merely by way of abundant caution,
\nand serves no additional or intrinsic function of its own, might, by analogy persuade us to
\nsay the same of Article 32(1) because this Court would do its duty under Article 32(2)
\neven in the absence of the guarantee. No one can deny that Article 13(2) has a purpose
\nand that purpose, as Hidayatullah, J., pointed out, was meant rather to emphasise the
\nimportance and the commanding position of Fundamental Rights, because having regard
\nto the history of the agitation for a Bill of Rights being inscribed in a Constitution, to
\nwhich I have adverted earlier, and the great hope that was inspired in the people of this
\ncountry that there are some fundamental basic rights which are guaranteed to them and
\nwhich cannot be subject to the vagaries of the legislatures, the State was enjoined not to
\ntake away or abridge those rights. Rights in Part III were intended to be made self-
\ncontained with the right of redress guaranteed to them by Article 32 – unlike in the United
\nStates where the judiciary had to invoke and evolve the doctrine of judicial review over
\nthe years. Mere general declarations of rights were without enforceability. As experience
\nshowed such general rights were found ineffective to check the growing power of the
\nmodern State, our framers examined judicial review of fundamental rights in various
\nConstitutions and provided in our Constitution an effective remedy against encroachment
\nof these rights. Article 32(2) provided for a direct approach to the Supreme Court in cases
\nwhere fundamental rights are infringed, which without that provision would only come
\nbefore it by way of an appeal under Article 133 or by special leave under Article 136
\nfrom a decision of the High Court rendered under Article 226. It is this purpose that
\nArticle 13(2) read with Article 12 emphasises. The framers of our Constitution conscious
\nof the pitfalls and difficulties that were confronted by the varying exercise of judicial
\nreview in America wanted to ensure that the doctrine of void and relatively void-a
\ntypically American concept – should find no place in our Constitution. If as stated in
\nGolaknath’s case by the leading majority judgment and by Hidayatullah, J., that
\nfundamental rights were not to be subject to an amending process, it is inconceivable that
\nour framers who gave such meticulous care in inscribing those rights in the Constitution,
\nas is evident from the proceedings in the Constituent Assembly, should not have
\nspecifically entrenched them against chat process. I am aware of the contrary argument
\nthat if they wanted that the amending process in Article 368 should not be fettered by
\nArticle 13(2) they would have expressly provided for it either in Article 368 or in Article
\n13(2) as indeed attempts were made to that effect by moving suitable amendments which,
\nlater, at the concluding stages of the final Draft Constitution, as we shall presently see,
\nwere either withdrawn, not pressed or negatived. But this is neither here nor there, as
\nindeed if the framers took the view that the embargo in Article 13(2) is only against
\nlegislative law, they may have felt that there was no need for any words of limitation
\nwhich will make it inapplicable to Article 368.\n<\/p>\n
1131. Before I refer to the proceedings of the Constiuent Assembly, I must first consider
\nthe question whether the Constituent Assembly Debates can be looked into by the Court
\nfor construing those provisions. The Advocate-General of Maharashtra says until the
\ndecision of this Court in H.H. Maharajadhiraja Madhav Rao Jiwaji Rao Scindia Bahadur
\nand Ors. v. Union of India<\/a> (1971) 3 S.C.R. 9-commonly known as Privy Purses case-
\ndebates and proceedings were held not to be admissible. Nonetheless counsel on either
\nside made copious reference to them. In dealing with the interpretation of ordinary
\nlegislation, the widely held view is that while it is not permissible to refer to the debates
\nas an aid to construction, the various stages through which the draft passed, the
\namendments proposed to it either to add or or delete any part of it, the purpose for which
\nthe attempt was made and the reason for its rejection may throw light on the intention of
\nthe framers or draftsmen. The speeches in the legislatures are said to afford no guide
\nbecause members who speak in favour or against a particular provision or amendment
\nonly indicate their understanding of the provision which would not be admissible as an
\naid for construing the provision. The members speak and express views which differ from
\none another, and there is no way of ascertaining what views are held by those who do not
\nspeak. It is, therefore, difficult to get a resultant of the views in a debate except for the
\nultimate result that a particular provision or its amendment has been adopted or rejected,
\nand in any case none of these can be looked into as an aid to construction except that the
\nlegislative history of the provision can be referred to for finding out the mischief sought
\nto be remedied or the purpose for which it is enacted, if they are relevant. But in
\nTravancore Cochin and Ors. v. Bombay Co. (1952) S.C.R. 113, the Golaknath’s case, the
\nPrivy Purses case and Union of India v. H.S. Dhillon<\/a> (1972) 3 S.C.R. 33 there are dicta it
\nis drafted by people who wanted it to be a national instrument to against referring to the
\nspeeches in the Constituent Assembly and in the last mentioned case they were referred
\nto as supporting the conclusion already arrived at. In Golaknath’s case as well as Privy
\nPurses case the speeches were referred to though it was said not for interpreting a
\nprovision but for either examining the transcendental character of Fundamental rights or
\nfor the circumstances which necessitated the giving of guarantees to the rulers. For
\nwhatever purpose speeches in the Constituent Assembly were looked at though it was
\nalways claimed that these are not admissible except when the meaning was ambiguous or
\nwhere the meaning was clear for further support of the conclusion arrived at. In either
\ncase they were looked into. Speaking for myself, why should we not look into them
\nboldly for ascertaining what was the intention of our framers and how they translated that
\nintention ? What is the rationale for treating them as forbidden or forbidding material.
\nThe Court in a Constitutional matter, where the intent of the framers of the Constitution
\nas embodied in the written document is to be ascertained, should look into the
\nproceedings, the relevant data including any speech which may throw light on
\nascertaining it. It can reject them as unhelpful, if they throw no light or throw only dim
\nlight in which nothing can be discerned. Unlike a statute, a Constitution is a working
\ninstrument of Government, it is drafted by people who wanted it to be a national
\ninstrument to subserve successive generations. The Assembly constituted Committees of
\nable men of high calibre, learning and wide experience, and it had an able adviser, Shri
\nB.N. Rau to assist it. A memorandum was prepared by Shri B.N. Rau which was
\ncirculated to the public of every shade of opinion, to professonal bodies, to legislators, to
\npublic bodies and a host of others and was given the widest publicity. When criticism,
\ncomments and suggestions were received, a draft was prepared in the light of these which
\nwas submitted to the Constituent Assembly, and introduced with a speech by the sponsor
\nDr. Ambedkar. The Assembly thereupon constituted three Committees: (1) Union Powers
\nCommittee; (2) Provincial Powers Committee; and (3) Committee on the Fundamental
\nRights and Minorities Committee. The deliberations and the recommendations of these
\nCommittees, the proceedings of the Drafting Committee, and the speech of Dr.
\nAmbedkar introducing the draft so prepared along with the report of these Committees
\nare all valuable material. The objectives of the Assembly, the manner on which they met
\nany criticism, the resultant decisions taken thereon, amendments proposed, speeches in
\nfavour or against them and their ultimate adoption or rejection will be helpful in throwing
\nlight on the particular matter in issue. In proceedings of a legislature on an ordinary draft
\nbill, as I said earlier, there may be a partisan and heated debate, which often times may
\nnot throw any light on the issues which come before the Court but the proceedings in a
\nConstituent Assembly have no such partisan nuances and their only concern is to give the
\nnation a working instrument with its basic structure and human values sufficiently
\nbalanced and stable enough to allow an interplay of fortes which will subserve the needs
\nof future generations. The highest Court created under it and charged with the duty of
\nunderstanding and expounding it, should not, if it has to catch the objectives of the
\nframers, deny itself the benefit of the guidance derivable from the records of the
\nproceedings and the deliberations of the Assembly. Be that as it may, all I intend to do for
\nthe present is to examine the stages through which the draft passed and whether and that
\nattempts were made to introduce words or expressions or delete any that were already
\nthere and for what purpose. If these proceedings are examined from this point of view, do
\nthey throw any light on or support the view taken by me ?\n<\/p>\n
1132. The various stages of the Constituent Assembly proceedings, while considering the
\ndraft Articles 8 and 304 corresponding to Articles 13 and 368 respectively, would show
\nthat attempts were made to introduce amendments to both these articles to clarify that the
\nembargo in Article 13(2) does not apply to an amendment made under Article 368. First,
\nShri K. Santhanam, one of the members of the Constituent Assembly moved an
\namendment on April 29, 1947 to Clause (2) of the draft submitted to the Constituent
\nAssembly along with the Interim Report on Fundamental Rights. This amendment was
\nthat for the words “nor shall the Union or any unit make any law taking away or
\nabridging any such right”, the following be substituted:\n<\/p>\n
Nor shall any such right be taken away or abridged except by an
\namendment of the Constitution.\n<\/p>\n
1133. The sponsor explained “that if the clause stands as it is even by an amendment of
\nthe Constitution we shall not be able to change any of these rights if found unsatisfactory.
\nIn some Constitutions they have provided that some Parts of the Constitution may be
\nchanged by future Constitutional amendments and other Parts may not be changed. In
\norder to avoid any such doubts, I have moved this amendment and I hope it will be
\naccepted.” This amendment was accepted by Sardar Vallabhbhai Patel and adopted by the
\nConstituent Assembly. Clause (2), after it was so amended, was as follows:
\nAll existing laws, notifications, regulations, customs or usages in force
\nwithin the territories of the Union inconsistent with the rights guaranteed
\nunder this Part of the Constitution shall stand abrogated to the extent of
\nsuch inconsistency. Nor shall any such right be taken away or abridged
\nexcept by an amendment of the Constitution.\n<\/p>\n
Even as the clause stood originally in the draft, it was only the ‘Union’ or any ‘unit’ that
\nwas prohibited from making a law taking away or abridging any such right. At that stage
\nthere was nothing to show that a provision for amendment of the Constitution was either
\ndrafted or was before the Constituent Assembly for consideration. But otherwise also, it
\nwas not a case of the ‘Union’ or ‘Union’ and `the unit’ being prevented from making a law.
\nIn order to justify the submission that all the organs of the State including the ‘Union’ or
\nthe `Union’ and the ‘Unit’ were prevented from effecting an amendment of the
\nConstitution, the only indication is that the law which was prohibited from taking away
\nor abridging fundamental rights was the law of the ‘Union’ or any ‘unit’. The amendment
\nof Shri Santhanam was incorporated by the draftsmen in the Supplementary Report on
\nFundamental Rights which was presented to the Constituent Assembly on August 25,
\n1947, but subsequently this amendment of Shri K. Santhanam incorporated in the draft
\nArticle was deleted by the Drafting Committee. After the Draft Constitution was
\nsubmitted to the President of the Constituent Assembly on February 21, 1948, and was
\ngiven wide circulation, there appears to have been some criticism with respect to what
\nhad then become draft Article 8(2), which was in the following terms:
\nThe State shall not make any law which takes away or abridges the rights
\nconferred by this Part and any law made in contravention of this clause
\nshall, to the extent of the contravention, be void:\n<\/p>\n
Provided that nothing in this clause shall prevent the State
\nfrom making any law for the removal of any inequality,
\ndisparity, disadvantage or discrimination arising out of any
\nexisting law.\n<\/p>\n
The note relating to the addition of the proviso is stated thus:
\nThe proviso has been added in order to enable the State to make laws
\nremoving any existing discrimination. Such laws will necessarily be
\ndiscriminatory in a sense, because they will operate only against those
\nwho hitherto enjoyed an undue advantage. It is obvious that laws of this
\ncharacter should not be prohibited.\n<\/p>\n
The Constitutional Adviser’s note to the Drafting Committee showed that a critic had
\npointed out that “Clause (2) of Article 8 may be held as a bar to the amendment of the
\nprovisions of the Constitution relating to the fundamental rights by a law passed under
\ndraft Article 304, and it should, therefore, be made clear that there is no restriction on the
\npower of Parliament to amend such provisions under Article 304.” The comment of the
\nConstitutional Adviser to this objection was that “Clause (2) of Article 8 does not
\n“override the provisions of Article 304 of the Constitution. The expression “law” used in
\nthe said clause is intended to mean “ordinary legislation”. However, to remove any
\npossible doubt, the following amendment may be made in Article 8:
\n‘In the proviso to Clause (2) of Article 8, after the words “nothing in this
\nclause shall” the words “affect the provisions of Article 304 of this
\nConstitution or” be inserted’.”\n<\/p>\n
The Drafting Committee does not appear to have accepted this suggestion, because the
\nproviso remained as previously drafted, until it was deleted as a result of Amendment No.
\n252 which was standing in the name of Mehboob Ali Beg. On November 25, 1948,
\nPandit Lakshmi Kanta Maitra in moving this Amendment said – “The purpose of this
\namendment is self-evident, and as I have been strictly enjoined not to make any speech I
\nsimply move this amendment.” This amendment was adopted on November 29, 1948,
\nand the proviso was deleted. (See C.A.D. Vol. VII, pp. 611 & 645).
\n1133. How meticulously this article was considered, can be seen from the proceedings on
\nthe objection of Naziruddin Ahmed that the words “custom or usage” in the definition of
\n‘law’ in Article 8(3)(a) (corresponding to Article 13(3)(a) would apply to Article 8(2), but
\nthe State does not make a ‘usage or custom’. Dr. Ambedkar pointed out that that will
\napply to Article 8(1) which deals with ‘laws in force’, but Naziruddin Ahmed insisted that
\nit does not, and that he was no wiser after the explanation given by Dr. Ambedkar that the
\ndefinition of law is distributive. Dr. Ambedkar then said that the amendment of
\nNaziruddin Ahmed creates some difficulty which it is necessary to clear up and
\nultimately to avoid any difficulty he moved an amendment to Clause (3) of Article 8 to
\nread “unless the context otherwise requires” which governed Clauses (a) and (b). This
\nwas adopted. (See C.A.D. Vol. VII, p. 644). It was after this that the proviso was deleted.
\n1134. It would appear from the proviso before it was deleted, if read with Clause (2) of
\ndraft Article 8, as also the note showing the pupose for which it was incorporated, that the
\nlaw referred to therein was a legislative law. It could not by any stretch of the language
\nbe construed as including an amendment under draft Article 304, because the proviso was
\nmaking the restriction in Clause (2) of Article 8 inapplicable to the State from making
\nany law for the removal of any inequality, disparity, disadvantage or discrimination
\narising out of any existing law. If the ‘State’ and the ‘law’ have to be given a particular
\nmeaning in the proviso the same meaning has to be given to them in Clause (2) and since
\nthe proviso clearly envisages a legislative law it furnishes the key to the interpretation of
\nthe word ‘law’ in Clause (2) of draft Article 8 that it is also a legislative law that is therein
\nreferred.\n<\/p>\n
1135. To Article 304 also amendments were moved-one of them, Amendment No. 157
\nwas in the name of Shri K. Santhanam, but he said he was not moving it. (See C.A.D.
\nVol. IX, p. 1643). Both the Attorney-General as well as the Advocate-General of
\nMaharashtra said that they were not able to find out what these amendments were. But
\neven assuming that this Amendment was designed to make the embargo under Article
\n13(2) applicable to Article 368, no inference can be derived therefrom. On the other hand
\nan attempt was made by Dr. Deshmukh to entrench Fundamental Rights. He moved
\nAmendment No. 212 to insert the following Article 304-A after 304:
\n304-A. Notwithstanding anything contained in this Constitution to the
\ncontrary, no amendment which is calculated to infringe or restrict or
\ndiminish the scope of any individual right, any rights of a person or
\npersons with respect to property or otherwise shall be permissible under
\nthis Constitution and any amendment which is or is likely to have such an
\neffect shall be void and ultra vires of any Legislature.\n<\/p>\n
This amendment after Dr. Ambedkar’s speech regarding the scope of the amendment
\nunder Article 304 was, by leave, withdrawn. (See C.A.D. Vol. IX p. 1665).
\n1136. Earlier when the Drafting Committee was considering the objectives, there was a
\nproposal by Shri K. Santhanam, Mr. Ananthasayanam Ayyangar, Mr. T.T.
\nKrishnamachari and Shrimati G. Durgabai that parts III, IV, IX and XVI be added in the
\nproviso to Article 304, but it was pointed out by the Constitutional Adviser that that
\namendment involved a question of policy. The Drafting Committee did not adopt this
\namendment. If this amendment had been accepted, the amendment of the fundamental
\nrights could be effected by the procedure prescribed for amendment which would be by
\ntwo-thirds majority of each of the Houses of Parliament as well as by ratification by
\nresolutions of not less than half the State Legislatures. Even this attempt does not give
\nany indication that fundamental rights in Part III could not be amended under Article 368
\nor that ‘law’ in Article 13(2) is not the ordinary legislative law, but would include an
\namendment under Article 368. An attempt was made to show that on September 17,
\n1949, Dr. Ambedkar while speaking on draft Article 304 had said that Part III was not
\namendable. While adverting to the fact that they had divided the articles into three
\ncategories, he pointed out that the first) category was amendable by a bare majority, and
\nas to the second category he had said: “If future Parliament wishes to amend any
\nparticular article which is not mentioned in Part III or Article 304, all that was necessary
\nfor them is to have two-thirds majority.” The third category for the purposes of
\namendment he explained required two-thirds majority plus ratification. It is submitted on
\nbehalf of the first respondent that what was stated about Part III being excepted from the
\nsecond category was a mistake and that he must be thinking that, alonfi with Article 304,
\nPart III was also included in the third category. The Advocate-General of Nagaland said
\nPart III was a mistake for third category. Instead of third category, he either said or is
\nreported to have said, Part III. Whether it is a correct reading of his speech or not, it is not
\nrelevant, for in interpreting a provision the words used, the context in which it was used,
\nthe purpose which it intended to subserve in the scheme of the Constitution, will alone
\nhave to be considered. For the same reasoning the fact that none of the members who
\nwere also members of the Provisional Parliament ever entertained a doubt as to the non-
\namendability of Part III when the Constitution (First Amendment) Bill was debated and
\nlater enacted as an Act is not relevant.\n<\/p>\n
1137. In the view I take on the construction of Article 13 read with the other provisions
\nof Part III, Article 13(2) does not place an embargo on Article 368 for amending any of
\nthe right in Part III, and it is, therefore, not necessary to go into the question whether the
\nleading majority judgment is right in finding the power of amendment in the residuary
\nentry 97 of List I of Schedule VII, nor is it called for, having regard to the majority
\ndecision that the power of amendment is to be found in Article 368 itself. Whether the
\npower is implied, what is the width and whether Parliament can enlarge that power may
\nhave to be considered, but that Article 368 contains the power and the procedure of
\namendment can admit of little doubt, as was held by the majority in Golaknath’s case by
\nfive judges and Hidayatullah, J., it may, also be noticed that the leading majority
\njudgment did not express any view as to whether under the proviso to Article 368, by
\namending that article itself, fundamental nights could be amended. (See Subba Rao, C.J.,
\nat p. 805).\n<\/p>\n
1138. The question then arises, whether the Twenty-Fourth Amendment is valid, and if it
\nis valid, whether Article 368 as amended is subject to any limitation, and if so, what ?
\nThe objects and reasons of the Twenty-Fourth Amendment Bill set out the purpose for
\nwhich it was enacted and the mischief it sought to remedy. It is stated in Para 2 thereof
\nthus:\n<\/p>\n
The Bill seeks to amend Article 368 suitably for the purpose and makes it
\nclear that Article 368 provides for amendment of the Constitution as well
\nas procedure therefor. The Bill further provides that when a Constitution
\nAmendment Bill passed by both Houses of Parliament is presented to the
\nPresident for his assent, he should give his assent thereto. The Bill also
\nseeks to amend Article 13 of the Constitution to make it inapplicable to
\nany amendment of the Constitution under Article 368.\n<\/p>\n
1139. What in fact the amendment effected will become clear, if the relevant provisions
\nof Article 368, both before and after the amendment was made, are read in juxtaposition
\nalong with a new Sub-clause (4) added to Article 13.\n<\/p>\n
 Before the Amendment After the Amendment Procedure 368. An amendment
\nof this Power of 368.(1) Notwithstanding for amendment Constitution may
\nbe initiated only Parliament anything in this of the by the
\nintroduction of a Bill to amend Constitution Parliament Constitution.
\nfor the purpose in either House the may in exercise of its of
\nParliament, and when Constitution constituent power amend the Bill is
\npassed in each House and procedure by way of addition, by a majority of
\nthe total therefor. variation or repeal any membership of the House
\nprovision of this and by a majority of not less Constitution in
\naccordance than two-thirds of the members with the procedure laid of
\nthat House present and voting down in this article. it shall be
\npresented to the President for his assent and upon such assent being
\ngiven to (2) An Amendment of the bill, the Constitution shall this
\nConstitution may be stand amended in accordance initiated only by the
\nwith the terms of the Bill. introduction of a Bill for the purpose in
\nProvided that if such amendment either House of Parliament, seeks to
\nmake any change in- and when the Bill is passed in each House by a …
\nmajority of the total membership of that House and the amendment shall
\nalso require by a majority of not less to be ratified by the
\nLegislatures than two-thirds of the of not less than one-half members
\nof that House of the States by resolutions to present and voting, it
\nthat effect passed by those shall be presented to Legislatures before
\nthe Bill the President who shall making provision for such give his
\nassent to the amendment is presented to Bill and thereupon the the
\nPresident for assent. Constitution shall stand amended in accordance
\nwith the terms of the Bill : Provided that if such amendment seeks to
\nmake any change in- … the amendment shall also require to be ratified
\nby the Legislatures of not less than one-half of the States by
\nresolutions to that effect passed by those Legislatures before the Bill
\nmaking provision for such amendment is presented to the President for
\nassent. (3) Nothing in Article 13 shall apply to any amendment made
\nunder this article. 13(4) Nothing in this article shall apply to any
\namendment of this Constitution made under Article 368.\n<\/p>\n
1140. The above amendment seeks to provide-(i) that the source of power to amend is in
\nArticle 368; (ii) that when Parliament seeks to make a Constitutional amendment it does
\nso “in exercise of its constituent power”; (iii) that the power to amend was by way of
\naddition, variation or repeal; (iv) that the bar in Article 13 against abridging or taking
\naway any of the fundamental rights does not apply to any amendment made under Article
\n368; (v) that nothing in Article will apply to an amendment of the Constitution under
\nArticle 368; (vi) that the words “any provision of the Constitution” were added so that
\n“any” were to mean “every provision”; and (vii) that it is obligatory on the President to
\ngive his assent to any Bill duly passed under that Article.\n<\/p>\n
1141. In so far as the contention that Article 13(2) is a bar to Constitutional amendments
\nis concerned, I have already given my reasons why I consider that argument as not
\navailable to the petitioner inasmuch as the inhibition contained therein is only against
\nordinary legislative actions. The question, however, is whether Article 13(2) which bars
\nthe taking away or abridging the fundamental rights by Parliament, or Legislatures of the
\nStates and other enactments, specified in Article 13(3)(a) is or is not an essential feature.
\nIf it is not, it can be amended under Article 368. Recognising this position the petitioner
\nsubmits that if the effect of amending Article 368 and Article 13 is to permit the removal
\nof the fetter of Article 13 on the ordinary legislative laws which can thereafter be
\nempowered and left free to abrogate or take away fundamental rights, it would be an
\nessential feature.\n<\/p>\n
1142. The question whether there are any implied limitations on the power to amend
\nunder Article 368 or whether an amendment under that Article can damage or destroy the
\nbasic features of the Constitution would depend, as I said earlier, on the meaning of the
\nword “amendment” before the Twenty-Fourth Amendment. If that word has a limited
\nmeaning, which is the case of the petitioner, it is contended that that power of amendment
\ncould not be enlarged by the use of the words “amend by way of addition, variation and
\nrepeal”.\n<\/p>\n
1143. It may be mentioned that arguments similar to those which were addressed before
\nus were advanced in Golaknath’s case, namely, (i) that the expression ‘amendment’ in
\nArticle 368 has a positive and negative content and that in exercise of that power
\nParliament cannot destroy the structure of the Constitution, but it can only modify the
\nprovisions thereof within the framework of the original instrument for its better
\neffectuation; (ii) that if the fundamentals would be amendable to the ordinary process of
\namendment with a special majority the institution of the President can be abolished, the
\nParliamentary executive can be abrogated, the concept of federation can be obliterated
\nand in short, the sovereign democratic republic can be converted into a totalitarian system
\nof Government The leading majority judgment, though it found that there was
\nconsiderable force in the argument, said that they were relieved of the necessity to
\nexpress an opinion on this all important question, but so far as the fundamental rights are
\nconcerned, the question raised can be answered on a narrow basis. Subba Rao, C.J.,
\nobserved at p. 805: “This question may arise for consideration only if Parliament seeks to
\ndestroy the structure of the Constitution embodied in the provisions other than in Part III
\nof the Constitution. We do not, therefore, propose to express our opinion in that regard”.
\n1144. Hidayatullah, J., on the other hand, dealing with implied limitations by reference to
\nArticle V of the United States Constitution, and the decisions rendered thereunder
\npointed out that although there is no clear pronouncement of the United States Supreme
\nCourt a great controversy exists as to whether questions of substance can ever come
\nbefore the Court and whether there are any implied limitations upon the amendatory
\npower. After considering the view of text-book writers, particularly that of Orfield, and
\nthe position under the English and the French Constitutions (see pp. 870-877), he
\nobserved at p. 878 : “It is urged that such approach makes society static and robs the State
\nof its sovereignty. It is submitted that it leaves revolution as the only alternative if change
\nis necessary. The whole Constitution is open to amendment. Only two dozen articles are
\noutside the reach of Article 368. That too because the Constitution has made them
\nfundamental. What is being suggested by the counsel for the State is itself a revolution
\nbecause as things are that method of amendment is illegal”.\n<\/p>\n
1145. Wanchoo, J., rejected the doctrine of implied limitations though he was doubtful if
\nthe Constitution can be abrogated or another new Constitution can be substituted, (see p.\n<\/p>\n
838). At p. 836 he said, “We have given careful consideration to the argument that certain
\nbasic features of our Constitution cannot be amended under Article 368 and have come to
\nthe conclusion that no limitations can be and should be implied upon the power of
\namendment under Article 368…. We fail to see why if there was any intention to make
\nany part of the Constitution unamendable, the Constituent Assembly failed to include it
\nexpressly in Article 368…on the clear words of Article 368 which provides for
\namendment of the Constitution which means any provision thereof, we cannot infer any
\nimplied limitations on the power of amendment of any provision of the Constitution, be it
\nbasic or otherwise.” It was further observed at p. 831: “that the President can refuse to
\ngive his assent when a Bill for amendment of the Constitution is presented to him, the
\nresult being that the Bill altogether, falls, for there is no specific provision for anything
\nfurther to be done about the Bill in Article 368 as there is in Article 111”.
\n1146. Bachawat, J., noticed the argument on the basic features but did not express any
\nopinion because he said “it is sufficient to say that the fundamental rights are within the
\nreach of the amending power”. Ramaswami, J., on the other hand rejected the thesis of
\nimplied limitations, because Article 368 does not expressly say so. He said at p. 933: “If
\nthe Constitution-makers considered that there were certain basic features of the
\nConstitution which were permanent it is most unlikely that they should not have
\nexpressly said in Article 368 that these basic features were not amendable”.
\n1147. During the course of the lengthy arguments on behalf of the petitioners and the
\nrespondents, we have been taken on a global survey of the Constitutions of the various
\ncountries. In support of the rival contentions, there were cited before us innumerable
\ndecisions of the Supreme Court and the State Courts of the United States of America, and
\nof the Courts in Canada, Ireland, Australia and of the Privy Council. A large number of
\ntreatise on Constitutional law, views of academic lawyers, the applicability of natural law
\nor higher law principles, extracts from Laski’s Grammar of Politics, history of the
\ndemand for fundamental rights, and the speeches in the Constituent Assembly and the
\nProvisional Parliament during the deliberations on the Constitution (First Amendment)
\nBill, were also referred to. The able arguments addressed to us during these long
\nhearings, with great industry and erudition and the alacrity with which the doubts
\nexpressed by each of us have been sought to be cleared by the learned Advocates for the
\npetitioner, the learned Attorney-General, the learned Solicitor-General and by the learned
\nAdvocates-General of the States and the learned Advocates who intervened in those
\nproceedings, have completely eviscerated the contents of the vital and far reaching issues
\ninvolved in this case, though sometimes some aspects tended to hover over the terra
\nferma and sometimes skirted round it, particularly when the views of academic writers
\nwho had the utmost freedom to express on hypothetical problems unrelated to concrete
\nissues falling for a decision in any case, were pressed on us. The a priori postulates of
\nsome of the scholars are not often easy of meeting the practical needs and limitations of
\nthe tenacious aspects of the case precedents which makes our law servicable. There have
\nagain been arguments for taking consequences into consideration which really
\nhighlighted what would be the dire consequences if the result of the decision being one
\nway or the other but this court ought not to be concerned with these aspects, if otherwise
\nour decision is in accordance with the view of the law it takes. We should free ourselves
\nof any considerations which tend to create pressures on the mind. In our view, it is not the
\ngloom that should influence us, as Milton said, “we cannot leave the real world for a
\nUtopia but instead ordain wisely”, and, if I may add, according to the well-accepted rules
\nof construction and on a true interpretation of the Constitutional provisions.
\n1148. Lengthy arguments on the rules of construction were addressed, by referring
\nparticularly to a Urge number of American cases to show what our approach should be in
\ndetermining Constitutional matters, having regard to the paramount need to give effect to
\nthe will of the people which the Legislatures and the Governments represent and for
\nexercising judicial restraint. I must confess that some of these arguments show that the
\ntendency has been to depend more on the views of Judges from other lands, however
\neminent when have in this, the Highest Court of the land during the last over two
\ndecades, forged an approach of our own and set out the rules applicable to the
\ninterpretation of our Constitution. There is no Constitutional matter which is not in some
\nway or the other involved with political, social or economic questions, and if the
\nConstitution-makers have vested in this Court a power of Judicial review, and while so
\nvesting, have given it a prominent place describing it as the heart and soul of the
\nConstitution, we will not be deterred from discharging that duty, merely because the
\nvalidity or otherwise of the legislation will affect the political or social policy underlying
\nit. The basic approach of this Court has been, and must always be, that the Legislature
\nhas the exclusive power to determine the policy and to translate it into law, the
\nConstitutionality of which is to be presumed, unless there are strong and cogent reasons
\nfor holding that it conflicts with the Constitutional mandate. In this regard both the
\nLegislature, the executive, as well as the judiciary are bound by the paramount
\ninstrument, and, therefore, no court and no Judge will exercise the judicial power de hors
\nthat instrument, nor will it function as a supreme legislature above the Constitution. The
\nbona fides of all the three of them has been the basic assumption, and though all of them
\nmay be liable to error, it can be corrected in the manner and by the method prescribed
\nunder the Constitution and subject to such limitations as may be inherent in the
\ninstrument.\n<\/p>\n
1149. This Court is not concerned with any political philosophy, nor has it its own
\nphilosophy, nor are Judges entitled to write into their judgments the prejudices or
\nprevalent moral attitudes of the times, except to judge the legislation in the light of the
\nfelt needs of the society for which it was enacted and in accordance with the Constitution.
\nNo doubt, political or social policy may dominate the legal system. It is only when as I
\nsaid, the Legislatures in giving effect to them translate it into law, and the Courts, when
\nsuch a measure is challenged, are invited to examine those policies to ascertain its
\nvalidity, it then becomes a legal topic which may tend to dominate sometimes to its
\ndetriment.\n<\/p>\n
1150. The citizen whose rights are affected, no doubt, invokes the aid of the judicial
\npower to vindicate them, but in discharging its duty, the Courts have nothing to do with
\nthe wisdom or the policy of the Legislature. When the Courts declare a law, they do not
\nmortgage the future with intent to bind the interest of the unborn generations to come.
\nThere is no everlasting effect in those judgments, nor do they have force till eternity as it
\nwere. The concept, on the other hand, is that the law declared in the past was in accord
\nwith the settled judgment of the society, the social and economic conditions then existing,
\nand that if those judgments are not likely to subserve the subsequent generations or the
\nrequirements and needs of the society as it may be then conditioned, they will have to be
\nchanged by the process known to law, either by legislative action or judicial re-review
\nwhere that is possible. The Courts, therefore, have a duty, and have indeed the power, to
\nre-examine and re-state the law within the limits of its interpretative function in the
\nfulness of the experience during which it was in force so that it conforms with the socio-
\neconomic changes and the jurisprudential outlook of that generation. The words of the
\nlaw may be like coats of Biblical Joseph, of diverse colours and in the context in which
\nthey are used they will have to be interpreted and wherever possible they are made to
\nsubserve the felt-needs of the society. This purpose can hardly be achieved without an
\namount of resilience and play in the interpretative process.\n<\/p>\n
1151. On the desirability of drawing heavily or relying on the provisions of the
\nConstitutions of other countries or on the decisions rendered therein, a word of caution
\nwill be necessary. It cannot be denied that the provisions of the Constitutions of other
\ncountries are designed for the political, social and economic outlook of the people of
\nthose countries for whom they have been framed. The seed of the Constitution is sown in
\na particular soil and it is the nature and the quality of the soil and the climatic conditions
\nprevalent there which will, ensure its growth and determine the benefits which it confers
\non its people. We cannot plant the same seed in a different climate and in a different soil
\nand expect the same growth and the same benefit therefrom. Law varies according to the
\nrequirements of time and place. Justice thus becomes a relative concept varying from
\nsociety to society according to the social milieu and economic conditions prevailing
\ntherein. The difficulty, to my mind, which foreign cases or even cases decided within the
\nCommonwealth where the Common Law forms the basis of the legal structure of that
\nunit, just as it is to a large extent the basis in this country, is that they are more often than
\nnot concerned with expounding and interpreting provisions of law which are not in pari
\nmateria with those we are called upon to consider. The problems which confront those
\nCourts in the background of the State of the society, the social and economic set-up, the
\nrequirements of a people with a totally different ethics, philosophy, temperament and
\noutlook differentiate them from the problems and outlook which confront the courts in
\nthis country. It is not a case of shutting out light where that could profitably enlighten and
\nbenefit us. The concern is rather to safeguard against the possibility of being blinded by
\nit. At the very inception of a Constitutional democracy with a Federal structure innovated
\nunder the Government of India Act, 1935, a note of caution was struck by the Chief
\nJustice of India against following even cases decided on the Constitutions of the
\nCommonwealth units, which observations apply with equal force, if not greater, to cases
\ndecided under the American Constitution. Gwyer, C.J., in In Re : The Central Provinces
\nand Berar Act No. XIV of 1938, (1939) F.C.R. 18 which was the very first case under the
\n1935 Act, observed at p. 38: “But there are few subjects on which the decisions of other
\nCourts require to be treated with greater caution than of federal and provincial powers,
\nfor in the last analysis the decision must depend upon the words of the Constitution
\nwhich the Court is interpreting; and since no two Constitutions are in identical terms, it is
\nextremely unsafe to assume that a decision on one of them can be applied without
\nqualification to another.” This observation was approved and adopted by Gajendragadkar,
\nC.J., (speaking for 7 Judges) in Special Reference 1 of 1964. (1965) 1 S.C.R. 413 at 487.
\n1152. The American decisions which have been copiously cited before us, were rendered
\nin the context of the history of the struggle against colonialism of the American people,
\nthe sovereignty of several States which came together to form a Confederation, the strains
\nand pressures which induced them to frame a Constitution for a Federal Government and
\nthe underlying concepts of law and judicial approach over a period of nearly 200 years,
\ncannot be used to persuade this Court to apply their approach in determining the cases
\narising under our Constitution. For one thing, the decisions of the Supreme Court of the
\nUnited States though were for the benefit of the people and yet for decades those
\ninconvenient decisions were accepted as law by the Government until the approach of the
\nCourt changed. The restraint of the people, the Government and the Court, and the
\npatience with which the inconveniences, if any, have been borne, have all contributed to
\nthe growth of the law and during this long period the Constitution of the United States
\nhas been only amended 24 times. The amending power under the American Constitution
\nis a difficult process in that it is vitally linked with its ratification by the people through
\ntheir representatives in the State Legislatures or in the Conventions. These decisions,
\ntherefore, are of little practical utility in interpreting our Constitution which has devised
\naltogether different methods of amendments. No doubt, the rules of construction which
\nour Courts apply have been drawn from the English decisions and the decisions of the
\nPrivy Council, the latter of which declared the law for the country until its jurisdiction
\nwas abolished; and even today the decisions of the Courts in England, the
\nCommonwealth countries, and the United States of America on matters which are pari
\nmateria are considered as persuasive.\n<\/p>\n
1153. For the proposition that for ascertaining the meaning of the word ‘amendment’, the
\nobject of and the necessity for amendment in a written Constitution must be considered,
\nnamely,-\n<\/p>\n
(a) it is necessary for changing the Constitution in an orderly manner, as
\notherwise the Constitution can be wrecked by extra Constitutional method
\nor by a revolution;\n<\/p>\n
(b) as the very object is to make changes in the fundamental or organic
\nlaw, namely, to change the fundamental or basic principles of the
\nConstitution, the power of amendment cannot be said to be confined to
\nonly changing non-essential features.\n<\/p>\n
1154. The Attorney-General has cited from the writings of several authors of whom I
\nmay refer to a few passages from the following:\n<\/p>\n
1155. Woodrow Wilson in his book on ‘Constitutional Government’ in the United States,
\nsaid:\n<\/p>\n
A Constitutional government, being an instrumentality for the
\nmaintenance of liberty, is an instrumentality for the maintenance of a right
\nadjustment, and must have a machinery of constant adaptation” (page 4-6).
\nIt is, therefore, peculiarly true of Constitutional government that its
\natmosphere is opinion, the air from which it takes its breath and vigor. The
\nunderlying understandings of a Constitutional system are modified from
\nage to age by changes of life and circumstances and corresponding
\nalterations of opinion. It does not remain fixed in any unchanging form,
\nbut grows with the growth and is altered with the change of the nation’s
\nneeds and purposes” (page 22).\n<\/p>\n
1156. Roger Sherman Hoar in his book on “Constitutional Conventions-Their Nature,
\nPowers and Limitations”, speaking of the American Constitution as the one based upon
\npopular sovereignty, says:\n<\/p>\n
The Federal Constitution was ordained and established by the people of
\nthe United States” (U.S. Constitution, Preamble) and guarantees to each of
\nthe several states “a republican form of government” (U.S. Constitution,
\nArticle IV). This means, in other words, a representative form. It is
\nfounded upon the theory that the people are fit to rule, but that it would be
\ncumbersome for them to govern themselves directly. Accordingly, for the
\nfacilitation of business, but for no other purposes the people choose from
\ntheir own number representatives to represent their point of view and to
\nput into effect the collective will (page 11).\n<\/p>\n
Quoting from Jameson’s “Works of Daniel Webster”, it is again stated at p. 12:
\nThese principles were recognised by our forefathers in framing the various
\nBills of Rights, which declare in substance that, as all power resides
\noriginally in the people, and is derived from them, the several magistrates
\nand officers of government are their substitutes and agents and are at all
\ntimes accountable to them.\n<\/p>\n
The various agents of the people possess only such power as is expressly
\nor impliedly delegated to them by the Constitution or laws under which
\nthey hold office; and do not possess even this, if it happen to be beyond
\nthe power of such Constitution or laws to grant.\n<\/p>\n
A question that naturally arises is, are the above postulates basic to our Constitution ?
\n1157. After referring to these passages, the learned Attorney-General submitted that the
\npeople of India have, as expressed in the Preamble, given the power to amend the
\nConstitution to the bodies mentioned in Article 368. These bodies represent the people,
\nand the method to amend any part of the Constitution as provided for in Article 368 must
\nalone be followed. In his submission any other method, for example, Constituent
\nAssembly or Referendum would be extra-Constitutional or revolutionary. Article 368
\nrestricts only the procedure or the manner or form required for amendment, but not the
\nkind or character of the amendment that may be made. There are no implied limitations
\non the amending power under Article 368. It is the people who have inscribed Article 368
\nin the Constitution. In the numerous American cases cited before us, there is a constant
\nreference to the people taking part in the amending process through the Conventions or
\nratification by the Legislatures which the judiciary has been treating as ratification by the
\npeople. In that context the word ‘amendment’ has been construed widely because when
\nthe sovereign will of the people is expressed in amending the Constitution, it is as if it
\nwere they who were expressing the original sovereign will represented in the convention
\nwhich drafted the Constitution. There has been even a divergence of opinion among the
\nwriters in the U.S. as to whether the entrenched provisions for the representation of the
\nStates in the Senate which could not be amended without the consent of the State affected
\ncan be amended even where all the States except the State concerned have ratified the
\ntaking away or abridging that right. With this or the several aspects of the American
\nConstitution we are not called upon to expound nor have we any concern with it except
\nwith the claim of the petitioner that the fundamental; rights have been reserved by the
\npeople to themselves and the counter-claim by the learned Attorney-General that it is the
\npeople who have inscribed Article 368 by investing that Article with the totality of the
\nsovereignty of the people which when exercised in the form and manner prescribed in
\nthat Article would amend any provision of the Constitution without any limitations as to
\nthe nature or kind of the amendment. The people, the learned Attorney-General
\nsubmitted, have been eliminated from the amending process because being illiterate and
\nuntutored they would not be able to take part in that process with proper understanding or
\nintelligence. This to my mind, appears somewhat incongruous. When they can be trusted
\nto vote in much more complicated issues set out in election manifestos involving
\neconomic and political objectives and social benefits which accrue by following them,
\nsurely they could be trusted with deciding on direct issues like amending the
\nConstitution. But the whole scheme of the Constitution shows it is insulated against the
\ndirect impact from the people’s vote, as can be seen, firstly, by the electoral system under
\nwhich it may often happen that a minority of voters can elect an overwhelming majority
\nin Parliament and the Legislatures of the States, while the majority vote is represented by
\na minority of representatives, as is evident from the affidavit filed in respect of the recent
\nelections by the Union of India on March 12, 1973, and secondly, where a President is
\nelected by proportional representation of the members of the Legislatures. This situation
\ncould not have been unknown to the framers can be gathered from the speech of Dr.
\nAmbedkar who said: “Constitutional morality is not a natural sentiment. It has to be
\ncultivated. We must realize that our people have yet to learn it. Democracy in India is
\nonly a top-dressing on an Indian soil, which is essentially undemocratic”. (C.A.D., Vol.
\nVII, p. 38). In any case this aspect need not concern this Court as it deals with what has
\nalready been done, but since so much has been said about the people and the amending
\npower in Article 368 as representing the sovereign will of the people, I have ventured to
\nrefer to this topic.\n<\/p>\n
1158. There is no doubt some warrant in support of the proposition that people have
\nreserved to themselves the fundamental rights, as observed by Patanjali Sastri, J., in A.K.
\nGopalan v. State Madras<\/a> (1950) S.C.R. 88 at 100, to which a reference has been made
\nearlier, and, therefore, it is submitted that these rights cannot be taken away or abridged
\neven by an amendment of the Constitution. Neither of these submissions accord with the
\nfacts of history though the Preamble which was adopted as a part of the Constitution on
\nOctober 17, 1949 says so. (See with respect to the adoption of the Preamble as a part of
\nthe Constitution, C.A.D., Vol. X, p. 456). To digress somewhat, it appears that the
\nobservations in In Re : Berubari Union & Exchange of Enclaves (1960) 3 S.C.R. 250,
\nthat the Preamble was not part of the Constitution does not seem to have taken note of the
\nfact that the Constituent Assembly had debated it and adopted the resolution. “That the
\nPreamble stand part of the Constitution”. It appears to me that a comparison with Article
\nV of the U.S. Constitution providing for an amendment of that Constitution, with Article
\n368 of our Constitution, would show that there is no resemblance between the amending
\nprocedure provided in either of them. Such a comparison would, in my view, be
\nmisleading, if we were to apply the concepts and dicta of the eminent Judges of the
\nSupreme Court of the U.S. in interpreting our Constitution. If we were to accept the
\ncontention of the learned Attorney-General that the sovereignty is vested in Article 368,
\nthen one is led to the conclusion on an examination of the history of the Constitution-
\nmaking that the people of India had never really taken part in the drafting of the
\nConstitution or its adoption, nor have they been given any part in its amendment at any
\nstage except indirectly through representatives elected periodically for conducting the
\nbusiness of the Government of the Union and the States. It cannot be denied that the
\nmembers of the Constituent Assembly were not elected on adult franchise, nor were the
\npeople of the entire territory of India represented therein even on the very limited
\nfranchise provided for under the Cabinet Mission Plan of May 16, 1946 which was
\nrestricted by the property, the educational and other qualification to approximately 15%
\nof the country’s population comprising of about 40 million electOrs. The people of the
\nerstwhile princely States were not elected to the assembly though the representatives of
\nthose States may have been nominated by the rulers. A day before the transfer of power
\non August 15, 1947, the Indian States were only subject to the paramountcy of the British
\nCrown. On August 15, 1947, all of them, except Hyderabad, Junagadh and Jammu &
\nKashmir, had voluntarily acceded to the Dominion of India.\n<\/p>\n
1159. The objectives Resolution which claims power from the people to draft the
\nConstitution was introduced in the Constituent Assembly on December 13, 1946, when
\nthe Constituent Assembly met for the first time and at a time when the Muslim League
\nbycotted the session (See C.A.D., Vol. I, p. 59). The 4th clause of that Resolution
\nprovided that all power and authority of the Sovereign Independent India, its constituent
\nparts and organs of government are derived from the people. The Resolution also said
\nthat in proclaiming India as an Independent Sovereign Republic and in drawing up for her
\nfuture governance a Constitution there shall be guarantee and secured to all the people of
\nIndia, justice, social, economic and political; equality of status, of opportunity and before
\nthe law; freedom of thought, expression, belief, faith, worship, vocation, association and
\naction, subject to law and public morality; and wherein adequate safeguards shall be
\nprovided for minorities, backward and tribal areas, and depressed and other backward
\nclasses. This Resolution was adopted on January 22, 1947 with utmost solemnity by all
\nmembers standing. (See C.A.D., Vol. II. p. 324).\n<\/p>\n
1160. While the claim was so made and at the time when the Resolution was adopted, the
\nlegal sovereignty over India remained vested in the British Crown and British Parliament,
\nand when that power was transferred, it was transferred to the Constituent Assembly by
\nthe Indian Independence, Act, 1947, Sections 6 and 8 of which conferred on the
\nConstituent Assembly the power to enact a Constitution, as well as the full powers to
\nmake laws which were not to be void or inoperative on the ground that they are repugnant
\nto the laws of England, or to the provisions of the Indian Independence Act or any
\nexisting or future Act of Parliament of the United Kingdom, or to any order, rule or
\nregulation made under any such Act, and the powers of the Legislature of the Dominion
\nof India shall include the power to repeal or amend any such Act, order, rule or regulation
\nin so far as it is part of the law of the Dominion (See Sub-section (2) of Section (6).
\nThese powers of the Legislature of the Dominion, under Sub-section (1) of Section 8, for
\nthe purposes of making a Constitution, were conferred on the Constituent Assembly and
\nreference in the Act to the Legislature of the Dominion was to be construed accordingly.
\n1161. It was only in November 1949 after the work of the framing of the Constitution
\nwas completed that the ruling Princes accepted it on behalf of themselves and the people
\nover whom they ruled. The Constitution was not ratified by the people but it came into
\nforce, by virtue of Article 394, on January 26, 1950. Article 395 repealed the Indian
\nIndependence Act, 1947 and the Government of India Act, 1935.\n<\/p>\n
1162. Reference may also be made to the fact that during the debates in the Constituent
\nAssembly it was pointed out by many speakers that that Assembly did not represent the
\npeople as such, because it was not elected on the basis of adult franchise, that some of
\nthem even moved resolutions suggesting that the Constitution should be ratified by the
\npeople. Both the claim and the demand were rejected. Dr. Ambedkar explained that, “the
\nConstituent Assembly in making a Constitution has no partisan motive. Beyond securing
\na good and workable Constitution it has no axe to grind. In considering the articles of the
\nConstitution it has no eye on getting through a particular measure. The future Parliament
\nif it met as a Constituent Assembly, its members will be acting as partisans seeking to
\ncarry amendments to the Constitution to facilitate to the passing of party measures which
\nthey have failed to get through Parliament by reason of some Article of the Constitution
\nwhich the Constituent Assembly has none. That is the difference between the Constituent
\nAssembly and the future Parliament. That explains why the Constituent Assembly though
\nelected on limited franchise, can be trusted to pass the Constitution by simple majority
\nand why the Parliament though elected on adult suffrage cannot be trusted with the same
\npower to amend it”. (C.A.D., Vol. VII, pp. 43-44).\n<\/p>\n
1163. At the final stages of the debate on the amending article, Dr. Ambedkar replying to
\nthe objection that the Constituent Assembly was not a representative assembly as it has
\nnot been elected on an adult franchise, that a large mass of the people are not represented,
\nand consequently in framing the Constitution the Assembly has no right to say that this
\nConstitution should have the finality which Article 304 proposes to give it, said – “Sir, it
\nmay be true that this Assembly is not a representative assembly in the sense that
\nMembers of this Assembly have not been elected on the basis of adult suffrage. I am
\nprepared to accept that argument, but the further inference which is being drawn that if
\nthe Assembly had been elected on the basis of adult suffrage, it was then bound to
\npossess greater wisdom and greater political knowledge is an inference which I utterly
\nrepudiate”. (C.A.D., Vol. IX, p. 1663).\n<\/p>\n
1164. The fact that the preamble professed in unambiguous terms that it is the people of
\nIndia who have adopted, enacted and “given to themselves this Constitution”; that the
\nConstitution is being acted upon unquestioned for the last over twenty-three years and
\nevery power and authority is purported to be exercised under the Constitution; and that
\nthe vast majority of the people have, acting under the Constitution, elected their
\nrepresentatives to Parliament and the State Legislatures in five general elections, makes
\nthe proposition indisputable that the source and the binding force of the Constitution is
\nthe sovereign will of the people of India.\n<\/p>\n
1165. On this assumption no state need have unlimited power and indeed in Federal
\nPolities no such doctrine is sustainable. One has only to take the examples of U.S.A.,
\nAustralia or Canada, and our own where the Central and the State Legislatures are
\nsupreme within the respective fields allotted to them. Any conflict between these is
\ndetermined by the Supreme Court, whose duty is to declare the law. Those brought up in
\nthe unitary State find it difficult to recognise such of those limitations as are found in
\nFederal Constitutions. Constitutions have been variously described as rigid or flexible,
\ncontrolled or uncontrolled, but without going into these concepts it is clear that’ if the
\nState is considered as a society, “to which certain indefinite but not unlimited powers are
\nattributed then there is no difficulty in holding that the exercise of State power can be
\nlimited” (A.L. Goodhart, “English Law and the Moral Law”, p. 54). Even in a unitary
\nState like the United Kingdom where it is believed that the Queen in Parliament is
\nsupreme, Professor A.L. Goodhart in the book referred to above points out that this is as
\nmisleading as the statement that the Queen’s consent is necessary. After referring to
\nDicey, Coke and Blackstone, that parliamentary government is a type of absolute
\ndespotism, he says, “Such a conclusion must be in conflict not only with our sense of
\nwhat is fitting, but also with our recognition of what happens in fact. The answer is, I
\nbelieve, that the people as a whole, and Parliament itself, recognise that under the
\nunwritten Constitution there are certain established principles which limit the scope of
\nParliament. It is true that the Courts cannot enforce these principles as they can under the
\nFederal system in the United States, but this does not mean that these principles are any
\nthe less binding and effective. For that matter some of them receive greater protection
\ntoday in England than they do in the United States. These basic principles are, I believe,
\nfour in number”. (A.L. Goodhart, p. 55). Then he narrates what these four principles are :
\nFirst, that no man is above the law, the second, that those who govern Great Britain do so
\nin a representative capacity and are subject to change but “an immortal government tends
\nto be an immoral government”; the third, freedom of speech or thought and assembly are
\nessential part of any Constitution which provides that people govern themselves because
\nwithout them self-government becomes impossible; and the fourth, which is a basic part
\nof the English Constitution is the independence of the judiciary and it is inconceivable
\nthat Parliament should regard itself as free to abolish the principle which has been
\naccepted as a cornerstone of freedom ever since the Act of Settlement in 1701. Professor
\nGoodhart then concludes:\n<\/p>\n
It is therefore, I believe, true to say that it is as wrong in theory as it is in
\nfact to suggest that the British Constitution is a form of enlightened
\ndespotism. Those who exercise power in the name of the State are bound
\nby the law, and there are certain definite principles which limit the
\nexercise of the power.\n<\/p>\n
1166. Before considering the detailed contentions it is necessary to see what was intended
\nto be achieved by the Twenty-fourth Amendment. I have already set out the changes
\nmade in Article 368. These are-\n<\/p>\n
(a) In the marginal note, instead of the expression “Procedure for
\namendment of the Constitution”, it was substituted by “Power of
\nParliament to amend the Constitution and Procedure therefor”. This was to
\nmeet any possible doubt that the marginal note only indicated a procedure
\nand not the power of amendment, though the majority in Golaknath’s case
\nhad held that Article 368 contains both power and procedure;\n<\/p>\n
(b) By the addition of Clause (1), three changes were effected namely, (i)
\na non obstante clause “Notwithstanding anything in this Constitution”, (ii)
\n“Parliament may in exercise of its constituent power”; and (iii) “amend by
\nway of addition, variation or repeal any provision of the Constitution in
\naccordance with the procedure laid down in this article”.\n<\/p>\n
It has already been seen that both in Sankari Prasad’s and Sajjan Singh’s cases, the two
\nHouses of Parliament have been construed as Parliament and not a different body. In
\nGolaknath’s case also all the Judges held that it is only Parliament which makes the
\namendment. The question Whether the power in Article 368 is a constituent power or a
\nlegislative power has of course been debated. The law in its generic terms includes a
\nconstituent law, namely, the Constitution itself made by a Constituent Assembly-as
\nindicated by the wards “The Constitution as by law established”, or an amendment made
\nin accordance with the provision contained in the Constitution, as well as an ordinary
\nlegislative law made by the legislative organs created by the organic instrument. The
\nquality and the nature of the law has been differently described, but broadly speaking the
\nConstitution or the amendments thereof are termed as law which is made in exercise of
\nits constituent power, though the reach of each may differ. If it is true, as is contended,
\nthat both these in the plenitude of power are co-extensive, on any view of the matter, no
\ndifficulty is encountered in describing the amending power as the constituent power.
\nEven otherwise without resort to any great subtlety or distinction between the exercise of
\npower by a constituent body and a constituted body inasmuch as both are concerned in
\nthe making of the Constitution or in amending it, they can be considered as a constituent
\npower. The amending power is a facet of the constituent power, but not the whole of it.
\nThe power under Article 368 after the amendment is still described as amending power.
\nThe Twenty-fourth Amendment makes this explicit because it did not want a doubt to
\nlinger that because the same body, namely, Parliament makes both the ordinary law in
\nterms of the grant in Articles 245 to 248 and an amendment in terms of Article 368, it
\nshould not be considered that both these are legislative laws within the meaning of
\nArticle 13(2) which was what the majority in Golaknath’s case had held. In the view I
\nhave taken that Article 13(2) was confined only to the ordinary legislative laws and not
\none made under Article 368, the addition of Clause (1) to Article 368 in so far as it
\ndeclares that when Parliament exercises the power under that provision if exercises its
\nconstituent power and makes explicit what was implicit. In my view, the amendment,
\ntherefore, makes no change in the position which prevailed before the amendment.
\n1167. It has also been seen that the amendment added Clause (3) to Article 368 that
\n“Nothing in Article 13 shall apply to any amendment made under this article”, and has
\nadded Clause (4) to Article 13 that “Nothing in this article shall apply to any amendment
\nof this Constitution made under Article 368”. These additions, having regard to the view I
\nhave taken that Article 13(2) does not impose any express limitation on Article 368,
\nunless of course, there is a limitation in Article 368 itself on the width of the power which
\nthe word ‘amendment’ in the context of that article and the other provisions of the
\nConstitution might indicate, again make explicit what was implicit therein.
\n1168. The outstanding question then is, what is the meaning of the word ‘amendment’-
\nwhether it has wide or a restricted meaning, whether the word ‘amendment’ includes
\nrepeal or revision, and whether having regard to the other provisions of the Constitution
\nor the context of the word ‘amendment’ in Article 368 itself it has a restricted meaning,
\nand consequently does not confer a power to damage or destroy the essential features of
\nthe Constitution.\n<\/p>\n
1169. The existence or non-existence of any implied limitations on the amending power
\nin a written Constitution, which does not contain any express limitations on that power
\nhas been hotly debated before us for days. I have earlier set out some of these
\ncontentions. If the word ‘amendment’ has the restricted meaning, has that power been
\nenlarged by the use of the words “amend by way of addition, variation or repeal” or do
\nthey mean the same as amendment? If they are wider than amendment, could Parliament
\nin exercise of its amending power in Article 368 enlarge that power? This aspect has been
\nseriously contested and cannot on a superficial view be brushed aside as not worthy of
\nmerit. There can be two ways of looking at it. One approach can be, and it would be the
\nsimplest solution to the problem that confronts us, to assume that the amending power is
\nomni-sovereign and thereafter the task will be easy because so much has been written by
\nacademic writers that it will not be difficult to find expression of views which support
\nthat conclusion. Long years ago, Oliver Wendall Holmes had written, “you can give any
\nconclusion a logical form” and one can only say how true it is. This course, however,
\nshould be eschewed, firstly, because of the a priori assumption and the speculation
\ninherent in drawing upon such writings, and secondly, because the interpretation placed
\nby these learned writers on Constitutions which are different will, if drawn upon, in effect
\nallow them to interpret our Constitution, which though derivative it may be, has to be
\ninterpreted on the strength of its provisions and the ethos it postulates. It is, therefore,
\nnecessary to ascertain from the background of our national aspirations, the objectives
\nadopted by the Constituent Assembly as translated into a working organic instrument
\nwhich established a sovereign democratic Republic with a Parliamentary system of
\nGovernment whereunder individual rights of citizens, the duties towards the community
\nwhich the State was enjoined to discharge; the diffusion of legislative power between
\nParliament and State Legislatures and the provision for its amendment, etc., are provided
\nfor. All these aspects were sought to be well balanced as in a ship built for fair weather as
\nwell as for foul. This then will be the proper approach.\n<\/p>\n
1170. The learned Attorney-General contends that the word ‘amendment has a clear,
\nprecise, definite and unambiguous legal meaning and has been so used in all the written
\nConstitutions of other countries also ever since written Constitutions have been
\ninnovated. The word “amendment” according to him has received a well accepted
\nconstruction which gives it the widest amplitude unrestricted by any limitations thereon.
\nWhile making this submission, however, he has pointed out that though our Constitution
\nhas used different expressions at several places, it does not follow that they do not
\nnecessarily mean the same thing. The Advocate for the petitioner on the other hand says
\nthat this word has no precise and definite or primary and fundamental meaning and hence
\nthe cases on construction cited by the respondents that the Court is not concerned with
\nthe policy of the Legislature are not applicable. On the contrary, he points out, that since
\nthe word is ambiguous, the width of the power has to be ascertained by courts from the
\ngeneral scheme and context of the Constitution in which it appears and other relevant
\nindications and principles. He relies on the observations of Lord Wright in James v.
\nCommonwealth of Australia, [1936] A.C. 578 at p. 627 (P.C.) cited on behalf of the first
\nrespondent that, “A Good draftsman would realise that the mere generality of the word
\nmust compel limitation in its interpretation. ‘Free’ in itself is vague and indeterminate. It
\nmust be its colour from the context”.\n<\/p>\n
1171. The learned Attorney-General further submits, relying again on the decisions of the
\nAmerican Courts that revision and amendment have been held as synonymous terms and
\nthat if you give the power to amend the amending power, the amending power will
\nbecome very wide. It is also his contention, relying on Strong on “Modern Political
\nConstitutions” that the amending provisions re-create the Constituent Assembly, provide
\nsome elements to be ‘unaltered, and since our Constitution-makers who were aware of
\nthis position in the United States have used the same words, they must be intended to use
\nthat word as giving the widest power, and since there are no express limitations, no
\nrestriction on that power can be read into it by implication. A reference to the provision
\nrelating to amendment either in the United States or in the States’ Constitutions where
\npeople have a vital part in the amending process in my view inapt and inapplicable to the
\ninterpretation of our Constitution where the people have been designedly excluded. I say
\nthis, because we have been referred to the attempts made in the Constituent Assembly to
\ninvolve people of this country in the amendment of the Constitution, but such attempts
\ndid not succeed. Brajeshwar Prasad had actually proposed an amendment to make the
\namending provision similar to the one in Australia Constitution and had said, “What is
\npossible in Australia is possible here. If the people in Australia are competent and
\nadvanced to adopt this method of amendment, certainly we, who are as competent as the
\nAustralians, if not more, are entitled to adopt the same. I do not want to associate the
\nState Legislatures in the process of amending the Consitution.” He also said that, “If you
\nwant to abolish landlordism, you cannot afford to look for the consent of the landlords,
\nand similarly, if you want to abolish capitalism, you cannot afford to look for the consent
\nof the capitalists”. (C.A.D., Vol. IX, p. 1646). This amendment, however, was negatived.
\n(C.A.D., Vol. IX, p. 1665).\n<\/p>\n
1172. A reference was also made in this connection to draft Article 305 as indicating that
\nthe word ‘amendment’ would mean repeal or whittling down. Even assuming that that
\nArticle had been incorporated in the Constitution, what does the word `amendment’ in
\nthat context imply ? First, draft Article 305 starts with the non-obstante clause,
\n“Notwithstanding anything contained in Article 304” (present Article 368), and,
\nsecondly, the provisions relating to the reservation of seats for the minorities “shall not be
\namended during a period of ten years from the commencement of this Constitution and
\nshall cease to have effect on the expiration of that period unless continued in operation by
\nan amendment of the Constitution”. This clause instead of throwing any light on the
\nwidth of the power of amendment shows that it is completely restricted in that nothing
\ncan be done to affect that provision for ten years which limitation with the non-obstante
\nclause excludes Article 304 altogether during that period. If after that period it is to be
\nextended that Article can be amended but this does not mean that it can be repealed, for it
\nis only concerned with either extension of the period or change in the terms or conditions
\nunder which the reservation would continue to apply.\n<\/p>\n
1173. It was contended that the word ‘amendment’ in Article 368 must be construed as
\nmeaning change for the better, improvement, etc. In Golaknath’s case a similar contention
\nwas rejected by some of the learned Judges. Subba Rao, C.J., (speaking for 5 Judges) did
\nnot express any view though he said that the argument that Parliament cannot destroy the
\nstructure of the Constitution but it can modify the provisions thereof within the
\nframework of the original instrument for its better effectuation, has considerable force,
\nbut they were relieved of the necessity to express their opinion as the question raised can
\nbe answered on a narrower basis. He observed that : “This question may arise for
\nconsideration only if Parliament seeks to destroy the structure of the Constitution
\nembodied in the provisions other than in Part III of the Constitution. We do not,
\ntherefore, propose to express our opinion in that regard” (pp. 804-805).
\n1174. Hidayatullah, J., at p. 862 said:\n<\/p>\n
I do not take the narrow view of the word ‘amendment’ as including only
\nminor changes within the general framework. By an amendment new
\nmatter may be added, old matter removed or altered.\n<\/p>\n
Wanchoo, J., (speaking for himself and two other Judges), observed at p. 834:
\nTo say that ‘amendment’ in law only means a change which results in
\nimprovement would make amendments impossible, for what is
\nimprovement of an existing law is a matter of opinion and what, for
\nexample, the legislature may consider an improvement may not be so
\nconsidered by others. It is, therefore, in our opinion impossible to
\nintroduce in the concept of amendment as used in Article 368 any idea of
\nimprovement as to details of the Constitution. The word ‘amendment’ used
\nin Article 368 must, therefore, be given its full meaning as used in law and
\nthat means that by amendment an existing Constitution or law can be
\nchanged, and this change can take the form either of addition to the
\nexisting provisions, or alteration of existing provisions and their
\nsubstitution by others or deletion of certain provisions altogether.
\n1175. After noting that the word “amend” in the VI Schedule, paragraph 21, where it was
\npreceded by words “by way of addition, variance or repeal” and more or less similar
\nexpressions in other Articles of the Constitution, he observed, “it is very difficult to say
\nwhy this was done. But the fact that no such words appear in Article 368 does not in our
\nmind make any difference, for the meaning of the word ‘amendment’ in a law is clearly as
\nindicated above by us and the presence or absence of explanatory words of the nature
\nindicated above do not in our opinion, make any difference”. Bachawat J., at pp. 915-916,
\nsays:\n<\/p>\n
Article 368 indicates that the term ‘amend’ means ‘change’. The proviso is
\nexpressed to apply to amendments which seek to make any ‘change’ in
\ncertain articles. The main part of Article 368 thus gives the power to
\namend or to make changes in the Constitution. A change is not necessarily
\nan improvement Normally the change is made with the object of making
\nan improvement, but the experiment may fail to achieve the purpose. Even
\nthe plain dictionary meaning of the word ‘amend’ does not support the
\ncontention that an amendment must take an improvement, see Oxford
\nEnglish Dictionary, where the word ‘amend’ is defined thus : “4. To make
\nprofessed improvements (in a measure before Parliament) formally to alter
\nin detail though practically it may be to alter its principle so as to thwart
\nit”. The 1st, 4th, 16th and 17th Amendment Acts made changes in Part III
\nof the Constitution. All the changes are authorised by Article 368″.
\nRamaswami, J., has not specifically dealt with the meaning of the word ‘amendment’.
\n1176. It is obvious from these observations that the attempt to restrict the meaning of the
\nword ‘amendment’ to ‘improvement’ has been rejected by five of the learned Judges in
\nGolaknath’s case.\n<\/p>\n
1177. The learned Attorney-General, however, in the written summary of his arguments,
\nsaid “The majority of the learned Judges in Golaknath’s case rejected the arguments that
\nthe expression amendment of of a Constitution has a narrow meaning. Thus the petitioner
\nseeks to have the majority judgment overruled on this point”. (Page 30, Para 9). This
\nstatement does not seem to be accurate, unless he has linked the rejection of the argument
\nregarding the existence of implied limitations as recognising that the word amendment
\nhas a wide meaning. That implied limitations and the width of the meaning of word
\namendment were two different concepts admits of no doubt, because the former flows
\nfrom the implications of the provisions of the Constitution whether general or specific,
\nwhile the latter deals with scope and the ambit of the word amendment itself. If the power
\nis wide, even implied limitations can also be abrogated, but it has nothing to do with the
\nexistence of the implied limitations. On the other hand, Hidayatullah, J. though he dealt
\nwith the narrowness or otherwise of the meaning of the word ‘amendment’ did not deal
\nwith the existence or non-existence of implied limitations under our Constitution.
\nBachawat, J., at pp. 915 and 916 also did not think it necessary to pronounce on implied
\nlimitations and like Wanchoo, J., has separately considered these two concepts (see pages
\n833-834, 835-836). These instances illustrate what I have said above. Even on this basis
\nthere would not be a majority of Judges who have held that there are no implied
\nlimitations.\n<\/p>\n
1178. The learned Advocate-General for Maharashtra submits that when a person
\nproposes an amendment and he is asked whether it is intended to be an improvement, the
\nanswer will always be ‘Yes’; because he cannot very well say that it was not intended to
\nbe an improvement; that the meaning of the word ‘amendment’ in several Dictionaries
\nwhich relate the word ‘amendment’ with ‘improvement’ is euphemistic. This is the reason
\nwhy the word ‘amendment’ according to him is used in the earlier sense in common
\nparlance, in public speeches, textbooks or articles by learned writers, which is far from
\nsaying that an amendment must be only a change for effecting an improvement.
\n1179. Bachawat, J., earlier at p. 915 in Golaknath’s case referred to the decision
\nLivermore v. E.C. Waite, (102) Cal. 113-25 L.R.A. 312 in support of the submission that
\nan amendment must be an improvement of the Constitution. The following abservations
\nin Livermore’s case were cited by him:\n<\/p>\n
On the other hand, the significance of the term ‘amendment’ implies such
\nan addition or change within the lines of the original instrument as will
\neffect an improvement, or better carry out the purpose for which it was
\nframed.\n<\/p>\n
With respect to this passage, Bachawat, J., observed:\n<\/p>\n
Now an attack on the eighteenth amendment of the U.S. Constitiution
\nbased on this passage was brushed aside by the U.S. Supreme Court in the
\ndecision in the National Prohibition case (Rhode Island v. Palmer, 253 US
\n350; 64 L. ed. 947, 960, 978). The decision totally negatived the
\ncontention that an amendment must be confined in its scope to an
\nalteration or improvement of that which is already contained in the
\nConstitution and cannot change its basic structure, include new grants of
\npower to the Federal Government nor relinquish in the State those which
\nalready have been granted to it. (See Cooley on Constitutional Law,
\nChapter III, Article V, pp. 46 & 47).\n<\/p>\n
1180. I find from the reference to the National Prohibition case and the pages of that
\nreport given by Bachawat, J., namely, 64 L. ed. 947, 960 and 978, that no observations to
\nthat effect have been made at page 978 by Mr. Justice Van Devanter. In that case the
\nSupreme Court was considering an appeal from a District Court which had rejected the
\ncontention that 18th Amendment was not valid on the ground that, “The definition of the
\nword ‘amendment’ include additions as well as corrections of matters already treated and
\nthere is nothing in its immediate context (Article V) which suggests that it was used in a
\nrestricted sense”. The decree of the Court below was affirmed in the National Prohibition
\ncase. (Rhode Island v. Palmer). 64 L. ed. 946 At p. 960 the briefs filed by the Attorney-
\nGeneral of Rhode Island and others did, however, refer to the passage cited by Bachawat,
\nJJ., in Livermore v. Waite. But none of the Judges in the National Prohibition case either
\nreferred to the passage in Livermore’s case nor did they deal with the scope of the power
\nof amendment and, therefore, it cannot either be said that the submission was brushed
\naside, nor can it be said that the National Prohibition case totally negatived that
\ncontention. It may be the opinion of Cooley in his Book on “Constitutional Law” that the
\npassage in Livermore’s case cited by Bachawat, J., did not support the proposition therein
\nstated. But all arguments in that case against the amendment could not be taken to be
\nnegatived, if they were not necessary for the decision. What arguments were brushed
\naside, no one can say with any amount of definiteness. If the judgment of the Supreme
\nCourt in National Prohibition case is read with the judgment of the District Court whose
\ndecree was affirmed, it may be taken to have laid down that the word amendment would
\ninclude addition of a provision to the Constitution and beyond this nothing more can be
\ninferred from this judgment.\n<\/p>\n
1181. The argument of the learned Advocate-General is that the words “amendment of
\nthis Constitution” in sub-para (2) of para 7 and sub-para (2) of para (21) of the respective
\nSchedules refers to the words used in sub-para (1) of sub-para 7 and 21 of the Schedules,
\nand, therefore, the words “amendment of this Constitution” must be read to mean that it is
\nan amendment by way of addition, variation or repeal. It was noticed that in Golaknath’s
\ncase while Wanchoo, J., could not fathom the reason why the expression ‘by way of
\naddition, variation or repeal’ was used in Schedule V para 7 and Schedule VI, Para 21, he
\nnone the less thought the presence or absence of the explanatory words made no
\ndifference to the meaning of the word ‘amendment’. In other words, according to the
\nlearned Advocate-General, the word ‘amendment’ in Article 368 is synonymous with the
\nexpression ‘amend by way of addition, variation or repeal’ so that the Twenty-Fourth
\nAmendment according to this view, and probably to conform with it, used the
\nclarificatory words and means even after this amendment the same meaning as the word
\n‘amendment’ had before Article 368 was amended. What an amendment can do has also
\nbeen stated, by Wanchoo J., namely, that the existing Constitution can be changed and
\nthis change can take the form either of addition to the existing provisions or alteration of
\nthe existing provisions and their substitution by others or deletion of certain provisions
\naltogether. Though all this can be done, he said, it may be open to doubt whether the
\npower of amendment contained in Article 368 goes to the extent of completely
\nabrogating the present Constitution and substituting it by an entirely new one .
\n1182. It is also not disputed by the learned Attorney-General, the learned Solicitor-
\nGeneral and the learned Advocate-General for Maharashtra that an amendment of the
\nConstitution dose not extend to abrogation of the Constitution, and on the contention of
\nthe learned Advocate-General, abrogation means repeal, both words being synonymous,
\nand that the Constitution cannot be substituted by a new Constitution.
\n1183. In further explaining his submission the learned Attorney-General said that the
\namending power in Article 368 as it stood before the Twenty-fourth Amendment and as it
\nstands now has always been, and continues to be, a constituent power, that is to say, the
\npower to deconstitute or re-constitute the Constitution or any part of it. Such power
\nextends to the addition to or variation of any part of the Constitution. But the amending
\npower does not mean that the Constitution at any point of time would be so amended by
\nway of addition, variation or repeal as to leave a vacuum in the governance of the
\ncountry. According to him that is the whole object and necessity of the amending power
\nin a Constitution so that the Constitution continues, and a constituent power, unless it is
\nexpressly limited in the Constitution itself, can by its very nature have no limits, because
\nif any such limit is assumed although not expressed in the Constitution, the whole object
\nand purpose of the amending power will be nullified.\n<\/p>\n
1184. If amendment does not mean abrogation or repeal as submitted in the note of the
\nAdvocate-General, dated February 23, 1973 in which he said, “that repeal and abrogation
\nmean the same thing since “repeal” has ‘abrogation’ as one of its meaning and ‘abrogation’
\nhas ‘repeal’ as one of its meanings”, a question arises, where, is the line to be drawn ?
\n1185. The learned Attorney-General said that Article 368, Clause (e) of the proviso by
\ngiving a power to amend the amending power, has conferred a wider power of
\namendment but that does not imply that the power of amendment had a limited meaning
\nin the unamended article; that the word ‘amendment’ has only one meaning and it is a
\nwide power and in Article 368 there is a recreation of the Constituent Assembly. If this
\nsubmission is correct, how can it not extend to abrogation of the Constitution or
\nsubstituting it by another?\n<\/p>\n
1186. To this question the answer of the Attorney-General was that Clause (e) of the
\nproviso was added by way of abundant caution to meet a similar criticism which was
\ndirected against Article V of the U.S. Constitution. According to Advocate-General for
\nMaharashtra, Clause (e) of the proviso was inserted to meet the assumption of Chief
\nJustice in the Irish case of The State (Ryan and Ors.) v. Lennon and Ors. (1935) Irish
\nReports 170 that if amending provision could have been amended, then no limitation can
\nbe read. Hon’ble the Chief Justice has dealt with this aspect in full and I do not, therefore,
\npropose to refer to it except to say that the analogy is inapplicable to the interpretation of
\nArticle 368.\n<\/p>\n
1187. Apart from the power of amendment not extending to the abrogation of the
\nConstitution, it will appear on the submission of respondents, the Union of India and the
\nState of Kerala, that the office of the President cannot be abolished without the
\nconcurrence of at least half the States even though Articles 52 and 53 are not included in
\nthe proviso to Article 368. The very fact that Article 54 and Article 55 are included in the
\nproviso, it would, according to the learned Solicitor-General imply that the office of the
\nPresident cannot be abolished without the concurrence of the States. Wanchoo, J., in
\nGolaknath’s case dealt with a similar contention at p. 844. Though he thought that the
\nsupposition was impossible, and I entirely agree with him that it is not likely, yet in such
\na case, “it would be right to hold that Article 52 could not be altered by Parliament to
\nabolish the office of President…it will require ratification”. Nor do I think having regard
\nto the basic structure of the Constitution is it possible to abolish the office of the
\nPresident by resort to Article 368 and as assent is necessary, no President true to his oath
\nto protect and defend the Constitution, will efface himself. It would, therefore, appear
\nfrom this specific instance that an implied limitation is read into Article 368 by reason of
\nthe proviso entrenching Article 54. The learned Advocate-General says even Article 53
\nwhich vests the executive power of the Union in the President by Sub-clause (2), vests
\nthe Supreme Command of the Defence Forces of the Union in the President, would also
\nnecessitate an amendment similar to Article 52 by ratification by the states. Yet another
\ninstance is, that art implied power to amend is found in Article 368. When the form and
\nmanner is complied with, the Constitution stands amended, from which provision as well
\nas the fact that Article 368 is in a separate Part entitled ‘amendment of the Constitution’,
\nthe above conclusion was reached. The petitioner’s counsel naturally asks that if The
\nQueen v. Burah (1877-78) J.C. 179 is read as an authority as contended on behalf of
\nKerala State against the existence of powers which are not conferred by affirmative
\nwords and against the existence of limitations, this proposition clearly negatives the
\nrespondents’ other submission that the source of the amending power must be impliedly
\nfound in Article 368 although such a power is not to be found affirmatively conferred.
\n1188. Though there are naturally some limitations to be found in every organic
\ninstrument, as there are bound to be limitations in any institution or any other set up
\nbrought into existence by human agencies, and though my Lord the Chief Justice has
\ngone into this aspect fully, it is in my view not necessary to consider in this case the
\nquestion of the existence or non-existence of implied or inherent limitations, because if
\nthe amending power is wide and plenary, those limitations can be overriden as indeed the
\nnon-obstante clause in the amended Clause (1) of Article 368 was intended to subserve
\nthat end. What has to be considered is whether the word ‘amendment’ is wide enough to
\nconfer a plenitude of power including the power to repeal or abrogate.
\n1189. The learned Advocate-General has further submitted that there is intrinsic evidence
\nin the Constitution itself that the word ‘amendment’ in Article 368 means ‘amend by way
\nof addition, variation or repeal’, because if that were not so, sub-para (2) of para 7 of
\nSchedule V would not have taken out the law made under sub-para (1) empowering
\nParliament to “amend by way of addition, variation or repeal” any of the provisions of the
\nSchedule from the operation of Article 368. The same meaning should also be given to
\npara 21 of Schedule VI. The learned Attorney-General has referred to several articles in
\nwhich the word ‘amendment’ has been used, as also to several others in which that word
\nor its variation has been used in continuation with other words. But these expressions do
\nnot show that the word ‘amendment’ is narrow or limited. In every case where an
\namendment has been made in the Constitution, he says, something has been added,
\nsomething substituted, something repealed and re-enacted and certain parts omitted. The
\nConstitution (First Amendment) Act is given as an instance of this, nor according to him
\ndoes anything turn on the fact that Section 291 of the Government of India Act, 1935,
\nwas amended just about a few weeks before Article 368 was finalised, and in which the
\nword ‘amendment’ was substituted for the words ‘amend by way of addition, variation or
\nrepeal’. According to him what this Court must consider is that since Article 368 arranges
\nto recreate the Constituent Assembly and exercise the same power as the Constituent
\nAssembly, it should be read in a wide sense.\n<\/p>\n
1190. If the power of amendment is limitless and Parliament can do all that the
\npetitioners contend it can do under Article 368, the respondents say it should not be
\nassumed that power will be abused, but on the other hand the presumption is that it will
\nbe exercised wisely and reasonably, and the only assurance against any abuse is the
\nrestraint exercised by the people on the legislative organs. But the recognition of the
\ntruism that power corrupts and absolute power corrupts absolutely has been the wisdom
\nthat made practical men of experience in not only drawing up a written Constitution
\nlimiting powers of the legislative organs but in securing to all citizens certain basic rights
\nagainst the State. If the faith in the rulers is so great and the faith in the people to curb
\nexcessive exercise of power or abuse of it is so potent, then one needs no elaborate
\nConstitution, because all that is required is to make Parliament omni-potent and omni-
\nsovereign. But this the framers did not do and hence the question will be whether by an
\namendment under Article 368, can Parliament effect a metamorphosis of power by
\nmaking itself the supreme sovereign. I do not suppose that the framers were unaware of
\nthe examples which must be fresh in their minds that once power is wrested which does
\nnot legitimately belong to a limited legislature, the efforts to dislodge it must only be by a
\npainful process of struggle, bloodshed and attrition-what in common parlance would be a
\nrevolution. No one suggests this will be done, but no one should be complacent, that this
\nwill not be possible, for if there is power it can achieve even a destructive end. It is
\nagainst abuse of power that a Constitutional structure of power relationship with checks
\nand balances is devised and safeguards provided for whether expressly or by necessary
\nimplication. And the question is whether there are any such in our Constitution, and if so,
\nwhether they can be damaged or destroyed by an amending power?\n<\/p>\n
1191. The petitioner’s counsel, learned Advocate-General and the learned Attorney-
\nGeneral have furnished us with the extracts from various Dictionaries, and the learned
\nAttorney-General has further referred us to a large number of Constitutions in which the
\nword ‘amendment’ or words used for amending the Constitution have been employed, to
\nshow that there is no difference or distinction between these words and the word
\n‘amendment’. In all these Constitutions, subject to which I said of the inappropriateness of
\ncomparing other world Constitutions made for different people with their differing social,
\npolitical and economic outlook, the words used are either ‘amendment’ or a combination
\nof that word with others or a totally different word. In some of the Constitutions given in
\nthe compilations made available to us where the word ‘amendment’ alone is used, the
\nexercise of the power of amendment was inextricably linked with the ratification by the
\npeople in whom the sovereignty rests, either by referendum or by convention or by the
\nLegislatures. The Constitutions of other countries which have been referred to
\nspecifically by the learned Attorney-General are of Liberia, Trinidad & Tobago, Somalia,
\nJordan, Kuwait, Lebanon, Vietnam Democratic Republic, Belgium, Costa Rica, Cuba and
\nNicaragua. I have examined the relevant provisions of these Constitutions regarding the
\namendatory process. These Constitutions have used different words than the words used
\nin our Constitution. When the word ‘amendment’ or ‘amend’ is used, it has been invariably
\nused with the words ‘alter’, or ‘repeal’, or ‘revise’, or ‘variation, addition or repeal’, or
\n‘modification’, or ‘suspension’, or ‘addition’, or ‘deleting’, or ‘partially amend’, or ‘general
\namendment’, or ‘specific, partial or complete’, or ‘wholly or partially amend’, or by a
\ncombinetion of one or more of these expressions. In one of the Constitutions, namely,
\nTrinidad & Tabago, the word ‘alteration.’ was defined to include ‘amendment,
\nmodification or modification or that provision, the suspension or repeal of that provision
\nand the making of a different provision in lieu of the provision’.
\n1192. In some of the other Constitutions not referred to by the learned Attorney-General
\nwhere the amending process is not referable to the voters by referendum or to be ratified
\nin a convention with the word ‘amend’, the words ‘alter’, ‘add’, ‘supplement’, ‘repeal’ or
\nsimilar words have been used to indicate the plenitude of power of amendment. Section
\n29(4) of the Ceylon Constitutional Order, 1946, which Was the subject-matter of
\ndecisions in Liyanage v. The Queen (1967) 1 A.C. 259 and The Bribery Commissioner v.
\nRana Singh (1964) 2 W.L.R. 1301 cases, and had been debated in this Court by counsel
\non either side, provides that in the exercise of its powers under the section “Parliament
\nmay amend or repeal any of the provisions of this Order, or of any other Order”. But this
\nsub-section entrenches by Sub-section (2) certain matters from being amended because as
\nthe Privy Council observed that “They represented a solemn “balance of rights between
\nthe citizens of Ceylon”. In the Constitution of Finland the words used are adoption,,
\namendment, or abrogation of a fundamental law. The Irish Constitution, 1937, provided
\nby Article 46(1) that any provision of the Constitution may be amended, whether by way
\nof variation, addition, or repeal in the manner provided by the Article, and the
\nConstitution of Malaya has defined the word in Clause (6) of Article 159 that
\n‘amendment’ includes addition and repeal. Even the Constitution of the Islamic Republic
\nof Pakistan has used the words amended or repealed. The Constitution of the Union of
\nSouth Africa has used the words repeal or alter and the Constitution of the United States
\nof Brazil has an entrenched provision in Clause (6) of Article 217 that the Bills tending to
\nabolish the Federation and the Republic shall not be admitted to consideration.
\n1193. These references not only do not show that the word ‘amendment’ has been used by
\nitself to denote the plenitude of power but on the other hand show that these prescribe a
\nprocedure in which the people have been associated or a Constituent Assembly has to be
\ncalled or fresh elections are required to be held to consider the amendments. In some of
\nthese Constitutions there was also difference made between total and partial amendments
\nand where the word ‘alteration’ has been used, it has been defined as to what is included
\ntherein. No assistance can, therefore, be derived from the Constitutions either referred to
\nby the Attorney-General or by the ones to which I have referred, and if at all, they only
\nshow that the word ‘amendment’ has not, as contended, unambiguous, precise or wide
\nconnotation.\n<\/p>\n
1194. It is said that the words “amend by way of addition, variation or repeal” by
\nreference to Clause (2) of Para 7 and Para 21 of the Fifth and Sixth Schedule
\nrespectively, mean the same as amendment, and consequently Article 368 empowers the
\nrepeal of any provision of the Constitution. If the word “repeal” means abrogation, then
\nan amendment under Article 368 can even abrogate any provision of the Constitution,
\nshort of abrogating the entire Constitution and substituting a new one. In my view, the
\nphrase “by way of” call it a padding, call it explanatory, is idiomatic and difficult to
\nrender into exact pharseology. An idiom is an accepted phrase, construction or expression
\ncontrary to the usual pattern of the language or having a meaning different from the
\nliteral. As the Words & Phrases-Permanent Edition, Vol. 5, p. 1111, would show that “by
\nway of” may be taken to mean “as for the purpose of”, “in character of”, “as being” and
\nwas so intended to be construed in an Act providing that certain companies should pay an
\nannual tax for the use of the State, “by way of” a licence for their corporate franchise. The
\nillustration given should show that in fact the payment of a licence fee is not a tax, but it
\nis so considered to be by way of tax. In my view, therefore, the substitution of the word
\n“amendment” by the expression “amend by way of addition, variation or repeal” makes
\nno difference as it bears the same meaning as the word “amendment”.
\n1195. In its ordinary meaning the word “amend” as given in Shorter Oxford Dictionary is
\nto make alterations. In some of the Dictionaries it is given as meaning “to alter, modify,
\nrephrase, or add to or subtract from”. Judicial and Statutory Definitions of Words and
\nPhrases, Second Series, Vol. I-the word “amend” has been treated as synonymous with
\ncorrect, reform and rectify. It is also stated that “amendment” of a statute implies its
\nsurvival and not destruction. The word “amend” in legal phraseology, does not generally
\nmean the same thing as “repeal”, because there is a distinction between a “repeal” but it
\ndoes not follow that “amendments of statute may not often be accomplished by repeals of
\nsome of its parts” and though “amendment may not directly amount to repeal, it may have
\nsuch a consequential effect”. Crawford in his book on “The Construction of Statutes”
\n1940, pp. 170-171 which is quite often referred to and used in this Court, states that “a
\nlaw is amended when it is in whole or in part permitted to remain and something is added
\nto, or taken from it, or it is in some way changed or altered in order to make it more
\ncomplete, or perfect or effective. It should be noticed, however, that an amendment is not
\nthe same as a repeal, although it may operate as a repeal to a certain degree. A repeal is
\nthe abrogation or destruction of a law by a legislative act. Hence we may see that it is the
\neffect of the Legislative act which determines its character”. The first part of this
\ndefinition may be compared with the meaning indicated by Wanchoo, J. in Golaknath’s
\ncase at p. 833 to which a reference has already been made.\n<\/p>\n
1196. Both the learned Advocate for the petitioner and the learned Attorney-General have
\nreferred to the decisions of the State Courts of the United States for the meaning of the
\nword ‘amend’ in support of their respective contentions, but these decisions which are
\nrendered in the context of the Constitutions of the respective States in America where
\nratification by the people is a condition for amending the Constitution do not carry the
\nmatter any further. Even in these cases the word ‘Amendment’ has been used in the
\ncontradistinction with the word ‘revision’. Words and Phrases, Permanent Edition, Vol. 37
\nsays, “The term ‘repeal’ is synonymous with abolish, rescind and annul. An amendment
\nhas been distinguished from alteration or change. It is said that an amendment keeps alive
\nwhile a ‘repeal’ destroys.” See State ex rel. Strutx v. Baker 299 N.W. 574, 578, N.D. 153.
\nIt is, therefore, apparent from the meaning of the word ‘amendment’ that it does not
\ninclude ‘repeal’ or ‘abrogation’ nor is it the same as revision. I would now refer to certain
\nprovisions of the Constitution where the words “amend” or “repeal” have been used to
\nindicate that the ambit of the power of amendment does not extend to repeal. A repeal of
\na provision of a law is different from the repeal of the law itself. The Constitution itself
\nhas made a distinction between the amendment of the law and repeal of the law. This
\nbecomes clear if we refer to Article 372(2) in which power has been given to the
\nPresident by order to make such adaptations and modifications of any law whether by
\nway of repeal or amendment, as may be necessary or expedient, to bring it in conformity
\nwith the provisions of the Constitution. See also Article 372(2)(b). Clause (2) of Article
\n252 provides that any Act passed by Parliament in respect of two or more States may be
\namended, or repealed by an act of Parliament. In this clause the word ‘repeal’ is used in
\ncontradistinction to ‘amendment’ as clearly implying that amendment does not include
\nrepeal of the Act itself. Even in Article 372(1), this distinction is brought out where a law
\nin force immediately before the commencement of the Constitution was to continue in
\nforce until “altered or repealed or amended” by a competent authority. Similarly in
\nArticle 35(b) also any law in force immediately before the commencement of the
\nConstitution in the territory with respect to any of the matters specified therein and to any
\nadaptations and modifications that may be made therein under Article 372 continue in
\nforce until “altered or repealed or amended” by Parliament. See proviso to Clause (2) of
\nArticle 254 and Clause (5) of Article 350. It may also be noticed that before the repeal of
\nArticle 243, Clause (2) thereof provided that the President may make regulations for the
\npeace and good government of territories in Part D of the First Schedule and any
\nregulation so made may repeal or, amend any law made by Parliament or any existing
\nlaw. It will, therefore, be observed that even where power has been given to a competent
\nlegislature or any other competent authority over a law in force to continue by virtue of
\nthe above referred; provisions, the framers have used the word ‘repeal’ of a law in
\ncontradistinction to the word ‘amend’ of a law. It may be contended with some force that
\nwhere the framers intended to give full and plenary powers to competent legislatures to
\ndeal with laws in force, they were meticulous enough to use two distinct words. If the
\nword ‘amend’ or ‘amendment’ in its generic connotation meant ‘repeal’ then this word
\nwould not have been used in contradistinction with the word amendment or amend in
\nsome articles, and only the word ‘amend’ or ‘amendment’ in others. In so far as the laws in
\nforce are concerned, it would appear that the intention was not to add to them, though the
\nword ‘alter’ could imply also a variation. Nonetheless it is apparent that the word
\n‘amendment’ as used in Article 368 does not connote a plenitude of power. This is also
\nclear from Sub-section (2) of Section 6 of the Indian Independence Act, 1947 which, as
\nalready seen, even in the context of the power to be possessed by the Constituent
\nAssembly, uses the word ‘repeal’ or ‘amend’ to indicate the plentitude of the power of
\nabrogation and repeal. Sections 32, 37, 74, 82 and 107(2) of the Government of India Act
\nalso use the word ‘amendment’ in the sense of change and not repeal of the law. On the
\nother hand, Sections 106(2) of Government of India Act and Article 372(1) use the word
\n‘repeal’. In the former, power is given to repeal a law, and in the latter it was provided that
\nnotwithstanding the repeal of enactments referred to in Article 395 to which included the
\nIndian Independenet Act, etc., all the laws in force and also be replaced in the sense that
\nthey could be abrogated. Further in Clauses (3) and (4) of Article 109, the Council of
\nState is empowered to make amendments in money bill which the House of the People
\nmay or may not accept and if it does not, it will be passed without any such amendment.
\nThe Council of States, cannot reject the bill altogether but can only make a change
\ntherein.\n<\/p>\n
1197. The argument that if wide construction is given to the word ‘amendment’ all
\nfundamental rights can be taken away by the requisite majority, whereas much less
\nsignificant matters require the concurrence of not less than one-half of the States under
\nthe proviso is based on the misconception that unlike in the United States where there is a
\ndual citizenship-one as a citizen of United States and the other as a citizen of the
\nparticular State in the Union, we have only one citizenship and that is as a citizen of India
\nand it is Parliament and Parliament alone which can legislate in respect of that right. No
\nState has the legislative power to affect that right, and, therefore, have not been given a
\npower of ratification where the fundamental rights are sought to be amended under
\nArticle 368. This aspect is not, however, determinative of the extent of the power of
\namendment under Article 368. The word ‘amendment’ read with the other provisions
\nindicates that it is used in the sense of empowering a change in contradistinction to
\ndestruction which a repeal or abrogation would imply. Article 368 empowers only a
\nchange in the Constitution as is evident from the proviso which requires that where the
\nprovisions specified in Clauses (a) to (e) have to be amended they have to be ratified by
\nthe resolution of not less than one-half of the Legislatures of the States. This proviso
\nfurnishes a key to the meaning of the word ‘amendment’, that they can be changed
\nwithout destroying them just in the same way as the entire Constitution cannot be
\nabrogated and a new Constitution substituted therefor. In this view, I agree with My Lord
\nthe Chief Justice, for the reasons given by him, that the amplitude of the power of
\namendment in Article 368 cannot be enlarged by amending the amending power under
\nproviso (e) to Article 368.\n<\/p>\n
1198. What follows from this conclusion is the next question to be considered. It is
\nsubmitted that an amendment should not alter the basic structure of the Constitution or be
\nrepugnant to the objectives set out in the Preamble and cannot be exercised to make the
\nConstitution unidentifiable by altering its basic concept governing the democratic way of
\nlife accepted by the people of this country. If the entire Constitution cannot be abrogated,
\ncan all the provisions of the Constitution leaving the Preamble, or one article, or a few
\narticles of the original Constitution be repealed and in their place other provisions
\nreplaced, whereby the entire structure of the Constitution, the power relationship inter se
\nthree Departments, the federal character of the State and the rights of the citizens vis-a-
\nvis the State, are abrogated and new institutions, power relationships and the fundamental
\nfeatures substituted therefor? In my view, such an attempt would equally amount to
\nabrogation of the Constitution, because any such exercise of the power will merely leave
\nthe husk and will amount to the substitution of an entirely new Constitution, which it is
\nnot denied, cannot be done under Article 368.\n<\/p>\n
1199. The Preamble to the Constitution which our founding fathers have, after the
\nConstitution was framed, finally settled to conform to the ideals and aspirations of the
\npeople embodied in that instrument, have in ringing tone declared the purposes and
\nobjectives which the Constitution was intended to subserve. How far the Preamble can be
\nresorted to for interpreting the Constitution has been the subject of debate. It was
\ncontended that it is not a part of the Constitution, and as we have been shown, that this
\nconcept had found approval of this Court in In Re: Berubari Union & Exchange of
\nEnclaves, but the Court did not appear to have noticed that it was adopted by the
\nConstituent Assembly as part of the Constitution. The observations of Gajendragadkar,
\nC.J., must be understood in the context of his assumption that the Preamble is not a part
\nof the Constitution. After referring to Story that the Preamble is “a key to open the mind
\nof the makers” and a passage from Willoughby that it has never been regarded as source
\nof any substantive power, etc., the learned Chief Justice concluded thus :
\nWhat is true about the powers is equally true about the prohibitions and
\nlimitations. Besides, it is not easy to accept the assumption that the first
\npart of the preamble postulates a very serious limitation on one of the very
\nimportant attributes of sovereignty itself. As we will point out later, it is
\nuniversally recognised that one of the attributes of sovereignty is the
\npower to cede parts of national territory, if necessary. At the highest it
\nmay perhaps be arguable that if the terms used in any of the articles in the
\nConstitution are ambiguous or are capable of two meanings, in
\ninterpreting them some assistance may be sought in the objectives
\nenshrined in the preamble. Therefore, Mr. Chatterjee is not right in
\ncontending that the preamble imports any limitation on the exercise of
\nwhat is generally regarded as a necessary and essential attribute of
\nsovereignty.\n<\/p>\n
It may be pointed out that the passage from Story and Willoughby cited therein have not
\nbeen fully extracted. For a proper appreciation of the views of these authors it is
\nnecessary to examine the relevant passages in, full. Story says, “It is an admitted
\nmaxim…that the preamble of a statute is a key to open the mind of the makers as to the
\nmischiefs, which are to be remedied, and the objects, which are to be accomplished by
\nthe provisions of the statute…the will and intention of the legislature is to be regarded and
\nfollowed. It is properly resorted to, where doubts or ambiguities arise upon the words of
\nthe enacting part for if they are clear and unambiguous, there seems little room for
\ninterpretation, except in cases leading to an obvious absurdity, or to a direct overthrow of
\nthe intention expressed in the preamble. There does not seem any reason why, in a
\nfundamental law or Constitution of government, an equal attention should not be given to
\nthe intention of the framers, as stated in the preamble…. The preamble can never be
\nresorted to, to enlarge the powers confided to the general government, or any of its
\ndepartments. It cannot confer any power per se; it can never amount, by implication, to an
\nenlargement of any power expressly given. It can never be the legitimate source of any
\nimplied power, when otherwise withdrawn from the Constitution. Its true office is to
\nexpound the nature, and extent, and application of the powers actually conferred by the
\nConstitution, and not substantively to create them…. We have the strongest assurances,
\nthat this preamble was not adopted as a mere formulary but as a solemn promulgation of
\na fundamental fact, vital to the character and operations of the government”. (Story,
\nConstitution of the United States, Vol. I, pp. 443-446).\n<\/p>\n
1200. It is clear from the above views of Story that: (a) the preamble is a key to open the
\nmind of the makers as to the mischiefs, which are to be remedied; (b) that it is properly
\nresorted to, where doubts or ambiguities arise upon the words of the enacting part; (c)
\neven where the words are clear and unambiguous, it can be used to prevent an obvious
\nabsurdity or to a direct overthrow of the intention expressed in the preamble, and it would
\nbe much more so, if they were ambiguous; (d) there is no reason why, in a fundamental
\nlaw or Constitution of government, an equal attention should not be given to the intention
\nof the framers, as stated in the preamble; (e) the preamble can never be resorted to, to
\nenlarge the powers expressly given, nor to substantively create any power or to imply a
\npower which is otherwise withdrawn from the Constitution; (f) its true function is to
\nexpound the nature, extent, and application of the powers actually conferred by the
\nConstitution.\n<\/p>\n
1201. The passage extracted from Willoughby no doubt shows that the Preamble may not
\nbe resorted to as a source of Federal Authority but in dealing with its value and use the
\nlearned author has stated thus:\n<\/p>\n
Special significance has at various times been attached to several of the
\nexpressions employed in the Preamble to the Constitution. These
\nexpressions are:\n<\/p>\n
1. The use of the phrase “We, the People of the United
\nStates”, as indicating the legislative source of the
\nConstitution.\n<\/p>\n
2. The denomination of the instrument as a “Constitution”.\n<\/p>\n
2. The description of the federation entered into as “a more
\nperfect Union.\n<\/p>\n
3. The enumeration of “the common defence” and “general
\nwelfare” among the objects which the new Government is
\nestablished to promote” (Willoughby, Vol. I, p. 62).\n<\/p>\n
4. These American authors, therefore, recognise the use of the Preamble to ascertain the
\nessential concepts underlying the Constitution.\n<\/p>\n
1202. The English cases show that the preamble can be resorted to as a means to discover
\nthe legislative intent of which one may be cited. In the Attorney-General v. Prince
\nEarnest Augustus of Hanover, (1957) A.C. 436 the House of Lords considered the
\nquestion whether and to what extent Preamble of a statute can be relied upon to construe
\nthe enacting part of the statute. Viscount Simond (with whom Lord Tucker agreed),
\nobserved at p. 461 : “For Words, and particularly general words, cannot be read in
\nisolation: their colour and content are derived from their context. So it is that I conceive
\nto be my right and duty to examine every word of a statute in its context, and I use
\n‘context’ in its widest sense, which I have already indicated as including not only other
\nenacting provisions of the same statute, but its preamble, the existing state or the law,
\nother statutes in Pari muteria, and mischief which I can, by those and other legitimate
\nmeans, discern the statute was intended to remedy”. Referring to the observations in
\nPowell v. Kempton Park Racecourse Co. Ltd., (1899) A.C. 143 that ‘the preamble cannot
\nbe made use of to control the enactments themselves where they are expressed in clear
\nand unambiguous terms’, Viscount Simond said at p. 463: “it is often difficult to say that
\nany terms are clear and unambiguous until they have been studied in their context. That is
\nnot to say that the warning is to be disregarded against creating or imagining an
\nambiguity in order to bring in the aid of the preamble. It only means that the elementary
\nrule must be observed that no one should profess to understand any part of a statute or of
\nany other document before he had read the whole of it Until he has done so he is not
\nentitled to say that it or any part of it is clear and unambiguous…. I would suggest that it
\nis better stated by saying that the context of the preamble is not to influence the meaning
\notherwise ascribable to the enacting part unless there is a compelling reason for it And I
\ndo not propose to define that expression except negatively by saying…that it is not to be
\nfound merely in the fact that the enacting words go further than the preamble has
\nindicated. Still less can the preamble affect the meaning of the enacting words when its
\nown meaning is in doubt
\n1203. On this aspect Lord Normand said at pp. 467468: “when there is a preamble it is
\ngenerally in its recitals that the mischief to be remedied and the scope of the Act are
\ndescribed. It is therefore clearly permissible to have recourse to it as an aid to construing
\nthe enacting provision. The preamble is not, however, of the same weight as an aid to
\nconstruction of a section of the Act as are other relevant enacting words to be found
\nelsewhere in the Act or even in related Acts…. It is only when it conveys a clear and
\ndefinite meaning in comparison with relatively obscure or indefinite enacting words that
\nthe preamble may legitimately prevail…it is the court’s business in any case of some
\ndifficulty, after informing itself of…the legal and factual context including the preamble,
\nto consider in the light of this knowledge whether the enacting words admit of both the
\nrival constructions put forward…. If they admit of only one construction that construction
\nwill receive effect even if it is inconsistent with the preamble, but if the enacting words
\nare capable of either of the constructions offered by the parties, the construction which
\nfits the preamble may be preferred.” Lord Somervell said at p. 474, that, “The word
\n‘unambiguous’ must mean unambiguous in their context”. Lord Thring, one of the great
\ndraftsmen of England in his book on “Practical Legislation”, Chapter IV, pp. 92-93, made
\nthis pertinent observation as to preambles. He said, “a preamble may also be used to limit
\nthe scope of certain expressions in the Act, and sometimes a preamble is inserted for
\npolitical reasons when the object of an Act is popular, and admits of being stated in a
\ntelling sentence or sentences.” In Sajjan Singh’s case at p. 968, Mudholkar, J., while
\ntaking note of the contention that it has been said that the preamble is not a part of the
\nConstitution observed: “But, I think, that if upon a comparison of the preamble with the
\nbroad features of the Constitution it would appear that the preamble is an epitome of
\nthose features or, to put it differently, if these features are an amplification or
\nconcretisation of the concepts set out in the preamble it may have to be considered
\nwhether the preamble is not a part of the Constitution. While considering this question it
\nwould be of relevance to bear in mind that the preamble is not of the common run such as
\nis to be found in an Act of a legislature. It has the stamp of deep deliberation and is
\nmarked by precision. Would this not suggest that the framers of the Constitution attached
\nspecial significance to it?” With great respect, I agree with the view expressed by him.
\n1204. These observations of the House of Lords, of the learned writers and of the Judges
\nreferred to above clearly point to the fact that the preamble will furnish a guide to the
\nconstruction of the statute where the words are ambiguous, or even where the words are
\nunambiguous to aid a construction which will not lead to an absurdity. Where the
\npreamble conveys a clear and definite meaning, it would prevail over the enacting words
\nwhich are relatively obscure or indefinite or if the words are capable of more than one
\nconstruction, the construction which fits the preamble may be preferred.
\n1205. In In Re: Berubari Union & Exchange of Enclaves case the Court failed to refer to
\nand consider the view of Story that the preamble can be resorted to, to expound the
\nnature, the extent and the application of the powers or that the preamble can be resorted
\nto, to prevent obvious absurdity or to a direct overthrow of the intention expressed
\ntherein. It may also be observed that the Court in that case did categorically say that the
\nfirst part of the preamble is not a serious limitation. If the Court had taken a definite view
\nthat the preamble was not a source of limitation, the observation that, “it is not easy to
\naccept the assumption that the first part of the preamble postulates a very serious
\nlimitation on one of the very important attributes of sovereignty” (emphasis supplied)
\nwas not necessary, because it implies that certain parts of the Preamble can be established
\nto be a source of serious limitation if such exists. In any case though the advisory opinion
\nis entitled to the greatest respect, it is not binding when any concrete issue arise for
\ndetermination, particularly when the width of the power of amendment had not fallen for
\nconsideration in that case, nor was it in fact considered at all.
\n1206. I will now consider the question which has been streneously contended, namely,
\nthat there are no essential features, that every feature in the Constitution is essential, and
\nif this were not so, the amending power under the Constitution will apply only to non-
\nessential features which it would be difficult to envisage was the only purpose of the
\nframers in inscribing Article 368 and that, therefore, there is no warrant for such a
\nconcept to be read into the Constitution. The argument at first flush is attractive, but if we
\nwere to ask ourselves the question whether the Constitution has any structure or is
\nstructureless or is a “jelly fish” to use an epithet of the learned Advocate for the
\npetitioner, the answer would resolve our doubt. If the Constitution is considered as a
\nmechanism, or call it an organism or a piece of Constitutional engineering, whichever it
\nis, it must have a structure, or a composition or a base or foundation. What it is can only
\nbe ascertained, if we examine the provisions which the Hon’ble Chief Justice has done in
\ngreat detail after which he has instanced the features which constitute the basic structure.
\nI do not intend to cover the same field once again. There is nothing vague or
\nunascertainable in the preamble and if what is stated therein is subject to this criticism it
\nwould be equally true of what is stated in Article 39(b) and (c) as these are also
\nobjectives fundamental in the governance of the country which the State is enjoined to
\nachieve for the amelieration and happiness of its people. The elements of the basic
\nstructure are indicated in the preamble and translated in the various provisions of the
\nConstitution. The edifice of our Constitution is built upon and stands on several props,
\nremove any of them, the Constitution collapses. These are: (1) Sovereign Democratic
\nRepublic; (2) Justice, social, economic and political; (3) Liberty of thought, expression,
\nbelief, faith and worship; (4) Equality of status and of opportunity. Each one of these is
\nimportant and collectively they assure a way of life to the people of India which the
\nConstitution guarantees. To withdraw any of the above elements the structure will not
\nsurvive and it will not be the same Constitution, or this Constitution nor can it maintain
\nits identity, if something quite different is substituted in its place, which the sovereign
\nwill of the people alone can do. There can be a Democratic Republic in the sense that
\npeople may be given the right to vote for one party or only one candidate either
\naffirmatively or negatively, and are not given the choice to choose another opposed to it
\nor him. Such a republic is not what has been assured to our people and is unthinkable by
\nany one foresworn to uphold, defend, protect, or preserve or work the Constitution. A
\ndemocratic republic that is envisaged is the one based on a representative system in
\nwhich people holding opposing view to one another can be candidates and invite the
\nelectorate to vote for them. If this is the system which is the foundation of a democratic
\nrepublic, it is unthinkable that it can exist without elements (2) to (4) above either
\ncollectively or separately. What is democracy without social, economic and political
\njustice, or what value will it have, where its citizens have no liberty of thought, belief,
\nfaith or worship or where there is no equality of status and of opportunity? What then are
\nthe essential features or the basic elements comprising the structure of our Constitution
\nneed not be considered in detail as these will fall for consideration in any concrete case
\nwhere they are said to have been abrogated and made non-existent. The fact that a
\ncomplete list of these essential elements constituting the basic structure are not
\nenumerated, is no ground for denying that these exist. Are all the elements which make a
\nlaw void and unConstitutional ever required to be concatenated for the recognition of the
\nvalidity or invalidity of laws judged on the anvil of the Constitution? A sovereign
\ndemocratic republic, Parliamentary democracy, the three organs of the State, certainly in
\nmy view constitute the basic structure. But do the fundamental rights in Part III and
\nDirective Principles in Part IV constitute the essential element of the basic structure of
\nour Constitution in that the Constitution will be the Constitution without them ? In other
\nwords, if Parts III and IV or either of them are totally abrogated, can it be said that the
\nstructure of the Constitution as an organic instrument establishing sovereign democratic
\nrepublic as envisaged in the preamble remains the same? In the sense as I understand the
\nsovereign democratic republic, it cannot: without either fundamental rights or directive
\nprinciples, what can such a government be if it does not ensure political, economic, or
\nsocial justice?\n<\/p>\n
1207. The History of the agitation for political freedom, fundamental rights and self-
\ngovernment is well known. As I said earlier, ever since the second half of the 19th
\ncentury the struggle has been going on and when ultimately India in spite of the partition,
\nachieved its cherished dream of independence and territorial unity from north to south,
\nand east to west, which in millinneum it could not achieve, the fundamental objectives
\nformed the corner stone of the nation. As Granville Austin so aptly puts it in his book
\n“The Indian Constitution” at page 50, “The Indian Constitution is first and foremost a
\nsocial document. The majority of its provisions are either directly aimed at furthering the
\ngoals of the social revolution or attempt to foster this revolution by establishing the
\nconditions necessary for its achievement. Yet despite the permeation of the entire
\nConstitution by the aim of national renascence, the core of the commitment to the social
\nrevolution lies in Parts III and IV, in the Fundamental Rights and in the Directive
\nPrinciple of State Polity. These are the conscience of the Constitution. The Fundamental
\nRights and Directive Principles had their roots deep in the struggle for independance And
\nthey were included in the Constitution in the hope and expectation that one day the tree of
\ntrue liberty would bloom in India The Rights and Principles thus connect India’s future,
\npresent, and past, adding greatly to the significance of their inclusion in the Constitution,
\nand giving strength to the pursuit of the social revolution in India.
\n1208. The demand for fundamental rights had its inspiration in the Magna Charta and the
\nEnglish Bill of Rights, the French Revolution, the American Bill of Rights incorporated
\nin the Constitution of the United States in 1791. For the first rime, the Indian National
\nCongress which was formed in 1885, made a demand for them in the Constitution of
\nIndia Bill. 1895 and these demands were reiterated from time to time. Annie Besant’s
\nCommonwealth of India Bill contained a demand for 7 fundamental rights. The Simon
\nCommission rejected these demands for inclusion of fundamental rights, but Moti Lal
\nNehru Committee drafted a Swaraj Constitution for India incorporating therein the
\ndeclaration of rights. In respect of these rights, the report said:
\nIt is obvious that our first care should be to have our fundamental rights
\nguaranteed in a manner which will not permit their withdrawal under any
\ncircumstances….\n<\/p>\n
The Karachi Resolution of March 1931 on Fundamental Rights on economic and social
\nchange added a new dimension to Constitutional rights because till then State’s negative
\nobligations were alone being emphasised. By that Resolution “the demand now equally
\nemphasised the State’s positive obligations to provide its people with the economic and
\nsocial conditions in which their negative rights would have actual meaning”. (Granville
\nAustin, p. 56). The Sapru Committee also incorporated these fundamental rights and for
\nthe first time divided them into justiciable and non-justiciable rights. During the
\nConstituent Assembly Debates, Pt. Jawahar Lal Nehru in dealing with the confusion
\nexisting in the minds of the members in respect of the fundamental rights, said: “There is
\nthis confusion, this overlapping, and hence I think a great deal of difficulty has been
\nbrought into the picture. A fundamental rights should be looked upon not from the point
\nof view of any particular difficulty of the moment, but as something that you want to
\nmake permanent in the Constitution. The other matter should be looked upon – however
\nimportant it might be – not from this permanent and fundamental point of view, but from
\nthe more temporary point of view” (emphasis supplied). Dr. Radhakrishnan described the
\ndeclaration of basic freedoms as a pledge to our own people and a pact with the civilised
\nworld”. (Constituent Assembly Debates, Vol. II, p. 273). Dr. Ambedkar speaking on the
\nObjectives Resolution, said that “when one reads that part of the Resolution, it reminds
\none of the declaration of the Rights of Man which was pronounced by the French
\nConstituent Assembly. I think I am right in suggesting that, after the lapse of practically
\n450 years, the Declaration of the Rights of Man and the principles which are embodied in
\nit has become part and parcel of our mental makeup, I say they have become not only the
\npart and parcel of the mental makeup of modern man in every civilised part of the world,
\nbut also in our own country which is so orthodox, so archaic in its thought and its social
\nstructure, hardly anyone can be found to deny its validity. To repeat it now as the
\nResolution does, is to say the least, pure pedantry. These principles have become the
\nsilent immaculate premise of our outlook. It is therefore unnecessary to proclaim as
\nforming a part of our creed. The Resolution suffers from certain other lacuna. I find that
\nthis part of the Resolution, although it enunciates certain rights, does not speak of
\nremedies. All of us are aware of the fact that rights are nothing unless remedies are
\nprovided whereby people can seek to obtain redress when rights are invaded.” The
\nreference to the remedy that was absent in the Objectives Resolution, was made good by
\nthe inclusion of Article 32, with respect to which he said: “an article without which this
\nConstitution would be a nullity…. I could not refer to any other article except this one. It
\nis the very soul of the Constitution and the very heart of it and I am glad that the House
\nhas realised its importance…. It is remedy that makes a right real. If there is no remedy
\nthere is no right at all…” (emphasis supplied) – Constituent Assembly Debates, Vol. VII,
\np. 953. Although he said while dealing with appropriateness of the English high
\nprerogative writs as affording an effective remedy that these could be amended he did not
\nsay that either the judicial review could be abrogated or taken away by an amendment or
\nthe Court itself can be abolished. Nor was any question raised by any one in this regard.
\nDr. Ambedkar’s observations cannot be read to suggest that by an amendment of the
\nConstitution, Article 32 could be abrogated, for if it were so, his observations could be in
\nclear conflict with the express language of Clause 4 of Article 32. The guarantee in
\nClause 4 of Article 32 could be conceived of only against amending power, for no
\nordinary law can suspend a right given by the Constitution unless permitted by the
\nConstitution itself. When Clause 4 of Article 32 does not even permit suspension of the
\nright under Article 32 except as otherwise provided in the Constitution, that is, by Article
\n359, it is highly unthinkable that by an amendment this right could be abrogated. This
\npivotal feature of the Fundamental Rights demonstrates that this basic structure cannot be
\ndamaged or destroyed. When a remedy cannot be abrogated, it should follow that the
\nfundamental rights cannot be abrogated for the reason that the existence of a remedy
\nwould be meaningless without the rights. There is nothing else in the debates which
\nwould suggest that any of the members ever entertained any notion of abrogation of any
\nof the fundamental rights. It was in the light of the makeup of the members and the
\ndedicated way in which they spoke of these rights that these rights were cherished by the
\npeople. It could not be imagined that any one would have suggested anything to the
\ncontrary. In respect of the Directive Principles, though every one recognised these as of
\ngreat importance, Shri B.N. Rau made several attempts to persuade the Drafting
\nCommittee to make the fundamental rights subordinate to the Directive Principles but he
\ndid not succeed. Sir Alladi Krishnaswami Ayyar, an eminent lawyer, had in his note of
\nMarch 14, 1947, made a distinction between the Directive Principles and fundamental
\nrights and said that it is impossible to equate those though it could not be denied that they
\nwere important. There can be no doubt that the object of the fundamental rights is to
\nensure the ideal of political democracy and prevent authoritarian rule, while the object of
\nthe Directive Principles of State policy is to establish a welfare State where there is
\neconomic and social freedom without which political democracy has no meaning. What
\nis implicit in the Constitution is that there is a duty on the Courts to interpret the
\nConstitution and the laws to further the Directive Principles which under Article 37, are
\nfundamental in the governance of the country. As My Lord, the Chief Justice has put it,
\nto say that the Directive Principles give a directive to take away fundamental rights,
\nseems a contradiction in terms. There is no rationale in the argument that the Directive
\nPrinciples can only be given effect to, if fundamental rights are abrogated. If that were
\nthe dissiderata then every Government that comes into power and which has to give
\neffect to the Directive Principles of State policy in securing the welfare of its citizens, can
\nsay that since it cannot give effect to it so long as fundamental rights subsist, they must
\nbe abrogated. I do not think there is any such inherent postulate in the Constitution. Some
\nof these rights, though limited, were subsisting from even the British days under the laws
\nthen in force, yet there were others which were repressive like the Bengal Regulation III
\nof 1818, Madras Regulation II of 1819, Bombay Regulation XXV of 1827, the Indian
\nCriminal Law Amendment Act XIV of 1908, etc., which were used to suppress the
\nfreedom of the people and detain persons on political grounds when they were found
\ninconvenient to the rulers. The demand for securing fundamental rights since then
\nbecame an Article of faith, which, as Dr. Ambedkar said, became part and parcel of the
\nmental makeup and the silent immaculate premise of their outlook. The outlook of the
\nframers of the Constitution could not have provided for such a contingency where they
\ncan be abrogated, nor in any view, is it a necessary concommitant of the Jeffersonian
\ntheory that no one can bind the succeeding generations who by the will of the majority of
\nthe people of the country, can bind themselves. One of the views in America since then
\nheld and which still persists, was expressed by Justice Hugo Black, one of the eminent
\nJudges of the Supreme Court in these terms: “I cannot consider the Bill of Rights to be an
\noutworn 18th century ‘straight-jacket’. Its provisions may be thought out-dated
\nabstractions by some. And it is true that they are designed to meet ancient evils. But they
\nare the same against all human evils that have emerged from century to century whenever
\nexcessive power is sought by the few at the expense of many”. In 1895, famous Jurist
\nMaitland, even where Parliament was Supreme, said of Magna Charta that, “this
\ndocument becomes and rightly becomes the sacred text, the nearest approach to an
\nirrepealable ‘fundamental statute’ that England has ever had”. [Pollock & Maitland,
\n(1898) Volume I, p. 173] .\n<\/p>\n
1209. In the frame of mind and with the recognition of the dominant ‘mental make up and
\nthe silent immaculate premise of our outlook’ which became the outlook of the people,
\nthe framers of our Constitution could not have provided for the freedoms inherent as a
\npart of the right of civilised man to be abrogated or destroyed. The interest of the
\ncommunity and of the society will not be jeopardised and can be adjusted without
\nabrogating, damaging, emasculating or destroying these rights in such a way as to amount
\nto abrogation of the fundamental rights. The Advocate-General of Mysore said that even
\nif fundamental rights are totally abrogated, it is not as if the people will be without any
\nrights. They will be subject to ordinary rights under the law. I must repudiate this
\ncontention, because then the clock will be put back to the same position as existed when
\nBritain ruled India and against which rule our leaders fought for establishing freedom,
\ndignity and basic rights. In this view, my conclusion is that Article 13(2) inhibits only a
\nlaw made by the ordinary legislative agency and not an amendment under Article 368;
\nthat Parliament could under Article 368 amend Article 13 and also the fundamental
\nrights, and though the power of amendment under Article 368 is wide, it is not wide
\nenough to totally abrogate or what would amount to an abrogation or emasculating or
\ndestroying in a way as would amount to abrogation of any of the fundamental rights or
\nother essential elements of the basic structure of the Constitution and destroy its identity.
\nWithin these limits, Parliament can amend every article. In this view of the scope of the
\namending power in Article 368, I hold the Twenty-fourth Amendment valid, for it has the
\nsame amending power as it existed before the amendment.\n<\/p>\n
1210. The Twenty-fifth Amendment, as the objects and reasons of the Bill showed, was
\nenacted mainly to get over the decision in the case of R.C. Cooper v. Union of India<\/a>
\n[1970] 3 S.C.R. 530, (hereinafter referred to as the ‘Bank Nationalisation’ case). The
\nprevious decisions of this Court beginning from the State of West Bengal v. Mrs. Bela
\nBanerjee<\/a> (1954) S.C.R. 558 on account of which the Constitution (Fourth Amendment)
\nAct, 1955, was enacted and the subsequent cases in P. Vajravelu Mudaliar v. Special
\nDeputy Collector, Madras and Anr.<\/a> (1965) 1 S.C.R. 614 Union of India v. The Metal
\nCorporation of India Ltd., and Anr.<\/a> (1967) 1 S.C.R. 255 State of Gujarat v. Shantilal
\nMangaldas and Ors.<\/a> (1969) 3 S.C.R. 341 have been examined by my learned brother
\nHegde, J., in his judgment just pronounced, in the light of the contentions urged by the
\nrespondents, as such I do not find it necessary to refer to them or set out the ratio of these
\ndecisions again.\n<\/p>\n
1211. It will be observed from the amendment in Clause (2) of Article 31 enacted by
\nSection 2 of the above amendment that: (1) the word ‘amend’ has been substituted for the
\nword ‘compensation’; and (2) that the words “or that the whole or any part of such amount
\nis to be given otherwise than in cash” have been added. The effect of the amendment is
\nthat the law now need not provide for giving ‘compensation’ in the sense of equivalent in
\nvalue or just equivalent of the value of the property acquired and that the whole or part of
\nthe amount may be paid otherwise than in cash. The question then arises that if the word
\n‘amount’ which has no legal concept, and as the amended clause indicates, means only
\ncash, which would be in the currency of the country, can the lowest amount of the current
\ncoin be fixed, and if fixed, will it amount to payment in lieu of the property acquired ?
\n1212. Ever since the Constitution (Fourth Amendment) Act, this Court has consistently
\nheld that where what is given in lieu of expropriating property of a citizen is illusory,
\narbitrary, or cannot be regarded as compensation, and bears no reasonable relation to the
\nproperty acquired, the Court can go into it, and, secondly, where principles are fixed for
\ndetermining the compensation, it can examine the question whether they are relevant to
\nthe subject-matter of the acquisition. That position has not in any way been affected by
\nthe amendment by merely substituting the word ‘amount’ for ‘compensation’, so that if the
\namount is illusory or arbitrary, and is such that it shocks the conscience of any reasonable
\nman, and bears no reasonable relation to the value of the property acquired, the Court is
\nnot precluded from examining it.\n<\/p>\n
1213. It has been contended that Parliament or the Legislature can either fix an amount
\nwithout setting out any principles for determining the amount or set out the principles for
\ndetermining the amount. In the former case, the respondents contend that it will not be
\nopen to the Court to examine on what principles the amount has been fixed. If the
\nLegislature merely names an amount in the law for acquisition or requisition, it may be
\nan arbitrary amount, or it may have some relationship or relevance to the value of the
\nproperty acquired or requisitioned. The former cannot be, because it is provided that the
\nacquisition is for an amount which may be fixed. If it is fixed, and as the term denotes, it
\nmust necessarily be fixed on some principle or criteria. Otherwise, no question of fixing
\nan amount would arise: it would be merely naming an amount arbitrarily. The learned
\nAdvocate-General of Maharashtra was frank enough to admit that if principles are fixed,
\nthe amount to be determined thereunder becomes justiciable, but if the amount is fixed
\nwithout stating any principles it is not justiciable and for this reason even the members of
\nthe Legislature, either of the opposition or of the ruling party, need not be told on what
\nbasis or principles the amount has been fixed, lest if this was disclosed the Courts would
\nexamine them. But how can this be avoided because if principles are fixed, the relevancy
\ncan be gone into as has been the consistent view of this Court, and yet it is said that if an
\namount is fixed without reference to any principles and arbitrarily, the Court cannot
\nexamine it. Such a view has no rational or logical basis. The Legislature, even in cases
\nwhere it fixes an amount for the acquisition or requisition of a property, must be
\npresumed to have fixed it on some basis, or applied some criteria or principles to
\ndetermine the amount so fixed, and, therefore, where the law is challenged on the ground
\nof arbitrariness, illusoriness or of having been based on irrelevant principles or any other
\nground that may be open to challenge by an expropriated owner, the State will have to
\nmeet the challenge, and the Court will have to go into these questions. This will be so
\neven in respect to the manner of payment. Once it is satisfied that the challenge on the
\nground that the amount or the manner of its payment is neither arbitrary or illusory or
\nwhere the principles upon which it was fixed were found to bear reasonable relationship
\nto the value of the property acquired, the Court cannot go into the question of adequacy
\nof the amount so fixed on the basis of such principles.\n<\/p>\n
1214. Clause (2B) makes Sub-clause (f) of Article 19(1) inapplicable to Clause (2) of
\nArticle 31. In the Bank Nationalisation case by fa majority of ten to one, this Court held
\nafter an exhaustive review of all the cases beginning from A.K. Gopalan’s case that, “If
\nthe acquisition is for a public purpose, substantive reasonableness of the restriction which
\nincludes deprivation, may unless otherwise established, be presumed, but enquiry into
\nreasonableness of the procedural provisions will not be excluded. For instance, if a
\ntribunal is authorised by an Act to determine compensation for property compulsorily
\nacquired, without hearing the owner of the property, the Act would be liable to be struck
\ndown under Article 19(1)(f) .\n<\/p>\n
1215. Thus, it will appear that where the acquisition is for a public purpose, what is
\nsought to be excluded by Clause (2B) is the reasonableness of the procedural provisions
\nby making Article 19(1)(f) inapplicable. Notwithstanding this amendment, it is apparent
\nthat the expropriated owner still continues to have the fundamental rights that his
\nproperty will not be acquired save by the authority of law and for a public purpose. These
\npropositions have been admitted by the learned Solicitor-General. The question whether
\nan acquisition is for a public purpose is justiciable. Only the adequacy of the amount is
\nnot. If so, how can the expropriated owner establish that the acquisition is not for public
\npurpose unless there are some procedural requirements to be complied with under the
\nlaw? A notice will have to be served; he will have to be given an opportunity to contest
\nthe acquisition. Clause (2B) provides that “nothing in Sub-clause (f) of Clause (1) of
\nArticle 19 shall affect any such law as is referred to in Clause (2)”. Does this mean that
\nthe fundamental right to reasonable restriction of procedural nature under Article 19(1)(f)
\nwhich was available against any law of acquisition or requisition of property as held in
\nthe Bank Nationalisation case, is abrogated or destroyed? The answer to this question
\nwould depend upon what is the meaning to be given to the word “affect”. Two
\nconstructions are possible: one is that Article 19(1)(f) will not be available at all to an
\nexpropriated owner under a law of acquisition made under Article 31(2) or to put it in
\nanother way, any law made under Article 31(2) for acquisition or requisitioning of any
\nproperty abrogates Article 19(1)(f). Secondly, Clause (2B) was intended to provide that
\nthe law of acquisition or requisition will not be void on the ground that it abridges or
\naffects the right under Article 19(1)(f). In choosing either of these constructions, regard
\nmust be had to that construction which would not result in the amendment being held
\ninvalid and void. Applying this approach, the second construction is more in consonance
\nwith the amendment because what the amendment provides for is that Article 19(1)(f)
\nshall not affect any such law and this would imply that the bar against the application of
\nArticle 19(1)(f) to such a law may vary from a slight or partial encroachment to total
\nprohibition or inapplicability. But since an amendment cannot totally abrogate a
\nfundamental right, it can only be read by the adoption of the doctrine of “severability in
\napplication” and, accordingly, Clause (2B) must be held to be restricted only to the
\nabridgement of, as distinct from abrogation, destroying or damaging the right under
\nArticle 19(1)(f). As I said earlier, the right to a reasonable procedure in respect of a law
\nof acquisition or requisition for the effective exercise of the rights under Article 31(2), for
\na reasonable notice, a hearing opportunity to produce material and other evidence may be
\nnecessary to establish that a particular acquisition is not for a public purpose and for
\nproving the value of the property and other matters that may be involved in a particular
\nprinciple adopted in fixing the amount or for showing that what is being paid is illusory,
\narbitrary, etc.
\n1216. That apart, there is nothing in Clause (2B), to prohibit principles of natural justice
\nwhich are part of the law of the land wherein the rule of law reigns supreme, from being
\napplicable when the liberty of the individual or his property is affected by a law. I cannot
\nread a sinister design in that amendment requiring the legislative organs to abrogate the
\nrule of law in this country or deny to its citizens the benefit of the maxim ‘audi alteram
\npartem’ that no man shall be condemned unheard, a concept of natural justice, “deeply
\nrooted in our ancient history”, which as Bylas, J., in Cooper v. The Wadsworth Board of
\nWorks 14 C.B. (N.S.) 180, expressed in the picturesque aphorism, “The laws of God and
\nman both give the party an opportunity to make his defence, if he has any”.
\n1217. There is one other aspect that has been stressed by the learned Advocate for the
\npetitioner, which is more in the nature of the dire consequences that would ensue if the
\namendment is upheld, namely, that the citizen’s right to property has now been
\ntransferred into the State’s right to confiscation, that acquisition under the Land
\nAcquisition Act and under other similar laws can be for the benefit of even Limitied
\nCompanies in the private sector, and that religious freedoms guaranteed by Articles 25 to
\n30 can be virtually stifled by the taking away of the properties held by religious and
\ncharitable purposes. If Parliament under the law can do any of the things which are
\nreferred, this Court cannot prevent the consequences of a law so made. I have spelt out
\nwhat can be done. The law made for acquisition under Clause (2) of Article 31 has still to
\nsatisfy that it is being taken for a public purpose. The question whether acquisition for a
\nprivate person or company is for public purpose may be open to challenge and
\ndetermined by Courts in an appropriate action. As for the principles applicable in the Bill
\nfor the acquisition of Bardoli lands for determining the amount payable for acquisition, as
\nadmitted by both the learned Solicitor-General for the Union and the Advocate-General
\nof Maharashtra will be applicable, then at any rate that will not be a case of confiscation,
\nbecause an owner will at any rate get the amount paid by him together with the loss of
\ninterest for the years he had it. The plea that religious freedoms will be stifled also is not
\nsustainable, because it has been already held by this Court in Khajamain Wakf Estates
\netc. v. The State of Madras (1971) 2 S.C.R. 790, that Article 26(c) and (d) of the
\nConstitution provide that religious denominations shall have the right to own and acquire
\nproperty and administer them according to law. But that does not mean that the properties
\nowned by them cannot be acquired by the State. In the view I have taken, and for the
\nreasons set out above, I hold Section 2 of the Twenty-fifth Amendment valid.
\n1218. Section 3 of the Twenty-fifth Amendment has caused me considerable difficulty
\nbecause on the one hand the amendment is designed to give effect to Article 39(b) and (c)
\nof the Directive Principles of the State policy in the larger interest of the community, and
\non the other the basic assumption underlying it is that this cannot be done without taking
\naway or abridging any of the rights conferred by Articles 14, 19 and 31, and that such a
\nlaw, where it contains a declaration that it is to give effect to the above policy, shall not
\nbe called in question in any Court on the ground that it does not give effect to such
\npolicy. The predominant articulate as well as inarticulate premise is not to hold invalid an
\namendment made under Article 368, if it conforms to the form and manner prescribed
\ntherein and is within the ambit of the amending power, but if the inexorable conclusion
\non a close scrutiny leads to a different conclusion it has to be so held. Article 31C is as
\nfollows:\n<\/p>\n
Notwithstanding anything contained in Article 13, no law giving effect to
\nthe policy of the State towards securing the principles specified in Clause\n<\/p>\n
(b) or Clause (c) of Article 39 shall be deemed to be void on the ground
\nthat it is inconsistent with, or takes away or abridges any of the rights
\nconferred by Article 14, Article 19 or Article 31; and no law containing a
\ndeclaration that it is for giving effect to such policy shall be called in
\nquestion in any court on the ground that it does not give effect to such
\npolicy;\n<\/p>\n
Provided that where such law is made by the Legislature of
\na State, the provisions of this article shall not apply thereto
\nunless such law, having been reserved for the consideration
\nof the President has received his assent.\n<\/p>\n
1219. The learned advocate for the petitioner submits that Article 31C subverts seven
\nessential features of the Constitution : (i) it destroys the supremacy of the Constitution by
\ngiving a blank charter to Parliament and all the State Legislatures to defy and ignore the
\nConstitution; (ii) it subordinates the Fundamental Rights to Directive Principles of State
\nPolicy and thus destroys one of the foundations of the Constitution; (iii) the “manner and
\nform” of amendment laid down in Article 368 is virtually abrogated, inasmuch as while
\nthe Fundamental Rights still remain ostensibly on the Statute Book and Article 368
\nremains unamended, the Fundamental Rights can be effectively silenced by a law passed
\nby a simple majority in the Legislature; (iv) ten Fundamental Rights which are vital for
\nthe survival of democracy, the rule of law, and the integrity and unity of the Republic, are
\nin effect abrogated. Seven of these ten Fundamental Rights are unconnected with
\nproperty; (v) Judicial Review and enforceability of Fundamental Rights another essential
\nfeature of the Constitution is destroyed, in that the Court is prohibited from going into the
\nquestion whether the impugned law does or does not give effect to the Directive
\nPrinciples; (vi) the State Legislatures which cannot otherwise amend Article 368 are
\npermitted to supersede a whole series of Fundamental Rights with the result that
\nFundamental Rights may prevail in some States and not in others, depending upon the
\ncomplexion of the State Government; and (vii) the protection to the minorities and their
\nreligious, cultural, linguistic and educational rights can be seriously affected on the
\nground that the law was intended to give effect to the Directive Principles.
\n1220. On behalf of the respondent-State of Kerala-the learned Advocate-General of
\nMaharashtra submitted “that Article 31C was introduced because of the reversal of
\nGujarat v. Shantilal in the Bank Nationalisation case which reverted, in substance, to the
\nconcept of full compensation”, and in order to “exclude judicial review where the law
\nprovided for securing the principles provided in Clause (b) or (c) of Article 39”. There is,
\naccording to him, no delegation of power under Article 31C on the State Legislatures to
\nalter or amend the Constitution, but it merely removes the restrictions on the legislative
\npower of the State Legislatures and Parliament imposed by the fundamental rights
\ncontained in Articles 14, 19 and 31 of the Constitution, which rights have been conferred
\nby Part III and the contravention of which would have rendered any law void. In this
\nsubmission what it amounts to is only a removal of the restriction which can only be
\neffected by making Article 13 inapplicable. Answering the question whether a law
\ncontaining a declaration as envisaged in Article 31C the major portion of which has no
\nconnection with Clause (b) or Clause (c) of Article 39 would protect the law, it was
\nsubmitted “that on the principle laid down by the Supreme Court in Akadasi Padhan v.
\nState of Orissa<\/a> (1963) Supp. 2 S.C.R. 691 the answer must be in the negative”, and that
\nthe proper construction to be put on the declaration referred to in Article 31C is that the
\nimpugned law must satisfy the condition precedent that it is designed to secure the
\nprinciples specified in Clause (b) or Clause (c) of Article 39, and if it does not give effect
\nto the principles, Akdasi’s case would justify the Court in reading the provision relating to
\ndeclaration as not covering a case, where only a few sections are in furtherance of Article
\n39(b) & (c) while others are unrelated to it. Another way of arriving at the same
\nconclusion, according to him, is that Article 31C postulates that there must be some
\nnexus, however remote, between the law and the directives of State policy embodied in
\nArticle 39(b) and (c)”, and that “if no reasonable person could come to the conclusion
\nthat the impugned provisions of an Act protected by Article 31C and the declaration
\nmade under it had any connection with Article 39(b) and (c), the Court could hold that
\nthe Act showed that the legislature had proceeded on a mistaken view of its power, and
\nthat, therefore, the Court was not bound to give effect to the erroneous assumptions of the
\nlegislature”. The observations of Das Gupta, J., in The Provincial Transport Service v.
\nState Industrial Court<\/a> [1963] 3 S.C.R. 650, were cited. Answering the contention that
\nsince the principles in Article 39(b) & (c) are widely expressed and as such there would
\nalways be some connection between them and practically any kind of law, the learned
\nAdvocate-General of Maharashtra said that the principles in Article 39(b) & (c) were
\ndesignedly widely expressed but “that is not an objection to a law implementing those
\ndirectives” because “public interest is a very wide concept and several rights are made
\nsubject to public interest,” and that should not be the objection for upholding the validity
\nof a law. This answer appears to be vague and uncertain, for what is conceded in the
\nearlier part is withdrawn in the latter.\n<\/p>\n
1221. The submission of the learned Solicitor-General is, firstly, that Article 31C protects
\nonly law and not mere executive action; secondly, the law referred to therein must be
\nmade either by Parliament or State Legislature and does not include within itself
\nordinance, order, rule, regulation, notification, custom or usage in accordance with the
\nprocedure prescribed in Article 368; thirdly, the intention of the founding fathers who had
\nenacted Clauses (4) and (6) of Article 31 to give effect to the Directive Principles of State
\npolicy set out in Article 39(b) & (c), as the experience shows, could not be given effect to
\nbecause of the Constitutional hurdles which necessitated the Constitution (First
\nAmendment) Act by which Article 31A and 31B was added under which the operation of
\nPart III as a whole was excluded. According to him, the significance of this total
\nexclusion of Part III is that it brings out in an unmistakable manner the true relationship
\nbetween the provisions of Part IV and Part III of the Constitution, namely, that the liberty
\nof the individual, valuable as that is, will not operate as unsurmountable barrier in the
\npath of legislative efforts towards the achievement of the goal of a society envisaged in
\nPart IV, and whenever and to whatever extent such a problem arose the amending process
\nwould be able to resolve it. He cited the observations of Das, J., in The State of Bihar v.
\nMaharajadhiraja Sir Kameshwar Singh and Ors.<\/a> [1952] S.C.R. 889 at 997, that, “a fresh
\noutlook which places the general interest of the community above the interest of the
\nindividual pervades our Constitution,” and of Hidayatullah, J., in his dissenting judgment
\nin Sajjan Singh’s case that, “the rights of society are made paramount and they are placed
\nabove those of the individual”. These two observations, if I may say so, are torn out of
\ncontext, particularly those of Hidayatullah, J., where after stressing the fact that Article
\n19 by Clauses (2) to (6) allows the curtailment of rights in the public interest, which goes
\nto show that Part III is not static and visualises change and progress, but at the same time
\nit preserves the individual rights, he said after citing the observation above referred, that,
\n“This is as it should be” (p. 962). It is further the case of the Union of India that the only
\nlaws which will receive the protection of Article 31C must disclose a nexus between the
\nlaw and the objectives set out in Article 39(b) & (c) which is a condition precedent for
\nthe applicability of Article 31C and as such the question is justiciable and the only
\npurpose of the declaration is to remove from the scope of judicial review question of a
\npolitical nature. As an example the learned Solicitor-General instanced a law dealing with
\ndivorce which could not be protected by a declaration nor can a law not attracting Article
\n31C be protected by a declaration by merely mixing it with other laws really falling
\nwithin Article 31C with those under that Article. In such a case, therefore, the Court will
\nalways be competent to examine “the true nature and character of the legislation in the
\nparticular instance under discussion-its design and the primary matter dealt with-its
\nobject and scope (1882) 7 A.C. at pp. 838-840”. It was further averred that if a legislation
\nenacted ostensibly under one of the powers conferred by the Constitution, is in truth and
\nfact, really to accomplish an unauthorised purpose, the Court would be entitled to tear the
\nveil and decide according to the real nature of the statute, as in Attorney-General v.
\nQueen Insurance Co. [1873] 3 A.C. 1090, and that except Articles 14, 19 and 31 the rest
\nof the relevant provisions of the Constitution will apply and the Court is entitled to go
\ninto and consider the challenge of infringement of other rights, and that there are only
\nthree safeguards against the evil of discrimination, namely, (a) the innate good sense of
\nthe community and of the legislature and the administrator; (b) the proviso to Article 31C
\nrequiring the President’s assent; (c) the power of judicial review of the Courts to the
\nextent not excluded, and of these, “The first safeguard is the only real safeguard
\nultimately and there is no real substitute for the character of the citizens”. What is still
\nopen to the Court to examine is whether there is any violation of the provisions of
\nArticles 15, 16, 286 and Part XIII (Articles 301, 303 and 304). The exclusion of Article
\n14, without excluding Articles 15, 16 etc., is only to enable the Legislatures and the
\nParliament to evolve new principles of equality in the light of the objectives set out in the
\nDirective Principles without discrimination. The exclusion of Article 19 is on the footing
\nthat laws which are to give effect to the directives set out in Part IV must constitute
\nreasonable restrictions on the individual’s liberty and the exclusion of Article 31(2) is to
\nintroduce the considerations of social justice in the matter of acquisition.
\n1222. In so far as the question whether Article 31C amounts to delegation of amending
\npower to State Legislature or to Parliament in its ordinary legislative capaciy is
\nconcerned, the learned Solicitor-General submits that a class of legislation or a legislative
\nfield may be identified or categorised in several ways, for instance, with reference to the
\nperiod within which the law is passed [Article 31(4) and Article 31(6)] or the topic of the
\nlegislation [Article 21(2) and Article 31A]; or the objective or purpose of the legislation
\n[Article 15(4)] for the advancement of the backward class of citizens; Article 31(5)(ii) for
\npromotion of health and Article 33 for proper discipline in the forces etc. Article 31C
\nlikewise carves out a legislative field with reference to the object of the legislation and in
\nthis respect it is similar to Articles 15(4), 31(b)(ii) and 33. Each of these articles creates a
\nlegislative field to achieve a social objective and for this purpose modifies the operation
\nof some fundamental rights contained in Part III. Even assuming that Article 31C
\ninvolves an element of delegation of the amending power, he contends there is no
\nviolation of Article 368 and the absence of non-obstante clause or the label cannot make
\nany difference, and since Article 368 empowers its own amendment, it follows that
\nArticle 31C, if there is a partial substitution of an amending machinery and procedure,
\nwill operate as a partial modification of Article 368.\n<\/p>\n
1223. It is contended that Article 31C is similar to the legislative device adopted in
\nArticles 31A and 31B, which was added by the Constitution (First Amendment) Act,
\n1950, the first of which declared that “Notwithstanding anything in the foregoing
\nprovisions of this Part (i.e. Part III), no law providing for the acquisition by the State of
\nany estate or of any rights therein or for the extinguishment or modification of any such
\nrights shall be deemed to be void on the ground that it is inconsistent with, or takes away
\nor abridges any of the rights conferred by, any provisions of this Part”, namely, Part III.
\nArticle 31B is also in similar terms and gives complete protection to the Acts specified in
\nthe Ninth Schedule from any of the provisions of Part III.\n<\/p>\n
1224. In so far as Article 31A was concerned, it authorised a law for the acquisition of an
\nestate as defined in Clause (2). Article 31B as introduced by the First Amendment
\nprotected from challenge, on the ground of infringement of the rights in Part III, certain
\nActs enacted for agrarian reforms which, after very careful scrutiny that they pertain to
\nagrarian reforms, were added to the Ninth Schedule. Zamindari abolition and agrarian
\nreform had become an article of faith of free India and in respect of which the Bills either
\nwere pending at the time when the Constitution was being framed or they had been
\nenacted into law after the commencement of the Constitution. The debates in the
\nConstituent Assembly on Article 31 will disclose that after postponing its consideration
\nfor nearly a year, in the end a compromise was arrived at between those who were for the
\nacquisition law to provide for payment of full compensation and those who wanted the
\nright in Article 31 not to extend to the acquisition of land for giving effect to agrarian
\nreforms. This compromise resulted in the inclusion of Clauses (4) and (6) giving
\nprotection to laws made thereunder from being questioned in any Court; in the case of the
\nformer, to laws dealing with agrarian reforms in respect of which Bills were pending in
\nany of the Legislatures of the States at the commencement of the Constitution and had
\nbeen reserved for the consideration of the President who subsequently assented to them
\nand to those laws which were passed not more than eighteen months before the
\ncommencement of the Constitution, and if submitted within three months after such
\ncommencement to the President for his certification had been so certified by him by
\npublic notification. It was thought that the jurisdiction of the Courts would be barred in
\nrespect of the legislation of the character above mentioned, but the Patna High Court had
\nheld Article 14 was applicable and even when the appeals were pending in this Court, the
\nConstitution (First Amendment) Act, 1950, was passed and Article 31A and Article 31B
\nwere added by an amendment of the Constitution. At the time only 13 Acts were added to
\nthe Ninth Schedule, but when some of the members of the Provisional Parliament wanted
\nto add several other Acts after the Bill had been scrutinised by the Select Committee, the
\nPrime Minister pleaded with them not to do so. He said:\n<\/p>\n
I would beg to them not to press this matter. It is not with any great
\nsatisfaction or pleasure that we have produced this long Schedule.
\nThese debates animated as they were, make interesting reading and one gets the
\nimpression that what was being done was what the original framers had intended to do
\nbut could not give effect to the object because of lacunae in the language of the Article.
\nThe Prime Minister said:\n<\/p>\n
If there is one thing to which we as a party have been committed in the
\npast generation or so it is the agrarian reforms and the abolition of the
\nZamindari system.\n<\/p>\n
Shri Hussain Imam (Bihar) : “With compensation.\n<\/p>\n
Shri Jawaharlal Nehru : “With adequate proper compensation not too
\nmuch”.\n<\/p>\n
Shri Hussain Imam : “Adequate is quite enough”.\n<\/p>\n
Shri Shyama Prasad Mukherjee, representing the opposite view, pointed out the dangers
\ninherent in the amendment, not because he was against the agrarian reforms but because
\nof the precedent this would create. He said : “By this amendment to the Constitution you
\nare saying that whatever legislation is passed it is deemed to be the law. Then why have
\nyour fundamental rights? Who asked you to have these fundamental rights at all? You
\nmight have said : Parliament is supreme and Parliament may from time to time pass any
\nlaw in any matter it liked and that will be the law binding on the people”. In referring to a
\nfew excerpts, I merely want to show what was the object of the amendment and what
\nwere the fears entertained in respect thereof.\n<\/p>\n
1225. The First Amendment was challenged in Sankari Prasad’s case, but this Court held
\nit valid. The question, as we have seen earlier, was whether Article 13(2) imposed a bar
\non Article 368 from amending fundamental rights? It was held that it did not, but no
\ncontention was urged or agitated before it that even apart from Article 13(2), the
\namending power did not extend to the abrogation of fundamental rights. In Sajjan Singh’s
\ncase the principal point which was urged was that the impugned Constitution
\n(Seventeenth Amendment) Act was invalid for the reason that before presenting it to the
\nPresident for his assent the procedure prescribed, by the proviso to Article 368 had not
\nbeen followed, though the Act was one which fell within the scope of the proviso. It was,
\nhowever, not disputed before the Court that Article 368 empowered Parliament to amend
\nany provision of the Constitution including the provisions in respect of fundamental
\nrights enshrined in Part III. Hidayatullah and Mudholkar. JJ., did, however, express
\ndoubts as to whether it is competent for Parliament to make any amendment at all to Part
\nIII of the Constitution (see pp. 961 and 968). Mudholkar, J., further raised the question
\nwhether the Parliament could “go to the extent it went when it enacted the First
\nAmendment Act and the Ninth Schedule and has now added 44 agrarian laws to it? Or
\nwas Parliament incompetent to go beyond enacting Article 31A in 1950 and now beyond
\namending the definition of estate”? (p. 969) Even in Golaknath’s case the question raised
\nbefore us was not conclusively decided. In this state of law to say that since Article 31C
\nis similar to Article 31A and 31B and since the latter were held to be valid in Sankari
\nPrasad’s case, fundamental rights could be abrogated by an amendment, would not be
\njustified. It may be observed that both in Sajjan Singh’s case and Golaknath’s case one of
\nthe grounds which was taken into consideration was that if the amendment was held
\ninvalid, millions of people will be affected and since in the latter case the majority had
\nheld that Parliament could not by amendment under Article 368 affect fundamental
\nrights, the doctrine of prospective overruling or acquiescence was resorted to. But since
\nthe crucial question of the extent of the power of amendment has been mooted in this
\ncase before the largest Bench constituted so far and has been fully argued, this aspect can
\nbe reconsidered. In this regard Gajendragadkar, C.J., while considering the question of
\nstare decisis, observed in Sajjan Singh’s case at pp. 947-948):
\nIt is true that the Constitution does not place any restriction on our powers
\nto review our earlier decisions or even to depart from them and there can
\nbe no doubt that in matters relating to the decision of Constitutional points
\nwhich have a significant impact on the fundamental rights of citizens, we
\nwould be prepared to review our earlier decisions in the interest of public
\ngood. The doctrine of stare decisis may not strictly apply in this context,
\nand one can dispute the position that the said doctrine should not be
\npermitted to perpetuate erroneous decisions pronounced by this Court to
\nthe detriment of general welfare. Even so, the normal principle that
\njudgments pronounced by this Court would be final, cannot be ignored and
\nunless considerations of substantial and compelling character make it
\nnecessary to do so, we should be slow to doubt the correctness of previous
\ndecisions or to depart from them.\n<\/p>\n
1226. I have already pointed out that two of the learned Judges did doubt the power of
\nParliament to amend fundamental rights and since then this question has not remained
\nunchallenged either on the ground of Article 13(2) preventing such amendments or on
\nother grounds urged before us. In these circumstances, it is not correct to say that just
\nbecause the validity of Article 31A and 31C was sustained by this Court, though in
\nGolaknath’s case it may have been on the grounds of expediency, Article 31C must also
\non that account be sustained. However, an analogy of other Articles like Article 33,
\nArticle 15(4) and Article 16(4) is sought to be put forward in support of the contention
\nthat a similar device has been adopted in Article 31C. I find that in none of the articles to
\nwhich the learned Soliciton-General has drawn our attention, is there a total abrogation of
\nany of the rights as sought to be affected by Article 31C. Article 33 for example, restricts
\nor abrogates fundamental rights in Part III only in respect of the discipline of Armed
\nForces or forces charged with the maintenance of public order and nothing more. It does
\nnot extend to discrimination in recruitment to the service nor to any other rights
\npossessed by the citizens in the Armed Forces which are unrelated with the proper
\ndischarge of their duties and the maintenance of discipline among these forces. Article
\n15(4) which was referred to as an example of empowerment based on objective or
\npurpose of legislation, has no analogy with Article 31C. In the first place, Article 15 is an
\nexception to the classification which would have been permissible under Article 14, for
\ninstance on the basis of religion, race, caste, sex and place of birth and hence Article 15
\nprohibits such a classification in the case of citizens, and Article 16 makes a like
\nprovision in the case of public employment with the addition of descent. The restriction is
\nonly to a limited extent from out of an area which permits the making of wide variety of
\nclassification. Clause (4) of Article 15 was added by the Constitution (First Amendment)
\nAct, 1950, to enable a state to make provision for the advancement of any socially and
\neducationally backward classes of citizens or for the scheduled castes and the scheduled
\ntribes. Clause (4) of Article 16 likewise enables the State to make provision for the
\nreservation of appointments or posts in favour of any backard class of citizens which, in
\nthe opinion of the State, is not adequately repressented in the services under the State.
\nThe effect of these amendments is to permit the making of classification for favourable
\ntreatment on the ground that the persons so favoured were Scheduled Castes, Scheduled
\ntribes, etc., which would otherwise have been permissible under Article 14 to the extent
\nof its reasonable relationship with the objects of the law, had the same not been
\nprohibited by Article 15(1) and Article 16(2). These provisions do not in anyway
\nabrogate the right in Article 14 and I do not think the analogy between these provisions
\nand Article 31C is apt.\n<\/p>\n
1227. The Directives under Article 39(b) & (c) are wide and indeterminate. They affect
\nthe whole gamut of human activity vis-a-vis the society. The State is enjoined to ensure
\nthat ownership and control of the material resources of the community are so distributed
\nas best to subserve the common good and that the operation of the economic system does
\nnot result in the concentration of wealth and means of production to the common
\ndetriment. These objectives are ends which may be implemented by a party in power
\nthrough legislative action by resort to any one of the diverse philosophies, political
\nideologies and economic theories. The implementation of these obectives is the means.
\nThese theories and ideologies both political, economic and sociological may vary and
\nchange from generation to generation and from time to time to suit the social conditions,
\nexisting during any particular period of history. We have in the world to-day countries
\nadopting different political systems, according to the historical development of economic
\nthought, the philosophy and ideology which is considered best to subserve the common
\ngood of that particular society. There is no standardisation, and what is good for the one
\ncountry may not be suitable to another. The accelerating technological advance and the
\nexploitation of these development and discoveries indicate the economic thought
\nprevalent in that society. The various theories are, therefore, related to the development
\nand the practical means which are adopted for achieving the ends. In a developing
\ncountry such as ours, where millions are far below the standard of sustenance and have
\nnot the means of having the normal necessities of life, there is further a deeper
\nphilosophical question of the kind of society and the quality of life which has to be
\nachieved. It is, therefore, the duty of the State to devise ways and means of achieving the
\nends. A Government which comes to power with a particular political philosophy and
\neconomic theory as having been endorsed by the electorate, has to give effect to that
\npolicy in the manner which it considers best to subserve the end. Any legislation to give
\neffect to the principles and policy to achieve these ends is the legislative judgment which
\nis not within the province of Courts to examine as to whether they in fact subserve these
\nends as “otherwise there would be a conflict between the Judges and Parliament as to
\nwhether something was good for the country or not, and the whole machinery of justice
\nwas not appropriate for that consideration” (See Liyanage’s case at p. 267). The
\nGovernment and Parliament or the Government and Legislature of a State have, within
\nthe sphere allotted to each other, the undoubted right to embark on legislative action
\nwhich they think will ensure the common good, namely, the happiness of the greatest
\nnumber and so they have the right to make mistakes and retrace any steps taken earlier to
\ncorrect such mistakes when that realisation dawns on them in giving effect to the above
\nobjectives. But if the power to commit any mistake through democratic process is taken
\naway as by enabling an authoritarian system, then it will be the negation of parliamentary
\ndemocracy. The State, therefore, has the full freedom to experiment in implementing its
\npolicy for achieving a desired object. Though the Courts, as I said, have no function in
\nthe evaluation of these policies or in determining whether they are good or bad for the
\ncommunity, they have, however, in examining legislative action taken by the State in
\nfurthering the ends, to ensure that the means adopted do not conflict with the provisions
\nof the Constitution within which the State action has to be confined. It is, therefore,
\nnecessary to keep in view, the wide field of Governmental activity enjoined in Article
\n39(b) & (c) in determining the reach of the means to achieve the ends and the impact of
\nthese means on the Fundamental Rights which Article 31C effects.
\n1228. The impugned Article 31C enables Parliament and the State legislarures to make
\nlaws unfettered by Articles 14, 19 and 31 in respect of the wide and undefined field of
\nobjectives indicated in Article 39(b) & (c). All these objectives before the amendment
\nhad to be achieved by the exercise of the legislative power enumerated in VII Schedule
\nwhich would ordinarily be exercised within the limitations imposed by the Constitution
\nand the fundamental rights. The amendment removes these limitations, though the law
\nmade must still be within the legislative power conferred under the VII Schedule, and
\nenables Parliament and the State legislatures, subject to one tenth quorum of its members
\npresent and by a simple majority, to enact laws which contravene the fundamental rights
\nconferred under Articles 14, 19 and 31 and which Parliament by complying with the form
\nand manner provided under Article 368, could alone have effected. Whether one calls this
\nremoving restrictions on the legislative organs or of conferring complete sovereignty on
\nthem within the wide field inherent in Article 39(b) & (c) is in effect one and the same. It
\nis contended that in conferring this power by Article 31C on Parliament and the State
\nLegislatures, acting under Articles 245 to 248, Parliament has abdicated its function
\nunder Article 368 and has permitted amendments being made without complying with the
\nform and manner provided thereunder.\n<\/p>\n
1229. It is not necessary in the view I am taking to consider the question whether Article
\n31C delegates the power of amendment to the State Legislatures and Parliament or that it
\ndoes not indicate the subject-matter of legislation as in Article 31A but merely purports to
\nenable the legislative organs to choose the subject-matter from a field which, as I said; is
\nas wide and indeterminate as the term ‘operation of the economic system’ would denote. I
\nwould prefer to consider Article 31C as lifting the bar of the articles specified therein,
\nand in so far as the subject-matter of the legislation is concerned, though the field is wide,
\nany of the modes to give effect to the directives can only be a mode permissible within
\nthe legislative power conferred on the respective legislative organ under the VII Schedule
\nto the Constitution.\n<\/p>\n
1230. If Parliament by an amendment of the Constitution under Article 368, cannot
\nabrogate, damage or destroy the basic structure of the Constitution or any of the essential
\nelements comprising that basic structure, or run counter to defeat the objectives of the
\nConstitution declared in the Preamble and if each and every fundamental right is an
\nessential feature of the Constitution, the question that may have to be considered is
\nwhether the amendment by the addition of Article 31C as a fundamental right in Part III
\nof the Constitution has abrogated, damaged or destroyed any of the fundamental rights.
\n1231. Article 31C has 4 elements : (i) it permits the legislature to make a law giving
\neffect to Article 39(b) and Article 39(c) inconsistent with any of the rights conferred by
\nArticles 14, 19 and 31; (ii) it permits the legislature to make a law giving effect to Article
\n39(b) and Article 39(c) taking away any of the rights conferred by Articles 14, 19 and 31;\n<\/p>\n
(iii) it permits the legislature to make a law giving effect to Article 39(b) and (c)
\nabridging any of the rights conferred by Articles 14, 19 and 31; and (iv) it prohibits
\ncalling in question in any Court such a law if it contains a declaration that it is for giving
\neffect to the policy of State towards securing the principles specified in Clauses (b) and\n<\/p>\n
(c) of Article 39 on the ground that it does not give effect to such a policy of the State.
\n1232. The first element seems to have been added by way of abundant caution, for it
\ntakes in the other two elements, namely, taking away and abridging of the rights
\nconferred by Articles 14, 19 or 31. However, it would be ultra vires the amending power
\nconferred by Article 368, if it comprehends within it the damaging or destruction of these
\nfundamental rights. The second element, namely, taking away of these fundamental rights
\nwould be ultra vires the amending power, for taking away of these fundamental rights is
\nsynonymous with destroying them. As for the third element, namely, abridging of these
\nrights, the validity will have to be examined and considered separately in respect of each
\nof these fundamental rights, for an abridgement of the fundamental rights is not the same
\nthing as the damaging of those rights. An abridgement ceases to be an abridgement when
\nit tends to effect the basic or essential content of the right and reduces it to a mere right
\nonly in name. In such a case it would amount to the damaging and emasculating the right
\nitself and would be ultra vires the power under Article 368. But a right may be hedged in
\nto a certain extent but not so as to affect the basic or essential content of it or emasculate
\nit. In so far as Article 31C authorises or permits abridgement of the rights conferred by
\nArticle 19, it Would be intra vires the amending power under Article 368 as thereby the
\ndamaging or emasculating of these rights is not authorised. It will, therefore, be necessary
\nto examine what exactly Article 14 and Article 19 guarantee.\n<\/p>\n
1233. The guarantee of equality contained in Article 14 has incorporated the principle of
\n“liberty” and “equality” embodied in the Preamble to the Constitution. The prohibition is
\nnot only against the legislatures but also against the executive and the local authorities.
\nTwo concepts are inherent in this guarantee-one of ‘equality before law’, a negative one
\nsimilar to that under the English Common Law; and the other ‘equal protection of laws’, a
\npositive one under the United States Constitution. The negative aspect is in the
\nprohibition against discrimination and the positive content is the equal protection under
\nthe law to all who are situated similarly and are in like circumstances. (See Subba Rao, J.,
\nin State of U.P. v. Deoman Upadhyaya<\/a> (1961) 1 S.C.R. 14 at p. 34.\n<\/p>\n
1234. The impact of the negative content on the positive aspect has not so far been
\nclearly discerned in the decisions of this Court which has been mostly concerned with the
\npositive aspect Again, Subha Rao, J., in his dissenting judgment in Lachhman Das on
\nbehalf of Firm Tilak Ram Ram Bux v. State of Punjab (1963) 2 S.C.R. 353 while holding
\nthat the Patiala Recovery of State Dues Act did not offend Article 14 of the Constitution,
\nsaid at p. 395:\n<\/p>\n
It shall also be remembered that a citizen is entitled to a fundamental right
\nof equality before the law and that the doctrine of classification is only a
\nsubsidiary rule evolved by Courts to give a practical content to the said
\ndoctrine. Over emphasis on the doctrine of classification or an anxious and
\nsustained attempt to discover some basis for classification may gradually
\nand imperceptibly deprive the article of its glorious content That process
\nwould inevitably and in substituting the doctrine of classification for the
\ndoctrine of equality: the fundamental right to equality before the law and
\nequal protection of the laws may be replaced by the doctrine of
\nclassification.\n<\/p>\n
In Ram Krishna Dalmia v. Shri Justice S.R. Tendolkar and Ors.<\/a> (1959) S.C.R. 279, Das,
\nC.J., summed up the principle enunciated in several cases referred to by him and
\nconsistently adopted and applied in subsequent cases, thus:\n<\/p>\n
It is now well established that while Article 14 forbids class legislation, it
\ndoes not forbid reasonable classification for the purposes of legislation. In
\norder, however, to pass the test of permissible classification two
\nconditions must be fulfilled, namely, (i) that the classification must be
\nfounded on an intelligible differentia which distinguishes persons or things
\nthat are grouped together from others left out of the group and, (ii) that
\nthat differentia must have a rational relation to the object sought to be
\nachieved by the statute in question. The classification may be founded on
\ndifferent bases, namely, geographical, or according to objects or
\noccupations or the like. What is necessary is that there must be a nexus
\nbetween the basis of classification and the object of the Act tinder
\nconsideration. It is also well established by the decisions of this Court that
\nArticle 14 condemns discrimination not only by a substantive law but also
\nby a law of procedure.\n<\/p>\n
1235. In subsequent cases a further principle has been recognised by which Article 14
\nwas also not to be violated by two laws dealing with the same subject-matter, if the
\nsources of the two laws are different. (See State of Madhya Pradesh v. G.C. Mandawar<\/a>
\n[1955] 1 S.C.R. 599. I am not for the present concerned whether this latter principle is
\nlikely to mislead but would refer only to the various aspects of the classification
\nrecognised in this Court so far. It may, however, be pointed out that though the categories
\nof classification are never closed, and ft may be that the objectives of Article 39(b) & (c)
\nmay form a basis of classification depending on the nature of the law, the purpose for
\nwhich it was enacted and the impact which it has on the rights of the citizens, the right to
\nequality before the law and equal protection of laws in Article 14 cannot be
\ndisembowelled by classification.\n<\/p>\n
1236. The lifting of the embargo of Article 14 on any law made by Parliament or the
\nLegislature of a State under Article 31C, by providing that no law made by these
\nlegislative organs to give effect to the policy of the State towards securing the principles
\nspecified in Clauses (b) and (c) of Article 39 shall be deemed to be void on the ground
\nthat it is inconsistent with or takes away or abridges the right conferred therein, would, in
\nmy view, abrogate that right altogether. I have held that Parliament cannot under Article
\n368 abrogate, damage or destroy any of the fundamental rights though it can abridge to
\nan extent where if does not amount to abrogation, damage or destruction. The question is,
\nwhether the words ‘inconsistent with or takes away, or’, if severed, will achieve the
\npurpose of the amendment? In what way can the abridgement of Article 14 be effected
\nwithout robbing the content of that right? Can a law permitted under Article 31C affect
\npersons similarly situated unequally or would equal protection of laws not be available to
\npersons similarly situated or placed in like circumstances? While Article 39(b) & (c) can
\nprovide for a classification, that classification must have a rational relation to the
\nobjectives sought to be achieved by the statute in question.\n<\/p>\n
1237. In so far as the abridgement of the right conferred by Article 14 is concerned, it
\nwould be ultra vires for the reason that a mere violation of this right amounts to taking
\naway or damaging the right. The protection of the right was denied in Article 31A
\nbecause the Courts had held invalid under Article 14, the provisions of certain land
\nreform legislations relating to compensation for the acquisition etc., of the estates. The
\nnecessity for the exclusion of Article 14 from being applied to laws under Article 31C is
\nnot apparent or easy to comprehend. No law under Article 31C could possibly be
\nchallenged under Article 14 by the owners or the holders of the property, for the reason
\nthat to treat all owners or holders of property equally in matters of compensation would
\nbe contrary to the very objects enshrined in Article 39(b) & (c). Any rational principles of
\nclassification devised for giving effect to the policies adumberated in Article 39(b) & (c)
\nwill not be difficult to pass the test of equal protection of the laws under Article 14. The
\nexclusion of Article 14 in Article 31A was confined to the aspect of acquisition and
\ncompensation in respect of land reforms laws, but, however, the laws under Article 31A
\nwere not immune from attack under Article 14, if the measures of agrarian reforms were
\ntainted with arbitrariness. Though this question has not been finally decided by this Court
\nin any of the cases under Article 31A, it was raised in Balmadies Plantations Ltd. and
\nOrs. v. State of Tamil Nadu<\/a> (1972) 2 S.C.R. 133, where the appellants contended that it
\nwould not be open to the Government under Section 17 of the Gudalur Janmam Estates
\n(Abolition and Conversion into Ryotwari) Act, 1969, to terminate by notice the right of
\nthe lessee as that would be violative of the rights under Articles 14, 19 and 31 of the
\nConstitution. This Court, however, did not find it necessary to deal with this aspect of the
\nmatter, because it was admitted that no notice about the termination of the lessee’s rights
\nhad been issued under Section 17 of the Act to any of the appellants, and that question
\ncan only arise after the Act came into force. It was further observed by one of us,
\nKhanna, J., speaking for the Court:\n<\/p>\n
Even after the Act comes into force, the Government would have to apply
\nits mind to the question as to whether in its opinion it is in public interest
\nto terminate the rights of the plantation lessees. Till such time as such a
\nnotice is given, the matter is purely of an academic nature. In case the
\nGovernment decides not to terminate the lease of the plantation lessees,
\nany discussion in the matter would be an exercise in futility. If, on the
\ncontrary, action is taken by the Government under Section 17 in respect of
\nany lease of land for purposes of the cultivation of plantation crop, the
\naggrieved party can approach the court for appropriate relief.
\nIt may be mentioned that in that case Section 3 of the Act, in so far as it related to the
\ntransfer of forests in Janman estates to the Government was concerned, was held to be
\nviolative of the Constitution. It cannot, therefore, be said that this aspect of the matter is
\nnot res integra. On the other hand, it lends support to the view that the law can be
\nchallenged.\n<\/p>\n
1238. The decisions of this Court in Nagpur Improvement Trust v. Vithal Rao<\/a>(2), and the
\nother two cases following it also do not affect my view that Article 14 is inapplicable to
\nmatters dealing with compensation under laws enacted to give effect to policies of Article
\n39(b) & (c). In the above case it was the State which was given the power to acquire
\nproperty for the same public purpose under two different statutes, one of them providing
\nfor lesser compensation and the other providing for full compensation. My Lord the Chief
\nJustice, delivering the judgment of the Constitution Bench of seven Judges, while holding
\nthat these provisions contravened Article 14, observed at p. 506:
\nIt would not be disputed that different principles of compensation cannot
\nbe formulated for lands acquired on the basis that the owner is old or
\nyoung, healthy or ill, tall or short, or whether the owner has inherited the
\nproperty or built it with his own efforts, or whether the owner is a
\npolitician or an advocate. Why is this sort of classification not sustainable?
\nBecause the object being to compulsorily acquire for a public purpose, the
\nobject is equally achieved whether the land belongs to one type of owner
\nor another type.\n<\/p>\n
There was no question in the above case of either distribution of ownership and control of
\nmaterial resources or the breaking up of concentration of wealth or the means of
\nproduction which is an object different from that envisaged in Article 31(2). If in two
\ngiven cases similarly circumstanced, the property of one is taken under Article 31C and
\nthat of the other under Article 31(2), then it will amount to discrimination and the Nagpur
\nImprovement Trust case will apply. In a case of this nature, the objection is not so much
\nto Article 14 being applied, but of adopting methods which run counter to Article 39(b) &\n<\/p>\n
(c), because the person who though similarly situated as that of the other is certainly
\nfavoured for reasons unconnected with Article 39(b) & (c). It cannot, therefore, be said
\nthat Article 14 has been misapplied or was a hindrance to the furtherance of the directive
\nprinciples in Article 39(b) and (c), which is professed to be the object of implementation
\nin such a case. If no such abuse is to be presumed, then there is no warrant for the
\napprehension that Article 14 will hinder the achievement of the said Directives.
\n1239. The sweep of Article 31C is far wider than Article 31A, and Article 14 is excluded
\nin respect of matters where the protection was most needed for the effectuation of a
\ngenuine and bona fide desire of the State contained in the directives of Article 39(b) &\n<\/p>\n
(c). For instance, persons equally situated may be unequally treated by depriving some in
\nthat class while leaving others to retain their property or in respect of the property
\nallowed to be retained or in distributing the material resources thereby acquired
\nunequally, showing favour to some and discriminating against others. To amplify this
\naspect more fully, it may be stated that in order to further the directives, persons may be
\ngrouped in relation to the property they own or held, or the economic power they possess
\nor in payment of compensation at different rates to differrent classes of persons
\ndepending on the extent or the value of the property they own or possess, or in respect of
\nclasses of persons to whom the material resources of the country are distributed. The
\nobject of Clauses (b) and (c) of Article 39 is the breaking up of concentration of wealth or
\nthe distribution of material resources. If full compensation is paid for the property taken
\nin furtherance of the objectives under Article 39(b) & (c), that very objective sought to be
\nimplemented would fail, as there would in fact be no breaking up of concentration of
\nwealth or distribution of material resources. It is, therefore, clear that the very nature of
\nthe objectives is such that Article 14 is inapplicable, firstly, because in respect of
\ncompensation there cannot be a question of equality, and, secondly, the exclusion thereof
\nis not necessary because any law that makes a reasonable classification to further the
\nobjectives of Article 39(b) & (c) would undoubtedly fulfil the requirements of Article 14.
\nThe availability of Article 14 will not really assist an expropriated owner or holder
\nbecause the objectives of Article 39(b) & (c) would be frustrated if he is paid full
\ncompensation. On the other hand, he has no manner of interest in respect of equality in
\nthe distribution of the property taken from him, because he would have no further rights
\nin the property taken from him. The only purpose which the exclusion of Article 14 will
\nserve would be to facilitate arbitrariness, inequality in distribution or to enable the
\nconferment or patronage etc This right under Article 14 will only be available to the
\nperson or class of persons who would be entitled to receive the benefits of distribution
\nunder the law. In fact the availability of Article 14 in respect of laws under Article 31C
\nwould ensure ‘distributive justice’, or ‘economic justice’, which without it would be
\nthwarted. In this View of Article 31C vis-a-vis Article 14, any analogy between Article
\n31C and Article 31A which is sought to be drawn is misconceived, because under the
\nlatter provision the exclusion of Article 14 was necessary to protect the subject-matter of
\nlegislation permissible thereunder in respect of compensation payable to the expropriated
\nowner. There is another reason why there can be no comparison between Article 31A and
\nArticle 31C, because in Article 31A the exclusion of Article 14 was confined only to the
\nacquisition etc. of the property and not to the distribution aspect which is not the subject-
\nmatter of that Article, whereas, as pointed out already, the exclusion of Article 14 affects
\ndistribution which is the subject-matter of Article 39 (b) & (c).
\n1240. It is not necessary to examine in detail the mischief that the abridgement or taking
\naway of Article 14 will cause, It is not an answer to say that this may not be done and
\nabuse should not be presumed. This may be true, but what I am concerned with is the
\nextent of the power the legislative organs will come to possess. Once the power to do all
\nthat which has been referred above is recognised, no abuse can be presumed. But if the
\npower does not extend to destruction, damage or abrogation of the right, the question of
\nabuse, if any, has no relevance. It cannot be presumed that Parliament by exercising its
\namending power under Article 368, intended to confer a right on Parliament and the
\nLegislatures of the States to discriminate persons similarly situated or deprive them of
\nequal protection of laws. The objectives sought to be achieved under Article 39(b) & (c)
\ncan be achieved even if this article is severed.\n<\/p>\n
1265. In respect of the exclusion of Article 19 by Article 31C a question was asked by
\none of us during the course of arguments addressed by the learned Advocate-General for
\nMaharashtra on January 12, 1973, the thirtyfifth day, as to, what is the social content of
\nthe restriction on freedom of speech and freedom of movement which are not already
\ncontained in the restrictions to which those rights are subject? The learned Advocate-
\nGeneral said he would consider and make his submissions. On March, 1, 1973, he made
\nhis submissions on the understanding that the question was asked in the context of Article
\n31C which excludes the operation of whole of Article 19 and not only Article 19(1)(f)
\nand Article 19(1)(g). The learned Advocate-General characterised the question as raising
\na matter of great importance. In my view, what was implied in the question was the core
\nof the issue before us, as to whether there can be any justification for imposing more
\nrestrictions on such valuable rights as freedom of movement and freedom of speech than
\nwhat the framers of the Constitution had already provided for in Article 19(2) to (6).
\nAfter referring to the history and objects and reasons for enacting Constitution First,
\nFourth and Seventeenth Amendments, and after referring to the decisions of this Court,
\nall of which relate to acquisition of property and have nothing to do either with freedom
\nof speech or freedom of movement, he considered and answered the question posed under
\nthe following heads as under:\n<\/p>\n
(i) Generally, with reference to reasonable restrictions to which the
\nfundamental rights conferred by Article 19(1)(a) to (g) are subject under
\nArticle 19(2) to (6);\n<\/p>\n
(ii) the reasonable restrictions to which the right to freedom of speech and
\nthe right to move throughout the territory of India should be made subject
\nunder Article 19(2) and (5) respectively.\n<\/p>\n
1241. Under the first head he submitted the proposition that the social content of the
\nrestrictions to which the fundamental rights under Article 19(1)(a) to (g) are subject is
\nnarrower than all relevant social considerations to which the fundamental rights could be
\nmade subject. The reasons given were again the historical ones particularly the fact that
\nthe Constituent Assembly had rejected the suggestion made by Shri B.N. Rau that in case
\nof conflict between fundamental rights and the Directives, the directives should prevail,
\notherwise necessary social legislation might be hampered. This meant that the social
\ncontent of the Directive Principles was wider than the social content of permissible
\nrestrictions on fundamental rights. For, if this were not so, no question of giving primacy
\nto Directive Principles in the case of conflict with fundamental rights could arise as the
\nsocial content of fundamental rights and the Directive Principles would be the same.
\nSince the Constitution gave primacy to fundamental rights over the Directives, making
\nfundamental rights enforceable in a Court of law and the directives not so enforceable,
\nthe social content of the restrictions on fundamental rights was placed in the framework
\nof the enforcement of rights by citizens or any person. This enforcement of individual
\nfundamental rights naturally disregarded the injury to the public good caused by dilatory
\nlitigation which can hold up large schemes of necessary social legislation affecting a
\nlarge number of people. To prevent this social evil, the First and the Fourth Amendments
\nto the Constitution were enacted.\n<\/p>\n
1242. The social content of restrictions which can be imposed under Article 19(2) to (6)
\nnaturally does not take in the injury to the public good by dilatory litigation holding up
\nlarge schemes of social legislation. The fundamental rights conferred by Article 19(1)(a)
\nto (g) are not mutually exclusive but they overlap. For example, the right to move
\npeaceably and without arms conferred by Article 19(1)(b) may be combined with the
\nright to freedom of speech and expression, if those who assemble peaceably carry
\nplacards or deliver speeches through microphones. Again, the right to carry on business
\nunder Article 19(1)(g) would overlap the right to hold, acquire and dispose of property,
\nfor ordinarily, business cannot be carried on without the use of property. This
\nconsideration must be borne in mind in considering the question why Article 31C
\nexcluded the challenge to the laws protected by Article 31C under the whole of Article
\n19, instead of excluding a challenge only under Article 19(1)(f) which relates to property;
\nand Article 19(1)(g) which relates to business which would ordinarily require the use of
\nproperty.\n<\/p>\n
1243. Under the second head, he submitted that it is well settled that the right to freedom
\nof speech includes the freedom of the Press, and thereafter referred to ‘Press in a
\nDemocracy’-Chapter X of Modern Democracies by Lord Bryce, and long extracts were
\ngiven from the above chapter, dealing with the change which had come over the Press
\nand the dictatorship of a syndicated Press. The First Amendment of the U.S. Constitution
\nwas also referred. He thereafter submitted that our Constitution guarantees a freedom of
\nspeech and expression and by judicial construction that freedom has been held to include
\nfreedom of the Press. But according to him the freedom of speech as an individual right
\nmust be distinguished from the freedom of the Press and since ordinarily people asserting
\ntheir individual right to the freedom of speech are not carrying on any trade or business
\nand a law of acquisition has no application to individual exercise of the right to the
\nfreedom of speech and expression Article 31C can equally have no application to such
\nindividual right to the freedom of speech and expression. But different considerations
\napply when the freedom of speech and expression includes the Press, the running of
\nwhich is clearly a business.\n<\/p>\n
1244. Article 19(1)(a) is so closely connected with Article 19(1)(g) and (f) that if the last
\ntwo sub-Articles are excluded by a law relating to the acquisition of property, it is
\nnecessary to exclude Article 19(1)(a) to prevent an argument that the rights are so
\ninextricably mixed up that to impair the right to carry on the business of running a Press
\nor owning property necessary for running the Press is to impair the right to freedom of
\nspeech. Again, the right to freedom of movement throughout the territory of India has
\nbeen clubbed together by Article 19(5) with the right to reside and settle in any part of the
\nterritory of India, conferred by Article 19(1)(c) and the right to acquire, hold and dispose
\nof property conferred by Article 19(1)(f) for the purpose of imposing reasonable
\nrestrictions in the interest of general public or for the protection of the interest of any
\nscheduled Tribe.\n<\/p>\n
1245. After referring to the observations of Patanjali Sastri and Mukherjea, JJ., in
\nGopalan’s case, the learned Advocate-General submitted that those observations show
\nthat if a law of land acquisition was to be protected from challenge under Article 19(1)(f),
\nit was necessary to protect it from challenge under Article 19(1)(d) and (e) to foreclose
\nany argument that the rights under Article 19(1)(d), (e) and (f) are so closely connected
\nthat to take away the right under Article 19(1)(f) is to drain the rights under Article
\n19(1)(d) and (e) of their practical content. For these reasons, Parliament in enacting the
\nFirst, Fourth and Seventeenth Amendments rightly excluded the challenge under the
\nwhole of Article 19 to the laws protected by those amendments and not merely a
\nchallenge under Article 19(1)(f) and (g). In the result, it was submitted that Article 31C
\nonly contemplates the process of giving primacy to the Directive Principles of State
\npolicy over fundamental rights, first recognised in Article 31(4) and (6) and then
\nextended by Articles 31A and 31B and Schedule IX as first enacted and as subsequently
\namplified by the Fourth and the Seventeenth Amendments all of which have been held to
\nbe valid. Directive Principles are also fundamental and the amending power is designed
\nto enable future Parliament and State Legislatures to provide for the changes in priorities
\nwhich take place after the Constitution was framed and the amending power is extended
\nto enacting Article 31C.\n<\/p>\n
1246. I have set out in detail what according to the learned Advocate-General is the basis
\nand the raison d’etre for excluding Article 19 by Article 31C. This able analysis surfaces
\nthe hidden implications of Article 31G in excluding Article 19. On those submissions the
\nentire fundamental rights guaranteed to the citizens are in effect abrogated. Article 14 is
\ntaken away; Article 19(1)(a) to (g) is excluded on the ground that each of them have their
\nimpact on one or the other of the rights in Part III and since these rights are not mutually
\nexclusive and any property and trade or business affected by legislation under Article
\n31C which necessarily must deal with property, if the directives in Article 39(b) and (c)
\nare to be given effect, will in turn, according to the learned Advocate-General, come into
\nconflict not only with Article 19(1)(f) & (g), but with the other Sub-clauses (a) to (e) of
\nClause (1) of that article.\n<\/p>\n
1247. As far as I can see, no law, so far enacted under Article 31A and challenged before
\nthis Court has attempted to affect any of the rights in Article 19(1)(a) to (e), except
\nArticle 19(1)(f) & (g) and, therefore, this question did not fall for consideration of this
\nCourt. But that apart, I cannot understand by what logic the freedom to assemble
\npeaceably and without arms, or for a citizen to move freely throughout India or to reside
\nand settle in any part of the territory of India, has anything to do with the right to acquire
\nand dispose of property or to practice any profession or to carry on any occupation, trade
\nor business. Are persons whose trade and business is taken away, or are deprived of their
\nproperty not entitled to the guaranteed rights to move freely throughout India or settle in
\nany part of India or to practise any profession or occupation? What else can they do after
\nthey are deprived of their property but to find ways and means of seeking other
\nemployment or occupation and in that endeavour to move throughout India or settle in
\nany part of India? If they are prohibited from exercising these basic rights, they will be
\nreduced to mere serfs for having owned property which the State in furtherance of its
\npolicy expropriates. If the law made under the directives has nothing to do with property,
\nhow does the duty to prevent the operation of the economic system from resulting in
\nconcentration of wealth and means of production, has any relevance or nexus with the
\nmovement of the citizens throughout India or to settle in any part of India ? Are those to
\nwhom property is distributed in furtherance of the directive principles, ought not to be
\nsecured against infringement of those rights in property so distributed by laws made
\nunder Article 31C? It would seem that those for whose benefit legislation deprives others
\nin whom wealth is concentrated themselves may not be protected by Article 19 and
\nArticle 14, if Article 31C can take away or destroy those rights. Without such a
\nprotection they will not have a stake in the survival of democracy, nor can they be
\nassured that economic justice would be meted out to them. Nor am I able to understand
\nwhy where an industry or undertaking is taken over, is it necessary Co take away the
\nright of the workers in that industry or undertaking to form associations or unions. The
\nindustry taken away from the owners has nothing to do with the workers working therein,
\nand merely because they work there they will also be deprived of their rights. I have
\nmentioned a few aspects of the unrelated rights which are abridged by Article 31C. No
\ndoubt, the recognition of the freedom of Press in the guarantee of freedom of speech and
\nexpression under Article 19(1)(a) was highlighted by the learned Advocate-General of
\nMaharashtra. Does this mean that if a monopoly of the Press is prohibited or where it is
\nsought to be broken up under Article 39(b) and (c) and the Printing Presses and
\nundertakings of such a Press are acquired under a law, should the citizens be deprived of
\ntheir right to start another Press, and exercise their freedom of speech and expression? If
\nthese rights are taken away, what will happen to the freedom of speech and expression of
\nthe citizens in the country, which is a concomitant of Parliamentary democracy? In the
\nState of Bombay and Anr. v. F.N. Balsara<\/a> (1951) S.C.R. 682, it was held under the
\nunamended Clause (2) of Article 19 that Section 23(a) and Section 24(1)(a) which
\nprohibited “commending” or advertising intoxicants to public were in conflict with the
\nright guaranteed in Article 19(1)(a) as none of the conditions in Clause (2) of that Article
\napplied. But the first Amendment has added ‘incitement to an offence’ as a reasonable
\nrestriction which the State can provide by law. In any case, the absence of such a law
\nmaking power is no ground to abrogate the entire right of free speech and expression of
\nthe citizens.\n<\/p>\n
1248. Article 15 merely confines the right to those who are not women socially and
\neducationally backward classes of citizens, scheduled castes or scheduled tribes all of
\nwhom were afforded protective discrimination. Article 16 is again similarly conditioned.
\nArticles 17, 18, 23 and 24 are prohibitions which the State is enjoined to give affect to.
\nArticles 25 to 28 which guarantee religious freedom, can be affected by Article 31C in
\nfurtherance of directive principles because these denominations own properties, schools,
\ninstitutions, etc., all of which would be meaningless without the right to hold property.
\nLikewise, Articles 29 and 30 would become hollow when Articles 19 and 14 are totally
\nabrogated. The only rights left are those in Articles 20, 21 and 22, of which Article 22 has
\nabridged by reason of Clauses (4) to (7) by providing for preventive detention, which no
\ndoubt, is in the larger interest of the security, tranquillity and safety of the citizens and the
\nStates. I have pointed out the implications of the contentions on behalf of the respondents
\nto show that if these are accepted, this country under a Constitution and a Preamble
\nproclaiming the securing of fundamental rights to its citizens, will be without them. The
\nindividual rights which ensure political rights of the citizens in a democracy may have to
\nbe subordinated to some extent to the Directive Principles for achieving social objectives
\nbut they are not to be enslaved and driven out of existence. Such could not have been
\ncontemplated as being within the scope of the amending power.\n<\/p>\n
1249. Although Article 31A protected the laws coming within its purview from the rights
\nconferred by Article 19, such a protection could only be against the rights conferred by
\nClauses (f) and (g) of Article 19(1), as its subjected-matter was expressly stated to be the
\nacquisition of or extinguishment or modification of rights in any estate as defined in
\nClause (2) thereof, and the taking over or amalgamation or termination etc., of rights of
\nmanagement and certain leasehold interests. Article 31C protects laws giving effect to the
\npolicies in Article 39(b) & (c). For achieving these twin objects the rights of the persons
\nthat have to be abridged could only be those rights in Article 19 which relate to property
\nand trade, business, profession or occupation. Though the expression ‘economic system’
\nis used in Article 39(c), that article has not the object of changing the economic system
\ngenerally, but is confined to only preventing concentration of wealth and means of
\nproduction to the common detriment. What this Clause envisages is that the State should
\nsecure the operation of the economic system in such a way as not to result in the
\nconcentration of wealth and means of production to the common detriment Where there
\nis already concentration of wealth and means of production which is to the common
\ndetriment, the law under Article 39(c) would be only to break up or regulate as may be
\nnecessary the concentration of wealth and means of production. All other rights are
\noutside the purview of Article 31C and in this respect Article 31A and Article 31C can be
\nsaid to be similar in scope and no different. In my view, therefore, the learned Solicitor-
\nGeneral has rightly submitted that the law under Article 31C will only operate on
\n“material resources”, “concentration of wealth”, and “means of production”, and if this is
\nso, the rights in Article 19(1)(a) to (e) would have no relevance and are inapplicable.
\n1250. With respect to the exclusion of Article 31 by Article 31C, Clause (1) of Article 31
\nis not in fact affected by Article 31C, because under the latter any rights affected must be
\nby law only. Even if Article 31C was enacted for making laws in the furtherance of the
\ndirective principles in Article 39(b) and (c) affecting property, those laws have to
\nconform to Article 31(1) for they would be laws depriving persons of their property.
\nArticle 31C also contemplates the making of a law to give effect to the Directives in
\nArticle 39(b) and (c). In so far as Article 31(2) is concerned, Section 2 of the Twenty-
\nfifth Amendment has already abridged the right contained in Article 31(2) and a further
\nabridgement of this right authorised by Article 31C may amount in a given case to the
\ndestruction or abrogation of that right and it may then have to be considered in each case
\nwhether a particular law provides for such an amount for the acquisition or requisitioning
\nof the property in question as would constitute an abrogation or the emasculation of the
\nright under Article 31(2) as it stood before the Constitution (Twenty-fifth) Amendment.
\n1251. On the fourth element, I agree with the reasoning and conclusion of my learned
\nbrother Khanna, J., whose judgment I have had the advantage of perusing, in so far as it
\nrelates only to the severance of the part relating to the declaration, and with great respect
\nI also adopt the reasoning on that aspect alone as an additional reason for supporting my
\nconclusions on the first three elements also.\n<\/p>\n
1252. If the first part of Article 31C is read in this manner, then it may be held to be intra
\nvires the amending power only if those portions of the Article which make it ultra vires
\nthe amending power are severed from the rest of it. The portions that may have to be
\nsevered are the words, “is inconsistent with or takes away, or” and the words “Article 14”
\nand the part dealing with the declaration by reason of which judicial review is excluded.
\nThe severability of these portions is permissible in view of the decision of the Privy
\nCouncil in Punjab Province v. Daulat Singh and Ors. (1946) 73 Indian Appeals 59 and
\nthe principles laid down by this Court in B.M.D. Chamarbdugwalla v. The Union of India
\n(1957) S.C.R. 930.\n<\/p>\n
1253. The doctrine that the general words in a statute ought to be construed with
\nreference to the powers of the Legislature which enacts it, and that the general
\npresumption is that the Legislature does not intend to exceed its jurisdiction, is well
\nestablished. In in Re. The Hindu Women’s Rights to Property Act, [1941] F.C.R. 12 and
\nin Daulat Singh’s case it has been held that on the general presumption the Legislature
\ndoes not intend to exceed its jurisdiction, and that the Court could sever that part of the
\nprovision in excess of the power if what remained could be given effect to. In the former
\ncase, the Act being a remedial Act seeking to remove or to mitigate what the Legislature
\npresumably regarded as a mischief, was given the beneficial interpretation. (See the
\nobservations of Gwyer, C.J. at p. 31). In the latter case, the provisions of Section 13A of
\nthe Punjab Alienation of Land Act, 1900, which were added by Section 5 of the Punjab
\nAlienation of Land (Second Amendment) Act No. X of 1933, providing for the avoidcnce
\nof banami transactions as therein specified which were entered into either before or after
\nthe commencement of the Act of 1938, and for recovery of possession by the alienor
\nwould have been ultra vires the Provincial Legislature as contravening Sub-section (1) of
\nSection 281 of the Government of India Act, 1935, in that in some cases Section 13A
\nwould operate as a prohibition on the ground of descent alone, but it was authorised and
\nprotected from invalidity as regards future transactions by Sub-section 2(a) of Section
\n298 of the Act of 1935 as amended by Section 4 of the India & Burma (Temporary and
\nMiscellaneous Provisions) Act, 1942. As the provisions of Section 13A would have been
\nultra vires and void in so far as they purported to operate retrospectively, the Privy
\nCouncil severed the retrospective element by the deletion of the words “either before or”
\nin the section and the rest of the section was left to operate validly. Lord Thankerton,
\ndelivering the opinion of the Privy Council, observed at pp. 19-20:
\nIt follows, in the opinion of their Lordships, that the impugned Act, so far
\nas retrospective, was beyond the legislative powers of the Provincial
\nLegislature and, if the retrospective element were not severable from the
\nrest of the provisions, it is established beyond controversy that the whole
\nAct would have to be declared ultra vires and void. But, happily, the
\nretrospective element in the impugned Act is easily severable, and by the
\nthe deletion of the words, “either before or” from Section 5 of the
\nimpugned Act, the rest of the provisions of the impugned Act, may be left
\nto operate validly.\n<\/p>\n
1254. In Chamarbaugwalla’s case, Venkatarama Aiyer, J., after referring to the various
\ncases including F.N. Balsara’s case accepted the principle that when a statute is in part
\nvoid, it will be enforced as regards the rest, if that is severable from what is invalid. It is
\nimmaterial for the purpose of this rule whether the invalidity of the statute arises by
\nreason of its subject-matter being outside the competence of the legislature or by, reason
\nof its provisions contravening Constitutional prohibitions. He enunciated seven rules of
\nseparability. In F.N. Balsara’s case, apart from Section 23(a) and (b) and Section 24(1)(a)
\nrelating to commendation and incitement from the definition of the word ‘liquor’ in
\nSection 2(24)(a) the words “all liquids consisting of or containing alcohol” were severed
\nas these would include medicinal preparations. It will be seen that neither the whole Sub-
\nclause (a) was deleted nor the whole of Clause (24) was separated. It is only the above
\nwords that were severed and held to make the remaining part of the definition valid.
\n1255. In Corporation of Calcutta v. Calcutta Tramways Co. Ltd.<\/a> (1964) 5 S.C.R. 25 the
\nquestion was whether Section 437(1)(b) of the Calcutta Municipal Act, 1851, was invalid
\nunder Article 19(1)(g) in so far as is made the opinion of the Corporation conclusive and
\nnon-challengeable in any court. The Sub-clause (b) of Section 437(1) reads as follows:
\nany purpose which is, in the opinion of the Corporation (which opinion
\nshall be conclusive and shall not be challenged in any court) dangerous to
\nlife, health or property, or likely to create a nuisance;\n<\/p>\n
This Court held the portion in the parenthesis as violative of Article 19(1)(g). It was
\ncontended that the above portion in the sub-clause was inextricably mixed up with the
\nrest and hence cannot be separated. The Court held that the third proposition in the
\nChamarbaugwalla’s case, namely, that even when the provisions which are valid are
\ndistinct and separate from those which are invalid, if they all form part of a single scheme
\nwhich is intended to be operative as a whole, then also the invalidity of a part will result
\nin the failure of the whole, was inapplicable. Wanchoo, J., expressed the view that the
\nparenthetical clause consisting of the words “which opinion shall be conclusive and shall
\nnot be challenged in any court” is severable from the rest of the clause referred to above.
\n1256. In the case of Kameshwar Prasad v. State of Bihar (1962) Supp. 3 S.C.R. 369 Rule
\n4-A of the Bihar Government Servants Conduct Rules, 1956, had provided that “No
\nGovernment servant shall participate in any demonstration or resort to any form of strike
\nin connection with any matter pertaining to his conditions of service”. The Court held the
\nrule violative of Article 19(1)(a) and (b) in so far as it prohibited any form of
\ndemonstration, innocent or otherwise, and as it was not possible to so read it as to
\nseparate the legal from the unConstitutional portion of the provision, the entire rule
\nrelating to participation in any demonstration must be declared as ultra vires. The Court,
\nhowever, did not strike down the entire Rule 4-A, but severed only that portion which
\nelated to demonstration from the rest of it, and the portion dealing with the strike which
\nwas upheld continued to exist after severing the above, portion. However, in State of
\nMadhya Pradesh v. Ranojirao Shinde and Anr.<\/a> (1968) 3 S.C.R. 489 the doctrine of
\nseverability was not applied. In that case the term ‘grant’ was defined in Section 2(1) of
\nthe Madhya Pradesh Abolition of Cash Grants Act, 1963, in a language which was wide
\nwithout making a distinction between various types of cash grants. This Court did not
\nfind any basis for severing some out of the several grants included therein and hence
\nexpressed the view that it is impermissible to rewrite that clause and confine the
\ndefinition to such of the cash grants which the Legislature might be competent to abolish.
\nThe case is, therefore, distinguishable as the rule is inapplicable to such instances.
\n1257. I have considered the validity of Article 31C by applying the doctrine of
\nseverability although neither side dealt with this aspect in relation to Article 31C, because
\nboth had taken an extreme position, which if accepted, will either result in the total
\ninvalidation or in upholding its validity in entirety. If as the petitioner had contended that
\nby an amendment any of the fundamental rights cannot be damaged or destroyed, the
\nnext logical step of the argument on his behalf should have been to establish that the
\nentire Article 31C is bad on that account, and if not, to what extent it would have been
\nsustained by applying the doctrine of severability particularly when the severability of the
\ndeclaration’ part of Article 31C was very much in the forefront during the arguments.
\nLikewise the respondents knowing what the petitioner’s case is, should have examined
\nand submitted to what extent Article 31C is invalid on the petitioner’s argument. When a
\nquestion was asked on February 19, 1973 that “if once it is conceded that a Constitution
\ncannot be abrogated, then what one has to find out is to what extent an amendment goes
\nto abrogation” and the answer was that “the whole of the Constitution cannot be
\namended”, and also when a question was raised that on the language of Article 31C it
\nappears to be ineffective, neither side advanced any argument on this aspect. Nor when
\nthe question of severability of the declaration portion was mooted on several occasions
\nduring the arguments was any submission made by either party as to whether such a
\nseverance is, or is not, possible. In the circumstances, the Court is left to itself to examine
\nand consider what is the correct position in the midst of these two extremes in a case of
\nConstitutional amendment which has been enacted after following the form and manner
\nprescribed in Article 368, as I said earlier, it should not be held invalid, if it could be
\nupheld even by severing the objectionable part, where the valid part can stand on its own.
\nIt is not always in public interest to confine the consideration of the validity of a
\nConstitutional amendment to the arguments, the parties may choose to advance,
\notherwise we will be constrained to interpret a Constitution only in the light of what is
\nurged before us, not what was understand it to be is the true nature of the impugned
\namendment Happily, even if I am alone in this view, the portions indicated by me are
\nseverable, leaving the unsevered portion operative and effective so as to enable laws
\nmade under Article 31C to further the directives of State Policy enshrined in Article 39(b)
\nand (c). In the view I have entertained, the words “inconsistant with, or takes away or”
\nand the words “Article 14” as also the portion “and no law containing a declaration that it
\nis for giving effect to such policy shall be called in question in any court on the ground
\nthat it does not give effect to such policy” being severable, be deleted from Article 31C.
\nIn the result, on the construction of Article 31C after severing the portions indicated
\nabove, I hold Section 3 of the Twenty-fifth Amendment valid.\n<\/p>\n
1258. On the validity of the Constitution (Twenty-ninth) Amendment, my Lord the Chief
\nJustice has come to the conclusion that notwithstanding this amendment the Constitution
\nBench will decide whether the impugned Acts take away fundamental rights or only
\nabridge them and whether they effect reasonable abridgements in publiic interest, and if
\nthey take away, they will have to be struck down. My learned brothers Hegde and
\nMukherjea, JJ., have in effect come to the same conclusion, when they hold that this
\namendemnt is valid, but whether the Acts which were brought into the IXth Schedule by
\nthat Amendment or any provision in any of them abrogate any of the basic elements or
\nessential features of the Constitution will have to be examined when the validity of those
\nActs is gone into. With respect, I agree in effect with these conclusions which are
\nconsistent with the view I have expressed in respect of Articles 31A and 31B. I also agree
\nthat the contention of the learned Advocate for the petitioner that Article 31B is
\nintimately connected with Article 31A is unacceptable and must be rejected for the
\nreasons given in these judgments. The question whether fundamental rights are abrogated
\nor emasculated by any of the Acts or provisions of these Acts included by the impugned
\nAmendment, will be open for examination when the validity of these Acts is gone into,
\nand subject to this reservation, I hold the Constitution (Twenty-ninth) Amendment valid.
\n1259. I now state my conclusions which are as follows:\n<\/p>\n
(1) On the construction placed on Articles 12, 13 and other provisions of
\nPart III and Article 368, Article 13(2) does not place an embargo on
\nArticle 368, for amending any of the rights in Part III, and on this view it
\nis unnecessary to decide whether the leading majority judgment in
\nGolaknath’s case is right in finding the power of amendment in the
\nresiduary entry 97 of List I of Schedule VII, nor is it called for, having
\nregard to the majority decision therein that the power of amendment is to
\nbe found in Article 368 itself.\n<\/p>\n
(2) Twenty-fourth Amendment:\n<\/p>\n
1260. The word ‘amendment’ in Article 368 does not include repeal. Parliament could
\namend Article 368 and Article 13 and also all the fundamental rights and though the
\npower of amendment is wide, it is not wide enough to totally abrogate or emasculate or
\ndamage any of the fundamental rights or the essential elements in the basic structure of
\nthe Constitution or of destroying the identity of the Constitution. Within these limits,
\nParliament can amend every article of the Constitution. Parliament cannot under Article
\n368 expand its power of amendment so as to confer on itself the power to repeal,
\nabrogate the Constitution or damage, emasculate or destroy any of the fundamental rights
\nor essential elements of the basic structure of the Constitution or of destroying the
\nidentity of the Constitution, and on the construction placed by me, the Twenty-fourth
\nAmendment is valid, for it has not changed the nature and scope of the amending power
\nas it existed before the Amendment.\n<\/p>\n
Twenty-fifth Amendment:\n<\/p>\n
(i) SECTION 2\n<\/p>\n
(a) Clause (2) to Article 31 at substituted.-Clause (2) of Article 31 has the same meaning
\nand purpose as that placed by this Court in the several decisions referred to except that
\nthe word ‘amount’ has been substituted for the word ‘compensation’, after which the
\nprinciple of equivalent in value or just equivalent of the value of the property acquired no
\nlonger applies. The word ‘amount’ which has no legal concept and, as the amended clause
\nindicates, it means only cash which would be in the currency of the country, and has to be
\nfixed on some principle. Once the Court is satisfied that the challenge on the ground that
\nthe amount or the manner of its payment is neither arbitrary or illusory or where the
\nprinciples upon which it is fixed are found to bear reasonable relationship to the value of
\nthe property acquired, the Court cannot go into the question of the adequacy of the
\namount so fixed or determined on the basis of such principles.\n<\/p>\n
(b) Clause (2B) as added.-On the applicability of Article 19(1)(f) to Clause (2) of Article
\n31, the word ‘affect’ makes two constructions possible, firstly, that Article 19(1)(f) will
\nnot be available at all to an expropriated owner, and this, in other words, means that it
\ntotally abrogates the right in such cases, and secondly, Clause (2B) was intended to
\nprovide that the law of acquisition or requisition will not be void on the ground that it
\nabridges or affects the right under Article 19(1)(f). The second construction which makes
\nthe amendment valid is to be preferred, and that Clause (2B) by the adoption of the
\ndoctrine of severability in application is restricted to abridgement and not abrogation,
\ndestroying or damaging the right of reasonable procedure in respect of a law of
\nacquisition or requisition for the effective exercise of the right under Article 31(2); for, a
\nreasonable notice, a hearing opportunity to produce material and other evidence, may be
\nnecessary to establish that a particular acquisition is not for public purpose and for
\nproviding the value of the property and other matters that may be involved in a particular
\nprinciple adopted in fixing the amount or for showing chat what is being paid is illusory,
\narbitrary etc. Therefore, in the view taken, and for the reasons set out in this judgment,
\nSection 2 of the Twenty-fifth Amendment is valid.\n<\/p>\n
(ii) SECTION 3 OF THE TWENTY-FIFTH AMENDMENT
\n1261. New Article 31C is only valid if the words “inconsistent with or takes away or”, the
\nwords “Article 14” and the declaration portion “and no law containing a declaration that it
\nis for giving effect to such policy shall be called in question in any court on the ground
\nthat it does not give effect to such policy”, are severed, as in my view they are severable.
\nWhat remains after severing can be operative and effective on the interpretation given by
\nme as to the applicability of Articles 19 and 31, so as to enable laws made under Article
\n31C to further the directives enshrined in Article 39(b) & (c). In the result on the
\nconstruction of Article 31C, after severing the portions indicated above, I hold Section 3
\nof the Twenty-fifth Amendment valid.\n<\/p>\n
(4) Twentyninth Amendment:\n<\/p>\n
1262. The contention that Articles 31A and 31B are inter-connected is unacceptable and
\nis rejected. The Constitution (Twenty-ninth) Amendment is valid, but whether any of the
\nActs included thereby in Schedule IX abrogate, emasculate, damage or destroy any of the
\nfundamental rights in Part III or the basic elements or essential features of the
\nConstitution will have to be examined when the validity of those Acts is challenged.
\n1263. The petitions will now be posted for hearing before the Constitution Bench for
\ndisposal in accordance with the above findings. In the circumstances the parties will bear
\ntheir own costs.\n<\/p>\n
D.G. Palekar, J.\n<\/p>\n
1264. The facts leading to this petition have been stated in judgment delivered by my lord
\nthe Chief Justice and it is not therefore necessary to recount the same.
\n1265. In this petition the Constitutional validity of the Kerala Land Reforms
\n(Amendment) Act, 1969 and the Kerala Land Reforms (Amendment) Act, 1971 has been
\nchallenged. As the petitioner apprehended that he would not succeed in the challenge in
\nview of the recently passed Constitution Amendment Acts, he has also challenged the
\nvalidity of these Acts. They are:\n<\/p>\n
(1) The Constitution 24th Amendment Act, 1971;\n<\/p>\n
(2) The Constitution 26th Amendment Act, 1971 and
\n(3) The Constitution 29th Amendment Act, 1972.\n<\/p>\n
1266. The crucial point involved is whether the Constitution is liable to be amended by
\nthe Parliament so as to abridge or take away fundamental rights conferred by Part III of
\nthe Constitution.\n<\/p>\n
1267. By the 24th Amendment, some changes have been made in Articles 13 and 368
\nwith the object of bringing them in conformity with the views expressed by a majority of
\nJudges of this Court with regard to the scope and ambit of Articles 13 and 368. In Sankari
\nPrasad Singh v. Union of India [1952] S.C.R. 89 the Constitutional Bench of five Judges
\nof this Court unanimously held that fundamental rights could be abridged or taken away
\nby ah amendment of the Constitution under Article 368. In the next case of Sajjan Singh
\nv. State of Rajasthan [1965] (1) S.C.R. 933 a majority of three Judges expressed the view
\nthat Sankari Prasad’s case was correctly decided. Two Judges expressed doubts about that
\nview but considered that it was not necessary to dissent from the decision as the point
\nwas not squarely before the court In the third case namely Golak Nath v. State of Punjab
\n[1967] (2) S.C.R. 762 the, view taken in the earlier cases by eight Judges was overruled
\nby a majority of six Judges to five. The majority held that Parliament had no power to
\namend the Constitution under Article 368 so as to abridge or take away the fundamental
\nrights, one of them (Hidayatullah, J), who delivered a separate judgment, expressing the
\nview that this could not be done even by amending Article 368 with the object of clothing
\nthe Parliament with the necessary powers. In this state of affairs the Union Government
\nwas obliged to take a definite stand. It would appear that the Union Government and the
\nParliament agreed with the view taken in Sankari Prasad’s case by the majority in Sajjan
\nSingh’s case and the substantial minority of Judges in Golak Nath’s case. They were out
\nof sympathy with the view adopted by the majority in Golak Nath’s case. Hence the 24th
\nAmendment. That amendment principally sought to clarify what was held to be implicit
\nin Articles 13 and 368 by a majority of Judges of this Court over the years, namely, (1)
\nthat nothing in Article 13 applied to an amendment to the Constitution made under
\nArticle 368; (2) that Article 368 did not merely lay down the procedure for a
\nConstitutional amendment but also contained the power to amend the Constitution; (3)
\nthat the Parliament’s power under Article 368 was a constituent power as distinct from
\nlegislative power; (4) that this power to amend included the power to amend by way of
\naddition, variation or repeal of any provision of the Constitution.
\n1268. After passing the 24th Amendment the other two amendments were passed in
\naccordance with the Constitution as amended by the 24th Amendment.
\n1269. In his argument before us Mr. Palkhivala, appearing on behalf of the petitioner,
\nsupported the majority decision in Golak Nath with supplemental arguments. In any
\nevent, he further contended, the power of Parliament to amend the Constitution under
\nArticle 368 did not extend to the damaging or destroying what he called the essential
\nfeatures and basic principles of the Constitution and since fundamental rights came in
\nthat category, any amendment which damaged or destroyed the core of these rights was
\nimpermissible. The argument on behalf of the State of Kerala and the Union of India was
\nthat an amendment of the Constitution abridging or taking away fundamental rights was
\nnot only permissible after the clarificatory 24th Amendment but also under the
\nunamended Articles 13 and 368, notwithstanding the refinement in the arguments of Mr.
\nPalkhivak with regard to essential features and basic principles of the Constitution. We
\nare, therefore, obliged to go back to the position before the 24th Amendment and
\nconsider whether the majority view in Golak Nath was not correct. A fuller bench of 13
\nJudges was, therefore, constituted and it will be our task to deal with the crucial question
\ninvolved. This course cannot be avoided, it is submitted; because if the fundamental
\nrights were unamendable by the Parliament so as to abridge or take them away,
\nParliament could not increase its power to do so by the device of amending Articles 13
\nand 368 whether one calls that amendment clarificatory or otherwise. The real question is
\nwhether the Constitution had granted Parliament the power to amend the Constitution in
\nthat respect, because, if it did not, no amendment of Articles 13 and 368 would invest the
\nParliament with that power. We have, therefore, to deal with the Constitution as it
\nobtained before the 24th Amendment.\n<\/p>\n
1270. Since fundamental questions with regard to the Constitution have been raised, it
\nwill be necessary to make a few prefatory remarks with regard to the Constitution. The
\nConstitution is not an indigenous product. Those who framed it were, as recognised by
\nthis Court in The Automobile Transport (Rajasthan) Ltd. v. The State of Rajasthan and
\nOrs.<\/a> [1963] 1 S.C.R. 491 at p. 539, 540 thoroughly acquainted with the Constitutions and
\nConstitutional problems of the more important countries in the world, especially, the
\nEnglish speaking countries. They knew the Unitary and Federal types of Constitutions
\nand the Parliamentary and Presidential systems of Government. They knew what
\nConstitutions were regarded as “Flexible” Constitutions and what Constitutions were
\nregarded as “rigid” Constitutions. They further knew that in all modern written
\nConstitutions special provision is made for the amendment of the Constitution. Besides,
\nafter the Government of India Act, 1935 this country had become better acquainted at
\nfirst hand, both with the Parliamentary system of Government and the frame of a Federal
\nConstitution with distribution of powers between the centre and in the State. All this
\nknowledge and experience went into the making of our Constitution which is broadly
\nspeaking a quasi – Federal Constitution which adopted the Parliamentary System of
\nGovernment based on adult franchise both at the centre and in the States.
\n1271. The two words mentioned above ‘flexible’ and ‘rigid’ were first coined by Lord
\nBryce to describe the English Constitution and the American Constitution respectively.
\nThe words were made popular by Dicey in his Law of the Constitution first published in
\n1885. Many generations of lawyers, thereafter, who looked upon Dicey as one of the
\ngreatest expositors of the law of the Constitution became familar with these words. A
\n‘flexible’ Constitution is one under which every law of every description (including one
\nrelating to the Constitution) can legally be changed with the same ease and in same
\nmanner by one and the same body. A ‘rigid’ Constitution is one under which certain laws
\ngenerally known as Constitutional or fundamental laws cannot be changed in the same
\nmanner (as ordinary laws). See ‘Dicey’s Law of the Constitution 10th edition, 1964 p.\n<\/p>\n
127. It will be noted that the emphasis is on the word ‘change’ in denoting the distinction
\nbetween the two types Constitutions. Lord Birkanhead in delivering the judgment of the
\njudcial Committee of the Privy Council in McCawley v. The King [1920] A.C. 691 used
\nthe words ‘uncontrolled’ and ‘controlled’ for the words ‘flexible’ and ‘rigid’ respectively
\nwhich were current then. He had to examine the type of Constitution Queensland
\npossessed, whether it was a ‘flexible’ Constitution or a ‘rigid’ one in order to decide the
\npoint in controversy. He observed at page 703 The first point which requires
\nconsideration depends upon the distinction between Constitutions the terms of which may
\nbe modified or repealed with no other formality than is necessary in the case of other
\nlegislation, and Constitutions which can only be altered with some special formality and
\nin some cases by a specially convened assembly.’ He had to do that because the
\ndistinction between the two types of Constitutions was vital to the decision of the
\ncontroversy before the privy Council. At page 704 he further said ‘Many different terms
\nhave been employed in the text-books to distinguish these two contrasted forms of
\nConstitution. Their special qualities may perhaps be exhibited as clearly by oiling the one
\na ‘controlled’ and the other an ‘uncontrolled’ Constitution as by any other nomenclature’.
\nPerhaps this was an apology for not using the words ‘rigid’ and ‘flexible’ which were
\ncurrent when he delivered the judgment. In fact, sic John Simon in the course of his
\nargument in that case had used the words ‘rigid’ and ‘flexible’ and he had specifically
\nreferred to ‘Dicey’s Law of the Constitution’ Strong in his text-book on Modern Political
\nConstitution, Seventh revised edition, 1968 reprinted in 1970 says at p. 153 “The sole
\ncriterion of a rigid Constitution is whether the Constituent Assembly which drew up the
\nConstitution left any special directions as to how it was to be changed. If in the
\nConstitution there are no such directions, or if the directions, explicitly leave the
\nLegislature a free hand, then the Constitution is ‘flexible’.
\n1272. The above short disquisition into the nature of Constitutions was necessary in order
\nto show that when our Constitution was framed in 1949 the framers of the Constitution
\nknew that there were two constrasted types of democratic Constitutions in vogue in the
\nworld-one the ‘flexible’ type which could be amended by the ordinary procedure
\ngoverning the making of a law and the other the ‘rigid’ type which cannot be so amended
\nbut required a special procedure for its amendment. Which one of these did our framers
\nadopt the ‘flexible’ or the ‘rigid’? On an answer to the above question some important
\nconsequences will follow which are relevant to our enquiry.\n<\/p>\n
1273. Our Constitution provides for a Legislature at the Centre and in the States. At the
\ncentre it is the Parliament consisting of the Lok Sabha and the Rajya Sabha. In the States
\nthe Legislature consists of the State Assembly and, in some of them, of an Upper
\nChamber known as the Legislative Council. Legislative power is distributed between the
\ncentre and the States, Parliament having the power to make laws with regard to subject
\nmatters contained in List I of the Seventh Schedule and the State Legislatures with regard
\nto those in List II. There is also List III enumerating matters in respect of which both the
\nParliament and the State Legislatures have concurrent powers to make laws. This power
\nto make laws is given to these bodies by Articles 245 to 248 and the law making
\nprocedure for the Parliament is contained in Articles 107 to 122 and for the State
\nLegislatures in Articles 196 to 213. The three Lists in the Seventh Schedule no where
\nmention the ‘Amendment of the Constitution’ as one of the subject matters of legislation
\nfor either the Parliament or the State Legislatures. On the other hand, after dealing with
\nall important matters of permanent interest to the Constitution in the first XIX parts
\ncovering 367 Articles, the Constitution makes special provision for the ‘Amendment of
\nthe Constitution’ in Part XX in one single Article, namely, Article 368. A special
\nprocedure is provided for amendment which is not the same as the one provided for
\nmaking ordinary laws under Articles 245 to 248. The principle features of the legislative
\nprocedure at the Centre are that the law must be passed by both Houses of Parliament by
\na majority of the members present and voting in the House, and in case of an impasee
\nbetween the two Houses of Parliament, by a majority vote at a joint sitting. All that is
\nnecessary is that there should be a coram which we understand is 10% of the strength of
\nthe House and if such a coram is available the two houses separately or at a joint meeting,
\nas the case may be, may make the law in accordance with its legislative procedure laid
\ndown in Articles 107 to 122. The point to be specially noted is that all ordinary laws
\nwhich the Parliament makes in accordance with Articles 245 to 248 must be made in
\naccordance with this legislative procedure and no other. Under Articles 368 however, a
\ndifferent and special procedure is provided for amending the Constitution. A Bill has to
\nbe introduced in either House of Parliament and must be passed by each House separately
\nby a special majority. It should be passed not only by 2\/3rd majority of the members
\npresent and voting but also by a majority of the total strength of the House. No joint
\nsitting of the two Houses is permissible. In the case of certain provisions of the
\nConstitution which directly or indirectly affect interstate relations, the proposed
\namendment is required to be ratified by the Legislatures which is not a legislative process
\nof not less than one half of the States before the Bill proposing the amendment is
\npresented to the President for his assent. The procedure is special in the sense that it is
\ndifferent and more exacting or restrictive than the one by which ordinary laws are made
\nby Parliament. Secondly in certain matters the State Legislatures are involved in the
\nprocess of making the amendment. Such partnership between the Parliament and the
\nState Legislatures in making their own laws by the ordinary procedure is not recognised
\nby the Constitution. It follows from the special provision made in Article 368 for the
\namendment of the Constitution that our Constitution is a ‘rigid’ or ‘controlled’ Constitution
\nbecause the Constituent Assembly has “left a special direction as to how the Constitution
\nis to be changed.” In view of Article 368, when the special procedure is successfully
\nfollowed, the proposed amendment automatically becomes a part of the Constitution or,
\nin other words, it writes itself into the Constitution.\n<\/p>\n
1274. The above discussion will show that the two separate procedures one for law
\nmaking and the other for amending the Constitution were not just an accident of drafting.
\nThe two procedures have been delibarately provided to conform with well-know
\nConstitutional practices which make such separate provisions to highlight the different
\nprocedures one commonly known as the legislative procedure and the other the
\nconstituent procedure. The word ‘constituent’ is so well-known in modern Political
\nConstitutions that it is defined in the dictionaries as ‘able to frame or alter a Constitution.’
\nAnd the power to frame or alter the Constitution is known as constituent power. See The
\nConcise Oxford Dictionary.\n<\/p>\n
1275. Where then in our Constitution lie the legislative power and the constituent power?
\nThe legislative power is given specifically by Articles 245 to 248, subject to the
\nConstitution, and these Articles are found under the heading ‘Distribution of legislative
\npowers’. That alone is enough to show that these articles do not deal with the constituent
\npower. The point is important because the leading majority judgment in Golak Nath’s
\ncase proceeds on the footing that the power lies in Article 248 read with the residuary
\nentry 97 in List I of the Seventh Schedule. That finding was basic to the decision because
\nunless an amendment of the Constitution is equated with a law made by Parliament under
\none or the other of the entries in List I of the Seventh Schedule it was not easy to invoke
\nthe bar of Article 13(2). Mr. Palkhivala says that he is indifferent as to whether the power
\nis found in Article 248 or elsewhere. But that does not conclude the question because if
\nwe agree with the view that it falls in Article 248 the decision that an amendment
\nabridging or taking away fundamental rights, being a law under Article 248, would be
\nbarred by Article 13(2) would be unassailable.\n<\/p>\n
1276. In Golak Nath’s case Subha Rao, C.J. who spoke for himself and his four learned
\ncolleagues held that the power to amend the Constitution was not found in Article 368
\nbut in Article 248 read with the residuancy entry 97 of List I of the Seventh Schedule.
\nThe five learned Judges who were in a minority held that the power is in Article 368,
\nHidayatullah, J. on the other hand, held that Article 368 did not give the power to any
\nparticular person or persons and that if the named authorities acted according to the law
\nof Article, the result of amendment was achieved. And if the procedure could be deemed
\nto be a power at all it was a legislative power, sui generis, to be found outside the three
\nlists in Schedule Seven of the Constitution. In other words, six learned Judges did not
\nfind the power in the residuary entry 97 of List I, while five found it there. We have,
\ntherefore, to see whether the view of Subba Rao, C.J. and his four colleagues who held
\nthat the power lay in Article 248 read with the residuary entry 97 is correct. In my view,
\nwith respect, it is not.\n<\/p>\n
1277. Article 368 is one single article in Part XX entitled. The amendment of the
\nConstitution.’ It is a special topic dealt with by that Part. In other articles like Articles
\n4,169, para 7 of Schedule V and para 31 of Schedule VI a power is granted to the
\nParliament to amend specific provisions ‘by law’ i.e., by adopting the ordinary procedure
\nof legislation, though it altered certain provisions of the Constitution. The alterations are
\n‘a law’ made by the Parliament and, therefore, liable to be struck down, unless specifically
\nsaved, in case of inconsistency with the provisions of the Constitution. Secondly in every
\nsuch case a provision is deliberately added explaining that the amendment so made by
\nlaw is not to be deemed an amendment of the Constitution for the purpose of Article 368.
\nThe warning was necessary to emphasise that an amendment of the Constitution in
\naccordance with the procedure laid down in Article 368 was of a special quality-a quality
\ndifferent from amendments made ‘by law’ by the Parliament. The special quality flowed
\nfrom the fact that the Parliament and the States which were to participate in the process
\nperformed not their ordinary legislative function but a special function known in all
\nFederal or quasi-federal or controlled Constitutions as a ‘constituent’ function. The
\ndifference between the ordinary function of making law and the function of amending the
\nConstitution loses its significance in the case of a sovereign body like the British
\nParliament or a Parliament like that of Newzealand which has a written Constitution of
\nthe Unitary type. These bodies can amend a Constitutional law with the same ease with
\nwhich they can make an ordinary law. The reason is that their Constitutions are ‘flexible’
\nConstitutions. But in countries which have a written Constitution which is a ‘rigid’ or
\n‘controlled’ Constitution the Constitution is liable to be amended only by the special
\nprocedure, and the body or bodies which are entrusted with the amendment of the
\nConstitution are regarded as exercising constituent power to distinguish it from the power
\nthey exercise in making ordinary legislation under the Constitution. So far as we are
\nconcerned, our Constitution gives specific powers of ordinary legislation to the
\nParliament and the State legislatures in respect of well demarcated subjects. But when it
\ncomes to the amendment of the Constitution, a special procedure has been prescribed in
\nArticle 368. Since the result of following the special procedure under the Article is the
\namendment of the Constitution the process which brings about the result is known as the
\nexercise of constituent power by the bodies associated in the task of amending the
\nConstitution. It is, therefore, obvious, that when the Parliament and the State Legislatures
\nfunction in accordance with Article 368 with a view to amend the Constitution, they
\nexercise constituent power as distinct from their ordinary legislative power under Articles
\n245 to 248. Article 368 is not entirely procedural. Undoubtedly part of it is procedural.
\nBut there is a clear mandate that on the procedure being followed the ‘proposed
\namendment shall become part of the Constitution, which is the substantive part of Article\n<\/p>\n
368. Therefore, the peculiar or special power to amend the Constitution is to be sought in
\nArticle 368 only and not elsewhere.\n<\/p>\n
1278. Then again if the constituent assembly had regarded the power to amend the
\nConstitution as no better than ordinary legislative power the framers of the Constitution
\nwho were well-aware of the necessity to provide for the power to amend the Constitution
\nwould not have failed to add a specific entry to that effect in one or the other of the lists
\nin the Seventh Schedule instead of leaving it to be found in a residuary entry. The very
\nfact that the framers omitted to include it specifically in the list but provided for it in a
\nspecial setting in Part XX of the Constitution is eloquent of the fact that the power was
\nnot to be sought in the residuary entry or the residuary Article 248. In this connection it
\nmay be recalled that in the Draft Constitution Article 304 had a separate provision in
\nClause 2. Clause 1 of that article fairly corresponds with our present Article 368. In
\nClause 2 power was given to the States to propose amendments in certain matters and
\nParliament had to ratify such amendments. There was thus a reverse process of
\namendment. There was no residuary power in the States and the amendment of the
\nConstitution was not a specific subject of legislative power in draft List II. This goes to
\nshow that in the Draft Constitution, in all but two matters, the proposal for amendment
\nwas to be made by the Parliament and in two specified matters by the State Legislatures.
\nIf the power for the latter two subjects was to be found in Clause 2 of Article 304 of the
\nDraft Constitution it is only reasonable to hold that the power of Parliament to amend the
\nrest of the Constitution was to be found in Article 304(1) which corresponds to the
\npresent Article 368.\n<\/p>\n
1279. Moreover the actual wording of Article 245 which along with Articles 246 to 248
\ncomes under the topic “Distribution of legislative powers” is important. Article 245
\nprovides that Parliament may make laws for the whole or any part of India and the
\nlegislature of a State may make laws for the whole or any part of the State. Thus Article
\n245 confers the power to make laws on Parliament and the Legislatures of the State for
\nand within the territory allocated to them. Having conferred the power, Articles 246 to
\n248 distribute the subject matters of legislation in respect of which the Parliament and the
\nState Legislatures have power to make the laws referred to in Article 245. But there is an
\nimportant limitation on this power in the governing words with which Article 245
\ncommences. It is that the power was subject to the provisions of the Constitution thereby
\nlifting the Constitution above the ‘laws’. That would mean that the Parliament and the
\nState Legislatures may, indeed make laws in respect of the areas and subject matters
\nindicated, but the exercise must be “subject to the provisions of the Constitution” which
\nmeans that the power to make laws does not extend to making a law which contravenes
\nor is inconsistent with any provision of the Constitution which is the supreme law of the
\nland. A law is inconsistent with the provision of the Constitution when, being given effect
\nto, it impairs or nullifies the provision of the Constitution. Now no simpler way of
\nimpairing or nullifying the Constitution can be conceived than by amending the text of
\nthe provision of the Constitution. Therefore, since a law amending the text of a
\nConstitutional provision would necessarily entail impairing or nullifying the
\nConstitutional provision it would contravene or be inconsistent with the provision of the
\nConstitution and hence would be impermissible and invalid under the governing words
\n“subject to the provisions of the Constitution” in Article 245. It follows that a law
\namending the Constitution if made on the assumption that it falls within the residuary
\npowers of the Parliament under Article 248 read with entry 97 of List I would always be
\ninvalid. Then again a law made under Articles 245 to 248 must, in its making, conform
\nwith the ordinary legislative procedure for making it laid down for the Parliament in Part
\nV, Chapter II and for the State Legislature in Part VI, Chapter III of the Constitution and,
\nno other. To say that the power to make law lies in Article 245 and the procedure to make
\nit in Article 368 is to ignore not only this compulsion, but also the fundamental
\nConstitutional practice followed in our Constitution, as in most modern controlled
\nConstitutions, prescribing special procedure for the amendment of the Constitution which
\nis different from the procedure laid down for making ordinary laws. The conclusion,
\ntherefore, is that the power of amendment cannot be discovered in Article 248 read with
\nthe residuary entry. The argument that Article 368 does not speak of the power to amend
\nbut only of the procedure to amend in pursuance of the power found elsewhere is clearly
\nuntenable. The true position is that the alchemy of the special procedure prescribed in
\nArticle 368 produces the constituent power which transports the proposed amendment
\ninto the Constitution and gives it equal status with the other parts of the Constitution.
\n1280. Moreover, if an amendment of the Constitution is a law made under Article 248
\nread with entry 97 List I strange results will follow. If the view taken in Golak Nath’s
\ncase is correct, such ‘a law being repugnant to Article 13(2) will be expressly invalidated
\nso far as Part III of the Constitution is concerned. And such a law amending any other
\narticle of the Constitution will also be invalid by reason of the governing words “subject
\nto the provisions of the Constitution” by which Article 245 commences. In that event no
\narticle of the Constitution can be amended. On the other hand, if the law amending an
\narticle of the Constitution is deemed to be not repugnant to the article which is amended,
\nthen every article can be amended including those embodying the fundamental rights
\nwithout attracting the bar of Article 13(2) which can only come in on a repugnancy. On
\nthe argument, therefore, that an amendment is a law made under Article 248 the whole of
\nthe Constitution becomes unamendable, and on the argument that such a law never
\nbecomes repugnant to the article amended the whole of the Constitution becomes
\namendable, in which case, we are unable to give any determinate value to Article 13(2).
\nInstead of following this complicated way of tracing the power in Article 248 read with
\nthe residuary entry 97 of List I it would be correct to find it in Article 368 because that is
\na special article designed for the purposes of the amendment of the Constitution which is
\nalso the subject heading of Part XX. In my opinion, therefore, the power and the
\nprocedure to amend the Constitution are in Article 368.\n<\/p>\n
1281. The next question which requires to be examined is the nature of this constituent
\npower, specially, in the case of ‘controlled’ or ‘rigid’ Constitutions. A student of Modern
\nPolitical Constitutions will find that the methods of modern Constitutional amendment
\nare (1) by the ordinary legislature but under certain restrictions; (2) by the people through
\na referendum; (3) by a majority of all the unions of a Federal State; (4) by special
\nconvention; and (5) by a combination of two or more of the above methods which are
\nmentioned in order of increasing rigidity as to the method. Where the power of amending
\nthe Constitution is given to the legislature by the Constituent Assembly the Legislature
\nworking under restrictions assumes a special position. Strong in the book, already
\nreferred to, observes at page 152 “The constituent assembly, knowing that it will disperse
\nand leave the actual business of legislation to another body, attempts to bring into the
\nConstitution that it promulgates as many guides to future action as possible. If it wishes,
\nas it generally does, to take out of the hands of the ordinary legislature the power to alter
\nthe Constitution by its own act, and since it cannot possibly foresee all eventualities, it
\nmust arrange for some method of amendment. In short, it attempts to arrange for the
\nrecreation of a constituent assembly whenever such matters are in future to be considered,
\neven though that assembly be nothing more than the ordinary legislature acting under
\ncertain restrictions.\n<\/p>\n
(emphasis supplied)
\n1282. Authorities are not wanting who declare that such amending power is sovereign
\nconstituent power. Orfield in his book, the Amending of the Federal Constitution (1942)
\npage 155 (1971 Edn.) says that in America the amending body is sovereign in law and in
\nfact Herman Finer in his book The Theory and Practice of Modern Government, fourth
\nedition 1961 reprinted in 1965, pages 156\/157 says “Supremacy is shown and maintained
\nchiefly in the amending process…. Too difficult a process, in short, ruins the ultimate
\npurpose of the amending clause…. The amending clause is so fundamental to a
\nConstitution that I am tempted to call it the Constitution itself.” Geoffery Marshall in his
\nConstitutional Theory (1971) p. 36 says “there will in most Constitutional systems, be an
\namending process and some “collection” of persons, possibly complex, in whom
\nsovereign authority to alter any legal rule inheres….Constitutions unamendable in all or
\nsome respects are non-standard cases and a sovereign entity whether (as in Britain) a
\nsimple legislative majority, or a complex specially convened majority can be discovered
\nand labelled “sovereign” in almost all systems.” Wade in his Introduction to Dicey’s Law
\nof the Constitution, 10th edition says as follows at page 36 “Federal government is a
\nsystem of government which embodies a division of powers between a central and a
\nnumber of regional authorities. Each of these “in its own sphere is co-ordinate with the
\nothers and independent of them.” This involves a division of plenary powers and such a
\ndivision is a negation of sovereignty. Yet somewhere lies the power to change this
\ndivision. Wherever that power rests, there is to be found legal sovereignty.” Having
\nregard to this view of the jurists, it was not surprising that in Sankari Prasad’s case
\nPatanjali Shastri, J., speaking for the court, described the power to amend under Article
\n368 as “soverign constitutent power” (p. 106). By describing the power as “sovereign”
\nconstituent power it is not the intention here to declare, if somebody is allergic to the
\nidea, that legal sovereignty lies in this body or that. It is not necessary to do so for our
\nimmediate purpose. The word ‘sovereign’ is used as a convenient qualitative description
\nof the power to highlight its superiority over other powers conferred under the
\nConstitution. For example, legislative power is subject to the Constitution but the power
\nto amend is not. Legislative activity can operate only under the Constitution but the
\npower of amendment operates over the Constitution. The word ‘sovereign’, therefore,
\nmay, for our purpose, simply stand as a description of a power which is superior to every
\none of the other powers granted to its instrumentalities by the Constitution.
\n1283. The amplitude and effectiveness of the constituent power is not impaired because it
\nis exercised by this or that representative body or by the people in a referendum. One
\ncannot say that the power is less when exercised by the ordinary legislature as required
\nby the Constitution or more when it is exercised-say by a special convention. This point
\nis relevant because it was contended that our Parliament is a constituted body-“a creature
\nof the Constitution” and cannot exercise the power of amending the Constitution to the
\nsame extent that a constituent assembly specially convened for the purpose may do. It
\nwas urged that the sovereignty still continues with the people and while it is open to the
\npeople through a convention or a constituent assembly to make any amendments to the
\nConstitution in any manner it liked, there were limitations on the power of an ordinary
\nParliament-‘a constituted body’, which precluded it from making the amendments which
\ndamaged or destroyed the essential features and elements of the Constitution. We shall
\ndeal with the latter argument in its proper place. But for the present we are concerned to
\nsee whether the power to amend becomes more or less in content according to the nature
\nof the body which makes the amendment. In my view it does not. Because as explained
\nby Strong in the passage already quoted “In short it (i.e. the constituent assembly which
\nframed the Constitution) attempts to arrange for the recreation of a constituent assembly
\nwhenever such matters are in future to be considered even though that assembly be
\nnothing more than the ordinary legislature acting under certain restrictions.” Only the
\nmethods of making amendments are less rigid or more rigid according to the historical or
\npolitical background of the country for which the Constitution is framed. For example
\nArticle V of the American Constitution divides the procedure for formal amendment into
\ntwo parts-proposal and ratification. Amendments may be proposed in two ways; (1) by
\ntwo-thirds vote of both Houses of Congress; (2) by national Constitutional conventions
\ncalled by Congress upon application of two-thirds of the State Legislatures. Amendments
\nmay be ratified by two methods, (1) by the legislatures of three-fourths of the States; (2)
\nby special conventions in three-fourths of the States. Congress has the sole power to
\ndetermine which method of ratification is to be used. It may direct that the ratification
\nmay be by the state legislatures or by special conventions.\n<\/p>\n
1284. One thing which stands out so far as Article V is concerned is that referendum as a
\nprocess of Constitutional amendment has been wholly excluded. In fact it was held by the
\nSupreme Court of America in Dodge v. Woolsey (1855) 18 How 331 at 348 “the
\nConstitution is supreme over the people of the United States, aggregately and in their
\nseparate sovereignties, because they have excluded themselves from any direct or
\nimmediate agency in making amendments to it, and have directed that amendments
\nshould be made representatively for them.” In other words, the people, having entrusted
\nthe power to amend the Constitution to the bodies mentioned in Article V, had
\ncompletely withdrawn themselves from the amending process. Out of the two
\ncombinations of the bodies referred to in Article V-one is a combination of the Congress
\nand the State Legislatures and between them, though they are constituted bodies, they can
\nqualitatively amend the Constitution to the same extent as if the proposal made by the
\nCongress was to be ratified by convention by 3\/4th number of States. As a matter of fact
\non the proposal made by the Congress all the amendments of the U.S. Constitution, with
\nthe exception of the twenty first which repealed the 18th amendment, have been ratified
\nby State legislatures. Such an amendment accomplished by the participation of the
\nCongress and the State Legislatures has not been held by the U.S. Supreme Court as
\nbeing any less effective because the Congress had not obtained the ratification from a
\nconvention of the States. The question arose in United States v. Sprague. 282 U.S. 716
\nThat case was on the 28th (Prohibition) Amendment. The amendment became part of the
\nConstitution on a proposal by the Congress and ratification by the State legislatures.
\nObjection was raised to the validity of the amendment on the ground that since the
\namendment affected the personal liberty of the subject and under Article X the people
\nhad still retained rights which had not been surrendered to the Federal Constitution, the
\nratification ought to have been by the representatives of the people at a special
\nconvention and not by the State legislatures. That objection was rejected on the ground
\nthat the Congress alone had the choice as to whether the State legislatures or the
\nconventions had to ratify the amendment. Conversely, in Hawke v, Smith 253 U.S. 221
\nwhich also related to the 18th amendment it was held that the State of Ohio could not
\nprovide for the ratification of the 18th amendment by popular referendum since such a
\nprocedure altered the plain language of Article V which provides for ratification by State
\nlegislatures rather than by direct action of the people. It will be seen from this case that
\nthe State legislature for Ohio, instead of deciding on the ratification itself as it was bound
\nto do under Article V, decided to obtain the opinion of the people by a referendum but
\nsuch a procedure was held to be illegal because it did not find a place in Article V. This
\nestablishes that an amendment of the Constitution must be made strictly in accordance
\nwith the method laid down in the Constitution and any departure from it even for the
\npurpose of ascertaining the true wishes of the people on the question would be
\ninadmissible. An amendment of the Constitution must be made only in accordance with
\nthe procedure laid down in the Constitution and whatever individuals and bodies may
\nthink that it had better be made by a representative constituent assembly or a convention
\nor the like is of really no relevance.\n<\/p>\n
1285. Under Article 368 the Parliament is the Principal body for amending the
\nConstitution except in cases referred to in the proviso. Parliament need not be associated
\nwith the State legislatures in making an amendment of the Constitution in cases excepted
\nfrom the proviso. It cannot be lost sight of that Parliament in a very large way represents
\nthe will of the people. Parliament consists of two Houses-the Lok Sabha and the Rajya
\nSabha. The Lok Sabha is elected for five years on the basis of adult franchise. The Rajya
\nSabha is a permanent body-members of which retire by rotation. The Rajya Sabha
\nconsists of members elected by the State legislatures who are themselves elected to those
\nlegislatures on the basis of adult franchise. Then again there is a striking difference
\nbetween the position occupied by the Congress in relation to the President in United
\nStates and the position of the Executive in relation to the Parliament and the State
\nlegislatures in India. In America the President is directly elected by the people for a term
\nand is the Executive head of the Federal Government. The Congress may make laws but
\nthe President is not responsible to the Congress. In India, however, in our Parliamentary
\nsystem of democracy, as in Great Britain, the Executive is entirely responsible to the
\nlegislature. The Congress in U.S.A. will not be held responsible by the people for what
\nthe President had done in his Executive capacity. The same is true in respect of State
\nlegislatures in America. In India people will hold the Parliament responsible for any
\nexecutive action taken by the Cabinet. While in the context of a Constitutional
\namendment it is facile to decry the position of Parliament as a constituent body, we
\ncannot ignore the fact that in both Great Britain and New-Zealand-one with an unwritten
\nConstitution and the other with a written Constitution-governed by Parliamentary
\ndemocracy, the Constitution could be changed by an ordinary majority.
\n1286. Why the power to amend the Constitution was given in the main to Parliament is
\nnot fully clear. But two things are clear. One is that as in America the people who gave us
\nthe Constitution completely withdrew themselves from the process of amendment.
\nSecondly, we have the word of Dr. Ambedkar-one of the principal framers of our
\nConstitution that the alternative methods of referendum or convention had been
\nconsidered and definitely rejected. See Constituent Assembly Debates, Vol. VII page 43.
\nThey decided to give the power to Parliament, and Dr. Ambedkar has gone on record as
\nsaying that the amendment of the Constitution was deliberately made as easy as was
\nreasonably possible by prescribing the method of Article 368. The Constituent Assembly
\nDebates show that the chief controversy was as to the degree of flexibility which should
\nbe introduced into the Constitution. There may have been several historical reasons for
\nthe constituent assembly’s preference for Parliament. Our country is a vast continent with
\na very large population. The level of literacy is low and the people are divided by
\nlanguage, castes and communities not all pulling in the same direction. On account of
\nwide-spread illiteracy, the capacity to understand political issues and to rise above local
\nand parochial interests is limited. A national perspective had yet to be assiduously
\nfostered. It was, therefore, inevitable that a body which represented All-India leadership
\nat the centre should be the choice. Whatever the reasons, the Constituent Assembly
\nentrusted the power of amendment to the Parliament and whatever others may think
\nabout a possible better way, that was not the way which the constituent assembly
\ncommanded. The people themselves having withdrawn from the process of amendment
\nand entrusted the task to the Parliament instead of to any other representative body, it is
\nobvious that the power of the authorities designated by the Constitution for amending the
\nConstitution must be co-extensive with the power of a convention or a constituent
\nassembly, had that course been permitted by the Constitution.
\n1287. We have already shown that constituent power is qualitatively superior to
\nlegislative power. Speaking about the legislative competence of the Canadian Parliament,
\nViscount Sankey L.C. speaking for the Judicial Committee of the Privy Council observed
\nin British Coal Corporation v. The King [1935] A.C. 500 at p. 518 “Indeed, in
\ninterpreting a constituent or organic statute such as the Act (British North America Act)
\nthat construction most beneficial to the widest possible amplitude of its powers must be
\nadopted. This principle has been again clearly laid down by the Judicial Committee in
\nEdwards v. Attorney-General for Canada [1930] A.C. 124, 136. “Their Lordships do not
\nconceive it to be the duty of this Board – it is certainly not their desire – to cut down the
\nprovisions of the Act by a narrow and technical construction, but rather to give it a large
\nand liberal interpretation so that the Dominion to a great extent, but within certain fixed
\nlimits, may be mistress in her own house, as the Provinces to a great extent, but within
\ncertain fixed limits, are mistresses in theirs”. If that is the measure of legislative power
\nthe amplitude of the power to amend a Constitution cannot be less.
\n1288. The width of the amending power can be determined from still another point of
\nview. The Attorney-General has given to us extracts from nearly seventy one modem
\nConstitutions of the world and more than fifty of them show that those Constitutions have
\nprovided for their amendment. They have used the word ‘amend’, ‘revise’, or ‘alter’, as the
\ncase may be, and some of them have also used other variations of those words by
\nshowing that the Constitutional provisions may be changed in accordance with some
\nspecial procedures laid down. Some have made the whole of the Constitution amendable
\nsome others have made some provisions unamendable; and two Constitutions – that of
\nSomalia and West Germany have made provisions relating to Human Rights
\nunamendable. In some of the Constitutions a few provisions are made partially
\namendable and other provisions only under special restrictions. But all have given what is
\ncommonly known as the ‘Amending power’ to be exercised in circumstances of more or
\nless rigidity. The methods or processes may be more rigid or less rigid-but the power is
\nthe same, namely, the amending power.\n<\/p>\n
1289. The raison d’etre for making provisions for the amendment of the Constitution is
\nthe need for orderly change. Indeed no Constitution is safe against violent extra-
\nConstitutional upheavals. But the object of making such a provision in a Constitution is
\nto discourage such upheavals and provide for orderly change in accordance with the
\nConstitution. On this all the text-books and authorities are unanimous. Those who frame
\na Constitution naturally want it to endure but, however gifted they may be, they may not
\nbe able to project into the future, when, owing to internal or external pressures or the
\nsocial, economic and political changes in the country, alterations would be necessary in
\nthe Constitutional instrument responding all the time to the will of the people in changed
\nconditions. Only thus an orderly change is ensured. If such a change of Constitution is
\nnot made possible, there is great danger of the Constitution being overtaken by forces
\nwhich could not be controlled by the instruments of power created under the Constitution.
\nWide-spread popular revolt directed against the extreme rigidity of a Constitution is
\ntriggered not by minor issues but by major issues. People revolt not because the so-called
\n‘unessential’ parts of a Constitution are not changed but because the ‘essential’ parts are
\nnot changed. The essential parts are regarded as a stumbling block in their progress to
\nreform. It is, therefore, evident that if for any reason, whether it is the extreme rigidity of
\na Constitution or the disinclination of those who are in power to introduce change by
\namendment, the essential parts looked upon with distrust by the people are not amended,
\nthe Constitution has hardly a chance to survive against the will of the people. If the
\nConstitution is to endure it must necessarily respond to the will of the people by
\nincorporating changes sought by the people. The survival of the American Constitution is
\ngenerally attributed not so much to the amending Article V of the Constitution but to its
\nvagueness which was exploited by the great judges of the Supreme Court of America
\nwho by their rulings adapted the Constitution to the changing conditions. Legislative
\nenactments, custom and usage also played a part. If the Constitution were to merely
\ndepend upon Constitutional amendments there are many who believe that the
\nConstitution would not have survived. The reason was the extreme rigidity of the process
\nof amendment. But framers of modern Constitutions as of India learning from experience
\nof other countries have endeavoured to make their Constitution as precise and as detailed
\nas possible so that one need not depend upon judicial interpretation to make it survive.
\nCorrespondingly they have made it more flexible so that it is amenable to amendment
\nwhenever a change in the Constitution is necessary.\n<\/p>\n
1290. A good deal of unnecessary dust was raised over the question whether the
\namendment of the Constitution would extend to the repeal of the Constitution. That is an
\ninteresting subject for speculation by purists and theoretical jurists, but politicians who
\nframe a Constitution for the practical purposes of government do not generally concern
\nthemselves with such speculations. The pre-eminent object in framing a Constitution is
\norderly government. Knowing that no Constitution, however, good it may seem to be
\nwhen it was framed, would be able to bear the strain of unforeseen developments, the
\nframers wisely provide for the alteration of the Constitution in the interest of orderly
\nchange. Between these two co-ordinates, namely, the need for orderly government and
\nthe demands for orderly change, both in accordance with the Constitution, the makers of
\nthe Constitution provide for its amendment to the widest possible limit. If any provision
\nrequires amendment by way of addition, alteration or repeal, the change would be
\nentirely permissible. If one were to ask the makers of the Constitution the rhetorical
\nquestion whether they contemplated the repeal of the Constitution, the answer would be,
\nin all probability, in the negative. They did not toil on the Constitution for years in order
\nthat it may be repealed by the agencies to whom the amendment of the Constitution is
\nentrusted. They wished it to be permanent, if not eternal, knowing that as time moved, it
\nmay continue in utility incorporating all required changes made in an orderly manner.
\nDeclaring their faith in the Constitution they will express their confidence that the
\nConstitution which they had framed with the knowledge of their own people and their
\nhistory would be able to weather all storms when it is exposed to orderly changes by the
\nprocess of amendment To them the whole-sale repeal would be unthinkable; but not
\nnecessary changes in response to the demands of time and circumstance which, in the
\nopinion of the then amending authorities, the current Constitutional instrument would be
\nable to absorb. This is sufficient for the courts to go on as it was sufficient for the framers
\nof the Constitution. Quibbling on the meaning of the word ‘amendment’ as to whether it
\nalso involved repeal of the whole Constitution is an irrelevant and unprofitable exercise.
\nLuckily for us besides the word ‘amendment’ in Article 368 we have also the
\nuncomplicated word ‘change’ in that article and thus the intention of the framers of the
\nConstitution is sufficiently known. Then again the expression ‘amendment of the
\nConstitution’ is not a coinage of the framers of our Constitution. That is an expression
\nwell-known in modern Constitutions and it is commonly accepted as standing for the
\nalteration, variation or change in its provisions.\n<\/p>\n
1291. Whichever way one looks at the amending power in a Constitution there can be
\nhardly any doubt that the exercise of that power must correspond with the amplitude of
\nthe power unless there are express or necessarily implied limitations on the exercise of
\nthat power. We shall deal with the question of express and implied limitations a little
\nlater. But having regard to the generality of the principle already discussed the meaning
\nof the word ‘amendment of the Constitution’ cannot be less than ‘amendment by way of
\naddition, variation or repeal of any provision of the Constitution” which is the
\nclarification of that expression accepted by the Constitutional 24th Amendment.
\n1292. We shall now see if there are express or implied limitations in Article 368 itself.
\nArticle 368 is found in Part XX of the Constitution which deals with only one subject,
\nnamely, the Amendment of the Constitution. The article provides that when the special
\nprocedure directed by it is successfully followed the Constitution stands amended in
\nterms of the proposal for amendment made in the Bill. Whatever provision of the
\nConstitution may be sought to be amended, the amendment is an Amendment of the
\nConstitution. The range is the whole of this Constitution which means all the provisions
\nof the Constitution. No part of the Constitution is expressly excepted from amendment.
\nPart XX and Article 368 stand in supreme isolation, after the permanent provisions of the
\nConstitution are exhausted in the previous XIX parts. The power to amend is not made
\nexpressly subject to any other provision of the Constitution. There are no governing
\nwords like “subject to the Constitution” or this or that part of the Constitution. If the
\nframers of the Constitution had thought it necessary to exclude any part or provision of
\nthe Constitution from amendment, they would have done so in this part only as was done
\nin the American Constitution. Article V of that Constitution, which was undoubtedly
\nconsulted before drafting Article 368, made two specific exceptions. The language
\nstructure of Article V has a close resemblance to the language structure of our Article\n<\/p>\n
368. Therefore, if any part of the Constitution was intended to be excluded from the
\noperation of the power to amend it would have normally found a place in or below
\nArticle 368. As a matter of fact, in the draft Constitution below Article 304, which
\ncorresponds to the present Article 368, there was Article 305 which excluded certain
\nprovisions from amendment, but later on Article 305 itself was deleted. Even Article 368
\nitself was not safe from amendment because the proviso to Article 368 shows that the
\nprovisions of the article could be changed. Then again we find that when the people
\nthrough the constituent assembly granted the power to amend, they made no reservations
\nin favour of the people. The people completely withdrew from the process of amendment.
\nIn other words, the grant of power was without reservation. Another thing which is to be
\nnoted is that when the Constituent Assembly directed that amendments of the
\nConstitution must be made by a prescribed method, they necessarily excluded every other
\nmethod of amending the Constitution. As long as the article stood in its present form the
\nParliament could not possibly introduce its own procedure to amend the Constitution by
\ncalling a constituent assembly, a convention or the like. Altogether, it will be seen that
\nthe grant of power under Article 368 is plenary, unqualified and without any limitations,
\nexcept as to the special procedure to be followed.\n<\/p>\n
1293. The character of an amendment which can be made in a Constitution does not
\ndepend on the flexibility or rigidity of a Constitution. Once the rigidity of the restrictive
\nprocedure is overcome, the Constitution can be amended to the same degree as a flexible
\nConstitution. So far as a flexible Constitution like that of Great Britain is concerned, we
\nknow there are no limits to what the Parliament can do by way of amendment. It can, as
\npointed out by Dicey, repeal the Act of Union of Scotland by appropriate provisions even
\nin a Dentist’s Act. (Law of the Constitution page 145). We know that by the statute of
\nWestminster the British Parliament removed most of the Imperial fetters from the self
\ngoverning colonies and by the Independence of India Act, 1947 surrendered its Indian
\nEmpire. Recently the British Parliament invited inroads on its sovereignty by joining the
\nCommon Market. Similarly, as we have seen in McCawley’s case, referred to earlier, the
\nlegislature of queensland, whose Constitution was a flexible Constitution, was held
\ncompetent to amend its Constitutional provisions with regard to the tenure of office of the
\nJudges of the Supreme Court by a subsequent Act passed in 1916 on the subject of
\nIndustrial Arbitration. To the objection that so important a provision of the Constitution
\nwas not permissible to be amended indirectly by a law which dealt with Industrial
\narbitration, Lord Birkenhead made the reply at page 713. “Still less is the Board prepared
\nto assent to the argument, at one time pressed upon it, that distinctions may be drawn
\nbetween different matters dealt with by the Act, so that it becomes legitimate to say of
\none section: “This section is fundamental or organic; it can only be altered in such and
\nsuch a manner”; and of another: “This section is not of such a kind; it may consequently
\nbe altered with as little ceremony as any other statutory provision.” Their Lordships
\ntherefore fully concur in the reasonableness of the observations made by Isaacs and Rich
\nJJ that, in the absence of any indication to the contrary, no such character can be
\nattributed to one section of the Act which is not conceded to all; and that if Sections 15
\nand 16 (relating to the tenure of office of the Judges) are to be construed as the
\nrespondents desire, the same character must be conceded to Section 56, which provides
\nthat in proceedings for printing any extract from a paper it may be shown that such
\nextract was bona fide made”. This only emphasizes that all provisions in a Constitution
\nmust be conceded the same character and it is not possible to say that one is more
\nimportant and the other less important. When a legislature has the necessary power to
\namend, it can amend an important Constitutional provision as unceremoniously as it can
\namend an unimportant provision of the Constitution. Dicey observes in his Law of the
\nConstitution, 10th edition p. 127: “The “flexibility” of our Constitution in the right of the
\nCrown and the two Houses to modify or repeal any law whatever; they can alter the
\nsuccession to the Crown or repeal the Acts of Union in the same manner in which they
\ncan pass an Act enabling a company to make a new railway from Oxford to London.
\n1294. As already pointed out what distinguishes a ‘rigid’ Constitution from a ‘flexible’
\nConstitution is that it requries a special procedure for its amendment. It cannot be legally
\nchanged with the same case and in the same manner as ordinary laws. But if the rigid
\nprocedure is successfully followed, the power to amend operates equally on all provisions
\nof the Constitution without distincition. Indeed, rigid Constitutions may safeguard certain
\nprovisions from amendment even by the special procedure. But where no such provision
\nis protected the power of amendment is as wide as that of a Parliament with a flexible
\nConstitution. Rigidity of procedure in the matter of amendment is the only point of
\nprimary distinction between a ‘rigid’ and ‘flexible’ Constitution and when this rigidity is
\novercome by following the special procedure, the power of amendment is not inhibited
\nby the fact that a Constitutional provisions is either important or unimportant. The
\namending power operates on all provisions as effectively as it does in a flexible
\nConstitution. If the nature of the provision is so important that the Constitution itself
\nprovides against its amendment the amending power will have to inspect the provision.
\nBut if it is not so protected, every provision, important or otherwise, can be amended by
\nthe special procedure provided. In that respect the fact that the Constitution is a ‘rigid’
\nConstitution does not place any additional restraint.\n<\/p>\n
1295. We have already referred to the principle underlying the Amending provision in a
\nwritten Constitution. In some Constitutions, the special procedure is very ‘rigid’ as in the
\nAmerican Constitution. In others, especially in more modern Constitutions, having regard
\nto the disadvantages of providing too rigid and restrictive procedures, amending
\nprocedures have been made more and more flexible. Our Constitution which learnt from
\nthe experience of other similar Constitutions made the amending procedure as flexible as
\nwas reasonably possible. There are several articles in the Constitution which permit the
\nParliament to make laws which are of a Constitutional character. There are some other
\narticles which permit amendments to certain other specified provisions of the
\nConstitution by the ordinary legislative procedure. For the rest there is Article 368 which
\nprovides a much more flexible procedure than does the American Constitution. The
\nfollowing passages from the book ‘Political Science and Comparative Constitutional Law,
\nVol. I’ written by the great jurist John W. Burgess will show both the rationale for
\nincluding an amendment clause in a Constitution and the need of making the amending
\nprocedure as less rigid as possible. At page 137 he says “A complete Constitution may be
\nsaid to consist of three fundamental parts. The first is the organisation of the state for the
\naccomplishment of future changes in the Constitution. This is usually called the
\namending clause, and the power which it describes and regulates is called the amending
\npower. This is the most important part of a Constitution. Upon its existence and
\ntruthfulness, i.e. its correspondence with real and natural conditions, depends the question
\nas to whether the state shall develop with peaceable continuity or shall suffer alterations
\nof stagnation, retrogression and revolution. A Constitution, which may be imperfect and
\nerroneous is its other parts, can be easily supplemented and corrected, if only the state be
\ntruthfully organised in the Constitution; but if this be not accomplished, error will
\naccumulate until nothing short of revolution can save the life of the state”. Than at pages
\n150\/151 commenting on the disadvantages of the amending procedure of the American
\nConstitution he remarks “When I reflect that, while our natural conditions and relations
\nhave been requiring a gradual strengthening and extension of the powers of the Central
\nGovernment, not a single step has been taken in this direction through the process of
\namendment prescribed in that article, except as the result of civil war, I am bound to
\nconclude that the organization of the sovereign power within the Constitution has failed
\nto accomplish the purpose for which it was constructed…. But I do say this that when a
\nstate must have recourse to war to solve the internal questions of its own politics, this is
\nindisputable evidence that the law of its organization within the Constitution is imperfect;
\nand when a state cannot so modify and amend its Constitution from time to time as to
\nexpress itself truthfully therein, but must writhe under the bonds of its Constitution until
\nit perishes or breaks them asunder, this is again indisputable evidence that the law of its
\norganization within the Constitution is imperfect and false. To my mind the error lies in
\nthe artificially excessive majorities required in the production of Constitutional changes.”
\nThese passages express the deep anguish of the jurist and his disappointment with the
\ncurrent process of amendment prescribed in the U.S. Constitution. He gives the amending
\nprovision supreme importance in the Constitution and wants it to be very much less rigid
\nthan what it is, so that the Constitution can correspond with the truth of contemporary,
\nsocial and political changes. The whole object of providing for amendment is to make the
\nConstitution as responsive to contemporary conditions as possible because, if it is not the
\ndanger of popular revolt, civil war or even revolution in a rapidly changing world may
\nsoon overtake the people. That being the political philosophy behind the amending
\nprovision it is obvious that the provision must serve the same purpose as in a
\nParliamentary democracy with a flexible Constitution. The latter can adjust itself more
\nreadily with changing conditions and thus discourage violent revolts. If the object of a
\nConstitution is the same, namely, orderly government and orderly change in accordance
\nwith the law, it must be conceded that all Constitutions whether flexible or rigid must
\nhave the power to amend the Constitution to the same degree; and if flexible
\nConstitutions have the power to make necessary changes in their most cherished
\nConstitutional principles, this power cannot be denied to a Constitution merely because it
\nis a rigid Constitution. The amending power in such a Constitution may therefore, reach
\nall provisions whether important or unimportant, essential or unessential.
\n1296. The above proposition is supported by several decisions of the Supreme Court of
\nAmerica and the Supreme Courts of the American States, the Constitutions of which are
\nall ‘rigid’. In Edwards v. Lesueur South Western Reporter Vol. 33, 1130 it was held that if
\na State Constitution provides that General Assembly may at any time propose such
\namendments to that instrument as a majority of the members elected to each house deem
\nexpedient the substance and extent of amendment are left entirely to the discretion of the
\nGeneral Assembly. In Livermore v. Waite 102 Cal. 118 only one of the judges, Judge
\nHarrison, held the view that the word ‘amendment’ in the State Constitution implied such
\nan addition or change within the lines of the original instrument as will effect an
\nimprovement or better carrying out of the purpose for which it was framed. But that view
\nis not shared by others. In the State Constitution of California the word ‘amendment’ was
\nused in addition to the word ‘revision’ and that may have influenced the judge to give the
\nword ‘amendment’ a special meaning. The actual decision was dissented from in Edwards
\nv. Lesueur referred to above, decided about 10 years later, and the opinion of Judge
\nHarrison with regard to the meaning of the word ‘amendment’ was dissented from in Ex-
\nparte Dillon. 262 Federal Reporter 563 decided in 1920 This case went to the Supreme
\nCourt of America in Dillon v. Gloss 65 Law edn. 994 and the decision was affirmed. The
\nchallenge was to the Prohibition Amendment (18th) and the court observed at p. 996 “An
\nexamination of Article V discloses that it is intended to invest Congress with a wide
\nrange of power in proposing amendments. Passing a provision long since expired (that
\nprovision expired in 1808) it subjects this power to only two restrictions: one that the
\nproposal shall have the approval of two thirds of both Houses, and the other excluding
\nany amendment which will deprive any state, without its consent, of its equal suffrage in
\nthe Senate. A further mode of proposal-as yet never invoked-is provided, which is, that
\non application of the two thirds of the states Congress shall call a convention for the
\npurpose. When proposed in either mode, amendments, to be effective, must be ratified by
\nthe legislatures, or by conventions, in three fourths of the states, “as the one or the other
\nmode of ratification may be proposed by the Congress.” Thus the people of the United
\nStates, by whom the Constitution was ordained and established, have made it a condition
\nto amending that instrument that the amendment be submitted to representative
\nassemblies in the several states and be ratified in three fourths of them. The plain
\nmeaning of this is (1) that all amendments must have the sanction of the people of the
\nUnited States, the original fountain of power, acting through representative assemblies,
\nand (b) that ratification by these assemblies in three fourths of the states shall be taken as
\na decisive expression of the people’s will and be binding on all”. The above passage is
\nimportant from two points of view. One is that Article V subjects the amending power to
\nno restrictions except the two expressly referred to in the article itself, and the second
\npoint which is relevant for our purpose is that the people’s ratification may be obtained in
\none of two ways, namely, by the State legislatures or by State conventions. It was for the
\nCongress to choose between these two ways of ratification. But whichever method was
\nchosen, the ratification whether by the State legislatures or by special conventions, was
\nthe ratification on behalf of the people because they were representative assemblies who
\ncould give a decisive expression of the people’s will. As a matter of fact although several
\namendments have been made to the Constitution under Article V there has been only one,
\nnamely, the 21st Amendment which had been referred to state conventions. All other
\namendments were proposed by the Congress and ratified by the State legislatures-the
\nratification being regarded as by people’s representatives who could decisively express
\nthe people’s will. If the State legislatures in America which have no responsibility for the
\nexecutive government of the State are deemed to reflect the will of the people there is
\ngreater reason to hold that our Parliament and State legislatures are no less representative
\nof the will of the people when they participate in the process of amendment of the
\nConstitution.\n<\/p>\n
1297. But reverting to the consideration of the character of “an amendment of the
\nConstitution”, we find from decided American cases that there are no limits except those
\nexpressly laid down by the Constitution. In Ex-parte Mrs. D.C. Kerby 103 Or. 612
\ndecided by the Oregon Supreme Court in 1922 which concerned an amendment restoring
\nthe death penalty which had been abolished by a previous amendment to the Bill of
\nRights of the State Constitution, the following observations in State v. Cox 8 Ark. 436
\nwere quoted with approval. “The Constitution, in prescribing the mode of amending that
\ninstrument, does not limit the power conferred to any particular portion of it, and except
\nother provisions by declaring them not to be amendable. The general assembly, in
\namending the Constitution, does not act in the exercise of its ordinary legislative
\nauthority of its general powers; but it possesses and acts in the character and capacity of a
\nconvention, and is, quoad hoc, a convention expressing the supreme will of the sovereign
\npeople and is unlimited in its powers save by the Constitution of the United States.
\nTherefore, every change in the fundamental law, demanded by the public will for the
\npublic good, may be made, subject to the limitation above named.
\n1298. In Downs v. City of Birmingham 198 Southern Reporter, 231 the Supreme Court
\nof Alabama held that an amendment to state Constitution may extend to a change in form
\nof the state’s government, which may be in any respect except that the government must
\ncontinue to be a republican form of government as required by the U.S. federal
\nConstitution, which was inviolable, and that rights acquired under the Constitution are
\nsubject to Constitutional provisions permitting amendments to the Constitution, and no
\nright can be acquired under the State consitution which cannot be abridged by an
\namendment of the Constitution and such a rule extends to contract and property rights.
\n1299. In Schneiderman v. United States of America 87 Law. ed. 1796 which was a
\ndenaturalization case on the ground of non-allegiance to the “principles” of the American
\nConstitution, Murphy J. delivering the opinion of the court said, pp. 1808-1809: “The
\nConstitutional fathers, fresh from a revolution, did not forge a political strait-jacket for
\nthe generations to come. Instead they wrote Article V and the First Amendment,
\nguaranteeing freedom of thought, soon followed. Article V contains procedural
\nprovisions for Constitutional change by amendment without any present limitation
\nwhatsoever except that no State may be deprived of equal representation in the Senate
\nwithout its consent. Cf. National Prohibition Cases (Rhode Island v. Palmer) 65 Law. ed.\n<\/p>\n
946. This provision and the many important and far-reaching changes made in the
\nConstitution since 1787 refute the idea that attachment to any particular provision or
\nprovisions is essential, or that one who advocates radical changes is necessarily not
\nattached to the Constitution.\n<\/p>\n
1300. In Ullmann v. United States 100 Law. ed. 511 Frankfurter, J. delivering the opinion
\nof the Supreme Court on the privilege against self-incrimination (Vth amendment) which,
\nby the way, is recognized by our Constitution as a fundamental right, quoted with
\napproval Chief Judge Macgruder who said “if it be thought that the privilege is out-
\nmoded in the conditions of this modern age then the thing to do is to take it out of the
\nConstitution, not to whittle it down by the subtle encroachments of judicial opinion.
\n1301. Recently in Whitehill v. Elkins, 19 Law. ed. 2d. 228 Douglas, J. delivering the
\nopinion of the court, observed at p. 231 “If the Federal Constitution is our guide, a person
\nwho might wish to “alter” our form of Government may not be cast into the outer
\ndarkness. For the Constitution prescribes the method of “alteration” by the amending
\nprocess in Article V; and while the procedure for amending it is restricted, there is no
\nrestraint on the kind of amendment that may be offered.\n<\/p>\n
1302. It is unnecessary to multiply cases to appreciate the width of the amending power
\nin a ‘rigid’ Constitution. Even the dictionaries bring out the same sense. The word ‘amend’
\nmay have different nuances of meaning in different contexts, like “amend once conduct”,
\n“amend a letter or a document”, “amend a pleading”, “amend a law” or “amend a
\nConstitution”. We are concerned with the last one, namely, what an amendment means in
\nthe context of a Constitution which contains an amending clause. In the Oxford English
\nDictionary, Vol. I the word ‘amend’ is stated to mean “To make professed improvements
\nin (a measure before Parliament); formally, to alter in detail, though practically it may be
\nto alter its principle so as to thwart it.\n<\/p>\n
1303. Sutherland in his Statutes and Statutory Construction, third edition, Vol. I, p. 325
\nhas explained an “amendatory act”, as any change of the scope or effect of an existing
\nstatute, whether by addition, omission, or substitution of provisions, which does not
\nwholly terminate its existence, whether by an act purporting to amend, repeal, revise, or
\nsupplement, or by an act independent and original in form.\n<\/p>\n
1304. In Words and Phrases, Permanent edition Vol. 3, p. 447 it is generally stated that
\nthe word ‘amendment’ involves an alteration or change, as by addition, taking away or
\nmodification. It is further explained that the words ‘amend’, ‘alter’, and ‘modify’ are in
\ngeneral use and their meaning is not uncertain. Each means to change. A broad definition
\nof the word ‘amendment’ would include any alteration or change. Further on (458) it is
\nexplained in the context of a Constitution that an ‘amendment’ of a Constitution, repeals
\nor changes some provision in, or adds something to, the instrument amended. Then citing
\nDowns v. City of Birmingham, already referred to, it is stated that every proposal which
\neffects a change in a Constitution or adds to or takes away from it is an ‘amendment’, and
\nthe proposal need not be germane to any other feature of the Constitution, nor to the
\nfeature which is amended.\n<\/p>\n
1305. Similarly citing State v. Fulton 124 N.E. 172 it is explained that the word
\n‘amendment’, when used in connection with the Constitution, may refer to the addition of
\na provision on a new and independent subject, complete in itself and wholly disconnected
\nfrom other provisions, or to some particular article, or section, and is then used to indicate
\nan addition to, the striking out, or some change in that particular section.
\n1306. In Standard Dictionary of Funk and Wagnalls ‘amendment’ is defined as an act of
\nchanging a fundamental law as of a political Constitution or any change made in it
\naccording to a prescribed mode of procedure; as to alter the law by amendment, an
\namendment of the Constitution.\n<\/p>\n
1307. In a Dictionary of the Social Sciences edited by Julius Gould and William L. Kolb
\ncompiled under the auspices of the Unesco p. 23, the word ‘amendment’ has been
\nexplained. “The term ‘amendment’, whenever used, has the core denotation of alteration
\nor change. Historically the change or alteration denoted was for the sake of correction or
\nimprovement. In the realities and controversies of politics, however, the nature of
\ncorrection or improvement becomes uncertain, so that alteration or change remains the
\nonly indisputable meaning as the term is applied. Probably the most fundamental type of
\nformal amendment is that which is constituted by the alteration of the formal language of
\nwritten Constitutions. The importance of the amending procedure in a time of serious
\nsocial change has been stated by C.J. Friedrich. ‘A well drawn Constitution will provide
\nfor its own amendment in such a way as to forestall as far as is humanly possible
\nrevolutionary upheavals. That being the case the provisions for amendment form a ‘vital
\npart of most modern Constitutions.’ (Constitutional Government and Democracy-Boston
\n1941 p. 135).” It will be thus seen that having regard to the object of providing an
\namendment clause in a modern Constitution, amendment must stand for alteration and
\nchange in its provisions.\n<\/p>\n
1308. That this was intended is clear from the wording of Article 368. The main part of
\nthe Article speaks only of “an amendment of this Constitution.” It shows how a proposal
\nfor amendment becomes part of the Constitution. The language structure of Article 368
\nrecalls the language structure of Article V of the American Constitution. There also the
\nwords used are “amendment of this Constitution”, and nothingmore. No such
\nsupplementary words like “by addition, alteration or repeal” are used. Yet we have seen
\nthat so far as Article V is concerned an amendment under Article V involves alteration
\nand change in the Constitution. Article 368 has a proviso which begins with these words
\n“provided that if such amendment seeks to make any change in-(a) Article 54, Article 55,
\nArticle 73, Article 162 or Article 241, or (b) Chapter IV of Part V, Chapter V of Part VI,
\nor Chapter I of Part XI, or (c) any of the Lists in the Seventh Schedule, or (d) the
\nrepresentation of States in Parliament, or\n<\/p>\n
(e) the provisions of this article, the amendment shall also require to be ratified by the
\nlegislatures etc. etc.” The proviso, therefore, clearly implies that an amendment under
\nArticle 368 seeks to make a change in the provisions of the Constitution. If the
\namendment seeks to make a change in the provisions referred to in Sub-clause (a) to (e)
\nthen only the amendment which makes such a change in these provisions requires
\nratification by the State legislatures. Otherwise, the amendment making a change in other
\nprovisions does not require ratification. We have already observed that the, meaning of
\nthe word ‘change’ is uncomplicated and can be easily felt and understood. The noun
\n‘change’ according to the Shorter Oxford English Dictionary means “substitution or
\nsuccession of one thing in place of another; substitution of other conditions; variety.” It
\nalso means “alteration in the state or quality of anything; variation, mutation.” There can
\nbe no doubt, therefore, that, having regard to the importance of the amending clause in
\nour Constitution, an amendment contemplates changes in the provisions of the
\nConstitution which are capable of being effected by adding, altering or repealing them, as
\nfound necessary, from time to time. As a matter of fact it is impossible to conceive of
\neven the simplest form of amendment without adding, altering or repealing. If you add
\nsome words to a provision of the Constitution you thereby alter the provision. If you
\nsubstitute a few words, you alter and repeal. Mr. Palkhivala admitted that he had no
\nobjection whatsoever to an amendment improving the Constitution so that it can serve the
\npeople better. He said that it was open to the Parliament to improve the content of the
\nConstitution by making necessary changes. All that would necessarily imply amendment
\nby way of addition, variation or repeal of a provision of the Constitution which is just
\nwhat the 24th amendment seeks to do. As a matter of fact any amendment to the
\nConstitution which the representatives of the people want to make is professedly an
\nimprovement. No proposer of an amendment of a Constitution, whatever his opponents
\nmay say to the contrary, will ever agree that his proposal is retrogressive. Therefore,
\nimprovement or non-improvement cannot be the true test of an amendment. Alteration
\nand change in the provisions is the only simple meaning, which the people for whom the
\nConstitution is made, will understand.\n<\/p>\n
1309. Having seen the importance of the amending clause in a Constitution, the
\nphilosophy underlying it and the amplitude of its power, it will be improper to try to cut
\ndown the meaning of the word ‘amendment’ in the expression ‘amendment of the
\nConstitution’ by comparing it with the same word used in other provisions of the
\nConstitution or other statutes in a different context. Not that such a comparison will in
\nany way serve the object with which it is made, but it will amount to comparing, in effect,
\ntwo words-one operating on a higher plane and the other on a lower. The word
\namendment in the expression “amendment of the Constitution” operates on a higher plane
\nand is substantially different in connotation from the same word used on a lower plane in
\nsome other provision of the Constitution or any other statute in an entirely different
\ncontext. To say that the word ‘amendment’ in ‘amendment of the Constitution’ is used in a
\nlow key because padding words like amendment “by way of addition, variation or repeal”
\nare used elsewhere in the Constitution would be to ignore the status of the word
\n‘amendment’ when used in the context of amending the Constitution. Indeed the
\nexpression “amendment by way of addition, variation or repeal” would also amount to
\n‘amendment’. But it is more appropriately used when some distinct provisions of a statute
\nare under consideration and even the extreme limit of a repeal of such provisions is
\ncontemplated. In the case of an amendment of the Constitution this extreme limit of the
\nrepeal of the Constitution is not, as already pointed out, ordinarily contemplated. In the
\npresent case the comparison was principally made with “amend by way of addition,
\nvariation or repeal in sub-paragraphs (1) of para 7 and 21 in the Fifth and Sixth Schedules
\nrespectively. In both these cases, Parliament is authorized from time to time, by law, to
\nmake the amendment in any of the provisions of the two schedules. The authority is not
\nonly to add to the provision or vary the provision but even repeal the provision. Having
\nprovided that way in sub-paragraph 1 the framers of the Constitution added sub-para (2)
\nin each case, but for which, what was done in accordance with sub-para (1) was likely to
\nbe misunderstood as an amendment of the Constitution as described in Article 368.
\nTextually the provisions in the Schedules would stand amended. But this amendment is
\ncarried out ‘by law’. On the other hand, if even a word in any provision of the
\nConstitution is changed in accordance with Article 368, it is not described as an
\namendment of the provision but an Amendment of the Constitution with all its wide
\nconnotations.\n<\/p>\n
1310. In Articles 4 and 169 (2) we have just the word ‘amendment’ for amending certain
\nprovisions of the Constitution by law, and both of them show in their context, without
\neven the use of the padding words, that such an amendment would be really by way of
\naddition, alteration and repeal. Then again such amendments are expressly taken out of
\nthe class of “amendment of the Constitution for the purposes of Article 368” but for
\nwhich they would have amounted textually to an amendment.\n<\/p>\n
1311. Reference was also made to the amendment made by the constituent assembly in
\nSection 291 of the Government of India Act, 1935 where similar padding words were
\nused along with the word ‘amend’. Here again it will be seen that the amendment was not
\nan amendment of the Constitution but an authorization of the Governor General to
\namend, by Order, certain provisions relating to the Provincial Legislatures which were
\nliable even to be repealed. No implications can be drawn with regard to the power under
\nArticle 368 by a reference to another statute where a particular phraseology is adopted in
\nits own context. On the other hand this may be contrasted with the wording of Section
\n308 (later repealed) which provided for ‘the amendment of the Act and the Orders in
\nCouncil’ on the proposals made by the Federal and State legislatures. The Act referred to
\nis the Government of India Act, 1935. No padding words are used in the section although
\nthe context shows that amendment would inevitably involve adding, altering or repealing
\ncertain provisions of the Government of India Act or Orders in Council.
\n1312. The structure of Article 368 is now changed by the 24th amendment and the
\nexpanded expression “amendment by way of addition, variation or repeal, any provision
\nof this Constitution” is adopted. The language structure of the original Article 368 was,
\nhowever, different and there was no reference to “the provisions” of the Constitution
\ntherein. The article commenced with the words “An amendment of this Constitution”
\nwithout reference to any provisions. Reference to “provisions of the Constitution” having
\nbeen eschewed, to pad the expression “amendment of the Constitution” by the words “by
\nway of addition, variation or repeal” would have been inappropriate; because such
\npadding was likely to give the impression that the intention was to amend by addition to
\nand, alteration and repeal of, the Constitution, considered as a whole. Neither the
\nalteration nor the repeal of the Constitution, as a whole, could have been intended and
\nhence the padding words would not have commended themselves to the Draftsmen. And
\nbecause that was not the intention, we have to take the first step of legally construing
\n“this Constitution” as “every provision of the Constitution” and then import the padding
\nwords with reference to the provision. Such a construction is perfectly permissible having
\nregard to the general meaning of the word ‘amendment’. Since doubts were expressed in
\nthe leading majority judgment of five judges in opposition to the view of the other six
\njudges, who agreed that the word ‘amendment’ was wide in its application, the 24th
\namendment had to clarify the position.\n<\/p>\n
1313. Article V of the American Constitution used only the words ‘amendment to the
\nConstitution’ without any padding like “by way of addition, variation or repeal” and yet
\nno body questions the fact that after 1789, when the Constitution was framed, there have
\nbeen several additions, alterations and repeals. Actually the 18th amendment was
\nrepealed by the 21st.\n<\/p>\n
1314. We thus come to the conclusion that so far as the wording of Article 368 itself is
\nconcerned, there is nothing in it which limits the power of amendment expressly or by
\nnecessary implication. Admittedly it is a large power. Whether one likes it or not, it is not
\nthe function of the court to invent limitations where there are none. Consequences of
\nwreckless use of the power are political in character with which we are not concerned.
\nConsequences may well be considered in fixing the scope and ambit of a power, where
\nthe text of the statute creating the power is unclear or ambiguous. Where it is clear and
\nunambiguous, courts have to implement the same without regard to consequences good
\nor bad, just or unjust. In Vacher’s [1913] A.C. 107 case Lord Shaw observed at page 126
\n“Were they (words) ambiguous, other sections or sub-sections might have to be invoked
\nto clear up their meaning; but being unambiguous, such a reference might distort that
\nmeaning and so produce error. And of course this is a fortiori the case, if a reference is
\nsuggested, not to something within, but to considerations extraneous to, the Act itself. If,
\nfor instance, it be argued that the mind of Parliament “looking before and after,” having
\nin view the past history of a question and the future consequences of its language, must
\nhave meant something different from what is said, then it must be answered that all this
\nessay in psychological dexterity may be interesting, may help to whittle language down
\nor even to vaporize it, but is a most dangerous exercise for any interpreter like a Court of
\nlaw, whose duty is loyally to accept and plainly to expound the simple words employed.
\n1315. We have to see next whether there are express limitations on the amending power
\nelsewhere in the Constitution. The only provision to which our attention is drawn in
\nArticle 13(2). The article, before its amendment by the 24th amendment, was as follows:\n<\/p>\n
13. (1) All laws in force in the territory of India immediately before the
\ncommencement of this Constitution, in so far as they are inconsistent with
\nthe provisions of this Part, shall, to the extent of such inconsistency, be
\nvoid.\n<\/p>\n
(2) The State shall not make any law which takes away or abridges the
\nrights conferred by this Part and any law made in contravention of this
\nclause shall, to the extent of the contravention be void.\n<\/p>\n
(3) In this article, unless the context otherwise requires,-\n<\/p>\n
(a) “law” includes any Ordinance, order, bye-law, rule,
\nregulation, notification, custom or usage having in the
\nterritory of India the force of law;\n<\/p>\n
(b) “laws in force” includes laws passed or made by a
\nLegislature or otherwise competent authority in the
\nterritory of India before the commencement of this
\nConstitution and not previously repealed, notwithstanding
\nthat any such law or any part thereof may not be then in
\noperation either at all or in particular areas.\n<\/p>\n
It is obvious from Articles 13(1) and (2) that the intention was to make the fundamental
\nrights paramount and invalidate all laws which were inconsistent with the fundamental
\nrights. On the commencement of the Constitution of India there could not possibly be a
\nvacuum with regard to laws and, therefore, by Article 372(1) all the laws in force in the
\nterritory of India immediately before the commencement of the Constitution were
\ncontinued in force until altered or repealed or amended by a competent legislature or
\nother competent authority. Such laws which were in force before the commencement of
\nthe Constitution and were continued under Article 372(1) were, in the first instance,
\ndeclared void to the extent of their inconsistency with the provisions of Part III
\ncontaining the fundamental rights. As to future laws provision was made under Clause (2)
\nwhich commanded that the State shall not make a law which takes away or abridges the
\nrights conferred by Part III and further added that any law made in contravention of the
\nclause would be void to the extent of the contravention.\n<\/p>\n
1316. It was contended before us that an amendment of the Constitution under Article
\n368 was a law made by the State and, therefore, to the extent that it contravened Clause
\n(2) it would be void. The submission was similar to the one made in Golak Nath’s case
\nwhich was upheld by the majority of six judges. In the leading majority judgment it was
\nheld that it was a law which was made under Article 248 read with the residuary entry 97
\nof List I of the Seventh Schedule and, therefore, would be void if it took away or
\nabridged any of the fundamental rights. Hidayatullah, J. who agreed with the conclusion
\ndid not agree that the power to amend was traceable to the residuary article referred to
\nabove. Nevertheless he held “it was indistinguishable from the other laws of the land for
\nthe purpose of Article 13(2).” The other five judges who were in the minority agreed
\nsubstantially with the view taken in Sankari Prasad’s case and by the majority in Sajjan
\nSingh’s case that this was not a law within the meaning of Article 13(2) because, in their
\nopinion, an amendment of the Constitution under Article 368 was an act in exercise of the
\nconstituent power and was, therefore, outside the control of Article 13(2).
\n1317. Mr. Palkhivala submitted that he was not interested in disputing where the power to
\namend actually lay. Even assuming, he contended, the power to amend was to be found in
\nArticle 368, the worst that could be said against him was that the amendment was a
\nConstitutional law and in his submission even such a law would be taken in by Article
\n13(2). In this connection he argued that there were certain laws made in the Indian States
\nor even other laws which could be properly described as Constitutional laws which
\ncontinued in force after the commencement of the Constitution and came within the
\ncategory described in Article 13(1) and, therefore, there was no reason why an
\namendment of the Constitution which was also a Constitutional law should not come
\nwithin the prohibition of Article 13(2). The Indian Independence Act, 1947 and the
\nGovernment of India Act, 1935 which were the two main Constitutional statutes in
\naccordance with which the country had been governed had been specifically repealed by
\nArticle 395. No other statute of similar competence and quality survived our Constitution.
\nIt may be that certain statutes of the States and other Constitutional documents may have
\ncontinued in force as laws under Article 13(1) but it would be wrong to conclude
\ntherefrom that an amendment of the Constitution, also being a Constitutional law, would
\nbe deemed to have been included in the word ‘law’ in Article 13(2). We must be clear as
\nto what ‘Constitutional law’ means in a written Constitution. Jennings in his The Law and
\nthe Constitution (fifth edition), pp. 62-65 points out that there is a fundamental distinction
\nbetween Constitutional law and the rest of the law and that the term ‘Constitutional law’ is
\nnever used in the sense of including the law of the Constitution and the law made under
\nit. In the context of the question in issue, we are concerned with our Constitution which is
\nthe supreme fundamental law, on the touch-stone of which the validity of all other laws-
\nthose in force or to be made by the State-is to be decided and since an amendment of the
\nsupreme law takes an equal place, as already pointed out, with the rest of the provisions
\nof the Constitution we have to see whether an amendment of such quality and superiority
\nis sought to be invalidated by Article 13(2). Other laws in force at the time of the
\ncommencement of the Constitution consisting of state treaties or state statutes were not
\nlaws of this superior category. In fact Article 372(1) itself shows that if they were to
\ncontinue in force they were to do so subject to the other provisions of this Constitution
\nand were liable to be altered or repealed or amended by a competent legislature or the
\nother competent authority. All such laws though vaguely described as Constitutional were
\nmade absolutely subordinate to the Constitution. In that respect they were no better than
\nany other laws which were continued in force after the commencement of the
\nConstitution and to the extent that they were inconsisent with the fundamental rights, they
\nstood on the same footing as any other laws which continued in force after the
\ncommencement of the Constitution. Their status was entirely subordinate to the
\nConstitution. On the other hand, the stature of a Constitutional amendment, as already
\nseen, is the stature of the Constitution itself and, therefore, it would be wrong to equate
\nthe amendment of the Constitution with a so-called Constitutional law or document
\nwhich survived after the commencement of the Constitution under Article 372(1).
\n1318. An amendment of the Constitution cannot be regarded as a law as understood in the
\nConstitution. The expressions ‘law’, ‘by law’, ‘make a law’, are found scattered throughout
\nthe Constitution. Some articles, as shown by Bachawat, J. in Golak Nath’s case at pages
\n904 and 905, are expressly continued until provision is made by law. Some articles of the
\nConstitution continue unless provision is made otherwise by law; some continue save as
\notherwise provided by law. Some articles are subject to the provisions of any law to be
\nmade and some are expnessed not to derogate from the power of making laws. Articles 4,
\n169, para 7 of the Fifth Schedule and para 21 of the Sixth Schedule empower the
\nParliament to amend the provisions of the first, fourth, fifth and sixth schedules by law. A
\nreference to all these articles will show that in all these articles the expression ‘law’ means
\na law made by the Parliament in accordance with its ordinary legislative procedure. On
\nthe other hand, it is a point worthy of note that Article 368 scrupulously avoids the use of
\nthe word ‘law’. After the proposal for amendment, introduced in Parliament in the form of
\na Bill, is passed by the two Houses separately with the requisite majority and is assented
\nto by the President with prior ratification by the requisite number of States in certain
\ncases mentioned in the proviso, the proposed amendment writes itself into the
\nConstitution as a part of it. It is not passed, as already pointed out, as any other law is
\npassed by the ordinary procedure by competent legislatures. The ratification by the State
\nlegislatures by a resolution is not a legislative act. The whole procedure shows that the
\namendment is made by a process different from the one which is compulsory for any
\nother laws made by the Parliament or the State legislatures, and hence advisedly the term
\n‘law’ seems to have been avoided. In doing this the framers of the Constitution might
\nhave been influenced by the view held by many jurists in America that Article V of the
\nAmerican Constitution to which Article 368 conforms to some extent in its language
\nstructure don’t regard an amendment of the Constitution as a legislative act. Finer called
\nit, as we have already seen, the Constitution itself. “In proposing a Constitutional
\namendment, the legislature is not exercising its ordinary legislative function.” Corpus
\nJuris Secundum, Vol. 16 pp. 48, 49. “Under Article V of the American Constitution the
\nproposal by the Congress for amendment and the ratification by the States are not acts of
\nlegislation”. Burdick-The Law of the American Constitution, pp. 40-42. “Ratification by
\nthe States is not a legislative act”-Weaver Constitutional Law and its Administration, p.\n<\/p>\n
50.
\n1319. Secondly, we find in several places in our Constitution the two words ‘Constitution’
\nand the ‘law’ juxtaposed which would have been unnecessary if the word ‘law’ included
\nthe Constitution also. For example, in the oath of the President mentioned in Article 60
\nand of the Governor of a State in Article 159 it would have been sufficient for him to
\nswear that he would “preserve, protect and defend the laws” instead of swearing that he
\nwould “preserve, protect and defend the Constitution and the law”. Similarly the Attorney
\nGeneral under Article 76 and the Advocate Generals of the States under Article 165 need
\nhave merely sworn that he would “discharge the functions conferred on him by law”
\ninstead of that “he would discharge the functions conferred by and under this Constitution
\nor any other law for the time being in force”. Similar is the case with the oaths prescribed
\nin the IIIrd Schedule for the judges of the Supreme Court and the High Courts and the
\nComptroller and Auditor General. Indeed it is quite possible to urge that the Constitution
\nhas been specially mentioned in order to emphasize its importance. But that is the very
\npoint. Its importance lies in its supremacy over all kinds of others laws-a special position
\nwhich the framers of the Constitution, thoroughly acquainted with federal and quasi-
\nfederal Constitutions of the more important countries in the world, must have always
\nknown. In any case they knew that the Constitution was distinct from other laws. On that
\nfooting it would be only reasonably expected that if an Amendment, not being of the
\nnature of an ordinary law, was intended to be included in word ‘law’ in Article 13(2), it
\nwould have been specifically mentioned in the definition of the word ‘law’ given in
\nClause 3(1) of Article 13. The definition is an inclusive definition. It does not mention
\nenacted law or statute law in the definition, apparently because no-body needs to be told
\nthat an act of a legislature is law. But it includes such things like an Ordinance, Order,
\nbye-law, rule, regulation, notification, custom or usage in order to clarify that although
\nthe aforesaid are not enactments of a legislature, they were still ‘law’ falling within the
\ndefinition. An objection seems to have been anticipated that ordinances, orders, bylaws
\netc., not being the acts of a legislature, are not laws. That apparently was the reason for
\ntheir specific inclusion. If, therefore, an amendment of the Constitution was intended to
\nbe regarded as ‘law’, not being an ordinary statute of the legislature, it had the greatest
\nclaim to be included specifically in the definition. Its omission is, therefore, very
\nsignificant.\n<\/p>\n
1320. The significance lies in the fact that the Constitution or its amendment is neither a
\nlaw in force within the meaning of Article 13(1) continued under Article 372(1); nor can
\nit be regarded as a law made by the State within the meaning of Article 13(2). The bar
\nunder Article 13(2) is not merely against law but a law made by the State. A fundamental
\nright conferred by Part III could not be taken away or abridged by law made by the
\n“State”. To leave no doubt as to what the ‘State’ means, Part III, containing the
\nfundamental rights, opens with the definition of the word “State” in Article 12. According
\nto that definition the State includes the Government and the Parliament of India and the
\nGovernment and the Legislarure of each of the States and all local or other authorities
\nwithin the territory of India or under the control of the Government of India. The
\ndefinition thus includes all governmental organs within the territories of India and these
\ngovernmental organs are either created under the Constitution or under the laws adopted
\nby the Constitution under Article 372. In other words, they are all organs or agencies
\noperating under the Constitution owing superior obligation to the Constitution. It would
\nbe, therefore, wrong to identify ‘state’ in Article 13(2) with anything more than the
\ninstruments created or adopted by the Constitution and which are required to work in
\nconformity with the Constitution. Nor can the word ‘state’ be regarded as standing for a
\nNation or a Conglomeration of all the governmental Agencies. The Nation is an
\namorphous conception. The bar under Article 13(2) is against concrete instrumentalities
\nof the State, instrumentalities which are capable of making a law in accordance with the
\nConstitution.\n<\/p>\n
1321. By its very definition as discussed earlier, a body or set of bodies exercising, as
\nindicated in the Constitution, sovereign constituent power whether in a ‘flexible’ or a
\n‘rigid’ Constitution is not a governmental organ owing supreme obligation to the
\nConstitution. The body or bodies operate not under the Constitution but over the
\nConstitution. They do not, therefore, while amending the Constitution, function as
\ngovernmental organs and, therefore, cannot be regarded as the State for the purposes of
\nPart III of the Constitution.\n<\/p>\n
1322. We thus reach the conclusion that an amendment of the Constitution is not a law
\nmade by the State and hence Article 13(2) would not control an amendment of the
\nConstitution.\n<\/p>\n
1323. The same conclusion is arrived at by a slightly different approach. Article 13(2)
\nspeaks of a law which becomes void to the extent it takes away or abridges a fundamental
\nright as conferred by certain articles or provisions in Part III of the Constitution. Thus it
\nembodies the doctrine of ultra vires well-known in English law. In other words, it is a law
\nabout which one can predicate voidability with reference to the provisions of the
\nConstitution. This is possible only when it is a law made by the organs of the State. When
\nan amendment is made, we have already shown, it becomes part of the Constitution,
\ntaking an equal status with the rest of the provisions of the Constitution. Voidability is
\npredicated only with reference to a superior law and not an equal law. There is no
\nsuperior law with reference to which its voidability can be determined. Indeed, if the
\namendment cannot entirely fit in with some other provisions of the Constitution the
\ncourts might have to reconcile the provisions, as was done in Sri Venktaramana v. The
\nState of Mysore [1958] S.C.R. 895 in which the fundamental right under Article 26(b)
\nwas read subject to Article 25(2)(b) of the Constitution. The point, however, is that courts
\nhave no jurisdiction to avoid one provision of the law with reference to another provision
\nof the same law. It becomes merely a matter of construction. It follows, therefore, that an
\namendment of the Constitution not being liable to be avoided with reference to a superior
\nlaw is not a law about which you can predicate avoidability and, hence, stands outside the
\noperation of Article 13(2).\n<\/p>\n
1324. If the fundamental rights in Part III were unamendable, nothing would have been
\neasier than to make a specific provision about it in Part XX which dealt specifically with
\nthe subject of the amendment of the Constitution. That was the proper place. Article V of
\nthe American Constitution clearly indicated the two subjects which were unamend able.
\nThe Draft Constitution shows that, as a matter of fact, there was Article 305 under the
\nsubject “amendment of the Constitution” and that article had specifically made some
\nparts of the Constitution unamendable. Later, Article 305 was deleted and the main
\namending article in the Draft Constitution, namely, Article 304 appeared in the garb of
\nArticle 368 of the Constitution with some additional subjects in the proviso.
\n1325. In adopting the distinction between the ‘Constitution’ and ‘the law’ the framers of
\nthe Constitution did not create any new concept of the law being subordinate to the
\nConstitution. That was a concept which was well-recognized in Federal Constitutions
\nspecially providing for the amendment of the Constitution by a special procedure.
\n1326. No body disputes that law in its widest sense includes Constitutional law as it does
\nnatural law, customary law or ecclesiastical law. The point is whether in our Constitution
\n‘law’ includes an “amendment of the Constitution”. As already shown our Constitution
\nhas maintained a meticulous distinction between ordinary law made by the legislature by
\nordinary legislative procedure and an amendment of the Constitution under Article 368.
\nThis is highlighted even when certain provisions of the Constitution are amended by
\nordinary law. As already shown Articles 4, 169 and paras 7 and 22 of the Fifth and Sixth
\nSchedules respectively permit the Parliament to make ‘by law’ certain amendments in the
\nConstitution, but in every case it is further provided that such an amendment made ‘by
\nlaw’ shall not be deemed to be an amendment of the Constitution for the purposes of
\nArticle 368. When such a distinction is maintained between ‘law’ and ‘an amendment of
\nthe Constitution’ the same cannot be impaired by reference to the word ‘law’ used by the
\nPrivy Council in a more comprehensive sense in McCawley’s case and Rana Singhe’s
\n[1965] A.C. 172 case. In the former the Constitution was a flexible Constitution. In the
\nlatter, though it was a controlled Constitution the provision with regard to the amendment
\nof the Constitution namely Section 29(4) of the Ceylon (Constitution) Order in Council
\nwas part of Section 29 which specifically dealt with the making of laws and came under
\nthe subject heading of Legislative power and procedure. In both cases the legislature was
\nsovereign and as often happens in legislatures, principally modelled after the British
\nParliament, the distinction between Constitutional law and ordinary law becomes blurred
\nand the use of the word ‘law’ to describe a Constitutional law is indeterminate. We are,
\nhowever, concerned with our Constitution and cannot ignore the distinction maintained
\nby it in treating ordinary laws as different from the amendment of the Constitution under
\nArticle 368. The forms of oath in the IIIrd Schedule referring to “Constitution as by law
\nestablished” prove nothing to the contrary because as “by law established” merely means
\nConstitution “as legally established.” There is no indication therein of any intended
\ndichotomy between ‘law’ and ‘the Constitution’.\n<\/p>\n
1327. Reference was made to the consitutent assembly debates and to the several drafts
\nof the Constitution to show how the original provision which culminated in Article 13
\nunderwent” changes from time to time. They hardly prove anything. The fact that initially
\nArticle 13 was so worded as not to override the amendment of the fundamental rights, but
\nlater the Drafting Committee dropped that provision does not prove that the framers of
\nthe Constitution were of the view that Article 13(2) should reach an amendment of the
\nConstitution if it abridged fundamental rights. It had been specifically noted in one of the
\nnotes accompanying the first draft that Article 13(2) would not control an amendment of
\nthe Constitution and, therefore, any clarification by a special provision to the effect that
\nfundamental rights are amendable was not necessary except by way of abundant caution.
\n(See : Shiva Rao “The Framing of India’s Constitution, Vol. IV, page 26). That was
\napparently the reason for deleting that part of Article 13 which said that Article 13 should
\nnot come in the way of an amendment to the Constitution by which fundamental rights
\nwere abridged or taken away. Neither the speeches made by the leaders connected with
\nthe drafting of the Constitution nor their speeches (the same constituent assembly had
\ncontinued as the provisional Parliament) when the first amendment was passed
\nincorporating serious inroads into the fundamental rights conferred by Articles 15, 19 and
\n31 show that the fundamental rights were intended or understood to be unamendable-
\nrather the contrary.\n<\/p>\n
1328. The further argument that fundamental rights are inalienable natural rights and,
\ntherefore, unamendable so as to abridge or take them away does not stand close scrutiny.
\nArticles 13 and 32 show that they are rights which the people have “conferred” upon
\nthemselves. A good many of them are not natural rights at all. Abolition of untouchability
\n(Article 17), abolition of titles (Article 18); protection against double jeopardy (Article
\n20(2)); protection of children against employment in factories (Article 24); freedom as to
\nattendance at religious instruction or religious worship in certain educational institutions
\n(Article 28) are not natural rights. Nor are all the fundamental rights conceded to all as
\nhuman beings. The several freedoms in Article 19 are conferred only on citizens and not
\nnon-citizens. Even the rights conferred are not in absolute terms. They are hedged in and
\nrestricted in the interest of the general public, public order, public morality, security of
\nthe State and the like which shows that social and political considerations are more
\nimportant in our organized society. Personal liberty is cut down by provision for
\npreventive detention which, having regard to the conditions prevailing even in peace
\ntime, is permitted. Not a few members of the constituent assembly resented the
\nlimitations on freedoms on the ground that what was conferred was merely a husk. Prior
\nto the Constitution no such inherent inalienability was ascribed by law to these rights,
\nbecause they could be taken away by law.\n<\/p>\n
1329. The so called natural rights which were discovered by philosophers centuries ago
\nas safeguards against contemporary political and social oppression have in course of
\ntime, like the principle of laissez faire in the economic sphere, lost their utility as such in
\nthe fast changing world and are recognized in modern political Constitutions only to the
\nextent that organized society is able to respect them. That is why the Constitution has
\nspeciafically said that the rights are conferred by the people on themselves and are thus, a
\ngift of the Constitution. Even in the most advanced and orderly democratic societies in
\nthe world in which political equality is to a large extent achieved, the content of liberty is
\nmore and more recognized to be the product of social and economic justice without
\nwhich all freedoms become meaningless. To claim that there is equal opportunity in a
\nsociety which encourages or permits great disparties in wealth and other means of social
\nand political advancement is to run in the face of facts of life. Freedoms are not intended
\nonly for the fortunate few. They should become a reality for those whose entire time is
\nnow consumed in finding means to keep alive. The core philosophy of the Constitution
\nlies in social, economic and political justice-one of the principal objectives of our
\nConstitution as stated in the Preamble and Article 38, and any move on the part of the
\nsociety or its government made in the direction of such justice would inevitably impinge
\nupon the “sanctity” attached to private property and the fundamental right to hold it. The
\nDirective Principles of State Policy, which our Constitution commands should be
\nfundamental in the governance of the country, require the state to direct its policy
\ntowards securing to the citizens adequate means of livelihood. To that end the ownership
\nand control of the material resources of the community may be distributed to serve ‘the
\ncommon good, and care has to be taken that the operation of the economic system does
\nnot result in the concentration of wealth and means of production to the common
\ndetriment. See : Articles 37 to 39. This mandate is as important for the State as to
\nmaintain individual freedoms and, therefore, in the final analysis it is always a continuous
\nendeavour of a State, having the common good of the people at heart, so to harmonize the
\nDirective Principles and the fundamental rights that, so far as property rights are
\nconcerned, the unlimited freedom to hold it would have to undergo an adjustment to the
\ndemands of the State policy dictated by the Directive Principles. Deprivation of property
\nin one form or other and even expropriation would, in the eyes of many, stand justified in
\na democratic organization as long as those who are deprived do not earn it by their own
\neffort or otherwise fail to make adequate return to the society in which they live. The
\nattribute at ‘sacrcdness’ of property vanishes in an egalitarian society. And once this is
\naccepted and deprivation and expropriation are recognized as inevitable in the interest of
\na better social organization in which the reality of liberty and freedom can be more
\nwidely achieved, the claim made on behalf of property that it is an immutable and
\ninalienable natural right loses its force. One cannot lift parts of the Constitution above it
\nby ascribing ultra-Constitutional virtues to them. The Constitution is a legal document
\nand if it says that the whole of it is amendable, we cannot place the fundamental rights
\nout of bounds of the amending power. It is essential to note in the present case that
\nthough the plea was generally made on behalf of all fundamental rights, the fundamental
\nright with which we are concerned, principally, is the right to property. It will be
\nsufficient to note here that in modern democracies the tendency is not to recognize right
\nto property as an inalienable natural right. We can do no better than quote here a few
\npassages from W. Friedmann’s Legal Theory, fifth edition, 1967.
\nThe official doctrine of the modern Roman Catholic Church, from Rerum
\nNovarum (1891) onwards, and of most neo-scholastic philosophers, is that
\nthe right of private property is a dictate of natural law. But St. Thomas
\nAquinas and Suarez strongly deny the natural law character of the right of
\nprivate property and regard it (rightly as I believe) merely as a matter of
\nsocial utility.\n<\/p>\n
When faced with the solution of concrete legal problems, we find time and
\nagain that natural law formulae may disguise but not solve the conflict
\nbetween values, which is a problem of constant and painful adjustment
\nbetween competing interest, purposes and policies. How to resolve this
\nconflict is a matter of ethical or political evaluation which finds expression
\nin current legislative policies and to some extent in the impact of changing
\nideas on judicial interpretations. And, of course, we all have to make up
\nour minds as responsible human beings and citizens what stand we will
\ntake, for example, in the tension between state security and individual
\nfreedom. The danger is that by giving our faith the halo of natural law we
\nmay claim for it an absolute character from which it is only too easy to
\nstep to the condemnation or suppression of any different faith”. pp. 357-\n<\/p>\n
358.
\nThe time is past when Western beliefs can be regarded as a measure of all
\nthings. Nor will the natural law hypothesis aid much in the solution of the
\nagonising problem of the limits of obedience to positive law. p. 359;
\nThe main forces in the development of modern democratic thought have
\nbeen the liberal idea of individual rights protecting the individual and the
\ndemocratic idea proper, proclaiming equality of rights and popular
\nsovereignty. The gradual extension of the idea of equality from the
\npolitical to the social and economic field has added the problems of social
\nsecurity and economic planning. The implementation and harmonisation
\nof these principles has been and continues to be the main problem of
\ndemocracy.\n<\/p>\n
But democratic communities have universally, though with varying speed
\nand intensity, accepted the principle of social obligation as limiting
\nindividual right.\n<\/p>\n
But modern democracy, by the same process which has led to the
\nincreasing modification of individual rights by social duties towards
\nneighbours and community, has every-where had to temper freedom of
\nproperty with social responsibilities attached to property. The limitations
\non property are of many different kinds. The State’s right of taxation, its
\npolice power and the power of expropriation-subject to fair compensation-
\nare examples of public restrictions on freedom of property which are now
\nuniversally recognised and used. Another kind of interference touches the
\nfreedom of use of property, through the growing number of social
\nobligations attached by law to the use of industrial property, or contracts
\nof employment.\n<\/p>\n
The degree of public control over private property depends largely on the
\nstringency of economic conditions. Increasing prosperity and availability
\nof consumer goods has led to a drastic reduction of economic controls, and
\na trend away from socialisation in Europe. But in the struggling new
\ndemocracies such as India, poor in capital and developed resources, and
\njealous of their newly-won sovereignty, public planning and control over
\nvital resources are regarded as essential. The Constitution of the West
\nGerman Republic of 1949, which reflects a blend of American British and
\npost-war German ideas on the economic aspects of democracy, lays down
\nthat land, minerals and means of production may be socialised or be
\nsubjected to other forms of public control by a statute which also regulates
\ncompensation. Such compensation must balance the interests of the
\ncommunity and those of the individual and leave recourse to law open to
\nthe person affected. This still permits wide divergencies of political and
\neconomic philosophy, but in the recognition of social control over
\nproperty, including socialisation as a, legitimate though not a necessary
\nmeasure, it reflects the modern evolution of democratic ideas. Between the
\ncapitalistic democracy of the United States and the Social democracy of
\nIndia there are many shades and variations. But modern democracy looks
\nupon the right of property as one conditioned by ‘social responsibility by
\nthe needs of society, by the “balancing of interests” which looms so large
\nin modern jurisprudence, and not as preordained and untouchable private
\nright.\n<\/p>\n
1330. Nor is it correct to describe the fundamental rights, including the right to property,
\nas rights “reserved” by the people to themselves. The Constitution does not use the word
\n“reserved”. It says that the rights are “conferred” by the people upon themselves,
\nsuggesting thereby that they were a gift of the Constitution. The Constitution had,
\ntherefore, a right to take them away. This is indirectly recognised in Golak Nath’s case
\nwhere the majority has conceded that all the fundamental rights could be taken away by a
\nspecially convened constituent assembly. When rights are reserved by the people the
\nnormal mode, as in the several states of America, is a referendum, the underlying
\nprinciples being that ultimately it is the people, who had given the Constitution and the
\nrights therein, that could decide to take them away. In our Constitution the people having
\nentrusted the power to the Parliament to amend the whole of the Constitution have
\nwithdrawn themselves from the process of amendment and hence clearly indicated that
\nthere was no reservation. What the Constitution conferred was made revocable, if
\nnecessary, by the amendatory process. In my view, therefore, Article 13(2) does not
\ncontrol the amendment of the Constitution. On that conclusion, it must follow that the
\nmajority decision in Golak Nath’s case is not correct.\n<\/p>\n
1331. No reference was made to any other provision in the Constitution as expressly
\nimposing a limitation on the Amending Power.\n<\/p>\n
1332. It was next contended that there are implied or inherent limitations on the
\namendatory power in the very structure of the Constitution, the principles it embodies,
\nand in its essential elements and features (described briefly as essential features). They
\nare alleged to be so good and desirable that it could hot have been intended that they were
\nliable to be adversely affected by amendment. Some of the essential features of the
\nConstitution were catalogued as follows:\n<\/p>\n
(1) The supremacy of the Constitution;\n<\/p>\n
(2) The sovereignty of India;\n<\/p>\n
(3) The integrity of the country;\n<\/p>\n
(4) The democratic way of life;\n<\/p>\n
(5) The Republican form of Government;\n<\/p>\n
(6) The guarantee of basic human rights referred to in the Preamble and
\nelaborated as fundamental rights in Part III of the Constitution;
\n(7) A secular State;\n<\/p>\n
(8) A free and independent judiciary;\n<\/p>\n
(9) The dual structure of the Union and the States;\n<\/p>\n
(10) The balance between the legislature, the executive and the judiciary;
\n(11) A Parliamentary form of Government as distinct from Presidential
\nform of Government;\n<\/p>\n
(12) The amendability of the Constitution as per the basic scheme of
\nArticle 368.\n<\/p>\n
1333. These, according to Mr. Palkhivala, are some of the essential features of the
\nConstitution and they cannot be substantially altered by the amendatory process.
\n1334. A question of very wide import is raised by the submission. So far as the present
\ncase is concerned, the 24th amendment does no more than give effect to Parliament’s
\nacceptance of the view taken in Sankari Prasad’s case, the majority in Sajjan Singh’s case
\nand the minority in Golak Nath’s case with regard to the nature of the amending power in
\nrelation to fundamental rights. It is clarificatory of the original Article 368. What was
\nimplicit in Article 368 is now made explicit and the essence of Article 368 is retained.
\nTherefore, there can be no objection to the 24th Amendment on the ground that any
\nessential feature of the Constitution is affected.\n<\/p>\n
1335. The 25th Amendment introduces some abridgement of the fundamental right to
\nproperty. Right to property has been subject to abridgement right from the Constitution
\nitself (See : Article 31(4) & (6)) and the 25th amendment is a further inroad on the right
\nto property. In Golak Nath’s case, the first, fourth and the seventeenth amendments were
\nheld by the majority as having contravened Article 13(2). Nevertheless the amendments
\nwere not struck down but permitted to continue as if they were valid. Since I have come
\nto the conclusion that Article 13(2) does not control an amendment of the Constitution, it
\nmust be held that all previous amendments to the Constitution, so far made, could not be
\nchallenged on the ground of repugnancy to Article 13(2). It follows that any amendment
\nof the Constitution cannot be challenged on that ground, and that would be true not only
\nof the 24th amendment but also the 25th amendment, and the 29th amendment.
\n1336. The question still survives whether the 25th amendment and the 29th amendment
\nare invalid because, as contended by Mr. Palkhivala, an essential feature of the
\nConstitution has been substantially affected. The argument proceeds on the assumption
\nthat in the absence of any express limitation on the power of amendment, all the
\nprovisions in the Constitution are liable to be amended. He agrees, on this assumption,
\nthat even fundamental rights may be somewhat abridged if that is necessary. In this
\nconnection, he referred to the first amendment by which Articles 15 and 19 were
\namended and in both these cases the amendment did abridge the fundamental rights.
\nSimilarly he conceded that Articles 31A and 31B were amendments whereby the rights in
\nlanded estates were extinguished or substantially affected, but that was in the interest of
\nagrarian reform, a fact of supreme importance in the Indian polity which could not have
\nbeen ignored for long and to which the Ruling party was committed for a long time. Thus
\nalthough there had been amendments which abridged fundamental rights, these
\namendments in his submission did not go to the length of damaging or destroying the
\nfundamental rights. According to him they had not reached the ‘core’ of the rights. In
\nother words, his submission is that there are some very good and desirable things in the
\nConstitution. One of them is fundamental rights, and though these fundamental rights
\ncould be abridged somewhat, it was not permissible to affect by amendment the core of
\nthe fundamental rights, including the core of the right to property. For this argument he
\nrelies on the basic scheme of the Constitution as first promulgated and contends that any
\nAmendments made thereafter, including the 24th Amendment, would not affect his
\nargument, because, according to him, every one of them, must be evaluated on the
\nprinciples and concepts adopted in that basic scheme. His further submission was that if
\nsuch a core of a fundamental right is damaged or destroyed by an amendment, such an
\namendment is illegal and, therefore, liable to be struck down by this Court as the
\nguardian of the Constitution. It necessarily follows from the submission that Mr.
\nPalkhivala wanted this Court to decide whether by any particular amendment the core of
\nan essential feature like a fundamental right has been damaged or destroyed-undoubtedly
\na terrifying responsibility for this Court to undertake. It may appear as very odd that
\nwhile the framers of the Constitution did not think it necessary to expressly exclude even
\none provision of the Constitution from being amended, they still intended that this Court,
\nas the guardian of the Constitution, should make parts of it unamendable by implying
\nlimitations on the Amending power. Indeed this Court is a guardian of the Constitution in
\nthe sense that will not permit its contravention by any of its instrumentalities, but it
\ncannot constitute itself a guardian against change Constitutionally effected.
\n1337. Though the argument had a wide sweep, namely, that the several essential features
\ncatalogued by Mr. Palkhivala were not liable to be damaged or destroyed, in the ultimate
\nresult the case really boils down to whether the core of the fundamental right to property
\nhas been damaged or destroyed principally by the 25th amendment, and, if so whether
\nthere was any implied or inherent limitation on the amendmg power which prohibited
\nsuch an amendment. The several essential features listed by Mr. Palkhivala do not come
\ninto the picture in the present case. It is not the case that by the recent 25th amendment
\neither the sovereignty of India is affected or the Republican form of Government has
\nbeen destroyed. One of the several essential fca’tures listed by him is fundamental rights.
\nAmongst fundamental rights also most are untouched by the amendment. The 25th
\namendment deals principally with property rights and Articles 14, 19 and 31 in relation to
\nthem. By that amendment chiefly two things are sought to be accomplished (1) There
\nshall be no right to receive ‘compensation’, as judicially interpreted, for a State acquisition
\nfor a public purpose, but only to receive an ‘amount’, (2) A law made to achieve the aims
\nof equitable distribution of community resources or for the prevention of concentration of
\nwealth and means of production shall not be challenged on the ground of repugnancy to
\nArticles 14, 19 and 31. Since it is not the practice of this Court to decide questions which
\nare not ‘in immediate controversy it would not be proper to pronounce whether this or
\nthat particular so-called essential feature can or cannot be damaged or destroyed by
\namendment. But since it is argued on behalf of the State that there can be no limitations
\non the amending power except those expressly provided in the Constitution and since that
\nwill affect our decision as to the 25th amendment, we shall have to deal briefly with the
\nquestion of im”plied and inherent limitations with special reference to fundamental rights
\nincluding property rights.\n<\/p>\n
1338. Whatever one may say about the legitimacy of describing all the Tights conferred
\nin Part III as essential features, one thing is clear. So far as the right to property is
\nconcerned, the Constitution, while assuring that no-body shall be deprived of property
\nexcept under the authority of law and that there shall be a fair return in case of
\ncompulsory acquisition (Article 31(1) & (2)), expressly declared its determination, in the
\ninterest of the common good, to break up concentration of wealth and means of
\nproduction in every form and to arrange for redistribution of ownership and control of the
\nmaterial resources of the community. See : Article 39(b) & (c). If anything in the
\nConstitution deserves to be called an essential feature, this determination is one. That is
\nthe central issue in the case before us, however dexterously it may have been played
\ndown in the course of an argument which painted the gloom resulting by the denial of the
\nfundamental rights under Articles 14, 19 and 31 in the implementation of that
\ndetermination. The Constitution had not merely stopped at declaring this determination
\nbut actually started its implementation from the commencement of the Constitution itself
\nby incorporating Clauses (4) & (6) under Article 31, the first two clauses of which spelt
\nout the fundamental right to property. Apart front what Pandit Jawaharlal Nehru said
\nabout the Article in the Constituent Assembly Debates-and what he said was not at all
\nsympathetic to Mr. Palkhivala’s argument before us-the fundamental right to receive
\ncompensation under Clause (2), as then framed, was completely nullified by Clauses (4)
\n& (6) in at least one instance of concentration of wealth and material resources viz.
\nZamindaris and landed estates. These clauses were deliberately inserted in the original
\nArticle 31 leaving no manner of doubt that Zamindaris and Estates were sought to be
\nabolished on payment of even illusory compensation. The various States had already
\npassed laws or were in the process of passing laws on the subject, and specific provision
\nwas made in the two clauses, securing such laws from challenge on the ground that they
\nwere not acquired by the State for a public purpose or that adequate compensation was
\nnot paid. The first case under the Bihar Land Reforms Act, 1950, State of Bihar v.
\nKameshwar Singh<\/a> [1952] S.C.R. 889 shows that the law was highly unjust (from the
\nprevailing point of view of ‘justice’) and the compensation payable was in some cases
\npurely illusory. (See : Mahajan J. p. 936). And yet by virtue of Article 31(4) there could
\nbe no challenge to that Act and other similar laws on those grounds. By oversight,
\nchallenge to such laws under Articles 14 and 19 had not been expressly excluded, and so
\nwhen the case was pending in this Court, the first Amendment Act was passed inserting
\nArticles 31A and 31B by which, to take no chances, a challenge based on all fundamental
\nrights in Part III was wholly excluded. The course taken by the Constitution and its first
\nAmendment leaves no doubt that Zamindaris and Estates were intended to be
\nexpropriated from the very beginning and no ‘core’ with regard to payment of
\ncompensation was sought to be safeguarded. By the time the 4th Amendment was made
\nin 1955, it became apparent that the challenge to any scheme of redistribution or breaking
\nup of concentration of property was confined generally to Articles 14, 19 and 31, and
\nhence Article 31A Was amended. By the amendment all intermediaries, including small
\nabsentee landlords, were permitted to be eliminated and challenge to Article 31A was
\nexcluded only under Articles 14, 19 and 31. In short, rights in landed agricultural
\nproperty were extinguished without a thought to the necessity of paying fair
\ncompensation. In a real sense concentration of wealth in the form of agricultural lands
\nwas broken and community resources were distributed. On the other hand, a protectionist
\neconomic system, reinforced by controls, followed in the realm of trade and industry with
\na view to achieve greater production of goods and services led to other forms of
\nconcentration of wealth and means of production in the wake of Independence. So comes
\nthe 25th Amendment, the object of which is the same viz implementation of Article 39(b)
\n& (c). It has made clear that owners of property when it is acquired for a public purpose
\nare not entitled to compensation as interpreted by this Court, and any law made with the
\naforesaid object cannot be challenged on the grounds arising out of Articles 14, 19 and\n<\/p>\n
31. In principle, there is no difference in Article 31A and the new Article 31C inserted by
\nthe 25th Amendment. In trying to support his arguments on the core principle of essential
\nfeatures, Mr. Palkhivala tried to play down the role of Article 31(4) & (6) and Article
\n31A excusing them on the ground that they related to very necessary agrarian reforms to
\nwhich the majority party in the Constituent Assembly was for years before the
\nConstitution, committed. But that is not a legal argument. Articles 31(4)(6) and Article
\n31A clearly show that community interests were regarded as supreme and those Articles
\nwere only a step in the implementation of the Directive Principles in Article 39(b) & (c).
\n(Compare the observations of Das J. in 1952 S.C.R. 889 at pages 996 to 999.) The
\nConstitution definitely refused to accept the ‘core’ principle with regard to property rights,
\nif property was required to be expropriated in the common interest in pursuance of the
\nDirective Principles. The mood of the majority party is reflected in the speech of Pandit
\nGovind Vallabh Pant, the then Chief Minister of Uttar Pradesh. Speaking in the
\nConstituent Assembly on Article 31 and after justifying the provision of Article 31(4) &
\n(6) in relation to laws regarding Zamindaris and agricultural estates (there were 20 lakh
\nZamindars) according to him, in U.P. alone (he said “I presume that if at any time this
\nlegislature chooses to nationalise industry, and take control of it, whether it be all the
\nindustries or any particular class of it, such as the textile industry or mines, it will be open
\nto it to pass a law and to frame the Principles for such purpose, and those principles will
\nbe invulnerable in any court. They will not be open to question, because the only
\ncondition for disputing them, as has been pointed out by Shri Alladi, (Krishnaswamy
\nIyer) one of the most eminent jurists which our country has ever produced, is this, that it
\nshould he a fraud on the Constitution).” (See : Constituent Assembly Debates Vol. IX
\npage 1289). It shows that Article 31(4)(6) were the first step as applied to land
\nlegislation, in the direction of implementing the Directive Principles of Article 39(b) &\n<\/p>\n
(c), and it was only a matter of time when the principles would be applied to other types
\nof concentration of wealth and its distribution. As Mahajan, observed in State of Bihar v.
\nKameshwar Singh<\/a> at pages 929-30, our Constitution raised the obligation to pay
\ncompensation for compulsory acquisition of property to the status of a fundamental right.
\nAt the same time by specifically inserting Clauses (4) & (6) in Article 31, it made the
\nissues of public purpose and compensation prescribed in Article 31(2) non-justiciable in
\nsome specified laws dealing with concentration and distribution of wealth in the form of
\nlanded agricultural property. This clearly negatived the idea of protecting concentration
\nof wealth in a few hands as an essential feature of the Constitution. Hidyatullah, J. was
\nsaying practically the same thing when he remarked in Golak Nath’s case that it was an
\nerror to include property rights in Part III and that they were the weakest of fundamental
\nrights.\n<\/p>\n
1339. I have already discussed the amplitude of power conferred by the amending clause
\nof the Constitution. In countries like America and Australia where express limitations
\nhave been imposed in the amending clause itself there is substantial authority for the view
\nthat even these express limitations can be removed by following the procedure laid down
\nin the amending clause. According to them this could be done in two steps the first being
\nto amend the amending clause itself. It is not necessary for us to investigate the matter
\nfurther because Article 368 does not contain any express limitation. On the other hand,
\nthe power is wide enough even to amend the provisions of Article 368. See : proviso (e)
\nof that article. In other words, Article 368 contains unqualified and plenary powers to
\namend the provisions of the Constitution including the Amending clause. Prima facie,
\ntherefore, to introduce implied prohibitions to cut down a clear affirmative grant in a
\nConstitution would be contrary to the settled rules of construction. (See the dissenting
\njudgment of Isaacs and Rich JJ in McCawley v. The King 26 C.L.R. 43-68 approved by
\nthe Privy Council in 1920 A.C. 691).\n<\/p>\n
1340. When such an Amending clause is amended without affecting the power the
\namendment will principally involve the Amending procedure. It may make amendment
\neasier or more difficult. The procedure may also differ substantially. Parliament may be
\neliminated from the process leaving the amendment to the States. The proviso might be
\ndropped, enlarging the role of the Parliament. On the other hand, the Parliament and State
\nAssemblies may be divested of the function by providing for a referendum plebiscite or a
\nspecial convention. While, thus the power remains the same, the instrumentalities may
\ndiffer from time to time in accordance with the procedure prescribed. Hidayatullah, J.,
\nwith respect, was right in pointing out that the power to amend is not entrusted to this or
\nthat body. The power is generated when the prescribed procedure is followed by the
\ninstrumentalities specified in the Article. Since the instrumentalities are liable to be
\nchanged by a proper amendment it will be inaccurate to say that the Constituent
\nAssembly had entrusted the power to any-body. If the authority which is required to
\nfollow the procedure is the Parliament for the time being, it may be convenient to
\ndescribe Parliament as the authority to whom the power is granted or entrusted, but
\nstrictly that would be inaccurate, because there is no grant to any body. Whichever may
\nbe the instrumentality for the time being, the power remains unqualified.
\n1341. If the theory of implied limitations is sound-the assumption made being that the
\nsame have their origin in the rest of the Constitutional provisions including the Preamble
\nand the fundamental rights-then these limitations must clog the power by whatever
\nAgency it is exercised. The rest of the Constitution does not change merely because the
\nprocedure prescribed in Article 368 is changed. Therefore, the implied limitations should
\ncontinue to clog the power. Logically, if Article 368 is so amended as to provide for a
\nconvention or a referendum, the latter will be bound to respect the implied limitations-a
\nconclusion which Mr. Palkhivala is not prepared to accept. He agrees with the jurists who
\nhold that a convention or a referendum will not be bound by any limitations. The reason
\ngiven is that the people directly take part in a referendum or, through their elected
\nrepresentatives, in a convention. Even in Golak Nath it was accepted that any part of the
\nConstitution including the fundamental rights could be amended out of existence by a
\nConstituent Assembly.\n<\/p>\n
1342. The argument seems to be that a distinction must be made between the power
\nexercised by the people and the power exercised by Parliament. In fact Mr. Palkhivala’s
\nwhole thesis is that the Parliament is a creature of the Constitution and the limitation is
\ninherent in its being a constituted authority. We have already examined the question and
\nshown that where the people have withdrawn completely from the process of
\nAmendment, the Constituent body to whom the power is entrusted can exercise the power
\nto the same extent as a Constituent Assembly and that the power does not vary according
\nto the Agency to whom the power is entrusted. Therefore, this reason also viz. that
\nParliament is a constituted body and, therefore, it suffers from inherent limitations does
\nnot hold good.\n<\/p>\n
1343. From the conclusion that the power of Amendment remains unqualified by
\nwhomsoever it is exercised, it follows that there can be no implied or inherent limitations
\non the Amending power. If a special convention admittedly does not suffer from
\nlimitations, any other constituent body cannot be subject to it.
\n1344. The leading majority judgment in Golak Nath’s case had seen some force in this,
\ndoctrine of implied limitations (808), but did not find it necessary to decide on the issue.
\nTo remove all doubts on that score the 24th Amendment is now suitably amended. Its
\nfirst clause says that Parliament may amend any provision of the Constitution
\nnotwithstanding anything in it. Therefore, in the matter of amendment Parliament may
\nnot, now, be inhibited by the other express provisions of the Constitution, which would
\nmean that it may also ignore all implications arising therefrom.
\n1345. Where power is granted to amend the Amending power, as in our Constitution,
\nthere is no limit to the extent this may be done. It may be curtailed of ‘enlarged’. This is
\nwell illustrated in Ryan v. Lennox [1935] Irish Reports, 170. Under the Irish State
\nConstitution Act of 1922, the Parliament (Oireachtas) had been given power to amend the
\nConstitution under Article 50 of the Act. Under that Article, amendments during the first
\neight years of the Constitution, could be validly made without having recourse to a
\nreferendum unless specially demanded by the persons, and in the manner specified in
\nArticle 47, but amendments made after that period had to be approved in every case by a
\nreferendum and the people. By a Constitutional amendment of 1928 (Amendment NO.\n<\/p>\n
10) the compulsion of Article 47 was got rid of, and by an amendment of 1929
\n(Amendment No. 16) made within the eight year period already referred to, the period of
\n8 years was extended to 16 years. The result was that the Constitution now authorized the
\nParliament to amend by ordinary legislation its Constitution for the period of 16 years
\nfrom the commencement of the Constitution without being required to have recourse to a
\nreferendum. In 1931 by a further Amendment (Amendment No. 17) extensive alterations
\nwere made by which inter alia, personal liberty was curtailed, denying trial by Jury or by
\nthe regular courts. Ryan who was one of the victims of the new law applied to the High
\nCourt for a Writ of Habeas Corpus on the ground that the several amendments were
\ninvalid, especially No. 16, by which the period of 8 years had been extended to 16 years.
\nIf Amendment No. 16 was invalid, that would have automatically resulted in Amendment
\nNo. 17 being invalid, having been made after the first period of 8 years. The High Court
\n(3 JJ) unanimously held that all the Amendments were valid. In appeal to the Supreme
\nCourt that decision was confirmed by a majority, Kennedy, Chief Justice, dissenting. One
\nof the chief contentions directed against Amendment No. 16 was that the Parliament
\ncould not have ‘enlarged’ its power from 8 to 16 years to change the Constitution without
\na referendum by ordinary legislation. This conten tion was rejected by the majority.
\nKennedy, C.J. took a different view of the amendment. He held that Article 50 did not
\nprovide for the amending of the Amendatory power, conceding that otherwise the power
\ncould have been so ‘enlarged’. Since there is no dispute in our case that by reason of
\nClause (e) of proviso of Article 368 power is given to amend the amendatory power, it
\nwas open to Parliament to ‘enlarge’ the power by amendment. If it is assumed-and we
\nhave shown there is no ground to make such an assumption-that there was some implied
\nlimitation to be derived from other provisions of the Constitution, that limitation, if any,
\nis now removed by the non-obstante clause in Clause 1 of the Amended Article 368.
\n1346. It is of some interest to note here that in a case which later went to the Privy
\nCouncil, Moore v. Attorney General for the Irish State [1935] A.C. 484 and in which a
\nConstitutional amendment made by the Irish Parliament in 1933 (Amendment No. 22)
\nwas challenged, Mr. Greene (Later Lord Greene) conceded before the Privy Council that
\nAmendment No. 16 of 1929 was valid and their Lordships observed (494) “Mr. Wilfied
\nGreene for the petitioners rightly conceded that Amendment No. 16 was regular and that
\nthe validity of these subsequent amendments could not be attacked on the ground that
\nthey had not been submitted to the people by referendum.” The question of validity of
\nAmendment No. 16 was so vital to the petitioner’s case that it is impossible to believe that
\na counsel of the standing of Lord Greene would not have challenged the same and, in the
\nopinion of their Lordships, ‘rightly’. According to Keith the judgment of Kennedy, C.J. in
\nRayan’s case was wrong. See : Letters on Imperial Relations Indian Reform
\nConstitutional and International Law 1916-1935 page 157.\n<\/p>\n
1347. The importance of Rayan’s case lies in the fact that though Article 50 of the Irish
\nFree State Constitution did not expressly say that Article 50 itself is liable to be amended,
\nno less than five judges of the Irish Courts held it could be amended though the
\namendment resulted in the ‘enlargement’ of the power of the Irish Parliament to amend
\nthe Constitution. How wide the power was further established in Moore’s case which held
\nthat Amendment No. 22 was valid, though by this Amendment even the Royal
\nPrerogative regarding appeals to the Privy Council was held to have been abrogated by
\nthe combined operation of the, Statute of Westminster and the Constitutional
\nAmendment, in spite of Article 50 having been originally limited by the terms of the
\nScheduled Treaty of 1922. In our case Article 368 authorizes its own amendment and
\nsuch an amendment can enlarge the powers of the Parliament, if such was the need.
\n1348. Apart from reasons already given, we will consider, on first principles, whether the
\nconstituent body is bound to respect the so-called ‘essential feature’ of the fundamental
\nrights especially that of right to property. The fact that some people regard them as good
\nand desirable is no adequate reason. The question really is whether the constituent body
\nconsiders that they require to be amended to meet the challenge of the times. The
\nphilosophy of the amending clause is that it is a safety-valve for orderly change and if the
\ngood and desirable feature has lost its appeal to the people the constituent body would
\nhave undoubtedly the right to change it.\n<\/p>\n
1349. Indeed, if there are some parts of the Constitution which are made expressly
\nunamendable the constituent body would be incompetent to change them, or if there is
\nanything in the provisions of the Constitution embodying those essential features which
\nby necessary implication prohibit their amendment those provisions will also become
\nunamendable. The reason is that in law there is no distinction between an express
\nlimitation and a limitation which must be necessarily implied. Secondly, it is an accepted
\nrule of construction that though a provision granting the power does not contain any
\nlimitation that may not be conclusive. That limitation may be found in other parts of the
\nstatute. But we have to remember that Article 368 permits the amendment of all the
\nprovisions of the Constitution expressly. And if that power is to be cut down by
\nsomething that is said in some other provision of the Constitution the latter must be clear
\nand specific. As far back as 1831 Tindal, C.J. delivering the unanimous opinion of the
\nJudges in the House of Lords in Warburton v. Loveland (1831) II Dow & Clark, 480
\nobserved at page 500 “No rule of construction can require that, when the words of one
\npart of a statute convey a clear meaning…it shall be necessary to introduce another part of
\nthe statute which speaks with less perspicuity, and of which the words may be capable of
\nsuch construction as by possibility to diminish the efficacy of the other provisions of the
\nAct.” To control the true effect of Article 368 “you must have a context even more plain
\nor at least as plain as the words to be controlled”. See : Jessel M.R. in Bentley v.
\nRotherham (1876-77) 4 Ch. D. 588 (592). Neither the text nor the context of the articles
\nembodying the fundamental rights shows that they are not exposed to Article 368.
\nMoreover, when we are concerned with a power under a statute, it is necessary to
\nremember the following observations of Lord Selborne in Reg. v. Burah (1878) 3 App.
\nCAS. 889 at pp. 904 & 905 “The established Courts of Justice, when a question arises
\nwhether the prescribed limits have been exceeded, must of necessity determine that
\nquestion; and the only way in which they can properly do so, is by looking to the terms of
\nthe instrument by which, affirmatively, the legislative powers were created, and by
\nwhich, negatively, they are restricted. If what has been done is legislation, within the
\ngeneral scope of the affirmative words which give the power, and if it violates no express
\ncondition or restriction by which that power is limited it is not for any Court of Justice to
\ninquire further, or to enlarge constructively those conditions and restrictions.” Similarly
\nEarl Loreburn in Attorney-General for the Province of Ontario v. Attorney-General for
\nthe Dominion of Canada (1912) App. Cas. 571 observed at page 583 “In the
\ninterpretation of a completely self-governing Constitution founded upon a written organic
\ninstrument such as the British North America Act, if the text is explicit the text is
\nconclusive, alike in what it directs and what it forbids. When the text is ambiguous, as for
\nexample, when the words establishing too mutually exclusive jurisdictions are wide
\nenough to bring a particular power within either, recourse must be had to the context and
\nscheme of the Act.” The only course which is open to courts is to determine the extent of
\npower expressly granted after excluding what is expressly or by necessary implication
\nexcluded. That is the view of the Privy Council in Webb v. Outrim [1907] A.C. 81 the
\neffect of which is summarized by Isaacs, J. in The Amalgamated Society of Engineers v.
\nThe Adelaide Steamship Co. Limited and Ors. 28 C.L.R. 129 at p. 150 as follows:
\n…we should state explicitly that the doctrine of “implied prohibition”
\nagainst the exercise of a power once ascertained in accordance with
\nordinary rules of construction, was definitely rejected by the Privy Council
\nin Webb v. Outrun.\n<\/p>\n
1350. Having regard to the rules of construction relating to power referred to above, we
\nhave to see if either the provisions relating to the fundamental right to property or any
\nrelated provisions of the Constitution contain words of prohibition or limitation on the
\namending power. Right to property is sought to be safeguarded under Article 31, and
\nArticle 19 deals with freedoms having relation to property, profession, trade and
\nbusiness. We find nothing in these provisions to suggest that rights to property cannot be
\nabridged by an amendment of the Constitution. On the other hand, Article 31(1) suggests
\nthat one can be deprived of property under the authority of law. The right to receive
\ncompensation under Clause (2) of Article 31, as it stood at the time of the commencement
\nof the Constitution, had been considerably cut down by several provisions contained in
\nthe other clauses of that article. Article 31(4) & (6) not only envisaged breaking up of
\nconcentration of landed property in the hands of Zamindars and the like but also
\nexpropriation without payment of just compensation. That necessarily called for the
\nexclusion of Articles 14, 19 and 31, because no scheme for expropriation or
\nextinguishment of rights in property would succeed without their exclusion. Thereafter
\nthere has been a spate of amendments curtailing property rights and none of them seems
\nto have been challenged on the ground that there was something in the provisions
\nthemselves (apart from the fact that they affect a ‘transcedental’ fundamental right)
\nsuggesting an implied or inherent limitation on the amending power. The last sentence
\nfrom Lord Loreburn’s judgment quoted about embodies a well-known rule of
\nconstruction which is useful when the text of a statute is ambiguous. Where the text is
\nclear and unambiguous there can be no recourse to the context or the scheme of the Act;
\nnor can the context or the scheme be utilised to make ambiguous what is clear and
\nunambiguous. Moreover the rule does not permit in case of ambiguity recourse to the
\nscheme and context which is unhelpful in resolving the ambiguity. It does not authorize
\ninvestigating the scheme and context with an effect of delimiting the power referred to in
\nthe ‘ambiguous’ text, if the scheme and the context do not contain words which expressly
\nor by necessary implication have the effect. All this is important in connection with the
\nconstruction of the word ‘Amendment in Article 368. We have already shown that the
\nword ‘Amendment’ used in the context of a Constitution is clear and unambiguous.
\nTherefore, the scheme and the context are irrelevant. The scheme and the context on
\nwhich reliance is placed before us consist principally of the alleged dominating statuts of
\nthe Preamble and the alleged transcedental character of the fundamental rights neither of
\nwhich helps us in the legal interpretation of the word ‘Amendment’. They are being
\npressed into service merely to create an ambiguity where there is none. Actually the
\ncontext and scheme are here used to cut down the ambit and scope of the expression
\n‘amendment of the Constitution’ by investing them with that effect where neither
\nexpressly nor by necessary implication do they contain any prohibition or limitation on
\nthe Amending power. Therefore, as a matter of construction no implied limitations can be
\ninferred from the Preamble or the fundamental rights, being as much part of a legal
\ndocument as any other provision of the Constitution, are subject to equal consideration in
\nthe matter of legal construction. To be relevant, the scheme and context must say or
\nreasonably suggest something with regard to Amending power.\n<\/p>\n
1351. Mr. Palkhivala sought to draw support for his doctrine of implied limitations from
\nthe preamble. According to him the Preamble sets out the objectives of the Constitution
\nand, therefore, any tampering with these objectives would destroy the identity of the
\nConstitution. And since an amendment of the Constitution, howsoever made, must
\npreserve the identity of the Constitution the objectives of the Preamble should be treated
\nas permanent and unamendable. On that basis he further contended that since the
\nfundamental rights are mostly an elaboration of the objectives of the Preamble, it was
\nimplied that the fundamental rights or, at least, the essence of them was not liable to be
\ndamaged or destroyed by an amendment.\n<\/p>\n
1352. The submission that the fundamental rights are an elaboration of the preamble is an
\nover-statement and a half truth. According to the Preamble the people of India have given
\nunto themselves the Constitution to secure to all its citizens (a) JUSTICE, social,
\neconomic and political; (b) LIBERTY of thought, expression, belief, faith and worship;\n<\/p>\n
(c) EQUALITY of status and of opportunity; and to promote among the citizens (d)
\nFRATERNITY assuring the dignity of the individual and the unity of the Nation. There is
\nno doubt that the Constitution is intended to be a vehicle by which the goals set out in it
\nare hoped to be reached. Indeed, being a part of the Constitution, strictly speaking, it is
\namendable under Article 368. But we will assume that the people of India will not be rash
\nenough to amend the glorious words of the Preamble; and as long as the Preamble is there
\nthe Governments will have to honour the Preamble and the Constitution will have to
\ncontinue as a vehicle which would lead us to the goals. But to say that the fundamental
\nrights are an elaboration of these goals would be a caricature. Most of the fundamental
\nrights may be traced to the principles of LIBERTY and EQUALITY mentioned in the
\nPreamble. But whereas the concepts of LIBERTY and EQUALITY are mentioned in
\nabsolute terms in the Preamble the fundamental rights including the several freedoms are
\nnot couched in absolute terms. They reflect the concepts of LIBERTY and EQUALITY
\nin a very attenuated form with several restrictions imposed in the interest of orderly and
\npeaceable Government.\n<\/p>\n
1353. The pre-eminent place in the Preamble is given to JUSTICE-social, economic and
\npolitical, and it is obvious that without JUSTICE the other concepts of LIBERTY,
\nEQUALITY and FRATERNITY would be illusory. In a democratic country whose
\ninstitutions are informed by JUSTICE-social, economic and political, the other three
\nconcepts of LIBERTY, EQUALITY and FRATERNITY will be automatically fostered.
\nSocial and political Justice takes care of Liberty; and Justice, social and economic, takes
\ncare of Equality of status and of opportunity. Therefore, even in the Directive Principles
\nthe supreme importance of Justice-social, economic and political-is highlighted in Article
\n38, in which the State is given a mandate to strive to promote the welfare of the people by
\nsecuring and protecting a social order in which justice-social, economic and political
\nshall inform all the institutions of the National life. Where genuine and honest efforts are
\nmade in the implementation of this mandate the content and ambit of the concepts of
\nLiberty and Equality are bound to increase and expand. As Wade has pointed out in his
\nintroduction to Dicey’s Law of the Constitution at page lxxxii “Liberty today involves the
\nordering of social and economic conditions by governmental authority, even in those
\ncountries where political, if not economic equality of its citizens, has been attained.
\nWithout expansion of that authority, which Federal States must find more difficult to
\nachieve than a unitary State like the United Kingdom, there is inevitably a risk that the
\nConstitution may break down before a force which is not limited by considerations of
\nConstitutional niceties.” Again he points out at pages xxiv and xxv that the modern
\nHouse of Commons is a forum in which both parties put forward incessant demands for
\nthe remedying of some social or economic ill of the body politic…and the changing
\nconditions have all been brought about by the action of Parliament. In doing that, Wade
\nsays, it could not be denied that legislation has shifted the emphasis on individual liberty
\nto the provision of services for the public good. In the terms of our Constitution
\nespecially the Preamble and Article 38, the shift of emphasis is from individual liberty to
\nJustice-social, economic and political.\n<\/p>\n
1354. The absolute concepts of Liberty and Equality are very difficult to achieve as goals
\nin the present day organised society. The fundamental rights have an apparent
\nresemblance to them but are really no more than rules which a civilized government is
\nexpected to follow in the governance of the country whether they are described as
\nfundamental rules or not. England developed these rules in its day to day Government
\nunder the rule of law and does not make a song and dance about them. British rulers of
\nIndia tried to introduce these rules in the governance of this country, as proof of which
\nwe can point out to the vast mass of statutes enacted during the British period which have
\nbeen continued, practically without change, under our Constitution. No body can deny
\nthat when Imperial interests were in jeopardy, these rules of good government were
\napplied with an unequal hand, and when the agitation for self rule grew in strength these
\nrules were thrown aside by the rulers by resorting to repressive laws. It was then that
\npeople in this country clamoured for these elementary human rights. To them their value
\nin our social and political life assumed such importance that when the Constitution was
\nframed we decided that these rules of Civilized government must find a place in the
\nConstitution, so that even our own Governments at the centre and the States should not
\noverlook them. That is the genesis of our fundamental rights. The importance of these
\nrights as conferred in the Constitution lies not in their being something extraordinary but
\nin the bar that the Constitution imposed against laws which contravened these rights and
\nthe effective remedy supplied under Article 32. Indeed the framers of the Constitution
\ntook good care not to confer the fundamental rights in absolute terms because that was
\nimpractical. Knowing human capacity for distorting and misusing all liberties and
\nfreedoms, the framers of the Constitution put restrictions on them in the interest of the
\npeople and the State thus emphasizing that fundamental rights i.e. rules of civilized
\ngovernment are liable to be altered, if necessary, for the common good and in the public
\ninterest.\n<\/p>\n
1355. And yet, as we have seen above, even in U.K. individual Liberty as it was
\nunderstood a generation or two ago is no longer so sacrosanct, especially, in relation to
\nownership of property Several statutes in the economic and social field have been passed
\nwhich while undoubtedly impinging upon the individual liberties of a few have expanded
\nsocial and economic justice for the many; If U.K. had stood staunchly by its Victorian
\nconcept of laissez faire and individual liberty, the progress in social and economic justice
\nwhich it has achieved during the last half a century would have been difficult. Even so,
\nthough very much more advanced than our country, U.K. cannot claim that it has fully
\nachieved social and economic justice for all its citizens. But there is no doubt that the
\nparties which form the Governments there have always this goal in view though their
\nmethods may be different. In a country like ours where we have, on the one hand, abject
\npoverty on a very large scale and great concentration of wealth on the other, the advance
\ntowards social and economic justice is bound to be retarded if the old concept of
\nindividual liberty is to dog our footsteps. In the ultimate analysis, liberty or freedoms
\nwhich are so much praised by the wealthier sections of the community are the freedom to
\namass wealth and own property and means of production, which, as we have already
\nseen, our Constitution does not sympathise with. If the normal rule is that all rules of
\ncivilized government are subject to public interest and the common weal, those rules will
\nhave to undergo new adjustments in the implementation of the Directive Principles. A
\nblind adherence to the concept of freedom to own disproportionate wealth will not take us
\nto the important goals of the Preamble, while a just and sympathetic implementation of
\nthe Directive Principles has at least the potentiality to take us to those goals, although, on
\nthe way, a few may suffer some dimunition of the unequal freedom they now enjoy. That
\nbeing the philosophy underlying the Preamble the fundamental rights and the Directive
\nPrinciples taken together, it will be incorrect to elevate the fundamental rights as
\nessentially an elaboration of the objectives of the Preamble. As a matter of fact a law
\nmade for implementing the Directive Principles of Article 39(b) and (c), instead of being
\ncontrary to the Preamble, would be in conformity with it because while if may cut down
\nindividual liberty of a few, it widens its horizon for the many.
\n1356. It follows that if in implementing such a law the rights of an individual under
\nArticles 14, 19 and 31 are infringed in the course of securing the success of the scheme of
\nthe law, such an infringement will have to be regarded as a necessary consequence and,
\ntherefore, secondary. The Preamble read as a whole, therefore, does not contain the
\nimplication that in any genuine implementation of the Directive Principles, a fundamental
\nright will not suffer any dimunition. Concentration and control of community resources,
\nwealth and means of production in the hands of a few individuals are, in the eyes of the
\nConstitution, an evil which must be eradicate from the social organization, and hence,
\nany fundamental right, to the extent that it fosters this evil, is liable to be abridged or
\ntaken away in the interest of the social structure envisaged, by the Constitution. The
\nscheme of the fundamental rights in Part III itself shows that restrictions on them have
\nbeen placed to guard against their exercise in an evil way.\n<\/p>\n
1357. Nor is there anything in the Preamble to suggest that the power to amend the
\nfundamental right to property is cut down. Actually there is no reference to the right to
\nproperty. On the other hand, while declaring the objectives which inspired the framers of
\nthe Constitution to give unto themselves the Constitution which, they hoped, would be
\nable to achieve them, they took good care to provide for the amendment of “this
\nConstitution”. It was clearly implied that if the operative parts of the Constitution failed
\nto put us on the road to the objectives, the Constitution was liable to be appropriately
\namended. Even the Preamble, which, as we know, had been adopted by the constituent
\nassembly as a part of the Constitution. (Constituent Assembly Debates Vol. X p. 456)
\nwas liable to be amended. Right to property was, perhaps, deliberately not enthroned in
\nthe Preamble because that would have conflicted with the objectives of securing to all its
\ncitizens justice, social, economic and political, and equality of opportunity, to achieve
\nwhich Directive Principles were laid down in Articles 38 to 51. Moreover the Preamble,
\nit is now well settled-can neither increase nor decrease the power granted in plain and
\nclear words in the enacting parts of a statute. See : The Berubari Union and Exchange of
\nEnclaves [1960] 3 S.C.R. 250 at pp. 281 and 282. Further, the legislature may well-intend
\nthat the enacting part do extend beyond the apparent ambit of the Preamble. See :
\nSecretary of State v. Maharajah of Bobbili 43 Madras 529 P.C. at 536. As a matter of fact
\nif the enacting part is clear and unambiguous it does not call for construction. In
\nSprague’s case the Supreme Court of America had been called upon to construe Article
\nV, the amending clause, so as to cut down the amending power by implications arising
\nout of certain other provisions of the Constitution itself. Replying to the argument the
\ncourt observed, “the United ‘State asserts that Article V is clear in statement and in
\nmeaning contains no ambiguity and calls for no resort to rules of construction. A mere
\nreading demonstrates that this is true.” These observations apply with greater force to our
\namending clause namely Article 368, for in Article V of the American Constitution there
\nwas some room for play of argument on the basis of alternative methods permitted for the
\nratification of the proposed amendments. On the basis of the alternative methods
\nprovided in Article V-one by the State legislature and the other by the State convention-it
\nwas argued that, the State convention was the appropriate method Bo the exclusion of the
\nState legislature, because the prohibition amendment (18th amendment) directly affected
\npersonal liberty. Where personal liberty was involved, it was submitted, the people alone
\nthrough their convention could ratify an amendment, especially, as under Article X the
\npeople had reserved to themselves the powers which were not expressly conferred on the
\nfederal Constitution. This argument was rejected by the Supreme Court on the ground
\nthat the language of Article V was clear and unambiguous and though alternative
\nmethods were provided for, the ultimate authority as to which alternative method should
\nbe adopted was the Congress and if the Congress chose the method of ratification by the
\nState legislature there was an end of the matter. The court observed “In the Constitution
\nwords and phrases were used in their normal and ordinary as distinct from technical
\nmeaning. When the intention is clear, there is no room for construction and no excuse for
\ninterpolation”. By interpolation the court specifically meant an addition in the nature of a
\nproviso to Article V limiting the power of the Congress as to the choice of the body it
\nwould make for the purposes of ratification.\n<\/p>\n
1358. Reference was made to certain cases with a view to show that though there were no
\nwords suggesting a limitation on a power, implied limitations or prohibitions are noticed
\nby courts. In a recent Australian case of Victoria v. The Commonwealth 45 A.L.I.R. 251
\nthe question arose as to the power of the Commonwealth Parliament under Section 51(ii)
\nof the Constitution to make laws with respect to taxation under the Pay-roll Tax
\nAssessment Act, 1941-1969. It was unanimously held by the court that the
\nCommonwealth Parliament had the power. During the course of arguments, the question
\narose, which has been troubling the Australian courts for years, whether there were
\nimplied limitations on commonwealth Legislative power under the Constitution in view
\nof the fact that the Preamble to the Constitution recited that the people had agreed “to
\nunite in one indissoluble federal commonwealth under the Crown.” In Amalgamated
\nEngineers case, already referred to, which had been regarded for a long time as the final
\nword on the question, the alleged implied prohibition or limitation had been rejected. The
\nquestion was held to be a question of construction with regard to the extent of power and
\nif the power was ascertained from the express words, there could be no further limitation
\nthereon by implication. But in the case referred to above, while three Judges accepted that
\nview as still good, the other four were of the contrary opinion. Whichever view is correct
\nthat really makes no difference to me question before us. We are concerned with the
\namending power. In the Australian case the Judges were concerned with legistative
\npower and that had to be ascertained within the four corners of the Constitution by which
\nthe power had been created and under which it had to be exercised. There was room for
\nconstruction on the basis of the words and structure of the Constitution, especially, the
\nPreamble which was not liable to be amended by the Commonwealth. On the other hand,
\nsince the power to amend the Constitution is a superior power it cannot Be bound by any
\nprovision of the Constitution itself, the obvious reason being that even such a provision is
\namendable under the Constitution. In re The Initiative and Referendum Act, [1919] A.C.
\n935 it was held by the Privy Council that the British North America Act, 1867, Section
\n92, head 1, which empowers a Provincial legislature to amend the Constitution of the
\nProvince, “excepting as regards the office of Lieutenant-Governor,” excludes the making
\nof a law which abrogates any power which the Crown possesses through the Lieutenant-
\nGovernor who directly represents the Crown. By the Initiative and Referendum Act the
\nlegislative assembly of Manitoba-a Province in Canada-compelled the Lieutenant-
\nGovernor to submit a proposed law to a body of voters totally distinct from the legislature
\nof which he is the Constitutional head, and would render him powerless to prevent it from
\nbecoming an actual law if approved by those voters. It was held that this directly affected
\nthe office of the Lieutenant-Governor as part of the legislature and since the amendment
\nto the Constitution had the effect of affecting that office which was expressly excepted
\nfrom the amending power the law was void. It is thus seen that there was no question of
\nan implied limitation. In the other case cited before us namely Don John Francis Douglas
\nLivanage and Ors. v. The Queen [1967] A.C. 259 no question of amending the
\nConstitution arose. There by an ordinary act of the legislature made in 1962 under
\nSection 29(1) of the Ceylon (Constitution and Independence) Orders in Council, 1946-47
\nan attempt was made to partially vest in the legislature and the executive the judicial
\npowers of the judges which vested in them under a separate Imperial Charter viz. the
\nCharter of Justice, 1833 the effective operation of which was recognized in the
\nConstitution of 1946-47. It was held that the Act was ultra vires the Constitution. Some
\nmore cases like Ranasinghe’s [1965] A.C. 172 case, Taylor v. Attorney General of
\nQueensland 23 C.L.R. 457, Mangal Singh v. Union of India [1967] 2 S.C.R. 109 at 112,
\nwere cited to show that Constitutional laws permit implications to be drawn where
\nnecessary. No body disputes that proposition. Courts may have to do so where the
\nimplication is necessary to be drawn. In Ranasinghe’s case the Privy Council is supposed
\nto have expressed the opinion on a construction of Section 29 of the Ceylon
\n(Constitution) Order in Council, 1946 that Sub-sections 2 and 3 are unamendable under
\nthe Constitution. In the first place, the observation is obiter, and it is doubtful if their
\nLordships intended to convey that even under Section 29(4), they were unamendable. A
\nplain reading of the latter provision shows they were amend able by a special majority.
\nSecondly, in an earlier portion of the judgment provisions 29(2) & (3) are described as
\n‘entrenched’, the plain dictionary meaning of which is that they are not to be repealed
\nexcept under more than stringent conditions. See also Wade’s Introduction to Dicey pages
\nxxxvi to xxxvii. Jennings in his Constitution of Ceylon (1949) points out at page 22 that
\nthe limitations of 29(2) & (3) can be altered or abridged by the special procedure under
\nSection 29(4). Similarly we are in Constitutional Structure of the Commonwealth 1960
\nreprinted in 1963 pages 83-84. In any event, that was a pure matter of construction on a
\nreading of Sub-sections 1 to 4 of Section 29 together. In Taylor’s case the question for
\nconsideration was as to the interpretation of the expression ‘Constitution of such
\nlegislature’ in Section 5 of the Colonial Laws Validation Act, 1865. At the time in
\nquestion the legislature consisted of a lower house and an upper house and it was held
\nthat the expression ‘Constitution of such legislature” ‘was wide enough to include the
\nconversion of a bicameral legislature into a unicameral one. Issacs, J. also held
\n‘legislature’ in the particular context meant the houses of legislature and did not include
\nthe. Crown. In Mangal Singh’s case it was merely held that if by law made under Article
\n4 of our Constitution a state was formed, that state must have legislative, executive and
\njudicial organs which are merely the accoutrements of a state as understood under the
\nConstitution. The connotation of a ‘state’ included these three organs. That again was a
\nmatter of pure construction. None of the cases sheds any light on the question with which
\nwe are concerned viz. whether an unambiguous and plenary power to amend the
\nprovisions of the Constitution, which included the Preamble and the fundamental rights,
\nmust be frightened by the fact that some superior and transcedental character has been
\nascribed to them.\n<\/p>\n
1359. On the other hand, in America where implied limitations were sought to be pressed
\nin cases dealing with Constitutional amendments, the same were rejected. In Sprague’s
\ncase the Supreme Court rejected the contention of implied limitation supposed to arise
\nfrom some express provisions in the Constitution itself. Referring to this case Dodd in
\nCases in Constitutional Law, 5th edition pages 1375-1387 says”This case it is hoped puts
\nan end to the efforts to have the court examine into the subject matter of Constitutional
\namendment” In The National Prohibition 65 Law, edn. 994 cases decided earlier, the
\nProhibition Amendment (18th) was challenged, as the briefs show, on a host of alleged
\nimplied limitations based on the Constitution, its scheme and its history. The opinion of
\nthe court did not accept any of them, in fact, did not even notice them. American jurists
\nare clearly of the opinion that the Supreme Court had rejected the argument of implied
\nlimitations. See for example Cooley Constitutional Law, 4th edition, 46-47; Burdick Law
\nof American Constitution pp. 45 to 48.\n<\/p>\n
1360. The argument that essential features (by which Mr. Palkhivala means “essential
\nfeatures, basic elements or fundamental principles”)’ of the Constitution, though capable
\nof amendment to a limited extent are not liable to be damaged or destroyed is only a
\nvariation on the argument previously urged before this Court on the basis of the socalled
\n“spirit of the Constitution” which had been rejected as far back as 1952. See : State of
\nBihar v. Kameshwar Singh<\/a> [1952] S.C.R. 889. That case arose out of the Bihar Land
\nReforms Act, 1950 which was pending in the Bihar Legislature at the time of the
\ncommencement of the Constitution. After it became law it was reserved for the
\nconsideration of the President who gave assent to it. Thus it became one of the laws
\nreferred to in Article 31(4) of the Constitution and in virtue of that provision it could not
\nbe called in question on the ground that it contravened the provisions of Clause 2 of
\nArticle 31. Under that law Zamindari was abolished and the lands vested in the State. The
\nZamindars received what was described as illusory compensation. As there was danger of
\nchallenge under Articles 14, 19 and 31, the Constitution was amended to incorporate
\nArticle 31A and Article 31B to take effect from the date of the commencement of the
\nConstitution and this Act along with similar other Acts were included in the Ninth
\nSchedule. In Sankari Prasad’s case Che amendment was held valid and when the case
\ncame before this Court the arguments became limited in scope. Mr. P.R. Das who
\nappeared for the Zamindars tried to skirt the bar under Article 31(4) by relying on Entry
\n36 List II and Entry 42 in List III arguing that the law in so far as it did not acquire the
\nZamindaris for a public purpose or make provision for adequate compensation was
\nincompetent under those entries. Dr. Ambedkar who appeared for other Zamindars took a
\ndifferent stand. In the words of Patanjali Shastri, C.J. “He maintained that a
\nConstitutional prohibition against compulsory acquisition of property without public
\nnecessity and payment of compensation was deducible from what he called the “spirit of
\nthe Constitution”, which, according to him was a valid test for judging the
\nConstitutionality of a statute. The Constitution, being avowedly one for establishing
\nliberty, justice and equality and a government of a free people with only limited powers,
\nmust be held to contain an implied prohibition against taking private property without
\njust compensation and in the absence of a public purpose. (Emphasis is supplied) He
\nrelied on certain American decisions and text-books as supporting the view that a
\nConstitutional prohibition can be derived by implication from the spirit of the
\nConstitution where no express prohibition has been enacted in that behalf. Articles 31-A
\nand 31-B barred only objections based on alleged infringements of the fundamental rights
\nconferred by Part III, but if, from the other provisions thereof, it could be inferred that
\nthere must be a public purpose and payment of compensation before private property
\ncould be compulsorily acquired by the State, there was nothing in the two articles
\naforesaid to preclude objection on the ground that the impugned Acts do not satisfy these
\nrequirements and are, therefore, unConstitutional.” (Emphasis supplied) This argument
\nwas rejected in these words “In the face of the limitations on the State’s power of
\ncompulsory acquisition thus incorporated in the body of the Constitution, from which
\n“estates” alone are excluded, it would, in my opinion, be contrary to elementary canons of
\nstatutory construction to read, by implication, those very limitations into entry 36 of List
\nII, alone or in conjunction with entry 42 of List III of the Seventh Schedule, or to deduce
\nthem from “the spirit of the Constitution”, and that too, in respect of the very properties
\nexcluded.” The argument was that having regard to the Preamble and the fundamental
\nrights which established liberty, justice and equality and a government of a free people
\nwith only limited powers, taking of private property without just compensation and in the
\nabsence of a public purpose was unConstitutional, and this conclusion should be drawn
\nby implied prohibition in spite of Article 31(4), 31A & 31B expressly barring challenge
\non those very grounds. In other words, an express provision of the Constitution validating
\na state law was sought to be nullified on the basis of ‘essential features and basic
\nprinciples’ underlying the Preamble and the fundamental rights, but the attempt was
\nnegatived. I sec no distinction between Dr. Ambedkar’s argument in the above case and
\nthe case before us, because the plenary power of amendment under Article 368 is sought
\nto be limited by implications supposed to arise from those same ‘essential features and
\nbasic principles’.\n<\/p>\n
1361. A legislature functioning under a Constitution is entitled to make a law and it is not
\ndisputed that such a law can be amended in any way the legislature likes by addition,
\nalteration or even repeal. This power to amend is implicit in the legislative power to make
\nlaws. It can never be suggested that when the legislature amends its own statute either
\ndirectly or indirectly it is inhibited by any important or essential parts of that statute. It
\ncan amend the important, desirable, parts as unceremoniously as it can any other
\nunimportant parts of the statute. That being so, one does not see the reasonableness of
\nrefusing this latitude to a body which is specifically granted the unqualified power to
\namend the Constitution. While the legislature’s power to amend operates on each and
\nevery provision of the statute it is difficult to see why the amending clause in a
\nConstitution specifically authorising the amendment of the Constitution should stand
\ninhibited by any of the Constitution. Essential parts and unessential parts of a
\nConstitution should make no difference to the amending power (Compare passage from
\nMcCawley’s case already quoted at p. 43-4) That a legislature can repeal an act as a
\nwhole and the constituent body does not repeal the Constitution as a whole is not a point
\nof distinction. A legislature repeals an Act when it has outlived its utility. But so far as a
\nConstitution is concerned it is an organic instrument continuously growing in utility and
\nthe question of its repeal never arises as long as orderely change is possible. A
\nConstitution is intended to last. Legislative acts do not have that ambition. It is the nature
\nand character of the Constitution as a growing, organic, permanent and sovereign
\ninstrument of government which exclude the repeal of the Constitution as a whole and
\nnot the nature and character of the Amending power.\n<\/p>\n
1362. Since the ‘essential features and basic principles’ referred to by Mr. Palkhivala are
\nthose culled from the provisions of the Constitution it is clear that he wants to divide the
\nConstitution into parts-one of provisions containing the essential features and the other
\ncontaining non-essential features. According to him the latter can be amended in any way
\nthe Parliament likes, but so far as the former provisions are concerned, though they may
\nbe amended, they cannot be amended so as to damage or destroy the core of the essential
\nfeatures. Two difficulties arise. Who is to decide what are essential provisions and
\nnonessential provisions ? According to Mr. Palkhivala it is the court which should do it If
\nthat is correct, what stable standard will guide the court in deciding which provision is
\nessential and which is not essential? Every provision, in one sense, is an essential
\nprovision, because if a law is made by the Parliament or the State legislatures
\ncontravening even the most insignificant provision of the Constitution, that law will be
\nvoid. From that point of view the courts acting under the Constitution will have to look
\nupon its provisions with an equal eye. Secondly, if an essential provision is amended and
\na new provision is inserted which, in the opinion of the constituent body, should be
\npresumed to be more essential than the one repealed, what is the yardstick the court is
\nexpected to employ? It will only mean that whatever necessity the constituent body may
\nfeel in introducing a change in the Constitution, whatever change of policy that body may
\nlike to introduce in the Constitution, the same is liable to be struck down if the court is
\nnot satisfied either about the necessity or the policy. Clearly this is not a function of the
\ncourts. The difficulty assumes greater proportion when an amendment is challenged on
\nthe ground that the core of an essential feature is either damaged or destroyed. What is
\nthe standard? Who will decide where the core lies and when it is reached ? One can
\nunderstand the argument that particular provisions in the Constitution embodying some
\nessential features are not amendable at all. But the difficulty arises when it is conceded
\nthat the provision is liable to be amended, but not so as to touch its ‘core’. Apart from the
\ndifficulty in determining where the ‘core’ of an ‘essential feature’ lies, it does not appear to
\nbe sufficiently realized what fantastic results may follow in working the Constitution.
\nSuppose an amendment of a provision is made this year. The mere fact that an
\namendment is made will not give any body the right to come to this Court to have the
\namendment nullified on the ground that it affects the core of an essential feature. It is
\nonly when a law is made under the amended provision and that law affects some
\nindividual’s right, that he may come to this Court. At that time he will first show that the
\namendment is bad because it affects the core of an essential feature and if he succeeds
\nthere, he will automatically succeed and the law made by the Legislature in the
\nconfidence that it is protected by the amended Constitution will be rendered void. And
\nsuch a challenge to the amendment may come several years after the amendment which
\ntill then is regarded as a part of the Constitution. In other words, every amendment,
\nhowever innocuous it may seem when it is made is liable to be struk down several years
\nafter the amendment although all the people have arranged their affairs on the strength of
\nthe amended Constitution. And in dealing with the challenge to a particular amendment
\nand searching for the core of the essential feature the court will have to do it either with
\nreference to the original Constitution or the Constitution as it stood with all its
\namendments upto date. The former procedure is clearly absurd because the Constitution
\nhas already undergone vital changes by amendments in the meantime. So the challenged
\namendment will have to be assessed on the basis of the Constitution with all its
\namendments made prior to the challenged amendment. All such prior amendments will
\nhave to be accepted as good because they are not under challenge, and on that basis
\nJudges will have to deal with the challenged amendment. But the other amendments are
\nalso not free from challenge in subsequent proceedings, because we have already seen
\nthat every amendment can be challenged several years after it is made, if a law made
\nunder it affects a private individual. So there will be a continuous state of flux after an
\namendment is made and at any given moment when the court wants to determine the core
\nof the essential feature, it will have to discard, in order to be able to say where the core
\nlies, every other amendment because these amendments also being unstable will not help
\nin the determination of the core. In other words, the courts will have to go by the original
\nConstitution to decide the core of an essential feature ignoring altogether all the
\namendments made in the meantime, all the transformations of rights that have taken place
\nafter them, all the arrangements people have made on the basis of the validity of the
\namendments and all the laws made under them without question. An argument which
\nleads to such obnoxious results can hardly be entertained. In this very case if the core
\nargument were to be sustained, several previous amendments will have to be set aside
\nbecause they have undoubtedly affected the core of one or the other fundamental right.
\nProspective overruling will be the order of the day.\n<\/p>\n
1363. The argument of implied limitations in effect invites us to assess the merits and
\ndemerits of the several provisions of the Constitution as a whole in the light of social,
\npolitical and economic concepts embodied therein and determine on such an assessment
\nwhat is the irreducible minimum of the several features of the Constitution. Any attempt
\nby amendment, it is contended, to go beyond such irreducible minimum-also called the
\n‘core’ of essential features-should be disallowed as invalid. In other words, we are invited
\nto resort to the substantive due process doctrine of the Supreme Court of America in the
\ninterpretation of a Constitutional Amendment. That doctrine was rejected long ago by
\nthis Court (Gopalan’s case) even in its application to ordinary legislation. See 1950
\nS.C.R. 88 (Kania, C.J. 110) (Das, J. 312). The argument does not have anything to do
\nwith the meaning of the expression ‘Amendment of the Constitution’ because it is
\nconceded for the purpose of this argument that ‘amendment of this Constitution’ means
\namendment of all provisions by way of addition, alteration or repeal’ What is contended,
\nis that by the very implications of the structure, general principles and concepts embodied
\nin the Constitution, an amendment can go only thus far and no further. In other words, the
\nscope of amendment is circumscribed not by what the constituent body thinks, but by
\nwhat the Judges ultimately think is its proper limits. And these limits, it is obvious, will
\nvary with individual Judges, and as in due process, the limits will be those fixed by a
\nmajority of Judges at one time, changed, if necessary, by a bigger majority at another.
\nEvery time an amendment is made of some magnitude as by the Twenty-fifth
\nAmendment we will have, without anything to go on, to consider how, in our opinion, the
\nseveral provisions of the Constitution react on one another, their relative importance from
\nour point of view, the limits on such imponderable concepts as liberty, equality, justice,
\nwe think proper to impose, whether we shall give preponderance to directive principles in
\none case and fundamental rights in another-in short, determine the ‘spirit of the
\nConstitution’ and decide how far the amendment conforms with that ‘spirit’. We are no
\nlonger, than construing the words of the Constitution which is our legitimate province but
\ndetermining the spirit of the Constitution-a course deprecated by this Court in Gopalan’s
\ncase at pages 120-121. When concepts of social or economic justice are offered for our
\nexamination in their interaction on provisions relating to right to property-matters
\ntraditionally left to legislative policy and wisdom, we are bound to flounder “in labyrinths
\nto the character of which we have no sufficient guides.\n<\/p>\n
1364. It is true that Judges do judicially determine whether certain restrictions imposed in
\na statute are reasonable or not. We also decide questions involving reasonableness of any
\nparticular action. But Judges do this because there are objective guides. The Constitution
\nand the Legislatures specifically leave such determination to the higher courts, not
\nbecause they will be always right, but because the subject matter itself defies definition
\nand the legislatures would sooner abide by what the judges say. The same is true about
\nlimits of delegated legislation or limits of legislative power when it encroaches on the
\njudicial or any other field. Since the determinataon of all these questions is left to the
\nhigher judiciary under the Constitution and the law, the judges have to apply themselves
\nto the tasks, however difficult they may be, in order to determine the legality of any
\nparticular legislative action. But all this applies to laws made under the Constitution and
\nhave no relevance when we have to deal with a Constitutional amendment. The
\nConstitution supplies the guides for the assessment of any statute made under it. It does
\nnot supply any guides to its own amendment which is entirely a matter of policy.
\n1365. The ‘core’ argument and the division into essential and nonessential parts are
\nfraught with the greatest mischief and will lead to such insuperable difficulties that, if
\npermitted, they will open a Pandora’s box of endless litigation creating uncertainty about
\nthe provisions of the Constitution which was intended to be clear and certain. Every
\nsingle provision emobies a concept, a standard, norm or rule which the framers of the
\nConstitution thought was so essential that they included it in the Constitution. Every
\namendment thereof will be liable to be assailed on the ground that an essential feature or
\nbasic principle was seriously affected. Our people have a reputation of being litigious lot.
\nWe shall be only adding to this.\n<\/p>\n
1366. When an amendment is successfully passed, it becomes part of the Constitution
\nhaving equal status with the rest of the provisions of the Constitution. If such an
\namendment is liable to be struck down on the ground that it damages or destroys an
\nessential feature, the power so claimed should, a fortiori, operate on the Constitution as it
\nstands. It will be open to the court to weigh every essential feature like a fundamental
\nright and, if that feature is hedged in by limitations, it would be liable to be struck down
\nas damaging an essential feature. Take for example personal liberty, a fundamental right
\nunder the Constitution. If the court holds the opinion that the provision with regard to
\npreventive detention in Article 22 damages the core of personal liberty it will be struck
\ndown. The same can be said about the freedom in Article 19. If this Court feels that the
\nprovision with regard to, say State monopolies damages the fundamental right of trade of
\na citizen, it can be struck down. In other words, if an amendment which has become part
\nof the Constitution is liable to be struck down because it damages an essential feature it
\nshould follow that every restriction originally placed on that feature in the Constitution
\nwould necessarily come under the pruning knife of the courts.\n<\/p>\n
1367. In short, if the doctrine of unamendability of the core of essential feature is
\naccepted, it will mean that we add some such proviso below Article 368 : “Nothing in the
\nabove Amendment will be deemed to have authorized an Amendment of the Constitution,
\nwhich has the effect of damaging or destroying the core of the essential features, basic
\nprinciples and fundamental elements of the Constitution as may be determined by the
\nCourts.” This is quite impermissible.\n<\/p>\n
1368. It is not necessary to refer to the numerous authorities cited before us to show that
\nwhat are described as some of the essential features are not unamendable. It will be
\nsufficient to refer to only a few. Bryce in his book “The American Commonwealth” New
\nand revised edition, Vol. I says at pages 366-67 with reference to Article V of the
\nAmerican Constitution “But looking at the Constitution simply as a legal document, one
\nfinds nothing in it to prevent the adoption of an amendment providing a method for
\ndissolving the existing Federal tie, whereupon such method would be applied so as to
\nform new unions, or permit each State to become an absolutely sovereign and
\nindependent commonwealth. The power of the people of the United States appears
\ncompetent to effect this, should it ever be desired, in a perfectly legal way, just as the
\nBritish Parliament is legally competent to redivide Great Britain into the sixteen or
\neighteen independent kingdoms which existed within the island in the eighth century.”
\nRandall in his revised edition, 1964 The Constitutional Problems under Lincoln, says at
\npage 394 with reference to Article V “Aside from the restriction concerning the “equal
\nsuffrage” of the States in the Senate, the Constitution, since 1808, has contained no
\namendable part, and it designates no field of legislation that may not be reached by the
\namending power. An Amendment properly made becomes “valid, to all intents and
\npurposes, as part of this Constitution”, having as much “force as any other article. There
\nis no valid distinction between “the Constitution itself” and the amendments. The
\nConstitution at any given time includes all up to the latest amendments, and excludes
\nportions that have not survived the amending process. We should think not of “the
\nConstitution and its amendments,” but of “the Constitution as amended”. This is
\nespecially true when we reflect that certain of the amendments supplant or construe
\nportions of the original document.” Colley in his book, The General Principles of
\nConstitutional Law in the United States of America, fourth edition, says at pages 46-47
\n“Article V of the Constitution prohibits any amendment by which any State “without its
\nconsent shall be deprived of its equal suffrage in the Senate”. Beyond this there appears
\nto be no limit to the power of amendment. This, at any rate, is the result of the decision in
\nthe so-called National Prohibition Cases…. The amendment was attacked on the grounds
\nthat it was legislative in its character, an invasion of natural rights and an encroachment
\non the fundamental principles of dual sovereignty, hut the contention was overruled. The
\ndecision totally negatived the contention that “An amendment must be confined in its
\nscope to an alteration or improvement of that which is already contained in the
\nConstitution and cannot change its basic structure, include new grants of power to the
\nFederal Government, nor relinquish to the State those which already have been granted to
\nit.” Quick and Carran writing in the “Annotated Constitution of the Australian
\nCommonwealth” (1901) observe as follows at p. 989 with regard to the amending clause
\nof the Constitution namely Section 128. “It may be concluded that there is no limit to the
\npower to amend the Constitution, but that it can only be brought into action according to
\ncertain modes prescribed. We will consider the modes and conditions of Constitutional
\nreforms further; meanwhile it is essential to grasp the significance and
\ncomprehensiveness of the power itself. For example, the Constitution could be amended
\neither in the direction of strengthening or weakening the Federal Government;
\nstrengthening it, by conferring on it new and additional powers; weakening it, by taking
\naway powers. The Constitution could be amended by reforming the structure of the
\nFederal Parliament and modifying the relation of the two Houses; by increasing or
\ndiminishing the power of the Senate in reference to Money Bills; by making the Senate
\nsubject to dissolution at the same time as the House of Representatives. It is even
\ncontended by some daring interpreters that the Constitution could be amended by
\nabolishing the Senate. It could certainly be amended by remodeiling the Executive
\nDepartment, abolishing what is known as Responsible Government, and introducing a
\nnew system, such as that which prevails in Switzerland; according to which the
\nadministration of the public departments is placed in the hands of officers elected by the
\nFederal legislature. The Constitution could be amended by altering the tenure of the
\njudges, by removing their appointment from the Executive, and authorizing the election
\nof judges by the Parliament or by the people. The Constitution could be amended in its
\nmost vital part, the amending power itself, by providing that alterations may be initiated
\nby the people, according to the plan of the Swiss Popular Initiative; that proposed
\nalterations may be formulated by the Executive and submitted to the people; that
\nproposed alterations may, with certain Constitutional exceptions, become law on being
\napproved of by a majority of the electors voting, dispensing with the necessity of a
\nmajority of the States.\n<\/p>\n
1369. On a consideration, therefore, of the nature of the amending power, the unqualified
\nmanner in which it is given in Article 368 of the Constitution it is impossible to imply
\nany limitations on the power to amend the fundamental rights. Since there are no
\nlimitations express or implied on the amending power, it must be conceded that all the
\nAmendments which are in question here must be deemed to be valid. We cannot question
\ntheir policy or their wisdom.\n<\/p>\n
1370. Coming to the actual amendments made in the Constitution by the twenty-fifth
\namendment Act, we find in the first place that the original Clause (2) of Article 31 is
\nrecast to some extent by deleting any reference to ‘compensation’ in cases of compulsory
\nacquisition and requisition for a public purpose. The fundamental right now is not to
\nreceive ‘compensation’ which this Court construed to mean ‘a just equivalent’ but to
\nreceive an “amount” which the legislature itself may fix or which may be determined in
\naccordance with the principles as may be specified by the law. Then again the “amount”
\nmay be given in cash or in such manner as the law may specify. The principal objection
\nto the amendment is that the clause arms the legislature with power to fix any amount
\nwhich it considers fit and such fixation may be entirely arbitrary having no nexus
\nwhatsoever with the property of which a person is actually deprived. In similar cases, it is
\nsubmitted, the amount fixed may be more in one and very much less in another
\ndepending entirely on the whim of the legislature. Conceivably the amount may be
\nillusory having regard to the value of the property. The principles for determining the
\namount may equally be arbitrary and unrelated to the deprivation. Therefore, it is
\ncontended, the amendment is bad. It is difficult to understand how an amendment to the
\nConstitution becomes invalid because the Constitution authorizes the legislatures to fix
\nan “amount” or to specify the principles on which the “amount” is to be determined
\ninstead of fixing the “compensation” or specifying the principles for determining
\n“compensation”. Even compensation ultimately is an “amount”. All that the amendment
\nhas done is to negative the interpretation put by this Court on the concept of
\ncompensation, Clause (2) recognizes the fundamental right to receive an amount in case
\nof compulsory acquisition or requisition and all that it wants to clarify is that the
\nfundamental right is not to receive compensation as interpreted by this Court but a right
\nto receive an amount in lieu of the deprivation which the legislature thinks fit. It is not the
\ncase that if a fair amount is fixed for the acquisition or fair principles to determine it are
\nlaid down, the amendment would still be invalid. The contention is that it becomes
\ninvalid because there is a possibility of the abuse of the power to fix the amount. There is
\nno power which cannot be abused. All Constitutions grant power to legislatures to make
\nlaws on a variety of subjects and the mere possibility of the power being used unwisely,
\ninjuriously or even abused is not a valid ground to deny legislative power. See : Bank of
\nToronto v. Lambe 1887, Vol. XII-Appeal Cases 575 at pages 586-587. If that is the
\nposition with regard to legislative power, there does not appear to be any good reason
\nwhy the possibility of abuse of it by the legislature should inhibit an amendment of the
\nConstitution which gives the power. Whether a particular law fixes an amount which is
\nillusory or is otherwise a fraud on power denying the fundamental right to receive an
\namount specifically conferred by Clause (2) will depend upon the law when made and is
\ntested on the basis of Clause (2). One cannot anticipate any such matters and strike down
\nan amendment which, in all conscience, does not preclude a fair amount being fixed for
\npayment in the circumstances of a particular acquisition or requisition. The possibility of
\nabuse of a power given by an amendment of the Constitution is not determinative of the
\nvalidity of the amendment.\n<\/p>\n
1371. The new Clause 2B inserted in Article 31 having the consequence of excluding the
\napplication of Article 19(1)(f) to a law referred to in Clause (2) of Article 31 is merely a
\nre-statement of the law laid down by this Court after the constiution came into force. The
\nmutual exclusiveness of Article 19(1)(f) and Article 31(2) had been recognized by this
\nCourt in a scries of cases. See : Sitabati Debi and Anr. v. State of West Bengal and Anr.<\/a>
\n[1967] (2) S.C.R. 949. That principle is now embodied in the new amendment.
\n1372. The only substantial objection to the twenty-fifth amendment is based on the new
\nArticle 31C inserted in the Constitution by Section 3 of the twenty-fifth amendment act.
\n1373. The new article is as follows:\n<\/p>\n
31C. Notwithstanding anything contained in Article 13, no law giving
\neffect to the policy of the state towards securing the principles specified in
\nClause (b) or Clause (c) of Article 39 shall be deemed to be void on the
\nground that it is inconsistent with, or takes away or abridges any of the
\nrights conferred by Article 14, Article 19 or Article 31; and no law
\ncontaining a declaration chat it is for giving effect to such policy shall be
\ncalled in question in any court on the ground that it does not give effect to
\nsuch policy.\n<\/p>\n
Provided that where such law is made by the Legislature of a State, the
\nprovisions of this article shall not apply thereto unless such law, having
\nbeen reserved for the consideration of the President, has received his
\nassent.\n<\/p>\n
1374. Ignoring the proviso for the moment, one finds that the main clause of the article
\nfalls into two parts. The first part provides that a law of a particular description shall not
\nbe deemed to be void on the ground that it affects injuriously somebody’s fundamental
\nrights under Articles 14, 19 and 31. The second part provides that if such a law contains a
\nparticular declaration, courts shall not entertain a particular kind of objection.
\n1375. In the first place, it should be noted that what is saved by Article 31C is a law i.e. a
\nlaw made by a competent legislature. Secondly since Article 31C comes under the
\nspecific heading ‘Right to property’ in Part III dealing with fundamental rights it is
\nevident that the law must involve right to property. That it must of necessity do so is
\napparent from the description of the law given in the article. The description is that the
\nlaw gives effect to the policy of the State towards securing the principles specified in
\nClauses (b) & (c) of Article 39. That article is one of the several articles in Part IV of the
\nConstitution dealing with Directive Principles of State Policy. Article 37 provides that
\nthough the Directive Principles are not enforceable by any court, they are nevertheless
\nfundamental in the governance of the country and it shall be the duty of the State to apply
\nthese principles in making laws. It follows from this that the Governments and
\nLegislatures are enjoined to make laws giving effect to the Directive Principles. We are
\nimmediately concerned with the Directive Principles contained in Article 39(b) and (c)
\nnamely, that the State shall direct its policy towards securing (b) that the ownership and
\ncontrol of the material resources of the community are so distributed as best to subserve
\nthe common good; and (c) that the operation of the economic system does not result in
\nthe concentration of wealth and means of production to the common detriment. In short
\nClause (b) contemplates measures to secure what is known as equitable distribution of
\ncommunity resources and Clause (c) contemplates measures for preventing concentration
\nof wealth and means of production in a few private hands. Read along with Article 38
\nand other principles in this Part, they justify the conclusions of Granville Austin in his
\nIndian Constitution : Cornerstone of a Nation-that our Constitution is informed by social
\ndemocratic principles. See : pages 41-52 of the book. The final conclusion he came to is
\nexpressed in this way:\n<\/p>\n
By establishing these positive obligations of the state, the members of the
\nConstituent Assembly made it the responsibility of future Indian
\ngovernments to find a middle way between individual liberty and the
\npublic good, between preserving the property and the privilege of the few
\nand bestowing benefits on the many in order to liberate the powers of all
\nmen equally for contributions to the common good. p. 52.\n<\/p>\n
The philosophy which informs the Constitution looks on concentration of wealth and
\nmeans of production as a social evil because such concentration, resulting in the
\nconcentration of political and economic power in the hands of a few private individuals,
\nnot only leads to unequal freedom, on the one hand, but results, on the other, in
\nundermining the same in the case of many. In such conditions it is widely believed that
\nthe goals of Equality and Justice, social, economic and political, become unreal, and
\nsince the Constitution itself directs that laws may be made to inhibit such conditions it is
\ninevitable that these laws aimed at the reduction of unequal freedoms enjoyed by a few
\nwill impair to some extent their fundamental rights under Articles 14, 19 and 31. That
\nwould be justified even on the ‘core’ theory of Mr. Palkhivala because he admits the
\npossibility of an abridgement of a fundamental right in similar cases. Therefore, Article
\n31C provides, even as Article 31A provided many years ago, that such laws should not be
\ncalled in question on the grounds furnished by Articles 14, 19 and 31. If a law is made
\nwith a view to giving effect to the Directive Principles mentioned in Article 39(b) and
\n39(c) the law is in conformity with the direct mandate of the Constitution and must be
\ndeemed to be Constitutional. The effect of the first part of Article 31C is the I same as if,
\na proviso had been inserted below Article 13(2) or each of the several Articles 14, 19 and
\n31 excluding its application to the particular type of law mentioned in Article 31C. If the
\nlaw does not genuinely purport to give effect to the specified Directive Principles it will
\nnot be secure against the challenge under Articles 14, 19 and 31. Indeed since the
\nDirective Principles are couched in general terms they may present some difficulty in
\njudging whether any individual law falls within the ambit of the description given in
\nArticle 31C but such a difficulty is no reason for denying, the validity of the amendment.
\nCourts had no difficulty in deciding whether any particular law did fall under Article 31A
\nor not.\n<\/p>\n
1376. The real difficulty is raised by the second part of Article 31C which provides “No
\nlaw containing a declaration that it is for giving effect to such policy shall be called in
\nquestion in any court on the ground that it does not give effect to such policy.” The
\ncontention is that if any law makes a declaration as stated, that is conclusive of the fact
\nthat it is covered by Article 39(b) or (c) and courts will be debarred from entertaining any
\nobjection on the ground that it is not so covered. In other words, it is submitted, the
\ndeclaration when made in a law whether genuinely falling under Article 39(b) or (c) or
\nnot will conclude the issue and the courts will be debarred from questioning the
\ndeclaration. The result is, according to the submission, that the legislatures may with
\nimpunity make a law contravening provisions of the Constitution and by the simple
\ndevice of a declaration insert the law as an exception to Articles 14, 19 and 31-i.e. in
\nother words amend the Constitution which the legislature cannot do. The Constitution, it
\nis pointed out, may be amended only in the way prescribed in Article 368 and no other
\nand, therefore, Article 31C authorising an amendment in a way other than the one laid
\ndown in Article 368, which still forms part of the Constitution with full force, is invalid.
\n1377. On behalf of the Union, however, it is claimed that the new Article 31C does not
\nhave the effect, attributed to it on behalf of the petitioners. It is, submitted, that Article
\n31C does not prevent judicial review as to whether the law referred to therein is of the
\ndescription it maintains it is. If on a consideration of its true nature and character the
\ncourt considers that the legislation is not one having a nexus with the principles contained
\nin Article 39(b) or (c), it will not be saved under Article 31C. The sole purpose of the
\ndeclaration’, according to the submission is to remove from the scope of judicial review a
\nquestion of a political nature the reason for it being, as explained in Beauharanis v.
\nIllinois 343 U.S. 250. “The legislative remedy in practice might not mitigate the evil or
\nmight itself give rise to new problems which would only manifest once again the paradox
\nof reform. It is the price to be paid for the trial and error inherent in legislative efforts to
\ndeal with obstinate social issues.\n<\/p>\n
1378. It appears to us that the approach suggested on behalf of the Union is the correct
\napproach to the interpretation of Article 31C.\n<\/p>\n
1379. The State’s functional policy is to strive to promote the welfare of the people by
\nsecuring and protecting as effectively as it may a social order in which justice, social,
\neconomic and political shall, inform all the institutions of the national life. (Article 38).
\nThat is the goal of the State poticy. As practical steps, the State is commanded in the next
\nfollowing articles from Articles 39 to 51 to direct its policy towards securing some aims
\nwhich, being well-known concepts of social democratic theory, are described as
\n‘principles’. See for example the marginal note of Article 39. Compendiously these are
\ndescribed as Directive Principles of State Policy under the heading of Part IV.
\n1380. We are concerned with Article 39(b) and (c). The State is commanded, in
\nparticular, to direct its policy towards securing two aims, one described in (b) and the
\nother in (c). In directing its policy towards securing the aims, the State will evidently
\nhave to make laws. A description of such a law is given in the first part of Article 31C-as
\na law giving effect to the policy of the State towards securing the principles (aims)
\nspecified in Articles 39(b) or (c). If a law truly answers that description it will be secure
\nagainst a challenge under Articles 14, 19 and 31; otherwise not. When such a challenge is
\nmade, it will be the obvious duty of the court to ascertain on an objective consideration of
\nthe law whether it falls within the description. What the court will have to consider is
\nwhether it is a law which can reasonably be described as a law giving effect to the policy
\nof the State towards securing the aims of Article 39(b) or (c). That is an issue which is
\ndistinct from the other issue whether the law doesnot give effect to the policy of the State
\ntowards securing the said aims. A law reasonably calculated to serve a particular aim or
\npurpose may not actually serve that aim or purpose; and it is this latter issue which is
\nexcluded from judicial review. In doing so the declaration does no more than what the
\ncourts themselves have beenalways saying viz. that they are not concerned with the
\nwisdom or policy of the legislation. Prohibition laws-for example in U.S.A. and
\nelsewhere, though made in order to give effect to the policy of the State to secure the
\neradication of the evil of drink did not have that effect. That may have been so because
\nthe law was inadequate or because the law gave rise to problems which were unforeseen.
\nBut that did not impair the genuineness of the law as being reasonably calculated to
\nachieve a certain result. The two questions are different. One involves the process of
\nidentification of the type of legislation by considering its scope and object, its pith and
\nsubstance. The other involves a process of evaluation by considering its merits and
\ndefects, the adequacy or otherwise of the steps taken to implement it or their capability of
\nproducing the desired result. A law made to give effect to the State’s policy of securing
\neradication of the drink evil can be properly identified, as such, if such identification is
\nnecessary to bemade by a court in order to see the application of a Constitutional
\nprovision. But it is an entirely different proposition to say that thelaw does not actually
\ngive effect to the State’s policy of securing the eradication of drink. That would require
\nan enquiry which courts cannot venture to undertake owing to lack of adequate means of
\nknowledge and sources of information. An enquiry, like that of a Commission, will lead
\nto debatable questions as to the adequacy of the provisions of the law, its deficiencies, the
\nsufficiency and efficiency of the executive side of the Government to implement it
\neffectively, the problems that arise in the course of implementation of the law and the
\nlike, ail of which do not legitimately fall within the ambit of an enquiry by a court. The
\nproblems are problems of legislative policy. It is for the legislature to decide what should
\ngo into the law to give effect to its policy towards securing its purpose. The legislature
\nwill have to consider the divergent views in the matter and make its own choice as to how
\nit can effectuate its policy. The courts are not concerned with that aspect of the matter
\nand even if a Jaw is considered a failure, courts cannot refuse to give effect to the same.
\nThe declaration does no more than forbid such an enquiry by the courts which the courts
\nthemselves would not have undertaken. The declaration is only by way of abundant
\ncaution.\n<\/p>\n
1381. No other ground is precluded from judicial review under Article 31C. It was rightly
\nconceded on behalf of the Union that the court in deciding whether the law falls within
\nthe general description given of it in Article 31C will be competent to examine the true
\nnature and character of the legislation, its design and the primary matter dealt with, its
\nobject and scope. See : e.g. Charles Russell v. The Queen [1882] (VII) Appeal Cases 829
\n(838-840). If the court comes to the conclusion that the above object of the legislation
\nwas merely a pretence and the real object was discrimination or something other than the
\nobject specified in Article (b) and (c), Article 31C would not be attracted and the validity
\nof the Statute would have to be tested independently of Article 31C. Similarly as
\nobserved in Attorney-General v. Queen Insurance Co. [1878] 3 Appeal Cases 1090 “if the
\nlegislation ostensibly under one of the powers conferred by the Constitution is in truth
\nand fact really to accomplish an unauthorised purpose the court would be entitled to tear
\nthe veil and decide according to the real nature of the statute.
\n1382. In that view of the true nature of Article 31C it cannot be said that the amendment
\nis invalid.\n<\/p>\n
1383. The twenty-fifth Amendment Act is, therefore, valid.\n<\/p>\n
1384. By the twenty-ninth Amendment, the two Kerala Acts challenged in this petition
\nwere included in the Ninth Schedule. Like other Acts included in that Schedule they are
\nimmune from challenge by reason of the protection given to the Schedule by Article 31B.
\nIt was sought to be argued that unless the Acts related to agrarian reform, implicit in the
\nwords ‘Without prejudice to the generality of the provisions contained in Article 31A’
\nwith which Article 31B opens, the protection was not available. That argument has been
\nrejected previously. See for example N.B. Jeejeebhoy v. Assistant Collector, Thana<\/a>
\n[1965] (1) S.C.R. 636. Actually the argument does not amount to a challenge to the
\nvalidity of the Amendment, hut an attempt to show that in spite of the Amendment, the
\ntwo laws would not be saved by Article 316. The twenty-ninth Amendment is not
\ndifferent from several similar Amendments made previously by which Statutes were
\nadded from time to time to the ninth schedule and whose validity has been upheld by this
\nCourt. The twenty-ninth Amendment is, therefore, valid.\n<\/p>\n
1385. My conclusions are:\n<\/p>\n
(1) The power and the procedure for the amendment of the Constitution
\nwere contained in the unamended Article 368. An Amendment of the
\nConstitution in accordance with the procedure prescribed in that Article is
\nnot a ‘law’ within the meaning of Article 13. An Amendment of the
\nConstitution abridging or taking away a fundamental right conferred by
\nPart III of the Constitution is not void as contravening the provisions of
\nArticle 13(2). The majority decision in Golak Nath v. State of Punjab is
\nwith respect, not correct.\n<\/p>\n
(2) There were no implied or inherent limitations on the Amending power
\nunder the unamended Article 368 in its operation over the fundamental
\nrights. There can be none after its amendment.\n<\/p>\n
(3) The twenty fourth, the twenty-fifth and the twenty-ninth Amendment
\nActs are valid.\n<\/p>\n
1386. The case will now be posted before the regular bench for disposal in accordance
\nwith law.\n<\/p>\n
H.R. Khanna J.\n<\/p>\n
1387. Questions relating to the validity of the Constitution (Twentyfourth Amendment)
\nAct, Constitution (Twentyfifth Amendment) Act and Constitution (Twehtyninth
\nAmendment) Act, as well as the question whether the Parliament acting under Article 368
\nof the Constitution can amend the provisions of Part III of the Constitution so as to take
\naway or abridge fundamental rights arise for determination in this petition under Article
\n32 of the Constitution. A number of other important questions, to which reference would
\nbe made hereafter, have also been posed during discussion, and they would be dealt with
\nat the appropriate stage. Similar questions arise in a number of other petitions, and the
\ncounsel of the parties in those cases have been allowed to intervene.
\n1388. The necessary facts may now be set out, while the details which have no material
\nbearing for the purpose of this decision can be omitted. Kerala Land Reform’s Act, 1963
\n(Act 1 of 1964) as originally enacted was inserted as item No. 39 in the Ninth Schedule to
\nthe Constitution. The said Act was subsequently amanded by Kerala-Land Reforms
\n(Amendment) Act, 1969 (Act 35 of 1969). The petitioner filed the present writ petition on
\nMarch 21, 1970 challenging the Constitutional Validity of the Kerala Land Reforms Act,.
\n1963 (Act 1 of 1964) as amended by the Kerala Land Reforms (Amendment) Act, 1969
\n(Act 35 of 1969). The aforesaid Act was also challenged in a number of petitions before
\nthe Kerala High Court. A Full Bench of the Kerala High Court as per its decision in V.N.
\nNarayanan Nair v. State of Kerala ILR [1970] (II) Kerala 315 upheld the validity of the
\nsaid Act, except in respect of certain provisions. Those provisions were declared to be
\ninvalid. The State of Kerala came up in appeal to this Court against the judgment of the
\nKerala High Court in so far as that court had held a number of provisions of the Act to be
\ninvalid. This Court dismissed the appeals of the State as per judgment dated April 26,
\n1972. (1972) 2 S.C.C. 364. Appeals filed by private parties against the judgment of the
\nKerala High Court upholding the validity of the other provisions too were dismissed.
\nSome writ petitions filed in this Court challenging the validity of the above mentioned
\nAct were also disposed of by this Court in accordance with its decision in the appeals
\nfiled by the the State of Kerala and the private parties.\n<\/p>\n
1389. The Kerala High Court as per judgment dated October 21, 1970 declared some
\nother provisions of the Kerala Land Reforms Act as amended by Act 35 of 1969 to the
\ninvalid and unConstitutional. After the above judgment of the High Court the Kerala
\nLand Reforms Act was amended by Ordinance 4 of 1971 which was promulgated on
\nJanuary 30, 1971. The Kerala Land Reforms (Amendment) Bill, 1971 was thereafter
\nintroduced in the Legislative Assembly to replace the ordinance. The Bill was passed by
\nthe Legislative Assembly on April 26, 1971 and received the assent of the President on
\nAugust 7, 1971. It was thereafter published as the Kerala Land Reforms Act, 1971 (Act
\n25 of 1971) in the Gazette Extraordinary on August 11, 1971. By the Constitution
\n(Twentyninth Amendment) Act, 1972 which was assented to by the President on June 9,
\n1972 the Kerala Land Reforms (Amendment) Act, 1969 (Act 35 of 1969> and Kerala
\nLand Reforms (Amendment) Act, 1971 (Act 25 of 1971) were included in the Ninth
\nSchedule to the Constitution.\n<\/p>\n
1390. The writ petition was amended twice. The first amendment was made with a view
\nto enable the petitioner to impugn the Constitutional validity of the Kerala Reforms
\n(Amendment) Act (Act 25 of 1971). The second amendment of the petition was made
\nwith a view to include the prayer to declare the Twentyfourth, Twentyfifth and
\nTwentyninth Amendments to the Constitution as unConstitutional, ultra vires, null and
\nvoid.\n<\/p>\n
1391. It may be mentioned that the Twentyfourth Amendment related to the amendment
\nof the Constitution. Section 2 of the Amendment Act added Clause (4) in Article 13 as
\nunder:\n<\/p>\n
(4) Nothing in this article shall apply to any amendment of this
\nConstitution made under Article 368.\n<\/p>\n
1392. Section 3 of the Amendment Act read as under:\n<\/p>\n
3. Article 368 of the Constitution shall be renumbered as Clause (2)
\nthereof, and\n<\/p>\n
(a) for the marginal heading to that article, the following marginal heading
\nshall be substituted, namely:\n<\/p>\n
Power of Parliament to amend the Constitution and
\nprocedure therefor.;\n<\/p>\n
(b) before Clause (2) as so re-numbered, the following clause shall be
\ninserted, namely:\n<\/p>\n
(1) Notwithstanding anything in this Constitution,
\nParliament may in exercise of its constituent power amend
\nby way of addition, variation or repeal any provisions of
\nthis Constitution in accordance with the procedure laid
\ndown in this article,;\n<\/p>\n
(c) in Clause (2) as so re-numbered, for the words “it shall be presented to
\nthe President for his assent and upon such assent being given to the Bill,”
\nthe words “it shall be presented to the President who shall give his assent
\nto the Bill and thereupon” shall be substituted;\n<\/p>\n
(d) after Clause (2) as so re-numbered, the following clause shall be
\ninserted, namely:\n<\/p>\n
(3) Nothing in Article 13 shall apply to any amendment
\nmade under this article.\n<\/p>\n
We may set out Articles 13 and 368 as they existed both before and after amendment
\nmade by the Twentyfourth Amendment Act:\n<\/p>\n
 Before the Amendment After the Amendment 13. (1) All laws in force in
\nthe territory of 13. (1) All laws in force in the territory India
\nimmediately before the of India immediately before commencement of this
\nConstitution, the commencement of this Consitution, so far as they are
\ninconsistent in far so as they are inconsistent with the provisions of
\nthis part, shall with the provisions of this Part, to the extent of
\nsuch inconsistency, shall to the extent of such inconssistency be void.
\nbe void. (2) The State shall not make any law (2) The State shall not
\nmake any law which takes away or abridges the rights which takes away
\nor abridges the conferred by this Part and any law made rights
\nconferred by this Part and any in contravention of this clause shall,
\nlaw made in contravention of this to the extent of the contravention,
\nclause shall, to the extent of the be void. contravention, be void. (3)
\nIn this article, unless the context (3) In this article, unless the
\ncontext otherwise requires. otherwise requires, (a) “law” includes any
\nOrdinance, order (a) “law” includes any Ordinance byelaw, rules,
\nregulation, notification, order, byelaw, rule, regulation, custom or
\nusage having in the territory notification, of India the force of law;
\ncustom or usage having in the territory of India the force, of law; (b)
\n“laws inforce” includes laws passed (b) “laws in force” includes laws
\nor made by a Legislature or passed or made by a Legislature or other
\ncompetent authority in the other competent authority in the territory
\nof India before the commencement territory of India before the
\ncommencement of the Constitution and not of this Constitution and
\npreviously repealed, notwithstanding not previously repealed,
\nnotwithstanding that any such law or any part that any such law or any
\nthereof may not be then in operation part thereof may not be then of
\neither at all or in particular areas. operation either at all or in
\nparticular areas (4) Nothing in this article shall apply to any
\namendment of this Constitution made under Article 368. 368. An
\namendment of this Constitution 368. (r) Notwithstanding anything may be
\ninitiated only by the introdution in this Constitution, Parliament may
\nof a Bill for the purpose in in exercise of its constituent power
\neither House of Parliament, and when amend by way of addition,
\nvariation the Bill is passed in each House or repeal any provision of
\nthis Constitution by a majority of the total membership in accordance
\nwith the procedure of that House and by a majority of not laid down in
\nthis article less than twothirds of the members of that House present
\nand voting, it shall (2) An amendment of this Constitution be presented
\nto the President may be initiated only by the introduction for his
\nassent and upon such assent being of a Bill for the purpose in given to
\nthe Bill, the Constitution either House of Parliament, and when shall
\nstand amended in accordance with the Bill is passed in each House by a
\nthe terms of the Bill : majority of the total membership of that House
\nand by a majority of Provided that if such amendment seeks to not less
\nthan two-thirds of the members make any change in- of that House
\npresent and voting, it shall be presented to the President who shall
\ngive his assent to the Bill and thereupon the Constitution shall Stand
\namended in accordance with the terms of the Bill : Provided that if
\nsuch amendment seeks to make any change in- (a) Article 54, Article 55,
\nArticle 73, (a) Article 54, Article 55, Article 73, Article 162 or
\nArticle 241, or Article 162 or Article 241, or (b) Chapter IV of Part
\nV, Chapter V (b) Chapter IV of Part V, Chapter : V of Part VI, or
\nChapter I of Part XI or of Part VI, or Chapter I of Part XI or (c) any
\nof the Lists in the Seventh (c) any of the Lists in the Seventh
\nSchedule, or Schedule, or (d) the representation of States in (d) the
\nrepresentration of States in Parliament, or Parliament, or (e) the
\nprovisions of this article, (e) the provisions of this article, the
\namendment shall also require to the amendment shall also require to be
\nratified by the Legislatures of not be ratified by the Legislatures of
\nless than one-half of the States by not less than one-half of the
\nStates by resolutions to that effect passed by resolutions to that
\neffect passed by those Legislatures before the Bill making those
\nLegislatures before the Bill provision for such amendment is presented
\nmaking provision of or such amendment to the President for assent. is
\npresented to the President for assent. (3) Nothing in Article 13 shall
\napply to any amendment made under this article.\n<\/p>\n
1393. The Constitution (Twentyfifth Amendment) Act, 1971 amended Article 31 of the
\nConstitution. The scope of the amendment would be clear from Section 2 of the
\nAmendment Act which reads as under:\n<\/p>\n
2. In Article 31 of the Constitution,-\n<\/p>\n
(a) for Clause (2), the following clause shall be substituted
\nnamely:\n<\/p>\n
(2) No property shall be compulsorily
\nacquired or requisitioned save for a public
\npurpose and save by authority of a law
\nwhich provides for acquisition or
\nrequisitioning of the property for an amount
\nwhich may be fixed by such law or which
\nmay be determined in accordance with such
\nprinciples and given in such manner as may
\nbe specified in such law; and no such law
\nshall be called in question in any court on
\nthe ground that the amount so fixed or
\ndetermined is not adequate or that the whole
\nor any part of such amount is to be given
\notherwise than in cash:\n<\/p>\n
Provided that in making any law providing
\nfor the compulsory acquisition of any
\nproperty of an educational institution
\nestablished and administered by a minority,
\nreferred to in Clause (1) of Article 30, the
\nState shall ensure that the amount fixed by
\nor determined under such law for the
\nacquisition of such property is such as
\nwould not restrict or abrogate the right
\nguaranteed under that clause”;\n<\/p>\n
(b) after Clause (2A), the following clause shall be inserted,
\nnamely:\n<\/p>\n
(2B) Nothing in Sub-clause (f) of Clause (1)
\nof Article 19 shall affect any such law as is
\nreferred to in Clause (2).\n<\/p>\n
1394. The Constitution (Twentyfifth Amendment) Act also added Article 31C after
\nArticle 31B as under:\n<\/p>\n
31C. Notwithstanding anything contained in Article 13, no law giving
\neffect to the policy of the State towards securing the principles specified in
\nClause (b) or Clause (c) of Article 39, shall be deemed to be void on the
\nground that it is inconsistent with, or takes away or abridges any of the
\nrights conferred by Article 14, Article 19 or Article 31; and no law
\ncontaining a declaration that it is for giving effect to such policy shall be
\ncalled in question in any court on the ground that it does not give effect to
\nsuch policy.\n<\/p>\n
Provided that where such law is made by the Legislature of a State, the
\nprovisions of this article shall not apply thereto unless such law, having
\nbeen reserved for the consideration of the President, has received his
\nassent.\n<\/p>\n
1395. The Constitution (Twentyninth Amendment) Act, as mentioned earlier, inserted the
\nfollowing as entries No. 65 and 66 respectively in the Ninth Schedule to the Constitution:\n<\/p>\n
(i) The Kerala Land Reforms (Amendment) Act, 1969 (Kerala Act 35 of
\n1969); and\n<\/p>\n
(ii) The Kerala Land Reforms (Amerdment) Act, 1971 (Kerala Act 25 of
\n1971).\n<\/p>\n
1396. The question as to whether the fundamental rights contained in Part III of the
\nConstitution could be taken away or abridged by amendment was first considered by this
\nCourt in the case of Sri Sankari Prasad Singh Deo v. Union of India And Anr. [1952]
\nS.C.R. 89 In that case the appellant challenged the First Amendment of the Constitution.
\nThe First Amendment made changes in Articles 15 and 19 of the Constitution. In
\naddition, it provided for insertion of two Articles, 31A and 31B, in Part III. Article 31A
\nprovided that no law providing for acquisition by the State of any estate or of any such
\nrights therein or the extinguishment or modification of any such right, shall be deemed to
\nbe void on the ground that it was inconsistent with or took away or abridged any of the
\nrights conferred by any provision in Part III. The word “estate” was also defined for the
\npurpose of Article 31A. Article 31B provided for validation of certain Acts and
\nRegulations which were specified in the Ninth Schedule to the Constitution. The said
\nSchedule was added for the first time in the Constitution. The Ninth Schedule at that time
\ncontained 13 Acts, all relating to estates, passed by various Legislatures off the Provinces
\nor States. It was provided that those Acts and Regulations would not be deemed to be
\nvoid or ever to have become void on the ground that they were inconsistent with or took
\naway or abridged any of the rights conferred by any provision of Part III. It further
\nprovided that notwithstanding any judgment, decree or order of any court or Tribunal to
\nthe contrary, all such Acts and Regulations, subject to the power of any competent
\nLegislature to repeal or amend them, would continue in force.\n<\/p>\n
1397. The attack on the validity of the First Amendment was based primarily on three
\ngrounds. Firstly, that amendments to the Constitution made under Article 368 were liable
\nto be tested under Article 13(2); secondly, that in any case as Articles 31A and 31B
\ninserted in the Constitution by the First Amendment affected the powers of the High
\nCourt under Article 226 and of this Court under Articles 132 and 136, the Amendment
\nrequired ratification under the proviso to Article 368; and thirdly, that Articles 31A and
\n31B were invalid on the ground that they related to matters covered by the State List.
\nThis Court rejected all the three contentions. It held that although “law” would ordinarily
\ninclude Constitutional law, there was a clear demarcation between ordinary law made in
\nthe exercise of legislative power and Constitutional law made in the exercise of
\nconstituent power. In the context of Article 13, “law” must be taken to mean rules or
\nregulations made in exercise of ordinary legislative power and not amendments to
\nConstitution made in the exercise of constituent power. Article 13(2), as such, was held
\nnot to affect amendments made under Article 368. This Court further held that Articles
\n31A and 31B did not curtail the power, of this Court and of the High Court and as such
\ndid not require ratification under the proviso contained in Article 368. Finally, it was held
\nthat Articles 31A and 31B were essentially amendments to the Constitution and the
\nParliament had the power to make such amendments. In consequence, the First
\nAmendment to the Constitution was held to be valid.\n<\/p>\n
1398. The second case in which there arose the question of the power of the Parliament to
\namend fundamental rights was Sajjan Singh v. State of Rajasthan [1965] 1 S.C.R. 933. In
\nthis case the Seventeenth Amendment made on June 29, 1964 was challenged. By the
\nSeventeenth Amendment changes were made in Article 31A of the Constitution and 44
\nActs were included in the Ninth Schedule to the Constitution to give them complete
\nprotection from attack under any provision of Part III of the Constitution. One of the
\ncontentions advanced in Sajjan Singh’s case was that, as Article 226 was likely to be
\naffected by the Seventeenth Amendment, it required ratification under the proviso to
\nArticle 368 and that the decision in Sankari Prasad’s case (supra) which had negatived
\nsuch a contention required reconsideration. It was also urged that the Seventeenth
\nAmendment was legislation with respect to land and the Parliament had no right to
\nlegislate in that respect. It was further argued that as the Seventeenth Amendment
\nprovided that Acts put in the Ninth Schedule would be valid in spite of the decision of the
\ncourts, it was unConstitutional. This Court by a majority of 3 to 2 upheld the correctness
\nof the decision in Sankari Prasad’s case. This Court further held unanimously that the
\nSeventeenth Amendment did not require ratification under the proviso to Article 368. The
\nParliament, it was held, in enacting the amendment was not legislating with respect to
\nland and that it was open to Parliament to validate legislation which had been declared
\ninvalid by courts. By a majority of 3 to 2 the Court held that the power conferred by
\nArticle 368 included the power to take away fundamental rights guaranteed by Part III
\nand that the power to amend was a very wide power which could not be controlled by the
\nliteral dictionary meaning of the word “amend”. The word “law” in Article 13(2), it was
\nheld, did not include an amendment of the Constitution made in pursuance of Article 368.
\nThe minority, however, doubted the correctness of the view taken in Sankari Prasad’s
\ncase to the effect that the word “law” in Article 13(2) did not include amendment to the
\nConstitution made under Article 368.\n<\/p>\n
1399. The correctness of the decision of this Court in Sankari Prasad’s case and of the
\nmajority in Sajjan Singh’s case was questioned in the case of I.C. Golak Nath and Ors. v.
\nState of Punjab and Anr. [1967] 2 S.C.R. 762. The case was heard by a special bench
\nconsisting of 11 judges. This Court in that case was concerned with the validity of the
\nPunjab Security of Land Tenures Act, 1953 and of the Mysore Land Reforms Act. These
\ntwo Acts had been included in the Ninth Schedule to the Constitution by the Constitution
\n(Seventeenth Amendment) Act, 1964. It was held by Subba Rao C.J., Shah, Sikri, Shelat
\nand Vaidialingam JJ. Hidayatullah J. concurring) that fundamental rights cannot be
\nabridged or taken away by the amending procedure in Ariticle 368 of the Constitution.
\nAn amendment of the Constitution, it was observed, is “law” within the meaning of
\nArticle 13(2) and is, therefore, subject to Part III of the Constitution. Subba Rao C.J.,
\nwho gave the judgment on his own behalf as well as on behalf of Shah, Sikri, Shelat and
\nVaidialingam JJ. gave his conclusions as under:\n<\/p>\n
(1) The power of the Parliament to amend the Constitution is derived from
\nArticles 245, 246 and 248 of the Constitution and not from Article 368
\nthereof which only deals with procedure. Amendment is a legislative
\nprocess.\n<\/p>\n
(2) Amendment is ‘law’ within the meaning of Article 13 of the
\nConstitution and, therefore, if it takes away or abridges the rights
\nconferred by Part III thereof, it is void.\n<\/p>\n
(3) The Constitution (First Amendment) Act, 1951 Constitution (Fourth
\nAmendment) Act, 1955, and the Constitution (Seventeenth Amendment)
\nAct, 1964, abridge the scope of the fundamental rights. But, on the basis
\nof earlier decisions of this Court, they were valid.\n<\/p>\n
(4) On the application of the doctrine of ‘prospective over-ruling’, as
\nexplained by us earlier, our decision will have only prospective operation
\nand, therefore, the said amendments will continue to be valid.
\n(5) We declare that the Parliament will have no power from the date of
\nthis decision to amend any of the provisions of Part III of the Constitution
\nso as to take away or abridge the fundamental rights enshrined therein.
\n(6) As the Constitution (Seventeenth Amendment) Act holds the field, the
\nvalidity of the two impugned Acts, namely, the Punjab Security of Land
\nTenures Act X of 1953, and the Mysore Land-Reforms Act X of 1962, as
\namended by Act XIV of 1965, cannot be questioned on the ground that
\nthey offend Articles 13, 14 or 31 of the Constitution.\n<\/p>\n
Hidayatullah J. summed up his conclusions as under:\n<\/p>\n
(i) that the Fundamental Rights are outside the amendatoryprocess if the
\namendment seeks to abridge or take away any of the rights;\n<\/p>\n
(ii) that Sankari Prasad’s case (and Sajjan Singh’t case which followed it)
\nconceded the power of amendment over Part III of the Constitution on an
\nerroneous view of Articles 13(2) and 368;\n<\/p>\n
(iii) that the Fust, Fourth and Seventh Amendments being part of the
\nConstitution by acquiescence for a long time, cannot now be challenged
\nand they contain authority for the Seventeenth Amendment\n<\/p>\n
(iv) that this Court having now laid down that Fundamental Rights cannot
\nbe abriged or taken away by the exercise of amendtory process in Article
\n368, any further inroad into these rights as they exist today will be illegal
\nand unConstitutional unless it complies with Part III in general and Article
\n13(2) in particular;\n<\/p>\n
(v) that for abridging or taking away Fundamental Rights, a Constituent
\nbody will have to be convoked; and\n<\/p>\n
(vi) that, the two impugned Acts, namely, the Punjab Security of Land
\nTenures Act, 1953 (X of 1953) and the Mysore Land Reforms Act, 1961
\n(X of 1962) as amended by Act XIV of 1965 are valid under the
\nConstitution not because they are included in Schedule 9 of the
\nConstitution but because they are protected by Article 31-A, and the
\nPresident’s assent.\n<\/p>\n
As against the view taken by the majority, Wanchoo, Bachawat, Ramaswami, Bhargava
\nand Mitter, JJ. gave dissenting judgments. According to them, Article 368 carried the
\npower to amend all parts of the Constitution including the fundamental rights in Part III
\nof the Constitution. An amendment, according to the five learned Judges, was not “law”
\nfor the purpose of Article 13(2) and could not be tested under that article. The learned
\nJudges accordingly reaffirmed the correctness of the decision in the cases of Sankari
\nPrasad and Sajjan Singh. Some of the conclusions arrived at by Wanchoo J., who gave
\nthe judgment on his own behalf as well as on behalf of Bhargava and Mitter JJ. may be
\nreproduced as under:\n<\/p>\n
(i) The Constitution provides a separate part headed ‘Amendment of the
\nConstitution’ and Article 368 is the only article in that Part. There can
\ntherefore, be no doubt that the power to amend the Constitution must be
\ncontained in Article 368.\n<\/p>\n
(ii) There is no express limitation on power of amendment in Article 368
\nand no limitation can or should be implied therein. If the Constitution
\nmakers intended certain basic provisions in the Constitution, and Part III
\nin particular, to be not amendable there is no reason why it was not so
\nstated in Article 368.\n<\/p>\n
(iii) The power conferred by the words of Article 368 being unfettered,
\ninconsistency between that power and the provision in Article 13(2) must
\nbe avoided Therefore in keeping with the unfettered power in Article 368
\nthe word “law” in Article 13(2) must be read as meaning law passed under
\nthe ordinary legislative power and not a Constitutional amendment.\n<\/p>\n
(iv) Though the period for which Sankari Prasad’s case has stood
\nunchallenged is not long, the effects which have followed on the passing
\nof State laws on the faith of that decision, are so overwhelming that the
\ndecision should not be disturbed, otherwise chaos will follow. This is the
\nfittest possible case in which the principle of stare decisis should be
\napplied.\n<\/p>\n
(v) The doctrine of prospective overruling cannot be accepted in this
\ncountry. The doctrine accepted here is that courts declare law and that a
\ndeclaration made by a court is the law of the land and takes effect from the
\ndate the law came into force. It would be undesirable to give up that
\ndoctrine and supersede it with the doctrine of prospective overruling.
\nThe main conclusions of Bachawat J. were as under:\n<\/p>\n
(i) Article 368 not only prescribes the procedure but also gives the power
\nof amendment.\n<\/p>\n
(ii) The power to amend the Constitution cannot be said to reside in
\nArticle 248 and List I, item 97 because if amendment could be made by
\nordinary lagislative process Article 368 would be meaningless.\n<\/p>\n
(iii) The contention that a Constitutional amendment under Article 368 is a
\nlaw within the meaning of Article 13 must be rejected.\n<\/p>\n
(iv) There is no conflict between Articles 13(2) and 368. The two articles
\noperate in different fields, the former in the field of law, the latter in that
\nof Constitutional amendment.\n<\/p>\n
(v) If the First, Fourth, Sixteenth & Seventeenth Amendment Acts are
\nvoid they do not legally exist from their inception. They cannot be valid
\nfrom 1951 to 1957 and invalid thereafter. To say that they were valid in
\nthe past and will be invalid in the future is to amend the Constitution. Such
\na naked power of amendment is not given to the Judges and therefore the
\ndoctrine of prospective overruling cannot be adopted.\n<\/p>\n
We may now set out some of the conclusions of Ramswami J. as under:\n<\/p>\n
(i) In a written Constitution the amendment of the Constitution is a
\nsubstantive constituent act which is made in the exercise of the sovereign
\npower through a predesigned procedure unconnected with ordinary
\nlegislation. The amending power in Article 368 is hence sui generis and
\ncannot be compared to the lawmaking power of Parliament pursuant to
\nArticle 246 read with Lists I and III. It follows that the expression ‘law’ in
\nArticle 13(2) cannot be construed as including an amendment of the
\nConstitution which is achieved by Parliament in exercise of its sovereign
\nconstituent power, but must mean law made by Parliament in its
\nlegislative capacity under Article 246 read with List I and List III of the
\n7th Schedule.\n<\/p>\n
(ii) The language of Article 368 is perfectly general and empowers
\nParliament to amend the Constitution without any exception whatsoever.
\nThe use of the word ‘fundamental’ to describe the rights in Part III and the
\nword ‘gurantecd’ in Article 32 cannot lift the fundamental lights above the
\nConstitution itself.\n<\/p>\n
(iii) There is no room for an implication in the construction of Article 368.
\nIf the Constitution makers wanted certain basic features to be
\nunamendable they would have said so.\n<\/p>\n
(iv) It cannot be assumed that the Constitution makers intended to forge a
\npolitical strait-jacket for generations to come. Today at a time when
\nabsolutes are discredited, it must not be too readily assumed that there are
\nbasic features of the Constitution which shackle the amending power and
\nwhich take precedence over the general welfare of the nation and the need
\nfor agrarian and social reform.\n<\/p>\n
(v) If the fundamental rights are unamendable and if Article 368 does not
\ninclude any such power it follows that the amendment of, say Article 31
\nby insertions of Articles 31A and 31B can only be made by a voilent
\nrevolution. It is doubtful if the proceedings of a new Constitutent
\nAssembly that may be called will have any legal validity for if the
\nConstitution provides its own method of amendment, any other method
\nwill be unConstitutional and void.\n<\/p>\n
(vi) It was not necessary to express an opinion on the doctrine of
\nprospective overruling of legislation.\n<\/p>\n
1400. Before dealing with Article 368, we may observe that there are twotypes of
\nConstitutions, viz., rigid and flexible. It is a frequently held but erroneous impression that
\nthis is the same as saying nondocumentary or documentary. Now, while it is true that a
\nnon-documentary Constitution cannot be other than flexible, it is quite possible for a
\ndocumentary Constitution not to be rigid. What, then, is that makes a Constitution
\nflexible or rigid? The whole ground of difference here is whether the process of
\nConstitutional law-making is or is not identical with the process of ordinary law-making.
\nThe Constitution which can be altered or amended without any special machinery is a
\nflexible Constitution. The Constitution which requires special procedure for its alteration
\nor amendment is a rigid Constitution (see p. 66-68 of the Modern Political Constitutions
\nby C.F. Strong). Lord Birkenhead L.C. adopted similar test in the Australian
\n(Queensland) case of McCawley v. The King [1920] A.C. 763 though he used the
\nnomenclature controlled and uncontrolled Constitutions in respect of rigid and flexible
\nConstitutions. He observed in this connection:\n<\/p>\n
The difference of view, which has been, the subject of careful analysis by
\nwriters upon the subject of Constitutional law, may be traced mainly to the
\nspirit and genius of the nation in which a particular Constitution has its
\nbirth. Some communities, and notably Great Britain, have not in the
\nframing of Constitutions felt it necessary, or thought it useful, to shackle
\nthe complete independence of their successOrs. They have shrunk from
\nthe assumption that a degree of wisdom and foresight has been conceded
\nto their generation which will be, or may be, wanting to their successors,
\nin spite of the fact that those successors will possess more exprience of the
\ncircumstances and necessities amid which their lives are lived. Those
\nConstitution framers who have adopted the other view must be supposed
\nto have believed that certainty and stability were in such a matter the
\nsupreme desiderata. Giving effect to this belief, they have created
\nobstacles of varying difficulty in the path of those who would lay rash
\nhands upon the ark of the Constitution.\n<\/p>\n
1401. Let us now deal with Article 368 of the Constitution. As amendments in Articles
\n13 and 368 of the Constitution were made in purported exercise of the powers conferred
\nby Article 368 in the form it existed before the amendment made by the Twentyfourth
\nAmendment, we shall deal with the article as it was before that amendment. It may be
\nmentioned in this context that Article 4, Article 169, Fifth Schedule Para 7 and Sixth
\nSchedule Para 21 empower the Parliament to pass laws amending the provisions of the
\nFirst, Fourth, Fifth and Sixth Schedules and making amendments of the Constitution
\nconsequential on the formation of new States or alteration of areas, boundaries, or names
\nof existing States, as well as on abolition or creation of legislative councils in States.
\nFifth Schedule contains provisions as to administration of controlled areas and scheduled
\ntribes while Sixth Schedule contains provisions as to the administration of tribal areas. It
\nis further expressly provided that no such law would be deemed to be an amendment of
\nthe Constitution for the purpose of Article 368. There are a number of articles which
\nprovide that they would continue to apply till such time as a law is made in variance of
\nthem. Some of those articles are:\n<\/p>\n
10, 53(3), 65(3), 73(2), 97, 98(3), 106, 120(2), 135, 137, 142(1), 146(2),
\n148(3), 149, 171(2), 186, 187(3), 189(3), 194(3), 195, 210(2), 221(2), 225,
\n229, 239(1), 241(3), 283(1) and (2), 285 (2), 287, 300(1), 313, 345 and\n<\/p>\n
373.
\n1402. The other provisions of the Constitution can be amended by recourse to Article 368
\nonly.\n<\/p>\n
1403. Article 368 finds its place in Part XX of the Constitution and is the only article in
\nthat part. The part is headed “Amendment of the Constitution”. It is not disputed that
\nArticle 368 provides for the procedure of amending the Constitution. Question, however,
\narises as to whether Article 368 also contains the power to amend the Constitution. It may
\nbe stated in this connection that all the five Judges who gave the dissenting judgment in
\nthe case of Golaknath, namely, Wanchoo, Bachawat, Ramaswamil, Bhargava and Mitter
\nJJ. expressed the view that Article 368 dealt with not only the procedure of amending the
\nConstitution but also contained the power to amend the Constitution. The argument that
\nthe power to amend the Constitution was contained in the residuary power of Parliament
\nin Article 248 read with item 97 of List I was rejected. Hidayatullah J. agreed with the
\nview that amendment to the Constitution is not made under power derived from Article
\n248 read with entry 97 of List I. According to him, the power of amendment was sat
\ngeneris. As against that, the view taken by Subha Rao C.J., Shah, Sikri, Shelat and
\nVidialingam JJ. was that Article 368 merely prescribed the various steps in the matter of
\namendment of the Constitution and that power to amend the Constitution was derived
\nfrom Articles 245, 246 and 248 read with item 97 of List I. It was said that the residuary
\npower of Parliament can certainly take in the power to amend the Constitution.
\n1404. Amendment of the Constitution, according to the provisions of Article 368, is
\ninitialed by the introduction of a Bill in either House of Parliament The Bill has to be
\npassed in each House by a majority of total membership of that House and by a majority
\nof not less than two-thirds members of the House present and voting. After it has been so
\npassed, the Bill is to be presented to the President for his assent. When the President
\ngives his assent to the Bill, the Constitution, according to Article 368, shall stand
\namended in accordance with the terms of the Bill. There is a proviso added to Article 368
\nwith respect to amendment of certain articles and other provisions of the Constitution
\nincluding Article 368. Those provisions can be amended only if the Bill passed by the
\ntwo Houses of Parliament by necessary majority, as mentioned earlier, is ratified by the
\nLegislatures of not less than one-half of the States by iresolutions to that effect. In such a
\ncase, the Bill has to be presented to the President for his assent only after the necessary
\nratification by the State Legislatures. On the assent being given, the Constitution stands
\namended in accordance with the terms of the Bill.\n<\/p>\n
1405. The words in Article 368 “the Constiuttion shall stand amended in accordance with
\nthe terms of the Bill”, in my opinion, clearly indicate that the said article provides not
\nmerely the procedure for amending the Constitution but also contains the power to amend
\nArticle 368. The fact that a separate Part was provided with the heading “Amendment of
\nthe Constitution” shows that the said part was confined not merely to the procedure for
\nmaking the amendment but also contained the power to make the amendment. It is no
\ndoubt true that Article 248 read with item 97 of List I has a wide scope, but in spite of the
\nwidth of its scope, it cannot, in my opinion, include the power to amend the Constitution.
\nThe power to legislate contained in Articles 245, 246 or 248 is subject to the provisions
\nof the Constitution. If the argument were to be accepted that the power to amend the
\nConstitution is contained in Article 248 read with item No. 97 List I, it would be difficult
\nto make amendment of the Constitution because the amendment would in most of the
\ncases be inconsistent with the article proposed to be amended. The only amendments
\nwhich would be permissible in such an event would be, ones like those contemplated by
\nArticles 4 and 169 which expressly provide for a law being made for the purpose in
\nvariance of specified provisions of the Constitution. Such law has to be passed by
\nordinary legislative process. Article 368 would thus become more or less a dead letter.
\n1406. Article 248 read with entry 97 List I contemplates legislative process. If the
\namendment of the Constitution were such a legislative process, the provision regarding
\nratification by the legislatures of not less than one-half of the States in respect of certain
\namendments of the Constitution would be meaningless because there is no question of
\nratification of a legislation made by Parliament in exercise of the power conferred by
\nArticle 248 read with entry 97 List I. It is noteworthy that ratification is by means of
\nresolutions by State Legislatures. The passing of resolution can plainly be not considered
\nto be a legislative process for making a law. The State Governors also do not come into
\nthe picture for the purpose of ratification. The State Legislatures in ratifying, it has been
\nsaid, exercise a constituent function. Ratifying process, according to Orfield, is
\nequivalent to roll call of the States. Ratification by a State of Constitutional amendment is
\nnot an act of legislation within the proper sense of the word. It is but the expression of the
\nassent of the States to the proposed amendment (see The Amending of the Federal
\nConstitution p. 62-63).\n<\/p>\n
1407. The fact that the marginal note of Article 368 contained the words “Procedure for
\nAmendment of the Constitution” would not detract from the above conclusion as the
\nmarginal note cannot control the scope of the article itself. As mentioned earlier, the
\nwords in the article that “the Constitution shall stand amended in accordance with the
\nterms of the Bill” indicate that the power to amend the Constitution is also contained in
\nArticle 368. The existence of such a power which can clearly be discerned in the scheme
\nand language of Article 368 cannot be ruled out or denied by invoking the marginal note
\nof the article.\n<\/p>\n
1408. The various subjects contained in entries in List I, List II and List III of Seventh
\nSchedule to the Constitution were enumerated and specified at great length. Our
\nConstitution in this respect was not written on a tabula rasa. On the contrary, the scheme
\nof distribution of legislative lists in the Government of India Act, 1935 was to a great
\nextent adopted in the Constitution. Referring to the’ said distribution of lists and the
\nresiduary provisions in the Government of India Act, Gwyer C.J. observed in the case In
\nre. The Central Provinces and Berar Sales of Motor Spirit and Lubricants Taxation Act,
\n1938 [1939] F.C.R. 38.\n<\/p>\n
The attempt to avoid a final assignment of residuary powers by an
\nexhaustive enumeration of legislative subjects has made the Indian
\nConstitution Act unique among federal Constitutions in the length and
\ndetail of its Legislative Lists.\n<\/p>\n
Our Constitution-makers made list of the legislative entries still more exhaustive and the
\nintention obviously was that the subjects mentioned should be covered by one or other of
\nthe specific entries, so that as few subjects as possible and which did not readily strike to
\nthe Constitution-makers should be covered by the residuary entry 97 in List 1. The
\nConstitution-makers, in my opinion, could not have failed to make an entry in the lists in
\nthe Seventh Schedule for amendment of the Constitution if they had wanted the
\namendment of Constitution to be dealt with as an ordinary legislative measure under
\nArticles 245, 246 and 248 of the Constitution. The fact that they provided separate Part in
\nthe Constitution for amendment of the Constitution shows that they realised the
\nimportance of the subject of amendment of the Constitution. It is difficult to hold that
\ndespite their awareness of the importance of Constitutional amendment, they left it to be
\ndealt with under and spelt out of entry 97 List I which merely deals with “any other
\nmatter not enumerated in List II or List III including any tax not mentioned in either of
\nthose lists.\n<\/p>\n
1409. The residuary entry is essential in a federal Constitution and the sole object of the
\nresiduary entry is to confer on the federal legislature or the State Legislatures, as the case
\nmay be, the power to make ordinary laws under and in accordance with the Constitution
\nin respect of any matter, not enumerated in any other list for legislation. By the very
\nnature of things the power to amend the Constitution cannot be in the residuary entry in a
\nfederal Constitution because the power to amend the Constitution would also include the
\npower to alter the distribution of subjects mentioned in different entries. Such a power
\ncan obviously be not a legislative power.\n<\/p>\n
1410. It was originally intended that the residuary power of legislation should be vested
\nin the States. This is clear from the Objective Resolution which was moved by Pt. Nehru
\nin the Constituent Assembly before the partition of the country on December 13, 1946
\n(see Constituent Assembly debates, Vol. I, p. 59). After the partition, the residuauy power
\nof legislation was vested in the Centre and was taken out of the State List. If the intention
\nto vest residuary powers in States had been eventually carried out, no argument could
\npossibly have been advanced that the power to amend the Constitution was possessed by
\nthe States and not by the Union. The fact that subsequently the Constitutent Assembly
\nvested the residuary power in the Union Parliament subject to ratification by State
\nLegislatures in certain cases, would not go to show that the residuary clause included the
\npower to amend the Constitution.\n<\/p>\n
1411. I am therefore of the view that Article 368 prescribes not only the procedure for the
\namendment of the Constitution but also confers power of amending the Constitution.
\n1412. Irrespective of the source of power, the words in Article 368 that “the Constitution
\nshall stand amended” indicate that the process of making amendment prescribed in
\nArticle 368 is a self-executing process. The article shows that once the procedure
\nprescribed in that article has been complied with, the end product is the amendment of the
\nConstitution.\n<\/p>\n
1413. Question then arises as to whether there is any power under Article 368 of
\namendment of Part III so as to take away or abridge fundamental rights. In this respect
\nwe find that Article 368 contains provisions relating to amendment of the Constitution.
\nNo words are to be found in Article 368 as may indicate that a limitation was intended on
\nthe power of making amendment of Part III with a view to take away or abridge
\nfundamental rights. On the contrary, the words used in Article 368 are that if the
\nprocedure prescribed by that article is complied with, the Constitution shall stand
\namended. The words “the Constitution shall stand amended” plainly cover the various
\narticles of the Constitution, and I find it difficult in the face of those clear and
\nunambiguous words to exclude from their operation the articles relating to fundamental
\nrights in Part III of the Constitution. It is an elemental rule of construction that while
\ndealing with a Constitution every word is to be expounded in its plain, obvious and
\ncommonsense unless the context furnishes some ground to control, qualify or enlarge it
\nand there cannot be imposed upon the words any recondite meaning or any extraordinary
\ngloss (see Story on Constitution of the United States, Vol. I, Para 451). It has not yet been
\nerected into a legal maxim of Constitutional construction that words were meant to
\nconceal thoughts. If framers of the Constitution had intended that provisions relating to
\nfundamental rights in Part III be not amended, it is inconceivable that they would not
\nhave inserted a provision to that effect in Article 368 or elsewhere. I cannot persuade
\nmyself to believe that the framers of the Constitution deliberately used words which
\ncloaked their real intention when it would have been so simple a matter to make the
\nintention clear beyond any possibility of doubt.\n<\/p>\n
1414. In the case of The Queen v. Burah [1878] 3 A.C. 889 at p. 904-5 Lord Selborne
\nobserved:\n<\/p>\n
The established courts of justice, when a question arises whether the
\nprescribed limits have been exceeded, must of necessity determine that
\nquestion; and the only way in which they can properly do so, is by looking
\nto the terms of the instrument by which, affirmatively, the legislative
\npowers were created, and by which, negatively, they are restricted. If what
\nhas been done is legislation, within the general scope of the affirmative
\nwords which give the power, and if it violates no express condition or
\nrestriction by which that power is limited,…it is not for any court of justice
\nto inquire further, or to enlarge constructively those conditions or
\nrestrictions.\n<\/p>\n
Although the above observations were made in the context of the legislative power, they
\nhave equal, if not greater, relevance in the context of the power of amendment of the
\nConstitution.:\n<\/p>\n
1415. It also cannot be said that even though the framers of the Constitution intended that
\nPart III of the Constitutilon relating to fundamental rights should not be amended, by
\ninadvertent omission they failed to make an express provision for the purpose. Reference
\nto the proceedings dated September 17, 1949 of the Constituent Assembly shows that an
\namendment to that effect was moved by Dr. P.S. Deshmukh. This amendment which
\nrelated to insertion of Article 304A after Article 304 (which corresponded to present
\nArticle 368) was in the following words:\n<\/p>\n
Notwithstanding anything contained in this Constitution to the contrary,
\nno amendment which is calculated to infringe or restrict or diminish the
\nscope of any individual rights, any rights of a person or persons with
\nrespect to property or otherwise, shall be permissible under this
\nConstitution and any amendment which is or is likely to have such an
\neffect shall be void and ultra vires of any Legislature.\n<\/p>\n
The above amendment, which was subsequently withdrawn, must have been incorporated
\nin the Constitution if the framers of the Constitution had intended that no amendment of
\nthe Constitution should take away or abridge the fundamental rights in Part III of the
\nConstitution.\n<\/p>\n
1416. Before the Constitution was framed, Mr. B.N. Rau, Constitutional Adviser, sent a
\nquestionnaire along with a covering letter on March 17, 1947 to the members of the
\nCentral and Provincial Legislatures. Question 27 was to the effect as to what provision
\nshould be made regarding the amendment of the Constitution. The attention of the
\nmembers of the Central and Provincial Legislatures was invited in this context to the
\nprovisions for amendment in the British, Canadian, Australian, South African, US, Swiss
\nand Irish Constitutions. Some of those Constitutions placed limitations on the power of
\namendment and contained express provisions in respect of those limitations. For instance,
\nArticle 5 of the United States contained a proviso “that no amendment which may be
\nmade prior to the year one thousand eight hundred and eight shall in any manner affect
\nthe first and fourth clauses in the ninth section of the first article and that no State,
\nwithout its consent, shall be deprived of its equal suffrage in the Senate”. It is
\ninconceivable that, despite the awareness of the fact that in the Constitutions of other
\ncountries where restriction was sought to be placed on the power of amendment an
\nexpress provision to that effect had been inserted, the framers of our Constitution would
\nomit to insert such a provision in Article 368 or in some other article if, in fact, they
\nwanted a limitation to be placed on the power of amendment in respect of articles relating
\nto fundamental right. On the contrary, there is clear indication that the Drafting
\nCommittee was conscious of the need of having an express provision regarding limitation
\non the power of amendment in case such a limitation was desired. This is clear from
\nArticle 305 of the Draft Constitution which immediately followed Article 304
\ncorresponding to Article 368 of the Constitution as finally adopted. Article 305 of the
\nDraft Constitution, which was subsequently dropped, was in the following terms:\n<\/p>\n
305. Notwithstanding anything contained in Article 304 of this
\nConstitution, the provisions of this Constitution relating to the reservation
\nof seats for the Muslims, the Scheduled Castes, the Scheduled Tribes or
\nthe Indian Christians either in Parliament or in the Legislature of any State
\nfor the time being specified in Part I of the First Schedule shall not be
\namended during a period of ten years from the commencement of this
\nConstitution and shall cease to have effect on the expiration of that period
\nunless continued in operation by an amendment of the Constitution.
\nArticle 305 of the Draft Constitution reproduced above makes it manifest that the
\nDrafting Committee made express provision for limitation on the power of, amendment
\nin case such a limitation was desired. The fact that in the Constitution as ultimately
\nadopted, there was no provision either in Article 368 or in any other article containing a
\nlimitation on the power of amendment shows that no such limitation was intended.
\n1417. The speech of Dr. Ambedkar made on September 17, 1949 while dealing with the
\nprovision relating to amendment of the Constitution also makes it clear that he divided
\nthe various articles of the Constitution into three categories. In one category were placed
\ncertain articles which would be open to amendment by Parliament by simple majority. To
\nthat category belonged Articles 2 and 3 of the Draft Constitution relating to the creation
\nand reConstitution of the existing States as well as some other articles like those dealing
\nwith upper chambers of the State Legislatures. The second category of articles were those
\nwhich could be amended by two-thirds majority of members present and voting in each
\nHouse of Parliament. The third category dealt with articles which not only required two-
\nthirds majority of each House of Parliament but also the ratification of not less than half
\nof the Legislatures of the States. There was nothing in the speech of Dr. Ambedkar that
\napart from the three categories of articles, there was a fourth category of articles
\ncontained in Part III which was not amendable and as such, could not be the subject of
\namendment.\n<\/p>\n
1418. It may be mentioned that according to the report of the Constituent Assembly
\ndebates, the speech of Dr. Ambedkar delivered on September 17, 1949 contains the
\nfollowing sentence:\n<\/p>\n
If the future Parliament wishes to amend any particular article which is not
\nmentioned in Part III or Article 304, all that is necessary for them is to
\nhave two-thirds majority. (Vol IX. P. 1661)
\nThe words “Part III” in the above sentence plainly have reference to the third category of
\narticles mentioned in the proviso to draft Article 304 (present Article 368) which required
\ntwo-thirds majority and ratification by at least half of the State Legislatures. These words
\ndo not refer to Part III of the Constitution, for if that were so the sentence reproduced
\nabove would appear incongruous in the context of the entire speech and strike a
\ndiscordant note against the rest of the speech. Indeed, the entire tenor of the above
\nspeech, as also of the other speeches delivered by Dr. Ambedkar in the Constituent
\nAssembly, was that all the articles of the Constitution were subject to the amendatory
\nprocess.\n<\/p>\n
1419. Another fact which is worthy of note is that the Constitution (First Amendment)
\nAct, 1951 was passed by the Provisional Parliament which had also acted as the
\nConstituent Assembly for the drafting of the Constitution. By the First Amendment,
\ncertain fundamental eights contained in Article 19 were abridged and amended. Speeches
\nin support of the First Amendment were made by Pt. Nehru and Dr. Ambedkar. It was
\ntaken for granted that the Parliament had by adhering to the procedure prescribed in
\nArticle 368 the right to amend the Constitution, including Part III relating to fundamental
\nrights. Dr. Shyama Prasad Mukherjee who opposed the First Amendment expressly
\nconceded that Parliament had the power to make the aforesaid amendment. If it had ever
\nbeen the intention of the framers of the Constitution that the provisions relating to
\nfundamental rights contained in Part III of the Constitution could not be amended, it is
\ndifficult to believe that Pt. Nehru and Dr. Ambedkar who played such an important role
\nin the drafting of the Constitution would have supported the amendment of the
\nConstitution or in any case would have failed to take note of the fact in their speeches
\nthat Part III was not intended to be amended so as to take away or abridge fundamental
\nrights. Pt. Nehru in the course of his speech in support of the First Amendment after
\nreferring to the need of making the Constitution adaptable to changing social and
\neconomic conditions and changing ideas observed:\n<\/p>\n
It is of the utmost importance that people should realise that this great
\nConstitution of ours, over which we laboured for so long, is not a final and
\nrigid thing, which must either be accepted or broken. A Constitution
\nwhich is responsive to the people’s will which is responsive to their ideas,
\nin that it can be varied here and there, they will respect it all the more and
\nthey will not fight against, when we want to change it. Otherwise, if you
\nmake them feel that it is unchangeable and cannot be touched, the only
\nthing to be done by those who wish to change it is to try to break it. That is
\na dangerous thing and a bad thing. Therefore, it is a desirable and a good
\nthing for people to realise that this very fine Constitution that we have
\nfashioned after years of labour is good in so far as it goes but as society
\nchanges, as conditions change we amend it in the proper way. It is not like
\nthe unalterable law of the Medes and the Persians that it cannot be
\nchanged, although the world around may change.\n<\/p>\n
1420. The First Amendment is contemporaneous practical exposition of the power of
\namendment under Article 368. Although as observed elsewhere, the provisions of Article
\n368 in my view are plain and unambiguous and contain no restrictions so far as
\namendment of Part III is concerned, even if it may be assumed that the matter is not free
\nfrom doubt the First Amendment provides clear evidence of how the provisions of Article
\n368 were construed and what they were intended and assumed to convey by those who
\nframed the Constitution and how they acted upon the basis of the said intention and
\nassumption soon after the framing of the Constitution. The contemporaneous practical
\nexposition furnishes considerable aid in resolving the said doubt and construing the
\nprovisions of the article. It would be pertinent to reproduce in this context the
\nobservations of Chief Justice Puller while speaking for the US Supreme Court in the case
\nof William McPherson v. Robert R. Blacker : 146 U.S. 1.\n<\/p>\n
The framers of the Constitution employed words in their natural sense;
\nand where they are plain and clear, resort to collateral aids to
\ninterpretation is unnecessary and cannot be indulged in to narrow of
\nenlarge the text; but where there is ambiguity or doubt, or where two
\nviews may well be entertained contemporaneous and subsequent practical
\nconstruction are entitled to the greatest weight. Certainly, plaintiffs in
\nerror cannot reasonably assert that the clause of the Constitution under
\nconsideration soplainly sustains their position as to entitle them to object
\nthat contemporaneous history and practical construction are not to be
\nallowed their legitimate force, and, conceding that their argument inspires
\na doubt sufficient to justify resort to the aids of interpretation thus
\nafforded, we are of opinion that such doubt is thereby resolved against
\nthem, the contemporaneous practical exposition of the Constitution being
\ntoo strong and obstinate to be shaken or controlled.\n<\/p>\n
I may also reproduce in this context the following passage from pages 49-
\n50 of Willoughby’s Constitution of the United States, Vol. I:\n<\/p>\n
In Lithographic Co. v. Sarony 111 U.S. 53 the court declared : The
\nconstruction placed upon the Constitution by the first act of 1790 and the
\nact of 1802 by the men who were contemporary with its formation, many
\nof whom were members of the Convention who framed it, is of itself
\nenttitled to very great weight, and when it is remembered that the rights
\nthus established have not been disputed during a period of nearly a
\ncentury, it is almost conclusive.\n<\/p>\n
1421. So far as the question is concerned as to whether the speeches made in the
\nConstituent Assembly can be taken into consideration, this Court has in three cases,
\nnamely, I.C. Golak Nath and Ors. v. State of Punjab and Anr. (supra), H.H.
\nMaharajadhiraja Madhav Rao Jiwaji Rao Scindia Bahadur and Ors. v. Union of India<\/a>
\n[1971] 3 S.C.R. 9 and Union of India v. H.S. Dhillon<\/a> [1972] 2 S.C.R. 33 taken the view
\nthat such speeches can be taken into account. In Golak Nath’s case Subba Rao C.J. who
\nspoke for the majority referred to the speeches of Pt. Jawaharlal Nehru and Dr. Ambedkar
\non page 791. Reference was also made to the speech of Dr. Ambedkar by Bachawat J. in
\nthat case on page 924. In the case of Madhav Rao, Shah J. who gave the leading majority
\njudgment relied upon the speech of Sardar Patel, who was Minister for Home Affairs, in
\nthe Constituent Assembly (see page 83). Reference was also made to the speeches in the
\nConstituent Assembly by Mitter J. on pages 121 and 122. More recently in H.S. Dhillon’s
\ncase relating to the validity of amendment in Wealth Tax Act, both the majority judgment
\nas well as the minority judgment referred to the speeches made in the Constituent
\nAssembly in support of the conclusion arrived at. It can, therefore, be said that this Court
\nhas now accepted the view in its decisions since Golak Nath’s case that speeches made in
\nthe Constituent Assembly can be referred to while dealing with the provision of the
\nConstitution.\n<\/p>\n
1422. The speeches in the Constituent Assembly, in my opinion, can be referred to for
\nfinding the history of the Constitutional provision and the background against which the
\nsaid provision was drafted. The speeches can also shed light to show as to what was the
\nmischief which was sought to be remedied and what was the object which was sought to
\nbe attained in drafting the provision. The speeches cannot, however, form the basis for
\nconstruing the provisions of the Constitution. The task of interpreting the provision of the
\nConstitution has to be done independently and the reference to the speeches made in the
\nConstituent Assembly does not absolve the court from performing that task. The
\ndraftsmen are supposed to have expressed their intentions in the words’ used by them in
\nthe provisions. Those words are final repositories of the intention and it would be
\nultimately from the words of the provision that the intention of the draftsmen would have
\nto be gathered.\n<\/p>\n
1423. The next question which arises for consideration is whether the word “law” in
\nArticle 13(2) includes amendment of the Constitution. According to Article 13(2), the
\nState shall not make any law which takes away or abridges the rights conferred by this
\nPart and any law made in contravention of this clause shall, to the extent of the
\ncontravention, be void. “State” has been defined in Article 12 to include, unless the
\ncontext otherwise requires, the Government and Parliament of India and the Government
\nand the Legislature of each of the States and all local or other authorities within the
\nterritory of India or under the control of the Government of India. The stand taken on
\nbehalf of the petitioners is that amendment of the Constitution constitutes “law” for the
\npurpose of Article 13(2). As such, no amendment of the Constitution can take away or
\nabridge the fundamental rights conferred by Part III of the Constitution. Reference has
\nalso been made to Clause (1) of Article 13, according to which all laws in force in the
\nterritory of India immediately before the commencement of this Constitution in so far as
\nthey are inconsistent with the provisions of this Part, shall, to the extent of such
\ninconsistency, be void. It is urged that word “law” in Article 13(2) should have the same
\nmeaning as that word in Article 13(1) and if law in Article 13(1) includes Constitutional
\nlaw, the same should be its meaning for the purpose of Article 13(2). Our attention has
\nalso been invited to Article 372(1) of the Constitution which provides that
\nnotwithstanding the repeal by this Constitution of the enactment referred to in Article 395
\nbut subject to the other provisions of the Constitution, all the law in force in the territory
\nof India immediately before the commencement of this Constitution shall continue in
\nforce therein until altered or repealed or amended by a competent Legislature or other
\ncompetent authority. According to Explanation I to Article 372, the expression “law in
\nforce” shall include a law passed or made by a Legislature or other competent authority in
\nthe territory of India before the commencement of this Constitution and not previously
\nrepealed notwithstanding that it or parts of it may not be then in operation either at all or
\nin particular areas. The same is the definition of “law in force” in Article 13(3).
\n1424. I find it difficult to accept the contention that an amendment of Constitution made
\nin accordance with Article 368 constitutes law for the purpose of Article 13(2). The word
\n“law” although referred to in a large number of other articles of the Constitution finds no
\nmention in Article 368. According to that article, the Constitution shall stand amended in
\naccordance with the terms of the Bill after it has been passed in compliance with the
\nprovisions of that article. Article 368 thus contains an indication that what follows as a
\nresult of the compliance with Article 368 is an amendment of the Constitution and not
\nlaw in the sense of being ordinary legislation. In a generic sense. “law” would include
\nConstitutional laws, including amendment of the Constitution, but that does not seem to
\nbe the connotation of the word “law” as used in Article 13(2) of the Constitution. There is
\na clear distinction between statutory law made in exercise of the legislative power and
\nConstitutional law which is made in exercise of the constituent power and the distinction
\nshould not be lost sight of A Constitution is the fundamental and basic law and provides
\nthe authority under which ordinary law is made. The Constitution of West Germany, it
\nmay be stated, is called the basic law of the Federal Republic of Germany. A Constitution
\nderives its authority generally from the people acting in their sovereign capacity and
\nspeaking through their representatives in a Constituent Assembly or Convention. It
\nrelates to the structure of the government, the extent and distribution of its powers and the
\nmodes and principles of its operation, preceding ordinary laws in the point of time and
\nembracing the settled policy of the nation. A statute on the other hand is law made by the
\nrepresentatives of the people acting in their legislative capacity, subject to the superior
\nauthority, which is the Constitution. Statutes are enactments or rules for the government
\nof civil conduct or for the administration or for the defence of the government. They
\nrelate to law and order, criminal offences, civil disputes, fiscal matters and other subjects
\non which it may become necessary to have law. Statutes are quite often tentative,
\noccasional, and in the nature of temporary expedients (see Constitutional Law and Its
\nAdministration by S.P. Weaver, p. 3), Article 13(2) has reference to ordinary piece of
\nlegislation. It would also, in view of the definition given in Clause (a) of Article 13(3),
\ninclude any ordinance, order, bye-law, rule, regulation, notification, custom or usage
\nhaving in the territory of India the force of law. The Constitution has thus made it clear in
\nmatters in which there could be some doubt as to what would constitute “law”. If it had
\nbeen the intention of the framers of the Constitution that the “law” in Article 13 would
\nalso include Constitutional law including laws relating to the amendment of Constitution,
\nit is not explained as to why they did not expressly so state in Clause (a) of Article 13(3).
\nThe Constitution itself contains indications of the distinction between the Constitution
\nand the laws framed under the Constitution. Article 60 provides for the oath or
\naffirmation to be made and subscribed by the President before entering upon office. The
\nlanguage in which that oath and affirmation have been couched, though not crucial, has
\nsome bearing. The form of the oath or affirmation is as under:\n<\/p>\n
 swear in the name of God I, A.B., do
\n_________________________ solemnly affirm
\nthat I will faithfully execute the office of President (or discharge the
\nfunctions of the President) of India and will to the best of my ability
\npreserve, protect and defend the Constitution and the law and that I will
\ndevote myself to the service and well-being of the people of India.
\nThe facts that both the words “the Constitution and the law” have been used in the above
\nform tends to show that for the purpose of the Constitution the law and the Constitution
\nare not the same.\n<\/p>\n
1425. It may be mentioned that Articles 56(1)(b) and 61(1) which deal with impeachment
\nof the President refer only to “violation of the Constitution”. There is no reference in
\nthose articles to violation of law. Article 69 which prescribes the oath for the Vice-
\nPresident refers to “allegiance to the Constitution as by law established”. The words “as
\nby law established” indicate the legal origin of the Constitution. Article 143, to which our
\nattention has been invited, gives power to the President to refer to the Supreme Court a
\nquestion of law or fact of such importance that it is expedient to obtain the opinion of this
\nCourt. It is pointed out that question of law in that article would include a question
\nrelating to Constitutional law. This no doubt is so but this is due to the fact that words
\n“questions of law or fact” constitute a well known phrase in legal terminology and have
\nacquired a particular significance. From the use of those words in Article 143 it cannot be
\ninferred that the framers of the Constitution did not make a distinction between the
\nConstitution and the law.\n<\/p>\n
1426. Articles 245, 246 and 248 deal with the making of laws. The words “shall not make
\nany law” in Article 13(2) seem to echo the words used in Articles 245, 246 and 248 of the
\nConstitution which deal with the making of laws. The words “make any law” in Article
\n13 as well as the above three articles should carry, in my opinion, the same meaning,
\nnamely, law made in exercise of legislative power. In addition to that, the law in Article
\n13 in view of the definition in Article 13(3) shall also include special provisions
\nmentioned in Clause (3).\n<\/p>\n
1427. It has already been mentioned above that there is no question in the case of a law
\nmade by the Parliament of its ratification by the resolutions passed by the State
\nLegislatures. The fact that in case of some of the amendments made under Article 368
\nsuch ratification is necessary shows that an amendment of the Constitution is not law as
\ncontemplated by Article 13(2) or Articles 245, 246 and 248.\n<\/p>\n
1428. Article 395 of the Constitution repealed the Indian Independence Act, 1947 and the
\nGovernment of India, Act, 1935, together with all enactments amending or
\nsupplementing the latter Act, but not including the Abolition of Privy Council
\nJurisdiction Act, 1949. The law in force mentioned in Article 372(1) has reference not to
\nany Constitutional law in the sense of being a law relating to the Constitution of either the
\nterritory of erstwhile British India or the territory comprised in the Indian States. So far as
\nthe territory of British India was concerned, the law before January 26, 1950 relating to
\nthe Constitution was contained in the Government of India Act, 1935 and the Indian
\nIndependence Act, 1947. Both these Acts were repealed by Article 395 when the
\nConstitution of India came into force. As regards the territory comprised in Indian States,
\nthe law relating to their Constitutions in so far as it was inconsistent with the provisions
\nof the Constitution of India also came to an end before January 26, 1950 when the said
\nConstitution came into force. The only Constitution which was in force since that date
\nwas the Constitution of India and it applied to the whole of India, including the erstwhile
\nIndian States and the British India. The various notifications which were issued before
\nJanuary 26, 1950 mentioned that with effect from that date “the Constitution of India
\nshortly to be adopted by the Constituent Assembly of India shall be the Constitution for
\nthe States as for other parts of India and shall be enforced as such” (see White Paper on
\nIndian States, pages 365 to 371). It would thus appear that hardly any law containing the
\nConstitutions of territory of erstwhile Indian States remained in force after the coming
\ninto force of the Constitution of India with all its exhaustive provisions. If the law in
\nforce contemplated by Article 372(1) must be such as was continued after January 26,
\n1950, it would follow that Article 372 does not relate to the Constitutional law in the
\nsense of being law relating to the Constitution of a territory.
\n1429. Although the law in force referred to in Article 372(1) would not include law
\nrelating to the Constitutions of the territory of erstwhile British India or the Indian States,
\nit did include law relating to subjects dealt with by the Constitutions in force in those
\nterritories. Such a law which partakes of the nature of either a statutory law or an Order
\nmade under the organic provisions of those Constitutions, continued in force under
\nArticle 372(1). A statutory law or Order is obviously of an inferior character and cannot
\nhave the same status as that of a Constitution. Article 372(1) in the very nature of things
\ndeals with laws made under the provisions of Constitutions which were in force either in
\nthe erstwhile British India or the territory comprised in Indian States. The opening words
\nof Article 372(1) “notwithstanding the repeal by this Constitution of the enactments
\nreferred to in Article 395” indicate that the laws in force contemplated by Article 372 are
\nthose laws which were framed under the repealed Indian Independence Act, 1947 and the
\nGovernment of India Act, 1935 or similar other legislative enactments or orders made
\nunder the provisions of Constitutions of erstwhile Indian States. Such legislative
\nenactments or Orders were inferior in status to a Constitution. I am, therefore, of the view
\nthat the word “law” in Article 372 has reference to law made under a Constitution and not
\nto the provisions of a Constitution itself.\n<\/p>\n
1430. Article 372(1) is similar to the provisions of Section 292 of the Government of
\nIndia Act, 1935. As observed by Gwyer C.J. in the case of The United Provinces v. Mst.
\nAtiqa Begum and Ors. [1940] 2 F.C.R. 110 such a provision is usually inserted by
\ndraftsmen to negative the possibility of any existing law being held to be no longer in
\nforce by reason of the repeal of the law which authorized its enactment. The question
\nwith which we are concerned is whether law in Article 13 or Article 372 could relate to
\nthe provisions of the Constitution or provisions relating to its amendment. So far as that
\nquestion is concerned, I am of the opinion that the language of Articles 372 and 13 shows
\nthat the word “law” used therein did not relate to such provisions. The Constitution of
\nIndia was plainly not a law in force at the time when the Constitution came into force. An
\namendment of the Constitution in the very nature of things can be made only after the
\nConstitution comes into force. As such, a law providing for amendment of the
\nConstitution cannot constitute law in force for the purpose of Article 13(1) or Article
\n372(1).\n<\/p>\n
1431. The language of Article 13(2) shows that it was not intended to cover amendments
\nof the Constitution made in accordance with Article 368. It is difficult to accede to the
\ncontention that even though the framers of the Constitution put no express limitations in
\nArticle 368 on the power to make amendment, they curtailed that power by implication
\nunder Article 13(2). In order to find the true scope of Article 13(2) in the context of its
\npossible impact on the power of amendment, we should read it not in isolation but along
\nwith Article 368. The rule of construction, to use the words of Lord Wright M.R. in
\nJames v. Commonwealth of Australia [1936] A.C. 578 is to read the actual words used
\n“not in vacuo but as occurring in a single complex instrument in which one part may
\nthrow light on another”. A combined reading of Article 13(2) and Article 368, in my
\nview, clearly points to the conclusion that extinguishment or abridgement of fundamental
\nrights contained in Part III of the Constitution is not beyond the amendatory power
\nconferred by Article 368. The alleged conflict between Article 13(2) and Article 368 is
\napparent and not real because the two provisions operate in different fields and deal with
\ndifferent objects.\n<\/p>\n
1432. The Constitution itself treats the subject of ordinary legislation as something
\ndistinct and different from that of amendment of the Constitution. Articles 245 to 248
\nread with Seventh Schedule deal with ordinary legislation, while amendment of
\nConstitution is the subject matter of Article 368 in a separate Part. Article 368 is
\nindependent and self-contained. Article 368 does not contain the words “subject to the
\nprovisions of this Constitution” as are to be found at the beginning of Article 245. The
\nabsence of those words in Article 368 thus shows that an amendment of the Constitution
\nmade under that article has a status higher than that of legislative law and the two are of
\nunequal dignity. If there is any limitation on power of amendment, it must be found in
\nArticle 368 itself which is the sole fountain-head of power to amend, and not in other
\nprovisions dealing with ordinary legislation. As stated on pages 24-26 in the Amending
\nof Federal Constitution by Orfield, ‘limitation on the scope of amendment should be
\nfound written in the amending clause and the other articles of the Constitution should not
\nbe viewed as limitations’. The very fact that the power of amendment is put in a separate
\nPart (Part XX) and has not been put in the Part and Chapter (Part XI Chapter I) dealing
\nwith legislative powers shows that the two powers are different in character and operate
\nin separate fields. There is also a vital difference in the procedure for passing ordinary
\nlegislation and that for bringing about a Constitutional amendment under Article 368.
\nThe fact that an amendment Bill is passed by each House of Parliament and those two
\nHouses also pass ordinary legislation does not obliterate the difference between the
\nconstituent power and the legislative power nor does it warrant the conclusion that
\nconstituent power is a species of legislative power.\n<\/p>\n
1433. Our attention has been invited on behalf of the petitioners to the proceedings of the
\nConstituent Assembly on April 29, 1947. Sardar Patel on that day made a move in the
\nConstituent Assembly that Clause (2) be accepted. Clause (2) which provided the basis
\nfor Clauses (1) and (2) of Article 13 as finally adopted was in the following words:
\nAll existing laws, notifications, regulations, customs or usages in force
\nwithin the territories of the Union inconsistent with the rights guaranteed
\nunder this part of the Constitution shall stand abrogated to the extent of
\nsuch inconsistency, nor shall the Union or any unit make any law taking
\naway or abridging any such right.\n<\/p>\n
Mr. K. Santhanam then moved an amendment for substituting the concluding words of
\nClause (2) by the following words:\n<\/p>\n
Nor shall any such right be taken away or abridged except by an
\namendment of the Constitution.\n<\/p>\n
The above amendment was accepted by Sardar Patel. Motion was thereafter adopted
\naccepting the amended clause which was in the following words:
\nAll existing laws, notifications, regulations, customs or usages in force
\nwithin the territories of the Union inconsistent with the rights guaranteed
\nunder that part of the Constitution shall stand abrogated to the extent of
\nsuch inconsistency, nor shall any such right be taken away or abridged
\nexcept by an amendment of the Constitution.\n<\/p>\n
1434. In October 1947 the Constitutional Adviser prepared the Draft Constitution, Sub-
\nclause (2) of Clause 9 of which was as under:\n<\/p>\n
(2) Nothing in this Constitution shall be taken to empower the State to
\nmake any law which curtails or takes away any of the rights conferred by
\nChapter II of this Part except by way of amendment of this Constitution
\nunder Section 232 and any law made in contravention of this sub-section
\nshall, to the extent of the contravention, be void.\n<\/p>\n
Minutes of the Drafting Committee of October 13, 1947 show that it was decided to
\nrevise Clause 9. Revised Clause 9 was put in the appendix as follows:\n<\/p>\n
9. (1) All laws in force immediately before the commencement of this
\nConstitution in the territory of India, in so far as they are inconsistent with
\nany of the provisions of this Part, shall, to the extent of such inconsistency,
\nbe void.\n<\/p>\n
(2) The State shall not make law which takes away or abridges the rights
\nconferred by this Part and any law made in contravention of this sub-
\nsection shall, to the extent of the contravention be void.\n<\/p>\n
(3) In this section, the expression ‘law’ includes any ordinance, order, bye-
\nlaw, rule, regulation, notification, custom or usage having the force of law
\nin the territory of India or any part thereof.\n<\/p>\n
On February 21, 1948 Dr. Ambedkar forwarded the Draft Constitution of India to the
\nPresident of the Constituent Assembly along with a covering letter. Clause 9 in this Draft
\nConstitution was numbered as Clause 8. Sub-clause (2) of Clause 9 was retained as Sub-
\nclause (2) of Clause 8. A proviso was also added to that sub-clause, but that is not
\nmaterial for the purpose of the present discussion. The Constitution was thereafter finally
\nadopted and it contained Article 13, the provisions of which have been reproduced
\nearlier.\n<\/p>\n
1434. It has been argued on behalf of the petitioners that the members of the Drafting
\nCommittee who were eminent lawyers of India, deliberately revised Clause 9 of the Draft
\nConstitution prepared by the Constitutional Adviser with a view to undo the effect of the
\namendment moved by Mr. Santhanam which had been accepted by the Constituent
\nAssembly, because the members of the Drafting Committee wanted that the fundamental
\nrights should not be abridged or taken away by the amendment of the Constitution.
\n1435. I find it difficult to accept the above argument. It is inconceivable that the members
\nof the Drafting Committee would reverse the decision which had been taken by the
\nConstituent Assembly when it accepted the amendment moved by Mr. Santhanam and
\nadopted the motion for the passing of clause containing that amendment. It would appear
\nfrom the speech of Mr. Santhanam that he had moved the amendment in order to remove
\ndoubt. Although there is nothing in the minutes to show as to why the members of the
\nDrafting Committee did not specifically incorporate Mr. Santhanam’s amendment in the
\nrevised clause, it seems that they did so because they took the view that it was
\nunnecessary. In his letter dated February 21, 1948 Dr. Ambedkar, Chairman of the
\nDrafting Committee wrote to the President of the Constituent Assembly;
\nIn preparing the Draft the Drafting Committee was of course expected to
\nfollow the decisions taken by the Constituent Assembly or by the various
\nCommittees appointed by the Constituent Assembly. This the Drafting
\nCommittee has endeavoured to do as far as possible. There were however
\nsome matters in respect of which the Drafting Committee felt it necessary
\nto suggest certain changes. All such changes have been indicated in the
\ndraft by underlining or side-lining the relevant portions. Care has also
\nbeen taken by the Drafting Committee to insert a footnote explaining the
\nreason for every such change.\n<\/p>\n
It is, therefore, plain that if it had been decided to make a material change in the draft
\narticle with a view to depart from the decision of the Constituent Assembly, the change
\nwould have been indicated by underlining or sidelining the relevant provision and also by
\ninserting a footnote explaining reasons for the change. In the absence of any underlining,
\nsidelining or footnote, it can be presumed that members of the Drafting Committee did
\nnot intend to make a change. A very material fact which should not be lost sight of in this
\ncontext is the note which was put in October 1948 under the draft Article 8. It was stated
\nin the Note:\n<\/p>\n
Clause (2) of Article 8 does not override the provisions of Article 304 of
\nthe Constitution. The expression “law” used in the said clause is intended
\nto mean “ordinary legislation”. However, to remove any possible doubt,
\nthe following amendment may be made in Article 8:\n<\/p>\n
In the proviso to Clause (2) of Article 8, after the words
\n“nothing in this clause shall” the words “affect the
\nprovisions of Article 304 of this Constitution or be
\ninserted.” (see page 26 Shiva Rao’s “The Framing of India’s
\nConstitution” Vol. IV).\n<\/p>\n
The above note and other such notes were made by the Constitutional Adviser and
\nreproduced fully the views of the Drafting Committee and\/or of the Special Committee
\n(see page 4 Shiva Rao’s “The Framing of India’s Constitution” Vol. I). It would thus
\nappear that there is no indication that the members of the Drafting Committee wanted to
\ndeviate from the decision of the Constituent Assembly by making the provisions relating
\nto fundamental rights unamendable. On the contrary, the note shows that they accepted
\nthe view embodied in the decision of the Constituent Assembly.
\n1436. Apart from that I am of the view that if the preservation of the fundamental rights
\nwas so vital an important a desideratum, it would seem logical that a proviso would have
\nbeen added in Article 368 expressly guaranteeing the continued existence of fundamental
\nrights in an unabridged form. This was, however, not done.\n<\/p>\n
1437. The next question which should now engage our attention is about the necessity of
\namending the Constitution and the reasons which weighed with the framers of the
\nConstitution for making provision for amendment of the Constitution. A Constitution
\nprovides the broad outlines of the administration of a country and concerns itself with the
\nproblems of the Government. This is so whether the Government originates in a forcible
\nseizure of power or comes into being as the result of a legal transfer of power. At the time
\nof the framing of the Constitution many views including those emanating from
\nconflicting extremes are presented. In most cases the Constitution is the result of a
\ncompromise between conflicting views. Those who frame a Constitution cannot be
\noblivious of the fact that in the working of a Constitution many difficulties would have to
\nbe encountered and that it is beyond the wisdom of one generation to hit upon a
\npermanently workable solution for all problems which may be faced by the State in its
\nonward march towards further progress. Sometimes a judicial interpretation may make a
\nConstitution broad-based and put life into the dry bones of a Constitution so as to make it
\na vehicle of a nation’s progress. Occasions may also arise where judicial interpretation
\nmight rob some provision of a Constitution of a part of its efficacy as was contemplated
\nby the framers of the Constitution. If no provision were made for the amendment of the
\nConstitution, the people would be left with no remedy or means for adapting it to the
\nchanging need of times and would per force have recourse to extra-Constitutional
\nmethods of changing the Constitution. The extra-Constitutional methods may sometimes
\nbe bloodless but more often they extract a heavy toll of the lives of the citizen and leave a
\ntrail of smouldering bitterness. A State without the means of some change, as was said by
\nBurke in his Reflections on Revolution, is without the means of its conservation. Without
\nsuch means it might even risk the loss of that part of the Constitution which it wished the
\nmost religiously to preserve. According to Dicey, twelve unchangeable Constitutions of
\nFrance have each lasted on an average for less than ten years, and have frequently
\nperished by violence. Louis Phillipe’s monarchy was destroyed within seven years of the
\ntime when Tocqueville pointed out that no power existed legally capable of altering the
\narticles of the Charter. On one notorious instance at least-and other examples of the same
\nphenomenon might be produced from the annals of revolutionary France-the
\nimmutability of the Constitution was the ground or excuse for its voilent subversion. To
\nquote the words of Dicey:\n<\/p>\n
Nor ought the perils in which France was involved by the immutability
\nwith which the statement of 1848 invested the Constitution to be looked
\nupon as exceptional; they arose from a defect which is inherent in every
\nrigid Constitution. The endeavour to create laws which cannot be changed
\nis an attempt to hamper the exercise of sovereign power; it therefore tends
\nto bring the letter of the law into conflict with the will of the really
\nsupreme power in the State. The majority of the French electors were
\nunder the Constitution the true sovereign of France; but the rule which
\nprevented the legal re-election of the President in effect brought the law of
\nthe land into conflict with the will of the majority of the electors, and
\nproduced, therefore, as a rigid Constitution has a natural tendency to
\nproduce, an opposition between the letter of the law and the wishes of the
\nsovereign. If the inflexibility of French Constitutions has provoked
\nrevolution, the flexibility of English Constitutions has, once at least, saved
\nthem from violent overthrow.\n<\/p>\n
The above observations were amplified by Dicey in the following words:
\nTo a student, who at this distance of time calmly studies the history of the
\nfirst Reform Bill, it is apparent, that in 1832 the supreme legislative
\nauthority of Parliament enabled the nation to carry through a political
\nrevolution under the guise of a legal reform.\n<\/p>\n
The rigidity in short, of a Constitution tends to check gradual innovation;
\nbut, just because it impedes change, may, under unfavourable
\ncircumstances occasion or provoke revolution.\n<\/p>\n
According to Finer, the amending clause is so fundamental to a Constitution that it may
\nbe called the Constitution itself (see The Theory and Practice of Modern Government, p.
\n156-157). The amending clause, it has been said, is the most important part of a
\nConstitution. Upon its existence and truthfulness, i.e. its correspondence with real and
\nnatural conditions, depends the question as to whether the state shall develop with
\npeaceable continuity or shall suffer alterations of stagnation, retrogression, and
\nrevolution. A Constitution, which may be imperfect and erroneous in its other parts, can
\nbe easily supplemented and corrected, if only the state be truthfully organized in the
\nConstitution; but if this be not accomplished, error will accumulate until nothing short of
\nrevolution can save the life of the state (see Political Science and Comparative
\nConstitutional Law, Vol. I by Burgess, p. 137). Burgess further expressed himself in the
\nfollowing words:\n<\/p>\n
It is equally true that development is as much a law of state life as
\nexistence. Prohibit the former, and the latter is the existence of the body
\nafter the spirit has departed. When, in a democratic political society, the
\nwell-matured, long and deliberately formed will of the undoubted majority
\ncan be persistently and successfully thwarted, in the amendment of its
\norganic law, by the will of the minority, there is just as much danger to the
\nstate from revolution and voilence as there is from the caprice of the
\nmajority, where the sovereignty of the bare majority is acknowledged. The
\nsafeguards against too radical change must not be exaggerated to the point
\nof dethroning the real sovereign. (ibid p. 152)
\nJustfying the amendment of the Constitution to meet the present conditions, relations and
\nrequirements, Burgess said we must not, as Mirabeau finely expressed it, lose the grande
\nmorale in the petite morale.\n<\/p>\n
1438. According to John Stuart Mill, no Constitution can expect to be permanent unless it
\nguarantees progress as well as order. Human societies grow and develop with the lapse of
\ntime, and unless provision is made for such Constitutional readjustments as their internal
\ndevelopment requires, they must stagnate or retrogress (see Political Science and
\nGovernment by J.W. Garner p. 536, 537).\n<\/p>\n
1439. Willis in his book on the Constitutional Law of the United States has dealt with the
\nquestion of amendment of the Constitution in the following words:
\nWhy should change and growth in Constitutional law stop with the
\npresent? We have always had change and growth, We have needed change
\nand growth in the past because there have been changes and growth in our
\neconomic and social life. There will probably continue to be changes in
\nour economic and social life and there should be changes in our
\nConstitutional law in the future to meet such changes just as much as there
\nwas need of change in the past. The Fathers in the Constitutional
\nConvention expected changes in the future : otherwise they would not
\nhave provided for amendment. They wanted permanency or our
\nConstitution and there was no other way to obtain it. The people of 1789
\nhad no more sovereign authority than do the people of the present.
\n1440. Pleading for provision for amendment of a Constitution and at the same time
\nuttering a note of caution against a too easy method of amendment, Willis wrote:
\nIf no provision for amendment were provided, there would be a constant
\ndanger of revolution. If the method of amendment were made too easy,
\nthere would be the danger of too hasty action all of the time. In either case
\nthere would be a danger of the overthrow of our political institutions.
\nHence the purpose of providing for amendment of the Constitution is to
\nmake it possible gradually to change the Constitution in an orderly fashion
\nas the changes in social conditions make it necessary to change the
\nfundamental law to correspond with such social change.\n<\/p>\n
1441. We may also recall in this connection the words of Harold Laski in his tribute to
\nJustice Holmes and the latter’s approach to the provision of the US Constitution. Said
\nLaski:\n<\/p>\n
The American Constitution was not made to compel the twentieth-century
\nAmerican to move in the swaddling clothes of his ancestors’ ideas. The
\nAmerican Constitution must be moulded by reason to fit new needs and
\nnew necessities…. The law must recognize change and growth even where
\nthe lawyer dislikes their implications. He may be skeptical of their
\nimplications; he has not the right to substitute his own pattern of Utopia
\nfor what they seek to accomplish.\n<\/p>\n
1442. According to Ivor Jennings, flexibility is regarded as a merit and rigidity a defect
\nbecause it is impossible for the framers of a Constitution to foresee the conditions in
\nwhich it would apply and the problems which will arise. They have not the gift of
\nprophecy. A Constitution has to work not only in the environments it was drafted, but
\nalso centuries later (see Some Characteristics of Indian Constitution, p. 14-15). It has
\nconsequently been observed by Jennings:\n<\/p>\n
The real difficulty is that the problems of life and society are infinitely
\nvariable. A draftsman thinks of the problems that he can foresee, but he
\nsees through a glass, darkly. He cannot know what problems will arise in
\nten, twenty, fifty or a hundred years. Any restriction on legislative power
\nmay do harm, because the effect of that restriction in new conditions
\ncannot be foreseen.\n<\/p>\n
1443. The machinery of amendment, it has been said, should be like a safety valve, so
\ndevised as neither to operate the machine with too great facility nor to require, in order to
\nset it in motion, an accumulation of force sufficient to explode it. In arranging it, due
\nconsideration should be given on the one hand to the requisities of growth and on the
\nother hand to those of conservatism. The letter of the Constitution must neither be
\nidolized as a sacred instrument with that mistaken conservatism which ding to its own
\nworn out garments until the body is ready to perish from cold, nor yet ought it to be made
\na plaything of politicians, to be tampered with and degraded to the level of an ordinary
\nstatute (see Political Science and Government by J.W. Garner, p. 538).
\n1444. The framers of our Constitution were conscious of the desirability of reconciling
\nthe urge for change with the need of continuity. They were not oblivious of the
\nphenomenon writ large in human history that change without continuity can be anarchy;
\nchange with continuity can mean progress; and continuity without change can mean no
\nprogress. The Constitution-makers have, therefore, kept the balance between the danger
\nof having a non-amendable Constitution and a Constitution which is too easily
\namendable. It has accordingly been provided that except for some not very vital
\namendments which can be brought about by simple majority, other amendments can be
\nsecured only if they are passed in each House of Parliament by a majority of the total
\nmembership of that House and by a majority of not less than two-thirds of the members
\nof each House present and voting. Provision is further made that in respect of certain
\nmatters which affect the interest of the States the amendment must also be ratified by the
\nlegislatures of not less than one half of the States by resolution to that effect. It can,
\ntherefore, be said that while a provision has been made for amendment of the
\nConstitution, the procedure for the bringing about of amendment is not so easy as may
\nmake it a plaything of politicians to be tampered with and degraded to the level of
\nordinary statute. The fact that during the first two decades after the coming into force of
\nthe Constitution the amending Bills have been passed wihout much difficulty with
\nrequisite majority is a sheer accident of history and is due to the fact that one party has
\nhappened to be in absolute majority at the Centre and many of the States. This
\ncircumstance cannot obliterate the fact that in normal circumstances when there are well
\nbalanced parties in power and in opposition the method of amending the Constitution is
\nnot so easy.\n<\/p>\n
1445. Another circumstance which must not be lost sight of is that no generation has
\nmonopoly of wisdom nor has any generation a right to place fetters on future generations
\nto mould the machinery of government and the laws according to their requirements.
\nAlthough guidelines for the organization and functioning of the future government may
\nbe laid down and although norms may also be prescribed for the legislative activity,
\nneither the guidelines should be so rigid nor the norms so inflexible and unalterable as
\nshould render them to be incapable of change, alteration and replacement even though the
\nfuture generations want to change, alter or replace them. The guidelines and norms would
\nin such an event be looked upon as fetters and shackles upon the free exercise of the
\nsovereign will of the people in times to come and would be done away with by methods
\nother than Constitutional. It would be nothing short of a presumptous and vain act and a
\nmyopic obsession with its own wisdom for one generation to distrust the wisdom and
\ngood sense of the future generation and to treat them in a way as if the generations to
\ncome would not be sui juris. The grant of power of amendment is based upon the
\nassumption that as in other human affairs, so in Constitutions, there are no absolutes and
\nthat the human mind can never reconcile itself to fetters in its quest for a better order of
\nthings. Any fetter resulting from the concept of absolute and ultimate inevitably gives
\nbirth to the urge to revolt. Santayana once said : “Why is there sometimes a right to
\nrevolution? Why is there sometimes a duty to loyalty? Because the whole transcendal
\nphilosophy, if made ultimate, is false, and nothing but a selfish perspective hypostasized,
\nbecause the will is absolute neither in the individual nor in the humanity…” (see German
\nPhilosophy and Politics (1915) 645-649 quoted by Frankfurter J. in “Mr. Justice Holmes”
\n931 Ed. page 117). What is true of transcendal philosophy is equally true in the mundane
\nsphere of a Constitutional provision. An unamendable Constitution, according to
\nMulford, is the worst tyranny of time, or rather the very tyranny of time. It makes an
\nearthly providence of a convention which was adjourned without day. It places the
\nsceptre over a free people in the hands of dead men, and the only office left to the people
\nis to build thrones out of the stones of their sepulchres (see Political Science and
\nGovernment by J.W. Garner pages 537, 538).\n<\/p>\n
1446. According to Woodrow Wilson, political liberty is the right of those who are
\ngoverned to adjust government to their own needs and interest. Woodrow Wilson in this
\ncontext quoted Burke who had said that every generation sets before itself some favourite
\nobject which it pursues as the very substance of liberty and happiness. The ideals of
\nliberty cannot be fixed from generation to generation; only its conception can be, the
\nlarge image of what it is. Liberty fixed in unalterable law would be no liberty at all.
\nGovernment is a part of life, and, with life, it must change, alike in its objects and in its
\npractices; only this principle must remain unaltered, this principle of liberty, that there
\nmust be the freest right and opportunity of adjustment. Political liberty consists in the
\nbest practicable adjustment between the power of the government and the privilege of the
\nindividual; and the freedom to alter the adjustment is as important as the adjustment itself
\nfor the ease and progress of affairs and the contentment of the citizen (see Constitutional
\nGovernment in the United States by Woodrow Wilson, p. 4-6).\n<\/p>\n
1447. Each generation, according to Jefferson, should be considered as a distinct nation,
\nwith a right by the will of the majority to bind themselves but none to bind the
\nsucceeding generations, more than the inhabitant of another country. The earth belongs in
\nusufruct to the living, the dead have neither the power nor the right over it. Jefferson even
\npleaded for revision or opportunity for revision of Constitution every nineteen years. Said
\nthe great American statesman:\n<\/p>\n
The idea that institutions established for the use of the nation cannot be
\ntouched or modified, even to make them answer their and, because of
\nrights gratuitously supposed in those employed to manage them in the
\ntrust for the public, may perhaps be a salutary provision against the abuses
\nof a monarch, but is most absurd against the nation itself. Yet our lawyers
\nand priests generally inculcate this doctrine and suppose that preceding
\ngenerations held the earth more freely than we do, had a right to impose
\nlaws on us, unalterable by ourselves, and that we, in the like manner, can
\nmake laws and impose burdens on future generations, which they will
\nhave no right to alter; in fine that the earth belongs to the dead and not the
\nliving.\n<\/p>\n
The above words were quoted during the course of the debate in the Constituent
\nAssembly (see Vol. XI Constituent Assembly debates, p. 975)
\n1448. Thomas Paine gave expression to the same view in the following words:
\nThere never did, there never will, and there never can, exist a parliament,
\nor any description of men, or any generation of men, in any country,
\npossessed of the right or the power of binding and controlling posterity to
\nthe ‘end of time’, or of commanding for ever how the world shall be
\ngoverned, or who shall govern it; and therefore all such clauses, acts or
\ndeclarations by which the makers of them attempt to do what they have
\nneither the right not the power to do, nor take power to execute, are in
\nthemselves null and void. Every age and generation must be as free to act
\nfor itself in all cases as the ages and generations which preceded it The
\nvanity and presumption of governing beyond the grave is the most
\nridiculous and insolent of all tyrannies. Man has no property in man;
\nneither has any generation a property in the generations which are to
\nfollow.\n<\/p>\n
We may also reproduce the words of Pt. Nehru in His speech to the Constituent
\nAssembly on November 11, 1948:\n<\/p>\n
And remember this that while we want this Constitution to be as solid and
\nas permanent a structure as we can make it, nevertheless there is no
\npermanence in Constitutions. Their should be a certain flexibility. If you
\nmake anything rigid and permanent you stop a Nation’s growth, the
\ngrowth of living vital organic people. Therefore it has to be flexible.
\n1449. If it is not permissible under Article 368 to so amend the Constitution as to take
\naway or abridge the fundamental rights in Part III, as has been argued on behalf of the
\npetitioners, the conclusion would follow that the only way to take away or abridge
\nfundamental rights, even if the overwhelming majority of people, e.g. 90 per cent of them
\nwant such an amendment, is by resort to extra-Constitutional methods like revolution.
\nAlthough, in my opinion, the language of Article 368 is clear and, contains no limitation
\non the power to make amendment so as to take away or abridge fundamental rights, even
\nif two interpretations were possible, one according to which the abridgement or
\nextinguishment of fundamental rights is permissible in accordance with the procedure
\nprescribed by Article 368 and the other according to which the only way of bringing
\nabout such a result is an extra-Constitutional method like revolution, the court, in my
\nopinion, should lean in favour of the first interpretation. It hardly needs much argument
\nto show that between peaceful amendment through means provided by the Constitution
\nand the extra-Constitutional method with all its dangerous potentialities the former
\nmethod is to be preferred. The contrast between the two methods is so glaring that there
\ncan hardly be any difficulty in making our choice between the two alternatives.
\n1450. The aforesaid discussion would also reveal that the consequences which would
\nfollow from the acceptance of the view that there is no power under Article 368 to
\nabridge or take away fundamental rights would be chaotic because of the resort to extra-
\nConstitutional methods. As against that the acceptance of the opposite view would not
\nresult in such consequences. Judged even in this light, I find it difficult to accede to the
\ncontention advanced on behalf of the petitioner.\n<\/p>\n
1451. I may at this stage deal with the question, adverted to by the learned Counsel for
\nthe petitioners as to how far the consequences have to be taken into account in construing
\nthe provisions of the Constitution. In this connection, I may observe that it is one of the
\nwell-settled rules of construction that if the words of a statute are in themselves precise
\nand unambiguous, no more is necessary than to expound those words in their natural and
\nordinary sense, the words themselves in such case best declaring the intention of the
\nlegislature. It is equally well-settled that where alternative constructions are equally open
\nthat alternative is to be chosen which will be consistent with the smooth working of the
\nsystem which the statute purports to be regulating; and that alternative is to be rejected
\nwhich will introduce uncertainty, friction, or confusion into the working of the system
\n(see Collector of Customs, Baroda v. Digvijaysinhji Spinning & Weaving Mills Ltd.<\/a>
\n[1962] 1 S.C.R. 896 (on p. 899)). These principles of construction apply with greater
\nforce when we are dealing with the provisions of a Constitution.
\n1452. I have kept the above principles in view and am of the opinion that as the language
\nof Article 368 is plain and unambiguous, it is not possible to read therein a limitation on
\nthe power of Parliament to amend the provisions of Part III of the Constitution so as to
\nabridge or take away fundamental rights; Apart from that, I am of the view that if two
\nconstructions were possible, the construction which I have, accepted would, as mentioned
\nabove, avoid chaotic consequences and would also prevent the introduction of
\nuncertainty, friction or confusion into the working of our Constitution.
\n1453. It is also, in my opinion, not permissible in the face of the plain language of Article
\n368 to ascertain by any process akin to speculation the supposed intention of the
\nConstitution-makers. We must act on the principle that if the word’s are plain and free
\nfrom any ambiguity the Constitution-makers should be taken to have incorporated their
\nintention in those words.\n<\/p>\n
1454. It seems inconceivable that the framers of the Constitution in spite of the
\nprecedents of the earlier French Constitutions which perished in violence because of their
\nnon-amendability, inserted in the Constitution a Part dealing with fundamental rights
\nwhich even by the unanmious vote of the people could not be abridged or taken away and
\nwhich left with people no choice except extra-Constitutional methods to achieve that
\nobject. The mechanics of the amendment of the Constitution, including those relating to
\nextinguishment or abridgement of fundamental rights, in my opinion, are contained in the
\nConstitution itself and it is not necessary to have recourse to a revolution or other extra-
\nConstitutional methods to achieve that object.\n<\/p>\n
1455. Confronted with the situation that if the stand of the petitioners was to be accepted
\nabout the inability of the Parliament to amend Part III of the Constitution except by
\nmeans of a revolution or other extra-Constitutional methods, the learned Counsel for the
\npetitioners has argued that such an amendment is possible by making law for convening a
\nConstituent Assembly or for holding a referendum. It is urged that there would be an
\nelement of participation of the people in the conventing of such a Constituent Assembly
\nor the holding of a referendum and it is through such means that Part III of the
\nConstitution can be amended so as to take away or abridge fundamental rights. The above
\nargument, in my opinion, is untenable and fallacious. If Parliament by a two-thirds
\nmajority in each House and by following the procedure laid down in Article 368 cannot
\namend Part III of the Constitution so as to take away or abridge fundamental rights, it is
\nnot understood as to how the same Parliament can by law create a body which can make
\nthe requisite amendment. If it is not within the power of Parliament to take away or
\nabridge fundamental rights even by a vote of two-thirds majority in each House, would it
\nbe permissible for the same Parliament to enact legislation under entry 97 List I of
\nSeventh Schedule by simple majority for creating a Constituent Assembly in order to take
\naway or abridge fundamental rights ? Would not such a Constituent Assembly be a
\ncreature of statute made by parliament even though such a body has the high-sounding
\nname of Constituent Assembly ? The nomenclature of the said Assembly cannot conceal
\nits real nature as being one created under a statute made by the Parliament. A body
\ncreated by the Parliament cannot have powers greater than those vested in the Parliament.
\nIt is not possible to accept the contention that what the Parliament itself could not legally
\ndo, it could get done through a body created by it. If something is impermissible, it would
\ncontinue to be so even though two steps are taken instead of one for bringing about the
\nresult which is not permitted. Apart from the above if we were to hold that the Parliament
\nwas entitled under entry 97 List I to make a law for convening a Constituent Assembly
\nfor taking away or abridging fundamental rights, some startling results are bound to
\nfollow. A law made under entry 97 List I would need a simple majority in each House of
\nthe Parliament for being brought on statute book, while an amendment of the Constitution
\nwould require a two-thirds majority of the members of each House present and voting. It
\nwould certainly be anamolous that what Parliament could not do by two-thirds majority,
\nit can bring about by simple majority. This apart, there are many articles of the
\nConstitution, for the amendment of which ratification by not less than half of the State
\nLegislatures is required. The provision regarding ratification in such an event would be
\nset at naught. There would be also nothing to prevent Parliament while making a law for
\nconvening a Constituent Assembly to exclude effective representation or voice of State
\nLegislatures in the covening of Constituent Assembly.\n<\/p>\n
1456. The argument that provision should be made for referendum is equally facile. Our
\nConstitution-makers rejected the method of referendum. In a country where there are
\nreligious and linguistic minorities, it was not considered a proper method of deciding
\nvital issues. The leaders of the minority communities entertained apprehension regarding
\nthis method. It is obvious that when passions are roused, the opinion of the minority in a
\npopular referendum is bound to get submerged and lose effectiveness.
\n1457. It also cannot be said that the method of bringing about amendment through
\nreferendum is a more difficult method. It is true that in Australia over 30 amendments
\nwere submitted to referendum, out of which only four were adopted and two of them
\nwere of trivial nature. As against that we find that the method of referendum for
\namending the Constitution has hardly provided much difficulty in Switzerland. Out of 64
\namendments proposed for amending the federal Constitution, 49 were adopted in a
\npopular referendum. So far as the method of amendment of the Constitution by two-third
\nmajority in either House of the Central Legislature and the ratification by the State
\nLegislatures is concerned, we find that during first 140 years since the adoption of the
\nUnited States Constitution, 3,113 proposals of amendment were made and out of them,
\nonly 24 so appealed to the Congress as to secure the approval of the Congress and only
\n19 made sufficient appeal to the State legislatures to secure ratification (see
\nConstitutional Law of United States by Willis, p. 128). It, therefore, cannot be said that
\nthe method of referendum provides a more effective check on the power of amendment
\ncompared to the method of bringing it about by prescribed majority in each house of the
\nParliament.\n<\/p>\n
1458. Apart from that I am of the view that it is not permissible to resort to the method of
\nreferendum unless there be a Constitutional provision for such a course in the amendment
\nprovision. In the case of George S. Hawkes v. Harvey C. Smith as Secretary of State of
\nOhio 64 Lawyers Ed. 871 the US Supreme Court was referred in the context of
\nratification by the States of the Eighteenth Amendment to the Constitution of the Ohio
\nState which contained provision for referendum. It was urged that in the case of such a
\nState ratification should be by the method of referendum. Repelling this contention, the
\ncourt held:\n<\/p>\n
Referendum provisions of State Constitutions and statutes cannot be
\napplied in the ratification or objection of amendments to the Federal
\nConstitution without violating the requirement of Article 5 of such
\nConstitution, that such ratification shall be by the legislatures of the
\nseveral states, or by conventions therein, as Congress shall decide.
\nThe same view was reiterated by the US Supreme Court in State of Rhode Island v. A.
\nMitchell Palmer Secretary of State and other connected cases better known as National
\nProhibition Cases 253 S.C.R. 350 64 Lawyers Edition 946.\n<\/p>\n
1459. Argument has been advanced on behalf of the petitioner that there is greater width
\nof power for an amendment of the Constitution if the amendment is brought about by a
\nreferendum compared to the power of amendment vested in the two Houses of Parliament
\nor Federal Legislature even though it is required to be passed by a prescribed majority
\nand has to be ratified by the State Legislatures. In this respect we find that different
\nConstitutions have devised different methods of bringing about amendment. The main
\nmethods of modern Constitutional amendment are:\n<\/p>\n
(1) by the ordinary legislature, but under certain restrictions;
\n(2) by the people through a referendum;\n<\/p>\n
(3) by a majority of all the units of a federal state;\n<\/p>\n
(4) by a special convention.\n<\/p>\n
In some cases the system of amendment is a combination of two or more of these
\nmethods.\n<\/p>\n
1460. There are three ways in which the legislature may be allowed to amend the
\nConstitution, apart from the case where it may do so in the ordinary course of legislation.
\nThe simplest restriction is that which requires a fixed quorum of members for the
\nconsideration of proposed amendments and a special majority for their passage. The latter
\ncondition operated in the now defunct Constitution of Rumania. According to Article 146
\nof the Constitution of USSR the Constitution may be amended only by a decision of
\nSupreme Soviet of USSR adopted by a majority of not less than two-thirds of the votes in
\neach of its chambers. A second sort of restriction is that which requires a dissolution and
\na general election on the particular issue, so that the new legislature, being returned with
\na mandate for the proposal, is in essence, a constituent assembly so far as that proposal is
\nconcerned. This additional check is applied in Belgium, Holland, Denmark and Norway
\n(in all of which, however, also a two-thirds parliamentary majority is required to carry the
\namendment after the election) and in Sweden. A third method of Constitutional change
\nby the legislature is that which requires a majority of the two Houses in joint session, that
\nis to say, sitting together as one House, as is the case, for example, in South Africa.
\n1461. The second method is that which demands a popular vote or referedum or
\nplebiscite. This device was employed in France during the Revolution and again by Louis
\nNapoleon, and in Germany by Hitler. This system prevails in Switzerland, Australia,
\nEire, May, France (with certain Presidential provisios in the Fifth Republic) and in
\nDenmark.\n<\/p>\n
1462. The third method is peculiar to federations. The voting on the proposed measure
\nmay be either popular or by the legislatures of the states concerned. In Switzerland and
\nAustralia the referendum is in use; in the United States any proposed amendment requires
\nratification by the legislatures, or special conventions of three fourth of the several states.
\n1463. The last method is one in which a special body is created ad hoc for the purpose of
\nConstitutional revision. In some of the states of the United States, for example, this
\nmethod is in use in connection with the Constitution of the states concerned. Such a
\nmethod is also allowed if the Federal Congress proposes this method for amendment of
\nthe United States Constitutions. This method is prevalent in some of the states in Latin
\nAmerica also (see Modern Political Constitutions by C.F. Strong, p. 153-154).
\n1464. The decision as to which method of amending the Constitution should be chosen
\nhas necessarily to be that of the Constituent Assembly. This decision is arrived at after
\ntaking into account the national requirements, the historical background, conditions
\nprevailing in the country and other factors or circumstances of special significance for the
\nnation. Once a method of amendment has been adopted in a Constitution, that method has
\nto be adhered to for bringing about the amendment. The selection of the method of
\namendment having been made by the Constituent Assembly it is not for the court to
\nexpress preference for another method of amendment. Amendment brought about by one
\nmethod prescribed by the Constitution is as effective as it would have been if the
\nConstitution had prescribed another method of bringing about amendment unless there be
\nsomething in the Constitution itself which restricts the power of amendment. Article 138
\nof the Italian Constitution makes provision for referendum to bring about amendment of
\nthe Constitution. It has however, been expressly provided in the article that referendum
\ndoes not take place if a law has been approved in its second vote by a majority of two-
\nthirds of the members of each chamber. The Italian Constitution thus makes a vote of
\nmajority of two-thirds of the members of each chamber at the second voting as effective
\nas a referendum. Article 89 of the Constitution of the French Fifth Republic like-wise
\nmakes provision for referendum for amendment of Constitution. It is, however, provided
\nin that article that the proposed amendment is not submitted to a referendum when the
\nPresident of the Republic decides to submit it to Parliament convened in Congress; in that
\ncase the proposed amendment is approved only if it is accepted by three-fifth majority of
\nthe votes cast.\n<\/p>\n
1465. We may at this stage advert to Article 5 of the United States Constitution which
\nreads as under:\n<\/p>\n
The Congress, whenever two-thirds of both Houses shall deem it
\nnecessary, shall propose amendments to this Constitution, or, on the
\napplication of the legislature of two-thirds of the several States, shall call a
\nconvention for proposing amendments, which in either case, shall be valid
\nto all intents and purposes, as part of this Constitution when ratified by the
\nlegislatures of three fourths of the several States, or by conventions in
\nthree fourth thereof, as the one or the other mode of ratification may be
\nproposed by the Congress; Provided that no amendment which may be
\nmade prior to the year one thousand eight hundred and eight shall in any
\nmanner affect the first and fourth clauses in the ninth section of the first
\narticle; and that no State, without its consent, shall be deprived of its equal
\nsuffrage in the Senate.\n<\/p>\n
The above article makes it clear that there are two methods of framing and proposing
\namendments.\n<\/p>\n
(A) Congress may itself, by a two-thirds vote in each house, prepare and propose
\namendments.\n<\/p>\n
(B) The legislatures of two-thirds of the States may require Congress to summon a
\nConstitutional Convention. Congress shall thereupon dc so, having no option to refuse;
\nand the Convention when called shall draft and submit amendments. No provision is
\nmade as to the election and composition of the Convention, matters which would
\ntherefore appear to be left to the discretion of Congress.\n<\/p>\n
1466. There are the following two methods of enacting amendments framed and
\nproposed in either of the foregoing ways. It is left to Congress to prescribe one or other
\nmethod as Congress may think fit.\n<\/p>\n
(X) The legislatures of three-fourths of the States may ratify any amendments submitted
\nto them.\n<\/p>\n
(Y) Conventions may be called in the several States, and three-fourths of these
\nconventions may ratify.\n<\/p>\n
1467. Except for Twentyfirst Amendment, on all the occasions on which the amending
\npower has been exercised, method A has been employed and method X for ratifying-i.e.,
\nno drafting conventions of the whole Union or ratifying conventions in the several States
\nhave ever been summoned. The consent of the President is not required to a
\nConstitutional amendment (see American Commonwealth by James Bryce, pp. 365-366).
\n1468. There is one provision of the Constitution which cannot be changed by this
\nprocess. It is that which secures to each and every State equal representation in one
\nbranch of the legislature because according to proviso to Article V, no State without its
\nconsent shall be deprived of its equal suffrage in the Senate.\n<\/p>\n
1469. The question as to whether the width of power of amendment is greater in case the
\namendment is passed by a people’s convention compared to the width of the power if it is
\npassed by the prescribed majority in the legislatures arose in the case of United States v.
\nSprague 282 U.S. 716 decided by the Supreme Court of the United States. In that case the
\nConstitutional validity of the Eighteenth Amendment was assailed on the ground that it
\nshould have been ratified by the Conventions because it took away the powers of the
\nStates and conferred new direct powers over individuals. The trial court rejected all these
\nviews and yet held the Eighteenth Amendment unConstitutional on theories of “political
\nscience,” the “political thought” of the times, and a “scientific approach to the problem of
\ngovernment.” The United States Supreme Court on appeal upheld the Eighteenth
\nAmendment. After referring to the provisions of Article 5 Roberts J., who gave the
\nopinion of the court, observed:\n<\/p>\n
The choice, therefore, of the mode of ratification, lies in the sole discretion
\nof Congress. Appellees, however, pointed out that amendments may be of
\ndifferent kinds, as e.g., mere changes in the character of federal means or
\nmachinery, on the one hand, and matters affecting the liberty of the citizen
\non the other. They say that the framers of the Constitution expected the
\nformer sort might be ratified by legislatures, since the States as entities
\nwould be wholly competent to agree to such alterations, whereas they
\nintended that the latter must be referred to the people because not only of
\nlack of power in the legislatures to ratify, but also because of doubt as to
\ntheir truly representing the people.\n<\/p>\n
Repelling the contention on behalf of the appellees, the court observed:
\nIf the framers of the instrument had any thought that amendments
\ndiffering in purpose should be ratified in different ways, nothing would
\nhave been simpler than so to phrase Article 5 as to exclude implication or
\nspeculation, The fact that an instrument drawn with such meticulous care
\nand by men who so well understood how to make language fit their
\nthought does not contain any such limiting phrase affecting the exercise of
\ndiscretion by the Congress in choosing one or the other alternative mode
\nof ratification is persuasive evidence that no qualification was intended.
\nThe court referred to the Tenth Amendment which provided that “the powers not
\ndelegated to the United States by the Constitution nor prohibited by it to the States, are
\nreserved to the States respectively or to the people.” The argument that the language of
\nthe Tenth Amendment demonstrates that the people reserved to themselevs powers over
\ntheir personal liberty, that the legislatures were not competent to enlarge the powers of
\nthe Federal Government in that behalf and that the people never delegated to the
\nCongress the unrestricted power of choosing the mode of ratification of a proposed
\namendment was described by the Court to be complete non sequitur. The fifth Article, it
\nwas observed, does not purport to delegate any governmental power to the United States,
\nnor to withhold any from it. On the contrary, that article is a grant of authority by the
\npeople to Congress, and not to the United States. The court further observed:
\nThey (the people) deliberately made the grant of power to Congress in
\nrespect to the choice of the mode of ratification of amendments. Unless
\nand until that Article be changed by amendment, Congress must function
\nas the delegated agent of the people in the choice of the method of
\nratification.\n<\/p>\n
1470. I am, therefore, of the view that there is no warrant for the proposition that as the
\namendments under Article 368 are brought about by the prescribed majority of the two
\nHouses of Parliament and in certain cases are ratified by the State Legislatures and the
\namendments are not brought about through referendum or passed in a Convention, the
\npower of amendment under Article 368 is on that account subject to limitations.
\n1471. Argument has then been advanced that if power be held to be vested in Parliament
\nunder Article 368 to take away or abridge fundamental rights, the power would be, or in
\nany case could be, so used as would result in repeal of all provisions containing
\nfundamental rights. India, it is urged, in such an event would be reduced to a police state
\nwherein all cherished values like freedom and liberty would be non-existent. This
\nargument, in my opinion, is essentially an argument of fear and distrust in the majority of
\nrepresentatives of the people. It is also based upon the belief that the power under Article
\n368 by two-thirds of the members present and voting in each House of Parliament would
\nbe abused or used extravagently. I find it difficult to deny to the Parliament the power to
\namend the Constitution so as to take away or abridge fundamental rights by complying
\nwith the procedure of Article 368 because of any such supposed fear or possibility of the
\nabuse of power. I may in this context refer to the observations of Marshall C.J. regarding
\nthe possibility of the abuse of power of legislation and of taxation in the case of The
\nProvidence Bank v. Alpheus Billings. 29 U.S. 514
\nThis vital power may be abused; but the Constitution of the United States
\nwas not intended to furnish the corrective for every abuse of power which
\nmay be committed by the State governments. The interest, wisdom, and
\njustice of the representative body, and its relations with its constituents
\nfurnish the only security where there is no express contract against unjust
\nand excessive taxation, as well as against unwise legislation generally.
\n1472. That power may be abused furnishes no ground for denial of its existence if
\ngovernment is to be maintained at all, is a proposition, now too well established (fee the
\nunanimous opinion of US Supreme Court in Exparte John L. Rapier 15 U.S. 93). Same
\nview was expressed by the Judicial Committee in the case of Bank of Toronto and Lambe
\n12, A.C. 575 while dealing with the provisions of Section 92 of the British North
\nAmerica Act relating to the power of Quebec legislature.\n<\/p>\n
1473. Apart from the fact that the possibility of abuse of power is no ground for the
\ndenial of power if it is found to have been legally vested, I find that the power of
\namendment under Article 368 has been vested not in one individual but in the majority of
\nthe representatives of the people in Parliament. For this purpose, the majority has to be of
\nnot less than two-thirds of the members present and voting in each House. In addition to
\nthat, it is required that the amendment Bill should be passed in each House by a majority
\nof the total membership of that House. It is, therefore, not possible to pass an amendment
\nBill by a snap vote in a House wherein a small number of members are present to satisfy
\nthe requirement of the rule of quorum. The condition about the passing of the Bill by
\neach House, including the Rajya Sabha, by the prescribed majority ensures that it is not
\npermissible to get the Bill passed in a joint sitting of the two Houses (as in the case of
\nordinary legislation) wherein the members of the Rajya Sabha can be outvoted by the
\nmembers of the Lok Sabha because of the latter’s greater numerical strength. The
\neffective voice of the Rajya Sabha in the passing of the amendment Bill further ensures
\nthat unless the prescribed majority of the representatives of the states agree the Bill
\ncannot be passed. The Rajya Sabha under our Constitution is a perpetual body; its
\nmembers are elected by the members of the State Assemblies and one-third of them retire
\nevery two years. We have besides that the provision for the ratification of the amendment
\nby not less than one-half of the State Legislature in case the amendment relates to certain
\nprovisions which impinge upon the rights of the States. The fact that a prescribed
\nmajority of the people’s representatives is required for bringing about the amendment is
\nnormally itself a guarantee that the power would not be abused. The best safeguard
\nagainst the abuse or extravagant use of power is public opinion and not a letter on the
\nright of people’s representatives to change the Constitution by following the procedure
\nlaid down in the Constitution itself. It would not be a correct approach to start with a
\ndistrust in the people’s representatives in the Parliament and to assume that majority of
\nthem would have ah aversion for the liberties of the people and would act against the
\npublic interest. To quote the words of Justice Holmes in Missouri Kansas & Texas Ry. v.
\nMay 194 U.S. 267 (on p. 270).\n<\/p>\n
Great Constitutional provisions must be administered with caution. Some
\nplay must be allowed for the joints of the machine and it must be
\nremembered that legislatures are ultimate guardians of the liberties and
\nwelfare of the people in quite as great a degree as the courts.\n<\/p>\n
1474. L.B. Orfield has dealt with the question of the abuse of power in his book “The
\nAmending of Federal Constitution”, in the following words on page 123:
\n‘Abuse’ of the amending power is an anomalous term. The proponents of
\nimplied limitations resort to the method of reductio ad absurdum in
\npointing out the abuses which might occur if there were no limitations on
\nthe power to amend…. The amending power is a power of an altogether
\ndifferent kind from the ordinary governmental powers. If abuse occurs, it
\noccurs at the hands of a special organization of the nation and of the states
\nrepresenting an extraordinary majority of the people, so that for all
\npractical purposes it may be said to be the people, or at least the highest
\nagent of the people, and one exercising soverign powers. Thus the people
\nmerely take the consequences of their own acts :\n<\/p>\n
It has already been mentioned above that the best safeguard against the abuse of power is
\npublic opinion. Assuming that under the sway of some overwhelming impulse, a climate
\nis created wherein cherished values like liberty and freedom lose their significance in the
\neyes of the people and their representatives and they choose to do away with all
\nfundamental rights by amendment of the Constitution, a restricted interpretation of
\nArticle 368 would not be of much avail. The people in such an event would forfeit the
\nclaim to have fundamental rights and in any case fundamental rights would not in such an
\nevent save the people from political enslavement, social stagnation or mental servitude. I
\nmay in this context refer to the words of Learned Hand in his eloquent address on the
\nSpirit of Liberty:\n<\/p>\n
I often wonder whether we do not rest our hopes too much upon
\nConstitutions, upon laws and upon courts. These are false hopes; believe
\nme, these are false hopes. Liberty lies in the hearts of men and women;
\nwhen it dies there, no Constitution, no law no court can save it; no
\nConstitution, no law, no court can even do much to help it. While it lies
\nthere it needs no Constitution, no law, no court to save it. And what is this
\nliberty which must lie in the hearts of men and women? It is not the
\nruthless, the unbridled will; it is not freedom to do as one likes. That is the
\ndenial of liberty, and leads straight to its overthrow. A society in which
\nmen recognize no check upon their freedom soon becomes a society where
\nfreedom is the possession of only a savage few; as we have learned to our
\nsorrow. (see pages 189-190 Spirit of Liberty edited by Irving Dilliard).
\nSimilar idea was expressed in another celebrated passage by Learned Hand in the
\nContribution of an Independent Judiciary to Civilization:\n<\/p>\n
You may ask what then will become of the fundamental principles of
\nequity and fair play which our Constitutions enshrine; and whether I
\nseriously believe that unsupported they will serve merely as counsels of
\nmoderation. I do not think that anyone can say what will be left of those
\nprinciples; I do not know whether they will serve only as counsels; but this
\nmuch I think I do know that a society so riven that the spirit of moderation
\nis gone, no court can save; that a society where that spirit flourishes, no
\ncourt need save; that in a society which evades its responsibility by
\nthrusting upon the courts the nurture of that spirit, that spirit in the end
\nwill perish. (see p. 164 supra).\n<\/p>\n
1475. It is axiomatic that the involvement of a nation in war by a declaration of war
\nagainst another country can change the entire course of history of the nation. A wrong
\ndecision in this respect can cause untold suffering, result in national humiliation, take toll
\nof thousands of lives and cripple the economy of the nation for decades to come. If the
\nGovernment and the Parliament can be entrusted with power of such far reaching
\nmagnitude on the assumption that such a power would not be abused but would be
\nexercised reasonably in the national interest, it would seem rather anomalous to have an
\napproach of distrust in those very organs of the state and to deny to the Parliament the
\npower of amendment of fundamental rights because of the supposed possibility of the
\nabuse of such power.\n<\/p>\n
1476. There is one other aspect of the matter which may be not lost sight of. Part III deals
\nwith a number of fundamental rights. Assuming that one relating to property, out-of the
\nmany fundamental rights, is found to be an obstacle in pushing forward certain
\nameliorative measures and it is proposed to abridge that fundamental right and it is also
\ndecided not to abridge or take away any other fundamental right, the present position,
\naccording to the stand taken on behalf of the petitioners, is that there is no power under
\nArticle 368 to abridge the obstructive fundamental right. The result is that even though
\nreference is made on behalf of the petitioners to those fundamental rights as enshrine
\nwithin themselves the valued concept of liberty of person and freedom of expression, the
\nprotection which is, in fact, sought is for the fundamental right to property which causes
\nobstruction to pushing forward ameliorative measures for national weal. It is not, in my
\nopinion, a correct approach to assume that if Parliament is held entitled to amend Part III
\nof the Constitution so as to take away or abridge fundamental rights, it would
\nautomatically or necessarily result in the abrogation of all fundamental rights. I may
\nmention in this context that for seventeen years, from 1950 till 1967 Golak Nath case
\n(supra) was decided, the accepted position was that the Parliament had the power to
\namend Part III of the Constitution so as to take away or abridge fundamental rights.
\nDespite the possession of that power by the Parliament, no attempt was made by it to take
\naway or abridge fundamental rights relating to cherished values like liberty of person and
\nfreedom of expression. If it was not done in the past, why should we assume that the
\nmajority of members of the Parliament in future would acquire sudden aversion and
\ndislike for these values and show an anxiety to remove them from the Constitution. There
\nis a vital distinction, in my opinion, between the vesting of a power, the exercise of the
\npower and the manner of its exercise. What we are concerned with is as to whether on the
\ntrue construction of Article 368, the Parliament has or has not the power to amend the
\nConstitution so as to take away or abridge fundamental rights. So far as this question is
\nconcerned, the answer, in my opinion, should be in the affirmative, as long as the basic
\nstructure of the Constitution is retained.\n<\/p>\n
1476. In the context of abuse of power of the amendment, reference has been made on
\nbehalf of the petitioners to the Constitution of Weimar Republic and it is urged that
\nunless there are restrictions on the power of amendment in so far as fundamental rights
\nare concerned, the danger is that the Indian Constitution may also meet the same fate as
\ndid the Weimar Constitution at the hands of Hitler. This argument, in my opinion, is
\nwholly misconceived and is not based upon correct appreciation of historical facts.
\nFollowing military reversals when Kaiser fled to Holland in 1918 his mutinous subjects
\nproclaimed a republic in Germany. There was thus a break in the continuity of the
\nauthority and the Weimar Republic had to face staggering political problems. It had to
\nbear the burden of concluding a humilitating peace. It was later falsely blamed for the
\ndefeat itself by some of the politicians who were themselves responsible for the collapse
\nand capitulation of 1918. The Republic had to wrestle, within a decade and a half, with
\ntwo economic crises of catastrophic proportions which ruined and made desperate the
\nordinarily stable elements of society. The chaos with political party divisions in the
\ncountry was reflected in Reichstag where no party obtained a clear majority. There were
\n21 cabinets in 14 years. It was in those conditions that Hitler emerged on the scene. He
\nmade use of Article 48 of the Weimar Constitution which dealt with emergency powers.
\nUnder Article 48 of the Constitution, the President was empowered to issue decrees
\nsuspending the rights guaranteed by the basic law and to make direct use of the army and
\nnavy should emergency conditions so require. The purpose of the provisions was, of
\ncourse, to provide the executive with means to act in the event of some grave national
\nemergency where the immediate and concentrated use of the power of the state might
\nbecome suddenly necessary. But what happened was that almost from its beginning the
\ngovernment found itself in one emergency after another, so that rule by executive decrees
\nissued under the authority provided for by Article 48 supplanted the normal functioning
\nof the legislative branch of government. The increasing division among the political
\nparties, the staggering economic problem and the apparent failure of the parliamentary
\ngovernment to function, were accompanied by the steady growth in power of the National
\nSocialist under Hitler. In less than two years, the Weimar Republic was transformed into
\na totalitarian dictatorship. The Enabling Act of March 23, 1933, pushed through the
\nReichstag by a narrow Nazi majority, provided government by decree without regard to
\nConstitutional guarantees. The Act empowered the Government to enact the statutes
\nwithout the sanction of the Parliament. Hitler made a show of following the Constitution,
\nbut the acts of his party in and out of the government in practice violated the basic law.
\nThe few limitations imposed upon the government were ignored, and Hitler’s Third Reich
\nwas launched (see Modern Constitutions by R.F. Moore, p. 86-87 and The Constitutions
\nof Europe by E.A. Goerner, p. 99-100). It would thus appear that it was not by use of the
\npower of amending the Constitution but by acting under the cover of Article 48 of the
\nConstitution dealing with emergency powers that Hitler brought about the Nazi
\ndictatorship. He thus became what has been described as “…the supreme political leader
\nof the people, supreme tender and highest superior of the administration, supreme judge
\nof the people, supreme commander of the armed forces and the source of all law.
\n1477. Apart from the fact that the best guarantee against the abuse of power of
\namendment is good sense of the majority of the members of Parliament and not the
\nunamendability of Part III of the Constitution, there is one other aspect of the matter.
\nEven if Part III may be left intact, a mockery of the entire parliamentary system can be
\nmade by amending Articles 85 and 172, which are not in Part III and according to which
\nthe life of the Lok Sabha and Vidhan Sabhas of the States, unless sooner dissolved,
\nwould be five years, and by providing that the life of existing Lok Sabha and Vidhan
\nSabhas shall be fifty years. This would be a flagrant abuse of the power of amendment
\nand I refuse to believe that public opinion in our country would reach such abysmal
\ndepths and the standards of political and Constitutional morality would sink so low that
\nsuch an amendment would ever be passed. I need express no opinion for the purpose of
\nthis case as to whether this Court would also not quash such an amendment In any case
\nsuch an amendment would be an open invitation for and be a precursor of revolution.
\n1478. Even without amending any article, the emergency provisions of the Constitution
\ncontained in Article 358 and 359 can theoretically be used in such a manner as may make
\na farce of the democratic set up by prolonging the rule of the party in power beyond the
\nperiod of five years since the last general election after the party in power has lost public
\nsupport. A Proclamation of Emergency under Article 352 can be issued by the President
\nif he is satisfied that a grave emergency exists whereby the security of India or of any
\npart of the territory thereof is threatened, whether by war or external aggression or even
\nby internal disturbance. Such a Proclamation has to be laid before each House of
\nParliament. Resolution approving the Proclamation has thereafter to be passed by the
\nHouses of Parliament. According to Article 83, the House of the People, unless sooner
\ndissolved, shall continue for five years from the date appointed for its first meeting and
\nno longer and the expiration of the said period of five years shall operate as a dissolution
\nof the House provided that the said period may, while a Proclamation of Emergency is in
\noperation, be extended by Parliament by law for a period not exceeding one year at a time
\nand not extending in any case beyond a period of six months after the Proclamation has
\nceased to operate. As the Government and Parliament play a vital part in the
\nProclamation and continuation of emergency, the emergency provisions can theoretically
\nbe used for avoiding the election and continuing a party in power even though it has lost
\npopular support by extending the life of House of the People in accordance with Article
\n83(2). The effective check against such unabashed abuse of power is the sense of political
\nresponsibility, the pressure of public opinion and the fear of popular uprising. We need
\nnot go into the question as to whether the court would also intervene in such an event. It
\nis, in my opinion, inconceivable that a party would dare to so abuse the powers granted
\nby the emergency provisions. The grant of the above power under Article 83 (2) is
\nnecessarily on the assumption that such a power would not be abused.
\n1479. Argument has then been advanced on behalf of the petitioners that the power of
\namendment might well be used in such a manner as might result in doing away with the
\npower of amendment under Article 368 or in any case so amending that articles as might
\nmake it impossible to amend the Constitution. It is, in my opinion, difficult to think that
\nmajority of members of future Parliament would attempt at any time to do away with the
\npower of amendment in spite of the knowledge as to what was the fate of unamendable
\nConstitutions in other countries like France. Assuming that at any time such an
\namendment to abolish all amendments of Constitution is passed and made a part of the
\nConstitution, it would be nothing short of laying the seeds of a future revolution or other
\nextra-Constitutional methods to do away with unamendable Constitution. It is not
\nnecessary for the purpose of this case to go into the question of the Constitutional validity
\nof such an amendment.\n<\/p>\n
1480. We may now deal with the question as to what is the scope of the power of
\namendment under Article 368. This would depend upon the connotation of the word
\n“amendment”. Question has been posed during arguments as to whether the power to
\namend under the above article includes the power to completely abrogate the Constitution
\nand replace it by an entirely new Constitution. The answer to the above question, in my
\nopinion, should be in the negative. I am further of the opinion that amendment of the
\nConstitution necessarily contemplates that the Constitution has not to be abrogated but
\nonly changes have to be made in it. The word “amendment” postulates that the old
\nConstitution survives without loss of its identity despite the change and continues even
\nthough it has been subjected to alterations. As a result of the amendment, the old
\nConstitution cannot be destroyed and done away with; it is retained though in the
\namended form. What then is meant by the retention of the old Constitution? It means the
\nretention of the basic structure or framework of the old Constitution. A mere retention of
\nsome provisions of the old Constitution even though the basic structure or framework of
\nthe Constitution has been destroyed would not amount to the retention of the old
\nConstitution. Although it is permissible under the power of amendment to effect changes,
\n“howsoever important, and to adapt the system to the requirements of changing
\nconditions, it is not permissible to touch the foundation or to alter the basic institutional
\npattern. The words “amendment of the Constitution” with all their wide sweep and
\namplitude cannot have the effect of destroying or abrogating the basic structure or
\nframework of the Constitution. It would not be competent under the garb of amendment,
\nfor instance, to change the democratic government into dictatorship or hereditary
\nmonarchy nor would it be permissible to abolish the Lok Sabha and the Rajya Sabha. The
\nsecular character of the state according to which the state shall not discriminate against
\nany citizen on the ground of religion only cannot likewise be done away with. Provision
\nregarding the amendment of the Constitution does not furnish a pretence for subverting
\nthe structure of the Constitution nor can Article 368 be so construed as to embody the
\ndeath wish of the Constitution or provide sanction for what may perhaps be called its
\nlawful harakiri. Such subversion or destruction cannot be described to be amendment of
\nthe Constitution as contemplated by Article 368.\n<\/p>\n
1481. The words “amendment of this Constitution” and “the Constitution shall stand
\namended” in Article 368 show that what is amended is the existing Constitution and what
\nemerges as a result of amendment is not a new and different Constitution but the existing
\nConstitution though in an amended form. The language of Article 368 thus lends support
\nto the conclusion that one cannot, while acting under that article, repeal the existing
\nConstitution and replace it by a new Constitution.\n<\/p>\n
1482. The connotation of the amendment of the Constitution was brought out clearly by
\nPt. Nehru in the course of his speech in support of the First Amendment wherein he said
\nthat “a Constitution which is responsive to the people’s will, which is responsive to their
\nideas, in that it can be varied here and there, they will respect it all the more and they will
\nnot fight against, when we want to change it.” It is, therefore, plain that what Pt. Nehru
\ncontemplated by amendment was the varying of the Constitution “here and there” and not
\nthe elimination of its basic structure for that would necessarily result in the Constitution
\nlosing its identity.\n<\/p>\n
1483. Reference to some authorities in the United States so far as the question is
\nconcerned as to whether the power to amend under Article 5 of US Constitution would
\ninclude within itself the power to alter the basic structure of the Constitution are not
\nhelpful because there has been no amendment of such a character in the United States. No
\ndoubt the Constitution of the United States had in reality, though not in form, changed a
\ngood deal since the beginning of last century; but the change had been effected far less by
\nformally enacted Constitutional amendments than by the growth of customs or
\ninstitutions which have modified the working without altering the articles of the
\nConstitution (see The Law of the Constitution by A.V. Dicey Tenth Ed. p. 129).
\n1484. It has not been disputed during the course of arguments that the power of
\namendment under Article 368 does not carry within itself the power to repeal the entire
\nConstitution and replace it by a new Constitution. If the power of amendment does not
\ncomprehend the doing away of the entire Constitution but postulates retention or
\ncontinuity of the existing Constitution, though in an amended form, question arises as to
\nwhat is the minimum of the existing Constitution which should be left intact in order to
\nhold that the existing Constitution has been retained in an amended form and not done
\naway with. In my opinion, the minimum required is that which relates to the basic
\nstructure or framework of the Constitution. If the basic structure is retained, the old
\nConstitution would be considered to continue even though other provisions have
\nundergone change. On the contrary, if the basic structure is changed, mere retention of
\nsome articles of the existing Constitution would not warrant a conclusion that the existing
\nConstitution continues and survives.\n<\/p>\n
1485. Although there are some observations in “Limitations of Amendment Procedure
\nand the Constituent Power” by Conrad to which it is not possible to subscribe, the
\nfollowing observations, in my opinion, represent the position in a substantially correct
\nmanner:\n<\/p>\n
Any amending body organized within the statutory scheme, howsoever
\nverbally unlimited its power, cannot by its very structure change the
\nfundamental pillars supporting its Constitutional authority.
\nIt has further been observed:\n<\/p>\n
The amending procedure is concerned with the statutory framework of
\nwhich it forms part itself. It may effect changes in detail, remould the legal
\nexpression of underlying principles, adapt the system to the needs of
\nchanging conditions, be in the words of Calhoun ‘the medicatrix of the
\nsystem’, but should not touch its foundations.\n<\/p>\n
A similar idea has been brought out in the, following passage by Carl J. Friedrich page
\n272 of “Man and His Government” (1963):\n<\/p>\n
A Constitution is a living system. But just as in a living, organic system,
\nsuch as the human body, various organs develop and decay yet the basic
\nstructure or pattern remains the same with each of the organs having its
\nproper function, so also in a Constitutional system the basic institutional
\npattern remains even though the different component parts may undergo
\nsignificant alterations. For it is the characteristic of a system that it
\nperishes when one of its essential component parts is destroyed. The
\nUnited States may retain some kind of Constitutional government,
\nwithout, say, the Congress or the federal division of powers, but it would
\nnot be the Constitutional system now prevailing. This view is uncontested
\neven by many who do not work with the precise concept of a Constitution
\nhere insisted upon.\n<\/p>\n
1486. According to “The Construction of Statutes” by Crawford, a law is amended when
\nit is in whole or in part permitted to remain and something is added to or taken from it or
\nin some way changed or altered in order to make it more complete or perfect or effective.
\nIt should be noticed, however, that an amendment is not the same as repeal, although it
\nmay operate as a repeal to a certain degree. Sutherland in this context states that any
\nchange of the scope or effect of an existing statute whether by addition, omission or
\nsubstitution of provisions which does not wholly terminate its existence whether by an
\nAct purporting to amend, repeal, revise or supplement or by an Act independent and
\noriginal in form, is treated as amendatory.\n<\/p>\n
1487. It is, no doubt, true that the effect of the above conclusion at which I have arrived
\nis that there would be no provision in the Constitution giving authority for drafting a new
\nand radically different Constitution with different basic structure or framework. This fact,
\nin my opinion, would not show that our Constitution has a lacuna and is not a perfect or a
\ncomplete organic instrument, for it is not necessary that a Constitution must contain a
\nprovision for its abrogation and replacement by an entirely new and different
\nConstitution. The people in the final analysis are the ultimate sovereign and if they decide
\nto have an entirely new Constitution, they would not need the authority of the existing
\nConstitution for this purpose.\n<\/p>\n
1488. Subject to the retention of the basic structure or framework of the Constitution, I
\nhave no doubt that the power of amendment is plenary and would include within itself the
\npower to add, alter or repeal the various articles including those relating to fundamental
\nrights. During the course of years after the Constitution comes into force, difficulties can
\nbe experienced in the working of the Constitution. It is to overcome those difficulties that
\nthe Constitution is amended. The amendment can take different forms. It may sometimes
\nbe necessary to repeal a particular provision of the Constitution without substituting
\nanother provision in its place. It may in respect of a different article become necessary to
\nreplace it by a new provision. Necessity may also be felt in respect of a third article to
\nadd some further clauses in it. The addition of the new clauses can be either after
\nrepealing some of the earlier clauses or by adding new clauses without repealing any of
\nthe existing clauses. Experience of the working of the Constitution may also make it
\nnecessary to insert some new and additional articles in the Constitution. Likewise,
\nexperience might reveal the necessity of deleting some existing articles. All these
\nmeasures, in my opinion, would lie within the ambit of the power of amendment. The
\ndenial of such a broad and comprehensive power would introduce a rigidity in the
\nConstitution as might break the Constitution. Such a rigidity is open to serious objection
\nin the same way as an unamendable Constitution.\n<\/p>\n
1489. The word “amendment” in Article 368 must carry the same meaning whether the
\namendment relates to taking away or abridging fundamental rights in Part III of the
\nConstitution or whether it pertains to some other provision outside Part III of the
\nConstitution. No serious objection is taken to repeal, addition or alteration of provisions
\nof the Constitution other than those in Part III under the power of amendment conferred
\nby Article 368. The same approach, in my opinion, should hold good when we deal with
\namendment relating to fundamental rights contained in Part III of the Constitution. It
\nwould be impermissible to differentiate between scope and width of power of amendment
\nwhen it deals with fundamental right and the scope and width of chat power when it deals
\nwith provisions not concerned with fundamental rights.\n<\/p>\n
1490. We have been referred to the dictionary meaning of the word “amend”, according
\nto which to amend is to “free from faults, correct, rectify, reform, make alteration, to
\nrepair, to better and surpass”. The dictionary meaning of the word “amend” or
\n“amendment”, according to which power of amendment should be for purpose of
\nbringing about an improvement, would not, in my opinion, justify a restricted
\nconstruction to be placed upon those words. The sponsors of every amendment of the
\nConstitution would necessarily take the position that the proposed amendment is to bring
\nabout an improvement on the existing Constitution. There is indeed an element of
\neuphemism in every amendment because it proceeds upon the assumption on the part of
\nthe proposer that the amendment is an improvement. In the realities and controversies of
\npolitics, question of improvement becomes uncertain with the result that in legal parlance
\nthe word amendment when used in reference to a Constitution signifies change or
\nalteration. Whether the amendment is, in fact, an improvement or not, in my opinion, is
\nnot a justiciable matter, and in judging the validity of an amendment the courts would not
\ngo into the question as to whether the amendment has in effect brought about an
\nimprovement. It is for the special majority in each House of Parliament to decide as to
\nwhether it constitutes an improvement; the courts would not be substituting their own
\nopinion for that of the Parliament in this respect. Whatever may be the personal view of a
\njudge regarding the wisdom behind or the improving quality of an amendment, he would
\nbe only concerned with the legality of the amendment and this, in its turn, would depend
\nupon the question as to whether the formalities prescribed in Article 368 have been
\ncomplied with.\n<\/p>\n
1491. The approach while determining the validity of an amendment of the Constitution,
\nin my opinion, has necessarily to be different from the approach to the question relating
\nto the legality of amendment of pleadings. A Constitution is essentially different from
\npleading filed in court by litigating parties. Pleadings contain claim and counter-claim of
\nprivate parties engaged in litigation, while a Constitution provides for the framework of
\nthe different organs of the State, viz., the executive, the legislature and the judiciary. A
\nConstitution also reflects the hopes and aspirations of a people. Besides laying down the
\nnorms for the functioning of different organs a Constitution encompasses within itself the
\nbroad indications as to how the nation is to march forward in times to come. A
\nConstitution cannot be regarded as a mere legal document to be read as a will or an
\nagreement nor is Constitution like a plaint or a written statement filed in a suit between
\ntwo litigants. A Constitution must of necessity be the vehicle of the life of a nation. It has
\nalso to be borne in mind that a Constitution is not a gate but a road. Beneath the drafting
\nof a Constitution is the awareness that things do not stand still but move on, that life of a
\nprogressive nation, as of an individual is not static and stagnant but dynamic and dashful.
\nA Constitution must therefore contain ample provision for experiment and trial in the task
\nof administration. A Constitution, it needs to be emphasised, is not a document for
\nfastidious dialectics but the means of ordering the life of a people. It had its roots in the
\npast, its continuity is reflected in the present and it is intended for the unknown future.
\nThe words of Holmes while dealing with the US Constitution have equal relevance for
\nour Constitution. Said the great Judge:\n<\/p>\n
…the provisions of the Constitution are not mathematical formulas having
\ntheir essence in their form; they are organic living institutions transplanted
\nfrom English soil. Their significance is vital not formal; it is to be gathered
\nnot simply by taking the words and a dictionary, but by considering their
\norigin and the line of their growth. (See Gompers v. United States 233
\nU.S. 604, 610(1914).\n<\/p>\n
It is necessary to keep in view Marshall’s great premises that “it is a Constitution we are
\nexpounding”. To quote the words of Felix Frankfurter in his tribute to Holmes:
\nWhether the Constitution is treated primarily as a text for interpretation or
\nas an instrument of government may make all the difference in the world.
\nThe fate of cases, and thereby of legislation, will turn on whether the
\nmeaning of the document is derived from itself or from one’s conception
\nof the country, its development, its needs, its place in a civilized society:
\n(See “Mr. Justice Holmes” edited by Felix Frankfurter, p. 58).
\nThe principles which should guide the court in construing a Constitution have been aptly
\nlaid down in the following passage by Kania C.J. in the case of A.K. Gopalan v. The
\nState of Madras<\/a> (1950) S.C.R. 88 (at p. 119-121):\n<\/p>\n
In respect of the construction of a Constitution Lord Wright in James v.
\nThe Commonwealth of Australia (1936) A.C. 578 (at 614) observed that ‘a
\nConstitution most not be construed in any narrow or pedantic sense’. Mr.
\nJustice Higgins in Attorney-General of New South Wales v. Brewery
\nEmployees Union [1908] 6 Com. L.R. 469 (at 611-12) observed :\n<\/p>\n
“Although we are to interpret words of the Constitution on the same
\nprinciples of interpretation as we apply to any ordinary law, these very
\nprinciples of interpretation compel us to take into account the nature and
\nscope of the Act that we are interpreting-to remember that it is a
\nConstitution, a mechanism under which laws are to be made and not a
\nmere Act which declares what the law is to be.” In In re The Central
\nProvinces and Berar Act XIV of 1938 [1939] F.C.R. 18 (at 37), Sir
\nMaurice Gwyer C.J. after adopting these observations said : “Especially is
\nthis true of a Federal Constitution with its nice balance of jurisdictions. I
\nconceive that a broad and liberal spirit should inspire those whose duty it
\nis to interpret it; but I do not imply by this that they are free to stretch or
\npervert to language of the enactment in the interest of any legal or
\nConstitutional theory or even for the purpose of supplying omissions or of
\ncorrecting supposed errOrs.” There is considerable authority for the
\nstatement that the Courts are not at liberty to declare an Act void because
\nin their opinion it is opposed to a spirit supposed to pervade the
\nConstitution but not expressed in words. Where the fundamental law has
\nnot limited, either in terms or by necessary implication, the general powers
\nconferred upon the Legislature we cannot declare a limitation under the
\nnotion of having discovered something in the spirit of the Constitution
\nwhich is not even mentioned in the instrument. It is difficult upon any
\ngeneral principles to limit the omnipotence of the sovereign legislative
\npower by judicial interposition, except so far as the express words of a
\nwritten Constitution give that authority. It is also stated, if the words be
\npositive and without ambiguity, there is no authority for a Court to vacate
\nor repeal a Statute on that ground alone. But it is only in express
\nConstitutional provisions limiting legislative power and controlling the
\ntemporary will of a majority by a permanent and paramount law settled by
\nthe deliberate wisdom of the nation that one can find a safe and solid
\nground for the authority of Courts of justice to declare void any legislative
\nenactment. Any assumption of authority beyond this would be to place in
\nthe hands of the judiciary powers too great and too indefinite either for its
\nown security or the protection of private rights.\n<\/p>\n
1492. Reference has been made on behalf of the petitioners to para 7 of the Fifth
\nSchedule to the Constitution which empowers the Parliament to amend by way of
\naddition, variation or repeal any of the provisions of that Schedule dealing with the
\nadministration and control of scheduled areas and scheduled tribes. Likewise, para 21 of
\nthe Sixth Schedule gives similar power to the Parliament to amend by way of addition,
\nvariation or repeal any of the provisions of the Sixth Schedule relating to the
\nadminisitration of tribal areas. It is urged that while Article 368 contains the word
\n“amendment” simpliciter, the above two paragraphs confer the power to amend by way of
\naddition, variation or repeal and thus enlarge the scope of the power of amend merit. This
\ncontention, in my opinion, is not well founded. The words “by way of addition, variation
\nor repeal” merely amplify the meaning of the word “amend” and clarify what was already
\nimplicit in that word. It, however, cannot be said that if the words “by way of addition,
\nvariation or repeal” had not been there, the power of amendment would not have also
\nincluded the power to add, vary or repeal. These observations would also hold good in
\nrespect of amended Section 291 of the Government of India Act, 1935 which gave power
\nto the Governor-General at any time by Order to make such amendments as he
\nconsidered necessary whether by way of addition, modification or repeal, in the
\nprovisions of that Act or of any Order made thereunder in relation to any Provincial
\nLegislature with respect to the matters specified in that section. A clarification by way of
\nabundant caution would not go to show that in the absence of the clarification, the power
\nwhich inheres and is implicit would be nonexistent. Apart from that, I am of the view that
\nsub-paragraph (2) of paragraph 7 of the Fifth Schedule indicates that the word
\n“amendment” has been used in the sense so as to cover amendment by way of addition,
\nvariation or repeal. According to that paragraph, no law mentioned in sub-paragraph (1)
\nshall be deemed to be an amendment of the Constitution for purpose of Article 368. As
\nsub-paragraph (1) deals with amendment by way of addition, variation or repeal, the
\namendment of Constitution for purpose of Article 368 referred to in sub-paragraph (2)
\nshould be construed to be co-extensive and comprehensive enough to embrace within
\nitself amendment by way of addition, variation or repeal. The same reasoning would also
\napply to sub-paragraph (2) of paragraph 21 of the Sixth Schedule.
\n1493. The Judicial Committee in the case of British Coal Corporation v. The King [1935]
\nA.C. 500 laid down the following rule:\n<\/p>\n
In interpreting a constituent or organic statute such as the Act, that
\nconstruction most beneficial to the widest possible amplitude of its powers
\nmust be adopted.\n<\/p>\n
The Judicial Committee also quoted with approval the following passage from Clement’s
\nCanadian Constitution relating to provision of British North America Act:
\nBut these are statutes and statutes, and the strict construction deemed
\nproper in the case, for example of a penal or taxing statute, or one passed
\nto regulate the affairs of an English parish, would be often subversive of
\nParliament’s real intent if applied to an Act passed to ensure the peace,
\norder and good government….\n<\/p>\n
Orfield, while dealing with the amendment of the Constitution has observed that the
\namendment of a Constitution should always be construed more liberally. To quote from
\nhis book “The Amending of the Federal Constitution:\n<\/p>\n
Is there a restriction that an amendment cannot add but only alter? An
\nargument very much like the foregoing is that an amendment may alter but
\nmay not add. This contention is largely a quibble on the definition of the
\nword ‘amendment’. It is asserted that by amending the Constitution is
\nmeant the changing of something that is already in the Constitution, and
\nnot the addition of something new and unrelated. Cases prescribing the
\nvery limited meaning of amendments in the law of pleading are cited as
\nauthoritative. It would seem improper however, to accept such a
\ndefinition, as amendments to Constitutions have always been construed
\nmore liberally and on altogether different principles from those Applied to
\namendments of pleadings.\n<\/p>\n
1494. It may also be mentioned that Article 5 of the US Constitution confers powers of
\namendment. The word used in that article is amendment simpliciter and not amendment
\nby way of addition, alteration or repeal. In pursuance of the power conferred by Article 5,
\nArticle 18 was added to the American Constitution by the Eighteenth Amendment.
\nSubsequently that article (Article 18) was repealed by the Twenty-first Amendment.
\nSection 1 of Article 21 was in the following words:\n<\/p>\n
The Eighteenth article of amendment to the Constitution of the United
\nStates is hereby repealed.\n<\/p>\n
The addition of the eighteenth article, though challenged, was upheld by the Supreme
\nCourt. No one has questioned the repeal of the eighteenth article on the ground that the
\npower of amendment would not include the power to repeal.\n<\/p>\n
1495. I cannot subscribe to the view that an amendment of the Constitution must keep
\nalive the provision sought to be amended and that it must be consistent with that
\nprovision. Amendment of Constitution has a wide and broad connotation and would
\nembrace within itself the total repeal of some articles or their substitution by new articles
\nwhich may not be consistent with or in conformity with earlier articles. Amendment in
\nArticle 368 has been used to denote change. This is clear from the opening words of the
\nproviso to Article 368 according to which ratification by not less than half of State
\nLegislatures would be necessary if amendment seeks to make a change in the provisions
\nof the Constitution mentioned in the proviso. The word change has a wide amplitude and
\nwould necessarily cover cases of repeal and replacement of earlier provisions by new
\nprovisions of different nature. Change can be for the better as well as for the worse.
\nEvery amendment would always appear to be a change for the worse in the eyes of those
\nwho oppose the amendment. As against that, those who sponsor an amendment would
\ntake the stand that it is a change for the better. The court in judging the validity of an
\namendment would not enter into the arena of this controversy but would concern itself
\nwith the question as to whether the Constitutional requirements for making the
\namendment have been satisfied. An amendment of the Constitution in compliance with
\nthe procedure prescribed by Article 368 cannot be struck down by the court on the
\nground that it is a change for the worse. If the court were to strike down the amendment
\non that ground, it would be tantamount to the court substituting its own opinion for that
\nof the Parliament, reinforced in certain cases by that of not less than half of State
\nLegislatures, regarding the wisdom of making the impugned Constitutional amendment.
\nSuch a course, which has the effect of empowering the court to sit in appeal over the
\nwisdom of the Parliament in making Constitutional amendment, on the supposed
\nassumption that the court has superior wisdom and better capacity to decide as to what is
\nfor the good of the nation is not permissible. It would, indeed, be an unwarranted
\nincursion into a domain which essentially belongs to the representatives of the people in
\nthe two Houses of Parliament, subject to ratification in certain cases by the State
\nLegislatures. We may in this context recall the words of Holmes J. in Lochner v. New
\nYork (1904) 198 U.S. 45.\n<\/p>\n
This case is decided upon an economic theory which a large part of the
\ncountry does not entertain. If it were a question whether I agreed with that
\ntheory, I should desire to study it further and long before making up my
\nmind. But I do not conceive that to be my duty, because I strongly believe
\nthat my agreement or disagreement has nothing to do with the right of a
\nmajority to embody their opinions in law.\n<\/p>\n
The above observations were contained in the dissent of Holmes J. The above dissent has
\nsubsequently been accepted by the US Supreme Court to lay down the correct law (see
\nFerguson v. Skrupa (1963) 372 U.S. 726 wherein it has been observed by the court:
\nIn the face of our abandonment of the use of the ‘vague contours’ of the
\nDue Process Clause to nullify laws which a majority of the Court believed
\nto be economically unwise, reliance on Adams v. Tanner is as mistaken as
\nwould be adherence to Adkins v. Children’s Hospital, overruled by West
\nCoast Hotel Co. v. Parrish AIR 1330 (1937)…. We refuse to sit as a
\n‘superlegislature to weigh the wisdom of legislation’, and we emphatically
\nrefuse to go back to the time when courts used the Due Process Clause to
\nstrike down state laws, regulatory of business and industrial conditions,
\nbecause they may be unwise, improvident, or out of harmony with a
\nparticular school of thought’.\n<\/p>\n
1496. It has also been urged on behalf of the petitioners that the framers of the
\nConstitution could not have intended that even though for the amendment of articles
\nreferred to in the proviso to Article 368, ratification of not less than one half of the State
\nLegislatures would be necessary, in the case of an amendment which deals with such a
\nvital matter as the taking away or abridgement of fundamental rights, the amendment
\ncould be brought about without such a ratification. This argument, in my opinion, is
\nuntenable. The underlying fallacy of this argument is that it assumes that ratification by
\nthe State Legislatures is necessary under the proviso in respect of Constitutional
\namendments of great importance, while no such ratification is necessary in the case of
\ncomparatively less important amendments. Plain reading of Article 368, however, shows
\nthat ratification by the State Legislatures has been made imperative in the case of those
\nConstitutional amendments which relate to or affect the rights of the States. In other cases
\nno such ratification is necessary. The scheme of Article 368 is not to divide the articles of
\nthe Constitution into two categories, viz., important and not so important articles. What
\nArticle 368 contemplates is that the amending power contained in it should cover all the
\narticles, leaving aside those provisions which can be amended by Parliament by bare
\nmajority. In the case, however, of such of the articles as relate to the federal principle or
\nthe relations of the States with the Union, the framers of the Constitution put them in the
\nproviso and made it imperative to obtain ratification by not less than half of the State
\nLegislatures in addition to the two-thirds majority of the members present and voting-in
\neach House of the Parliament for bringing about the amendment. It is plain that for the
\npurpose of ratification by the State Legislatures, the framers of the Constitution attached
\ngreater importance to the federal structure than to the individual rights. Such an approach
\nis generally adopted in the case of a provision for amendment of the federal Constitution.
\nK.C. Wheare in his book on the Federal Government has observed on page 55:
\nIt is essential in a federal government that if there be a power of amending
\nthe Constitution, that power, so far at least as concerns those provisions of
\nthe Constitution which regulate the status and power of the general and
\nregional governments, should not be confided exclusively either to the
\ngeneral governments or to the regional governments.\n<\/p>\n
We may in this context refer to the speech of Dr. Ambedkar who while dealing with the
\ncategory of articles for the amendment of which ratification by the States was required,
\nobserved:\n<\/p>\n
Now, we have no doubt put certain articles in a third category where for
\nthe purposes of amendment the mechanism is somewhat different or
\ndouble. It requires two-thirds majority plus ratification by the States. I
\nshall explain why we think that in the case of certain articles it is desirable
\nto adopt this procedure. If Members of the House who are interested in
\nthis matter are to examine the articles that have been put under the
\nproviso, they will find that they refer not merely to the Centre but to the
\nrelations between the Centre and the Provinces. We cannot forget the fact
\nthat while we have in a large number of cases invaded provincial
\nautonomy, we still intend and have as a matter of fact seen to it that the
\nfederal structure of the Constitution remains fundamentally unaltered. We
\nhave by our laws given certain rights to provinces, and reserved certain
\nrights to the Centre. We have distributed legislative authority; we have
\ndistributed executive authority and we have distributed administrative
\nauthority. Obviously to fay that even those articles of the Constitution
\nwhich pertain to the administrative, legislative, financial and other powers,
\nsuch as the executive powers of the provinces should be made liable to
\nalteration by the Central Parliament by two-thirds majority, without
\npermitting the provinces or States to have any voice, is in my judgment
\naltogether nullifying the fundamentals of the Constitution.
\n1497. learned Counsel for the petitioners has addressed us at some length on the point
\nthat even if there are no express limitations on the power of amendment, the same is
\nsubject to implied limitations, also described as inherent limitations. So far as the concept
\nof implied limitations is concerned, it has two facets. Under the first facet, they are
\nlimitations which flow by necessary implication from express provisions of the
\nConstitution. The second facet postulates limitations which must be read in the
\nConstitution irrespective of the fact whether they flow from express provisions or not
\nbecause they are stated to be based upon certain higher values which are very dear to the
\nhuman heart and are generally considered essential traits of civilized existence. It is also
\nstated that those higher values constitute the spirit and provide the scheme of the
\nConstitution. This aspect of implied limitations is linked with the existence of natural
\nrights and it is stated that such rights being of paramount character, no amendment of
\nConstitution can result in their erosion.\n<\/p>\n
1498. I may at this stage clarify that there are certain limitations which inhere and are
\nimplicit in the word “amendment”. These are limitations which flow from the use of the
\nword “amendment” and relate to the meaning or construction of the word “amendment”
\nThis aspect has been dealt with elsewhere while construing the word “amendment”.
\nSubject to this clarification, we may now advert to the two facets of the concept of
\nimplied limitations referred to above.\n<\/p>\n
1499. So far as the first facet is concerned regarding a limitation which flows by
\nnecessary implication from an express provision of the Constitution, the concept derives
\nits force and is founded upon a principle of interpretation of statutes. In the absence of
\nany compelling reason, it may be said that a Constitutional provision is not exempt from
\nthe operation of such a principle. I have applied this principle to Article 368 and despite
\nthat, I have not been able to discern in the language of that article or other relevant
\narticles any implied limitation on the power to make amendment contained in the said
\narticle.\n<\/p>\n
1500. We may now deal with the second aspect of the question which pertains to
\nlimitation on the power of making amendment because such a limitation, though not
\nflowing from an express provision, is stated to be based upon higher values which are
\nvery dear to the human heart and are considered essential traits of civilized existence. So
\nfar as this aspect is concerned, one obvious objection which must strike every one is that
\nthe Constitution of India is one of the lengthiest Constitutions, if not the lengthiest, of the
\nworld. The framers of the Constitution dealt with different Constitutional matters at
\nconsiderable length and made detailed and exhaustive provisions about them. Is it then
\nconceivable that after having dealt with the matter so exhaustively and at such great
\nlength in express words, they would leave things in the realm of implication in respect of
\nsuch an important article as that relating to the amendment of the Constitution. If it was
\nintended that limitations should be read on the power of making amendment, question
\nwould necessarily arise as to why the framers of the Constitution refrained from
\nexpressly incorporating such limitations on the power of amendment in the Constitution
\nitself. The theory of implied limitations on the power of making amendment may have
\nsome fascination and attraction for political theorists, but a deeper reflection would reveal
\nthat such a theory is based upon a doctrinaire approach and not what is so essential for
\nthe purpose of construing and working a Constitution, viz., a pragmatic and practical
\napproach. This circumstance perhaps accounts for the fact that the above theory of
\nimplied limitations has not been accepted by the highest court in any country.
\n1501 As the concept of implied limitations on the power of amendment under the second
\naspect is not based upon some express provision of the Constitution, it must be regarded
\nas essentially nebulous. The concept has no definite contours and its acceptance would
\nnecessarily introduce elements of uncertainty and vagueness in a matter of so vital an
\nimportance as that pertaining to the amendment of the Constitution. Whatever might be
\nthe justification for invoking the concept of implied limitations in a short Constitution, so
\nfar as the Constitution of India with all its detailed provisions is concerned, there is
\nhardly any scope or justification for invoking the above concept. What was intended by
\nthe framers of the Constitution was put in express words and, in the absence of any words
\nwhich may expressly or by necessary implication point to the existence of limitations on
\nthe power of amendment, it is, in my opinion, not permissible to read such limitations in
\nthe Constitution and place them on the power of amendment. I find it difficult to accede
\nto the submission that the framers of the Constitution after having made such detailed
\nprovisions for different subjects left something to be decided by implication, that in
\naddition to what was said there were things which were not said but which were intended
\nto be as effective as things said. The quest for things not said, but which were to be as
\neffective as things said, would take us to the realm of speculation and theorising and must
\nbring in its wake the uncertainty which inevitably is there in all such speculation and
\ntheorising. All the efforts of the framers of the Constitution to make its provisions to be
\ndefinite and precise would thus be undone. We shall be in doing so, not merely ignoring
\nbut setting at naught what must be regarded as a cardinal principle that a Constitution is
\nnot a subject of fastidious and abstract dialectics but has to be worked on a practical plane
\nso that it may become a real and effective vehicle of the nation’s progress. As observed
\nby Story in para 451 of the Constitution of the United States, Volume I Constitutions are
\nnot designed for metaphysical or logical subtleties, for niceties of expression, for critical
\npropriety, for elaborate shades of meaning, or for the exercise of philosophical acuteness,
\nor judicial research. They are instruments of practical nature, founded on the common
\nbusiness of human life, adapted to common wants, designed for common use, and fitted
\nfor common understandings.\n<\/p>\n
1502. In the National Prohibition Cases (supra) the petitioners challenged before the US
\nSupreme Court the validity of the Eighteenth Amendment relating to prohibition. It was
\nurged that the aforesaid amendment had resulted in encroachment upon the police power
\nof the States. There was implied limitation on the power to make such an amendment,
\naccording to the petitioners in those cases under Article 5 of the US Constitution.
\nAlthough the Supreme (Joint gave no reasons in support of its conclusion, it upheld the
\nvalidity of the Eighteenth Amendment. Argument about the implied limitations on the
\npower of amendment was thus tacitly rejected.\n<\/p>\n
1503. Eminent authors like Rottschaefer and Willis have taken the view that the theory of
\nimplied limitations should be taken to have been rejected in the National Prohibition
\nCases (supra) by the US Supreme Court. Rottschaefer in Handbook of American
\nConstitutional Law has observed on pages 8 to 10:\n<\/p>\n
The only assumption on which the exercise of the amending power would
\nbe inadequate to accomplish those results would be the existence of
\nexpress or implied limits on the subject matter of amendments. It has been
\nseveral times contended that the power of amending the federal
\nConstitution was thus limited, but the Supreme Court has thus far rejected
\nevery such claim, although at least one state court has subjected the power
\nof amending the state Constitution to an implied limit in this respect. The
\nformer position is clearly the more reasonable, since the latter implies that
\nthe ultimately sovereign people have inferentially deprived themselves of
\nthat portion of their sovereign power, once possessed by them, of
\ndetermining the content of their own fundamental law.\n<\/p>\n
1504. Question of implied limitation on the powers to make amendment also arose the
\ncase of Jeremish Ryan and Ors. v. Captain Michael Lennon [1935] Irish Reports p. 170
\nArticle 50 of the Constitution of the Irish Free State which came into force on December
\n6, 1922, as originally enacted, provided as follows:\n<\/p>\n
Amendments of this Constitution within the terms of the Scheduled Treaty
\nmay be made by the Oireachtas, but no such amendment, passed by both
\nHouses of the Oireachtas, after the expiration of a period of eight years
\nfrom the date of the coming into operation of this Constitution, shall
\nbecome law, unless the same shall, after it has been passed or deemed to
\nhave been passed by the said two Houses of the Oireachtas, have been
\nsubmitted to a Referendum of the people, and unless a majority of the
\nvotes on the register shall have recorded their votes on such Referendum,
\nand either the votes of a majority of the voters in the register, or two-thirds
\nof the votes recorded, shall have been cast in favour of such amendment.
\nAny such amendment may be made within the said period of eight years
\nby way of ordinary legislation and as such shall be subject to the
\nprovisions of Article 47 hereof.\n<\/p>\n
1505. By the Constitution (Amendment No. 10) Act, 1928, passed within the said period
\nof eight years, the Constitution was amended by, inter alia, the deletion of Article 47
\n(dealing with referendum) and the deletion from Article 50 of the words “and as such
\nshall be subject to the provisions of Article 47 thereof”. By the Constitution (Amendment
\nNo. 15) Act, 1929, also passed within the said period of eight years, Article 50 was
\namended by the substitution of the words “sixteen years” for the words “eight years”
\ntherein. By the Constitution (Amendment No. 17) Act, 1931 the Constitution was
\namended by inserting therein a provision relating to the establishment of a Tribunal
\nconsisting of officers of Defence Forces to try a number of offences. Power of detention
\non suspicion in certain cases was also conferred. It was in the context of the validity of
\nthe establishment of such Tribunals that the question arose as to whether there was an
\nimplied limitation on the power to make amendment. It was held by the Supreme Court
\n(FitzGibbon and Murnaghan JJ. and Kennedy C.J. dissenting), while dealing with the first
\ntwo amendments, that these enactments were within the power of amendment conferred
\non the Oireachtas by Article 50 and were valid amendments of the Constitution; and that,
\nconsequently, an amendment of the Constitution; enacted after the expiry of the original
\nperiod of eight years was not invalid by reason of not having been submitted to a
\nreferendum of the people under Article 50 or Article 47 as originally enacted. Dealing
\nwith the Constitution (Amendment No. 17) Act, 1931 it was held by the same majority
\nthat it was a valid amendment and was not ultra vires by reason of involving a partial
\nrepeal of the Constitution or by reason of conflicting with specific articles of the
\nConstitution such as Article 6 relating to the liberty of the person, Article 64 relating to
\nthe exercise of judicial power or Article 72 relating to the trial by jury or by reason of
\ninfringing or abrogating other articles of the Constitution or principles underlying the
\nvarious articles of the Constitution which were claimed to be fundamental and
\nimmutable. Kennedy C.J., after referring to the different articles of the Constitution, held
\nthat there was not, either expressly or by necessary implication, any power to amend the
\npower of amendment itself. He observed in this connection:\n<\/p>\n
No doubt the Constituent Assembly could, if it had so intended, have
\ngiven a power of amendment of the power to amend the Constitution, but
\nin that case it would seem far more likely that it would rather have
\nconferred on the Oireachtas a general open and free power of amendment
\nof the Constitution, unlimited in scope and without limiting and
\nrestraining requirements for its exercise, than have done the same thing
\nindirectly by giving a strictly limited power with power to remove the
\nlimitations. The Constituent Assembly clearly, to my mind, did not so
\nintend. In my opinion on the true interpretation of the power before us,
\nupon a consideration of the express prohibition, limitations and
\nrequirements of the clause containing it, the absence of any express
\nauthority, the donation of the effective act in the exercise of the power to
\nthe people as a whole, the relevant surrounding circumstances to which I
\nhave already referred, and the documents and their tenor in their entirety,
\nthere is not here, either expressly or by necessary implication, any power
\nto amend the power of amendment itself.\n<\/p>\n
FitzGibbon J. dealt with this question in these words:\n<\/p>\n
Unless, therefore, these rights appear plainly from the express provisions
\nof our Constitution to be inalienable, and incapable of being modified or
\ntaken away by any legislative act, I cannot accede to the argument that the
\nOireachtas cannot alter, modify, or repeal them. The framers of our
\nConstitution may have intended ‘to bind man down from mischief by the
\nchains of the Constitution’, but if they did, they defeated their object by
\nhanding him the key of the padlock in Article 50.\n<\/p>\n
Murnagham J. observed:\n<\/p>\n
The terms in which Article 50 is framed does authorise the amendment
\nmade and there is not in the Article any express limitation which excludes
\nArticle 50 itself from the power of amendment. I cannot, therefore, find
\nany ground upon which the suggested limitation can be properly based.
\n1506. The theory of implied limitations on the power of amendment was thus rejected by
\nthe majority of the Judges of the Irish Supreme Court. It would further appear that the
\ncrucial question which arose for determination in that case was whether there was any
\npower to amend the article relating to amendment of the Constitution or whether there
\nwas any restriction in this respect. No such question arises under our Constitution
\nbecause there is an express provision in Clause (e) of the proviso to Article 368
\npermitting such amendment. Apart from that I find that in the case of Moore and Ors. v.
\nThe Attorney-General for the Irish Free State and Ors. [1935] A.C. 484 the counsel for
\nthe appellant did not challenge the Constitutional validity of the 1929 Amendment. The
\ncounsel conceded that the said Amendment was regular and that the validity of the
\nsubsequent amendments could not be attacked on the ground that they had not been
\nsubmitted to the people in a referendum. Dealing with the above concession, the Judicial
\nCommittee observed that the counsel had rightly conceded that point. The Judicial
\nCommittee thus expressed its concurrence with the conclusion of the majority of the Irish
\nSupreme Court relating to the Constitutional validity of the Amendment Act of 1929.
\n1507. A.B. Keith has also supported the view of the majority and has observed that the
\nview of the Chief Justice in this respect was wrong (see Letters on Imperal Relations
\nIndian Reform Constitutional & International Law 1916-1935, p. 157). Keith observed in
\nthis connection:\n<\/p>\n
But that the Chief Justice was wrong on this head can hardly be denied.
\nArticle 50 of the Constitution, which gave the power for eight years to
\neffect changes by simple Act, did not prevent alteration of that Article
\nitself, and, when the Constitution was enacted, it was part of the
\nConstitutional law of the Empire that a power of change granted by a
\nConstitution applies to authorize change of the power itself, unless it is
\nsafeguarded, as it normally is, by forbidding change of the section giving
\nthe power. The omission of this precaution in the Free State Constitution
\nmust have been intentional, and therefore, it was natural that the Dail, at
\nMr. Consgrave’s suggestion, and with the full approval of Mr. de Valera,
\nthen in opposition should extend the period for change without a
\nreferendum.\n<\/p>\n
1508. Dealing with the doctrine of implied limitations on the power of amendment,
\nOrfield observes:\n<\/p>\n
Today at a time when absolutes are discredited, it must not be too readily
\nassumed that there are fundamental purposes in the Constitution which
\nshackle the amending power and which take precedence over the general
\nwelfare and needs of the people of today and of the future. (see The
\nAmending of the Federal Constitution (1942), p. 107).\n<\/p>\n
If has been further observed:\n<\/p>\n
An argument of tremendous practical importance is the fact that it would
\nbe exceedingly dangerous to lay down any limitations beyond those
\nexpressed. The critics of an unlimited power to amend have too often
\nneglected to give due consideration to the fact that alteration of the federal
\nConstitution is not by a simple majority or by a somewhat preponderate
\nmajority, but by a three-fourths majority of all the states. Undoubtedly,
\nwhere a simple majority is required, it is not an especially serious matter
\nfor the court to supervise closely the amending process both as to
\nprocedure and as to substance. But when so large a majority as three-
\nfourths has finally expressed its will in the highest possible form outside
\nof revolution, it becomes perilous for the judiciary to intervene.” (see ibid.
\np. 120).\n<\/p>\n
Orfield in this context quoted the following passage from a judicial decision:
\nImpressive words of counsel remind us of our duty to maintain the
\nintegrity of Constitutional government by adhering to the limitations laid
\nby the sovereign people upon the expression of its will…. Not less
\nimperative, however, is our duty to refuse to magnify their scope by resort
\nto subtle implication…. Repeated decisions have informed us that only
\nwhen conflict with the Constitution is clear and indisputable will a statute
\nbe condemned as void. Still more obvious is the duty of caution and
\nmoderation when the act to be reviewed is not an act of ordinary
\nlegislation, but an act of the great constituent power which has made
\nConstitutions and hereafter may unmake them. Narrow at such times are
\nthe bounds of legitimate implications.” (see ibid. p. 121).\n<\/p>\n
H.E. Willis has rejected the theory of implied limitations in his book “Constitutional Law
\nof the United States” in the following words:\n<\/p>\n
But it has been contended that there are all sorts of implied limitations
\nupon the amending power. Thus it has been suggested that no amendment
\nis valid unless it is germane to something else in the Constitution, or if it is
\na grant of a new power, or if it is legislative in form, or if it destroys the
\npowers of the states under the dual form of government, or if it changes
\nthe protection to personal liberty. The United States Supreme Court has
\nbrushed away all of these arguments….\n<\/p>\n
1509. We may now deal with the concept of natural rights. Such rights are stated to be
\nlinked with cherished values like liberty, equality and democracy. It is urged that such
\nrights are inalienable and cannot be affected by an amendment of the Constitution. I
\nagree with the learned Counsel for the petitioners that some of the natural rights embody
\nwithin themselves cherished values and represent certain ideals for which men have
\nstriven through the ages. The natural rights have, however, been treated to be not of
\nabsolute character but such as are subject to certain limitations. Man being a social being,
\nthe exercise of his rights has been governed by his obligations to the fellow beings and
\nthe society, and as such the rights of the individual have been subordinated to the general
\nweal. No one has been allowed to so exercise his rights as to impinge upon the rights of
\nothers. Although different streams of thought still persist, the later writers have generally
\ntaken the view that natural rights have no proper place outside the Constitution and the
\nlaws of the state. It is up to the state to incorporate natural rights, or such of them as are
\ndeemed essential, and subject to such limitations as are considered appropriate, in the
\nConstitution or the laws made by it. But independently of the Constitution and the laws of
\nthe state, natural rights can have no legal sanction and cannot be enforced. The courts
\nlook to the provisions of the Constitution and the statutory law to determine the rights of
\nindividuals. The binding force of Constitutional and statutory provisions cannot be taken
\naway nor can their amplitude and width be restricted by invoking the concept of natural
\nrights. Further, as natural rights have no place in order to be legally enforceable outside
\nthe provisions of the Constitution and the statute, and have to be granted by the
\nConstitutional or statutory provisions, and to the extent and subject to such limitations as
\nare contained in those provisions, those rights, having been once incorporated in the
\nConstitution or the statute, can be abridged or taken away by amendment of the
\nConstitution or the statute. The rights, as such, cannot be deemed to be supreme or of
\nsuperior validity to the enactments made by the state, and not subject to the amendatory
\nprocess.\n<\/p>\n
1510. It may be emphasised in the above context that those who refuse to subscribe to the
\ntheory of enforceability of natural rights do not deny that there are certain essential values
\nin Me, nor do they deny that there are certain requirements necessary for a civilized
\nexistence. It is also not denied by them that there are certain ideals which have inspired
\nmankind through the corridor of centuries and that there are certain objectives and
\ndesiderata for which men have struggled and made sacrifices. They are also conscious of
\nthe noble impulses yearning for a better order of things, of longings natural in most
\nhuman hearts, to attain a state free from imperfections where higher values prevail and
\nare accepted. Those who do not subscribe to the said theory regarding natural rights,
\nhowever, do maintain that rights in order to be justiciable and enforceable must form part
\nof the law or the Constitution, that rights to be effective must receive their sanction and
\nsustenance from the law of the land and that rights which have not been codified or
\notherwise made a part of the law, cannot be enforced in courts of law nor can those rights
\noverride or restrict the scope of the plain language of the statute or the Constitution.
\n1511. Willoughby while dealing with the concept of natural rights has observed in Vol. I
\nof Constitution of the United States:\n<\/p>\n
The so-called ‘natural’ or unwritten laws defining the natural, inalienable,
\ninherent rights of the citizen, which, it is sometimes claimed, spring from
\nthe very nature of free government, have no force either to restrict or to
\nextend the written provisions of the Constitution. The utmost that can be
\nsaid for them is that where the language of the Constitution admits of
\ndoubt, it is to be presumed that authority is not given for the violation of
\nacknowledged principles of justice and liberty.\n<\/p>\n
1512. It would be pertinent while dealing with the natural rights to reproduce the
\nfollowing passage from Salmond on Jurisprudence, Twelfth Edition:
\nRights, like wrongs and duties, are either moral or legal. A moral or
\nnatural right is an interest recognized and protected by a rule of morality-
\nan interest the violation of which would be a moral wrong, and respect for
\nwhich is a moral duty. A legal right, on the other hand, is an interest
\nrecognized and protected by a rule of law-an interest the violation of
\nwhich would be a legal wrong done to him whose interest it is, and respect
\nfor which is a legal duty.\n<\/p>\n
Bentham set the fashion still followed by many of denying that there are
\nany such things as natural rights at all. All rights are legal rights and the
\ncreation of the law. ‘Natural law, natural rights’, he says, ‘are two kinds of
\nfictions or metaphors, which play so great a part in books of legislation,
\nthat they deserve to be examined by themselves…. Rights properly so
\ncalled are the creatures of law properly so called; real laws give rise to real
\nrights. Natural rights are the creatures of natural law; they are a metaphor
\nwhich derives its origin from another metaphor.’ Yet the claim that men
\nhave natural rights need not involve us in a theory of natural law. In so far
\nas we accept rules and principles of morality prescribing how men ought
\nto behave, we may speak of there being moral or natural rights; and in so
\nfar as these rules lay down that men have certain rights, we may speak of
\nmoral or natural rights. The fact that such natural or moral rights and
\nduties are not prescribed in black and white like their legal counterparts
\npoints to a distinction between law and morals; it does not entail the
\ncomplete non-existence of moral rights and duties. (see p. 218-219).
\n1513. The observations on page 61 of P.W. Peterson’s “Natural Law and Natural Rights”
\nshow that the theory of natural rights which was made so popular by John Locke has
\nsince ceased to receive general acceptance. Locke had propounded the theory that the
\ncommunity perpetually retains a supreme power of saving themselves from the attempts
\nand designs of anybody, even of their legislators whenever they shall be so foolish or so
\nwicked as to lay and carry on designs against the liberties and properties of the subject
\n(see Principles of Civil Government Book 2 S 149).\n<\/p>\n
1514. While dealing with natural rights, Roscoe Pound states on page 500 of Vol. I of his
\nJurisprudence:\n<\/p>\n
Perhaps nothing contributed so much to create and foster hostility to
\ncourts and law and Constitutions as this conception of the courts as
\nguardians of individual natural rights against the state and against society;
\nthis conceiving of the law as a final and absolute body of doctrine
\ndeclaring these individual natural rights; this theory of Constitutions as
\ndeclaratory of common-law principles, which are also natural-law
\nprinciples, anterior to the state and of superior validity to enactments by
\nthe authority of the state; this theory of Constitutions as having for their
\npurpose to guarantee and maintain the natural rights of individuals against
\nthe government and all its agencies. In effect, it set up the received
\ntraditional social, political, and economic ideals of the legal profession as
\na super-Constitution, beyond the reach of any agency but judicial decision.
\n1515. I may also in this connection refer to a passage on the inherent and inalienable
\nrights in A History of American Political Theories by C. Marriam:
\nBy the later thinkers the idea that men possess inherent and inalienable
\nrights of a political or quasi-political character which are independent of
\nthe state, has been generally given up. It is held that these natural rights
\ncan have no other than an ethical value, and have no proper place in
\npolitics. There never was, and there never can be,’ says Burgess, ‘any
\nliberty upon this earth and among human beings, outside of state
\norganization’. In speaking of natural rights, therefore, it is essential to
\nremember that these alleged rights have no political force whatever, unless
\nrecognized and enforced by the state. It is asserted by Willoughby that
\n‘natural rights’ could not have even a moral value in the supposed ‘state of
\nnature’; they would really be equivalent to force and hence have no ethical
\nsignificance. (see p. 310).\n<\/p>\n
1516. It is then argued on behalf of the petitioners that essential features of the
\nConstitution cannot be changed as a result of amendment. So far as the expression
\n“essential features” means the basic structure or framework or the Constitution, I have
\nalready dealt with the question as to whether the power to amend the Constitution would
\ninclude within itself the power to change the basic structure or framework of the
\nConstitution. Apart from that, all provisions of the Constitution are subject to amendatory
\nprocess and cannot claim exemption from that process by being described essential
\nfeatures.\n<\/p>\n
1517. Distinction has been made on behalf of the petitioners between a fundamental right
\nand the essence, also described as core, of that fundamental right. It is urged that even
\nthough the Parliament in compliance with Article 368 has the right to amend the
\nfundamental right to property, it has no right to abridge or take away the essence of that
\nright. In my opinion, this differentiation between fundamental right and the essence or
\ncore of that fundamental right is an over-refinement which is not permissible and cannot
\nstand judicial scrutiny. If there is a power to abridge or take away a fundamental right,
\nthe said power cannot be curtailed by invoking the theory that though a fundamental;
\nright can be abridged or taken away, the essence or core of that fundamental right cannot
\nbe abridged or taken away. The essence or core of a fundamental right must in the nature
\nof things be its integral part and cannot claim a status or protection different from and
\nhigher than of the fundamental right of which it is supposed to be the essence or core.
\nThere is also no objective standard to determine as to what is the core of a fundamental
\nright and what distinguishes it from the periphery. The absence of such a standard is
\nbound to introduce uncertainty in a matter of so vital an importance as the amendment of
\nthe Constitution. I am, therefore, unable to accept the argument, that even if a
\nfundamental right be held to be amendable, the core or essence of that right should be
\nheld to be immune from the amendatory process.\n<\/p>\n
1518. The enforcement of due process clause in Fourteenth Amendment of US
\nConstitution, it is submitted on the petitioners’ behalf, has not caused much difficulty and
\nhas not prevented the US courts from identifying the area wherein that clause operates.
\nThis fact, according to the submission, warrants the conclusion that the concept of
\nimplied limitation on the power of amendment would also not cause much difficulty in
\nactual working. I find considerable difficulty to accede to the above submission. The
\nscope of due process clause in Fourteenth Amendment and of power of amendment of
\nConstitution in Article 368 is different; the two provisions operate in different areas, they
\nare meant to deal with different subjects and there is no similarity in the object of
\nFourteenth Amendment and that of Article 368. Any attempt to draw analogy between
\nthe two, in my opinion, is far fetched.\n<\/p>\n
1519. It may be mentioned that the Draft Report of the Sub-Committee on Fundamental
\nRights initially contained Clause 11, according to which “no person shall be deprived of
\nhis life, liberty or property without due process of law”. It was then pointed out that a vast
\nvolume of case law had gathered around the words “due process of law” which were
\nmentioned in the Fifth and the Fourteenth Amendment of the US Constitution. At first
\nthose words were regarded only as a limitation on procedure and not on the substance of
\nlegislation. Subsequently those words were held to apply to matters of substantive law as
\nwell. It was further stated that “in fact, the phrase ‘without due process of law’ appears to
\nhave become synonymous with ‘without just cause’ the court being the judge of what is
\n‘just cause’; and since the object of most legislation is to promote the public welfare by
\nrestraining and regulating individual rights of liberty and property the court can be
\ninvited, under this clause, to review almost any law”. View was also expressed that
\nClause 11 as worded might hamper social legislation. Although the members of the
\nCommittee felt that there was no case for giving a carte blanche to the Government to
\narrest, except in a grave emergency, any person without ‘due process of law’, there was
\nconsiderable support for the view that due process clause might hamper legislation
\ndealing with property and tenancy. A compromise formula was then suggested by Mr.
\nPanikkar and with the support of Mr. Munshi, Dr. Ambedkar and Mr. Rajagopalachari
\nthe suggestion was adopted that the word “property” should be omitted from the clause.
\nIn the meanwhile, Mr. B.N. Rau during his visit to America had discussion with Justice
\nFrankfurter of the US Supreme Court who expressed the opinion that the power of review
\nimplied in the “due process” clause was not only undemocratic (because it gave a few
\njudges the power of vetoing legislation enacted by the representatives of the nation) but
\nalso threw an unfair burden on the judiciary. This view was communicated to the
\nDrafting Committee which replaced the expression “without due process of law” by the
\nexpression “except according to procedure established by law”. The newly inserted words
\nwere borrowed from Article 31 of the Japanese Constitution (see pages 232-235 of the
\nFraming of India’s Constitution A Study by Shiva Rao). Reference to the proceedings of
\nthe Drafting Committee shows that a major factor which weighed for the elimination of
\nthe expression “due process of law” was that it had no definite contours. In case the view
\nis now accepted that there are implied limitations on the power of making amendment,
\nthe effect would necessarily be to introduce an element of vagueness and indefiniteness
\nin our Constitution which our Constitution-makers were so keen to avoid.
\n1520. Our attention has been invited to the declaration of human rights in the Charter of
\nthe United Nations. It is pointed out that there is similarity between the fundamental
\nrights mentioned in Part II of the Constitution and the human rights in the Charter.
\nAccording to Article 56 of the Charter, all members pledge themselves to take joint and
\nseparate action in co-operation with the Organization for the achievement of the purposes
\nset forth in Article 55. Article 55, inter alia, provides that the United Nations shall
\npromote universal respect for, and observance of human rights and fundamental freedoms
\nfor all without distinction as to race, sex, language, or religion. It is submitted on behalf
\nof the petitioners that if the power of amendment of the Constitution under Article 368
\nwere to include the power to abridge or take away fundamental rights, the amendment
\nmight well have the effect of curtailing or doing away with some of the human rights
\nmentioned in the United Nations Charter. In this respect I am of the view that the width
\nand scope of the power of amendment of the Constitution would depend upon the
\nprovisions of the Constitution. If the provisions of the Constitution are clear and
\nunambiguous and contain no limitations on the power of amendment, the court would not
\nbe justified in grafting limitations on the power of amendment because of an
\napprehension that the amendment might impinge upon human rights contained in the
\nUnited Nations Charter. It is only in cases of doubt or ambiguity that the courts would
\ninterpret a statute as not to make it inconsistent with the comity of nations or established
\nrules of international law, but if the language of the statute is clear, it must be followed
\nnotwithstanding the conflict between municipal law and international law which results
\n(see Maxwell on The Interpretation of Statutes, Twelfth Edition, p. 183). It has been
\nobserved on page 185:\n<\/p>\n
But if a statute is clearly inconsistent with international law or the comity
\nof nations, it must be so construed, whatever the effect of such a
\nconstruction may be. There is, for instance, no doubt that a right conferred
\non an individual by a treaty made with the Crown may be taken from him
\nby act of the legislature.\n<\/p>\n
The above observations apply with greater force to a Constitutional provision as such
\nprovisions are of a paramount nature. It has already been mentioned above that the
\nprovisions of our Constitution regarding the power of making amendment are clear and
\nunambiguous and contain no limitation on that power. I, therefore, am not prepared to
\naccede to the contention that a limitation on the power of amendment should be read
\nbecause of the declaration of Human Rights in the UN Charter.\n<\/p>\n
1521. I may mention in the above context that it is always open to a State to incorporate
\nin its laws the provisions of an international treaty, agreement or convention. In India the
\nprovisions of the Geneva Conventions have been incorporated in the Geneva
\nConventions Act, 1960 (Act 6 of 1960). According to the Treaties of European
\nCommunities, a State on becoming a member of the European Economic Communities
\n(EEC) has to give primacy to the Community laws over the national laws. The principle
\nof primacy of Community law was accepted in six countries of the European
\ncommunities. Three of them, namely, Netherlands, Luxembourg and Belgium
\nspecifically amended their written Constitutions to secure, as far as possible, the principle
\nof the primacy of the Community law. The other three, namely, France, Germany and
\nItaly have also Constitutional provisions under which it would be possible for the courts
\nin those countries to concede primacy to the Treaties of European Communities, and thus
\nthrough them secure the primacy of the Community law. Ireland which became a new
\nmember of EEC with effect from January 1, 1973 has amended its Constitution by the
\nThird Amendment of the Constitution Bill, 1971. This Bill has been approved in a
\nreferendum. The relevant part of the Amendment reads as under:
\nNo provision of this Constitution invalidates laws enacted, acts done or
\nmeasures adopted by the State necessitated by the obligations of
\nmembership of the Communities or prevents laws enacted, acts done or
\nmeasures adopted by the Communities, or institutions thereof, from
\nhaving the force of law in the State.\n<\/p>\n
In Britain also, primacy of the European Community law over the domestic law has been
\nrecognized by Section 2 of the European Communities Act, 1972. Question is now
\nengaging the attention of Constitutional experts as to whether it has become necessary to
\nplace limitations on the legislative powers of the British Parliament and whether it is on
\nthat account essential to have a written Constitution for the United Kingdom (see July
\n1972 Modern Law Review, p. 375 onwards on the subject of Parliamentary Sovereignty
\nand the Primacy of European Community Law).\n<\/p>\n
1522. I am also of the view that the power to amend the provisions of the Constitution
\nrelating to the fundamental rights cannot be denied by describing the fundamental rights
\nas natural rights or human rights. The basic dignity of man does not depend upon the
\ncodification of the fundamental rights nor is such codification a prerequisite for a
\ndignified way of living. There was no Constitutional provision for fundamental rights
\nbefore January 26, 1950 and yet can it be said that there did not exist conditions for
\ndignified way of living for Indians during the period between August 15, 1947 and
\nJanuary 26,. 1950. The plea that provisions of the Constitution, including those of Part
\nIII, should be given restrospective effect has been rejected by this Court. Article 19 which
\nmakes provision for fundamental rights, is not applicable to persons who are not citizens
\nof India. Can it, in view of that, be said that the non-citizens cannot while staying in India
\nlead a dignified life ? It would, in my opinion, be not a correct approach to say that
\namendment of the Constitution relating to abridgement or taking away of the fundamental
\nrights would have the effect of denuding human beings of basic dignity and would result
\nin the extinguishment of essential values of life.\n<\/p>\n
1523. It may be mentioned that the provisions of Article 19 show that the framers of the
\nConstitution never intended to treat fundamental rights to be absolute. The fact that
\nreasonable restrictions were carved in those rights clearly negatives the concept of
\nabsolute nature of those rights. There is also no absolute standard to determine as to what
\nconstitutes a fundamental right. The basis of classification varies from country to country.
\nWhat is fundamental right in some countries is not so in other countries. On account of
\nthe difference between the fundamental rights adopted in one country and those adopted
\nin another country, difficulty was experienced by our Constitution-makers in selecting
\nprovisions for inclusion in the chapter on fundamental rights (see in this connection
\nConstitutional Precedents III Series on Fundamental Rights p. 25 published by the
\nConstituent Assembly of India).\n<\/p>\n
1524. Reference has been made on behalf of the petitioners to the Preamble to the
\nConstitution and it is submitted that the Preamble would control the power of
\namendment. Submission has also been made in the above context that there is no power
\nto amend the Preamble because, according to the submission, Preamble is not a part of
\nthe Constitution but “walks before the Constitution”. I am unable to accept the contention
\nthat the Preamble is not a part of the Constitution. Reference to the debates of the
\nConstituent Assembly shows that there was considerable discussion in the said Assembly
\non the provisions of the Preamble. A number of amendments were moved and were
\nrejected. A motion was thereafter adopted by the Constituent Assembly that “the
\nPreamble stands part of the Constitution” (see Constituent Assembly debates, Vol. X, p.
\n429-456). There is, therefore, positive evidence to establish that the Preamble is a part of
\nthe Indian Constitution. In view of the aforesaid positive evidence, no help can be derived
\nfrom the observations made in respect of other Constitutions on the point as to whether
\npreamble is or is not a part of the Constitution. Apart from that, I find that the
\nobservations on p. 200-201 in Craise on Statute Law Sixth Edition show that the earlier
\nview that preamble of a statute is not part thereof has been discarded and that preamble is
\nas much a part of a statute as its other provisions.\n<\/p>\n
1525. Article 394 of the Constitution shows that the said article as well as Article 5, 6, 7,
\n8, 9, 60, 324, 366, 367, 379, 380, 388, 391, 392 and 393 came into force at once, i.e. on
\n26th day of November 1949 when the Constitution was adopted and enacted and the
\nremaining provisions of the Constitution would come into force on the 26th day of
\nJanuary, 1950 “which day is referred to in this Constitution as the commencement of this
\nConstitution”. Article 394 would thus show that except for sixteen articles which were
\nmentioned in that article, the remaining provisions of the Constitution came into force on
\nthe 26th day of January, 1950. The words “the remaining provisions”, in my opinion,
\nwould include the Preamble as well as Part III and Part IV of the Constitution. It may also
\nbe mentioned that a proposal was made in the Constituent Assembly by Mr. Santhanam
\nthat Preamble should come into force on November 26, 1949 but the said proposal was
\nrejected.\n<\/p>\n
1526. As Preamble is a part of the Constitution, its provisions other than those relating to
\nbasic structure or framework, it may well be argued, are as much subject to the
\namendatory process contained in Article 368 as other parts of the Constitution. Further, if
\nPreamble itself is amendable, its provisions other than those relating to basic structure
\ncannot impose any implied limitations on the power of amendment. The argument that
\nPreamble creates implied limitations on the power of amendment cannot be accepted
\nunless it is shown that the Parliament in compliance with the provisions of Article 368 is
\ndebarred from amending the Preamble in so far as it relates to matters other than basic
\nstructure and removing the supposed limitations which are said to be created by the
\nPreamble. It is not necessary to further dilate upon this aspect because I am of the view
\nthat the principle of construction is that reference can be made to Preamble for purpose of
\nconstruing when the words of a statute or Constitution are ambiguous and admit of two
\nalternative constructions. The preamble can also be used to shed light on and clarify
\nobscurity in the language of a statutory or Constitutional provision. When, however, the
\nlanguage of a section or article is plain and suffers from no ambiguity or obscurity, no
\nloss can be put on the words of the section or article by invoking the Preamble. As
\nobserved by Story on Constitution, the preamble can never be resorted to, to enlarge the
\npowers confided to the general government, or any of its departments. It cannot confer
\nany power per se; it can never amount, by implication, to an enlargement of any power
\nexpressly given. It can never be the legitimate source of any implied power, when
\notherwise withdrawn from the Constitution. Its true office is to expound the nature, and
\nextent, and application of the powers actually conferred by the Constitution, and not
\nsubstantively to create them (see para 462). The office of the Preamble has been stated by
\nthe House of Lords in Att.-Gen. v. H.R.H. Prince Ernest Augustus of. Hanover. [1957]
\nA.C. 436 In that case, Lord Normand said:\n<\/p>\n
When there is a preamble it is generally in its recitals that the mischief to
\nbe remedied and the scope of the Act are described. It is therefore clearly
\npermissible to have recourse to it as an aid to construing the enacting
\nprovisions. The preamble is not, however, of the same weight as an aid to
\nconstruction of a section of the Act as are other relevant enacting words to
\nbe found elsewhere in the Act or even in related Acts. There may be no
\nexact correspondence between preamble and enactment, and the
\nenactment may go beyond, or it may fall short of the indications that may
\nbe gathered from the preamble. Again, the preamble cannot be of much or
\nany assistance in construing provisions which embody qualifications or
\nexceptions from the operation of the general purpose of the Act. It is only
\nwhen it conveys a clear and definite meaning in comparison with
\nrelatively obscure or indefinite enacting words that the preamble may
\nlegitimately prevail…. If they (the enacting words) admit of only one
\nconstruction, that construction will receive effect even if it is inconsistent
\nwith the preamble, but if the enacting words are capable of either of the
\nconstructions offered by the parties, the construction which fits the
\npreamble may be preferred.\n<\/p>\n
1527. In the President’s reference In Re : The Berubari Union and Exchange of Enclaves,
\n[1963] S.C.R. 250 the matter related to the implementation of the agreement between the
\nPrime Ministers of India and Pakistan regarding the division of Berubari Union and for
\nexchange of Cooch-Bihar Enclaves in Pakistan and Pakistan enclaves in India. The
\ncontention which was advanced on behalf of the petitioner in that case was that the
\nagreement was void as it ceded part of India’s territory, and in this connection, reference
\nwas made to the Preamble to the Constitution. Rejecting the contention this Court after
\nreferring to the words of Story that preamble to the Constitution is “a key to open the
\nminds of the makers” which may show the general purposes for which they made the
\nseveral provisions, relied upon the following observations of Willoughby about the
\nPreamble to the American Constitution:\n<\/p>\n
It has never been regarded as the source of any substantive power
\nconferred on the Government of the United States, or on any of its
\ndepartments. Such power embrace only those expressly granted in the
\nbody of the Constitution and such as may be implied from those so
\ngranted.\n<\/p>\n
To the above observations this Court added:\n<\/p>\n
What is true about the powers is equally true about the prohibitions and
\nlimitations.\n<\/p>\n
1528. Apart from what has been stated above about the effect of Preamble on the power
\nof amendment, let us deal with the provisions of the Preamble itself. After referring to the
\nsolemn resolution of the people of India to constitute India into a sovereign democratic
\nrepublic, the Preamble makes mention of the different objectives which were to be
\nsecured to all its citizens. These objectives are:\n<\/p>\n
JUSTICE, social, economic and political;\n<\/p>\n
LIBERTY of thought, expression, belief, faith and worship;\n<\/p>\n
EQUALITY of status and of opportunity;\n<\/p>\n
and to promote among them all
\nFRATERNITY assuring the dignity of the individual and the unity of the
\nNation.\n<\/p>\n
It would be seen from the above that the first of the objectives mentioned in the Preamble
\nis to secure to all citizens of India justice, social, economic and political. Article 38 in
\nPart IV relating to the Directive Principles or State Policy recites that the State shall
\nstrive to promote the welfare of the people by securing and protecting as effectively as it
\nmay a social order in which justice, social, economic and political, shall inform all the
\ninstitutions of the national life.\n<\/p>\n
1529. Since the later half of the eighteenth century when the idea of political equality of
\nindividuals gathered force and led to the formation of democratic governments, there has
\nbeen a great deal of extension of the idea of equality from political to economic and
\nsocial fields. Wide disparities in the standard of living of the upper strata and the lower
\nstrata as also huge concentration of wealth in the midst of abject poverty are an index of
\nsocial maladjustment and if continued for long, they give rise to mass discontent and a
\ndesire on the part of those belonging to the lower strata to radically alter and, if
\nnecessary, blow up the social order. As those belonging to the lower strata constitute the
\nbulk of the population, the disparities provide a fertile soil for violent upheavals. The
\nprevention of such upheavals is not merely necessary for the peaceful evolution of
\nsociety, it is also in the interest of those who belong to the upper strata to ensure that the
\npotential causes for violent upheaval are eliminated. Various remedies have been
\nsuggested in this connection and the stress has been laid mainly upon having what is
\ncalled a welfare state. The modern states have consequently to take steps with a view to
\nameliorate the conditions of the poor and to narrow the chasm which divides them from
\nthe affluent sections of the population. For this purpose the state has to deal with the
\nproblems of social security, economic planning and industrial and agrarian welfare. Quite
\noften in the implementation of these policies, the state is faced with the problem of
\nconflict between the individual rights and interests on the one side and rights and welfare
\nof vast sections of the population on the other. The approach which is now generally
\nadvocated for the resolving of the above conflict is to look upon the rights of the
\nindividuals as conditioned by social responsibility. Harold Laski while dealing with this
\nmatter has observed in Encyclopaedia of the Social Sciences:\n<\/p>\n
The struggle for freedom is largely transferred from the plane of political
\nto that of economic rights. Men become less interested in the abstract
\nfragment of political power an individual can secure than in the use of
\nmassed pressure of the groups to which they belong to secure an
\nincreasing share of the social product…. So long as there is inequality, it is
\nargued, there cannot be liberty. The historic inevitability of this evolution
\nwas seen a century ago by dc Tocqueville. It is interesting to compare this
\ninsistence that the democratization of political power mean equality and
\nthat its absence would be regarded by the masses as oppression with the
\nargument of Lord Acton that liberty and equality are antitheses. To the
\nlatter liberty was essentially an autocratic ideal; democracy destroyed
\nindividuality, which was the very pith of liberty, by seeking identity of
\nconditions. The modern emphasis is rather toward the principle that
\nmaterial equality is growing inescapable and that the affirmation of
\npersonality must be effective upon an immaterial plane. (see Vol. IX, p.\n<\/p>\n
445).\n<\/p>\n
1530. I may also refer to another passage on page 99 of Grammar of Politics by Harold
\nLaski:\n<\/p>\n
The State, therefore, which seeks to survive must continually transform
\nitself to the demands of men who have an equal claim upon that common
\nwelfare which is its ideal purpose to promote.\n<\/p>\n
We are concerned here, not with the defence of anarchy, but with the
\nconditions of its avoidance. Men must learn to subordinate their self-
\ninterest to the common welfare. The privileges of some must give way
\nbefore the rights of all. Indeed, it may be urged that the interest of the few
\nis in fact the attainment of those rights, since in no other environment is
\nstability to be assured.\n<\/p>\n
1531. A modern state has to usher in and deal with large schemes having social and
\neconomic content. It has to undertake the challenging task of what has been called social
\nengineering, the essential aim of which is the eradication of the poverty, uplift of the
\ndowntrodden, the raising of the standards of the vast mass of people and the narrowing of
\nthe gulf between the rich and the poor. As occasions arise quite often when the individual
\nrights clash with the larger interests of the society, the state acquires the power to
\nsubordinate the individual rights to the larger interests of society as a step towards social
\njustice. As observed by Roscoe Pound on page 434 of Volume I of Jurisprudence under
\nthe heading “Limitations on the Use of Property”:\n<\/p>\n
Today the law is imposing social limitations-limitations regarded as
\ninvolved in social life. It is endeavouring to delimit the individual interest
\nbetter with respect to social interests and to confine the legal right or
\nliberty or privilege to the bounds of the interest so delimited.
\nTo quote the words of Friedmann in Legal Theory:\n<\/p>\n
But modern democracy looks upon the right to property as one
\nconditioned by social responsibility by the needs of society, by the
\n‘balancing of interests’ which looms so large in modern jurisprudence, and
\nnot as preordained and untouchable private right. (Fifth Edition, p. 406).
\n1532. With a view to bring about economic regeneration, the state devises various
\nmethods and puts into operation certain socio-economic measures. Some of the methods
\ndevised and measures put into operation may impinge upon the property rights of
\nindividuals. The courts may sometimes be sceptical about the wisdom behind those
\nmethods and measures, but that would be an altogether extraneous consideration in
\ndetermining the validity of those methods and measures. We need not dilate further upon
\nthis aspect because we are only concerned with the impact of the Preamble. In this
\nrespect I find that although it gives a prominent place to securing the objective of social,
\neconomic and political justice to the citizens, there is nothing in it which gives primacy to
\nclaims of individual right to property over the claims of social, economic and political
\njustice. There is, as a matter of fact, no clause or indication in the Preamble which stands
\nin the way of abridgement of right to property for securing social, economic and political
\njustice. Indeed, the dignity of the individual upon which also the Preamble has laid stress,
\ncan only be assured by securing the objective of social, economic and political justice.
\n1533. Reference has been made on behalf of the petitioners to the Nehru Report in order
\nto show that in the pre-independence days, it was one of the objectives of nationalist
\nleaders to have some kind of charter of human rights. This circumstance, in my opinion
\nhas not much material bearing on the point of controversy before us. Our Constitution-
\nmakers did incorporate in Part III of the Constitution certain-rights and designated them
\nas fundamental rights. In addition to that, the Constitution-makers put in Part IV of the
\nConstitution certain Directive Principles. Although those Directive Principles were not to
\nbe enforceable by any court, Article 37 declared that those principles were nevertheless
\nfundamental in the governance of the country and it should be the duty of the State to
\napply those principles in making laws. The Directive Principles embody a commitment
\nwhich was imposed by the Constitution-makers on the State to bring about economic and
\nsocial regeneration of the teeming millions who are steeped in poverty, ignorance and
\nsocial backwardness. They incorporate a pledge to the coming generations of what the
\nState would strive to usher in. No occasion has arisen for the amendment of the Directive
\nPrinciples. Attempt have, however, been made from time to time to amend the
\nfundamental rights in Part III. The question with which we are concerned is whether there
\nis power of amendment under Article 368 so as to take away or abridge the fundamental
\nrights. This question would necessarily have to depend upon the language of Article 368
\nas well as upon the width and scope of the power of amendment under Article 368 and
\nthe consideration of the Nehru Report in this context would be not helpful. If the
\nlanguage of Article 368 warrants a wide power of amendment as may include the power
\nto take away or abridge fundamental rights, the said power cannot be held to be non-
\nexistent nor can its ambit be restricted by reference to Nehru Report. The extent to which
\nhistorical material can be called in aid has been laid down in Maxwell on Interpretation
\nof Statutes on page 47-48 as under:\n<\/p>\n
In the interpretation of statutes, the interpreter may call to his aid all those
\nexternal or historical facts which are necessary for comprehension of the
\nsubject-matter, and may also consider whether a statute was intended to
\nalter the law or to leave it exactly where it stood before. But although we
\ncan have in mind the circumstances when the Act was passed and the
\nmischief which then existed so far as these are common knowledge…we
\ncan only use these matters as an aid to the construction of the words which
\nParliament has used. We cannot encroach on its legislative function by
\nreading in some limitation which we may think was probably intended but
\nwhich cannot be inferred from the words of the Act.\n<\/p>\n
The above observations hold equally good when we are construing the provisions of a
\nConstitution. Keeping them in view we can get no material assistance in support of the
\npetitioners contention from the Nehru Report.\n<\/p>\n
1534. Apart from what has been stated above, we find that both before the dawn of
\nindependence as well as during the course of debates of the Constituent Assembly stress
\nwas laid by the leaders of the nation upon the necessity of bringing about economic
\nregeneration and thus ensuring social and economic justice. The Congress Resolution of
\n1929 on social and economic changes stated that “the great poverty and misery of the
\nIndian people are due, not only to foreign exploitation in India but also to the economic
\nstructure of society, which the alien rulers support so that their exploitation may continue.
\nIn order therefore to remove this poverty and misery and to ameliorate the condition of
\nthe Indian masses, it is essential to make revolutionary changes in the present economic
\nand social structure of society and to remove the gross inequalities”. The resolution
\npassed by the Congress in 1931 recited that in order to end the exploitation of the masses,
\npolitical freedom must include real economic freedom of the starving millions. The
\nObjectives Resolution which was moved by Pt. Nehru in the Constituent Assembly on
\nDecember 13, 1946 and was subsequently passed by the Constituent Assembly
\nmentioned that there would be guaranteed to all the people of India, “justice, social,
\neconomic, and political; equality of status, of opportunity and before the law; freedom of
\nthought, expression, belief, faith, worship, vocation, association and action subject to law
\nand public morality”. It would, therefore, appear that even in the Objectives Resolution
\nthe first position was given to justice, social, economic and political. Pt. Nehru in the
\ncourse of one of his speeches, said:\n<\/p>\n
The service of India means the service of the millions who suffer. It means
\nthe ending of poverty and ignorance and disease and inequality of
\nopportunity. The ambition of the greatest man of our generation has been
\nto wipe every tear from every eye. That may be beyond us, but as long as
\nthere are tears and suffering, so long our work will not be over.
\nGranville Austin in his book “Extracts from the Indian Constitution : Cornerstone of a
\nNation” after quoting the above words of Pt. Nehru has stated:\n<\/p>\n
Two revolutions, the national and the social, had been running parallel in
\nIndia since the end of the First World War. With independence, the
\nnational revolution would be completed, but the social revolution must go
\non. Freedom was not an end in itself, only ‘a means to an end’, Nehru had
\nsaid, ‘that end being the raising of the people…to higher levels and hence
\nthe general advancement of humanity’.\n<\/p>\n
The first task of this Assembly (Nehru told the members) is to free India
\nthrough a new Constitution, to feed the starving people, and to clothe the
\nnaked masses, and to give every Indian the fullest opportunity to develop
\nhimself according to his capacity.\n<\/p>\n
K. Santhanam, a prominent southern member of the Assembly and editor
\nof a major newspaper, described the situation in terms of three revolutions.
\nThe political revolution would end, he wrote, with independence. The
\nsocial revolution meant ‘to get (India) out of the medievalism based on
\nbirth, religion, custom, and community and reconstruct her social structure
\non modern foundations of law, individual merit, and secular education’.
\nThe third revolution was an economic one : The transition from primitive
\nrural economy to scientific and planned agriculture and industry’.
\nRadhakrishnan (now President of India) believed India must have a ‘socio-
\neconomic revolution’ designed not only to bring about ‘the real satisfaction
\nof the fundamental needs of the common man’, but to go much deeper and
\nbring about ‘a fundamental change in the structure of Indian society’.
\nOn the achievement of this great social change depended India’s survival.
\n‘If we cannot solve this problem soon, ‘Nehru warned the Assembly, ‘all
\nour paper Constitutions will become useless and purposeless….
\n* * * * *
\n‘The choice for India, ‘wrote Santhanam,’…is between rapid evolution and
\nviolent revolution…because the Indian masses cannot and will not wait for
\na long time to obtain the satisfaction of their minimum needs.’
\n* * * * *
\nWhat was of greatest importance to most Assembly members, however,
\nwas not that socialism be embodied in the Constitution, but that a
\ndemocratic Constitution and with a socialist bias be framed so as to allow
\nthe nation in the future to become as socialist as its citizens desired or its
\nneeds demanded. Being, in general, imbued with the goals, the
\nhumanitarian bases, and some of the techniques of social democratic
\nthought, such was the type of Constitution that Constituent Assembly
\nmembers created.\n<\/p>\n
1535. Dealing with the Directive Principles, Granville Austin writes:
\nIn the Directive Principles, however, one finds an even clearer statement
\nof the social revolution. They aim at making the Indian masses free in the
\npositive sense, free from the passivity engendered by centuries of coercion
\nby society and by nature, free from the abject physical conditions that had
\nprevented them from fulfilling their best selves.\n<\/p>\n
* * * * *
\nBy establishing these positive obligations of the state, the members of the
\nConstituent Assembly made it the responsibility of future Indian
\ngovernments to find a middle way between individual liberty and the
\npublic good, between preserving the property and the privilege of the few
\nand bestowing benefits on the many in order to liberate ‘the powers of all
\nmen equally for contributions to the common good’.\n<\/p>\n
* * * * *
\nThe Directive Principles were a declaration of economic independence, a
\ndeclaration that the privilege of the colonial era had ended, that the Indian
\npeople (through the democratic institutions of the Constitution) had
\nassumed economic as well as political control of the country, and that
\nIndian capitalists should not inherit the empire of British colonialists.
\n1536. Pt. Nehru, in the course of his speech in support of the Constitution (First
\nAmendment) Bill, said:\n<\/p>\n
And as I said on the last occasion the real difficulty we have to face is a
\nconflict between the dynamic ideas contained in the Directive Principles
\nof Policy and the static position of certain things that are called
\n‘fundamental’ whether they relate to property or whether they relate to
\nsomething else. Both are important undoubtedly. How are you to get over
\nthem ? A Constitution which is unchanging and static, it does not matter
\nhow good it is, how perfect it is, is a Constitution that has past its use.
\n1537. Again in the course of his speech in support of the Constitution (Fourth
\nAmendment) Bill, Pt. Nehru said:\n<\/p>\n
But, I say, that if that is correct, there is an inherent contradiction in the
\nConstitution between the fundamental rights and the Directive Principles
\nof State Policy. Therefore, again, it is up to this Parliament to remove that
\ncontradiction and make the fundamental rights subserve the Directive
\nPrinciples of State Policy.\n<\/p>\n
1538. It cannot, therefore, be said that the stress in the impugned amendments to the
\nConstitution upon changing the economic structure by narrowing the gap between the
\nrich and the poor is a recent phenomenon. On the contrary, the above material shows that
\nthis has been the objective of the national leaders since before the dawn of independence,
\nand was one of the underlying reasons for the First and Fourth Amendments of the
\nConstitution. The material further indicates that the approach adopted was that there
\nshould be no reluctance to abridge or regulate the fundamental right to property if it was
\nfelt necessary to do so for changing the economic structure and to attain the objectives
\ncontained in the Directive Principles.\n<\/p>\n
1539. So far as the question is concerned as to whether the right to property can be said to
\npertain to basic structure or framework of the Constitution, the answer, in my opinion,
\nshould plainly be in the negative. Basic structure or framework indicates the broad
\noutlines of the Constitution, while the right to property is a matter of detail. It is apparent
\nfrom what has been discussed above that the approach of the framers of the Constitution
\nwas to subordinate the individual right to property to the social good. Property right has
\nalso been changing from time to time. As observed by Harold Laski in Grammar of
\nPolitics, the historical argument is fallacious if it regards the regime of private property as
\na simple and unchanging thing. The history of private property is, above all, the record of
\nthe most varied limitations upon the use of the powers it implies. Property in slaves was
\nvalid in Greece and Rome; it is no longer valid today. Laski in this context has quoted the
\nfollowing words of John Stuart Mill:\n<\/p>\n
The idea of property is not some one thing identical throughout history
\nand incapable of alteration…at any given time it is a brief expression
\ndenoting the rights over things conferred by the law or custom of some
\ngiven society at that time; but neither on this point, nor on any other, has
\nthe law and custom of a given time and place, a claim to be stereotyped for
\never. A proposed reform in laws or customs is not necessarily
\nobjectionable because its adoption would imply, not the adaptation of all
\nhuman affairs to the existing idea of property, to the growth and
\nimprovement of human affairs.\n<\/p>\n
1540. The argument that Parliament cannot by amendment enlarge its own powers is
\nuntenable. Amendment of the Constitution, in the very nature of things, can result in the
\nconferment of powers on or the enlargement of powers of one of the organs of the state.
\nLikewise, it can result in the taking away or abridgement of the powers which were
\npreviously vested in an organ of the state. Indeed nearly every expansion of powers and
\nfunctions granted to the Union Government would involve consequential contraction of
\npowers and functions in the Government of the States. The same is true of the converse
\nposition. There is nothing in the Constitution which prohibits or in any other way
\nprevents the enlargement of powers of Parliament as a result of Constitutional
\namendment and, in my opinion, such an amendment cannot be held to be impermissible
\nor beyond the purview of Article 368. Indeed, a precedent is afforded by the Irish case of
\nJeremish Ryan (supra) wherein amendment made by the Oirechtas as a result of which it
\nenlarged its powers inasmuch as its power of amending the Constitution without a
\nreferendum was increased from eight years to 16 years was held to be valid. Even
\nKennedy C.J. who gave a dissenting judgment did not question the validity of the
\namendment on the ground that Oirechtas had thereby increased its power. He struck it
\ndown on the ground that there was no power to amend the amending clause. No such
\ndifficulty arises under our Constitution because of the existence of an express provision. I
\nam also unable to accede to the contention that an amendment of the Constitution as a
\nresult of which the President is bound to give his assent to an amendment of the
\nConstitution passed in accordance with the provisions of Article 368 is not valid. Article
\n368 itself gives, inter alia, the power to amend Article 368 and an amendment of Article
\n368 which has been brought about in the manner prescribed by that article would not
\nsuffer from any Constitutional or legal infirmity. I may mention in this context that an
\namendment of the US Constitution in accordance with Article 5 of the US Constitution
\ndoes not require the assent of the President. The change made by the Twentyfourth
\nAmendment in the Constitution of India, to which our attention has been invited, has not
\ndone away with the assent of the President but has made it obligatory for him to give his
\nassent to the Constitution Amendment Bill after it has been passed in accordance with
\nArticle 368. As it is not now open to the President to withhold his assent to a Bill in
\nregard to a Constitutional amendment after it has been duly passed, the element of
\npersonal discretion of the President disappears altogether. Even apart from that, under our
\nConstitution the position of the President is that of a Constitutional head and the scope
\nfor his acting in exercise of his personal discretion is rather small and limited.
\n1541. Reference was made during the course of arguments to the provisions of Section 6
\nof the Indian Independence Act, 1947. According to Sub-section (1) of that section, the
\nLegislature of each of the new Dominions shall have full power to make laws for that
\nDominion, including laws having extra-territorial opeartion. Sub-section (6) of the
\nsection provided that the power referred to in Sub-section (1) of this section extends to
\nthe making of laws limiting for the future the powers of the Legislature of the Dominion.
\nNo help, in my opinion, can be derived from the above provisions because the
\nConstituent Assembly framed and adopted the Constitution not on the basis of any power
\nderived from Section 6 of the Indian Independence Act. On the contrary, the members of
\nthe Constituent Assembly framed and adopted the Constitution as the representatives of
\nthe people and on behalf of the people of India. This is clear from the opening and
\nconcluding words of the Preamble to the Constitution. There is, indeed, no reference to
\nthe Indian Independence Act in the Constitution except about its repeal in Article 395 of
\nthe Constitution.\n<\/p>\n
1542. Apart from the above, I find that all that Sub-section (6) of Section 6 of the Indian
\nIndependence Act provided for was that the power referred to in Sub-section (1) would
\nextend to the making of laws limiting for the future the powers of the Legislature of the
\nDominion. The Provisional Parliament acting as the Constituent Assembly actually
\nframed the Constitution which placed limitations on the ordinary legislative power of the
\nfuture Parliaments by providing that the legislative laws would not contravene the
\nprovisions of the Constitution. At the same time, the Constituent Assembly inserted
\nArticle 368 in the Constitution which gave power to the two Houses of future Parliaments
\nto amend the Constitution in compliance with the procedure laid down in that article.
\nThere is nothing in Section 6 of the Indian Independence Act which stood in the way of
\nthe Constituent Assembly against the insertion of an article in the Constitution conferring
\nwide power of amendment, and I find it difficult to restrict the scope of Article 368
\nbecause of anything said in Section 6 of the Indian Independence Act.
\n1543. Argument on behalf of the petitioners that our Constitution represents a compact on
\nthe basis of which people joined the Indian Union and accepted the Constitution is wholly
\nmisconceived. The part of India other than that comprised in erstwhile Indian States was
\nalready one territory on August 15, 1947 when India became free. So far as the erstwhile
\nIndian States were concerned, they acceded to the Indian Union long before the
\nConstitution came into force on January 26, 1950 or was adopted on November 26, 1949.
\nThere thus arose no question of any part of India comprising the territory of India joining
\nthe Indian Union on the faith of any assurance furnished by the provisions of the
\nConstitution. Some assurances were given to the minorities and in view of that they gave
\nup certain demands. The rights of minorities are now protected in Articles 25 to 30. Apart
\nfrom the articles relating to protection to the minorities, the various articles contained in
\nPart III of the Constitution are applicable to all citizens. There is nothing to show that the
\npeople belonging to different regions would have or indeed could have declined to either
\njoin the Indian Union or to remain in the Indian Union but for the incorporation of
\narticles relating to fundamental rights in the Constitution. The Constitution containing
\nfundamental rights was framed by the people of India as a whole speaking through their
\nrepresentative and if the people of India as a whole acting again through their
\nrepresentatives decide to abridge or take away some fundamental right like one relating
\nto property, no question of breach of faith or violation of any alleged compact can, in my
\nopinion, arise.\n<\/p>\n
1544. This apart, compact means a bargain or agreement mutually entered into, which
\nnecessarily connotes a choice and volition for the party to the compact. Whatever may be
\nthe relevance or significance of the concept of compact in the context of the US
\nConstitution where different States joined together to bring into existence the United
\nStates of America and where further each one of the States ratified the Constitution after
\nit had been prepared by the Philadelphia Convention, the above concept has plainly no
\nrelevance in the context of the Indian Constitution. The whole of India was, as already
\nmentioned, one country long before the Constitution was adopted. There was also no
\noccasion here for the ratification of the Constitution by each State after it had been
\nadopted by the Constituent Assembly.\n<\/p>\n
1545. Reference has been made on behalf of the petitioners to the case of Mangal Singh
\nand Anr. v. Union of India<\/a> [1967] 2 S.C.R. 109 which related to the Punjab
\nReorganization Act, 1966. This Court while upholding the validity of the Act dealt with
\nArticle 4, according to which any law referred to in Article 2 or Article 3 shall contain
\nsuch provisions for the amendment of the First Schedule and the Fourth Schedule as may
\nbe necessary to give effect to the provisions of the law and may also contain such
\nsupplemental, incidental and consequential provisions (including provisions as to
\nrepresentation in Parliament and in the Legislature or Legislatures of the State or States
\naffected by such law) as Parliament may deem necessary, and observed:
\nPower with which the Parliament is invested by Articles 2 and 3, is power
\nto admit, establish, or form new States which conform to the democratic
\npattern envisaged by the Constitution; and the power which the Parliament
\nmay exercise by law is supplemental, incidental or consequential to the
\nadmission, establishment or formation of a State as contemplated by the
\nConstitution, and is not power to override the Constitutional scheme. No
\nState can therefore be formed, admitted or set up by few under Article 4
\nby the Parliament which has not effective legislative, executive and
\njudicial organs.\n<\/p>\n
1546. The above passage, in my opinion, does not warrant an inference of an implied
\nlimitation on the power of amendment as contended on behalf of the petitioners. This
\nCourt dealt in the above passage with the import of the words “supplemental, incidental
\nand consequential provisions” and held that these provisions did not enable the
\nParliament to override the Constitutional scheme. The words “Constitutional scheme”
\nhad plainly reference to the provisions of the Constitution which dealt with a State, its
\nlegislature, judiciary and other matters in Part VI. Once the State of Haryana came into
\nbeing, it was to have the attributes of a State contemplated by the different articles of Part
\nVI in the same way as did the other States. No question arose in that case about limitation
\non the power of amendment under Article 368 and as such, that case cannot be of any
\navail to the petitioners.\n<\/p>\n
1547. learned Counsel for the petitioner has invited our attention to the Constitutional
\nposition specially in the context of civil liberties in Canada. In this respect we find that
\nthe opening words of the Preamble to the British North America Act, 1867 read as under:
\nWhereas the provisions of Canada, Nova Scotia, and New Brunswick have
\nexpressed their desire to be federally united into one dominion under the
\nCrown of the United Kingdom of Great Britain and Ireland, with a
\nConstitution similar in principle to that of the United Kingdom;
\nSection 91 of the above mentioned Act deals with the legislative authority of Parliament
\nof Canada. The opening words of Section 91 are as under:\n<\/p>\n
It shall be lawful for the Queen, by and with the advice and consent of the
\nSenate and House of Commons, to make laws for the peace, order, and
\ngood government of Canada, in relation to all matters not coming within
\nthe classes of subjects by this Act assigned exclusively to the Legislatures
\nof the provinces; and for greater certainty, but not so as to restrict the
\ngenerality of the foregoing terms of the section, it is hereby declared that
\n(notwithstanding anything in this Act) the exclusive legislative authority
\nof the Parliament of Canada extends to all matters coming within the
\nclasses of subjects next hereinafter enumerated; that is to say, ___.
\nThere follows a list of different subjects. The first amongst the subjects, which was
\ninserted by British North America Act 1949, is : “The amendment from time to time of
\nthe Constitution of Canada, except as regards matters coming within the classes of
\nsubjects by this Act assigned exclusively to the Legislatures of the provinces, or….” It is
\nnot necessary to give the details of other limitations on the power of amendment. Section
\n92 of the British North America Act enumerates the subjects of exclusive provincial
\nlegislation. According to this section, in each province the Legislature may exclusively
\nmake laws in relation to matters coming within the classes of subjects next hereinafter
\nenumerated. There then follows a list of subjects, the first amongst which is “The
\namendment from time to time, notwithstanding anything in this Act, of the Constitution
\nof the province, except as regards the office of the Lieutenant Governor”. In view of the
\nfact that amendment of the Constitution is among the subjects of legislation, the only
\ndistinction in Canada, it has been said, between ordinary legislation by Parliament and
\nConstitutional law is that the former concerns all matters not specially stated as within the
\nambit of provincial legislation while the latter concerns any fundamental change in the
\ndivision of rights. Further, although because of the federal character of the State, the
\nCanadian Constitution cannot be called flexible, it is probably the least rigid of any in the
\nmodern federal states (see Modern Political Constitutions by C.F. Strong).
\n1548. It appears that at least six different views have been propounded in Canada about
\nthe Constitutional position of basic liberties. To date, the Supreme Court of Canada has
\nnot given Judicial approval to any of these views. Different members of the Court have
\nvoiced various opinions on the matter, but all of these fall far short of settling the issue. It
\nshould also be noted that the fundamental problem is not whether Parliament or the
\nlegislature may give to the people basic freedom, but rather which one may interfere with
\nthem or take them away (see Civil Liberties in Canada by D.A. Schmeiser P. 13).
\n1549. An important case which had bearing on the question of civil liberties was the
\nAlberta Press case [1938] S.C.R. 100 (Canada). That case related to the validity of an Act
\nwhich had placed limitations on the freedom of the Press and the Supreme Court of
\nCanada held that the Act was ultra vires, since it was ancillary to and dependent upon the
\nAlberta Social Credit Act, which itself was ultra vires. Three or judges, including Duff
\nC.J., went further than this, and dealt with the freedom of speech and freedom of Press. It
\nwas observed that curtailment of the exercise of the right of the public discussion would
\ninterfere with the working of parliamentary institutions of Canada. Opinion of Duff C.J.
\nwas based not on the criminal law power but on the necessity for maintaining democratic
\nsociety as contemplated by the Constitution. A later decision dealing with free speech
\nwas Switzmand v. Elbing and Attorney-General of Quebec [1957] S.C.R. 285 (Canada).
\nIn that case the Supreme Court declared invalid the Quebec Communistic Propaganda
\nAct. All the judges but one were agreed that the statute did hot fall within provincial
\ncompetence under property and Civil rights or matters of a merely local or private nature
\nin the province. Abbott J. held that the Parliament itself could not abrogate the right of
\ndiscussion and, debate.\n<\/p>\n
1550. An article by Dale Gibson in Volume 12-1966-67 in McGill Law Journal shows
\nthat though the proposition enunciated by Duff C.J. has commanded the allegiance of an
\nimpressive number of judges and has not been decisively rejected, it has never been
\naccepted by a majority of the members of the Supreme Court of Canada or of any other
\ncourt. Some judges have assumed that basic freedoms may properly be the subject matter
\nof legislation separate and apart from any other-subject matter. Others have taken the
\nview that unlimited jurisdiction falls within Dominion control under its general power to
\nmake laws “for the peace, order and good government of Canada”. A third view which
\nhas been taken is mat the creation of a Parliament and reference in the Preamble to “a
\nConstitution similar in principle to that of the United Kingdom” postulates that legislative
\nbody would be elected and function in an atmosphere of free speech. It is not necessary to
\ngive the other views or dialate upon different views. Bora Laskin while dealing with the
\ndictum of Abbott J. has observed in Canadian Constitutional Law:
\nApart from the dictum by Abbott J. in the Switzman case, supra, there is
\nno high authority which places civil liberties beyond the legislative reach
\nof both Parliament and the provincial Legislatures. There are no explicit
\nguarantees of civil liberties in the B.N.A. Act nothing comparable to the
\nBill of Rights (the 1st ten amendments) in the Constitution of the United
\nStates, which, within limits and on conditions prescribed by the Supreme
\nCourt as ultimate expounder of the meaning and range of the Constitution,
\nprohibits both federal and state action infringing, inter alia, freedom of
\nreligion, of speech, of the press and of assembly. (see p. 970).
\n1551. It would appear from the above that the different views which have been expressed
\nin Canada are in the context of the preamble and section of the British North America
\nAct, the provisions of which are materially different from our Constitution. Even in the
\ncontext of the British. North America Act, the observations of Abbott J. relied upon on
\nbehalf of the petitioners have not been accepted by the majority of the judges of the
\nCanadian Supreme Court, and in my opinion, they afford a fragile basis for building a
\ntheory of implied limitations.\n<\/p>\n
1552. It may be mentioned that in August 1960 the Parliament of Canada passed the
\nCanadian Bill of Rights. Section 1 of the Bill declared certain human rights and
\nfundamental freedoms and reads as under:\n<\/p>\n
1. It is hereby recognized and declared that in Canada there have existed
\nand shall continue to exist without discrimination by reason of race,
\nnational origin, colour, religion or sex, the following human rights and
\nfundamental freedoms, namely,\n<\/p>\n
(a) the right of the individual to life, liberty, security of the
\nperson and enjoyment of property, and the right not to be
\ndeprived thereof except by due process of law;\n<\/p>\n
(b) the right of the individual to equality before the law and
\nthe protection of the law;\n<\/p>\n
(c) freedom of religion;\n<\/p>\n
(d) freedom of speech;\n<\/p>\n
(e) freedom of assembly and association; and\n<\/p>\n
(f) freedom of the press.\n<\/p>\n
According to Section 2 of the Bill, every law of Canada shall, unless it is expressly
\ndeclared by an Act of the Parliament of Canada that it shall operate notwithstanding the
\nCanadian Bill of Rights, be so construed and applied as not to abrogate, abridge or
\ninfringe or to authorise the abrogation, abridgement or infringement of any of the rights
\nor freedoms therein recognized and declared. The relevant part of Section 2 reads as
\nunder:\n<\/p>\n
Every law of Canada shall, unless it is expressly declared by an Act of the
\nParliament of Canada that it shall operate notwithstanding the Canadian
\nBill of Rights, be so construed and applied as not to abrogate, abridge or
\ninfringe or to authorize the abrogation, abridgement or infringement of
\nany of the rights or freedoms herein recognized and declared, and in
\nparticular, no law of Canada shall be construed or applied so as to…
\n(underlining supplied).\n<\/p>\n
Plain reading of Section 2 reproduced above makes it manifest that the human rights and
\nfundamental freedoms mentioned in Section 1 of the Bill are not absolute but are subject
\nto abrogation or abridgement if an express declaration to that effect be made in a law of
\nCanada. Section 2 of the Bill shows that if an express declaration to that effect be made
\nan Act of the Parliament can override the provisions of the Bill of Rights. Section 2 is
\nthus inconsistent with the theory of implied limitations based on human rights on the
\npower of the Canadian Parliament.\n<\/p>\n
1553. Another case from Canada which has been referred to on behalf of the petitioners
\nand which in my opinion is equally of no avail to them is The Attorney General of Nova
\nScotia and The Attorney General of Canada [1950] S.C.R. 31 (Canada) decided by the
\nSupreme Court of Canada. It was held in that case that an Act respecting the delegation
\nof jurisdiction from the Parliament of Canada to the Legislature of Nova Scotia and vice
\nversa, if enacted, would not be Constitutionally valid since it contemplated delegation by
\nParliament of powers, exclusively vested in it by Section 91 of the British North America
\nAct, to the Legislature of Nova Scotia; and delegation by that Legislature of powers,
\nexclusively vested in Provincial Legislature under Section 92 of the Act, to Parliament.
\nThe Parliament of Canada and each Provincial Legislature, according to the Supreme
\nCourt of Canada, was sovereign body within its sphere, possessed of exclusive
\njurisdiction to legislate with regard to the subject matters assigned to it under Section 91
\nor Section 92, as the case may be. Neither was capable therefore of delegating to the
\nother the powers with which it had been vested nor of receiving from the other the
\npowers with which the other had been vested. It is plain that that case related to the
\ndelegation of powers which under the British North America Act had been assigned
\nexclusively to Parliament or to the Provincial Legislatures. Such a delegation was held to
\nbe not permissible. No such question arises in the present case.
\n1554. We may now deal with some of the other cases which have been referred to on
\nbehalf of the petitioner. Two of those cases are from Ceylon. The Constitutional position
\nthere was that Section 29 of the Ceylon (Constitution) Order in Council, 1946 gave the
\npower to make laws as well as the power to amend the Constitution though the procedure
\nprescribed for the two was different. Section 29 reads as under:
\n29 (1) Subject to the provisions of this Order, Parliament shall have power
\nto make laws for the peace, order and good government of the Island.
\n(2) No such law shall-\n<\/p>\n
(a) prohibit or restrict the free exercise of any religion; or\n<\/p>\n
(b) make persons of any community or religion liable to
\ndisabilities or restrictions to which persons of other
\ncommunities or religions are not made liable; or\n<\/p>\n
(c) confer on persons of any community or religion any
\nprivilege or advantage which is not conferred on persons of
\nother communities or religions; or\n<\/p>\n
(d) alter the Constitution of any religious body except with
\nthe consent of the governing authority of that body, so,
\nhowever, that in any case where a religious body is
\nincorporated by law, no such alteration shall be made
\nexcept at the request of the governing authority of that
\nbody:\n<\/p>\n
1555. Provided, however, that the preceding provisions of this, subsection shall not apply
\nto any law making provision for, relating to, or connected with, the election of Members
\nof the House of Representatives, to represent persons registered as citizens of Ceylon
\nunder the Indian and Pakistani Residents (Citizenship) Act.\n<\/p>\n
1556. This proviso shall cease to have effect on a date to be fixed by the Governor-
\nGeneral by Proclamation published in the Gazette.\n<\/p>\n
(3) Any law made in contravention of Sub-section (2) of this section shall,
\nto the extent of such contravention, be void.\n<\/p>\n
(4) In the exercise of its powers under this section, Parliament may amend
\nor repeal any of the provisions of this Order or of any other Order of Her
\nMajesty in Council in its application to the Island:\n<\/p>\n
1557. Provided that no Bill for the amendment or repeal of any of the provisions of this
\nOrder shall be presented for the Royal Assent unless it has endorsed on it a certificate
\nunder the hand of the Speaker that the number of votes cast in favour thereof in the
\nHouse of Representatives amounted to not less than two-thirds of the whole number of
\nMembers of the House (including those not present).\n<\/p>\n
1558. Every certificate of the Speaker under this sub-section shall be conclusive for all
\npurposes and shall not be questioned in any court of law.\n<\/p>\n
1559. In Liyanage and Ors. v. The Queen [1966] All E.R. 650 the appellants had been
\ncharged with offences arising out of an abortive coup d’etat on January 27, 1962. The
\nstory of the coup d’ etat was set out in a White Paper issued by the Ceylon Government.
\nOn March 16, 1962 the Criminal Law (Special Provisions) Act was passed and it was
\ngiven restrospective effect from January 1, 1962. The Act was limited in operation to
\nthose who were accused of offences against the State in or about January 27, 1962. The
\nAct legalised the imprisonment of the appellants while they were awaiting trial, and
\nmodified a section of the Penal Code so as to enact ex post facto a new offence to meet
\nthe circumstances of the abortive coup. The Act empowered the Minister of Justice to
\nnominate the three judges to try the appellants without a jury. The validity of the Act was
\nchallenged as well as the nomination which had been made by the Minister of Justice of
\nthe three judges. The Ceylon Supreme Court upheld the objection about the vires of some
\nof the provisions of the Act as well as the nomination of the judges. Subsequently the Act
\nwas amended and the power of nomination of the judges was conferred on the Chief
\nJustice. The appellants having been convicted at the trial before a court of three judges
\nnominated under the amended Act, went up in appeal before the Judicial Committee. The
\nconviction of the appellants was challenged on three grounds but the Judicial Committee
\ndealt with only two grounds. The first ground was that the Ceylon Parliament was limited
\nby an inability to pass legislation which was contrary to fundamental principles of justice.
\nThe two Acts of 1962, it was stated, were contrary to such principles in that they were not
\nonly directed against individuals but also ex post facto created crimes and for which those
\nindividuals would otherwise be protected. The second contention was that the Acts of
\n1962 offended against the Constitution in that they amounted to a direction to convict the
\nappellants or to a legislative plan to secure the conviction and severe punishment of the
\nappellants and thus constituted an unjustifiable assumption of judicial power by the
\nlegislature, or an interference with judicial power, which was outside the legislature’s
\ncompetence and was inconsistent with the severance of power between legislature,
\nexecutive, and judiciary which the Constitution ordained. Dealing with the first
\ncontention, the Judicial Committee referred to the provisions of the Ceylon (Constitution)
\nOrder in Council, 1946 and the Ceylon Independence Act, 1947 and observed that the
\njoint effect of the said Order and Act was intended to and resulted in giving the Ceylon
\nParliament the full legislative powers of an independent sovereign state. The legislative
\npower of the Ceylon Parliament, it was held, was not limited by inability to pass laws
\nwhich offended fundamental principles of justice. On the second ground, the Judicial
\nCommittee held the Acts of 1962 to be invalid as they involved a usurpation and
\ninfringement by the legislature of judicial powers inconsistent with the written
\nConstitution of Ceylon, which, while not in terms vesting judicial functions in the
\njudiciary, manifested an intention to secure in the judiciary a freedom from a political,
\nlegislative and executive control.\n<\/p>\n
1560. It would thus appear that the decision is based upon the ground of severance of
\npowers between legislature, judiciary and executive under the Ceylon Constitution and
\nfurnishes no support for the theory of implied limitations on the power of Parliament. On
\nthe contrary, the Judicial Committee while dealing with the first contention rejected the
\ntheory of limitations on the power of Parliament to make a law in violation of the
\nfundamental principles of justice. The Judicial Committee, it is also noteworthy,
\nexpressly pointed out that there had been no amendment of the Constitution in
\naccordance with Section 29(4) of the Constitution by two-thirds majority and as such
\nthey had not to deal with that situation.\n<\/p>\n
1561. Another case to which reference was made on behalf of the petitioners was The
\nBribery Commissioner v. Pedrik Ranasinghe [1965] A.C. 172. In that case it was found
\nthat the members of the Bribery Tribunal had been appointed by the Governor-General
\non the advice of the Minister of Justice in accordance with Bribery Amendment Act but
\nin contravention of Section 55 of the Ceylon Constitution. [Ceylon (Constitution) Order
\nin Council, 1946] according to which the appointment of judicial officers was vested in
\nthe Judicial Service Commission. It was held that a legislature has no power to ignore the
\nconditions of law-making that are imposed by the instrument which itself regulates its
\npower to make law. This restriction exists independently of the question whether the
\nlegislature is sovereign, as is that of Ceylon.\n<\/p>\n
1562. It would appear from the above that the point of controversy which arose for
\ndetermination in that case was different from that which arises in the present case because
\nwe are not in this case concerned with any law made by a legislature in contravention of
\nthe Constitutional provisions Reference has been made on behalf of the petitioners to a
\npassage in the judgment wherein while dealing with Sub-section (2) of Section 29 of the
\nCeylon Constitution, the provisions of which have been reproduced earlier, the Judicial
\nCommittee observed that the various clauses of Sub-section (2) set out entrenched
\nreligious and racial matters which shall not be the subject of legislation. It was further
\nobserved that those provisions represented the solemn balance of rights between the
\ncitizens of Ceylon, the fundamental conditions on which inter se they accepted the
\nConstitution and these are therefore unalterable under the Constitution. It is contended
\nthat those observations show that the rights mentioned in Section 29(2) of the Ceylon
\nConstitution which were similar to the fundamental rights in Part III of the Indian
\nConstitution, were held by the Judicial Committee to be unalterable under the
\nConstitution. There was, it is further submitted, similarity between the provisions of
\nSection 29(3) of the Ceylon Constitution and Article 13(2) of the Indian Constitution
\nbecause it was provided in Section 29(3) that any law made in contravention of Section
\n29(2) shall to the extent of such contravention be void.\n<\/p>\n
1563. I find it difficult to accede to the contention that the Judicial Committee laid down
\nin the above case that Sections 29(2) and 29(3) placed a restriction on the power of
\namendment of the Constitution under Section 29(4) of the Constitution. The question
\nwith which the Judicial Committee was concerned was regarding the validity of the
\nappointment of the members of the Bribery Tribunal. Such appointment though made in
\ncompliance with the provisions of the Bribery Amendment Act, was in contravention of
\nthe requirements of Section 55 of the Ceylon Constitution. No question arose in that case
\nrelating to the validity of a Constitutional amendment brought about in compliance with
\nSection 29(4) of the Constitution. Reference to the argument of the counsel for the
\nrespondent on the top of page 187 of that case shows that it was conceded on his behalf
\nthat “there is no limitation at the moment on the right of amendment or repeal except the
\nrequirement of the requisite majority”. The Judicial Committee nowhere stated that they
\ndid not agree with the above stand of the counsel for the respondent. Perusal of the
\njudgment shows that the Judicial Committee dealt with Sections 18 and 29 together and
\npointed out the difference between a legislative law, which was required to be passed by
\na bare majority of votes under Section 18 of the Constitution, and a law relating to a
\nConstitutional amendment which was required to be passed by a two-thirds majority
\nunder Section 29(4). Dealing with the question of sovereignty, the Judicial Committee
\nobserved:\n<\/p>\n
A Parliament does not cease to be sovereign whenever its component
\nmembers fail to produce among themselves a requisite majority, e.g.,
\nwhen in the case of ordinary legislation the voting is evenly divided or
\nwhen in the case of legislation to amend the Constitution there is only a
\nbare majority if the Constitution requires something more. The minority
\nare entitled under the Constitution of Ceylon to have no amendment of it
\nwhich is not passed by a two-thirds majority. The limitation thus imposed
\non some lesser majority of members does not limit the sovereign power of
\nParliament itself which can always, whenever it chooses, pass the
\namendment with the requisite majority.\n<\/p>\n
It has been submitted on behalf of the respondents that the above passage indicates that
\nthe Judicial Committee took the view that the amendment of all the provisions of the
\nCeylon Constitution including those contained in Sub-sections (2) and (3) of Section 29
\ncould be passed by a two-thirds majority. It is also stated that the restrictions imposed by
\nSub-section (2) of Section 29 of the Ceylon Constitution are on the power of ordinary
\nlegislation by simple majority and not on the power of making Constitutional amendment
\nby two-thirds majority in compliance with Section 29(4) of the Constitution. It was in
\nthat sense that the Judicial Committee, according to the submission, used the word
\n“entrenched”. Our attention has also been invited to the observations on pages 83 and 84
\nof the Constitutional structure by K.C. Wheare 1963 Reprint that “these safeguards
\n(contained in Section 29) of the rights of communities and religions could be repealed or
\namended by the Parliament of Ceylon provided it followed the prescribed procedure for
\namendment of the Constitution”. These submissions may not be bereft of force, but it is,
\nin my opinion, not necessary to dilate further upon this matter and discuss the provisions
\nof the Ceylon Constitution at greater length. The point of controversy before us would
\nhave to be decided in the light essentially of the provisions of our own Constitution.
\nSuffice it to say that Ranasinghe’s case does not furnish any material assistance to the
\nstand taken on behalf of the petitioners.\n<\/p>\n
1564. We may now advert to the case of McCawley v. The King [1920] A.C. 691 The
\nsaid case related to the Constitution of Queensland in Australia. Queensland was granted
\na Constitution in 1859 by an Order in Council made on June 6. The Order in Council set
\nup a Legislature in the territory consisting of the Queen, a Legislative Council and a
\nLegislative Assembly and the law making power was vested in the Queen acting with the
\nadvice and consent of the Council and Assembly. Any law could be made for the “peace,
\nwelfare and good government of the colony”, the phrase generally employed to denote
\nthe plenitude of sovereign legislative power even though that power be confined to
\ncertain subjects or within certain reservations. The Legislature passed a Constitution Act
\nin 1867. By Section 2 of that Act the legislative body was declared to have power to
\nmake laws for the peace, welfare and good government of the colony in all cases
\nwhatsoever. The only express restriction on this comprehensive power was in Section 9
\nwhich required a two-thirds majority of the Council and of the Assembly as a condition
\nprecedent to the validity of legislation altering the Constitution of the Council. In 1916
\nthe Industrial Arbitration Act was passed. The said Act authorised the Governor in
\nCouncil to appoint the President or a judge of the Court of Industrial Arbitration to be a
\njudge of the Supreme Court of Queensland. It was also provided that the judge so
\nappointed shall have the jurisdiction of both offices, and shall hold office as a judge of
\nthe Supreme Court during good behaviour. The Governor in Council, by a commission,
\nappointed the appellant who was the President of the Court of Industrial Arbitration to be
\na judge of the Supreme Court during good behaviour. The Supreme Court of Queensland
\nheld that the appellant was not entitled to have the oath of office administered to him or
\nto take his seat as a member of the Supreme Court. Subsequently, the Supreme Court of
\nQueensland gave a judgment in ouster against the appellant. The provisions of Section 6
\nof the Industrial Arbitration Act of 1916 under which the appellant had been appointed a
\njudge of the Supreme Court were held to be inconsistent with the provisions of the
\nConstitution Act and as such void. On appeal four out of the seven judges of the High
\nCourt of Australia agreed with the Supreme Court of Queensland, while the three other
\njudges took the opposite view and expressed the opinion that the appeal should be
\nallowed. The matter was then taken up in appeal to the Privy Council. Lord Birkenhead
\ngiving the opinion of the Judicial Committee held (1) that the Legislature of Queensland
\nhad power, both under the Colonial Laws Validity Act, 1865, and apart therefrom, to
\nauthorise the appointment of a judge of the Supreme Court for a limited period; and (2)
\nthat Section 6 of the Industrial Arbitration Act authorised an appointment as a judge of
\nthe Supreme Court only for the period during which the person appointed was a judge of
\nthe Court of Industrial Arbitration. The appellant was further held to have been validly
\nappointed. The above case though containing observations that a legislature has no power
\nto ignore the conditions of law-making that are imposed by the instrument which itself
\nregulates its power to make law, laid down the proposition that in the absence of a
\nrestriction, it is not possible to impose a restriction upon the legislative power. It was
\nobserved:\n<\/p>\n
The Legislature of Queensland is the master of its own household, except
\nin so far as its powers have in special cases been restricted. No such
\nrestriction has been established, and none in fact exists, in such a case as is
\nraised in the issues now under appeal.\n<\/p>\n
1565. It was also observed:\n<\/p>\n
Still less is the Board prepared to assent to the argument, at one time
\npressed upon it, that distinctions may be drawn between different matters
\ndealt with by the Act, so that it becomes legitimate to say of one section :
\n‘This section is fundamental or organic; it can only be altered in such and
\nsuch manner’; and of another : ‘This section is not of such a kind; it may
\nconsequently be altered with as little ceremony as any other statutory
\nprovision.’
\nThe decision in the above cited case can hardly afford any assistance to the petitioners.
\nOn the contrary, there are passages in the judgment which go against the stand taken on
\nbehalf of the petitioners.\n<\/p>\n
1566. Section 5 of the Colonial Laws Validity Act, 1865 to which there was a reference
\nin the McCawley’s case reads as under:\n<\/p>\n
Every colonial legislature shall have, and be deemed at all times to have
\nhad, full power within its jurisdiction to establish courts of judicature, and
\nto abolish and reconstitute the same, and to alter the Constitution thereof,
\nand to make provision for the administration of justice therein; and every
\nrepresentative legislature shall, in respect to the colony under its
\njurisdiction have, and be deemed at all times to have had, full power to
\nmake laws respecting the Constitution, powers, and procedure of such
\nlegislature; provided that such laws shall have been passed in such manner
\nand form as may from time to time be required by any Act of Parliament,
\nletters patent, Order in Council or colonial law for the time being in force
\nin the said colony.\n<\/p>\n
Reference has been made during arguments to the decision of the Privy Council in the
\ncase of Attorney-General for New South Wales v. Trethowan [1932] A.C. 526. The said
\ncase related to a Bill passed by the New South Wales Parliament for repeal of a section
\nproviding for referendum as well as to another Bill for abolition of the Legislative
\nCouncil. The Privy Council affirmed the decision of the Australian High Court which had
\nheld by majority that the Bills had not been passed in the “manner and form” within the
\nmeaning of Section 5 of the Colonial Laws Validity Act, and as such could not be
\npresented for Royal assent. The Privy Council based its decision upon the language of the
\nabove section and the meaning of the word “passed” in that section. We are not
\nconcerned in the present case with the aforesaid provisions. There is also nothing in the
\nconclusions at which I have arrived which runs counter to the principles laid down in the
\nTrethowan’s case.\n<\/p>\n
1567. Another Australian case to which reference has been made during the course of
\narguments is The State of Victoria v. The Commonwealth. 45 Australian Law Journal
\nReports 251 It has been laid down by the High Court of Australia in that case that the
\nCommonwealth Parliament in exercise of its powers under Section 51(ii) of the
\nConstitution may include the Crown in right of a State in the operation of a law imposing
\na tax or providing for the assessment of a tax. The inclusion of the Crown in right of a
\nState, according to the court, in the definition of “employer” in the Pay-roll Tax
\nAssessment Act, thus making the Crown in right of a State liable to pay the tax in respect
\nof wages paid to employees, including employees of departments engaged in strictly
\ngovernmental functions, is a valid exercise of the power of the Commonwealth under the
\nabove provisions of the Constitution. There was discussion in the course of the judgment
\non the subject of implied limitation on the Commonwealth legislative power under the
\nConstitution arising from the federal nature of the Constitution and different views were
\nexpressed. Three of the Judges, including Barwick C.J. took the view that there was no
\nsuch limitation. As against that, four Judges were of the opinion that there was an implied
\nlimitation on Commonwealth legislative power under the Constitution but the impugned
\nAct did not offend such limitation. Opinion was expressed that the Commonwealth
\nParliament while acting under the legislative entry of taxation could hot so use the power
\nof taxation as to destroy the States in a federal structure. The question as to what is the
\nscope of the power of amendment was not considered in that case. The above case as
\nsuch cannot be of much assistance for determining as to whether there are any implied
\nlimitations on the power to make Constitutional amendment.\n<\/p>\n
1568. I am, therefore, of the opinion that the majority view in the Golak Nath’s case that
\nParliament did not have the power to amend any of the provisions of Part III of the
\nConstitution so as to take away or abridge the fundamental rights cannot be accepted to
\nbe correct. Fundamental rights contained in Part III of our Constitution can, in my
\nopinion, be abridged or taken away in compliance with the procedure prescribed by
\nArticle 368, as long the basic structure of the Constitution remains unaffected.
\n1569. We may now deal with the Twentyfourth Amendment. It has sought to make clear
\nmatters regarding which doubt had arisen and conflicting views had been expressed by
\nthis Court. We may in this context set forth the Statement of Objects and Reasons of the
\nConstitution (Twentyfourth Amendment) Bill. The Statement of Objects and Reasons
\nreads as under:\n<\/p>\n
STATEMENT OF OBJECTS AND REASONS
\nThe Supreme Court in the well-known Golak Nath’s case 1967 (2 SCR\n<\/p>\n
762) reversed, by a narrow majority, its own earlier decisions upholding
\nthe power of Parliament to amend all parts of the Constitution including
\nPart III relating to fundamental rights. The result of the judgment is that
\nParliament is considered to have no power to take away or curtail any of
\nthe fundamental rights guaranteed by Part III of the Constitution even if it
\nbecomes necessary to Jo so for giving effect to the Directive Principles of
\nState Policy and for the attainment of the objectives set out in the
\nPreamble to the Constitution. It is, therefore, considered necessary to
\nprovide expressly that Parliament has power to amend any provision of the
\nConstitution so as to include the provisions of Part III within the scope of
\nthe amending power.\n<\/p>\n
1570. The Bill seeks to amend Article 368 suitably for the purpose and makes it clear that
\nArticle 368 provides for amendment of the Constitution as well as procedure therefor.
\nThe Bill further provides that when a Constitution Amendment Bill passed by both
\nHouses of Parliament is presented to the President for his assent, he should give has
\nassent thereto. The Bill also seeks to amend Article 13 of the Constitution to make it
\ninapplicable to any amendment of the Constitution under Article 368.
\n1571. Section 2 of the Bill which was ultimately passed as the Constitution
\n(Twentyfourth Amendment) Act has added a clause in Article 13 that nothing in that
\narticle would apply to any amendment of the Constitution made under Article 368. As a
\nresult of Section 3 of the Amendment Act, Article 368 has been re-numbered as Clause
\n(2) thereof and the marginal heading now reads “Power of Parliament to amend the
\nConstitution and procedure therefor”. Non-obstante Clause (1) has been inserted in the
\narticle to emphasise the fact that the power exercised under that article is constituent
\npower, not subject to the other provisions of the Constitution, and embraces within itself
\naddition, variation and repeal of any provision of the Constitution. Amendment has also
\nbeen made so as to make it obligatory for the President to give his assent to the
\nAmendment Bill after it has been passed in accordance with the article. Clause (3) has
\nfurther been added in Article 368 to the effect that nothing in Article 13 would apply to
\nan amendment made under Article 368. Although considerable arguments have been
\naddressed before us on the point as to whether the power of amendment under Article
\n368 includes the power to amend Part III so as to take away or abridge fundamental
\nrights, it has not been disputed before us that the Constitution (Twentyfourth
\nAmendment) Act was passed in accordance With the procedure laid down in Article 368
\nof the Constitution as it existed before the passing of the said Act. In view of what has
\nbeen discussed above at length. I find no infirmity in the Constitution (Twentyfourth
\nAmendment) Act. 1, therefore, uphold the validity of the said Act.
\n1572. We may now deal with the Constitution (Twentyfifth Amendment) Act, 1971. The
\nTwentyfifth Amendment has made three material changes:\n<\/p>\n
(i) It has amended Article 31(2) in two respects.\n<\/p>\n
(a) It substitutes the word “amount” for the word
\n“compensation” for property acquired or requisitioned.\n<\/p>\n
(b) It has provided that the law for the purpose of
\nacquisition or requisition shall not be called in question on
\nthe ground that the whole or any part of the “amount” is to
\nbe given otherwise than in cash.\n<\/p>\n
(ii) It has provided that the fundamental right to acquire, hold and dispose
\nof property under Article 19(1)(f) cannot be invoked in respect of any such
\nlaw as is referred to in Article 31(2).\n<\/p>\n
(iii) It has inserted Article 31C as an overriding article which makes the
\nfundamental rights conferred by Articles 14, 19 and 31 inapplicable to
\ncertain categories of laws passed by the Parliament or by any State
\nLegislature.\n<\/p>\n
So far as the substitution of the word “amount” for the word “compensation” for property
\nacquired or requisitioned in Article 31(2) is concerned, we find that this Court held in
\nMrs. Bela Bose [1954] S.C.R. 558 case that by the guarantee of the right to compensation
\nfor compulsory acquisition under Article 31(2), before it was amended by the
\nConstitution (Fourth Amendment) Act, the owner was entitled to receive a “just
\nequivalent” or “full indemnification”. In P. Vajravelu Mudaliar’s [1965] 1 S.C.R. 614
\ncase this Court held that notwithstanding the amendment of Article 31(2) by the
\nConstitution (Fourth Amendment) Act and even after the addition of the words “and no
\nsuch law shall be called in question in any Court on the ground that the compensation
\nprovided by that law is not adequate”, the expression “compensation continued to have
\nthe same meaning as it had in Article 31(2) before it was amended, viz., just equivalent or
\nfull indemnification. Somewhat different view was taken by this Court thereafter, in the
\ncase of Shantilal Mangaldas [1969] 3 S.C.R. 341. In the case of P. Vajravelu Mudaliar
\n(supra) it was observed that the Constitutional guarantee was satisfied only if a just
\nequivalent of the property was given to the owner. In the case of Shantilal Mangaldas
\n(supra) it was held that “compensation” being itself incapable of any precise
\ndetermination, no definite connotation could be attached thereto by calling it “just
\nequivalent” or “full indemnification”, and under Acts enacted after the amendment of
\nArticle 31(2) it is not open to the Court to call in question the law providing for
\ncompensation on the ground that it is inadequate, whether the amount of compensation is
\nfixed by the law or is to be determined according to principles specified therein (see
\nobservations of Shah J. on page 596 in the case of R.C. Cooper v. Union<\/a> [1970] 3 S.C.R.\n<\/p>\n
530. After further discussion of the views expressed in those two cases, Shah J. speaking
\nfor the majority, observed:\n<\/p>\n
Both the lines of thought which converge in the ultimate result, support
\nthe view that the principle specified by the law for determination of
\ncompensation is beyond the pale of challenge if it is relevant to the
\ndetermination of compensation and is a recognized principle applicable in
\nthe determination of compensation for property compulsorily acquired and
\nthe principle is appropriate in determining the value of the class of
\nproperty sought to be acquired. On the application of the view expressed
\nin P. Vajravelu Mudaliar’s case (supra) or in Shantilal Mangaldas’s case
\n(supra) the Act, in our judgment, is liable to be struck down as it fails to
\nprovide to the expropriated banks compensation determined according to
\nrelevant principles.\n<\/p>\n
1573. The amendment in Article 31(2) made by the Twentyfifth Amendment by
\nsubstituting the word “amount” for the word “compensation” is necessarily intended to
\nget over the difficulty caused by the use of the word “compensation”. As the said word
\nwas held by this Court to have a particular connotation and was construed to mean just
\nequivalent or full indemnification the amendment has replaced that word by the word
\n“amount”. In substituting the word “amount” for “compensation” the Amendment has
\nsought to ensure that the amount determined for acquisition or requisition of property
\nneed not be just equivalent or full indemnification and may be, if the legislature so
\nchooses, plainly inadequate. It is not necessary to further dilate upon this aspect because
\nwhatever may be the connotation of the word “amount”, it would not affect the validity of
\nthe amendment made in Article 31(2).\n<\/p>\n
1574. Another change made in Article 31(2) is that the law for the purpose of acquisition
\nor requisition shall not be called in question on the ground that the whole or any part of
\nthe “amount” fixed or determined for the acquisition or requisition of the property is to be
\ngiven otherwise than in cash. I have not been able to find any infirmity in the above
\nchanges made in Article 31(2).\n<\/p>\n
1575. According to Clause (2B) which has been added as a result of the Twentyfifth
\nAmendment in Article 31, nothing in Sub-clause (f) of Clause (1) of Article 19 shall
\naffect any such law as is referred to in Clause (2). In this connection we find that this
\nCourt held in some cases that Articles 19(1)(f) and 31(2) were exclusive. In A.K.
\nGopalan v. The State of Madras<\/a> [1950] S.C.R. 88 a person detained pursuant to an order
\nmade in exercise of the power conferred by the Preventive Detention Act applied to this
\nCourt for a writ of habeas corpus claiming that the Act contravened the guarantee under
\nArticles 19, 21 and 22 of the Constitution. The majority of this Court (Kania C.J., and
\nPatanjali Sastri, Mahajan, Mukherjea and Das JJ.) held that Article 22 being a complete
\ncode relating to preventive detention, the validity of an order of detention must be
\ndetermined strictly according to the terms and “within the four corners of that Article”.
\nThey held that a person detained may not claim that the freedom guaranteed under Article
\n19(1)(c) was infringed by his detention, and that validity of the law providing for making
\norders of detention will not be tested in the light of the reasonableness of the restrictions
\nimposed thereby on the freedom of movement, nor on the ground that his right to
\npersonal liberty is infringed otherwise than according to the procedure established by
\nlaw. Fazl Ali, J. expressed a contrary view. This case formed the nucleus of the theory
\nthat the protection of the guarantee of a fundamental freedom must be adjudged in the
\nlight of the object of State action in relation to the individual’s right and not upon its
\neffect upon the guarantee of the fundamental freedom, and as a corollary thereto, that the
\nfreedoms under Articles 19, 21, 22 and 31 are exclusive-each article enacting a code
\nrelating to protection of distinct rights (see p. 571 in the case of R.C. Cooper, (supra).
\nThe view expressed in Gopalan’s case (supra) was reaffirmed in Ram Singh and Ors. v.
\nThe State of Delhi [1951] S.C.R. 451. The principle underlying the judgment of the
\nmajority was extended to the protection of the right to property and it was held that
\nArticle 19(1)(f) and Article 31(2) were mutually exclusive in their operation. In the case
\nof State of Bombay v. Bhanji Munji and Anr.<\/a> [1955] 1 S.C.R. 777 this Court held that
\nArticle 19(1)(f) read with Clause (5) postulates the existence of property which can be
\nenjoyed and over which rights can be exercised because otherwise the reasonable
\nrestrictions contemplated by Clause (5) could not be brought into play. If there is no
\nproperty which can be acquired, held or disposed of, no restriction can be placed on the
\nexercise of the right to acquire, hold or dispose it of. In Kavalappara Kottarathil
\nKochuni’s [1960] 3 S.C.R. 887 case, Subba Rao J. delivering the judgment of the
\nmajority of the Court, observed that Clause (2) of Article 31 alone deals with compulsory
\nacquisition of property by the State for a public purpose, and not Article 31(1) and he
\nproceeded to hold that the expression “authority of law” means authority of a valid law,
\nand on that account validity of the law seeking to deprive a person of his property is open
\nto challenge on the ground that it infringes other fundamental rights, e.g., under Article
\n19(1)(f). It was also observed that after the Constitution (Fourth Amendment) Act, 1955
\nBhanji Munji’s case (supra) “no longer holds the field”. After the decision in K.K.
\nKochuni’s case (supra) there arose two divergent lines of authority. According to one
\nview, “authority of law” in Article 31(1) was liable to be tested on the ground that it
\nviolated other fundamental rights and freedoms, including the right to hold property
\nguaranteed by Article 19(1)(f). The other view was that “authority of a law” within the
\nmeaning of Article 31(2) was not liable to be tested on the ground that it impaired the
\nguarantee of Article 19(1)(f) in so far as it imposed substantive restrictions-though it may
\nbe tested on the ground of impairment of other guarantees. In the case of R.C. Cooper
\n(supra), Shah J. speaking for the majority held that in determining the impact of State
\naction upon Constitutional guarantees which are fundamental, the extent of protection
\nagainst impairment of a fundamental right is determined not by the object of the
\nLegislature nor by the form of the action, but by its direct operation upon the individual’s
\nrights. It was further observed:\n<\/p>\n
We are therefore unable to hold that the challenge to the validity of the
\nprovision for acquisition is liable to be tested only on the ground of non-
\ncompliance with Article 31(2). Article 31(2) requires that property must
\nbe acquired for a public purpose and that it must be acquired under a law
\nwith characteristics set out in that Article. Formal compliance with the
\nconditions under Article 31(2) is not sufficient to negative the protection
\nof the guarantee of the right to property. Acquisition must be under the
\nauthority of a law and the expression “law” means a law which is within
\nthe competence of the Legislature, and does not impair the guarantee of
\nthe rights in Part III. We are unable, therefore, to agree that Article
\n19(1)(f) and 31(2) are mutually exclusive.\n<\/p>\n
1576. The Twentyfifth Amendment seeks to overcome the effect of the above decision in
\nR.C. Cooper’s case. It has sought to resolve the earlier conflict of views noticeable in this
\nrespect in the judgments of this Court. Provision has accordingly been made that the
\nfundamental right to acquire, hold or dispose of property under Article 19(1)(f) cannot be
\ninvoked in respect of any such law as is referred to in Article 31(2). In view of what has
\nbeen discussed earlier while dealing with the Twentyfourth Amendment, the change
\nmade by addition of Clause (2B) in Article 31(2) is permissible under Article 368 and
\ncannot be held to be invalid.\n<\/p>\n
1577. We may now deal with Article 31C, introduced as a result of the Twentyfifth
\nAmendment. Perusal of this article which has been reproduced in the earlier part of this
\njudgment shows that the article consists of two parts. The first part states that
\nnotwithstanding anything contained in Article 13, no law giving effect to the policy of the
\nState towards securing the principles specified in Clause (b) or Clause (c) of Article 39
\nshall be deemed to be void on the ground that it is inconsistent with or takes away or
\nabridges any of the rights conferred by Article 14, Article 19 or Article 31. According to
\nthe second part of this article, no law containing a declaration that it is for giving effect to
\nsuch policy shall be called in question in any court on the ground that it does not give
\neffect to such policy. There then follows the proviso, according to which where such law
\nis made by the Legislature of a State, the provisions of the article shall not apply thereto
\nunless such law, having been reserved for the consideration of the President, has received
\nhis assent.\n<\/p>\n
1578. The first part of Article 31C is similar to Article 31A except in respect of the
\nsubject matter. Article 31A was inserted by the Constitution (First Amendment) Act,
\n1951. Clause (1) of Article 31A as then inserted was in the following words:
\n(1) Notwithstanding anything in the foregoing provisions of this Part, no
\nlaw providing for the acquisition by the State of any estate or of any rights
\ntherein or for the extinguishment or modification of any such rights shall
\nbe deemed to be void on the ground that it is inconsistent with, or takes
\naway or abridges any of the rights conferred by, any provisions of this
\nPart:\n<\/p>\n
Provided that where such law is a law made by the Legislature of a State,
\nthe provisions of this article shall not apply thereto unless such law,
\nhaving been reserved for the consideration of the President, has received
\nhis assent.\n<\/p>\n
Subsequently, Clause (1) of Article 31A was amended by the Constitution (Fourth
\nAmendment) Act, 1955. New Clause (1) was in the following words:
\n(1) Notwithstanding anything contained in Article 13, no law providing
\nfor-\n<\/p>\n
(a) the acquisition by the State of any estate or of any rights
\ntherein or the extinguishment or modification of any such
\nrights, or\n<\/p>\n
(b) the taking over of the management of any property by
\nthe State for a limited period either in the public interest or
\nin order to secure the proper management of the property,
\nor\n<\/p>\n
(c) the amalgamation of two or more corporations either in
\nthe public interest or in order to secure the proper
\nmanagement of any of the corporations, or\n<\/p>\n
(d) the extinguishment or modification of any rights of
\nmanaging agents, secretaries and treasurers, managing
\ndirectors, directors or managers of corporations, or of any
\nvoting rights of shareholders thereof, or\n<\/p>\n
(e) the extinguishment or modification of any rights
\naccruing by virtue of any agreement, lease or licence for
\nthe purpose of searching for, or winning, any mineral or
\nmineral oil, or the premature termination or cancellation of
\nany such agreement, lease or licence,
\nshall be deemed to be void on the ground that it is inconsistent with, or takes away or
\nabridges any of the rights conferred by Article 14, Article 19 or Article 31:
\nProvided that where such law is a law made by the Legislature of a State,
\nthe provisions of this article shall not apply thereto unless such law,
\nhaving been reserved for the consideration of the President, has received
\nhis assent.\n<\/p>\n
Clause (b) and (c) of Article 39 referred to in Article 31C read as under:\n<\/p>\n
39. The State shall, in particular, direct its policy towards securing-
\n…\n<\/p>\n
(b) that the ownership and control of the material resources
\nof the community are so distributed as best to subserve the
\ncommon good;\n<\/p>\n
(c) that the operation of the economic system does not
\nresult in the concentration of wealth and means of
\nproduction to the common detriment;\n<\/p>\n
…\n<\/p>\n
1579. It would appear from the above that while Article 31A dealt with a law providing
\nfor the acquisition by the State of any estate or of any rights therein or the extinguishment
\nor modification of such rights or other matters mentioned in Clauses (b) to (e) of that
\narticle, Article 31C relates to the securing of the objective that the ownership and control
\nof the material resources of the community are so distributed as best to subserve the
\ncommon good and that operation of the economic system does not result in the
\nconcentration of wealth and means of production to the common detriment. But for the
\ndifference in subjects, the language of the first clause of Article 31A and that of the first
\npart of Article 31C is identical. Both Articles 31A and 31C deal with right to property.
\nArticle 31A deals with certain kinds of property and its effect is, broadly speaking, to
\ntake those kinds of property from the persons who have rights in the said property. The
\nobjective of Article 31C is to prevent concentration of wealth and means of production
\nand to ensure the distribution of ownership and control of the material resources of the
\ncommunity for the common good. Article 31C is thus essentially an extension of the
\nprinciple which was accepted in Article 31A. The fact that the provisions of Article 31C
\nare more comprehensive and have greater width compared to those of Article 31A would
\nnot make any material difference. Likewise, the fact that Article 31A deals with law
\nproviding for certain subjects, while Article 31C deals with law giving effect to the
\npolicy towards securing the principles specified in Clause (b) or Clause (c) of Article 39,
\nwould not detract from the conclusion that Article 31C is an extension of the principle
\nwhich was accepted in Article 31A. Indeed, the legislature in making a law giving effect
\nto the policy of the State towards securing the principles specified in Clause (b) or Clause\n<\/p>\n
(c) of Article 39 acts upon the mandate contained in Article 37, according to which the
\nDirective Principles are fundamental in the governance of the country and it shall be the
\nduty of the State to apply those principles in making laws. If the amendment of the
\nConstitution by which Article 31A was inserted was valid, I can see no ground as to how
\nthe Twentyfifth Amendment relating to the insertion of the first part of Article 31C can
\nbe held to be invalid. The validity of the First Amendment which introduced Article 31A
\nwas upheld by this Court as long ago as 1952 in the case of Sankari Prasad v. Union of
\nIndia (supra). Article 31A having been held to be valid during all these years, its validity
\ncannot now be questioned on account of the doctrine of stare decisis. Though the period
\nfor which Sankari Prasad’s case stood unchallenged was not very long, the effects which
\nhave followed in the passing of the State laws on the faith of that decision, as observed by
\nWanchoo J. in Golak Nath’s case, are so overwhelming that we should not disturb the
\ndecision in that case upholding the validity of the First Amendment. It cannot be disputed
\nthat millions of acres of land have changed hands and millions of new titles in
\nagricultural lands which have been created and the State laws dealing with agricultural
\nland which have been passed in the course of the years after the decision in Sankari
\nPrasad’s case have brought about an agrarian revolution. Agricultural population
\nconstitutes a vast mapority of the population in this country. In these circumstances, it
\nwould in my opinion be wrong to hold now that the decision upholding the First
\nAmendment was not correct, and thus disturb all that has been done during these years
\nand create chaos into the lives of millions of our countrymen who have benefited by these
\nlaws relating to agrarian reforms. I would, therefore, hold that this is one of the fittest
\ncases in which the principle of stare decisis should be applied. The ground which
\nsustained the validity of Clause (1) of Article 31A, would equally sustain the validity of
\nthe first part of Article 31C. I may in this context refer to the observations of Brandeis J.
\nin Lesses v. Garnet (258) U.S. 130 while upholding the validity of the 19th Amendment,
\naccording to which the right of citizens of the United States to vote shall not be denied or
\nabridged by the United States or by States on account of sex. This case negatived the
\ncontention that a vast addition to the electorate destroyed the social compact and the
\nresiduary rights of the States. Justice Brandeis observed:\n<\/p>\n
This amendment is in character and phraseology precisely similar to the
\n15th. For each the same method of adoption was pursued. One cannot be
\nvalid and the other invalid. That the 15th is valid…has been recognized
\nand acted upon for half a century…. The suggestion that the 15th was
\nincorporated in the Constitution not in accordance with law, but
\npractically as a war measure which has been validated by acquiesence
\ncannot be entertained.\n<\/p>\n
1580. We may now deal with the second part of Article 31C, according to which no law
\ncontaining a declaration that it is for giving effect to the policy of State towards securing
\nthe principles specified in Clause (b) or Clause (c) of Article 39 shall be called in
\nquestion in any court on the ground that it does not give effect to such policy. The effect
\nof the second part is that once the declaration contemplated by that article is made, the
\nvalidity of such a law cannot be called in question in any court on the ground that it is
\ninconsistent with or takes away or abridges any of the rights conferred by Articles 14, 19
\nor 31 of the Constitution. The declaration thus gives a complete protection to the
\nprovisions of law containing the declaration from being assailed on the ground of being
\nviolative of Articles 14, 19 or 31. However tenuous the connection of a law with the
\nobjective mentioned in Clause (b) and Clause (c) of Article 39 may be and however
\nviolative it may be of the provisions of Articles 14, 19 and 31 of the Constitution, it
\ncannot be assailed in a court of law on the said ground because of the insertion of the
\ndeclaration in question in the law. The result is that if an Act contains 100 sections and 95
\nof them relate to matters not connected with the objectives mentioned in Clauses (b) and\n<\/p>\n
(c) of Article 39 but the remaining five sections have some nexus with those objectives
\nand a declaration is granted by the Legislature in respect of the entire Act, the 95 sections
\nwhich have nothing to do with the objectives of Clauses (b) and (c) of Article 39, would
\nalso get protection. It is well-known that State Legislatures are quite often swayed by
\nlocal and regional considerations. It is not difficult to conceive of laws being made by a
\nState Legislature which are directed against citizens of India who hail from other States
\non the ground that the residents of the State in question are economically backward. For
\nexample, a law might be made that as the old residents in the State are economically
\nbackward and those who have not resided in the State for more than three generations
\nhave an affluent business in the State or have acquired property in the State, they shall be
\ndeprived of their business and property with a view to vest the same in the old residents
\nof the State. Such a law if it contains the requisite declaration, would be protected and it
\nwould not be permissible to assail it on the ground of being violative of Articles 14, 19
\nand 31 of the Constitution even though such a law strikes at the integrity and unity of the
\ncountry. Such a law might also provoke the Legislatures of other States to make laws
\nwhich may discriminate in the economic sphere against the persons hailing from the State
\nwhich was the first to enact such discriminate law. There would thus be a chain reaction
\nof laws which discriminate between the people belonging to different States and which in
\nthe very nature of things would have a divisive tendency from a national point of view.
\nThe second part of Article 31C would thus provide the cover for the making of laws with
\na regional or local bias even though such laws imperil the oneness of the nation and
\ncontain the dangerous seeds of national disintegration. The classic words of Justice
\nHolmes have a direct application to a situation like this. Said the great Judge:
\nI do not think the United States would come to an end if we lost our power
\nto declare an Act of Congress void. I do think the Union would be
\nimperiled if we could not make that declaration as to the laws of the
\nseveral States.” (Holmes, Collected Legal Papers (1920) 295-96).
\nThe fact that the assent of the President would have to be obtained for such a law might
\nnot provide an effective safeguard because occasions can well be visualized when the
\nState concerned might pressurise the Centre and thus secure the assent of the President.
\nSuch occasions would be much more frequent when the party in power at the Centre has
\nto depend upon the political support of a regional party which is responsible for the law
\nin question passed by the State Legislature.\n<\/p>\n
1581. It seems that while incorporating the part relating to declaration in Article 31C, the
\nsinister implications of this part were not taken into account and its repercussions on the
\nunity of the country were not realised. In deciding the question relating to the validity of
\nthis part of Article 31C, we should not, in my opinion, take too legalistic a view. A
\nlegalistic judgment would indeed be a poor consolation if it affects the unity of the
\ncountry. It would be apposite in this context to reproduce a passage from Story’s
\nCommentaries on the Constitution of the United States wherein he adopted the
\nadmonition of Burke with a slight variation as under:\n<\/p>\n
The remark of Mr. Burke may, with a very slight change of phrase be
\naddressed as an admonition to all those, who are called upon to frame, or
\nto interpret a Constitution. Government is a practical thing made for the
\nhappiness of mankind, and not to furnish out a spectacle of uniformity to
\ngratify the schemes of visionary politicians. The business of those, who
\nare called to administer it, is to rule, and not to wrangle. It would “be a
\npoor compensation, that one had triumphed in a dispute, whilst we had lost
\nan empire; that we had frittered down a power, and at the same time had
\ndestroyed the republic (para 456).\n<\/p>\n
1582. The evil consequences which would flow from the second part of Article 31C
\nwould not, however, be determinative of the matter. I would therefore examine the matter
\nfrom a legal angle. In this respect I find that there can be three types of Constitutional
\namendments which may be conceived to give protection to legislative measures and make
\nthem immune from judicial scrutiny or attack in court of law.\n<\/p>\n
1583. According to the first type, after a statute has already been enacted by the
\nLegislature a Constitutional amendment is made in accordance with Article 368 and the
\nsaid statute is inserted in the Ninth Schedule under Article 31B. Such a statute or any of
\nthe provisions thereof cannot be struck down in a court of law and cannot be deemed to
\nbe void or ever to have become void on the ground that the statute or any provisions
\nthereof is inconsistent with or takes away or abridges any of the rights conferred by any
\nprovision of Part III. In such a case, the provisions of the entire statute are placed before
\neach House of Parliament. It is open to not less than one-half of the members of each
\nHouse and not less than two-thirds of the members of each House voting and present
\nafter applying their mind to either place the statute in the Ninth Schedule in its entirety or
\na part thereof or not to do so. It is only if not less than one-half of the total members of
\neach House of Parliament and not less than two-thirds of the members present and voting
\nin each House decide that the provisions of a particular statute should be protected under
\nArticle 31B either in their entirety or partly that the said provisions are inserted in the
\nNinth Schedule. A Constitutional amendment of this type relates to an existing statute of
\nwhich the provisions can be examined by the two Houses of Parliament and gives
\nprotection to the statute from being struck down on the ground of being violative of any
\nprovision of Part III of the Constitution. Such an amendment was introduced by the
\nConstitution (First Amendment) Act, 1951 and its validity was upheld in Sankari Prasad’s
\ncase (supra).\n<\/p>\n
1584. The second type of Constitutional amendment in that where the Constitutional
\namendment specifies the subject in respect of which a law may be made by the
\nLegislature and the amendment also provides that no law made in respect of that subject
\nshall be deemed to be void on the ground that it is inconsistent with or takes away or
\nabridges any of the rights conferred by Part III of the Constitution. In such a case the law
\nis protected even though it violates the provisions of Part III of the Constitution. It is,
\nhowever, open in such a case to the court, on being moved by an aggrieved party, to see
\nwhether the law has been made for the purpose for which there is Constitutional
\nprotection. The law is thus subject to judicial review and can be struck down if it is not
\nfor the purpose for which protection has been afforded by the Constitutional amendment.
\nTo this category belong the laws made under Article 31A of the Constitution which has
\nspecified the subjects for which laws might be made, and gives protection to those taws.
\nIt is always open to a party to assail the validity of such a law on the ground that it does
\nnot relate to any of the subjects mentioned in Article 31A. It is only if the court finds that
\nthe impugned law relates to a subject mentioned in Article 31A that rite protection
\ncontemplated by that article would be afforded to the impugned law and not otherwise.
\nArticle 31A was introduced by the Constitution (First Amendment) Act, 1951 and as
\nmentioned earlier, the validity of the First Amendment was upheld in Sankari Prasad’s
\ncase (supra).\n<\/p>\n
1585. The third type of Constitutional amendment is one, according to which a law made
\nfor a specified object is protected from attack even though it violates Articles 14, 19 and\n<\/p>\n
31. The Constitutional amendment further provides that the question as to whether the
\nlaw is made for the specified object is not justiciable and a declaration for the purpose
\nmade by the legislature is sufficient and would preclude the court from going into the
\nquestion as to whether the law is made for the object prescribed by the Constitutional
\namendment. To such category belongs that part of Twentyfifth Amendment which
\ninserted Article 31C when taken along with its second part. The law made under Article
\n31C is not examined and approved for the purpose of protection by not less than one-half
\nof the members of each House of Parliament and not less than two-thirds of the members
\npresent and voting in each House, as is necessary in the case of laws inserted in the Ninth
\nSchedule of the Constitution. Nor can the law made under Article 31C be subject to
\njudicial review with a view to find out whether the law has, in fact, been made for an
\nobject mentioned in Article 31C. Article 31C thus departs from the scheme of Article
\n31A, because while a judicial review is permissible under Article 31A to find out as to
\nwhether a law has been made for any of the objects mentioned in Article 31A, such a
\njudicial review has been expressly prohibited under Article 31C. The result is that even if
\na law made under Article 31C can be shown in court of law to have been enacted not for
\nthe purpose mentioned in Article 31C but for another purpose, the law would still be
\nprotected and cannot be assailed on the ground of being violative of Articles 14, 19 and
\n31 of the Constitution because of the declaration made by the legislature as contemplated
\nby second part of Article 31C. It may also be mentioned in this context that such a law
\ncan be passed by a bare majority in a legislature even though only the minimum number
\nof members required by the quorum, which is generally one-tenth of the total
\nmembership of the legislature, are present at the time the law is passed.
\n1586. The effect of the above amendment is that even though a law is in substance not in
\nfurtherance of the objects mentioned in Articles 39(b) and (c) and has only a slender
\nconnection with those objects, the declaration made by the Legislature would stand in the
\nway of a party challenging it on the ground that it is not for the furtherance of those
\nobjects. A power is thus being conferred upon the Central and State Legislatures as a
\nresult of this provision to make a declaration in respect of any law made by them in
\nviolation of the provisions of Articles 14, 19 and 31 and thus give it protection from
\nbeing assailed on that ground in a court of law. The result is that even though for the
\npurpose of making an amendment of the Constitution an elaborate procedure is provided
\nin Article 368, power is now given to a simple majority in a State or Central Legislature,
\nin which only the minimum number of members are present to satisfy the requirement of
\nquorum, to make any law in contravention of the provisions of Articles 14, 19 and 31 and
\nmake it immune from attack by inserting a declaration in that law. It is natural for those
\nwho pass a law to entertain a desire that it may not be struck down. There would,
\ntherefore, be an inclination to make an Act immune from attack by inserting such a
\ndeclaration even though only one or two provisions of the Act have a connection with the
\nobjects mentioned in Article 39(b) and (c). Articles 14, 19 and 31 can thus be reduced to
\na dead letter, an ineffective purposeless showpiece in the Constitution.
\n1587. The power of making an amendment is one of the most important powers which
\ncan be conferred under the Constitution. As mentioned earlier, according to Finer, the
\namending clause is so fundamental to a Constitution that it may be called the Constitution
\nitself while according to Burgess, the amending clause is the most important part of a
\nConstitution. This circumstance accounts for the fact that an elaborate procedure is
\nprescribed for the amending of the Constitution. The power of amendment being of such
\nvital importance can neither be delegated nor can those vested with the authority to
\namend abdicate that power in favour of another body. Further, once such a power is
\ngranted, either directly or in effect, by a Constitutional amendment to the State
\nLegislatures, it would be difficult to take away that power, because it can be done only by
\nmeans of a Constitutional amendment and the States would be most reluctant, having got
\nsuch a power, to part with it. In empowering a State Legislature to make laws violative of
\nArticles 14, 19 and 31 of the Constitution and in further empowering the State
\nLegislature to make laws immune from attack on the ground of being violative of Articles
\n14, 19 and 31 by inserting the requisite declaration, the authority vested with the power to
\nmake amendment under Article 368 (viz., the prescribed majority in each House of
\nParliament) has, in effect, delegated or granted the power of making amendment in
\nimportant respects to a State Legislature. Although the objects for which such laws may
\nbe made have been specified, the effect of the latter part of Article 31C relating to the
\ndeclaration is that the law in question may relate even to objects which have not been
\nspecified. Article 31C taken along with the second part relating to the declaration departs
\nfrom the scheme of Article 31A because while the protection afforded by Article 31A is
\nto laws made for specified subjects, the immunity granted under Article 31C can be
\navailed of even by laws which have not been made for the specified objects. The law thus
\nmade by the State Legislatures would have the effect of pro-tanto amendment of the
\nConstitution. Such a power, as pointed out earlier, can be exercised by the State
\nLegislature by a simple majority in a House wherein the minimum number of members
\nrequired by the rule of quorum are present.\n<\/p>\n
1588. In Re Initiative and Referendum Act [1919] A.C. 935 the Judicial Committee after
\nreferring to a previous decision wherein the Legislature of Ontario was held entitled to
\nentrust to a Board of Commissioners authority to enact regulations relating to Taverns
\nobserved on page 945:\n<\/p>\n
But it does not follow that it can create and endow with its own capacity a
\nnew legislative power not created by the Act to which it owes its own
\nexistence. Their Lordships do no more than draw attention to the gravity
\nof the Constitutional questions which thus arise.\n<\/p>\n
If it is impermissible for a legislature to create and endow with its own capacity a
\nlegislative power not created by the Act to which it owes its own existence, it should, in
\nmy opinion, be equally impermissible in the face of Article 368 in its present form under
\nour Constitution, for the amending authority to vest its amending power in another
\nauthority like a State Legislature. It has to be emphasised in this context that according to
\nArticle 368, an amendment of this Constitution may be initiated only by the introduction
\nof a Bill for the purpose in either House of Parliament. The word “only” has a
\nsignificance and shows that as long as Article 368 exists in its present form, the other
\nmethods of amendment are ruled out.\n<\/p>\n
1589. It may be mentioned that apart from the question of legislative competence, the
\narticles for the violation of which statutes have been quashed in overwhelming majority
\nof cases are Articles 14, 19 and 31. The question as to whether the impugned statute is
\nbeyond legislative competence can be agitated despite the protection of Article 31C in the
\nsame way as that question can be agitated despite the protection of Article 31A, but in
\nother respects, as would appear from what has been stated above, Article 31C goes much
\nbeyond the scope of Articles 31A and 31B.\n<\/p>\n
1590. In a federal system where the spheres of legislative powers are distributed between
\nthe Central Legislature and the State Legislatures, there has to be provided a machinery
\nto decide in case of a dispute as to whether the law made by the State Legislatures
\nencroaches upon the field earmarked for the Central Legislature as also a dispute whether
\na law made by the Central Legislature deals with a subject which can be exclusively dealt
\nwith by the State Legislatures. This is true not only of a federal system but also in a
\nConstitutional set up like ours wherein the Constitution-makers, though not strictly
\nadopting the federal system, have imbibed the features of a federal system by distributing
\nand setting apart the spheres of legislation between the Central Legislature and the State
\nLegislatures. The machinery for the resolving of disputes as to whether the Central
\nLegislature has trespassed upon the legislative field of the State Legislatures or whether
\nthe State Legislatures have encroached upon the legislative domain of the Central
\nLegislature is furnished by the courts and they are vested with the powers of judicial
\nreview to determine the validity of the Acts passed by the legislatures. The power of
\njudicial review is, however, confined not merely to deciding whether in making the
\nimpugned laws the Central or State Legislatures have acted within the four comers of the
\nlegislative lists earmarked for them; the courts also deal with the question as to whether
\nthe laws are made in conformity with and not – in violation of the other provisions of the
\nConstitution. Our Constitution-makers have provided for fundamental rights in Part III
\nand made them justiciable. As long as some fundamental rights exist and are a part of the
\nConstitution, the power of judicial review has also to be exercised with a view to see that
\nthe guarantees afforded by those rights are not contravened. Dealing with draft Article 25
\n(corresponding to present Article 32 of the Constitution) by which a right is given to
\nmove the Supreme Court for enforcement of the fundamental rights, Dr. Ambedkar
\nspeaking in the Constituent Assembly on December 9, 1948 observed:
\nIf I was asked to name any particular article in this Constitution as the
\nmost important-an article without which this Constitution would be a
\nnullity-I could not refer to any other article except this one. It is the very
\nsoul of the Constitution and the very heart of it and I am glad that the
\nHouse has realised its importance. (CAD debates, Vol. VII, p. 953).
\nJudicial review has thus become an integral part of our Constitutional system and a power
\nhas been vested in the High Courts and the Supreme Court to decide about the
\nConstitutional validity of provisions of statutes. If the provisions of the statute are found
\nto be violative of any article of the Constitution, which is the touchstone for the validity
\nof all laws, the Supreme Court and the High Courts are empowered to strike down the
\nsaid provisions. The one sphere where there is no judicial review for finding out whether
\nthere has been infraction of the provisions of Part III and there is no power of striking
\ndown an Act, regulation or provision even though it may be inconsistent with or takes
\naway or abridges any of the rights conferred by Part III of the Constitution is that
\nincorporated in Article 31B taken along with the Ninth Schedule. Article 31B was
\ninserted, as mentioned earlier, by the Constitution (First Amendment) Act. According to
\nArticle 31B, none of the Acts and regulations specified in the Ninth Schedule nor any of
\nthe provisions thereof shall be deemed to be void or ever to have become void on the
\nground that such Act, regulation or provision is inconsistent with or takes away or
\nabridges any of the rights conferred by any provision of Part III of the Constitution. The
\none thing significant to be noted in this connection, however, is that the power under
\nArticle 31B of exclusion of judicial review, which might be undertaken for the purpose of
\nfinding whether there has been contravention of any provision of Part III, is exercised not
\nby the legislature enacting the impugned law but by the authority which makes the
\nConstitutional amendment under Article 368, viz., the prescribed majority in each House
\nof Parliament. Such a power is exercised in respect of an existing statute of which the
\nprovisions can be scrutinized before it is placed in the Ninth Schedule. It is for the
\nprescribed majority in each House to decide whether the particular statute should be
\nplaced in the Ninth Schedule, and if so, whether it should be placed there in its entirety or
\npartly. As against that, the position under Article 31C is that though judicial review has
\nbeen excluded by the authority making the Constitutional amendment, the law in respect
\nof which the judicial review has been excluded is one yet to be passed by the legislatures.
\nAlthough the object for which such a law can be enacted has been specified in Article
\n31C, the power to decide as to whether the law enacted is for the attainment of that object
\nhas been vested not in the courts but in the very legislature which passes the law. The
\nvice of Article 31C is that even if the law enacted is not for the object mentioned in
\nArticle 31C, the declaration made by the legislature precludes a party from showing that
\nthe law is not for that object and prevents a court from going into the question as to
\nwhether the law enacted is really for that object. The kind of limited judicial review
\nwhich is permissible under Article 31A for the purpose of finding as to whether the law
\nenacted is for the purpose mentioned in Article 31A has also been done away with under
\nArticle 31C. The effect of the declaration mentioned in Article 31C is to grant protection
\nto the law enacted by a legislature from being challenged on grounds of contravention of
\nArticles 14, 19 and 31 even though such a law can be shown in the court to have not been
\nenacted for the objects mentioned in Article 31C. Our Constitution postulates Rule of
\nLaw in the sense of supremacy of the Constitution and the laws as opposed to
\narbitrariness. The vesting of power of exclusion of judicial review in a legislature,
\nincluding State legislature, contemplated by Article 31C, in my opinion strikes at the
\nbasis structure of the Constitution. The second part of Article 31C thus goes beyond the
\npermissible limit of what constitutes amendment under Article 368.
\n1591. It has been argued on behalf of the respondents that the declaration referred to in
\nArticle 31C would not preclude the court from finding whether a law is for giving effect
\nto the policy of the State towards securing the principles specified in Clauses (b) and (c)
\nof Article 39 and that if an enactment is found by the court to be not for securing the
\naforesaid objectives, the protection of Article 31C would not be available for such
\nlegislation.\n<\/p>\n
1592. I find it difficult to accede to this contention in view of the language of Article 31C
\npertaining to the declaration. The above contention would have certainly carried weight if
\nthe second part of the article relating to the declaration were not there. In the absence of
\nthe declaration in question, it would be open to, and indeed necessary, for the court to
\nfind whether the impugned law is for giving effect to the policy of the State towards
\nsecuring the principles specified in Clauses (b) or (c) of Article 39 before it can uphold
\nthe validity of the impugned law under Article 31C. Once, however, a law contains such
\na declaration, the declaration would stand as bar and it would not be permissible for the
\ncourt to find whether the impugned law is for giving effect to the policy mentioned in
\nArticle 31C. Article 31C protects the law giving effect to the policy of the State towards
\nsecuring the principles specified in Clauses (b) or (c) of Article 39 and at the same time
\nprovides that no law containing a declaration that it is for giving effect to such policy
\nshall be called in question in any court on the ground that it does not give effect to such
\npolicy. It is, therefore, manifest that once a law contains the requisite declaration, the
\ncourt would be precluded from going into the question that the law does not give effect to
\nthe policy of the State towards securing the principles specified in Clauses (b) or (c) of
\nArticle 39. In view of the conclusive nature of the declaration, it would, in my opinion, be
\nstraining the language of Article 31C to hold that a court can despite the requisite
\ndeclaration go into the question that it does not give effect to the policy of the State
\ntowards securing the principles specified in Clauses (b) or (c) of Article 39. The result is
\nthat if a law contains the declaration contemplated by Article 31C, it would have
\ncomplete protection from being challenged on the ground of being violative of Articles
\n14, 19 and 31 of the Constitution, irrespective of the fact whether the law is or is not for
\ngiving effect to the policy of the State towards securing the principles specified in
\nClauses (b) or (c) of Article 39. To put it in other words, even those laws which do not
\ngive effect to the policy of the State towards securing the principles specified in Clauses\n<\/p>\n
(b) or (c) of Article 39 would also have the protection if they contain the declaration
\nmentioned in Article 31C.\n<\/p>\n
1593. I am also of the view that the validity of the latter part of Article 31C relating to
\ndeclaration cannot be decided on the basis of any concession made during the course of
\narguments on behalf of the respondents. Such a concession if not warranted by the
\nlanguage of the impugned provision, cannot be of much avail. Matters relating to
\nconstruction of an article of the Constitution or the Constitutional validity of an
\nimpugned provision have to be decided in the light of the relevant provisions and a
\nconcession made by the State counsel or the opposite counsel would not absolve the court
\nfrom determining the matter independently of the concession. A counsel may sometimes
\nmake a concession in order to secure favourable verdict on an other important point, such
\na concession would, however, not be binding upon another counsel. It is well-settled that
\nadmission or concession made on a point of law by the counsel is not binding upon the
\nparty represented by the counsel, far less would such admission or concession preclude
\nother parties from showing that the concession was erroneous and not justified in law. It
\nmay, therefore, be laid down as a broad proposition that Constitutional matters cannot be
\ndisposed of in terms of agreement or compromise between the parties, nor can the
\ndecision in such disputes in order to be binding upon others be based upon a concession
\neven though the concession emanates from the State counsel. The concession has to be
\nmade good and justified in the light of the relevant provisions.
\n1594. The position as it emerges is that it is open to the authority amending the
\nConstitution to exclude judicial review regarding the validity of an existing statute. It is
\nlikewise open to the said authority to exclude judicial review regarding the validity of a
\nstaute which might be enacted by the legislature in future in respect of a specified subject.
\nIn such an event, judicial review is not excluded for finding whether the statute has been
\nenacted in respect of the spcified subject Both the above types of Constitutional
\namendments are permissible under Article 368. What is not permissible, however, is a
\nthird type of Constitutional amendment, according to which the amending authority not
\nmerely excludes judicial review regarding the validity of a statute which might be
\nenacted by the legislature in future in respect of a specified subject but also excludes
\njudicial review for finding whether the statute enacted by the legislature is in respect of
\nthe subject for which judicial review has been excluded.\n<\/p>\n
1595. In exercising the power of judicial review, it may be mentioned that the courts do
\nnot and cannot go into the question of wisdom behind a legislative measure. The policy
\ndecisions have essential to be those of the legislatures. It is for the legislatures to decide
\nas to what laws they should enact and bring on the statute book. The task of the courts is
\nto interpret the laws and to adjudicate about their validity, they neither approve nor
\ndisapprove legislative policy. The office of the courts is to ascertain and declare whether
\nthe impugned legislation is in consonance with or in violation of the provisions of the
\nConstitution. Once the courts have done that, their duty ends. The courts do not act as
\nsuper legislature to suppress what they deem to be unwise legislation for if they were to
\ndo so the courts will divert criticism from the legislative door where it belongs and will
\nthus dilute the responsibility of the elected representatives of the people. As was observed
\nby Shri Alladi Krishnaswamy Iyer in speech in the Constituent Assembly on September
\n12, 1949 “The Legislature may act wisely or unwisely. The principles formulated by the
\nLegislature may commend themselves to a Court or they may not. The province of the
\nCourt is normally to administer the law as enacted by the Legislature within the limits of
\nits power”.\n<\/p>\n
1596. In exercising the power of judicial review, the courts cannot be oblivious of the
\npractical needs of the government. The door has to be left open for trial and error.
\nConstitutional law like other mortal contrivances has to take some chances. Opportunity
\nmust be allowed for vindicating reasonable belief by experience. Judicial review is not
\nintended to create what is sometimes called Judicial Oligarchy, the the Aristrocracy of the
\nRobe, Covert Legislation, or Judge-made law. The proper forum to fight for the wise use
\nof the legislative authority is that of public opinion and legislative assemblies. Such
\ncontest cannot be transferred to the judicial arena. That all Constitutional interpretations
\nhave political consequences should not obliterate the fact that the decision has to be
\narrived at in the calm and dispassionate atmosphere of the court room, that judges in
\norder to give legitimacy to their decision have to keep aloof from the din and controversy
\nof politics and that the fluctuating fortunes of rival political parties can have for them
\nonly academic interest. Their primary duty is to uphold the Constitution and the laws
\nwithout fear or favour and in doing so, they cannot allow any political ideology or
\neconomic theory, which may have caught their fancy, to colour the decision. The
\nsobering reflection has always to be there that the Constitution is meant not merely for
\npeople of their way of thinking but for people of fundamentally differing views. As
\nobserved by Justice Holmes while dealing with the Fourteenth Amendment to the US
\nConstitution:\n<\/p>\n
The Fourteenth Amendment does not enact Mr. Herbert Spencer’s Social
\nStatics…. Some of these laws embody convictions or prejudices which
\njudges are likely to share. Some may not But a Constitution is not intended
\nto embody a particular economic theory, whether of paternalism and the
\norganic relation of the citizen to the State or of laissez faire. It is made for
\npeople of fundamentally differing views, and the accident of our finding
\ncertain opinions natural and familiar or novel and even shocking ought not
\nto conclude our judgment upon the question whether statutes embodying
\nthem conflict with the Constitution of the United States. (see Mr. Justice
\nHolmes, p. 82-83 (1931 Edition).\n<\/p>\n
It would also be pertinent in this context to reproduce the words of Patanjali Sastri C.J. in
\nthe case of State of Madras v. V.G. Row<\/a> [1952] S.C.R. 597 while dealing with reasonable
\nrestrictions:\n<\/p>\n
In evaluating such elusive factors and forming their own conception of
\nwhat is reasonable, in all the circumstances of a given case, it is inevitable
\nthat the social philosophy and the scale of values of the judges
\nparticipating in the decision should play an important part, and the limit to
\ntheir interference with legislative judgment in such cases can only be
\ndictated by their sense of responsibility and self-restraint and the sobering
\nreflection that the Constitution is meant not only for people of their way of
\nthinking but for all, and that the majority of the elected representatives of
\nthe people have, in authorising the imposition of the restrictions,
\nconsidered them to be reasonable.\n<\/p>\n
1597. In my opinion, the second part of Article 31C is liable to be quashed on the
\nfollowing grounds:\n<\/p>\n
(1) It gives a carte blanche to the Legislature to make any law violative of
\nArticles 14, 19 and 31 and make it immune from attack by inserting the
\nrequisite declaration. Article 31C taken along with its second part gives in
\neffect the power to the Legislature, including a State Legislature, to amend
\nthe Constitution.\n<\/p>\n
(2) The legislature has been made the final authority to decide as to
\nwhether the law made by it is for the objects mentioned in Article 31C.
\nThe vice of second part of Article 31C lies in the fact that even if the law
\nenacted is not for the object mentioned in Article 31C, the declaration
\nmade by the Legislature precludes a party from showing that the law is not
\nfor that object and prevents a court from going into the question as to
\nwhether the law enacted is really for that object. The exclusion by the
\nLegislature, including a State Legislature, of even that limited judicial
\nreview strikes at the basic structure of the Constitution. The second part of
\nArticle 31C goes beyond the permissible limit of what constitutes
\namendment under Article 368.\n<\/p>\n
The second part of Article 31C can be severed from the remaining part of Article 31C
\nand its invalidity would not affect the validity of the remaining part. I would, therefore,
\nstrike down the following words in Article 31C:\n<\/p>\n
and no law containing a declaration that it is for giving effect to such
\npolicy shall be called in question in any court on the ground that it does
\nnot give effect to such policy.\n<\/p>\n
1598. We may now deal with the Constitution (Twentyninth Amendment) Act. This Act,
\nas mentioned earlier, inserted the Kerala Act 35 of 1969 and the Kerala Act 25 of 1971 as
\nentries No. 65 and 66 in the Ninth Schedule to the Constitution. I have been able to find
\nno infirmity in the Constitution (Twentyninth Amendment) Act. It may be mentioned that
\nan argument was advanced before us that Articles 31B and 31A are linked together and
\nthat only those enactments can be placed in the Ninth Schedule as fall within the ambit of
\nArticle 31A. Such a contention was advanced in the case of N.B. Jeejeebhoy v. Assistant
\nCollector, Thana Prant, Thana<\/a> [1965] 1 S.C.R. 636. Repelling the contention Subba Rao
\nJ. (as he then was) speaking for the Constitution Bench of this Court observed:
\nThe learned Attorney-General contended that Articles 31-A and Article
\n31-B should be read together and that if so read Article 31-B would only
\nillustrate cases that would otherwise fall under Article 31-A and, therefore,
\nthe same construction as put upon Article 31-B should also apply to
\nArticle 31-A of the Constitution. This construction was sought to be based
\nupon the opening words of Article 31-B, namely, ‘without prejudice to the
\ngenerality of the provisions contained in Article 31-A. We find it difficult
\nto accept this argument. The words ‘without prejudice to the generality of
\nthe provisions’, indicate that the Acts and regulations specified in the
\nNinth Schedule would have the immunity even if they did not attract
\nArticle 31-A of the Constitution. If every Act in the Ninth Schedule would
\nbe covered by Article 31-A, this article would become redundant. Indeed,
\nsome of the Acts mentioned therein, namely, items 14 to 20 and many
\nother Acts added to the Ninth Schedule, do not appear to relate to estates
\nas defined in Article 31-A(2) of the Constitution. We, therefore, hold that
\nArticle 31-B is not governed by Article 31-A and that Article 31-B is a
\nConstitutional device to place the specified statutes beyond any attack on
\nthe ground that they infringe Part III of the Constitution.\n<\/p>\n
I see no cogent ground to take a different view. In the result I uphold the validity of the
\nConstitution (Twentyninth Amendment) Act.\n<\/p>\n
1599. I may now sum up my conclusions relating to power of amendment under Article
\n368 of the Constitution as it existed before the amendment made by the Constitution
\n(Twentyfourth Amendment) Act as well as about the validity of the Constitution
\n(Twentyfourth Amendment) Act, the Constitution (Twentyfifth Amendment) Act and the
\nConstitution (Twentyninth Amendment) Act:\n<\/p>\n
(i) Article 368 contains not only the procedure for the amendment of the
\nConstitution but also confers the power of amending the Constitution.\n<\/p>\n
(ii) Entry 97 in List I of the Seventh Schedule of the Constitution does not
\ncover the subject of amendment of the Constitution.\n<\/p>\n
(iii) The word “law” in Article 13(2) does not include amendment of the
\nConstitution. It has reference to ordinary piece of legislation. It would also
\nin view of the definition contained in Clause (a) of Article 13(3) include
\nan ordinance, order, bye-law, rule, regulation, notification, custom or
\nusage having in the territory of India the force of law.\n<\/p>\n
(iv) Provision for amendment of the Constitution is made with a view to
\novercome the difficulties which may be encountered in future in the
\nworking of the Constitution. No generation has a monopoly of wisdom nor
\nhas it a right to place fetters on future generations to mould the machinery
\nof governments. If no provision were made for amendment of the
\nConstitution, the people would have recourse to extra-Constitutional
\nmethod like revolution to change the Constitution.\n<\/p>\n
(v) Argument that Parliament can enact legislation under entry 97 List I of
\nSeventh Schedule for convening a Constituent Assembly or holding a
\nreferendum for the purpose of amendment of Part III of the Constitution so
\nas to take away or abridge fundamental rights is untenable. There is no
\nwarrant for the proposition that as the amendments under Article 368 are
\nnot brought about through referendum or passed in a Convention the
\npower of amendment under Article 368 is on that account subject to
\nlimitations.\n<\/p>\n
(vi) The possibility that power of amendment may be abused furnishes no
\nground for denial of its existence. The best safeguard against abuse of
\npower is public opinion and the good sense of the majority of the members
\nof Parliament, It is also not correct to assume that if Parliament is held
\nentitled to amend Part III of the Constitution, it would automatically and
\nnecessarily result in abrogation of all fundamental rights.\n<\/p>\n
(vii) The power of amendment under Article 368 does not include power
\nto abrogate the Constitution nor does it include the power to alter the basic
\nstructure or framework of the Constitution. Subject to the retention of the
\nbasic structure or framework of the Constitution, the power of amendment
\nis plenary and includes within itself the power to amend the various
\narticles of the Constitution, including those relating to fundamental rights
\nas well as those which may be said to relate to essential features. No part
\nof a fundamental right can claim immuniy from amendatory process by
\nbeing described as the essence or core of that right. The power of
\namendment would also include within itself the power to add, alter or
\nrepeal the various articles.\n<\/p>\n
(viii) Right to property does not pertain to basic structure or framework of
\nthe Constitution.\n<\/p>\n
(ix) There are no implied or inherent limitations on the power of
\namendment apart from those which inhere and are implicit in the word
\n“amendment”. The said power can also be not restricted by reference to
\nnatural or human rights. Such rights in order to be enforceable in a court
\nof law must become a part of the statute or the Constitution.\n<\/p>\n
(x) Apart from the part of the Preamble which relates to the basic structure
\nor framework of the Constitution, the Preamble does not restrict the power
\nof amendment.\n<\/p>\n
(xi) The Constitution (Twentyfourth Amendment) Act does not suffer
\nfrom any infirmity and as such is valid.\n<\/p>\n
(xii) The amendment made in Article 31 by the Constitution (Twentyfifth
\nAmendment) Act is valid.\n<\/p>\n
(xiii) The first part of Article 31C introduced by the Constitution
\n(Twentyfifth Amendment) Act is valid. The said part is as under.
\n31C. Notwithstanding anything contained in Article 13, no
\nlaw giving effect to the policy of the State towards securing
\nthe principles specified in Clause (b) or Clause (c) of
\nArticle 39 shall be deemed to be void on the ground that it
\nis inconsistent with, or takes away or abridges any of the
\nrights conferred by Article 14, Article 19 or Article 31:\n<\/p>\n
Provided that where such law is made by the Legislature of
\na State, the provisions of the article shall not apply thereto
\nunless such law, having been reserved for the consideration
\nof the President, has received his assent.\n<\/p>\n
(xiv) The second part of Article 31C contains the seed of national
\ndisintegration and is invalid on the following two grounds:\n<\/p>\n
(1) It gives a carte blanche to the Legislature to make any
\nlaw violative of Articles 14, 19 and 31 and make it immune
\nfrom attack by inserting the requisite declaration. Article
\n31C taken along with its second part gives in effect the
\npower to the Legislature, including a State Legislature, to
\namend the Constitution in important respects.\n<\/p>\n
(2) The legislature has been made the final authority to
\ndecide as to whether the law made by it is for objects
\nmentioned in Article 31C. The vice of second part of
\nArticle 31C lies in the fact that even if the law enacted is
\nnot for the object mentioned in Article 31C, the declaration
\nmade by the Legislature precludes a party from showing
\nthat the law is not for that object and prevents a court from
\ngoing into the question as to whether the law enacted is
\nreally for that object. The exclusion by Legislature,
\nincluding a State Legislature, of even that limited judicial
\nreview strikes at the basic structure of the Constitution. The
\nsecond part of Article 31C goes beyond the permissible
\nlimit of what constitutes amendment under Article 368.\n<\/p>\n
The second part of Article 31C can be severed from the
\nremaining part of Article 31C and its invalidity would not
\naffect the validity of remaining part 1 would, therefore,
\nstrike down the following words in Article 31C:\n<\/p>\n
and no law containing a declaration that it is
\nfor giving effect to such policy shall be
\ncalled in question in any court on the ground
\nthat it does not give effect to such policy.\n<\/p>\n
(xv) The Constitution (Twentyninth Amendment) Act does not suffer from
\nany infirmity and as such is valid.\n<\/p>\n
1600. The petition shall now be posted for hearing before the Constitution Bench for
\ndisposal in the light of our findings.\n<\/p>\n
K.K. Mathew, J.\n<\/p>\n
1601. In the cases before us, the Constitution of our country, in its most vital parts has to
\nbe considered and an opinion expressed which may essentially influence the destiny of
\nthe country. It is difficult to approach the question without a deep sense of its importance
\nand of the awesome responsibility involved in its resolution.
\n1602. I entertain little doubt that in important cases it is desirable for the future
\ndevelopment of the law that there should be plurality of opinions even if the conclusion
\nreached is the same. There are dangers in there being only one opinion. “Then the
\nstatements in it have tended to be treated as definitions and it is not the function of a
\nCourt to frame definitions. Some latitude should be left for future developments. The true
\nratio of a decision generally appears more clearly from a comparison of two or more
\nstatements in different words which are intended to supplement each other” see Lord
\nReid in Gallie v. Lee, [1970] 3 W.L.R. 1078. In Cassell and Co. Ltd. v. Brome and Anr.
\n[1972] 1 All E.R. 801, 821, Lord Chancellor Lord Hailsham said that Lord Devlin’s
\nstatement of the law in Rookes v. Barnard [1964] 1 All E.R. 367 has been misunderstood
\nparticulary by his critics and that the view of the House of Lords has suffered to some
\nextent from the fact that its reasons were given in a single speech and that whatever might
\nbe the advantages of a judgment delivered by one voice, the result may be an unduly
\nfundamentalist approach to the actual language employed. In Graves v. New York 306
\nU.S. 466. Frankfurter, J. in his concurring judgment, characterised the expression of
\nindividual opinions by the justices as a healthy practice rendered impossible only by the
\nincreasing volume of the business of the Court.\n<\/p>\n
1603. As the arguments were addressed mainly in Writ Petition No. 135\/1970, I will deal
\nwith it now. In this writ petition the petitioner challenged the validity of the Kerala Land
\nReforms Amendment Act, 1969, and the Kerala Land Reforms Amendment Act, 1971,
\nfor the reason that some of the provisions thereof violated Article 14, 19(1)(f), 25, 26 and
\n31 of the Constitution.\n<\/p>\n
1604. During the pendency of the Writ Petition, the Amending Body under the
\nConstitution passed three Constitutional amendments, namely, the Constitution 24th, 25th
\nand 29th Amendment Acts.\n<\/p>\n
1605. The 24th Amendment made certain changes in Article 368 to make it clear that the
\nParliament, in the exercise of its constituent power, has competence to amend by way of
\naddition, variation or repeal, any of the provisions of the Constitution in accordance with
\nthe procedure laid down in the article and that Article 13(2) would not be a bar to any
\nsuch amendment. By the 25th Amendment, the word ‘amount’ was substituted for the
\nword ‘compensation’ in Clause (2) of Article 31. That was done in order to make it clear
\nthat the law for acquisition or requisition of the property need only fix an amount or lay
\ndown the principles for determining the amount and not the just equivalent in money of
\nthe market value of the property acquired or requisitioned. The Amendment also makes it
\nclear that no such law shall be called in question in any Court on the ground that the
\nwhole or any part of such amount is to be given otherwise than in cash. The 29th
\nAmendment put the two Acts in question, viz., the Kerala Land Reforms (Amendment)
\nAct, 1969, and the Kerala Land Reforms (Amendment) Act, 1971, in the Ninth Schedule
\nwith a view to make the provisions thereof immune from attack on the ground that the
\nActs or the provisions thereof violate any of the Fundamental Rights.
\n1606. The petitioner challenges the validity of these Amendments.
\n1607. As the validity of the 25th and the 29th Amendments essentially depends upon the
\nvalidity of the 24th Amendment, it is necessary to consider and decide that question first.
\nI, therefore, torn to the circumstances which necessitated the Constitutional 24th
\nAmendment Act.\n<\/p>\n
1608. The Constitution (First Amendment) Act, 1951, was passed by Parliament on June
\n18, 1951. Sections 2, 3 and 4 of the Act made amendments in some of the articles in Part
\nIII of the Constitution. The validity of the Amendment was challenged before this Court
\nin Sankari Prasad v. The Union of India [1952] S.C.R. 89, and one of the questions which
\nfell for decision was whether, in view of Clause 2 of Article 13, Parliament had power to
\namend the Fundamental Rights in such a way as to take away or abridge them. And the
\nargument was that the word “State” in Clause 2 of Article 13 includes Parliament and the
\nword ‘law’ would take in an amendment of the Constitution and, therefore, Parliament had
\nno power to pass a law amending the Constitution in such a way as to take away or
\nabridge the Fundamental Rights. Patanjali Sastri, J. who delivered the judgment of the
\nCourt said that although the word ‘law’ would ordinarily include Constitutional law, there
\nis a distinction between ordinary law made in the exercise of legislative power and
\nConstitutional law made in the exercise of constituent power and that in the context of
\nClause 2 of Article 13, the word ‘law’ would not include an amendment of the
\nConstitution.\n<\/p>\n
1609. This decision was followed in Sajjan Singh v. State of Rajasthan [1965] 1 S.C.R.\n<\/p>\n
933. There, Gajendragadkar, C.J., speaking for himself and two of his colleagues,
\nsubstantially agreed with the reasoning of Patanjali Sastri, J. in Sankari Prasad v. The
\nUnion of India [1952] S.C.R. 89. Hidayatullah and Mudholkar, JJ. expressed certain
\ndoubts as to whether Fundamental Rights could be abridged or taken away by
\namendment of the Constitution under Article 368.\n<\/p>\n
1610. The question again came up before this Court in Golaknath v. State of Punjab
\n[1967] 2 S.C.R. 762, hereinafter called ‘Golaknath Case’ where the validity of the 17th
\nAmendment was challenged on much the same grounds. The majority constituting the
\nBench decided that Parliament has no power to amend the Fundamental Rights in such a
\nway as to take away or abridge them, but that the 1st, 4th and 17th Amendments were
\nvalid for all time on the basis of the doctrine of prospective overruling and that the Acts
\nimpugned in the case were protected by the Amendments.\n<\/p>\n
1611. The reasoning of the leading majority (Subba Rao, C.J., and the colleagues who
\nconcurred in the judgment pronounced by him) was that Article 368, as it stood then, did
\nnot confer the substantive power to amend the provisions of the Constitution but only
\nprescribed the procedure for the same that the substantive power to amend is in Articles
\n245, 246 and 248 read with entry 97 of List I of the Seventh Schedule, that there is no
\ndistinction between a law amending the Constitution and an ordinary law passed in the
\nexercise of the legislative power of Parliament and that the word law’ in Clause 2 of
\nArticle 13 would include an amendment of the Constitution.\n<\/p>\n
1612. Hidayatullah, J. who wrote a separate judgment concurring with the conclusion of
\nthe leading majority, however, took the view that Article 368 conferred the substantive
\npower to amend the Constitution but that Fundamental Rights cannot be amended under
\nthe article so as to take away or abridge them. He said that there is no distinction between
\nConstitutional law and ordinary law, that both are laws that the Constitution limited the
\npowers of the Government but not the sovereignty of the State, that the State can, in the
\nexercise of its supremacy, put a limit on its supremacy, echoing in effect the view that
\nthere could be ‘auto-limitation’ by a sovereign of his own supreme power and that, by
\nClause 2 of Article 13, the State and all its agencies, including the Amending Body, were
\nprohibited from making any law, including a law amending the Constitution, in such a
\nway as to take away or abridge the Fundamental Rights.\n<\/p>\n
1613. Let me first take up the question whether Article 368 as it stood before the 24th
\nAmendment gave power to Parliament to amend the rights conferred by Part III in such a
\nway as to take away or abridge them.\n<\/p>\n
1614. In Golaknath Case [1967] 2 S.C.R. 762, Hidayatullah, J. said that it is difficult to
\ntake a narrow view of the word ‘amendment’ as including only minor changes within the
\ngeneral framework, that by an amendment, new matter may be added, old matter
\nremoved or altered, and that except two dozen articles in Part III, all the provisions of the
\nConstitution could be amended. Wanchoo, J. speaking for the leading minority in that
\ncase was of the view that the word ‘amendment’ in its setting in the article was of the
\nwidest amplitude and that any provision of the Constitution could be amended. Bachawat,
\nJ. was also inclined to give the widest meaning to the word. Ramswami, J. did not
\nspecifically advert to the point, but it seems clear from the tenor of his judgment that he
\nwas also of the same view.\n<\/p>\n
1615. Mr. Palkhivala for the petitioner contended that the word ‘amendment’ in the article
\ncould only mean a change with a view to make improvement; that in the context, the term
\nconnoted only power to make such changes as were consistent with the nature and
\npurpose of the Constitution, that the basic structure and essential features of the
\nConstitution cannot be changed by amendment, and that the assumption made by these
\njudges that the word ‘amendment’ in the article was wide enough to make any change by
\nway of alteration, addition or repeal of any of the provisions of the Constitution was
\nunwarranted. He said that the article was silent as regards the subject matter in respect of
\nwhich amendments could be made or the extent and the width thereof, that it was set in a
\nlow key as it did not contain the words “amend by way of addition, variation or repeal”,
\nthat these circumstances should make one pause before ascribing to the word
\n‘amendment’ its widest meaning and that, in the context, the word has only a limited
\nmeaning.\n<\/p>\n
1616. I do not think that there is any substance in this contention.
\n1617. In the Oxford English Dictionary, the meanings of the word ‘amend’ are given as:
\nto make professed improvements (in a measure before Parliament);
\nformally to alter in detail, though practically it may be to alter its principle
\nso as to thwart it.\n<\/p>\n
According to “Standard Dictionary”, Funk and Wagnalls (1894), the meanings of
\n‘amendment’ are:\n<\/p>\n
The act of changing a fundamental law, as of political Constitution, or any
\nchange made in it according to a prescribed mode of procedure; as, to alter
\nthe law by amendment; an amendment of the Constitution.\n<\/p>\n
1618. The proviso to Article 368 used the expression ‘change’ and that could indicate that
\nthe term ‘amend’ really means ‘change’. The main part of Article 368 thus gave power to
\namend or to make changes in the Constitution. Normally, a change is made with the
\nobject of making an improvement; at any rate, that is the professed object with which an
\namendment is sought to be made. The fact that the object may not be achieved is beside
\nthe point. Amendment contains in it an element of euphemism of conceit in the proposer,
\nan assumption that the proposal is an improvement. Beyond this euphemistic things,
\namendment as applied to alteration of laws according to dictionaries means ‘alter’ or
\n‘change’ see McGovney, “Is the Eighteenth Amendment Void Because of its Contents?”
\nColumbia Law Review, Vol. 20.\n<\/p>\n
1619. In the National Prohibition Cases Rhode Island v. Palmer 253 U.S. 350, it was
\nargued before the United States Supreme Court that an amendment under Article V of the
\nUnited States Constitution must be confined in its scope to an alteration or improvement
\nof that which is already contained in the Constitution and cannot change its basic features
\nbut this argument was overruled.\n<\/p>\n
1620. In Rvan’s Case The State (At the Prosecution of Jeremiah Ryan and Ors. v. Captain
\nMichael Lennon and Ors. (1935) Irish Reports 173 the Supreme Court of Ireland held by
\na majority that the word ‘amendment’ occurring in Article 50 of the Irish Constitution was
\nof the widest amplitude. Fitz Gibbon, J. observed after reading the various meanings of
\nthe word ‘amendment’ that the word as it occurred in a Constitution Act must be given its
\nwidest meaning. Murnaghan, J. observed that although complete abolition of the
\nConstitution without any substituted provisions might not properly be called in law an
\n‘amendment’, the word is wide enough to allow of the repeal of any number of articles of
\nthe Constitution, however important they might be. Kennedy, C.J. did not specifically
\ndeal with the meaning of the word.\n<\/p>\n
1621. In this context it is relevant to keep in mind the general rules of construction for
\ninterpreting a word like ‘amendment’ occurring in a constituent Act like the Constitution
\nof India.\n<\/p>\n
1622. In In Re the Central Provinces and Berar Sales of Motor Spirit and Lubricants
\nTaxation Act, 1938, etc (1939) F.C.R. 18. Sir Maurice Gwyer said that a broad and
\nliberal spirit should inspire those whose duty it is to interpret a Constitution, that a Court
\nshould avoid a narrow and pedantic approach and that when a power is granted without
\nany restriction, it can be qualified only by some express provision or by scheme of the
\ninstrument.\n<\/p>\n
1623. The basic principles of construction were definitively enunciated by the Privy
\nCouncil in The Queen v. Burah (1878) 3 A.C. 889, 904-905 and those principles were
\naccepted and applied by Earl Loreburn in Attorney General for Ontario v. Attorney
\nGeneral for Canada (1912) A.C. 572 at 583 Lord Selborne said in the former case that the
\nquestion whether the prescribed limits of a power have been exceeded has to be decided
\nby looking to the terms of the instrument by which, affirmatively, the power was created,
\nand by which, negatively, it is restricted and that if what has been done is within the
\ngeneral scope of the affirmative words which give the power, and if it violates no express
\ncondition of restriction by which that power is limited, it is not for any court of justice to
\ninquire further, or to enlarge constructively those conditions and restrictions. In other
\nwords, in interpreting a Constitution, as Lord Loreburn said in the latter case, if the text is
\nexplicit, the text is conclusive alike in what it directs and what it prohibits.
\n1624. I should think that in such matters everything turns upon the spirit in which a judge
\napproaches the question before him. The words must construe are, generally speaking,
\nmere vessels in which he can pour nearly anything he will. “Men do not gather figs of
\nthistles, nor supply institutions from judges whose outlook is limited by parish or class.
\nThey must be aware that there are before them more than Verbal problems; more than
\nfinal solutions cast in generalisations in every society which make it an organism; which
\ndemand new schemata of adaptation; which will disrupt it, if rigidly confined” See the
\npassage of Learned Hand quoted in “Cases and Materials on the Legal Process” by
\nF.K.H. Maher and Ors., 2nd ed., p. 498. An this is why President Roosevelt said that the
\njudges of the Supreme Court must be not only great justices, but they must be great
\nconstructive :statesmen See the passage quoted by Frederic R. Coudert in 13 Yale Law
\nJournal, p. 338.\n<\/p>\n
1625. Therefore, although the word ‘amendment’ has a variety of meanings, we have to
\nascribe to it in the article a meaning which is appropriate to the function to be played by it
\nin an instrument apparently intended to endure for ages to come and to meet the various
\ncrises to which the body politic will be subject. The nature of that instrument demands
\nawareness of certain presupposition. The Constitution has no doubt its roots in the past
\nbut was designed primarily for the unknown future. The reach of this consideration was
\nindicated by Justice Holmes in language that remains fresh no matter how often repeated
\n: Missouri v. Holland 252 U.S. 416, 433
\n…when we are dealing with words that also are a constituent act, like the
\nConstitution of the United States, we must realize that they have called
\ninto life a being the development of which could not have been foreseen
\ncompletely by the most gifted of its begetters….\n<\/p>\n
1626. Every well drawn Constitution will therefore provide for its own amendment in
\nsuch a way as to forestall as is humanly possible, all revolutionary upheavals See Carl J.
\nFriedrich, “Constitutional Government and Democracy”, p. 135. That the Constitution is
\na framework of great governmental power to be exercised for great public ends in the
\nfuture, is not a pale intellectual concept but a dynamic idea which must dominate in any
\nconsideration of the width of the amending power. No existing Constitution has reached
\nits final form and shape and become, as it were a fixed thing incapable of further growth.
\nHuman societies keep changing; needs emerge, first vaguely felt and unexpressed,
\nimperceptibly gathering strength, steadily becoming more and more exigent, generating a
\nforce which, if left unheeded and denied response so as to satisfy the impulse behind it,
\nmay burst forth with an intensity that exacts more than reasonable satisfaction See Felik
\nFrankfurter, “Of Law and Men”, p. 35. As Wilson said, a living Constitution must be
\nDarwinian in structure and practice See Constitutional Government in the United States,
\np. 25. The Constitution of a nation is the outward and visible manifestation of the life of
\nthe people and it must respond to the deep pulsation for change within. “A Constitution is
\nan experiment as all life is an experiment.” See Justice Holmes in Abrams v. United
\nStates 250 U.S. 616. If the experiment fails, there must be provision for making another.
\nJefferson said that there is nothing sanctimonious about a Constitution and that nobody
\nshould regard it as the ark of the covenant, too sacred to be touched. Nor need we ascribe
\nto men of preceding age, a wisdom more than human and suppose that what they did
\nshould be beyond amendment. A Constitution is not end in itself, rather a means for
\nordering the life of a nation. The generation of yesterday might not know the needs of
\ntoday, and, ‘if yesterday is not to paralyse today’, it seems best to permit each generation
\nto take care of itself. The sentiment expressed by Jefferson in this behalf was echoed by
\nDr. Ambedkar Constitution Assembly Debates, Vol. X, pp. 296-297. If there is one sure
\nconclusion which I can draw from this speech of Dr. Ambedkar, it is this : He could not
\nhave conceived of any limitation upon the amending power. How could he have said that
\nwhat Jefferson said is “not merely true, but absolutely true”, unless he subscribed to the
\nview of Jefferson that “each generation as a distinct nation with a right, by the will of the
\nmajority to bind themselves but none to bind the succeeding generations more than the
\ninhabitants of another country”, and its corrollary which follows as ‘the night the day’ that
\neach generation should have the power to determine the structure of the Constitution
\nunder which they live. And how could this be done unless the power of amendment is
\nplenary, for it would be absurd to think that Dr. Ambedkar contemplated a revolution in
\nevery generation for changing the Constitution to suit its needs and aspirations. I should
\nhave thought that if there is any implied limitation upon any power, that limitation is that
\nthe amending body should not limit power of amendment of the future generation by
\nexercising its power to amend the amending power. Mr. Palkhivala said that if the power
\nof amendment of the amending power is plenary, one generation can, by exercising that
\npower, take away the power of amendment of the Constitution from the future
\ngenerations and foreclose them from ever exercising it. I think the argument is too
\nspeculative to be countenanced. It is just like the argument that if men and women are
\ngiven the freedom to choose their vocations in life, they would all jump into a monastery
\nor a nunnery, as the case may be, and prevent the birth of a new generation; or the
\nargument of some political thinkers that if freedom of speech is allowed to those who do
\nnot believe in it, they would themselves deny it to others when they get power and,
\ntherefore, they should be denied that freedom today, in order that they might not deny it
\nto others tomorrow.\n<\/p>\n
1627. Seeing, therefore, that it is a “Constitution that we are expounding” and that the
\nConstitution-makers had before them several Constitutions where the word ‘amendment’
\nor ‘alteration’ is used to denote plenary power to change the fundamentals of the
\nConstitution, I cannot approach the construction of the word ‘amendment’ in Article 368
\nin niggardly or petty fogging spirit and give it a narrow meaning; but “being a familiar
\nexpression, it was used in its familiar legal sense” See Justice Holmes in Henry v. United
\nStates 251 U.S. 293, 295.\n<\/p>\n
1628. However, Mr. Palkhivala contended that there are provisions in the Constitution
\nwhich would militate against giving the word ‘amendment’ a wide meaning in the article
\nand he referred to the wording in Schedule V, para 7(1) and Schedule VI, para 21(1).
\nThese paragraphs use along with the word ‘amend’, the expression “by way of addition,
\nvariation or repeal”. Counsel said that these words were chosen to indicate the plenitude
\nof the power of amendment and that this is in sharp contrast with the wording of Article
\n368 where only the word ‘amendment’ was used. But Schedule V, para 7(2) and Schedule
\nVI, para 21(2) themselves indicate that, but for these provisions, an amendment of the
\nschedule by way of addition, variation or repeal would be an amendment of the
\nConstitution under Article 368. In other words, the sub-paragraphs show clearly that the
\nexpression “amend by way of addition, variation or repeal” in para 7(1) of Schedule V
\nand para 21(1) of Schedule VI has the same content as the word ‘amendment’ in Article\n<\/p>\n
368.
\n1629. Reliance was also placed by counsel on Section 291 of the Government of India
\nAct, 1935, as amended by the Third Amendment Act 1949, which provided that “such
\namendments as he considers necessary whether by way of addition, modification or
\nrepeal in the Act”. No inference can be drawn from the use of these words as to the
\nmeaning to be assigned to the word ‘amendment’ in Article 368 or its width as it is well
\nknown that draftsmen use different words to indicate the same idea for the purpose of
\nelegance or what is called “the graces of style” or their wish to avoid the same word, or
\nsometimes by the circumstance that the Act has been compiled from different sources and
\nsometimes by alteration and addition from various hands which the Acts undergo in their
\nprogress in Parliament See Maxwell on the Interpretation of Statutes, 12th ed., p. 286.
\n1630. It was submitted that if the word ‘amendment’ is given an unlimited amplitude, the
\nentire Constitution could be abrogated or repealed and that certainly could not have been
\nthe intention of the makers of the Constitution. The question whether the power of
\namendment contained in Article 368 as it stood before the amendment went to the extent
\nof completely abrogating the Constitution and substituting it by an entirely new one in its
\nplace is not beyond doubt I think that the power to amend under that article included the
\npower to add any provision to the Constitution, to alter any provision, substitute any other
\nprovision in its place and to delete any provision. But when the article said that, on the
\nbill for the amendment of the Constitution receiving the President’s assent, “the
\nConstitution shall stand amended”, it seems to be fairly clear that a simple repeal or
\nabrogation of the Constitution without substituting anything in the place of the repealed
\nConstitution would be beyond the scope of the amending power, for, if a Constitution
\nwere simply repealed, it would not stand amended. An amendment which brings about a
\nradical change in the Constitution like introducing presidential system of government for
\ncabinet system, or, a monachy for a republic, would not be an abrogation or repeal of the
\nConstitution. However radical the change might be, after the amendment, there must exist
\na system by which the State is constituted or organised. As already stated, a simple repeal
\nor abrogation without more, would be contrary to the terms of Article 368 because it
\nwould violate the Constitutional provision that “the Constitution shall stand amended”.
\n1631. Even if the word ‘amendment’ in Article 368 as it stood originally was wide enough
\nto empower the amending body to amend any of the provisions of the Constitution, it was
\nsubmitted by the petitioner, that Article 13(2) was a bar to the amendment of the
\nFundamental Rights by Parliament in such a way as to take away or abridge them:
\n13(2) The State snail not make any law which takes away or abridges the
\nrights conferred by this Part and any law made in contravention of this
\nclause shall, to the extent of the contravention, be void.\n<\/p>\n
In this context it is necessary to understand the basic distinction between a flexible and a
\nrigid Constitution to appreciate the argument that an amendment of the Constitution is
\n‘law’ within the purview of the sub-article.\n<\/p>\n
1632. The outstanding characteristic of a flexible Constitution like the British
\nConstitution as contrasted with a rigid one like ours is the unlimited authority of the
\nParliament to which it applies, to pass any law without any restriction. In rigid
\nConstitution, there is a limitation upon the power of the legislature by something outside
\nitself. There is a greater law than the law of the ordinary legislature and that is the law of
\nthe Constitution which is of superior obligation unknown to a flexible Constitution. It
\ndoes not follow that because a Constitution is written, it is therefore rigid. There can be a
\nwritten Constitution which is flexible. “The stole criterion of a rigid Constitution is
\nwhether the constituent assembly which drew up the Constitution left any special
\ndirection as to how it was to be changed See generally C.F. Strong, Modern Political
\nConstitutions (1963). pp. 152-153”. If a special procedure is prescribed by the
\nConstitution for amending it, different from the procedure for passing ordinary law, then
\nthe Constitution is rigid.\n<\/p>\n
1633. It is said that Articles 4 and 169, paragraph 7 of the Fifth Schedule and paragraph
\n21 of the Sixth Schedule show that amendment of the Constitution can be made by the
\nordinary law-making procedure. These provisions themselves show that the amendment
\nso effected shall not be deemed to be amendment for the purpose of Article 368. This is
\nbecause the procedure prescribed by them is different from the procedure laid down in
\nArticle 368.\n<\/p>\n
1634. Mr. Palkhivala did not contend that the power to amend is located in Articles 245,
\n246 and 248 read with entry 97 of List I of the Seventh Schedule. He only submitted that
\nit is immaterial whether the power is located in Articles 245, 246 and 248 read with entry
\n97 of List I of the Seventh Schedule or in Article 368, I do not think that there could be
\nany doubt that Article 368 as it stood before the 24th Amendment contained not only the
\nprocedure but also the substantive power of amendment. As the article laid down a
\nprocedure different from the procedure for passing ordinary laws, our Constitution is a
\nrigid one and the power to amend a constituent power.\n<\/p>\n
1635. The vital distinction between Constitutional law and ordinary law in a rigid
\nConstitution lies in the criterion of the validity of the ordinary law. An ordinary law,
\nwhen questioned, must be justified by reference to the higher law embodied in the
\nConstitution; but in the case of a Constitution, its validity is, generally speaking, inherent
\nand lies within itself. Kelsen has said, the basic norm (the Constitution) is not created in a
\nlegal procedure by a law-creating organ. It is not-as a positive legal norm is-valid because
\nit is created in a certain way by a legal act, but it is valid because it is presupposed to be
\nvalid; and it is presupposed to be valid because, without this presupposition, no human
\nact could be interpreted legal, especially as a norm-creating act. In other words, the
\nvalidity of the Constitution generally lies in the social fact of its being accepted by the
\ncommunity and for the reason that its norms have become efficacious. Its validity is
\nmeta-legal See Hans Kelsen, “General Theory of Law and State”, p. 116.
\n1636. Whether the observations of Kelsen would apply to our Constitution would depend
\nupon the answer to the question whether the legal source of the Constitution should be
\ntraced to the Indian Independence Act, 1947, or, whether the Constitution was the result
\nof the exercise of the revolutionary constituent power of the people.
\n1637. It does not follow from what has been said that there are no basic rules in a flexible
\nConstitution like that of Great Britain. The principle of the English Constitution, namely,
\nthat the Court will enforce Acts of Parliament is not derived from any principle of
\ncommon law, but is itself an ultimate principle of English Constitutional Law See
\nH.W.R. Wade, “The Basis of Legal Sovereignty”, (1955) (Cam-bridge Law, Journal, 172.
\n1638. Once it is realised that a Constitution differs from law in that a Constitution is
\nalways valid whereas a law is valid only if it is in conformity with the Constitution and
\nthat the body which makes the Constitution is a sovereign body and generally needs no
\nlegal authority whereas a body which makes the ordinary law is rot sovereign, but derives
\nits power from the Constitution, an amendment to the Constitution has the same validity
\nas the Constitution itself, although the question whether the amendment has been made in
\nthe manner and form and within the power conferred by the Constitution is always
\njusticiable. Just as an ordinary law derives its validity from its conformity with the
\nConstitution, so also, an amendment of the Constitution derives its validity from the
\nConstitution. An amendment of the Constitution can be ultra vires just as an ordinary law
\ncan be.\n<\/p>\n
1639. When a legislative body is also the sovereign Constitution-making body, naturally
\nthe distinction between Constitution and an ordinary law becomes conceptual and, in fact,
\ndisappears as that body has both the constituent power of the sovereign as well as
\nlegislative power. The British Constitution under which the distinction between the
\nsovereign and the ordinary legislature is eclipsed due to the theory of the sovereignty of
\nthe British Parliament, is certainly not the ideal Constitution to choose for appreciating
\nthe distinction between Constitutional law and ordinary law under our polity. Sir Ivor
\nJennings said that there is no clear distinction between Constitutional law and ordinary
\nlaw in England and that the only fundamental law there is that parliament is supreme See
\nJennings, “The Law and the Constitution” (1933). p. 614. Strictly speaking, therefore,
\nthere is no Constitutional law at all in Britain; there is only arbitrary power of parliament.
\n1640. It is said that The Bill of Rights (1689), Act of Settlement (1701), etc., partake the
\ncharacter of Constitutional law and there is no reason to exclude that type of law from the
\nambit of the word ‘law’ in Clause (2) of Article 13.\n<\/p>\n
1641. In a flexible Constitution like the British Constitution the only dividing line
\nbetween Constitutional law and ordinary law is that Constitutional law deals with a
\nparticular subject matter, namely, the distribution of the sovereign power among the
\nvarious organs of the State and other allied matters; but in India, as I have said, that
\ndistribution may not be quite relevant. For our purpose, the only relevant factor to be
\nlooked into is whether a provision is embodied in the Constitution of India. Any
\nprovision, whether it relates strictly to the distribution of sovereign power among the
\nvarious organs of the State or not, if it is validly embodied in the document known as
\n“The Constitution of India”, would be a law relating to the Constitution. In other words,
\nirrespective of the subject matter, the moment a provision becomes validly embodied in
\nthe Constitution, it acquires a validity of its own which is beyond challenge and the
\nquestion whether it relates to Constitutional law with, reference to the subject matter is
\nwholly irrelevant. “Where a written Constitution exists, it is approximately true to say
\nthat the Constitution itself provides such a supreme norm…even so, the Constitution may
\nnot be altogether identified with the supreme norm; for there may be rules for its
\ninterpretation which judges accept as binding but which are not prescribed in the
\nConstitution. Effectively, therefore, it is the traditional judicial interpretation of the
\nConstitution that is the supreme norm” See Stanley I. Benn, “The Use of Sovereignty”, in
\nthe book “In Defence of Sovereignty”, edited by W.J. Stankiewicz, 67, 70. For, as Bishop
\nHoadley said in his sermon “Whoever hath absolute authority to interpret any written or
\nspoken laws, it is he who is the law-giver to all indents and purposes and not the person
\nwho first wrote or spoke them” See Gry, Nature and Sources of the Law, 102, 125, 172
\n(2nd ed.) (1921).\n<\/p>\n
1642. As I said, for the purpose of Article 13(2), the only relevant question is whether an
\namendment of the Constitution is ‘law’. Since both an amendment of the Constitution and
\nan ordinary law derive their validity from the Constitution, the criterion that an ordinary
\nlaw can be tested for its validity on the touchstone of the Constitution must equally apply
\nto an amendment of the Constitution. Therefore, by and large, the only distinction
\nbetween a law amending the Constitution and an ordinary law in a rigid Constitution is
\nthat an amendment of the Constitution has always to be made in the manner and form
\nspecially prescribed by the Constitution.\n<\/p>\n
1643. Mr. Palkhivala contended that when Article 13(1) and 372 speak of “laws in force”
\nin the territory of India immediately before the commencement of the Constitution, the
\nexpression would take in also all Constitutional law existing in the territory of India
\nimmediately before the coming into force of the Constitution, and therefore, the word
\n‘law’ in Clause (2) of Article 13 must also include Constitutional law. Assuming that the
\nexpression “laws in force” in Article 13(1) and 372 is wide enough to include
\nConstitutional law, the question is, what is the type of Constitutional law that would be
\nincluded? So far as British India was concerned, Article 395 repealed the Indian
\nIndependence Act, 1947, and the Government of India Act, 1935, together with all
\nenactments amending and supplementing the latter Act. I am not sure whether there were
\nany Orders passed under the Government of India Act which could be called
\nConstitutional law. That apart, I doubt whether the Government of India Act, 1935, and
\nthe Indian Independence Act, 1947, were Constitutional laws in the sense of their being
\nthe supreme law of the land like the Constitution of India, for, both of them could have
\nbeen repealed by the legal sovereign, namely, the British Parliament. And the reason why
\ntheir provisions could not have been challenged in a Court of Law was not that they were
\nthe supreme law of the land but because they were laws in conformity with the supreme
\nlaw, namely, the will of the British Parliament. As regards the native States, the fact that
\nthe Courts therein could not have challenged the validity of the provisions of a
\nConstitution promulgated by an absolute monarch would not show that those provisions
\ncould be equated with the provisions of the Constitution of India. A Constitution
\nestablished by an absolute monarch will be enforced by the Court of the State, not
\nbecause the Constitution is the supreme law of the State but because it is a law in
\nconformity with the supreme law, namely, the supreme will of the monarch which alone
\nis the supreme law, unless, as Alf Ross said, the Constitution was granted by the monarch
\nwith the intention that it should not be revocable Alf Ross, “On Law and Justice”, p. 82.
\nTherefore, those Constitutional laws cannot be characterised as Constitutional laws in the
\nsense in which we speak of the Constitution of India, for, such of the provisions of those
\nConstitutions in the native States existing before the commencement of the Constitution
\nof India which contravened the provisions of Part III became void (Article 13(1)) and
\nothers which continued, continued subject to the provisions of the Constitution (Article\n<\/p>\n
372). In other words, for the purpose of Article 13(2), what is relevant is whether the
\nword ‘law’ there, is comprehensive enough to take in Constitutional law in the sense of a
\nlaw embodied in a Constitution which is the supreme law of the land and from which all
\nother laws derive their validity. The Constitutional laws in force in the territory of India
\nimmediately before the commencement of the Constitution did not have the status of
\nConstitutional law in the sense of a law which is supreme. Were it otherwise, none of
\nthem would have been void under Article 13(1) and none of them subject to the
\nprovisions of the Constitution under Article 372.\n<\/p>\n
1644. It seems to me to he clear that the word ‘law’ in Article 13(2), in the context, could
\nonly mean an ordinary law. When Article 13 (2) said that the State shall not make any
\n‘law’ the meaning of the expression ‘law’ has to be gathered from the context. Though,
\nanalytically, it might be possible to say that the word ‘law’ would include an amendment
\nof the Constitution also, from the context it would be clear that it only meant ordinary
\nlaw. A word by itself is not crystal clear. It is the context that gives it the colour. In the
\nsetting of Article 13(2), what was prohibited that the Parliament shall not pass a law in
\npursuance of its powers under Chapter I of Part XI or any other provisions enabling it to
\npass laws, which were legislative in character. The Constitution-makers only wanted to
\nprovide against the more common invasion of Fundamental Rights by ordinary
\nlegislation.\n<\/p>\n
1645. If the power to amend was to be found within Article 368 and not under Article
\n248 read with entry 97 of List I of the Seventh Schedule, it stands to reason to hold that
\nconstituent power for amend ment of the Constitution is distinct from legislative power.
\nThe leading majority in the Golaknath Case [1967] 2 S.C.R. 762 took pains to locate the
\npower to amend in Article 248 read with entry 97 of List I of the Seventh Schedule to
\nshow that the Constitution can be amended by an ordinary law and that such a law would
\nbe within the purview of Article 13(2). But if the power to amend the Constitution is a
\nlegislative power and is located in the residuary entry (97 of List I of the Seventh
\nSchedule), then any law amending the Constitution by virtue of that power, can be passed
\nonly “subject to the provisions of the Constitution” as mentioned in Article 245. A power
\nof amendment by ordinary law “subject to the provisions of the Constitution” seems to
\nme a logical contradiction; for, how can you amend the provisions of the Constitution by
\nan ordinary law which can be passed only subject to the provisions of the Constitution?
\n1646. It would be strange that when a whole chapter has been devoted to the
\n“Amendment of the Constitution” and when the question of amendment loomed large in
\nthe mind of the Constitution-makers that, even if the power to amend the Constitution
\nwas thought to be legislative in character, it was not put as a specific entry in List I but
\nrelegated to the residuary entry ! And, considering the legislative history of the residuary
\nentry, it is impossible to locate the power of amendment in that entry. The legislative
\npower of Parliament under entry 97 of List I of the Seventh Schedule is exclusive and the
\npower to amend cannot be located in that entry because, in respect of the matters covered
\nby the proviso to Article 368, Parliament has no exclusive power to amend the
\nConstitution.\n<\/p>\n
1647. That apart, the power to amend a rigid Constitution, not being an ordinary
\nlegislative power but a constituent one, it would be strange that the Constitution-makers
\nput it sub-silentio in the residuary legislative entry.\n<\/p>\n
1648. Article 368 was clear that when the procedure prescribed by the article was
\nfollowed, what resulted was an amendment of the Constitution. The article prescribed a
\nprocedure different from the legislative procedure prescribed in Articles 107 to 111 read
\nwith Article 100. Article 100 runs as follows : “Save as otherwise provided in this
\nConstitution all questions at any sitting of either House or joint sitting of the Houses shall
\nbe determined by a majority of votes of the members present and voting….” Certain types
\nof amendment, as is clear from Article 368, also require to be ratified. The first part of
\nArticle 368 required that a bill must be passed in each House (1) by a majority of the total
\nmembership of that House and (2) by a majority of not less than two-thirds of the
\nmembers of that House present and voting. These provisions rule out a joint sitting of
\nboth the Houses under Article 108 to resolve disagreement between the two Houses.
\nAgain, the majority required to pass a bill in each House is not a majority of the members
\nof that House present and voting but a majority of the total membership of each House
\nand a majority of not less than two-thirds of the members of that House present and
\nvoting. As regards matters covered by the proviso, there is a radical departure from the
\nlegislative procedure prescribed for Parliament by Articles 107 to 111. Whereas in
\nordinary legislative matters Parliament’s power to enact laws is not dependent on the
\nState legislatures, in matters covered by the proviso to Article 368, even if the two
\nHouses pass a bill by the requisite majorities, the bill cannot be presented to the President
\nfor his assent unless she bill has been ratified by resolutions to that effect passed by the
\nlegislatures of not less than half the number of States.\n<\/p>\n
1649. Subba Rao, C.J., in his judgment in Golaknath case (1967) 2 S.C.R. 762 relied on
\nMcCawley v. The King (1920) A.C. 691 and The Bribery Commissioner v. Ped-rick
\nRanasinghe (1964) 2 W.L.R. 1301; (1965) A.C. 172 to show that the power to amend the
\nConstitution was a legislative power. In McCawley’s Case, Lord Birkenhead said that it is
\nof the utmost importance to notice that where the Constitution is uncontrolled the
\nconsequences of its freedom admit of no qualification whatever and that it would be an
\nelementary common place that in the eye of the law the legislative document or
\ndocuments which defined it occupied precisely the same position as the Dog Act or any
\nother Act, however humble its subject matter and that the so called Constitutional law (I
\ncall them so called because it is Constitutional law only with reference to the subject
\nmatter, not with reference to its superior character) will stand amended by the Dog Act, if
\nit is in any way repugnant to the legislative document or documents.
\n1650. In Ranasinghe’s case, the question for determination before the Privy Council was
\nwhether the statutory provision for the appointment of members of the panel of the
\nBribery Tribunal, otherwise than by the Judicial Service Commission, violated Section 55
\nof the Constitution Order and, if so, whether that provision was void. Sections 18 and 29
\nof the Order provide as follows:\n<\/p>\n
Section 18 : Save as otherwise provided in Sub-section (4) of Section 29
\nany question proposed’ for decision by either Chamber shall be determined
\nby a majority of votes or the Senators or Members, as the case may be,
\npresent and voting. The President or Speaker or other person presiding
\nshall not vote in the first instance but shall have and exercise a casting
\nvote in the event of an equality of votes.\n<\/p>\n
Section 29: (1) Subject to the provisions of this Order, Parliament shall
\nhave power to make laws for the peace, order and good government of the
\nIsland. (2) No such law shall-(a) prohibit or restrict the free exercise of
\nany religion; or (b) make persons of any community or religion liable to
\ndisabilities or restrictions to which persons of other communities or
\nreligions are not made liable; or (c) confer on persons of any community
\nor religion any privilege or advantage which is not conferred on persons of
\nother communities or religions: or (d) alter the Constitution of any
\nreligious body except with the consent of the governing authority of that
\nbody : Provided that, in any case where a religious body is incorporated by
\nlaw, no such alteration shall be made except at the request of the
\ngoverning authority of that body. (3) Any law made in contravention of
\nSub-section (2) of this section shall, to the extent of such contravention, be
\nvoid. (4) In the exercise of its powers under this section, Parliament may
\namend or repeal any of the provisions of this Order, or of any other Order
\nof His Majesty in Council in its application to the Island : Provided that no
\nBill for the amendment or repeal of any of the provisions of this Order
\nshall be presented to the Royal Assent unless it has endorsed on it a
\ncertificate under the hand of the speaker that the number of votes cast in
\nfavour thereof in the House of Representatives amounted to not less than
\ntwo-thirds of the whole number of members of the House (including those
\nnot present). Every certificate of the Speaker under this sub-section shall
\nbe conclusive for all purpose and shall not be questioned in any court of
\nlaw.\n<\/p>\n
The appellant contended that whereas Section 29(3) expressly provided that a law which
\ncontravened Section 29(2) was void, there was no such provision for the violation of
\nSection 29(4) which was merely procedural and that as Ceylon was a sovereign State, and
\nhad the power to amend the Constitution, any law passed by the legislature was valid
\neven if it contravened the Constitution, and McCawley’s case was cited as supporting this
\ncontention. But the Privy Council said that the law impugned in McCawley’s case was
\nnot required to be passed by a special procedure, but in the present case the law which
\ncontravened Section 55 could only be passed as required by Section 29(4) for the
\namendment of the Constitution and as it was not so passed, it was ultra vires and void.
\nIt is not possible to draw the inference which Subba Rao, C.J. drew from these two cases.
\nThere is a distinction between a general power to legislate and a power to legislate by
\nspecial legislative procedure and the results of the exercise of the two powers are
\ndifferent. In McCawley’s case it was observed that if a legislature has full power to make
\na law which conflicted with the Constitution, the law was valid since it must be treated as
\na pro-tanto amendment of the Constitution which was neither fundamental in the sense of
\nbeing beyond change nor so constructed as to require any special legislative process to
\npass upon the topic dealt with, and an ordinary law in conflict with the Constitution must,
\nin such a case be treated as an implied alteration of the Constitution. In Ranasinghe’s
\nCase, the Privy Council said that where even an express power of a legislature to alter
\ncan be exercised only by laws which comply with the “Special legislative procedure laid
\ndown in the Constitution”, such a legislature has no general power to legislate for the
\namendment of the Constitution, and a law passed in the exercise of such general power is
\nvoid if the law contravenes the Constitution. And, where a legislative power is “subject to
\nthe provisions of the Constitution”, any exercise of it in contravention of such provisions
\nrenders it invalid and ultra-vires: As already stated, in a controlled Constitution which
\nconfers general legislative power subject to the provisions of the Constitution and
\nprovides a special procedure for amendment of the Constitution, law passed in the
\nexercise of the general legislative power and conflicting with the Constitution must be
\nvoid because the Constitution can be amended only by special procedure. In a
\nConstitution which confers general legislative power including a power to amend the
\nConstitution, the Constitution is uncontrolled and is not a fundamental document by
\nwhich the laws made under it are to be tested, for, any law contrary to the Constitution
\nimpliedly alters it. The result is that no law passed under an uncontrolled Constitution is
\nultra vires See Seervai “Constitutional Law”, Vol. 2, pp. 1102-1103; also Dr. Wynes
\n“Legislative, Executive and Judicial Powers in Australia”, footnote at p. 508.
\n1651. The Substance of the decision in Ranasinghe’s Case is that though Ceylon
\nParliament has plenary power of ordinary legislation, in the exercise of its Constitution
\npower it was subject to the special procedure laid down in Section 29(4). The decision,
\ntherefore, makes a clear distinction between legislative and constituent powers.
\n1652. It was contended that the amending power can be a legislative power as in Canada
\nand, therefore, there was nothing wrong in the leading majority in Golaknath Case [1967]
\n2 S.C.R. 762, locating the power of amendment in the residuary entry.
\n1653. Section 91(1) of the British North America Act provides for a restricted power of
\namendment of the Constitution. This power, undoubtedly, is a legislative power and the
\nConstitution, therefore, to that extent is an uncontrolled or a flexible one. There is no
\nanalogy between the power of amendment in Canada which is legislative in character and
\nthe power of amendment under Article 368 which is a constituent power. As I indicated,
\neven if there was an entry for amending the Constitution in List I of the Seventh
\nSchedule, that would not have enabled the Parliament to make any amendment of the
\nConstitution because the opening words of Article 245 “subject to the provisions of this
\nConstitution” would have presented an insuperable bar to amend any provision of the
\nConstitution by the exercise of legislative power under the Constitution. Under a
\ncontrolled Constitution like ours, the power to amend cannot be a legislative power; it
\ncan only be a constituent power. Were it otherwise, the Constitution would cease to be a
\ncontrolled one.\n<\/p>\n
1654. It was submitted that if Fundamental Rights were intended to be amended by the
\nConstitution-makers in such a way as to abridge or take them away, considering the
\nparamount importance of these rights, the procedure required by the proviso to Article
\n368 would, at any rate, have been made mandatory and that not being so, the intention of
\nthe Constitution-makers was that the Fundamental Rights should not be amended in such
\na way as to abridge or take them away. This argument overlooks the purpose of the
\nproviso. The proviso was mainly intended to safeguard the rights and powers of the
\nStates in their juristic character as persons in a federation. The purpose of the proviso was
\nthat the rights, powers and privileges of the States or their status as States should not be
\ntaken away or impaired without their participation to some extent in the amending
\nprocess. Fundamental Rights are rights of individuals or minorities, and they are
\nrepresented in Parliament. The States, as States, are not particularly affected by
\namendment of Fundamental Rights. As Wheare said, it is essential in a federal
\ngovernment that if there be a power of amending the Constitution, that power, so far at
\nleast as concerns those provisions of the. Constitution which regulate the status and
\npowers of the general and regional governments, should not be confided exclusively
\neither to the general governments or to the regional governments Wheare, “Federal
\nGovernment”, 4th ed., p. 55.\n<\/p>\n
1655. The Constitution (First Amendment) Act amended the Fundamental Rights under
\nArticles 15 and 19 in such a way as to abridge them. The speech of Pandit Jawaharlal
\nNehru in moving the amendment and those of others who were responsible for drafting
\nthe Constitution make it clear that they never entertained any doubt as to the amendability
\nof the Fundamental Rights in such a way as to abridge them. Strong opponents of the
\namendments like S.P. Mukherjee, never made even the whisper of a suggestion in their
\nspeeches that Fundamental Rights were not amendable in such a way as to abridge them.
\nContemporaneous practical exposition is a valuable aid to the meaning of a provision of
\nthe Constitution or a statute See McPherson v. Blacker, 146 U.S.I., 27.
\n1656. Mr. Palkhivala also relied upon the speech of Dr. Ambedkar made on September
\n17, 1949, in the Constituent Assembly to show that Fundamental Rights could not be
\ntaken away or abridged by an amendment of the Constitution.\n<\/p>\n
1657. The question whether speeches made in the Constituent Assembly are admissible
\nto ascertain the purpose behind a provision of the Constitution is not free from doubt. In
\nA.K. Gopalan v. The State of Madras<\/a> (1950) S.C.R. 88 Kania, C.J. said that while it is
\nnot proper to take into consideration the individual opinions of members of Parliament or
\nConvention to construe the meaning of a particular clause when a question is raised
\nwhether a certain phrase or expression was up for consideration at all or not, a reference
\nto the debates may be permitted. In the same case, Patanjali Sastri, J. said that in
\nconstruing the provisions of an Act, speeches made in the course of the debates on a bill
\ncould at best be indicative of the subjective intent of the speaker but they could not reflect
\nthe inarticulate mental process lying behind the majority vote which carried the bill.
\nMukherjea, J. said that in construing a provision in the Constitution it is better to leave
\nout of account the debates in the Constituent Assembly, but a higher value may be placed
\non the report of the Drafting Committee. In State of Travancore-Cochin and Ors. v. The
\nBombay Co. Ltd., etc. (1952) S.C.R. 1112 Patanjali Sastri, C.J. delivering the judgment
\nof the Court said that speeches made by the members of the Constituent Assembly in the
\ncourse of the debates on the draft Constitution cannot be used as aids for interpreting the
\nConstitution. In Golaknath Case [1967] 2 S.C.R. 762, 791 Subba Rao, C.J. referred to the
\nspeech of Pandit Jawaharlal Nehru made on April 30, 1947, in proposing the adoption of
\nthe interim report on Fundamental Rights and that of Dr. Ambedkar made on September
\n18, 1949, on the amendment proposed by Mr. Kamath to Article 304 of the draft
\nConstitution (present Article 368) and observed that the speeches were referred to, not for
\ninterpreting the provisions of Article 368 but to show the transcendental character of
\nFundamental Rights. I am not clear whether the speech of Dr. Ambedkar throws any light
\non the transcendental character of Fundamental Rights. That speech, if it is useful for any
\npurpose, is useful only to show that Fundamental Rights cannot be amended. In the Privy
\nPurse Case Madhav Rao v. Union of India [1971] 3 S.C.R. 983 Shah, J. referred to the
\nspeech of Sardar Vallabhbhai Patel for understanding the purpose of Article 291 of the
\nConstitution. Speeches made by members of the Constituent Assembly were quoted in
\nprofusion in the Union of India v. Harbhajan Singh Dhillon<\/a> 2 S.C.C. 779 both in the
\nmajority as well as in the minority judgments. In the majority judgment it was said that
\nthey were glad to find that the construction placed by them on the scope of entry 91 in the
\ndraft Constitution corresponding to the present entry 97 of List I of the Seventh Schedule
\nagreed with the view expressed in the speeches referred to by them. The minority referred
\nto the speeches made by various members to show that their construction was the correct
\none. Cooley said : “When a question of Federal Constitutional law is involved, the
\npurpose of the Constitution, and the object to be accomplished by any particular grant of
\npower, are often most important guides in reaching the real intent; and the debates in the
\nConstitutional Convention, the discussions in the Federalist, and in the conventions of the
\nStates, are often referred to as throwing important light on clauses in the Constitution
\nwhich seem blind or of ambiguous import” See Cooley on Constitutional Law, 4th ed.
\n(1931), pp. 195-196. Julius Stone, the Australian jurist, has expressed the opinion that in
\nprinciple the Court should be free to inform itself concerning the social context of the
\nproblems involved from all reliable sources and that it is difficult to see in principle why
\nBritish courts should exclude rigidly all recourse to the debates attending the legislative
\nprocess. He asked the question on what basis is it explicable that lawyers can regard with
\nequanimity cases in which judges may pronounce ex-cathedra that so and so clearly could
\nnot have been in the legislators’ minds when the parliamentary debates ready at hand
\nmight show that that was precisely what was in their minds See Julius Stone, “Legal
\nSystem and Lawyer’s Reasoning”, p. 351; See also H.C.L. Merillat, “The Sound Proof
\nRoom : A Matter of Interpretation” (1967) 9, Journal of the Indian Law Institute, p. 521.
\n1658. Logically, there is no reason why we should exclude altogether the speeches made
\nin the Constituent Assembly by individual members if they throw any light which will
\nresolve latent ambiguity in a provision of the Constitution. Chief Justice Marshall struck
\nat the core of the matter when he said : United States v. Fisher, 2 Cranch 358, 386 U.S.\n<\/p>\n
1805<\/span><\/p>\n
Where the mind labours to discover the design of the legislature, it seizes
\neverything from which aid can be derived.\n<\/p>\n
If the purpose of construction is the ascertainment of meaning, nothing that is logically
\nrelevant should, as a matter of theory, be excluded. The rigidity of English Courts in
\ninterpreting language merely by reading it, disregards the fact that enactments are, as it
\nwere, organisms which exist in their environment. It is, of course, difficult to say that
\njudges who profess to exclude from their consideration all extrinsic sources are confined
\npsychologically as they purport to be legally. A judge who deems himself limited to
\nreading the provisions of the Constitution without an awareness of the history of their
\nadoption in it would be taking a mechanical view of the task of construction See
\nFrankfurter “On reading the statute” in “Of Law and Men”, p. 64.
\n1659. If the debates in the Constituent Assembly can be looked into to understand the
\nlegislative history of a provision of the Constitution including its derivation, that is, the
\nvarious steps leading up to and attending its enactment, to ascertain the intention of the
\nmakers of the Constitution, it is difficult to see why the debates are inadmissible to throw
\nlight on the purpose and general intent of the provision. After all, legislative history only
\ntends to reveal the legislative purpose in enacting the provision and thereby sheds light
\nupon legislative intent. It would be drawing an invisible distinction if resort to debates is
\npermitted simply to show the legislative history and the same is not allowed to show the
\nlegislative intent in case of latent ambiguity in the provision. Mr. W. Anderson said :
\n“The nearer men can get to knowing what was intended the better. Indeed the search for
\nintention is justified as a search for the meanings that the framers had in mind for the
\nwords used. But it is a search that must be undertaken in humility and with an awareness
\nof its great difficulties” See “The Intention of the Framers” : A Note on the Constitutional
\nInterpretation, American Political Science Review, Vol. XLIX, June, 1955. That
\nawarness must make one scrutinize the solemnity of the occasion on which the speech
\nwas made, the purpose for which it was made, the preparation and care with which it was
\nmade and the reputation and scholarship of the person who made it. A painstaking
\ndetailed speech bearing directly on the immediate question might be given the weight of
\nan “encyclical” and would settle the matter one way or the other; but a loose statement
\nmade impromptu in the heat of the debate will not be given a decisive role in decision
\nmaking process. I should have thought that if there was a definitive pronouncement from
\na person like Dr. Ambedkar in the Constituent Assembly, that would have thrown
\nconsiderable light upon the matter in controversy. In the speech relied on by counsel Dr.
\nAmbedkar is reported to have said Constituent Assembly Debates, Vol. IX, p. 1661:
\nWe divide the articles of the Constitution under three categories. The first
\ncategory is the one which consists of articles which can be amended by
\nParliament by a bare majority. The second set of articles are articles which
\nrequire two-thirds majority. If the future Parliament wishes to amend any
\nparticular article which is not mentioned in Part III or Article 304, all that
\nis necessary for them is to have two-thirds majority. Then they can amend
\nit.\n<\/p>\n
Mr. President : Of Members present.\n<\/p>\n
Yes. Now we have no doubt put certain articles in a third category where
\nfor the purposes of amendment the mechanism is somewhat different or
\ndouble It requires two-thirds majority plus ratification by the States”.
\nThere is scope for doubt whether the speech has been correctly reported. That apart, from
\nthe speech as reported, it would seem that according to Dr. Ambedkar, an amendment of
\nthe articles mentioned in Part III and Article 368 requires two-thirds majority plus
\nratification by the States. He seems to have assumed that the provisions of Part III would
\nalso fall within the proviso to Article 368 but he never said that Part III was not
\namendable. That it was his view that all the articles could be amended is clear from his
\nother speeches in the Constituent Assembly. He said on November 4, 1948 Constituent
\nAssembly Debates, Vol. VII, p. 43:\n<\/p>\n
…It is only for amendments of specific matters-and they are only few, that
\nthe ratification of the State legislatures is required. All other articles of the
\nConstitution are left to be amended by Parliament. The only limitation is
\nthat it shall be done by a majority of not less than two-thirds of the
\nmembers of each House present and voting and a majority of the total
\nmembership of each House….\n<\/p>\n
Dr. Ambedkar, speaking on draft Article 25 (present Article 32) on December 9, 1948,
\nstressed its importance in the following words Constituent Assembly Debates, Vol. VII,
\np. 953:\n<\/p>\n
If I was asked to name any particular article in this Constitution as the
\nmost important-an article without which this Constitution would be a
\nnullity-I could not refer to any other article except, this one. It is the very
\nsoul of the Constitution and the very heart of it and I am glad that the
\nHouse has realized its importance.\n<\/p>\n
1660. But having said that, he proceeded:\n<\/p>\n
…The Constitution has invested the Supreme Court with these rights and
\nthese writs could not be taken away unless and until the Constitution itself
\nis amended by means left open to the Legislature (emphasis added).
\nOn November 25, 1949, Dr. Ambedkar refuted the suggestion that Fundamental Rights
\nshould be absolute and unalterable. He said after referring to the view of the Jefferson
\nalready referred to, that the Assembly has not only refrained from putting a seal of
\nfinality and infallibility upon the Constitution by denying to the people the right to amend
\nthe Constitution as in Canada or by making the amendment of the Constitution subject to
\nthe fulfilment of extraordinary terms and conditions as in America or Australia but has
\nprovided a most facile procedure for amending the Constitution Constituent Assembly
\nDebates, Vol. XI, pp. 975-976.\n<\/p>\n
1661. It is difficult to understand why the Constitution-makers did not specifically
\nprovide for an exception in Article 368 if they wanted that the Fundamental Rights
\nshould not be amended in such a way as to take away or abridge them. Article 304 of the
\ndraft Constitution corresponds to Article 368 of the Constitution. Article 305 of the draft
\nConstitution provided:\n<\/p>\n
Article 305 : Reservation of seats for minorities to remain in force for only ten years
\nunless continued in operation by amendment of the
\nConstitution
\nNotwithstanding anything contained in Article 304 of the Constitution, the
\nprovisions of this Constitution relating to the reservation of seats for the
\nMuslims, the Scheduled Castes, the Scheduled Tribes or the Indian
\nChristians either in Parliament or in the legislature of any State for the
\ntime being specified in Part I of the First Schedule shall not be amended
\nduring a period of ten years from the commencement of this Constitution
\nand shall cease to have effect on the expiration of that period unless
\ncontinued in operation by an amendment of the Constitution.\n<\/p>\n
If it had been the intention of the Drafting Committee to exclude Fundamental Rights
\nfrom the purview of the constituent power intended to be conferred by Article 304,
\nfollowing the analogy of Article 305, it could have made an appropriate provision in
\nrespect of the said rights.\n<\/p>\n
1662. In A.K. Gopalan v. State of Madras<\/a> [1950] S.C.R. 88 Kania, C.J. said that Article
\n13 was inserted by way of abundant caution, that even if the article were absent, the result
\nwould have been the same. Mr. Palkhiwala submitted that the view of the learned Chief
\nJustice was wrong, that Article 13 in the context of Article 368 before the 24th Amend
\nment, had a function to play in the scheme of the Constitution, namely, that it stated the
\nauthorities against which the inhibition in Article 13(2) operated, the categories of law to
\nwhich the inhibition applied and the effect of a violation of the inhibition. Whether the
\nlatter part of Article 13(2) was enacted by way of abundant caution or not would depend
\nupon the answer to the question whether the word ‘law’ in that article would include an
\namendment of the Constitution also. If the word ‘law’ would include amendment of the
\nConstitution, it cannot be said that the latter part of the article was redundant. The dictum
\nof Chief Justice Kania is helpful only to show his reading of the meaning of the word
\n‘law’ in the article. Had the learned Chief Justice read the word ‘law’ in the article as
\nincluding an amendment of the Constitution also, he would certainly not have said that
\nthe article was redundant. Sir Ivor Jennings has taken the view that it was quite
\nunnecessary to have enacted Article 13(2), as, even otherwise, under the general doctrine
\nof ultra vires, any law which is repugnant to the provisions of the Constitution, would, to
\nthe extent of the repugnancy, become void and inoperative See Ivor Jennings, “Some
\nCharacteristics of the Indian Constitution”, pp. 38-39.\n<\/p>\n
1663. However, I think that Article 13(2) was necessary for a different purpose, namely,
\nto indicate the extent of the invasion of the fundamental right which would make the
\nimpugned law void. The word ‘abridge’ has a special connotation in the American
\nConstitutional jurisprudence; and, it is only fair to assume that when the Constitution-
\nmakers who were fully aware of the language of the First Amendment to the United
\nStates Constitution, used that expression, they intended to adopt the meaning which that
\nword had acquired there. Every limitation upon a fundamental right would not be an
\nabridgement of it. Whether a specific law operates to abridge a specifically given
\nfundamental right cannot be answered by any dogma, whether of a priori assumption or
\nof mechanical jurisprudence. The Court must arrive at a value judgment as to what it is
\nthat is to be protected from abridgement, and then, it must make a further value judgment
\nas to whether the law impugned really amounts to an abridgement of that right. A textual
\nreading might not always be conclusive. A judge confronted with the question whether a
\nparticular law abridges a Fundamental Right must, in the exercise of the judicial function,
\nadvert, to the moral right embodied in the Fundamental Right and then come to the
\nconclusion whether the law would abridge that right In this process, the Court will have
\nto look to the Directive principles in Part IV to see what exactly is the content of the
\nFundamental Right and whether the law alleged to be in detraction or abridgement of the
\nright is really so. The Court would generally be more astute to protect personal rights
\nthan property rights. In other words, Fundamental Rights relating to personal liberty or
\nfreedom would receive greater protection from the hands of the Court than property
\nrights, as those rights come with a momentum lacking in the case of shifting economic
\narrangements. To put it differently, the type of restriction which would constitute
\nabridgement might be different for personal rights and property rights as illustrated by the
\ndoctrine of preferred freedoms. However, it is unnecessary to pursue the matter further
\nfor the purpose of this case.\n<\/p>\n
1664. Mr. Palkhivala contended that even if the word ‘amendment’ in Article 368 before
\nit was amended is given its widest meaning and the word ‘law’ in Article 13(2) is assumed
\nnot to include an amendment of the Constitution there were and are certain inherent and
\nimplied limitations upon the power of amendment flowing from three basic features
\nwhich must be present in the Constitution of every republic. According to counsel, these
\nlimitations flow from the fact that the ultimate legal sovereignty resides in the people;
\nthat Parliament is a creature of the Constitution and not a constituent body and that the
\npower to alter or destroy the essential features of the Constitution belongs only to the
\npeople, the ultimate legal sovereign. Counsel submitted that if Parliament has power to
\nalter or destroy the essential features of the Constitution, it would cease to be a creature
\nof the Constitution and would become its master; that no constituted body like the
\nAmending Body can radically change the Constitution in such a way as to damage or
\ndestroy the basic Constitutional structure, as the basic structure was decided upon by the
\npeople, in the exercise of their constituent revolutionary power. Counsel also argued that
\nit is Constitutionally impermissible for one constituent assembly to create a second
\nperpetual constituent assembly above the nation with power to alter its essential features
\nand that Fundamental Rights constitute an essential feature of the Constitution.
\n1665. The basic premise of counsel’s argument was that the ultimate legal sovereignty
\nunder the Constitution resides in the people. The preamble to the Constitution of India
\nsays that “We the people of India…adopt, enact and give unto ourselves this
\nConstitution”. Every one knows that historically this is not a fact. The Constitution was
\nframed by an assembly which was elected indirectly on a limited franchise and the
\nassembly did not represent the vast majority of the people of the country. At best it could
\nrepresent only 28.5 per cent of the adult population of the provinces, let alone the
\npopulation of the Native States See Granville Austin, “The Indian Constitution” (1972),
\np. 10 and Appendix I, pp. 331-332, And who would dare maintain that they alone
\nconstituted the “people” of the country at the time of framing the Constitution? As to who
\nare the people in a Country, see the Chapter “The People” in “Modern Democracies” by
\nBryce, Vol. 1, pp. 161-169 The Constituent Assembly derived its legal competence to
\nframe the Constitution from Section 8(1) of the Indian Independence Act, 1947. The
\nBritish Parliament, by virtue of its legal sovereignty over India, passed the said enactment
\nand invested the Assembly with power to frame the Constitution. Whatever might be the
\nConstitutional result flowing from the doctrine that sovereignty is inalienable and that the
\nIndian Independence Act itself could have been repealed by Parliament, independence,
\nonce granted, cannot be revoked by an erstwhile sovereign; at any rate, such revocation
\nwill not be recognised by the Courts of the country to which independence was granted.
\nWhat makes a transfer of sovereignty binding is simply the possession on the part of the
\ntransferee of power and force sufficient to prevent the transferor from regaining it See V.
\nWilloughby, “Nature of state” (1896), p. 229; also ‘Dicey’s Law of the Constitution 5th
\ned, (1897), pp. 65n and 66n. The assertion by some of the makers of the Constitution that
\nthe Constitution proceeded from the people can only be taken as a rhetorical flourish,
\nprobably to lay its foundation on the more solid basis’ of popular will and to give it an
\nunquestioned supremacy, for, ever since the days of Justinian, it was thought that the
\nultimate legislative power including the power to frame a Constitution resides in the
\npeople, and, therefore, any law or Constitution must mediately or immediately proceed
\nfrom them. “It is customary nowadays to ascribe the legality as well as the supremacy of
\nthe Constitution-the one is, in truth, but the obverse of the other-exclusively to the fact
\nthat, in its own phraseology, it was ‘ordained’ by ‘the people of the United States’. Two
\nideas are thus brought into play. One is the so-called ‘positive’ conception of law as a
\ngeneral expression merely for the particular commands of a human law-giver, as a series
\nof acts of human will; the other is that the highest possible embodiment of human will, is
\n‘the people’. The same two ideas occur in conjunction in the oft-quoted next of Justinian’s
\nInstitutes : “Whatever has pleased the prince has the force of law, since the Roman
\npeople by the lex regia enacted concerning his imperium have yielded up to him all their
\npower and authority. The sole difference between the Constitution of the United States
\nand the imperial legislation justified in this famous text is that the former is assumed to
\nhave proceeded immediately from the people, while the latter proceeded from a like
\nsource only mediately” See Edward Gorwin, ‘The Higher Law’ Background of American
\nConstitutional Law”, pp. 3-4.\n<\/p>\n
1666. It is said that the assertion in the preamble that it was the people who enacted the
\nConstitution raises an incontravertible presumption and a Court is precluded from finding
\nout the truth. There is a similar preamble to the Constitution of the U.S.A. Yet, when
\nChief Justice Marshall was called upon to decide the question whether that Constitution
\nproceeded from the people, he did not seek shelter under the preamble by asserting that
\nthe Court is concluded by the recital therein, but took pains to demonstrate by referring to
\nhistorical facts that the Constitution was ratified by the people in the State conventions
\nand, therefore, in form and substance, it proceeded from the people themselves See
\nMcCulloch v. Maryland, 4 Wheaton 316 (1819). It does not follow that because the
\npeople of India did not frame the Constitution or ratified it the Constitution has no legal
\nvalidity. The validity of a Constitution is one thing; the source from which it proceeds is
\na different one. Apart from its legal validity derived from the Indian Independence Act,
\nits norms have become efficacious and a Court which is a creature of the Constitution
\nwill not entertain a plea of its invalidity. If the legal source for the validity of the
\nConstitution is not that it was framed by the people, the amending provision has to be
\nconstrued on its own language, without reference to any extraneous consideration as to
\nwhether the people did or did not delegate all their constituent power to the Amending
\nBody or that the people reserved to themselves the Fundamental Rights.
\n1667. Let me, however, indulge in the legal fiction and assume, as the preamble has done,
\nthat it was the people who framed the Constitution. What follows? Could it be said that,
\nafter the Constitution was framed, the people still retain and can exercise their sovereign
\nconstituent power to amend or modify the basic structure or the essential features of the
\nConstitution by virtue of their legal sovereignty?\n<\/p>\n
1668. According to Austin, a person or body is said to have legal sovereignty, when he or
\nit has unlimited law-making power and that there is no person or body superior to him or
\nit. Perhaps, it would be correct to say that the possession of unlimited law-making power
\nis the criterion of legal sovereignty in a State, for, it is difficult to see how there can be
\nany superior to a person or group that can make laws on all subjects since that person or
\ngroup would pass a law abolishing the powers of the supposed superior. The location of
\nsovereignty in a quasi-federal Constitution like ours is a most difficult task for any lawyer
\nand I shall not attempt it. Many writers take the view that sovereignty in the Austinian
\nsense does not exist in any State See W.J. Ress, “Theory of Sovereignty Re-stated” in the
\nbook “In Defense of Sovereignty” by W.J. Stankiewicz, p. 209 and that, at any rate, in a
\nFederal State, the concept of sovereignty in that sense is incapable of being applied See
\nSalmond’s Jurisprudence, 7th ed., p. 531. This Court has said in State of West Bengal v.
\nUnion of India<\/a> [1964] 1 S.C.R. 371, 396-398 that the “legal theory on which the
\nConstitution was based was the withdrawal or resumption of all the powers of
\nsovereignty into the people of this country” and that the”…Legal sovereignty of the Indian
\nnation is vested in the people of India, who, as stated by the preamble, have solemnly
\nresolved to constitute India into a Sovereign Democratic Republic….” I am not quite sure
\nof the validity of the assumption implicit in this dictum. The Supreme Court: of U.S.A.
\nhas held that sovereignty vests in the people See Chisholm v. Georgia (1973) 2 Dallas
\n419, 470-471. The same view has been taken by writers like Jameson, Willis, Wilson and
\nothers, But it is difficult to understand how the unorganised mass of the people can
\nlegally be sovereign. In no country, except perhaps in a direct democracy, can the people
\nen masse be called legally sovereign. This is only to put more explicitly what Austin
\nmeant when he said that political power must be in a determinate person or body of
\npersons, for, the people at, large, the whole people, as distinct horn particular person or
\npersons, are incapable of concerted action and hence, of exercising political power and
\ntherefore of legal supremacy See “From John Austin to John C. Hurd” by Irving B.
\nRichman in “Harward Law Review, Vol. 14, p. 364. “When the purported sovereign is
\nanyone but a single actual person, the designation of him must include the statement of
\nrules for the ascertainment of his will, and these rules, since their observance is a
\ncondition of the validity of his legislation, are Rules of law logically prior to him…. It is
\nnot impossible to ascertain the will of an individual without the aid of rules: he may be
\npresumed to mean what he says, and he cannot say more than one thing at a time. But the
\nextraction of a precise expression of will from a multiplicity of human beings is, despite
\nall the realists say, an artificial process and one which cannot be accomplished without
\narbitrary rules. It is, therefore, an incomplete statement to say that in a state such and
\nsuch an assembly of human beings is sovereign. It can only be sovereign when acting in a
\ncertain way prescribed by law. At least some rudimentary manner and form is demanded
\nof it : the simultaneous incoherent cry of a rabble, small or large, cannot be law, for it is
\nunintelligible” See Latham, “What is an Act of Parliament” (1939) King’s Counsel, p.\n<\/p>\n
152. While it is true that the sovereign cannot act otherwise than in compliance with law,
\nit is equally true that it creates the law in accordance with which it is to act See Orfield,
\n“The Amending of the Federal Constitution”, p. 155. And what is the provision in the
\nConstitution or the law for the people to act as legal sovereign or as regards the manner
\nand form when they act as legal sovereign?\n<\/p>\n
1669. The supremacy enjoyed by the Constitution has led some to think that the
\ndocument must be regarded as sovereign. They talk about the government of laws and not
\nof men; but sovereignty, by definition, must be vested in a person or body of persons.
\nThe Constitution itself is incapable of action. Willoughby has said that sovereignty of the
\npeople, popular sovereignty and national sovereignty cannot accurately be held to mean
\nthat, under an established government, the sovereignty remains in the people. It may
\nmean, however, that the Constitutional jurisprudence of the State to which it is applied is
\npredicated upon the principle that no political or individual or organ of the government is
\nto be regarded as the source whence, by delegation, all other public powers are derived,
\nbut that, upon the contrary, all legal authority finds its original source in the whole citizen
\nbody or in an electorate representing the governed See Willoughby, “Fundamental
\nConcepts of Public Law”, pp. 99-100. Probably, if sovereignty is dropped as a legal term
\nand viewed as a term of political science, the view of the Supreme Court of the U.S.A.
\nand the writers who maintain that the people are sovereign might be correct. No concept
\nhas raised so many conflicting issues involving jurists and political theorists in so
\ndesperate a maze as the genuine and proper meaning of sovereignty.
\n1670. Seeing, however, that the people have no Constitutional or legal power assigned to
\nthem under the Constitution and that by virtue of their political supremacy they can
\nunmake the Constitution only by a method not sanctioned by the juridical order, namely,
\nrevolution, it is difficult to agree with the proposition of counsel that the legal
\nsovereignty under the Constitution resides in the people, or, that as ultimate legal
\nsovereign the people can Constitutionally change the basic structure of the Constitution
\neven when the Constitution provides for a specific mechanism for its amendment. In the
\nlast, analysis, perhape, it is right to say that if sovereignty is said to exist in any sense at
\nall, it must exist in the Amending Body, for, as Willoughby has said : “In all those cases
\nin which owing to the distribution of governing power there is doubt as to the political
\nbody in which sovereignty rests, the test to be applied is, the determination of which
\nauthority has, in the last instance the legal power to determine its own competence as
\nwell as that of Ors. Willoughby, “The Nature of the State” (1928), p. 197. In Germany,
\nthe publicists have developed a similar theory known as the “kompetenz kompetenz
\ntheory” See Merriam, “History of the Theory of Sovereignty since Rosseau” (1900), 190-\n<\/p>\n
196.
\n1671. This, however, does not mean that the people have no right to frame the
\nConstitution by which they would be governed. Of the people as well as the body politic,
\nall that one can say is, not that they are sovereign, but that they have the natural right to
\nfull autonomy or to self-government. The people exercise this right when they establish a
\nConstitution see Jacques Maritain, “Man and the State”, p. 25. And, under our
\nConstitution, the people have delegated the power to amend the instrument which they
\ncreated to the Amending Body.\n<\/p>\n
1672. When a person holds a material good, it cannot be owned by another. He cannot
\ngive it to another without his losing possession of it and there can only be a question of
\ntransfer of ownership or a donation. But, when it is a question of a moral or spiritual
\nquality such as a right or power, one can invest another with a right or power without
\nlosing possession of it, if that, man receives it in a vicarious manner, as a vicar of the man
\nwho transferred it. The people are possessed of their right to govern themselves in an
\ninherent and permanent manner, their representatives are invested with power which
\nexists in the people, but in a vicarious manner see Jacques Maritain, “Man and the State”,
\npp. 134-135.\n<\/p>\n
1673. Delegation does not imply a parting with powers of one who grants the delegation
\nbut points rather to the conferring of an authority to do things which otherwise that
\nperson would have to do himself. It does not mean that the delegating person parts with
\nthe power in such a way as to denude himself of his rights See Huth v. Clarke (1890) 25
\nQ.B.D. 391, 395: also John Willis, “Delegates non potest delegare”, 21 Candian Bar
\nReview, p. 257.\n<\/p>\n
1674. I will assume that the people, by designating their representatives and by
\ntransmitting to them the power to amend the Constitution, did not lose or give up
\npossession of their inherent, constituent power. (There was great controversy among the
\ncivilians in the Middle Ages whether, after the Roman people had Transferred their
\nauthority to legislate to the emperor, they still retained it or could reclaim it See Carlyle,
\n“A History of Medieval Political Theory in the West” Vol. VI, pp. 514-515. There is
\nalways a distinction between the possession of a right or power and the exercise of it. It
\nwas in the exercise of the constituent power that the people framed the Constitution and
\ninvested the Amending Body with the power to amend the very instrument they created
\nwith a super-added power to amend that very power. The instrument they created, by
\nnecessary implication, limits the further exercise of the power by them, though not the
\npossession of it. The Constitution, when it exists, is supreme over the people and as the
\npeople have voluntarily excluded themselves from any direct or immediate participation
\nin the process of making amendment to it, and have directly placed that power in their
\nrepresentatives without reservation, it is difficult to understand how the people can
\njuridically resume the power to continue to exercise it See Dodge v. Woolsey (1856) 18
\nHow. 331, 348. It would be absurd to think that there can be two bodies for doing the
\nsame thing under the Constitution. It would be most incongruous to incorporate in the
\nConstitution a provision for its amendment, if the constituent power to amend can also be
\nexercised at the same time by the mass of the people, apart from the machinery provided
\nfor the amendment. In other words, the people having delegated the power of
\namendment, that power cannot be exercised in any way other than that perscribed nor by
\nany instrumentality other than that designated for that purpose by the Constitution. There
\nare many Constitutions which provide for active participation of the people in the
\nmechanism for amendment either by way of initiative or referendum as in Switzerland,
\nAustralia and Eire. But, in our Constitution, there is no provision for any such popular
\ndevice and the power of amendment is vested only in the Amending Body.
\n1675. It is said that “it is within the power of the people who made the Constitution to un-
\nmake it, that it is the creature of their own will and exists only by their will See Cohens v.
\nVirginia 6 Wheat (19 U.S.) 264, 381. This dictum has no direct relevancy on the question
\nof the power of the people to amend the Constitution. It only echoes the philosophy of
\nJohn Locke that people have the political right to revolution in certain circumstances and
\nto frame a Constitution in the exercise of their revolutionary constituent power.
\n1676. When the French political philosophers said that the nation alone possesses the
\nconstituent power, and an authority set up by a Constitution created by the nation has no
\nconstituent power apart from a power to amend that instrument within the lines originally
\nadopted by the people, what is meant is that the nation cannot part with the constituent
\npower, but only the power to amend the Constitution within the original scheme of the
\nConstitution in minor details. Some jurists refer to these two powers, namely, the
\n“constituent power” and the “amending power” as distinct. According to Carl J. Friedrich,
\nthe constituent power is the power which seeks to establish a Constitution which, in the
\nexact sense, is to be understood the de-jacto residuary power of a not inconsiderable part
\nof the community to change or replace an established order by a new Constitution. The
\nconstituent power is the power exercised in establishing a Constitution, that is the
\nfundamental decision on revolutionary measures for the organisation and limitation of a
\nnew government. From this constituent power must be distinguished the amending power
\nwhich changes an existing Constitution in form provided by the Constitution itself, for
\nthe amending power is itself a constituted authority. And he further points out that in
\nFrench Constitutional Law the expression pouvoir constituant is often used to describe
\nthe ‘amending authority’ as well as the constituent power, but the expression constituent
\npower used by him is not identical with the pouvoir constituant of the French
\nConstitutional Law See Carl J. Friedrich, “Constitutional Government and Politics”
\n(1937), pp. 113, 118, 162 & 521. It is, however, unnecessary to enter this arid tract of
\nwhat Lincoln called ‘pernicious abstraction’ where no green things grow, or resolve the
\nmetaphysical niceties, for under our Constitution, there is no scope for the constituent
\npower of amendment being exercised by the people after they have delegated power of
\namendment to the Amending Body. To what purpose did that instrument give the
\nAmending Body the power to amend the amending power itself, unless it be to confer
\nplenary power upon the Amending Body to amend all or any of the provisions of the
\nConstitution? It is no doubt true that some German thinkers, by way of protest against
\nindiscriminate use of the amending power under the Weimar Constitution of Germany,
\nasserted that the power of amendment is confined to alteration within the Constitutional
\ntext and that it cannot be used to change the basic structure of the Constitution. But, as I
\nsaid, to say that a nation can still exercise unlimited consituent power after having framed
\na Constitution vesting plenary power of amendment under it in a separate body, is only to
\nsay that the people have the political power to change the existing order by means of a
\nrevolution. But this doctrine cannot be advanced to place implied limitations upon the
\namending power provided in a written Constitution.\n<\/p>\n
1677. It is, therefore, only in a revolutionary sense that one can distinguish between
\nconstituent power and amending power. It is based on the assumption that the constituent
\npower cannot be brought within the framework of the Constitution. “To be sure, the
\namending power is set up in the hope of anticipating a revolution by legal change and,
\ntherefore, as an additional restraint upon the existing government. But should the
\namending power fail to work, the constituent power may emerge at the critical point” See
\nCarl J. Friedrich, “Constitutional Government and Democracy” (1950), p. 130. The
\nproposition that an unlimited amending authority cannot make any basic change and that
\nthe basic change can be made only by a revolution is something extras legal that no Court
\ncan countenance it. In other words, speaking in conventional phraseology, the real
\nsovereign, the hundred per cent sovereign-the people-can frame a Constitution, but that
\nsovereign can come into existence thereafter unless otherwise provided, only by
\nrevolution. It exhausts itself by creation of minor and lesser sovereigns who can give any
\ncommand. And, under the Indian Constitution, the original sovereign-the people-created,
\nby the amending clause of the Constitution, a lesser sovereign, almost coextensive in
\npower with itself. This sovereign, the one established by the revolutionary act of the full
\nor complete sovereign has been called by Max Radin the “pro-sovereign”, the holder of
\nthe amending power under the Constitution. The hundred per cent sovereign is
\nestablished only by revolution and he can come into being again only by another
\nrevolution See Max Radin, “Intermittent Sovereign”, 39 Yale Law Journal, 514. As
\nWheare clearly puts it, once the Constitution is enacted, even when it has been submitted
\nto the people for approval, it binds thereafter, not only the institutions which it
\nestablishes, but also the people themselves. They may amend the Constitution, if at all,
\nonly by the method which the Constitution itself provides See Wheare, “Modern
\nConstitutions” (1966), p. 62. This is illustrated also in the case of the sovereign power of
\nthe people to make laws. When once a Constitution is framed and the power of legislation
\nwhich appertains to the people is transferred or delegated to an organ constituted under
\nthe Constitution, the people cannot thereafter exercise that power. “The legal assumption
\nthat sovereignty is ultimately vested in the people affords no legal basis, for the direct
\nexercise by the people of any sovereign power, whose direct exercise by them has not
\nbeen expressly or impliedly reserved. Thus the people possess the power of legislating
\ndirectly only if their Constitution so provides” See Rottschaefer on Constitutional Law
\n(1939), p. 8
\n1678. It is said that although the Constitution does not provide for participation of the
\npeople in the process of amendment, there is nothing in the Constitution which prohibits
\nthe passing of a law under the residuary entry 97 of List I of the Seventh Schedule for
\nconvoking a constituent assembly for ascertaining the will of the people in the matter of
\namendment of Fundamental Rights. Hoar says; “The whole people in their sovereign
\ncapacity, acting through the forms of law at a regular election, may do what they will
\nwith their own frame of government, even though that frame of government does not
\nexpressly permit such action, and even though the frame of government attempts to
\nprohibit such action” Hoar “Constitutional Convention : Their Nature, Power and
\nLimitations”, p. 115. Again, he says: “Thus we come back to the fact that all coventions
\nare valid if called by the people speaking through the electorate at a regular election. This
\nis true regardless of whether the Constitution attempts to prohibit or authorize them, or is
\nmerely silent on the subject Their validity rests not upon Constitutional provisions, nor
\nupon legislative act, but upon the fundamental sovereignty of the people themselves”
\nHoar, “Constitutional Convention : Their Nature, Power and Limitations”, p. 52. As to
\nthis I think the answer given by Willoughby is sufficient. He said: “The position has been
\nquite consistently taken that Constitutional amendments or new Constitutions adopted in
\nmodes not provided for by the existing Constitutions cannot be recognized as legally
\nvalid unless they have received the formal approval of the old existing government. Thus,
\nin the case of the State of Rhode Island, the old Constitution of which contained no
\nprovision for its own amendment, the President of the United States refused to recognize
\nde jure a government established under a new Constitution which, without the approval
\nof the old government, had been drawn up and adopted by a majority of the adult male
\ncitizens of that State. But, when, somewhat later, a new Constitution was adopted in
\naccordance with provisions which the old government laid down and approved, it was,
\nand has since been held a valid instrument both by the people of the State and by the
\nNational Government of the United States” Willoughby, “The Fundamental Concepts of
\nPublic Law”, p. 96.\n<\/p>\n
1679. I think it might be open to the Amending Body to amend Article 368 itself and
\nprovide for referendum or any other method for ascertaining the will of the people in the
\nmatter of amendment of Fundamental Rights or any other provision of the Constitution. If
\nthe basic and essential features of the Constitution can be changed only by the people,
\nand not by a constituted authority like the Amending Body, was it open to the Amending
\nBody, or, would it be open to the Amending Body today to amend Article 368 in such a
\nway as to invest the people with that power to be exercised by referendum or any other
\npopular device ? If counsel for the petitioner is right in his submission that the power to
\namend the amending power is limited, this cannot be done, for the Constitution would
\nlose its identity by making such a radical change in the Constitution of the Amending
\nBody, and, therefore, there would be implied limitation upon the power to amend the
\namending power in such a way as to change the locus of the power to amend from the
\nAmending Body as constituted to any other body including the people. The result is that
\nex-hypothesi, under Article 368 there was, or is, no power to amend the Fundamental
\nRights and the other essential or basic features in such a way as to destroy or damage
\ntheir essence or core. Nor can the article be amended in such a way as to invest the
\npeople-the legal sovereign according to counsel for the petitioner-with power to do it.
\nThis seems to me to be an impossible position.\n<\/p>\n
1680. Counsel for the petitioner submitted that the preamble to the Constitution would
\noperate as an implied limitation upon the power of amendment, that the preamble sets out
\nthe great objectives of the people in establishing the Constitution, that it envisages a
\nsovereign democratic republic with justice, social, economic and political, liberty of
\nthought, belief and expression, equality of status and opportunity and fraternity as its
\nfulcrums and that no succeeding generation can amend the provisions of the Constitution
\nin such a way as to radically alter or modify the basic features of that form of government
\nor the great objectives of the people in establishing the Constitution. Counsel said that the
\npreamble cannot be amended as preamble is not a part of the Constitution, and so, no
\namendment can be made in any provision of the Constitution which would destroy or
\ndamage the basic form of government or the great objectives. The proceedings in the
\nConstitutent Assembly make it clear that the preamble was put to vote by a motion which
\nstated that the “preamble stands part of the Constitution” and the motion was adopted See
\nthe proceedings of the Constituent Assembly dated October 17, 1949, Constituent
\nAssembly Debates, Vol. X, p. 429. Article 394 of the Constitution would show that the
\npreamble, being a part of the provisions of the Constitution, came into operation on the
\n26th of January, 1950, not having been explicitly stated in the article that it came into
\nforce earlier. And there seems to be no valid reason why the preamble, being a part of the
\nConstitution, cannot be amended.\n<\/p>\n
1681. A preamble, as Dr. Wynes said, represents, at the most only an intention which an
\nAct seeks to effect” and it is a recital of a present intention See Wynes, “Legislative,
\nExecutive and Judicial Powers in Australia”, (4th ed., p. 506). In the Berubari Case
\n[1960] 3 S.C.R. 250, 281-282 it was argued that the preamble to the Constitution clearly
\npostulates that like the democratic republican form of government, the entire territory of
\nIndia is beyond the reach of Parliament and cannot be affected either by ordinary
\nlegislation or even by Constitutional amendment, but the Court said: “it is not easy to
\naccept the assumption that the first part of the preamble postulates a very serious
\nlimitation on one of the very important attributes of sovereignty itself”. This case directly
\nnegatived any limitation of what is generally regarded as a necessary and essential
\nattribute of sovereignty on the basis of the objectives enshrined in the preamble.
\n1682. Story’s view of the function of the preamble, that it is a key to open the mind of the
\nmakers, as to the mischiefs which are to be remedied and the objects which are to be
\naccomplished by the provisions of the Act or a Constitution is not in dispute. There is
\nalso no dispute that a preamble cannot confer any power per se or enlarge the limit of any
\npower expressly given nor can it be the source of implied power. Nor is it necessary to
\njoin issue on the proposition that in case of ambiguity of the enacting part, an
\nunambiguous preamble may furnish aid to the interpretation of the enacting part.
\n1683. The broad concepts of justice, social, economic and political, equality and liberty
\nthrown large upon the canvas of the preamble aseternal verities are mere moral
\nadjurations with only that content which each generation must pour into them a new in
\nthe light of its own experience. “An independent judiciary cannot seek to fill them from
\nits own bosom as, if it were to do so, in the end it will cease to be independent. “And its
\nindependence will be well lost, for that bosom is not ample enough for the hopes and
\nfears of all sorts and conditions of men, nor will its answers be theirs. It must be content
\nto stand aside from these fateful battles as to what these concepts mean and leave it to the
\nrepresentatives of the people. See Learned Hand, “The Spirit of Liberty”, p. 125.
\n1684. To Hans Kelsen, justice is an irrational ideal, and regarded from the point of
\nrational cognition, he thinks there are only interests and hence conflict of interest. Their
\nsolution, according to him, can be brought about by an Order that satisfies one interest at
\nthe expense of the other or seeks to achieve a compromise between opposing interests
\nSee Kelsen, “General Theory of Law and State” (1946), p. 13. Allen said that the term
\n“social justice” has no definite content that it means different things to different persons.
\nAllen, “Aspects of Justice”, p. 31. Of liberty, Abraham Lincoln said, that the world never
\nhas had a good definition of it. The concept of equality appears to many to be a myth and
\nthey say that if the concept is to have any meaning in social and economic sphere the
\nState must discriminate in order to make men equal who are otherwise unequal. It does
\nnot follow that because these concepts have no definite contours. They do not exist, for, it
\nis a perennial fallacy to think that because something cannot be cut and dried or nicely
\nweighed or measured, therefore it does not exist See Lord Reid in Ridge v. Baldwin
\n(1964) A.C. 40, 64. But for a country struggling to build up a social order for freeing its
\nteeming millions from the yoke of proverty and destitution, the preamble cannot afford
\nany clue as to the priority value of these concepts inter se. Justice Johnson, with one of
\nhis flashes of insight, called the science of government “the science of experiment” See
\nAnderson v. Dunn 6 Wheat 204, 206 U.S. 1821. And for making the experiment for
\nbuilding up the social order which the dominant opinion of the community desires, these
\nDelphic concepts can offer no solution in respect of their priority value as among
\nthemselves. They offer no guide in what proportion should each of them contribute, or
\nwhich of them should suffer subordination or enjoy dominance in that social order. How
\nthen can one of them operate as implied limitation upon the power of amendment when
\nthe object of the amendment is to give priority value to the other or others?
\n1685. Mr. Palkhivala in elaborating his submission on implied limitations said that in a
\nConstitution like ours there are other essential features besides the Fundamental Rights,
\nnamely, the sovereignty and integrity of India, the people’s right to vote and elect their
\nrepresentatives to Parliament or State legislatures, the republican form of government, the
\nsecular State, free and independent judiciary, dual structure of the Union, separation of
\nthe executive, legislative and judicial powers, and so on, and for changing these essential
\nfeatures, the Parliament being a constituted authority, has no power.
\n1686. Whenever the question of implied limitation upon the power of amendment was
\nraised in the U.S.A. the Supreme Court has not countenanced the contention,
\n1687. In Leser v. Garnett 258 U.S. 130 the U.S. Supreme Court upheld the validity of the
\n19th Amendment, rejecting the contention that the power of amendment conferred by the
\nfederal Constitution did not extend to that amendment because of its character Emphasis
\nadded as so great an addition to the electorate, if made without the State’s consent,
\ndestroys its autonomy as a political body Emphasis added. In U.S. v. Sprague 282 U.S.
\n716, the Supreme Court rejected the contention that an amendment, conferring on the
\nUnited States, power over individuals, should be ratified in conventions instead of by
\nState Legislatures. The argument before the Court was that although Congress has
\nabsolute discretion to choose the one or the other mode of ratification, there was an
\nimplied limitation upon that discretion when rights of individuals would be directly
\naffected and that in such a case the amendment must be ratified by convention. The Court
\nsaid that there was no limitation upon the absolute discretion of the Congress to have the
\namendment ratified either by conventions or State legislatures. In, the National
\nProhibition Cases See Rhode Island v. Palmer 253 U.S. 350 which upheld the validity of
\nthe 18th Amendment to the United States Constitution, the Supreme Court brushed aside
\nthe argument that there are implied limitations upon the power of amendment. Although
\nthe majority judgment gave no reasons for its conclusion, it is permissible to look at the
\nelaborate briefs filed by counsel in the several cases and oral arguments in order to
\nunderstand what was argued and what was decided See U.S. v. Sprague 282, U.S. 716,
\n733 The arguments advanced in National Prohibition Cafes before the Supreme Court
\nwere that an amendment is an alteration or improvement of that which is already
\ncontained in the Constitution, that the Amendment was really in the nature of a
\nlegislation acting directly upon the rights of individual, that since the Constitution
\ncontemplated an indestructible Union of States, any attempt to change the fundamental
\nbasis of the Union was beyond the power delegated to the amending body by Article V
\nand that the Amendment invaded the police power which inheres in the State for
\nprotection of health, safety and morals of their inhabitants. The only inference to be
\ndrawn from the Court upholding the validity of the Amendment is that the Court did not
\ncountenance any of the arguments advanced in the case.\n<\/p>\n
1688. The result of the National Prohibition Cases See Rhode Island v. Palmer 253 U.S.
\n350 seems to be that there is no limit to the power to amend the Constitution except that a
\nState may not be deprived of its equal suffrage in the Senate. This means that by action of
\ntwo-third of both Houses of Congress and of the legislatures in three-fourth of the States,
\nall the powers of the national, government could be surrendered to the State and all the
\nreserved powers of the States could be transferred to the Federal Government See
\nBurdick, “The Law of the American Constitution”, pp. 44-49.\n<\/p>\n
1689. Dodd, speaking about the effect of the decision of the Supreme Court in National
\nProhibition Cases See Rhode Island v. Palmer 253 U.S. 350 said that the Court has
\nnecessarily rejected substantially all of the arguments presented in favour of the implied
\nlimitations upon the amending power, although this statement does not necessarily go to
\nthe extent of denying all limitation other than those clearly expressed in the
\nConstitutional language itself See 30 Yale Law Journal 329.\n<\/p>\n
Article Five of Constitution prohibits any amendment by which any State
\n“without its consent shall be deprived of its equal suffrage in the Senate”.
\nBeyond this there appears to be no limit to the power of amendment. This,
\nat any rate is the result of the decision in the so-called National Prohibition
\nCases” See Thomas M. Colley, “The General Principles of Constitutional
\nLaw in the U.S.A.”, 4th ed., pp. 46-47.\n<\/p>\n
1690. In Schneiderman v. U.S. 320 U.S. 118, 137-145 Justice Murphy, after referring to
\nNational Prohibition Cases said that Article V contains procedural provisions for
\nConstitutional change by amendment without any present limitation whatsoever except
\nthat relating to equal suffrage in the Senate.\n<\/p>\n
1691. In U.S. v. Dennis 183 Federal Reporter 2d., 201 Learned Hand was of the opinion
\nthat any amendment to Constitution passed in conformity with the provision in
\nConstitution relating to amendments is as valid as though the amendment had been
\noriginally incorporated in it, subject to the exception that no State shall be denied its
\nequal suffrage in the Senate.\n<\/p>\n
1692. The latest authority is the obiter dictum or Douglas, J. for the majority of the
\nSupreme Court in Whitehill v. Elkins (1967) 389 U.S. 54, 57:\n<\/p>\n
If the Federal Constitution is our guide, a person who might wish to “alter”
\nour form of government may not be cast into the outer darkness. For the
\nConstitution prescribes the method of ‘alteration’ by the amending process
\nin Article V; and while the procedure for amending it is restricted, there is
\nno restraint on the kind of amendment that may be offered.\n<\/p>\n
1693. Perceptive writers on the Constitution of the U.S.A. have also taken the view that
\nthere are no implied limitations whatever upon the power of amendment, that an
\namendment can change the dual form of government or the Bill of Rights and that the
\nframers of the Constitution did not intend to make an unalterable framework of
\nGovernment in which only the minor details could be changed by amendment See Willis,
\n“Constitutional Law” (1936), pp. 123-124; Orfield, “The Amending of the Federal
\nConstitution” (1942), p. 99; Livingstone, “Federalism and Constitutional Change” (1956),
\npp. 240-241; Rottschaefer, “Constitutional Law”, pp. 8-9; John W. Burgess, “Political
\nScience and Comparative Constitutional Law”, Vol. I, p. 153; Colley, “Constitutional
\nLimitations”, pp. 41-43; D.O. McGovney, “Is the Eighteenth Amendment Void Because
\nof Its Contents “, Columbia Law Review, Vol. 20, May 1920 No. 5; W.F. Dodd,
\n“Amending the Federal Constitution”, 30 Yale Law Journal 329; W.W. Willoughby,
\n“Constitutional Law of the United States”, 2nd ed., Vol. 1, 598.
\n1694. In Ryan’s Case [1935] Irish Reports, 170, the Supreme Court of Ireland has
\noccasion to discuss and decide two questions: (1) the meaning to be given to the word
\n‘amendment’ in Article 50 of the Irish Constitution which provided for the amendment of
\nthe Constitution and (2) whether there are any implications to be drawn from the
\nConstitution which would cut down the scope of the amendment which could be made
\nunder Article 50. I have already dealt with the decision in the case with respect to the first
\npoint.\n<\/p>\n
1695. As regards the second point, Kennedy, C.J. was of the opinion that there were
\ncertain implied limitations upon the power of amendment while the other two learned
\njudges held that there were no such limitations. However, it is not necessary to deal with
\nthe suggested implied limitations relied on by the learned Chief Justice in the light of his
\nobservation: “the only argument advanced in support of this position is that the power to
\namend the Constitution gives power to amend the power itself. It certainly does not say
\nso. One would expect (if it were so intended) that the power would express that intention
\nby the insertion of a provision to that effect by some such words as “including
\namendment of this power of amendment”, but no such intention is expressed and there is
\nnothing from which it can be implied”. There might be some justification for the view of
\nKennedy, C.J. that “power of amending a Constitution is something outside and collateral
\nto the Constitution itself” and that unless there is express power to amend the amending
\npower, the amending power cannot be enlarged. Alf Ross, the Scandinavian Jurist, has
\nsaid that in the United States the highest authority is the constituent power constituted by
\nthe rules in Article V of the Constitution. These rules embody the highest ideological
\npresupposition of the American Law system. But they cannot be regarded as enacted by
\nany authority and they cannot be amended by any authority. Any amendment of Article V
\nof the Constitution which, in fact, is carried out, is an a-legal fact and not the creation of
\nlaw by way of procedure that has been instituted Alf Ross, “Law and Justice”, p. 81.
\nNow, whereas Article 50 of the Irish Constitution did not contain any power to amend
\nthat article, proviso (c) of Article 368 makes it clear that Article 368 itself can be
\namended and so, the whole line of the reasoning of Kennedy, C.J. has no relevance for
\nour purpose. It is interesting to note that in Moore v. Attorney General for the Irish State
\n(1935) A.C. 484 where the Constitutional amendment made by the Irish Parliament in
\n1933 (Amendment No. 22) was challenged, Mr. Green conceded before the Privy
\nCouncil that Amendment No. 16 of 1929 (the amendment challenged in Ryan’s Case)
\nwas regular. The validity or otherwise of Amendment No. 16 was vital for the success of
\nhis client’s case and the concession of counsel was, in their Lordship’s view, “rightly”
\nmade.\n<\/p>\n
1696. The decision of the Privy Council in Liyanage v. the Queen (1967) 1 A.C. 259 was
\nrelied on by the petitioner to show that there can be implied limitation upon legislative
\npower. The question for consideration in that case was whether Criminal Law (Special
\nProvisions) Act No. 1 of 1962 passed by Parliament of Ceylon was valid. The Act
\npurported ex-post facto to create new offences and to alter the rules of evidence and the
\ncriminal procedure obtaining under the general law at the time of the commission of the
\noffence and also to impose enhanced punishment. The appellants contended that the Act
\nwas passed to deal with the trial of the persons who partook in the abortive coup in
\nquestion and the arguments before the Privy Council were that the Act of 1962 was
\ncontrary to fundamental principles of justice in that it was directed against individuals,
\nthat it ex-post facto created crimes and their punishments, and that the Act was a
\nlegislative plan to secure the conviction of these individuls and this constituted an
\nusurpation of the judicial power by the legislature.\n<\/p>\n
1697. The Privy Council rejected the contention that the powers of the Ceylon
\nLegislature could be cut down by reference to vague and uncertain expressions like
\nfundamental principles of British Law, and said that although there are no express
\nprovisions in the Ceylon Constitution vesting judicial power in the judiciary, the judicial
\nsystem in Ceylon has been established by the Charter of Justice of 1833, that the change
\nof sovereignty did not produce any change in the functioning of the judicature, that under
\nthe provisions of the Ceylon Constitution there is a broad separation of powers and that,
\ngenerally speaking, the legislature cannot exercise judicial power in spite of the difficulty
\noccasionally felt to tell judicial power from legislative power. Even since the days when
\nJohn Locke wrote his “Second Treatise on Civil Government” See the Chapter, “Of the
\nExtent of Legislative Power.”, it was considered axiomatic that the legislative power does
\nnot include judicial power. And I think what the Privy Council said in effect was that the
\npower to pass a law for peace, order, or good government under Section 29(1) of the
\nConstitution of Ceylon would not take in a power to settle a controversy between Richard
\nDoe and John Doe in respect of Black Acre and label it a law. It is a bit difficult to see
\nhow the doctorine of implied limitation has anything to do with the well understood
\nprinciple that the power to pass law would not include judicial power As to the
\ndistinction between legislative power and judicial power, see the observation of Holmes
\nin Prentis v. Atlantic Coast Line Co. (1908), 211 U.S. 210.\n<\/p>\n
1698. Nor am I able to understand how the doctrine of implied limitations can draw any
\njuice for its sustenance from the fact that President or Governor is bound to act according
\nto the advice of the Council of Ministers, although the expression “aid and advise” taken
\nby itself, would not denote any compulsion upon the President or Governor to act
\naccording to the advice. The expression, when it was transplanted into our Constitution
\nfrom the English soil, had acquired a meaning and we cannot read it divested of that
\nmeaning.\n<\/p>\n
1699. The doctrine of implied limitation against the exercise of a power once ascertained
\nin accordance with the rules of construction was rejected by the Privy Council in Web v.
\nOutrim (1907) A.C. 81 (P.C.).\n<\/p>\n
1700. Counsel for the petitioner relied on certain Canadian Cases to support his
\nproposition that there are implied limitations upon the power of amendment. In Alberta
\nPress Case (1938) 2 D.L.R. 81 Chief Justice Sir Lyman P. Duff said that the British North
\nAmerica Act impliedly prohibits abrogation by provincial legislatures of certain
\nimportant civil liberties. He said that the reason was that the British North America Act
\nrequires the eablishment of one Parliament for Canada and since the term ‘parliament’
\nmeans, when interpreted in the light of the preamble’s reference to “a construction similar
\nin principle to that of the United Kingdom”, a legislative body elected and functioning in
\nan atmosphere of free speech, and that a legislation abrogating freedom of speech in a
\nparticular province would be an interference with the character of the federal parliament,
\nand therefore, ultra vires the provincial legislature. This dictum logically involves a
\nrestriction of the powers of the dominion parliament also as was pointed out by Abbott, J.
\nin the Padlock Law case See Switzman v. Elbling, (1957) 7 D.L.R. 337. In that case he
\nexpressed the view, although it was not necessary so to decide, that parliament itself
\ncould not abrogate the right of discussion and debate since the provisions of the British
\nNorth America Act are as binding on Parliament as on the provincial legislatures.
\n1701. In Saumur v. City Quebec [1953] 4 D.L.R. 641 the preamble of the British North
\nAmerica Act was referred to as supporting the Constitutional requirement of the religious
\nfreedom especially by Rand, J. The basic issue in that case was whether or not the
\nProvinces had legislative authority to enact law in relation to the religious freedom, and
\nwhether the city of Quebec was justified by one of its bye-laws under a Provincial Act
\nfrom prohibiting the distribution of booklets etc. in the streets without the written
\npermission of the Chief of Police. The petitioner, a member of Jehovah’s Witnesses
\ncontended that the right to distribute booklets was guaranteed by the statement in the
\npreamble to the British North America Act and that freedom of religion was secured by
\nthe Constitution of the United Kingdom, and that fundamental principles of that
\nConstitution were made a part of the Canadian Constitution by implication of the
\npreamble and accordingly the impugned Quebac bye-law was null and void. This
\ncontention was rejected by a majority of the Court. Rinfret, C.J.C., Taschereau, J.
\nconcurring, stated that the Privy Council, on several occasions had declared that powers
\ndistributed between Parliament and the Legislatures covered absolutely all the powers
\nwhich Canada could exercise as a political entity. Kerwin, J. stated that the British North
\nAmerica Act effected a complete division of legislative powers. Cartwright, J. (Fauteux,
\nJ. concurring) went even further: He said that there were no rights possessed by the
\ncitizens of Canada which could not be modified by either Parliament or the Legislatures
\nof the Provinces. Rand, J. found some support in the preamble for freedom of speech, but
\ndid not mention freedom of religion in this context. Estey and Locke, JJ. assume that any
\ntopic of internal self-government was withheld from derived from it.
\n1702. It should be noted the view that neither the provinces nor the dominion Parliament
\ncould legislate on civil liberties so as to affect them adversely is contrary to the view of
\nthe Privy Council that no topic of internal self-Government was withheld from Canada.
\n“It would be subversive of the entire scheme and policy of the Act to assume that any
\ntopic of internal self-government was withheld from Canada A.G. Ontario v. A.G.
\nCanada [1912] A.C. 571.\n<\/p>\n
1703. The main objection however to the proposition that the British “North America Act
\ncontains an implied bill of rights is that it is inconsistent with the doctrine of
\nparliamentary supremacy. If the “Constitution is similar in principle to that of Great
\nBritain, it must follow that the legislature is supreme as that is the fundamental law of the
\nBritish Constitution. Therefore no subject would be beyond the legislative competence of
\nboth parliament and provincial legislatures. Whether there are any implied limitations
\nupon the power of parliament or not, it is clear that the dictum of Abbott, J. in Switzman’s
\ncase is based on no high authority as there is nothing in the British North America Act to
\nindicate that civil liberties are beyond the legislative reach of the parliament and the
\nprovincial legislatures. “There was no express guarantee of civil liberties in the British
\nNorth America Act, nothing comparable to the Bill of Rights in the American
\nConstitution or to the Fudamental Rights under our Constitution.
\n1704. It is, however, impossible to see the relevance of these dicta so far as the
\ninterpretation of Article 368 is concerned as none of these cases are cases relating to
\nimplied limitation on the power of amendment of any Constitution. They are cases on the
\nlegislative competence of legislatures to affect civil liberties. The Canadian Bill of Rights
\n1960, makes it clear that parliament of Canada can dispense with the application of the
\nCanadian Bill of Rights in respect of any legislation which it thinks proper. Section 2 of
\nthe Canadian Bill of Rights provides:\n<\/p>\n
2. Every law of Canada shall, unless it is expressly declared by an Act of
\nthe Parliament of Canada that it shall operate notwithstanding the
\nCanadian Bill of Rights, be so construed and applied as not to abrogate,
\nabridge or infringe or to authorize the abrogation, abridgement or
\ninfringement of any of the rights or freedoms herein recognized and
\ndeclared and in particular, no law of Canada shall be construed or applied
\nso as to….\n<\/p>\n
1705. Nor is there anything in the actual decision of the Privy Council in Re the Initiative
\nand Referendum Act to show that there are implied limitations upon the power to amend
\nany provision of the Constitution. The only point decided in that case was that in the
\nabsence of clear and unmistakable language in Section 92(1) of the, British North
\nAmerica Act, 1867, the power of the Crown possessed through a person directly
\nresponsible to the Crown cannot be abrogated. That was because Section 92(1) provides
\nfor an express exception to the power of amendment and that the Act in question, on a
\ntrue construction of it, fell within the exception. The case is an authority only as to the
\ntrue meaning of the expression “excepting as regards the office of Lieutenant Governor”
\nin Section 92(1) of the aforesaid Act. I am not concerned with the obiter dictum of Lord
\nHaldane to the effect that a provincial legislature cannot “create and endow with its own
\ncapacity a new legislative power not created by the Act to which it owes its own
\nexistence”.\n<\/p>\n
1706. However, it is relevant in this context to refer to the comment of Bora Laskin on
\nthe obiter dictum of Lord Haldane in the above case: “This oft-quoted passage remains
\nmore a counsel of caution than a Constitutional limitation”. He then read the above
\npassage and continued : “This proposition has in no way affected the widest kind of
\ndelegation by Parliament and by a provincial legislature to agencies of their own creation
\nor under their control; see Reference re Regulations (Chemicals.) (1943) 1 D.L.R. 248;
\nShannon v. Lower Mainland Dairy Products Board (1938) A.C. 708 [1919] A.C. 935,\n<\/p>\n
945.
\n1707. Reference was made by counsel for the petitioner to Taylor v. Attorney General of
\nQueensland (1) as authority for the proposition that power of amendment can be subject
\nto implied limitation. The questions which the Court had to consider in the case were: (1)
\nWas the Parliamentary Bills Referendum Act of 1908 a valid and effective Act of
\nParliament? and (2) Was there power to abolish the Legislative Concil of Queensland by
\nan Act passed in accordance with the provisions of the Parliamentary Bills Referendum
\nAct of 1908? These Acts did not alter the ‘representative’ character of the Legislature as
\ndefined in Section 1 of the Colonial Laws Validity Act, 1865, nor did they affect the
\nposition of the Crown. Therefore, the question whether the representative character of the
\nLegislature could be changed, or the Crown eliminated did not call for decision. This will
\nbe clear from the observations of Gavan Duffy and Rich, JJ. at p. 477.
\n1708. The judgment of Issacs, J. shows that the opinion expressed by him as regards the
\n“representative” character of the legislature is based on the meaning to be given to the
\nexpression ‘Constitution of such legislature’ on a true construction of Section 5 of the
\nColonial Laws Validity Act. Issacs, J. held that the word ‘legislature’ did not include the
\nCrown. Having reached this conclusion on the express language of the Colonial Laws
\nValidity Act, he made the observation:\n<\/p>\n
When power is given to a colonial legislature to alter the Constitution of
\nthe legislature, that must be read subject to the fundamental conception
\nthat consistently with the very nature of our Constitution as an Empire, the
\nCrown is not included in the ambit of such power.\n<\/p>\n
1709. These observations are made in the context of the provisions of the Colonial Laws
\nValidity Act where a “colony” is defined to include “all of Her Majesty’s possessions
\nabroad in which there shall exist a legislature as hereinafter defined, except the Channel
\nIslands, the Isle of Man”. The observation of Issacs, J. can only mean that when power to
\nalter the Constitution of the legislature is conferred upon a colony which is a part of Her
\nMajesty’s possessions abroad (the Empire), it is reasonable to assume that such power did
\nnot include the power to eliminate the Queen as a part of a colonial legislature. It is to be
\nnoted that Issacs, J. had arrived at that conclusion on the true construction of the Colonial
\nLaws Validity Act, namely, that the word ‘legislature’ did not include the Crown.
\n1710. Mangal Singh v. Union of India [1967] 2 S.C.R. 109 was also relied on as authority
\nfor the proposition that the power of amendment is subject to implied limitation. The only
\nquestion which was considered in the case was that when by a law made under Article 4
\nof the Constitution, a State was formed, that State should have the legislative, executive
\nand judicial organs; the Court said:\n<\/p>\n
…Power with which the Parliament is invested by Article 2 and 3, is power
\nto admit, establish, or form new States which conform to the democratic
\npattern envisaged by the Constitution; and the power which the Parliament
\nmay exercise by law is supplemental, incidental or consequential to the
\nadmission establishment or formation of a State as contemplated by the
\nConstitution, and not power to override the Constitutional scheme. No
\nState can therefore be formed, admitted, or set up by law under Article 4
\nby the Parliament which has not effective legislative, executive and
\njudicial organs. [1967] 2 S.C.R. 112.\n<\/p>\n
1711. I am unable to understand how this case lends any assistance to the petitioner for it
\nis impossible to imagine a modern State without these organs.\n<\/p>\n
1712. Section 128 of the Australian Constitution Act provides for alteration of that
\nConstitution. There are certain restrictions upon the power of amendment. We are not
\nconcerned with the controversy whether those restrictions can be taken away in the
\nexercise of the power of amendment, as proviso (e) of Article 368 makes it clear that the
\namending power itself can be amended. Leading writers on the Constitution of Australia
\nhave taken the view that there are no other limitations upon the power of alteration and
\nthat all the provisions of the Constitution can be amended. See A.P. Canaway, K.C., “The
\nSafety Valve of the commonwealth Constitution”, Australian Law Journal, vol. 12,
\n(1938-39), p. 108 at 109; A.P. Canaway, K.C. (N.S.W.), “The Failure of the Federalism
\nin Australia”, Appendix : Power to Alter the Constitution, A Joint Legal Opinion, p. 211;
\nJohn Quick and Robert Randolph Garran, “Annotated Constitution of the Australian
\nCommonwealth”, pp. 988-9; W. Anstey Wynes, “Legislative, Executive and Judicial
\nPowers in Australia”, Third Ed. pp. 695-698; Colin Howard, “Australian Federal
\nConstitutional Law” (1968).\n<\/p>\n
1713. Reference was made to the case of Victoria v. Commonwealth 45 Australian Law
\nJournal 251 in support of the proposition that there are implied limitations upon the
\npower of Commonwealth Parliament in Australia and therefore, there could be implied
\nlimitation upon the power of amendment. The pay roll tax imposed by the Pay Roll Tax
\nAct, 1941 (Com.) was, according to the Pay Roll Tax Assessment Act, 1941-69, to be
\nlevied and paid or payable by any employer. Section 3(1) of the Pay Roll Tax Assessment
\nAct defined ’employer’ to include the Crown, in the right of a State. The State of Victoria
\nsought declaration that it was beyond the legislative competence of the Commonwealth to
\nlevy tax on wages paid by the Crown in the right of the State to officers and employees in
\nthe various departments. Menzies, Windeyer, Walsh and Gibbs, JJ. held that there was
\nimplied limitation on Commonwealth legislative power under the Constitution, but the
\nAct did not offend such limitation. Barwich, C.J. and Owen, J. held that a law which in
\nsubstance cakes a State or its powers or functions of government as its subject matter is
\ninvalid because it cannot be supported upon any granted legislative power, but there is no
\nimplied limitation on Commonwealth legislative power under the Constitution arising
\nfrom the federal nature of the Constitution. McTiernan, J. held that there was no
\nnecessary implication restraining the Commonwealth from making the law.
\n1714. As to the general principle that non-discriminatory laws of the Commonwealth
\nmay be invalid in so far as they interfere with the performance by the States of their
\nConstitutional functions, it must be noted that that is not claimed to rest on any
\nreservation made in the Engineers’ Case Amalgamated Society of Enginears v. Adelaide
\nSteamship Co. Ltd. (1920) 28 C.L.R. 129 itself to the general principle it advanced. It
\nmust also be noted that Menzies, Walsh and Gibbs, JJ. were not prepared to formulate the
\nproposition as a single test in precise and comprehensive terms and that they were alive
\nto the great difficulties which would be encountered in the formulation.
\n1715. If there are difficulties in formulating an appropriate test, is it not legitimate to ask
\nwhether the proposed principle is one that is capable of formulation? Is it not legitimate
\nto ask whether there is a judicially manageable set of criteria available by which the
\nproposed general principle may be formulated? The theory of the implied limitation
\npropounded might invite the comment that “it is an interpretation of the Constitution
\ndepending on an implication which is formed on a vague, individual conception of the
\nspirit of the compact”. It is difficult to state in clear terms from the judgments of these
\njudges as to what kind of legislative action by the Commonwealth will be invalid because
\nof the application of the general principle.\n<\/p>\n
1716. The stated purpose of the general principle is to protect the continued existence and
\nindependence of the States. Do the judgments of Menzies, Walsh and Gibbs, JJ. disclose
\nany reason why that existence and independence of the States will be threatened in the
\nabsence of the implied general principle?\n<\/p>\n
1717. Windeyer, J.’s judgment is a little uncertain. He said that once a law imposes a tax
\nit is a law with respect to taxation and that if it is invalid it must be for reasons that rest
\non other Constitutional prohibitions, e.g., an implied prohibition on a tax discriminating
\nagainst a State. However, many cases arise in which competing possible characterizations
\nof a Commonwealth law are possible; on one characterization it is valid, on another it is
\ninvalid. The Courts, when faced with competing possible characterizations, may not hold
\na law valid because one possible characterization is that the law is with respect to one of
\nthe enumerated heads of legislative power.\n<\/p>\n
1718. Windeyer, J. said that a law of the Commonwealth which is directed against the
\nStates to prevent their carrying out of their functions, while it may be with respect to an
\nenumerated subject-matter, is not for the peace, order and good government of the
\nCommonwealth.\n<\/p>\n
1719. The basic principle of construction which was definitely enunciated by the Court
\nwas that adopted by Lord Selborne in Queen v. Burah [1878] 3 A.C. 889. The judges who
\ntook the view that there was implied limitation on the power of Commonwealth to aim
\ntheir legislation against the State did not differ in substance from the theory propounded
\nby Barwick, C.J. and Owen, J. who said that it is a question of lack of power as the
\nlegislation is not with respect to a subject within the power of taxation conferred by
\nSection 51 of Australian Constitution See generally Faigenbaum and Hanks, “Australian
\nConstitutional Law”.\n<\/p>\n
1720. I am unable to understand the relevancy of this decision. In a federal or quasi-
\nfederal State, the continued existence of the federated States, when the Constitution
\nexists, is a fundamental pre-supposition and the legislative power of the federal
\nlegislature cannot be exercised in such a way as to destroy their continued existence. But
\nwhen we are dealing with an amending power, is there any necessity to make that
\nfundamental assumption? There might be some logic in implying limitation upon the
\nlegislative power of the federal legislature, as that power can be exercised only subject to
\nthe fundamental assumption underlying a federal state, namely, the continued existence
\nof States. But what is its relevancy when we are dealing with implied limitation on the
\namending power, which is a power to alter or change the Constitution itself?
\n1721. It is relevant in this connection to note the vicissitudes in the fortune of the doctrine
\nof immunity of instrumentalities which was based on the theory of implied prohibition.
\nMarshal, C.J. said in McCulloch v. Maryland (1819) 4 Wheaten 316. “The rule thus laid
\ndown was based upon the existence of an implied prohibition that, the Federal and State
\nGovernments respectively being sovereign and independent, each must be free from the
\ncontrol of the other; me doctrine was thus based upon the necessity supposed to arise in a
\nfederal system”. The progressive retreat from the doctrine in its original form has been
\ntraced by Dixon, J. in Essendon Corporation v. Criterion Theatres (1947) 74 C.L.R. 19-\n<\/p>\n
22. He said:\n<\/p>\n
The shifting of judicial opinion shown in the foregoing formed a prelude
\nto the decision of the Court in Graves v. New York 306 U.S. 466 where
\nthe Court thought it imperative to “consider anew the immunity…for the
\nsalary of an employee of a Federal instrumentality (at p. 485) from State
\nIncome tax and decided that there should be no immunity”. Frankfruter, J.
\nremarked: “In this Court dissents have gradually become majority
\nopinions and even before the present decision the rationale of the doctrine
\nhad been undermined” (at p. 491). This case marked the end of the old
\ndoctrine
\n1722. I would add that the theory of immunity of instrumentalities was definitely rejected
\nby this Court in State of West Bengal v. Union of India A.I.R.<\/a> 1963 S.C. 1241.
\n1723. Mr. Palkhivala argued with considerable force that if there are no limitations upon
\nthe power of amendment, the consequences would be far reaching. He said that it will be
\nopen to the Parliament to prolong the period of its existence, to make India a satellite of a
\nforeign country, do away with the Supreme Court and the High Courts, abolish the
\nParliamentary system of Government and take away the power of amendment or, at any
\nrate, make the exercise of the power so difficult that no amendment would be possible.
\nAs I said there is no reason to think that the word ‘amendment’ was used in any narrow
\nsense in Article 368 and that the power to amend under the article was in any way
\nlimited. If there is power, the fact that it might be abused is no ground for cutting down
\nits width.\n<\/p>\n
1724. In Vacher and Sons v. London Society of Compositors [1913] A.C. 107, at p. 121
\n& 118. Lord Atkinson said that it is well established that, in construing the words of a
\nstatute susceptible of more than one meaning, it is legitimate to consider the
\nconsequences which would result from any particular construction, for, as there are many
\nthings which the Legislature is presumed not to have intended to bring about, a
\nconstruction which would not lead to any one of these things should be preferred to one
\nwhich would lead to one or more of them. In the same case, Lord McNaughton said that a
\njudicial tribunal has nothing to do with the policy of any Act and that the duty of the
\nCourt, and its only duty, is to expound the language of the Act in accordance with the
\nsettled rules of construction.\n<\/p>\n
1725. In Bank of Toronto v. Lambe [1887] 12 A.C. 575, 586 the Privy Council was
\nconcerned with the question whether the Legislature of a Province could not levy a tax on
\ncapital stock of the Bank, as that power may be so exercised as to destroy the Bank
\naltogether. The Privy Council said that if on a true construction of Section 92 of the
\nBritish North America Act, the power fell within the ambit of the section, it would be
\nquite wrong to deny its existence because by some possibility that it may be abused or
\nmay limit the range which otherwise would be open to the Dominion Parliament. The
\nPrivy Council observed that “Their Lordships cannot conceive that when the Imperial
\nParliament conferred wide powers of local self-government on great countries such as
\nQuebec, it intended to limit them on the speculation that they would be used in an
\ninjurious manner. People who are trusted with the great power of making laws for
\nproperty and civil rights may well be trusted to levy a tax”.\n<\/p>\n
1726. In Ex-parte Crossman 267 U.S. 120, 121 it was held that the presumption is that
\nevery organ of a State will act in coordination, that though one organ can, by its action,
\nparalyse the functions of the other organs and make the Constitution come to a standstill,
\nyet no Constitution proceeds on the assumption that one organ will act in such a way as
\nto defeat the action of the other.\n<\/p>\n
1727. Our Constitution, in its preamble has envisaged the establishment of a democratic
\nsovereign republic. Democracy proceeds on the basic assumption that the representatives
\nof the people in Parliament will reflect the will of the people and that they will not
\nexercise their powers to betray the people or abuse the trust and confidence resposed in
\nthem by the people. Some of the great powers appertaining to the sovereignty of the State
\nare vested in the representatives of the people. They have the power to declare war. They
\nhave power over coinage and currency. These disaster-potential powers are insulated
\nfrom judicial control. These powers, if they are imprudently, exercised, can bring about
\nconsequences so extensive as to carry down with them all else we value: War and
\ninflation have released evil forces which have destroyed liberty. If these great powers
\ncould be entrusted to the representatives of the people in the hope and confidence that
\nthey will not be abused, where is the warrant for the assumption that a plenary power to
\namend will be abused? The remedy of the people, if these powers are abused, is in the
\npolling booth and the ballot box.\n<\/p>\n
1728. The contention that if the power to amend Fundamental Rights in such a way as to
\ntake away or abridge them were to vest in Parliament, it would bring about the
\ncatastrophic consequences apprehended by counsel has an air of unreality when tested in
\nthe light of our experience of what has happened between 1951 when Sankari Prasad’s
\ncase [1952] S.C.R. 89 recognised the power of the Parliament to amend the Fundamental
\nRights and 1967 when the Golaknath Case [1967] 2 S.C.R. 762 was decided. It should be
\nremembered in this connection that the Parliament when it exercises its power to amend
\nFundamental Rights is as much the guardian of the liberties of the people as the Courts.
\n1729. If one of the tests to judge the essential features of the Constitution is the difficulty
\nwith which those features can be amended, then it is clear that the features which are
\nbroadly described as “federal features” contained in Clauses (a) to (d) of the proviso to
\nArticle 368 are essential features of the Constitution. The articles referred to in Clause (a)
\nto (d) deal with some of the essential features of the Constitution like the Union
\nJudiciary, the High Courts, the legislative relation between the Union and the States, the
\nconferment of the residual power and so on. The power to amend the legislative lists
\nwould carry with it the power to transfer the residuary entry from the Union List to the
\nState List. This would also enable Parliament to increase its power by transferring entries
\nfrom the State List or Concurrent List to the Union List. The proviso to Article 368 thus
\nmakes it clear that the Constitution-makers visualised the amendability of the essential
\nfeatures of the Constitution.\n<\/p>\n
1730. Mr. Palkhivala contended that Fundamental Rights are an essential feature of the
\nConstitution, that they are the rock upon which the Constitution is built, that, by and
\nlarge, they are the extensions, combinations or permutations of the natural rights of life,
\nliberty and equality possessed by the people by virtue of the fact that they are human
\nbeings and that these rights were reserved by the people to themselves when they framed
\nthe Constitution and cannot be taken away or abridged by a constituted authority like
\nParliament. He said that the implied limitation stems from the character of those rights as
\nwell as the nature of the authority upon which the power is supposed to be conferred.
\n1731. On the other hand, the respondents submitted that the people of India have only
\nsuch rights as the Constitution conferred upon them, that before the Constitution came
\ninto force, they had no Fundamental Rights, that the rights expressly conferred upon the
\npeople by Part III of the Constitution and that there is no provision in our Constitution
\nlike Article 10 of the United States Constitution which reserved the rights of the people to
\nthemselves. They also said that the characterisation of Fundamental Rights, as tran
\ncendental, sacrosanct or promodial in the sense that they are “not of today or yesterday
\nbut live eternally and none can date their birth” smacks of sentimentalism and is
\ncalculated to cloud the mind by an out-moded political philosophy, and would prevent a
\ndispassionate analysis of the real issues in the case.\n<\/p>\n
1732. The question presented for decision sounds partly in the realm of political
\nphilosophy but that is no reason why the Court should not solve it, for, as De Tocqueville
\nwrote: “scarcely any political question arises in the United States that is not resolved
\nsooner or later into a judicial question” See De Tocqueville, “Democracy in America”
\n(1948), Bradly ed. p. 280. For the purpose of appreciating the argument of Mr. Palkhivala
\nthat there is inherent imitation on the power of Parliament to amend Fundamental Rights,
\nit is necessary to understand the source from which these rights arise and the reason for
\ntheir fundamentalness.\n<\/p>\n
1733. Let it be understood at the very outset that I mean by natural rights those rights
\nwhich are appropriate to man as a rational and moral being and which are necessary for a
\ngood life. Although called ‘rights’, they are not per se enforceable in Courts unless
\nrecognized by the positive law of a State. I agree that the word ‘right’ has to be reserved
\nfor those claims and privileges which are recognized and protected by law. But to
\nidentify rights with legally recognized rights is to render oneself helpless before the
\nauthoritarian state. Your rights, on this theory, are precisely those which the State
\nprovides you and no more. To say that you have rights which the State ought to recognize
\nis, from this point of view, a plain misuse of the language. “However, from the point of
\nview of the Declaration of Independence, to recognize the existence of rights prior to and
\nindependent of political enactment, is the beginning of political wisdom. If the
\ngovernments are established to ‘secure these rights’, the pre-existence of these rights is the
\nwhole basis of the political theory” See Hocking, “Freedom of the Press”, footnote at p.\n<\/p>\n
59. The preamble to our Constitution shows that it was to ‘secure’ these rights that the
\nConstitution was established, and that, by and large, the Fundamental Rights are a
\nrecognition of the pre-existing natural rights. “They owe nothing to their recognition in
\nthe Constitution-such recognition was necessary if the Constitution was to be regarded
\ncomplete” See Corwin “The Higher Background of the American Constitutional Law”, p.\n<\/p>\n
5.
\n1734. The philisophical foundation of the rights of man is natural law and the history of
\nrights of man is bound up with the history of natural law See Jacques Maritain, “Man and
\nthe State”, pp. 80-81. That law is deduced not from any speculative void but from the
\ngeneral condition of mankind in society. According to St. Thomas Aquinas the order of
\nthe precepts of the natural law follows the order of natural inclinations, because, in man
\nthere is first of all an inclination to good in accordance with the nature which he has in
\ncommon with all substances in as much as every substance seeks the preservation of its
\nown being, according to its nature; and by reason of this inclination, whatever is a means
\nof preserving human life, and the warding off its obstacles, belongs to the natural law See
\nSumma Theologica, Part II, Section I, Question 91, Article 2 (translated by the English
\nDominicans), Vol. 3. In a different context Spinoza proclaimed the very same principle in
\nhis famous words “Every being strives to persevere in being See “Ethics”, Part III,
\nProposition No. 6″. Secondly, according to St. Thomas Aquinas, there is in man an
\ninclination to things that pertain to him more specially, according to that nature which he
\nhas in common with other animals: and in virtue of this inclination, those things are said
\nto belong to the natural law which nature has taught to all animals, such as sexual
\nintercourse, the education of the offspring and so forth See Summa Theologica, Part II,
\nSection I, Question 91, Article 2 (translated by the English Dominicans), Vol. 3. And
\nthirdly, there is in man an inclination to good according to the nature of his reason which
\ninclination prompts him to know the truth and to live in society.
\n1735. The law of nature is both an expression of reality and a standard to measure the
\nrightness and justice of positive law. The influence of natural law on the concept of
\nnatural justice and of the reasonable man of the common law, on the conflict law, the law
\nof merchants and the law of quasi-contract, with special reference to the common law of
\nIndia has been traced with great learning by Sir Frederic Pollock in his essay on the
\n“History of the Law of Nature” See “Essays in Law”, p. 31.\n<\/p>\n
1736. It is true that law of nature has incurred the charge of being fanciful and
\nspeculative and several of the theories advanced in support of natural law have been
\ndiscredited. Mr. Max M. Laserson has rightly said that the doctrines of natural law must
\nnot be confused with natural law itself. The doctrines of natural law, like any other
\npolitical and legal doctrines, may propound various arguments or theories in order to
\nsubstantiate or justify natural law, but the overthrow of these theories cannot signify the
\noverthrow of natural law itself, just as the overthrow of some theory of philosophy of law
\ndoes not lead to the overthrow of law itsef See “Positive and Natural Law and their
\ncorrelation in Interpretation of Modern Legal Philosophies” Essays in Honour of Roscos
\nPound (New York Oxford University Press), (1947).\n<\/p>\n
1737. The social nature of man, the generic traits of his physical and mental Constitution,
\nhis sentiments of justice and the morals within, his instinct for individual and collective
\npreservation, his desire for happiness his sense of human dignity, his consciousness of
\nman’s station and purpose in life, all these are not products of fancy but objective factors
\nin the realm of existence See Lauterpacht, “International Law and Human Rights”, p. 101.
\nThe Law of Nature is not, as the English utilitarians in their ignorance of its history
\nsupposed, a synonym for arbitrary individual preference, but that on the contrary, it is a
\nliving embodiment of the collective reason of civilized mankind, and as such is adopted
\nby the Common Law in substance chough not always by name See Sir Frederic Pollock,
\n“The Expansion of the Common Law” (1904), p. 128.\n<\/p>\n
1738. The sacred rights of mankind are not to be rummaged for among old parchments of
\nmusty records. They are written, as with a sunbeam, in the whole volume of human
\nnature, by the hand of Divinity itself, and can never be obscured by mortal power (See
\nCanadian Bar Review, Vol. XXXIV (1956), footnote on p. 219).\n<\/p>\n
1739. In State of West Bengal v. Subodh Gopal<\/a> [1954] S.C.R. 587, 596. Patanjali Sastri,
\nJ. said that article (Article 19) enumerates certain freedoms under the caption “right to
\nfreedom” and deals with those great and basic rights which are recognized and
\nguaranteed as the natural rights inherent in the status of a citizen of a free country.
\n1740. In the United States of America, reliance upon natural law on the part of vested
\ninterests inimical to the economic freedom of man was destined to prove a persistent
\nfeature in the 19th century. In the second half of the 19th century, the ideas of natural law
\nand of natural rights were resorted to in an attempt to curb State interference with rights
\nof private property and freedom of contract. The ideas of natural law and natural rights
\nwere revived and endowed with fresh vigour for that purpose See Haines, “The Revival
\nof Natural Law Concepts”, pp. 117-123. By reference to natural rights of man, Courts in
\nthe United States often declared to be unConstitutional legislation for securing humane
\nconditions of work, for protecting the employment of women and children, for
\nsafeguarding the interests of consumers, and for controlling the powers of trusts and
\ncorporations. This past history explains why natural rights have been regarded in some
\nquarters with suspicion and why writers affirming the supremacy of a higher law over the
\nlegislature or the Constitution have spoken with impatience of the damnosa hereditas of
\nnatural rights. This idea of natural law in defence of causes both paltry and iniquitous has
\ncaused many to reject it with impatience. A great practical reformer like Jeremy
\nBentham, a great judge like Mr. Justice Holmes and a great legal philosopher like Hans
\nKelsen-all believers in social progress-have treated the law of nature with little respect
\nand have rejected it as fiction. Mr. Justice Holmes remarked : “The jurists who believe in
\nnatural law seem to me to be in that naive state of mind that accepts what has been
\nfamiliar and accepted by them and their neighbours as something that must be accepted
\nby all men everywhere” Holmes, “Collected Legal Papers”, p. 312. Professor Kelsen
\nconsiders the typical function of the natural law school to have been the defence of
\nestablished authority and institutions-of established governments, of private property, of
\nslavery, of marriage See Kelsen, “General Theory of Law and State”, pp. 413-418.
\n1741. Despite these attacks and the ebb and flow in its fortune, there has been a revival of
\nthe law of nature in the 20th century and there is no gainsaying the fact that the doctrine
\nof the law of nature was the bulwark and the lever of the idea of the rights of mare
\nembodied in the International Bill of Human Rights with a view to make the recognition
\nof these rights more effective and to proclaim to the world that no State should violate
\nthese rights See Lauterpacht, “International Law and Human Rights”, pp. 112-113.
\nWhether you call these rights, natural rights or not, whether they flow from the law of
\nnature or not, as I said, these are rights which belong to man as a rational and moral
\nbeing. “Man’s only right, in the last analysis is the right to be a man, to live as a human
\nperson. Specific human rights are all based on man’s right to live a human life See
\n“Weapons for Peace” by Thomas P. Neill, quoted in “The Natural Law” by Rommnen,
\nfootnote at p. 243. Harold Laski said : Harold Laski, “Grammar of Politics” (New Haven)
\n(1925), pp. 39-40.\n<\/p>\n
I have rights which are inherent in me as a member of society; and I judge
\nthe state, as the fundamental instrument of society, by the manner in which
\nit seeks to secure for me the substance of those rights…. Rights in this
\nsense, are the groundwork of the state. They are the quality which gives to
\nthe exercise of its power a moral penumbra. And they are natural rights in
\nthe sense that they are necessary to good life.\n<\/p>\n
1742. Mr. Seervai submitted that Article 33 of the Constitution which states that
\nParliament may, by law determine to what extent the Fundamental Rights, in their
\napplication to members of the Armed Forces or forces charged with the maintenance of
\npublic order be restricted or abrogated so as to ensure the proper discharge of their duties
\nand the maintenance of discipline among them, would show that no natural rights are
\nrecognised by our Constitution, as otherwise, the limitation on the exercise of the
\nFundamental Rights by Parliament would be unwarranted. In support of this position, he
\nhas relied upon the observations of S.K. Das, J. in Basheshar Nath v. Commissioner of
\nIncome Tax, Delhi,<\/a> etc. [1959] Supp. 1 S.C.R. 528, 605 where he said:
\nThere are, in my opinion, clear indications in Part III of the Constitution
\nitself that the doctrine of “natural rights” had played no part in the
\nformulation of the provisions therein. Take Articles 33, 34 and 35 which
\ngive Parliament power to modify the rights conferred by Part III. If they
\nwere natural rights the Constitution could not have given power to
\nParliament to modify them.\n<\/p>\n
I do not think that it was the contention of Mr. Palkhivala chat natural rights as such are
\nenforceable by Courts without the backing of positive law or that they are not liable to be
\nlimited in certain circumstances.\n<\/p>\n
1743. That all natural rights are liable to be limited or even taken away for common good
\nis itself a principle recognized by all writers on natural law. “However, even though
\nman’s natural rights are commonly termed absolute and inviolable, they are limited by the
\nrequirements of the universal Order to which they are subordinated. Specifically, the
\nnatural rights of man are limited intrinsically by the end for which he has received them
\nas well as extrinsically by the equal rights of other men, by his duties towards others”.
\nSee Romen, “The Natural Law” (1947), footnote 49, p. 253. And when the Parliament
\nrestricts or takes away the exercise of the Fundamental Rights by military personnel or
\nthe police charged with the duty of maintaining the peace, that does not mean that there
\nare no natural rights, or, that by and large, the Fundamental Rights are not a recognition
\nof the natural rights. It only shows that Fundamental Rights like natural rights are liable
\nto be limited for the common good of the society. John Locke himself did not understand
\nthat natural rights were absolute and nowhere did he say so. In other words, because
\nParliament can restrict the exercise of or even take away the Fundamental Rights of the
\nmilitary personnel or the police charged with the duty of maintaining peace by law, it
\ndoes not follow that Fundamental Rights, by and large, are not a recognition of the bask
\nhuman rights or that those rights are not liable to be limited by positive law for common
\ngood. Natural law cannot supplant positive law; positive law must provide the practical
\nsolution in the choice of one measure rather than another in a given situation. Sir
\nFrederick Pollock said that natural justice has no means of fixing any rule to terms
\ndefined in number or measure, nor of choosing one practical solution out of two or more
\nwhich are in themselves equally plausible. Positive law whether enacted or customary,
\nmust come to our aid in such matters. It would be no great feat for natural reason to tell
\nus that a rule of the road is desirable; but it could never have told us whether to drive to
\nthe right hand or to the left, and in fact custom has settled this differently in different
\ncountries, and even, in some parts of Europe, in different provinces of one State. See
\nPollock, “The Expansion of the Common Law” (1904), p. 128.\n<\/p>\n
1744. Nor am I impressed by the argument that because non-citizens are not granted all
\nthe Fundamental Rights, these rights, by and large, are not a recognition of the human or
\nnatural rights. The fact that Constitution does not recognize them or enforce them as
\nFundamental Rights for non-citizens is not an argument against the existence of these
\nrights. It only shows that our Constitution has chosen to withhold recognition of these
\nrights as fundamental rights for them for reasons of State policy. The argument that
\nFundamental Rights can be suspended in an emergency and, therefore, they do not stem
\nfrom natural rights suffers from the same fallacy, namely the natural rights have no limits
\nor are available as immutable attributes of human person without regard to the
\nrequirement of the social order or the common good.\n<\/p>\n
1745. Mr. Palkhivala contended that there are many human rights which are strictly
\ninalienable since they are grounded on the very nature of man which no man can part
\nwith or lose. Although this may be correct in a general sense, this does not mean that
\nthese rights are free, from any limitation. Every law, and particularly, natural law, is
\nbased on the fundamental postulate of Aristotle that man is a political animal and that his
\nnature demands life in society. As no human being is an island, and can exist by himself,
\nno human right which has no intrinsic relation to the common good of the society can
\nexist. Some of the rights like the right to life and to the pursuit of happiness are of such a
\nnature that the common good would be jeopardised if the body politic would take away
\nthe possession that men naturally have of them without justifying reason. They are, to a
\ncertain extent, inalienable. Others like the right of free speech or of association are of
\nsuch a nature that the common good would be jeopardised if the body politic could not
\nrestrict or even take away both the possession and the exercise of them; They cannot be
\nsaid to be inalienable. And, even absolutely inalienable rights are liable to limitation both
\nas regards their possession and as regards their exercise. They are subject to conditions
\nand limitations dictated in each case by justice, or by considerations of the safety of the
\nrealm or the common good of the society. No society has ever admitted that in a just war
\nit could not sacrifice individual welfare for its own existence. And as Holmes said, if
\nconscripts are necessary for its army, it seizes them and marches them, with bayonets in
\ntheir rear to death. See Common Law, p. 43. If a criminal can be condemned to die, it is
\nbecause by his crime he has deprived himself of the possibility of justly asserting this
\nright. He has morally cut himself off from the human community as regards this right.
\nSee Jacques Maritain, Man and State, p. 102.\n<\/p>\n
1746. Perceptive writers have always taken the view that human rights-are only prima
\nfacie rights to indicate that the claim of any one of them may be overruled in special
\ncircumstances. As I said the most fundamental of the pre-existing rights-the right to life-
\nis sacrificed without scruple in a war. A prima fade right is one whose claim has prima
\nfacie justification, i.e., is justified, unless there are stronger counterclaims in the
\nparticular situation in which it is made, the burden of proof resting always on the counter-
\nclaims. To say that natural rights or human rights are prima fade rights is to say that there
\nare cases in which pit is perfectly just to disallow their claim. Unless we have definite
\nassurance as to the limits within which this may occur, we may have no way of telling
\nwhether we are better off with these prima fade rights than we would be without them.
\n“Considerations of justice allow us to make exceptions to a natural right in special
\ncircumstances as the same considerations would require us to uphold it in general. See
\ngenerally “Justice and Equality” by Gregory Vlastos in “Social Justice”, p. 31 ed. by
\nRichard B. Brandt.\n<\/p>\n
1747. Owing to the complexity of social relations, rights founded on one set of relations
\nmay conflict with rights founded on other relations. It is obvious that human reason has
\nbecome aware not only of the rights of man as a human and civil person but also of his
\nsocial and economic rights, for instance, the right of a worker to a just wage that is
\nsufficient to secure his family’s living, or the right to unemployment relief or
\nunemployment insurance, sick benefits, social security and other just amenities, in short,
\nall those moral rights which are envisaged in Part IV of the Constitution. But there was a
\nnatural tendency to inflate and make absolute, unrestricted in every respect, the familiar
\nfundamental rights, at the expense of other rights which should counter-balance them.
\nThe economic and social rights of man were never recognised in actual fact without
\nhaving had to struggle against and overcome the bitter opposition of the fundamental
\nrights. This was the story of the right to a just wage and similar rights in the face of the
\nright to free mutual agreement and right to private ownership.
\n1748. To determine what is finally right involves a balancing of different claims. From an
\nethical point of view, all one can say is that particular rights are subject to modification in
\na given situation by the claims arising out of other rights or of the body of rights as a
\nwhole. Since no single right whether natural or not is absolute, claims based on any one
\nright may be subject to qualifications in accordance with claims based on other rights or
\nthe requirements of the total order or way of life, namely, the principle of the common
\ngood. See Morris Ginsberg, Justice in Society, p. 77. It is significant to note that Article
\n29(2) of the Declaration of Human Rights provides:\n<\/p>\n
In the exercise of his rights and freedoms, everyone shall be subject only
\nto such limitations as are determined by law solely for the purpose of
\nsecuring due recognition and respect for the rights and freedoms of others
\nand of meeting the just requirements of morality, public order and the
\ngeneral welfare in a democratic society.\n<\/p>\n
1749. It shall be my endeavour to show in a subsequent part of this judgment how the
\ngeneral welfare of our democratic society requires limitation or even taking away of
\nFundamental Rights in certain circumstances.\n<\/p>\n
1750. The framers of our Constitution realised that the Fundamental Rights, like natural
\nrights, were not absolute and it was because of this that they provided for restrictions
\nbeing imposed upon the exercise of these rights by law. But it was impossible for them,
\nor for that matter, for any person, however, gifted they or he might be, to foresee the type
\nof restrictions which would be necessary to meet the changing needs of a society. Even
\nmen with the most prophetic vision could not have foreseen all the developments of the
\nbody politic in the future and the type of restrictions necessary upon the Fundamental
\nRights to meet them. The question whether a particular Fundamental Right should be
\ntaken away or abridged for the common good of the society must be decided in the light
\nof the experience of each generation and not by what was said or laid down at the time of
\nthe framing of the Constitution. It would be asking the impossible to expect one
\ngeneration to plan a government that would pass through all the revolutionary changes in
\nevery aspect of life.\n<\/p>\n
1751. Let us now see whether in the past the Parliament was justified in amending some
\nof the Fundamental Rights and whether the fear expressed by the counsel for the
\npetitioner, that great catastrophic consequences will follow if the Fundamental Rights are
\npermitted to be abridged by Constitutional Amendments is justified.
\n1752. The First Amendment made certain changes in Article 15 which deals with
\nprohibition of discrimination on the ground of religion, race, caste, sex or place of birth.
\nClause (3) of Article 15 allowed the state to make special provision for women and
\nchildren. A new clause was added by the Amendment which reads as follows:
\n(4) Nothing in this article or in Clause (2) of Article 29 shall prevent the
\nState from making any special provision for the advancement of any
\nsocially and educationally backward classes of citizens or for the
\nScheduled Castes and the Scheduled Tribes.\n<\/p>\n
This Amendment was necessitated on account of the decision of this Court in the State of
\nMadras v. Champakam<\/a> [1951] S.C.R. 525 to the effect that reservation of seats for
\nbackward classes, Scheduled Castes and Tribes in public institutions was invalid, as it
\nwould offend the Fundamental Rights guaranteed under Article 29(2). When this Court
\nsaid that the reservation of seats for these classes offended the Fundamental Right
\nguaranteed under Article 29(2), what option was left but for the Parliament to enact the
\nAmendment, for, social justice required discriminatory treatment in favour of the weaker
\nsections of the people and in particular the Scheduled Castes and Tribes in order to
\npromote their educational and economic interest and to give them a position of equality.
\nIt is possible to sympathise with those who bewail the decision in the case as a ‘self-
\ninflicted wound’. But when a Bench of five Judges held so, not all the tears in the world
\ncan recall a word of what was written, but only an amendment by Parliament, since the
\nchance of the decision being overruled was remote and problematical.
\n1783. The second and sixth clauses of Article 19 were also amended by the First
\nAmendment. Article 19(1)(a) provides that all citizens shall have the right to freedom of
\nspeech and expression. Before the amendment, Article 19(2) read:
\nNothing in Sub-clause (a) of Clause (1) shall affect the operation of any
\nexisting law in so far as it relates to, or prevent the State from making any
\nlaw relating to libel, slander, defamation, contempt of Court or any matter
\nwhich offends against decency or morality or which undermines the
\nsecurity of, or tends to overthrow, the State.\n<\/p>\n
After the amendment, the same clause reads:\n<\/p>\n
Nothing in Sub-clause (a) of Clause (1) shall affect the operation of any
\nexisting law, or prevent the State from making any law, in so far as such
\nlaw imposes reasonable restrictions on the exercise of the right conferred
\nby the said sub-clause in the interest of the…security of the State, friendly
\nrelations with foreign states, public order, decency or morality, or in
\nrelation to contempt of Court, defamation or incitement to an offence.
\nThis amendment was necessitated by the decision of this Court in Romesh Thapar v.
\nState of Madras<\/a> [1950] S.C.R. 594 wherein it was held that the disturbance of public
\norder did not come within the expression “undermines the security of the State…. No
\ndoubt, in State of Bihar v. Shaila bala Devi [1952] S.C.R. 654 this Court said that it did
\nnot intend to by down in Romesh Thapar’s case that in no case will an offence against
\npublic order affect the security of the State, but that point if not of much interest in view
\nof the Amendment. When this Court held that the word ‘public order’ would not come
\nwithin the expression “undermines the security of State”, no option was left to Parliament
\nbut to make the Amendment. The words “friendly relations with foreign States”
\nintroduced a further abridgement of the freedom of speech but nobody would contend
\nthat maintenance of friendly relations with foreign States is unnecessary and that speech
\nwhich would prejudicially affect these relations should not be curbed even as England
\nand America have done.\n<\/p>\n
1754. The 16th Amendment added after the words “in the interests of” the words “the
\nsovereignty and integrity of India” in Clauses (2), (3) and (4) of Article 19. This means
\nthat the Fundamental Rights to freedom of speech and freedom of assembly were
\nabridged for the sake of maintaining the sovereignty and integrity of India. Freedom of
\nspeech is the matrix upon which all other freedoms are founded and nobody would deny
\nthat it is an essential feature of the Constitution. But that had to be damaged for the sake
\nof a greater good, namely, the maintenance of the sovereignty and integrity of India. And
\nwho would dare maintain that the amendment was unnecessary? These amendments
\nillustrate that exigencies not visualized by the makers of the Constitution would arise and
\nthat Fundamental Rights will have to be abridged for the commongood or for securing
\nhigher values.\n<\/p>\n
1755. It was because counsel for the petitioner realised the necessity for amendment of
\nFundamental Rights in certain circumstances in such a way as to abridge them that he
\nadvanced the further contention that although Parliament should have the power to amend
\nthe Fundamental Rights, there is implied limitation upon its power to amend them in such
\na way as to damage or destroy their core or essence, and that the Court must, in the case
\nof each amendment, pass upon the question whether the amendment has destroyed or
\ndamaged the essence or the core of the right. Counsel said that if the task of adjudging
\nwhat is “reasonable restriction in the interest of public” could be undertaken successfully
\nby Court there is no reason why the Court could not undertake the task of finding the core
\nor essence of a right and whether the amendment has damaged or destroyed it.
\n1756. Mr. Seervai for the State of Kerala submitted that no objective standard was
\nsuggested for the Court to decide what is the core or essence of a right except the
\nperception of the trained judicial mind and that whereas judicial review of the question
\nwhether a restriction imposed by a law is reasonable or not is based on the objective
\nstandard of reason, there is no divining rod for the Court to locate and find the core of a
\nright. He referred to the dissenting judgment of Holmes in Lochner v. New York 198
\nU.S. 45 and to the dictum of Patanjali Sastri, J. in State of Madras v. V.G. Row<\/a> (1952)
\nS.C.R. 597 and said that the concept of ‘reasonable man’, that latch key to many legal
\ndoors, or, ‘reasonable, restriction in the interest of public’ mentioned in Clauses 2 to 6 of
\nArticle 19 or “reasonable restrictions” in Article 304(b) are objective in character, though
\nthere might be difference of opinion in a particular case in the application of the
\nconcepts; but the task of finding the core of a Fundamental Right is like the quest for the
\n“philosopher’s stone”, and that the Amending Body will be left without chart or compass
\nwhen it proceeds to make an amendment. Mr. Seervai further submitted that our
\nConstitution makers deliberately omitted the phrase ‘due process’ in Article 21 to avoid
\nflirtation by Court with any gossamer concepts drawn from higher law philosophy to
\nannul legislation and that even in America, invalidation of law on the ground of violation
\nof substantive due process has become practically obsolete.\n<\/p>\n
1757. When a court adjudges that a legislation is had on the ground that it is an
\nunreasonable restriction, it is drawing the elusive ingredients for its conclusion from
\nseveral sources. In fact, you measure the reasonableness of a restriction imposed by law
\nby indulging in an authentic bit of “special legislation See Learned Hand, “Bill of
\nRights”, p. 26″. The words ‘reason’ and ‘reasonable’ denote for the common law lawyer
\nideas which the “Civilians” and the Canonists’ put under the head of the ‘law of nature’.
\nThus the law of nature may finally claim in principle, though not by name, the reasonable
\nman of English and American law and all his works which are many”. See History of the
\nLaw of Nature by Pollock, pp. 57-59. Lord Coke said in Dr. Bonham’s case 8 Rep. 107,
\n118(a) that the common law will adjudge an Act of Parliament as void if it is against
\ncommon right and reason and substantive due process in its content means nothing but
\ntesting an act or legislation on the touchstone of reason. The reason why the expression
\n“due process” has never been defined is that it embodies a concept of fairness which has
\nto be decided with reference to the facts and circumstances of each case and also
\naccording to the mores for the time being in force in a society to which the concept has to
\nbe applied. As Justice Frankfurter said, “due process” is not a technical conception with a
\nfixed content unrelated to time, place and circumstances See Joint Anti-Fascist Refugee
\nCommittee v. McGrath 341 U.S. 123. The limitations in Article 19 of the Constitution
\nopen the doors to judicial review of legislation in India in much the same manner as the
\ndoctrine of police power and its companion, the due process clause, have done in the
\nUnited States. The restrictions that might be imposed by the legislature to ensure the
\npublic interest must be reasonable and, therefore, the Court will have to apply the
\nYardstick of reason in adjudging the reasonableness. If you examine the cases relating to
\nthe imposition of reasonable restrictions by a law, it will be found that, all of them adopt
\na standard which the American Supreme Court has adopted in adjudging reasonableness
\nof a legislation under the due process clause. In Municipal Committee v. The State of
\nPunjab [1969] 3 S.C.R. 447, 453 this Court said that due process clause has no
\napplication in India and that a law cannot be struck down as constituting an unreasonable
\nrestriction upon Fundamental Rights merely because its terms were vague. The Court
\nsaid that a law whose terms were vague would be struck down as violative of due process
\nin America but, nevertheless, the principle has no application here because there is no
\n“due process clause” in our Constitution. With great respect, I should think that this is not
\ncorrect, as the concept of “due process” enters into the meaning of reasonableness of
\nrestrictions in Clauses 2 to 6 of Article 19. In Collector of Customs v. Sampathu [1962] 3
\nS.C.R. 786, 816, Rajagopala Ayyangar, J. said that though the tests of ‘reasonableness’
\nlaid down by Clauses (2) to (6) of Article 19 might in great part coincide with that for
\njudging for ‘due process’ it might not be assumed that these are identical, as the
\nConstitution-framers deliberately avoided in this context the use of the expression ‘due
\nprocess’ with its comprehensiveness, flexibility and attendant vagueness in favour of a
\nsomewhat more definite word ‘reasonable’. In the light of what I have said, I am unable to
\nunderstand how the word ‘reasonable’ is more definite than the words due process’. As the
\nconcept of ‘due process’ draws its nourishment from natural or higher law so also the
\nconcepts of ‘reason’ and reasonableness’ draw the juice for their life from the law of
\nreason which for the common law lawyer is nothing but natural law. See Pollock, the
\nExpansion of Common Law, 108-109. In Abbas v. Union of India [1971] 2 S.C.R. 446,
\n470 Hidayatullah, C.J. speaking for the Court said:\n<\/p>\n
…it cannot be said as an absolute principle that no law will be considered
\nbad for sheer vagueness. There is ample authority for the proposition that
\na law affecting fundamental rights may be so considered.\n<\/p>\n
Where a law imposes a restriction upon a Fundamental Right which is vague in character,
\nit would be struck down as unreasonable under Clauses (2) to (6) of Article 19 for the
\nsame reason as an American Court would strike it down as violative of due process, viz.,
\na person cannot be deprived of his Fundamental Right by a law whose command is
\nuncertain and does not sufficiently indicate to the individual affected by it how he could
\navoid coming within the mischief of the law. Our Constitution-makers, under the guise of
\ntesting the reasonableness of restrictions imposed by law on Fundamental Rights, brought
\nin by the back door practically the same concept which they openly banished by the front.
\n1758. I am not dismayed by the suggestion that no yardstick is furnished to the Court
\nexcept the trained judicial perception for finding the core or essence of a right, or the
\nessential features of the Constitution. Consider for instance, the test for determining
\ncitizenship in the United States that the alien shall be a person of “good moral character”
\nthe test of a crime involving “moral turpitude”, the test by which you determine the
\nfamiliar concept of the “core of a contract”, the “pith and substance” of a legislation or
\nthe “essential legislative function” in the doctrine of delegation. Few Constitutiontly
\nissues can be presented in black and white terms. What are essential features and non
\nessential features of the Constitution ? Where does the core of a right end and the
\nperiphery begin? These are not matters of icy certainty; but, for that reason, I am not
\npresuaded to hold that they do not exist, or that they are too elusive for judicial
\nperception. Most of the things in life that are worth talking about are matters at degree
\nand the great judges are those who are most capable of discerning which of the gradations
\nmake genuine difference.\n<\/p>\n
1759. Nor do I think that all the provisions in the Constitution are equally essential.
\nGladstone said, the most wonderful work ever struck off at a given time by the brain and
\npurpose of man is the Constitution of the United States of America. Lord Bryce said
\nmuch the same thing when he observed that it is one of the greatest contributions ever
\nmade to politics as a practical art. Yet it consists only of VII articles with the
\nAmendments. A Constitution need not partake the prolixity of a code.” And our
\nConstitution could very well have dropped many of its provisions. Merely because all the
\nprovisions of the Constitution have equal importance in one respect, namely, they are all
\nembodied in one document, and can be amended only by the procedure prescribed in
\nArticle 368, it does not follow that all of them are essential features of the document in all
\nother respects.\n<\/p>\n
1760. But the question will still remain, even when the core or the essence of a
\nFundamental Right is found, whether the Amending Body has the power to amend it in
\nsuch a way as to destroy or damage the core. I have already said that considerations of
\njustice, of the common good, or “the general welfare in a democratic society” might
\nrequire abridging or taking away of the Fundamental Rights.\n<\/p>\n
1761. I have tried, like Jacob of the Old Testament to wrestle all the night with the angel,
\nnamely, the theory of implied limitation upon the power of amendment. I have yet to
\nlearn from what source this limitation arises. Is it because the people who were supposed
\nto have framed the Constitution intended it and embodied the intention in an unalterable
\nframework? If this is so, it would raise the fundamental issue whether that intention
\nshould govern the succeeding generations for all time. If you subscribe to the theory of
\nJefferson, to which I have already referred and which was fully adopted by Dr.
\nAmbedkar, the principal architect of our Constitution and that is the only sane theory. I
\nthink there is no foundation for the theory of implied limitations. Were it otherwise, in
\nactual reality it would come to this : The representatives of some people the framers of
\nour Constitution could bind the whole people for all time and prevent them from
\nchanging the Constitutional structure through their representatives. And, what is this
\nsacredness about the basic structure of the Constitution ? Take the republican form of
\nGovernment, the supposed cornerstone of the whole structure. Has mankind, after its
\nwandering through history, made a final and unalterable verdict that it is the best form of
\ngovernment? Does not history show that mankind has changed its opinion from
\ngeneration to generation as to the best form of government? Have not great philosophers
\nand thinkers throughout the ages expressed different views on the subject? Did not Plato
\nprefer the rule by the Guardians? And was the sapient Aristotle misled when he showed
\nhis proclivity for a mixed form of government? If there was no concensus yesterday, why
\nexpect one tomorrow?\n<\/p>\n
1762. The object of the people in establishing the Constitution was to promote justice,
\nsocial and economic, liberty and equality. The modus operandi to achieve these
\nobjectives is set out in Parts III and IV of the Constitution. Both Part III and IV
\nenumerate certain moral rights. Each of these Parts represents in the main the statements
\nin one sense of certain aspirations whose fulfilment was regarded as essential to the kind
\nof society which the Constitution-makers wanted to build. Many of the articles, whether
\nin Part III or Part IV, represent moral rights which they have recognized as inherent in
\nevery human being in this country. The task of protecting and realising these rights is
\nimposed upon all the organs of the State, namely, legislative, executive and judicial.
\nWhat then is the importance to be attached to the fact that the provisions of Part III are
\nenforceable in a Court and the provisions in Part IV are not? Is it that the rights reflected
\nin the provisions of Part III are somehow superior to the moral claims and aspirations
\nreflected in the provisions of Part IV? I think not. Free and compulsory education under
\nArticle 45 is certainly as important as freedom of religion under Article 25. Freedom
\nfrom starvation is as important as right to life. Nor are the provisions in Part III absolute
\nin the sense that the rights represented by them can always be given full implementation
\nin all, circumstances whereas practical exigencies may sometimes entail some
\ncompromise in the implementation of the moral claims in Part IV. When you translate
\nthese rights into socio-political reality, some degree of compromise must always be
\npresent. Part IV of the Constitution translates moral claims into duties imposed on
\ngovernment but provided that these duties should not be enforceable by any Court. See
\ngenerally A.R. Blackshield “Fundamental Rights & Economic Viability of the Indian
\nNation”, Journal of Indian Law Institute, Vol. 10 (1968) 1, 26-28. The question has arisen
\nwhat will happen when there is a conflict between the claims in Part IV and the rights in
\nPart III and whether the State would be justified at any given time in allowing a
\ncompromise or sacrifice the one at the expense of the other in the realisation of the goal
\nof the Good life of the people. What is the relationship between the rights guaranteed by
\nPart III and the moral rights in Part IV? In the State of Madras v. Champakam<\/a> already
\nreferred to this Court held that the Fundamental Rights being sacrosanct, the Directive
\nPrinciples of State Policy cannot override them but must run as subsidiary to them. This
\nview was affirmed by this Court in Quareshi v. State of Bihar (1959) S.C.R. 629. S.R.
\nDas, C.J. who delivered the judgment of the Court said that the argument that the laws
\nwere passed in the discharge of the fundamental obligation imposed on the State by the
\nDirective Principles and therefore, they could override the restrictions imposed on the
\nlegislative power of the State by Article 13(2) or that a harmonious interpretation has to
\nbe placed upon the provisions of the Act was not acceptable. It was held that the State
\nshould implement the Directive Principles but that it should do so in such a way that its
\nlaws do not take away or abridge the Fundamental Rights : as otherwise, the protecting
\nprovisions of Part III will be a mere rope of sand. In Golaknath Case, Subba Rao, C.J.
\nsaid that Fundamental Rights and Directive Principles of State Policy form an integrated
\nwhole and were elastic enough to respond to the changing needs of the society. There are
\nobservations in later cases of this Court that it is possible to harmonize Part III and Part
\nIV.\n<\/p>\n
1763. The significant thing to note about Part IV is that, although its provisions are
\nexpressly made un-enforceable, that does not affect its fundamental character. From a
\njuridical point of view, it makes sense to say that Directive Principles do form part of the
\nConstitutional Law of India and they are in no way subordinate to Fundamental Rights.
\nProf. A.L. Goodhart said:\n<\/p>\n
…if a principle is recognized as binding on the legislature, then it can be
\ncorrectly described as a legal rule even if there is no court that can enforce
\nit. Thus, most of Dicey’s book on the British Constitution is concerned
\nwith certain general principles which Parliament recognizes as binding on
\nit.(1)
\nEnforcement by a Court is not the real test of a law. See “A note on the theory of Law”,
\n“Law and the Constitution” 5th ed. p. 330 by Ivor Jennings. The conventions of English
\nConstitution are not enforceable in a Court of law but they are, nevertheless, binding and
\nform part of the Constitutional law of the land. The similarity between the Constitutional
\nconventions in England and Directive Principles of State Policy in India cannot be
\ndisputed.\n<\/p>\n
1764. The only purpose of Article 37 is to prevent a citizen from coming forward and
\nasking for specific performance of the duties cast upon the State by the Directive
\nPrinciples. But if a State voluntarily were to implement the Directive Principles, a Court
\nwould be failing in its duty, if it did not give effect to the provisions of the law at the
\ninstance of a person who has obtained a right under the legislation. As the
\nimplementation of the Directive Principles involves financial commitments on the part of
\nthe Government and depends upon financial resources, it was thought meet that no
\nprivate citizen should be allowed to enforce their implementation. But nevertheless, when
\nthe State, in pursuance of its fundamental obligation makes a law implementing them, it
\nbecomes the law of the land and the judiciary will be found to enforce the law. What is to
\nhappen if a State were to make a law repugnant to the Directive Principles? Would the
\nCourt be justified in striking down the law as contrary to the Law of the Constitution or,
\non what basis will a conflict between Part III and Part IV be solved? The questions
\nrequire serious consideration.\n<\/p>\n
1765. The definition of the word ‘State’ both for the purpose of Part III and Part IV is the
\nsame. Whereas Article 45 of the Irish Constitution addresses the directive only for the
\nguidance of the Oireachtas, i.e., the legislature, all the directives from Articles 38 to 51 of
\nour Constitution are addressed to the ‘State’ as defined in Article 12. That judicial process
\nis also “State Action” seems to be clear. Article 20(2) which provides that no person shall
\nbe prosecuted and punished for the same offence more than once is generally violated by
\nthe judiciary and a writ under Article 32 should lie to quash the order. In his dissenting
\njudgment in Naresh v. State of Maharashtra [1966] 3 S.C.R. 744 Hidayatullah, J. took,
\nthe view. I think rightly that the judiciary is also “State” within the definition of the word
\n“State” in Article 12 of the Constitution. See also Shelley v. Kraemer 334 U.S., 1;
\nEudhan v. State of Maharashtra [1955] 1 S.C.R. 1045. Frankfurter, J. asked the question
\nthat if the highest court of a state should candidly deny to one litigant a rule of law which
\nit concededly would apply to all other litigants in similar situation, could it escape
\ncondemnation as an unjust discrimination and therefore a denial of the equal protection of
\nthe laws. See Backus v. Fort Street Union Depot Co., 169 U.S. 557, 571; also Snowden v.
\nHughes, 321 U.S. 1.? In Carter v. Texas 177 U.S. 442, 447 the Court observed that
\nwhenever by any action of a State, whether through its legislature, through its courts, or
\nthrough its executive or administrative officers, all persons of the African race are
\nexcluded, solely because of their race or colour, from serving as…jurors in the criminal
\nprosecution of a person of the African race, the equal protection of the laws is denied.
\n1766. If convicting and punishing a person twice for an offence by a judgment is
\nequivalent to the “State passing a law in contravention of the rights conferred by Part III”
\nfor the purpose of enabling the person to file a petition under Article 32 to quash the
\njudgment, I can see no incongruity in holding, when Article 37 says in its latter part. “it
\nshall be the duty of the State to apply these principles in making laws”, that judicial
\nprocess is ‘state action’ and that the judiciary is bound to apply the Directive Principles in
\nmaking its judgment.\n<\/p>\n
1767. The judicial function is, like legislation, both creation and application of law. The
\njudicial function is ordinarily determined by the general norms both as to procedure and
\nas to the contents of the norm to be created, whereas legislation is usually determined by
\nthe Constitution only in the former respect. But that is a difference in degree only. From a
\ndynamic point of view, the individual norm created by the judicial decision is a stage in a
\nprocess beginning with the establishment of the first Constitution, continued by
\nlegislation and customs and leading to the judicial decisions. The Court not merely
\nformulates already existing law although it is generally asserted to be so. It does not only
\n‘seek’ and ‘find’ the law existing previous to its decision, it does not merely pronounce the
\nlaw which exists ready and finished prior to its pronouncement. Beth in establishing the
\npresence of the conditions and in stipulating the sanction, the judicial decision has a
\nconstitutive character. The law-creating function of the courts is especially manifest when
\nthe judicial decision has the character of a precedent, and that means when the judicial
\ndecision creates a general norm. Where the courts are entitled not only to apply pre-
\nexisting substantive law in their decisions, but also to create new law for concrete cases,
\nthere is a comprehensible inclination to give these judicial decisions the character of
\nprecedents. Within such a legal system, courts are legislative organs in exactly the same
\nsense as the organ which is called the legislator in the narrower and ordinary sense of the
\nterm. Courts are creators of general legal norms. See Kelsen, “General Theory of Law
\nand State” pp. 134-5 & 149-150. Lord Reid said : See the recent address of Lord Reid,
\n“The Judge as Law Maker” (1972) 12 J.S.P.T.L. (N.S.) 22, 29.\n<\/p>\n
There was a time when it was thought almost indecent to suggest that
\njudges make law-they only declare it. Those with a taste for fairy-tales
\nseem to have thought that in some Aladdin’s Cave there is hidden the
\nCommon Law in all its splendour and that on a judge’s appointment there
\ndescends on him knowledge of the magic words Open Sesame…. But we
\ndo not believe in fairy talcs any more.\n<\/p>\n
I do not think any person with a sense of realism believes today as Blackstone did that the
\nlaw declared by the courts has a platonic or ideal existence before it is expounded by
\njudges. John Chipman Gray said that in the last analysis the courts also make our statute
\nlaw and quoted the passage from the famous sermon of Bishop Hoadly that whoever has
\nabsolute power to interpret the law, it is he who is the law-giver, not the one who
\noriginally wrote it. See “Nature and Sources of the Law” pp. 102, 125, 172.
\n1768. It is somewhat strange that judicial process which involves law-making should be
\ncalled ‘finding the law’. “Some simple-hearted people believe that the names we give to
\nthings do not matter. But though the rose by any other name might smell as sweet, the
\nhistory of civilization bears ample testimony to the momentous influence of names. At
\nany rate, whether the process of judicial legislation should be called finding or making
\nthe law is undoubtedly of great practical moment”. See M.R. Cohen, “Law and the Social
\nOrder” (1933), pp. 121-124. Nobody doubts today that within the confines of vast spaces
\na judge moves with freedom which stamps his action as creative. “The law which is the
\nresulting product is not found, but made. The process, being legislative, demands the
\nlegislator’s wisdom”. See Benjamin N. Cardozo, “The Nature of the Judicial process”, p.\n<\/p>\n
115.
\n1769. It is relevant in this context to remember that in building up a just social order it is
\nsometimes imperative that the Fundamental Rights should be subordinated to Directive
\nPrinciples. The makers of the Constitution had the vision of a future where liberty,
\nequality and justice would be meaningful ideals for every citizen. There is a certain air of
\nunreality when you assume that Fundamental Rights have any meaningful existence for
\nthe starving millions. What boots it to them to be told that they are the proud possessors
\nof the Fundamental Rights including the right to acquire, hold and dispose of property if
\nthe society offers them no chance or opportunity to come by these rights? Or, what boots
\nit to the beggar in the street to be told that the Constitution in its majestic equality, holds
\nits scales even and forbids by law both his tribe and the rich to beg in the street, to steal
\nbread or sleep under the bridge? This is not to say that the struggle for a just economic
\norder should be allowed to take priority over the struggle for the more intangible hopes of
\nman’s personal self-fulfilment. But in particular contexts, fundamental freedoms and
\nrights must yield to material and practical needs. Economic goals have an un-contestable
\nclaim for priority over ideological ones on the ground that excellence comes only after
\nexistence. See generally A.R. Blackshield “Fundamental Rights and Economic Viability
\nof the Indian Nation”, Journal of the Indian Law Institute, Vol. 10 (1968) 1. It is only if
\nmen exist that there can be fundamental rights. “Tell an unprovisioned man lost in the
\ndesert that he is free to eat, drink, bathe, read…. No one is hindering him. For the
\nattainment of most of these ends he might better be in prison. Unrestraint without
\nequipment is not liberty for any end which demands equipment…. Unemployment is a
\nliteral unrestraint, a marked freedom from the coercions of daily toil but as destructive of
\nmeans it is the opposite of freedom for…. To contemporary consciousness it has become
\nan axiom that there can be no freedom without provision. See Hocking “Freedom of the
\nPress”, pp. 55-56.\n<\/p>\n
1770. The twentieth century juristic thinking has formulated two jural postulates. They
\nare (1) Every one is entitled to assume that the burdens incidental to life in society will be
\nborne by society; (2) Every one is entitled to assume that at least a standard of human life
\nwill be assured to him; not merely equal opportunities of providing or attaining it but
\nimmediate material satisfaction. See Roscoe Pound, “Jurisprudence” Vol. 1, Section 46
\n(Twentieth Century).\n<\/p>\n
1771. The concept of liberty or equality can have meaning only when men are alive today
\nand hope to be alive tomorrow. “One hates to think how few Indians, for example, have
\nany idea that their Constitution provides basic rights, let alone what those rights are or
\nhow they could be defended when violated by Government”. See Carl J. Friedrich, Man
\nand His Government, p. 272. So the main task of freedom in India for the large part of the
\npeople is at the economic level.\n<\/p>\n
1772. Roscoe Pound who expounded his theory of interest as a criterion of justice insists
\nwithout qualification that the “interest” or “claims” or “demands” with which he is
\nconcerned are de facto psychological phenomena which pre-exist and are not merely the
\ncreation of the legal order. See Pound, 3 Jurisprudence, 5-24, esp. 16-21.
\n1773. Pound’s proposals seem, in the last analysis, to be an attempt to implement the
\nfamiliar thought that there should be a correspondence between the demands made by
\nman in a given society at a given time and its law at that time.\n<\/p>\n
1774. The scheme of interests should include, all the de facto claims actually made. This,
\nof course, is not to say that every de facto claim or interest which finds a place in the
\nscheme of interests will be given effect in all circumstances. Claims within a legal order
\nwhich are not necessarily mutually incompatible may nevertheless come into conflict in
\nparticular situations. Indeed most of the problems in which the judgment of justice is
\ncalled for arise from a conflict of two or more of such de facto claims, none of which can
\nbe given effect to completely without prejudice to the others. The scheme of interests,
\nlike the jural postulates, is a device for presenting to the mind of the legislator a rough
\npicture of the actual claims made by men in a given society at a given time, to which
\njustice requires them to give effect so far as possible. See Julius Stone, Human Law and
\nHuman Justice, pp. 269-270. And what are the de facto claims crying aloud for
\nrecognition as interests for the millions of people of this country? That can probably
\nadmit of only one answer, by those who have eyes to see and ears to hear. By and large
\nthe rough picture of the actual claims made by the millions of people in this country and
\nwhich demand recognition as interests protected by law is sketched in Part IV of the
\nConstitution. A judgment of justice is called for when these claims which call for
\nrecognition in law as interest conflict with other rights and interests. That judgment has to
\nbe made by the dominant opinion in the community. For a Judge to serve as a communal
\nmentor, as Learned Hand said, appears to be a very dubious addition to his duties and one
\napt to interfere with their proper discharge. The court is not the organ intended or
\nexpected to light the way to a saner world, for, in a democracy, that choice is the province
\nof the political branch i.e. of the representatives of the people, striving however blindly or
\ninarticulately, towards their own conception of the Good Life.
\n1775. It is inevitable that there should be much gnashing of teeth when a society opts for
\nchange and breaks with its older laissez faire tradition, which held before the eyes of both
\nthe rich and the poor a golden prize for which each may strive though all cannot attain it
\nand which in particular provided the rich with an enchanting vision of infinite expansion,
\nand switches on to a new social order where claims of individual self assertion and
\nexpansion are subordinated to the common good.\n<\/p>\n
1776. To sum up this part of the discussion, I think there are rights which inhere in
\nhuman beings because they are human beings-whether you call them natural rights or by
\nsome other appellation is immaterial. As the preamble indicates, it was to secure the basic
\nhuman rights like liberty and equality that the people gave unto themselves the
\nConstitution and these basic rights are an essential feature of the Constitution; the
\nConstitution was also enacted by the people to secure justice, political, social and
\neconomic. Therefore, the moral rights embodied in Part IV of the Constitution are equally
\nan essential feature of it, the only difference being that the moral rights embodied in Part
\nIV are not specifically enforceable as against the State by a citizen in a Court of law in
\ncase the State fails to implement its duty but, nevertheless, they are fundamental in the
\ngovernance of the country and all the organs of the State, including the judiciary, are
\nbound to enforce those directives. The Fundamental Rights themselves have no fixed
\ncontent; most of them are mere empty vessels into which each generation must pour its
\ncontent in the light of its experience. Restrictions, abridgement; curtailment, and even
\nabrogation of these rights in circumstances not visualized by the Constitution-makers
\nmight become necessary; their claim to supremacy or priority is liable to be overborne at
\nparticular stages in the history of the nation by the moral claims embodied in Part IV.
\nWhether at a particular moment in the history of the nation, a particular Fundamental
\nRight should have priority over the moral claim embodied in Part IV or must yield to
\nthem is a matter which must be left to be decided by each generation in the light of its
\nexperience and its values. And, if Parliament, in its capacity as the Amending Body,
\ndecides to amend the Constitution in such a way as to take away or abridge a
\nFundamental Right to give priority value to the moral claims embodied in Part IV of the
\nConstitution, the Court cannot adjudge the Constitutional amendment as bad for the
\nreason that what was intended to be subsidiary by the Constitution-makers has been made
\ndominant. Judicial review of a Constitutional amendment for the reason that it gives
\npriority value to the moral claims embodied in Part IV over the Fundamental Rights
\nembodied in Part III is impermissible. Taking for granted, that by and large the
\nFundamental Rights are the extensions, permutations and combinations of natural rights
\nin the sense explained in this judgment, it does not follow that there is any inherent
\nlimitation by virtue of their origin or character in their being taken away or abridged for
\nthe common good. The source from which these rights derive their moral sanction and
\ntranscedental character, namely, the natural law, itself recognizes that natural rights are
\nonly prima facie rights liable to be taken away or limited in special circumstances for
\nsecuring higher values in a society or for its common good. But the responsibility of the
\nParliament in taking away or abridging a Fundamental Right is an awesome one and
\nwhenever a question of Constitutional amendment which will have the above effect
\ncomes up for consideration, Parliament must be aware that they are the guardians of the
\nrights and liberties of the people in a greater degree than the courts, as the courts cannot
\ngo into the validity of the amendment on any substantive ground.
\n1776. In the light of what I have said, I do not think that there were any express or
\nimplied limitations upon the power of Parliament to amend the Fundamental Rights in
\nsuch a way as to destroy or damage even the core or essence of the rights and the 24th
\nAmendment, by its language, makes it clear beyond doubt. The opening words of the
\namended article should make it clear that no invisible radiation from any other provision
\nof the Constitution would operate as implied limitation upon the power of amendment.
\nFurther, the amended Article 368 puts it beyond doubt that the power to amend the
\nprovisions of the Constitution is in the article itself that the power includes the power to
\nadd, vary or repeal any provision of the Constitution, that the power is a constituent
\npower, that the assent of the President to a bill for amendment is compulsory and that
\nnothing in Article 13(2) will apply to an amendment under the article.
\n1777. Article 368, as it stood before the Amendment, conferred plenary power to amend
\nall the provisions of the Constitution and the 24th Amendment, except in one respect,
\nnamely, the compulsory character of the assent of the President to a bill for amendment,
\nis declaratory in character. To put it in a different language, as the majority decision in
\nthe Golaknath case [1967] 2 S.C.R. 762 negatived the constituent power of the
\nParliament to amend the Fundamental Rights in such a way as to take away or abridge
\nthem which, according to the Amending Body, was wrong, the Amending Body passed
\nthe amendment to make it clear that the power to amend is located in the article, that it is
\na constituent power and not a legislative power as held by the majority decision in the
\nGalaknalh case, that the power is plenary in character and that Article 13(2) is not a bar to
\nthe amendment of the Fundamental Rights in such a way as to take away or abridge them
\nunder Article 368. That the object of the amendment was declaratory in character in clear
\nfrom the statement of Objects and Reasons for the Amendment. That says that the
\nAmendment was made to provide expressly that the Parliament has competence, in the
\nexercise of its amending power, to abridge or take away the Fundamental Rights since the
\nmajority in the Golaknath Case held that the Parliament had no such power. As I have
\nalready said, the Amendment has added nothing to the content of the article except the
\nrequirement as to the compulsory character of the assent of the President to the bill for
\namendment. That an Amending Body, in the exercise of its power to amend, if the power
\nto amend is plenary, can make an amendment in order to make clear what was implicit in
\nthe article and to correct a judicial error in the interpretation of the article appears to me
\nto be clear.\n<\/p>\n
1778. Mr. Palkhivala contended that as the power to amend under Article 368 as it stood
\nbefore the 24th Amendment was itself limited, the power to amend that power cannot be
\nutilised to enlarge the amending power.\n<\/p>\n
1779. There is nothing illegal or illogical in a donor granting a limited power coupled
\nwith a potential power or capacity in the donee to enlarge the limit of that power
\naccording to the discretion of the donee. It is a mistake to suppose even on the
\nassumption that the actual power to amend under Article 368 as it stood before the 24th
\nAmendment was limited, the Amending Body cannot enlarge the limit of the power. As I
\nsaid, even if it be assumed that the actual power for amendment under the article was
\nlimited, the article gave the Amending Body a potential power, to enlarge or contract the
\nlimit of the actual power. The potential power when exercised by the Amending Body
\nmakes the actual power either enlarged or contracted. The wording of proviso to Article
\n368, viz., “If the amendment seeks to make any change…(e) in the provision of this
\narticle” makes it clear chat the object of the amendment of the article is to make change
\nin Article 368. On what basis is the assumption made that by making change in the
\narticle, the area of the power, if actually limited, cannot be enlarged? I must confess my
\ninability to perceive any limit as to the character of the change that might be made in the
\namending power. It was assumed by Hidayatullah, J. in his judgment in Golaknath Case
\nthat the article can be so amended and a Constituent Assembly convoked to amend the
\nFundamental Rights. Is such an amendment of Article 368 possible if the argument of the
\npetitioner is right that the power to amend the amending power cannot be exercised so as
\nto change the locus or the width of the amending power? The only thing required would
\nbe that the amending power should be amended in the manner and form prescribed by the
\narticle itself. And there is no case that that has not been done.
\n1780. Counsel also submitted that the operation of Article 13(2) was not liable to be
\ntaken away by the amendment. He said that although there was no express provision in
\nArticle 13(2) or in Article 368 which prevented the operation of Article 13(2) being taken
\naway, there was implied limitation for the reason that, if the Fundamental Rights could
\nnot have been amended in such a way as Co take away or abridge them because of the
\ninhibition contained in Article 13(2), that inhibition could not have been removed
\nindirectly by amending Article 368 and Article 13(2). In other words, the argument was,
\nas the word ‘law’ in Article 13(2) included an amendment of the Constitution, that was an
\nexpress bar to the amendment of the Fundamental Rights in such a way as to take away
\nor abridge them and, therefore, the Amending Body cannot do in two stages what it was
\nprohibited from doing in one stage. Even on the assumption that the word ‘law’ in Article
\n13(2) included an amendment of the Constitution, I think there was nothing which
\nprevented the Amending Body from amending Article 368 and Article 13(2) in such a
\nway as to exclude the operation of Article 13(2) as there was no express or implied
\nprohibition for doing so.\n<\/p>\n
1781. The next question for consideration is whether the 25th Amendment is valid. By
\nthat Amendment, Article 31(2) was amended and the amended article says that no
\nproperty shall be acquired save by the authority of law which provides for acquisition or
\nrequisition of the property for an ‘amount’ which may be fixed by such law or which may
\nbe determined in accordance with such principles and given in such manner as may be
\nspecified in such law and that no such law shall be called in question in any Court on the
\nground that the amount so fixed or determined is not adequate or that the whole or any
\npart of such amount is to be given otherwise than in cash. An exception has been made in
\nthe case of acquisition of property belonging to an educational institution established and
\nadministered by a minority referred to in Clause (1) of Article 30 by providing that the
\nState shall ensure that the amount fixed by or determined under the law for acquisition of
\nsuch property must be such as would not restrict or abrogate the right guaranteed under
\nthan clause. Clause (2B) to Article 31 provides for dispensing with the application of
\nArticle 19(1)(f) to any law as is referred to in Sub-clause (2) of Article 31. A new article
\nwas also inserted viz., Article 31C which provides that notwithstanding anything
\ncontained in Article 13, no law giving effect to the policy of the State towards securing
\nthe principles specified in Clause (b) or Clause (c) of Article 39 shall be deemed to be
\nvoid on the ground that it is inconsistent with or takes away or abridges any of the rights
\nconferred by Articles 14, 19 and 31; and no law containing a declaration that it is for
\ngiving effect to such policy shall be called in question in any court on the ground that it
\ndoes not give effect to such policy : Provided that where such law is made by the
\nLegislature of a State, the provisions of this article shall not apply thereto unless such
\nlaw, having been reserved for the consideration of the President has received his assent.
\n1782. Mr. Palkhivala contended that the Fundamental Right to acquire, hold and dispose
\nof property is an essential feature of the Constitution, that there can be no dignified
\ncitizens in a State unless they have the right to acquire and hold property, that the right to
\nacquire and hold property is essential for the enjoyment of all other Fundamental Rights
\nas it is the basis on which all other rights are founded, that the Fundamental Rights
\nguaranteed to the minorities would become a rope of sand if the right to hold and dispose
\nof property can be taken away and as power to acquire property for an ‘amount’
\ninadequate or illusory is given to the Parliament or State Legislature, that would damage
\nthe essence or core of the Fundamental Right to property. Counsel said that if the core or
\nthe essence of the right to hold property could be taken away by a law, the right to
\nfreedom of press under Article 19(1)(a) would become meaningless as a publisher could
\nbe deprived of his printing press by paying him a nominal amount and that the
\nfundamental right of the workers to form associations and of the religious denominations
\nto establish and maintain institutions for religious and charitable purposes would become
\nempty words.\n<\/p>\n
1783. The framers of the Constitution regarded the right to acquire and hold property as a
\nFundamental Right for the reason that a dignified human life is impossible without it.
\nWhether it is the weakest of all Fundamental Rights would depend upon the question
\nwhether there is a heirarchy of values among the Fundamental Rights. The concept of
\npreferred freedoms is an indication that some judges are inclined to put the right to hold
\nproperty low in the scale of values.\n<\/p>\n
1784. The exponents of natural law like Aristotle, St. Thomas Aquinas, Hobbes and even
\npositivists are agreed that right to life and property is the presupposition of a good legal
\norder. Property, according to Aristotle, is an instrument of the best and highest life.
\nProperty is the necessary consequence and condition of liberty. Liberty and property
\ndemand and support each other.\n<\/p>\n
1785. The doctrine of natural rights has exercised a profound influence upon the
\nconception of private property. In its most modern form it insists that property is
\nindispensable to man’s individual development and attainment of liberty, Without
\ndominion over things, man is a slave. See John Moffatt Mecklin, “An Introduction to
\nSocial Ethics”, pp. 302-321.\n<\/p>\n
1786. The most that we can claim, as a general principle applicable to all stages of social
\ndevelopment, is that without some property or capacity for acquiring property there can
\nbe no individual liberty, and that without some liberty there can be no proper
\ndevelopment of character. See Rashdall, “Property : Its Duties and Rights”, pp. 52-64.
\n1787. Persons without property enjoy no sense of background such as would endow their
\nindividual lives with a certain dignity. They exist on the surface; they cannot strike roots,
\nand establish permanency. Holland, “Property : Its Duties and Rights”, pp. 183-192.
\n1788. In short, the concept of property is not an arbitrary ideal but is founded on man’s
\nnatural impulse to extend his own personality. In the long run, a man cannot exist, cannot
\nmake good his right to marriage or found a family unless he is entitled to ownership
\nthrough acquisition of property.\n<\/p>\n
1789. However, it is a very common mistake to speak of property as if it were an
\ninstitution having a fixed content constantly remaining the same; whereas in reality, it has
\nassumed the most diverse forms and is still susceptible to great unforeseen modifications.
\n1790. The root of the difficulty is that in most of the discussions the notion of private
\nproperty is used too vaguely. It is necessary to distinguish at least three forms of private
\nproperty : (i) property in durable and non-durable consumer’s goods; (ii) property in the
\nmeans of production worked by their owners; (iii) property in the means of production
\nnot worked or directly managed by their owners, especially the accumulations of masses
\nof property of this kind in the hands of a relatively narrow class. While the first two
\nforms of property can be justified as necessary conditions of a free and purposeful life,
\nthe third cannot. For this type of property gives power not only over things, but through
\nthings over persons. It is open to the charge made that any form of property which gives
\nman power over man is not an instrument of freedom but of servitude. See Professor
\nMorris Ginsberg, “Justice in Society”, p. 101.\n<\/p>\n
1791. The foundation of our society today is found not in functions, but in rights; that
\nrights are not deducible from the discharge of function, so that the acquisition of wealth
\nand the enjoyment of property are contingent upon the performance of services but that
\nthe individual enters the world equipped with rights to the free disposal of this property
\nand the pursuit of his economic self-interest, and that these rights are anterior to, and
\nindependent of any service which he may render. In other words, “the enjoyment of
\nproperty and the direction of industry are considered to require no social justification”
\n(See the passage quoted in “Equal Protection Guarantee and the Right to Property under
\nthe Indian Constitution”, by Jagat Narain, International And Comparative Law Quarterly,
\nVol. 15, 1966, pp. 206-7).\n<\/p>\n
1792. The framers of our Constitution made the right to acquire, hold and dispose of
\nproperty a Fundamental Right thinking that every citizen in this country would have an
\nopportunity to come by a modicum of that right. Therefore, as the learned Attorney
\nGeneral rightly contended any defence of the right to own and hold property must
\nessentially be the defence of a well distributed property and not an abstract right that can,
\nin practice, be exercised only by the few.\n<\/p>\n
1793. Article 39(b) provides that the State shall direct its policy towards securing that the
\nownership and control of the material resources of the community are so distributed as
\nbest to subserve the common good. Article 39(c) states that the State shall direct its
\npolicy towards securing that the operation of the economic system does not result in the
\nconcentration of wealth and means of production to the common detriment.
\n1794. Sir Ivor Jennings has said that the propositions embodied in these sub-articles are
\nderived from Article 45 of the Irish Constitution and that in turn is based upon Papal
\nBulls. See Sir Ivor Jennings, “Some Characteristics of the Indian Constitution”, pp. 31-\n<\/p>\n
32.
\n1795. His Holiness Pope Paul VI, following the previous encyclicals on the subject has
\nsaid : See Encyclical Letter of Pope Paul VI (1967), “On the Development of Peoples”,
\npp. 18, 58, footnote at p. 58.\n<\/p>\n
To quote St. Ambrose : “…the world is given to all, and not only to the
\nrich”. That is, private property does not constitute for anyone as absolute
\nand unconditioned right. No one is justified in keeping for his exclusive
\nuse what he does not need, when others lack necessities. In a word,
\n‘according to the traditional doctrine as found in the Fathers of the Church
\nand the great theologians, the right to property must never be exercised to
\nthe detriment of the common good.\n<\/p>\n
God has intended the earth and all that it contains for the use of all men
\nand all peoples. Hence, justice, accompanied by charity, must so regulate
\nthe distribution of created goods that they are actually available to all in an
\nequitable measure.\n<\/p>\n
Moreover, all have the right to possess a share of earthly goods sufficient
\nfor themselves and their families.\n<\/p>\n
In extreme necessity all goods are common, that is, are to be shared.
\n1796. The basic institution of property is not to be confused with particular forms it may
\nassume in different ages or regions. These will be justified according as they continue to
\nshow that they are achieving the general aim of ministering to the good of human life.
\nNatural right may also be violated under a regime in which a great number, although
\ntheoretically free, are in practice excluded from the possibility of acquiring property. See
\nWilliam J. McDonald, “The Social Value of Property according to St. Thomas Aquinas”,
\np. 183.\n<\/p>\n
1797. When property is acquired for implementing the directive principles under Article
\n39(b) or 39(c), is there an ethical obligation upon the State to pay the full market value?
\nIn all civilized legal systems, there is a good deal of just expropriation or confiscation
\nwithout any direct compensation. Indeed, no one, in fact, had the courage to argue that
\nthe State has no right to deprive an individual of property to which he is so attached that
\nhe refuses any money for it. Article 31(2A) proceeds on the assumption that there is no
\nobligation upon the State to pay compensation to a person who is deprived of his
\nproperty. What does it matter to the person who is deprived of his property whether after
\nthe deprivation, the State or a Corporation owned or controlled by the State acquires title
\nto it? Every acquisition by State pre-supposes a deprivation of the owner of the property.
\nIf when depriving a person of his property, the State is not bound to pay compensation,
\nwhat is the principle of justice which demands that he should be compensated with full
\nmarket value merely because the title to the property is transferred to State or the
\nCorporation as aforesaid after the deprivation. No absolute principle of justice requires it.
\nThe whole business of the State depends upon its rightful power to take away the
\nproperty of Dives in the form of taxation and use it to support Lazarus. When slavery was
\nabolished in America, by law, the owners had their property taken away. The State did
\nnot consider itself ethically bound to pay them the full market value of their slaves. It is
\ncertainly a grievous shock to a community to have a large number of slave owners, whose
\nwealth made them leaders of culture, suddenly deprived of their income. Whether it was
\ndesirable for the slaves themselves to be suddenly taken away from their masters and cut
\nadrift on the sea of freedom without compensation is another matter. “When prohibition
\nwas introduced in America, there was virtual confiscation of many millions of dollars’
\nworth of property. Were the distillers and brewers entitled to compensation for their
\nlosses?. The shock to the distillers and brewers was not as serious as to others e.g., saloon
\nkeepers and bartenders who did not lose any legal property since they were only
\nemployees, but who found it difficult late in life to enter new employments. These and
\nother examples of justifiable confiscation without compensation are inconsistent with the
\nabsolute theory of private property”. See generally M.R. Cohan, “Property and
\nSovereignty”, Law and Social Order, p. 45 onwards.\n<\/p>\n
1798. An adequate theory of social justice should enable one to draw the line between
\njustifiable and unjustfiable cases of confiscation.\n<\/p>\n
1799. The intention of the framers of the Constitution, when they drafted Article 24 [the
\noriginal Article 31(2)], can be seen from the speech of Pandit Jawaharlal Nehru in the
\nConstituent Assembly on September 10, 1949. Constituent Assembly Debates, Vol. IX,
\n1193.\n<\/p>\n
…Eminent lawyers have told us that on a proper construction of this
\nclause, normally speaking, the judiciary should not and does not come in.
\nParliament fixes either the compensation itself or the principles governing
\nthat compensation and they should not be challenged except for one
\nreason, where it is thought that there has been a gross abuse of the law,
\nwhere in fact there has been a fraud on the Constitution.\n<\/p>\n
1800. Shri K.M. Munshi (who spoke in the Constituent Assembly on the draft Article 24
\non September 12, 1949, observed : Constituent Assembly Debates, Vol. IX, p. 1299.
\nWe find on the English Statute Book several Acts, the Land Acquisition
\nAct, the Land Clauses Act, the Housing Act, in all of which a varying
\nbasis of compensation has been adopted to suit not only to the nature of
\nthe property but also the purpose for which it is to be acquired. Parliament
\ntherefore is the judge and master of deciding what principles to apply in
\neach case.\n<\/p>\n
1801. In the State of West Bengal v. Bela Banerjee<\/a> (1954) S.C.R. pp. 558, 563-4, the
\nexpectation entertained by the Constituent Assembly that the Court will not interfere with
\nthe fixation of compensation by Parliament was belied. The Court said in that case that
\nthe owner of the property expropriated must be paid the just equivalent of what he has
\nbeen deprived of and that within the limits of this basic requirement of full
\nindemnification of the expropriated owner, the Constitution allows free play to the
\nlegislative judgment as to what principles should guide the determination of the amount
\npayable.\n<\/p>\n
1802. In order to bring Article 31(2) in conformity with the clear inten tion of the framers
\nof the Constitution, the Fourth Amendment to the Constitution was passed and it came
\ninto effect on April 27, 1955. At the end of Article 31(2) the following words were
\nintroduced by the Amendment : “…and no such law shall be called in question in any
\nCourt on the ground that the compensation provided by the law is not adequate.” The
\neffect of the amendment was considered by this Court in P. Vajravelu Mudaliar v. Deputy
\nCollector<\/a> (1965) 1 S.C.R. pp. 614, 626. Subba Rao, J. (as he then was) said that the fact
\nthat Parliament used the same expressions namely, ‘compensation’ and ‘principles’ as were
\nfound in Article 31 before the amendment is a clear indication that it accepted the
\nmeaning given by this Court to those expressions in Mrs. Bela Banerjee’s Case and that it
\nfollows that a Legislautre in making a law of acquisition or requisition shall provide for a
\njust equivalent of what the owner has been deprived of or specify the principles for the
\npurpose of ascertaining the ‘just equivalent’ of what the owner has been deprived of.
\n1803. In Union of India v. Metal Corporation<\/a> (1967) 1 S.C.R. p. 255, it was laid down
\nthat to provide written down value of a machinery (as it was understood under the
\nIncome Tax Act) was not in compliance with Article 31(2) because it did not represent
\nthe just equivalent of the machinery, meaning thereby, the price at or about the time of its
\nacquisition. Subba Rao, J. said that the law to justify itself has to provide for the payment
\nof a ‘just equivalent’ to the land acquired or lay down principles which will lead to that
\nresult.\n<\/p>\n
1804. Two years later, in Gujarat v. Shantilal (1969) 3 S.C.R. 341, this Court overruled
\nthe decision in the Metal Corporation Case and Shah, J. observed that if the quantum of
\ncompensation fixed by the Legislature is not Habile to be canvassed before the Court on
\nthe ground that it is not a just equivalent, the principles specified for determination of
\ncompensation will also not be open to challenge on the plea that the compensation
\ndetermined by the application of those principles is not a just equivalent.
\n1805. In the Bank Nationalisation Case R.C. Cooper v. Union of India<\/a> [1970] 3 S.C.R.
\n530, the majority decision virtually overruled the decision in Gujarat v. Shantilal. The
\nmajority was of the view that even after the Fourth Amendment ‘compensation’ meant
\n“the equivalent in terms of money of the property compulsorily acquired” according to
\n‘relevant principles’ which principles must be appropriate to the determination of
\ncompensation for the particular class of property sought to be acquired.
\n1806. It was in these circumstances that the word ‘amount’ was substituted for
\n‘compensation’ in the sub-article by the 25th Amendment.\n<\/p>\n
1807. It was submitted on behalf of the petitioner that the word ‘amount’ implies a norm
\nfor fixing it and that at any rate, when principles for fixing the amount are referred to, the
\nprinciples must have some relevancy to the amount to be fixed.\n<\/p>\n
1808. The whole purpose of the amendment was to exclude judicial review of the
\nquestion whether the ‘amount’ fixed or the principle laid down by law is adequate or
\nrelevant.\n<\/p>\n
1809. Mukherjea, C.J. said in Rat Sahib Ram Jawaya Kapur v. State of Punjab<\/a> (1955) 2
\nS.C.R. 225, 237, that the Cabinet, enjoying as it does, a majority in the legislature
\nconcentrates in itself the virtual control of both legislative and executive functions; and as
\nthe Ministers constituting the Cabinet are presumably agreed on fundamentals and act on
\nthe principle of collective responsibility, the most important questions of policy are all
\nformulated by them.\n<\/p>\n
1810. Much the same sentiment was expressed by Hegde, J. see Sita Ram Bishambhar
\nDayal v. State of U.P.<\/a> (1972), 29 Sales Tax Cases, 206:\n<\/p>\n
In a Cabinet form of Government, the executive is expected to reflect the
\nviews of the Legislature. In fact in most matters it gives the lead to the
\nLegislature. However much one might deplore the “New Despotism” of
\nthe executive, the very complexity of the modern society and the demand
\nit makes on its government have set in motion forces which have made it
\nabsolutely necessary for the legislatures to entrust more and more powers
\nto the executive. Text book doctrines evoked in the 19th century have
\nbecome out of date….\n<\/p>\n
1811. When the Cabinet formulates a proposal for acquisition of property, it will have the
\nrelevant materials to fix the amount to be paid to the owner or the principles for its
\nfixation. Several factors will have to be taken into account for fixing the amount or laying
\ndown the principles; the nature of the property sought to be acquired, the purpose for
\nwhich the acquisition is being made, the real investment of the owner excluding the
\nfortuitous circumstances like unearned increment and also marginal utility of the property
\nacquired to the owner. Principles of social justice alone will furnish the yardstick for
\nfixing the amount or for laying down the principles. The proposal becomes embodied in
\nlaw, if the Parliament agrees to the Bill embedying the proposal. The whole point is that
\nthe fixation of the amount or the laying down of the principle for fixing it is left to the
\nabsolute discretion of the Parliament or the State Legislatures on the basis of
\nconsideration of social justice. That the fixation is in the absolute discretion of Parliament
\nor the State Legislature is further made clear when it is laid down that “no such law shall
\nbe called in question in any Court on the ground that the amount so fixed or determined is
\nnot adequate.” If the Parliament or State legislature can fix any amount, on consideration
\nof principles of social justice, it can also formulate the principle for fixing the amount on
\nthe very same consideration. And the principle of social justice will not furnish judicially
\nmanageable standards either for testing the adequacy of the amount or the relevancy of
\nthe principle.\n<\/p>\n
1812. The article as amended provides no norm for the Court to test the adequacy of the
\namount or the relevancy of the principle. Whereas the word ‘compensation’, even after the
\nFourth Amendment, was thought to give such a norm, namely, the just’ equivalent in
\nmoney of the property acquired or full indemnification of the owners the word ‘amount’
\nconveys no idea of any norm. If supplies no yard-stick. It furnishes no measuring rod.
\nThe neutral word ‘amount’ was deliberately chosen for the purpose. I am unable to
\nunderstand the purpose in substituting the word ‘amount’ for the word ‘compensation’ in
\nthe sub article unless it be to deprive the Court of any yardstick or norm for determining
\nthe adequacy of the amount and the relevancy of the principles fixed by law. I should
\nhave thought that this coupled with the express provision precluding the Court from
\ngoing into the adequacy of the amount fixed or determined should put it beyond any
\ndoubt that fixation of the amount or determination of the principle for fixing it is a matter
\nfor the Parliament alone and that the Court has no say in the matter.
\nThis Court said in Shantilal’s Case [1969] 3 S.C.R. pp. 341, 366:
\n…it does not however mean that something fixed or determined by the
\napplication of specified principles which is illusory or can in no sense be
\nregarded as compensation must be upheld by the courts, for, to do so,
\nwould be to grant a charter of arbitrariness.\n<\/p>\n
1813. These observations were made with reference to the sub-article as it stood before
\nthe 25th Amendment, namely, before the substitution of the word ‘amount’ for the word
\n‘compensation’ in it Even if the decision of this Court in Shantilal’s Case is assumed to be
\ncorrect, what is its relevancy after the substitution of the word ‘amount’ in Article 31(2) as
\nregards the jurisdiction of the Court to test the adequacy of the amount on the ground of
\narbitrariness.\n<\/p>\n
1814. I do not propose to decide nor is it necessary for the purpose of adjudging the
\nvalidity of the 25th Amendment whether a law fixing an amount which is illusory or
\nwhich is a fraud on the Constitution, can be struck down by Court. It is said that the
\ninstances in which the Court can interefere to test the adequacy of compensation or the
\nrelevancy of the principles for determination of compensation had been laid down in the
\nBank Nationalisation Case and when the 25th Amendment did not make any change in
\nthe clause, namely, “no such law shall be called in question in any court on the ground
\nthat the amount so fixed or determined is not adequate” but retained it in its original form,
\nthe only inference is that the Parliament approved the interpretation placed upon the
\nclause by this Court and, therefore, the Court has power to examine the question Whether
\nthe amount fixed by law is adequate or illusory or that the principles for fixation of the
\namount are relevant. I am not quite sure about the nature of the presumption when the
\nword “compensation” has, been deleted from the sub-article and the word “amount”
\nsubstituted.\n<\/p>\n
1815. In The Royal Court Derby Procelain Co. Ltd. v. Raymond Russel [1949] 2 K.B.
\n417 at 429 Denning, L.J. said:\n<\/p>\n
I do not believe that whenever Parliament re-enacts a provision of a statute
\nif thereby gives statutory authority to every erroneous interpretation which
\nhas been put upon it. The true view is that the Court will be slow to
\noverrule a previous decision on the interpretation of a statute when it has
\nlong been acted on, and it will be more than usually slow to do so when
\nParliament has, since the decision, re-enacted the statute in the same
\nterms.\n<\/p>\n
1816. See also the speech of Lord Radcliffe in Galloway v. Galloway [1956] A.C. 299.
\nThe presumption, if there is any, is always subject to an intention to the contrary.
\n1817. Counsel for the petitioner argued that as Article 19(i)(f) is still retained it would be
\nparadoxical if a law could provide for acquisition or requisition of property on payment
\nof an inadequate or illusory amount. He said, even if the amount given is not the just
\nequivalent in money of the value of the property acquired, it must at least be an amount
\nhaving reasonable relation to its value as Parliament cannot be deemed to have intended
\nby the Amendment to enable a law being passed fixing an unreasonably low amount as
\nthe right to acquire and hold property is still a Fundamental Right under Article 19. If we
\nare to import into the concept of ‘amount’ the implication of reasonableness with
\nreference to the market value of the property, it would immediately open the door to the
\njusticiability of the question of the adequacy of the amount fixed or determined which the
\nsub-article expressly says it is not open to the Court to go into.
\n1818. The Fundamental Right to property is attenuated to a certain extent. But it is not
\nwholly taken away. The right that the property could be acquired only under a law fixing
\nan amount or the principles for determining it and for a public purpose would still remain.
\nThis Court can strike down an amendment of the Constitution only on the ground that the
\namendment was not made in the manner and form required by Article 368, or that the
\namendment was made in violation of some express or implied limitation upon the power
\nof amendment.\n<\/p>\n
1819. A Constitutional amendment which provides for the law fixing the ‘amount’ or the
\nprinciples for determining the amount instead of compensation or the principles for its
\ndetermination and which deprives the Court of the power of judicial review of the
\nquestion whether the amount or the principles fixed by law is adequate or are relevant,
\ncannot be adjudged bad on the ground of some invisible radiation from the concept that
\nthe right to acquire, hold or dispose of property is a Fundamental Right.
\n1820. If full moon compensation has to be paid, concentratiion of wealth in the form of
\nimmovable or movable property will be transformed into concentration of wealth in the
\nform of money and how is the objective underlying Article 39(b) and (c) achieved by the
\ntransformation ? And with there be enough money in the coffers of the State to pay full
\ncompensation?\n<\/p>\n
1821. As the 24th Amendment which empowers Parliament to take away or abridge
\nFundamental Right has been held by me to be valid, I do not think there is any
\nconceivable basis on which I can strike down the amendment to Article 31(2). Nor can I
\nread any implication in to the word ‘amount’ and say that it must be reasonable as that
\nwould imply a standard. Having regard to the neutral and colourless character of the word
\n‘amount’ and the express provision excluding judicial review of the question of the
\nadequacy of the amount, the question of reasonableness of the amount or the relevancy of
\nthe principle is entirely outside the judicial ken.\n<\/p>\n
1822. Now I turn to the question of the validity of Article 31C.\n<\/p>\n
1823. Counsel for the petitioner submitted that there is a fundamental distinction between
\namending Fundamental, Rights in such a way as to abridge or take them away and
\nmaking an amendment in the Constitution which enables Parliament in its legislative
\ncapacity and the legislatures of the States to pass a law violating Fundamental Rights and
\nmaking it valid. According to counsel what has been done by Article 31C is to enable
\nParliament and State Legislatures to make Constitution-breaking laws and put them
\nbeyond challenge in any Court with the result that laws which would be void as
\ncontravening the Fundamental Rights are deemed, by a fiction of law, to be not void and
\nthat is a repudiation of the supremacy of the Constitution which is an essential feature of
\nthe Constitution. Counsel further said the Directive Principles which were intended by
\nthe Constitution-makers to run as subsidiary to Fundamental Rights have been made
\nparamount to them and laws to implement the Directive Principles specified in Article
\n39(b) and (c) are made immune from attack, even if they violate Fundamental Rights
\nunder Articles 14, 19 and 31. He further said that a declaration by Parliament of the State
\nlegislature that a law is to give effect to the policy of the State towards securing the
\nprinciples specified in Article 39(b) or (c) has been made final which, in effect, means
\nthat Parliament and State legislatures can pass any laws in the exercise of their legislative
\npower, whether they give effect to the policy of State towards securing the Directive
\nPrinciples contained in Article 39(b) and (c) or not, and get immunity for those laws from
\nattack under Articles 14, 19 and 31.\n<\/p>\n
1824. I should have thought that Article 31C is a proviso to Article 13(2) in that it
\nenables Parliament or State Legislatures to pass laws of a particular type which would not
\nbe deemed to be void even if they violate the provision of Articles 14, 19 and 31.
\n1825. I have no doubt that ‘law’ in Article 31C can only mean a law passed by Parliament
\nor the State legislatures. The word must take its colour from the context.
\n1826. The makers of the Constitution imposed a ban by Article 13(2) upon the ‘State’
\npassing a law in contravention of the rights conferred by Part III. If 24th Amendment
\nwhich enablies Parliament to make an amendment of the Fundamental Rights in such a
\nway as to take away or abridge them is valid, what is there to prevent Parliament or state
\nlegislatures to pass law for implementing the Directive Principles specified in Article
\n39(b) and (c) which would be immune from attack on the ground that those laws violate
\nArticles 14, 19 and 31? Is it not open to the Amending Body to enact an amendment
\nsaying in effect that although all laws passed by Parliament and State legislatures, which
\nviolate fundamental rights are void, laws passed by Parliament and State legislatures for
\ngiving effect to the policy of the State towards securing directive principles specified in
\nArticle 39(b) and (c) would not be void, even if they contravene some of the fundamental
\nrights, namely, those under Articles 14, 19 and 31? Article 31C merely carves out a
\nlegislative field with reference to a particular type of law, and exempts that law from the
\nambit of Article 13(2) in some respects. Parliament or State legislatures pass a law for
\ngiving effect to the Directive Principles specified in Article 39(b) or (c), not by virtue of
\nArticle 31C, but by virtue of their power under the appropriate legislative entires. What
\nArticle 31C does is to confer immunity on those laws from attack on the ground that they
\nviolate the provision of Articles 14, 19 and 31.\n<\/p>\n
1827. The material portion of Article 31A is in pari materia with the first part of Article
\n31G. Article 31A has been held to be valid by this Court in Sankari Prasad’s Case [1952]
\nS.C.R. 89. The fact that the argument now urged did not occur to counsel who appeared
\nin the case or the great judges who decided it is a weighty consideration in assessing its
\nvalidity. To make a distinction between Article 31A on the ground that Article 31A
\nprovides for laws dealing with certain specified subjects only whereas Article 31C makes
\nprovisions for laws to give effect to the State policy for securing the directive principles
\nspecified in Article 39(b) and (c) is, to my mind, to make a distinction between
\nTweedledum and Tweedledee. One can very well say that the subject matter of the law
\nreferred to in Article 31C is that dealt with by Article 39(b) and (c) or that 31A provides
\nfor immunity of the laws for securing the objects specified therein from attack on the
\nground that they violate Articles 14, 19 and 31. Does the artificial characterisation of a
\nlaw as one with reference to the object or subject make any difference in this context ?
\nthink not.\n<\/p>\n
1828. It is a bit difficult to understand how Article 31C has delegated or, if I may say so
\nmore accurately, invested the Parliament in its legislative capacity or the State
\nlegislatures, with any power to amend the Constitution. Merely because a law passed by
\nthem to give effect to the policy of the State towards securing the Directive Principles
\nspecified in Article 39(b) and (c) in pursuance to valid legislative, entries in the
\nappropriate Lists in the Seventh Schedule might violate the Fundamental Rights under
\nArticles 14, 19 and 31 and such law is deemed not void by virtue of Article 31C, it would
\nnot follow that Article 31C has invested the Parliament in its legislative capacity or the
\nState legislatures with power to amend the Constitution. It is by virtue of the 25th
\nAmendment that the law, although it might violate the Fundamental Rights under Articles
\n14, 19 and 31 is not deemed viod. Whenever Parliament or State legislatures pass such a
\nlaw, the law so passed gets immunity from attack on the ground that it violates the
\nFundamental Rights under Articles 14, 19 and 31 by Virtue of Article 31C which in
\neffect has made a pro-tanto amendment of Article 13(2) in respect of that category of
\nlaws. It is a mistake to suppose that every time when Parliament in its legislative capacity
\nor a State legislature passes such a law and if the law violates the Fundamental Rights
\nunder Articles 14, 19 and 31, it is that law which amends the Constitution and makes it
\nvalid. The amendment of the relevant provision of the Constitution, namely Article 13(2),
\nhas already been made by the 25th Amendment. And as I said it is that amendment which
\nconfers upon the law immunity from attack on the ground that it violates the Fundamental
\nRights under the above said articles.\n<\/p>\n
1829. Parliament in its legislative capacity or the State legislatures cannot confer any
\nimmunity upon the laws passed by them from the attack and they do not do so. They rely
\nupon the 25th Amendment as conferring the immunity upon the law which gives effect to
\nthe State Policy towards securing the above mentioned purpose. I confess my inability to
\nunderstand the distinction between a law passed in pursuance of an amendment of the
\nConstitution which lifts the ban of Article 13(2) and a law passed in pursuance of an
\namendment which says that the law shall not be deemed to be void on the ground that it is
\ninconsistent with or takes away or abridges the rights conferred by the articles in Part III.
\nThe distinction, to my mind, is invisible. Take one illustration : Article 15(4) says:
\nNothing in this article or in Clause (2) of Article 29 shall prevent the State
\nfrom making any special provisions for the advancement of any socially
\nand educationally backward classes of citizens or for the Scheduled Castes
\nand Scheduled Tribes.\n<\/p>\n
Suppose the sub-article had said:\n<\/p>\n
Notwithstanding anything contained in this article, or Clause 2 of Article
\n29 the State shall be competent to make special provision for the
\nadvancement of any socially and educationally backward classes of
\ncitizens or for the Scheduled Castes and Scheduled Tribes and such a law
\nshall not be deemed to be void under Article 13(2).\n<\/p>\n
In both the cases, the amendment has brought about the same effect, namely, the law
\nshall not be deemed to be void for contravention of the right conferred by Article 15 or
\nArticle 29(2), notwithstanding the difference in the wording by which the effect was
\nbrought about. And, in both cases it is the amendment of the Constitution which gives the
\nlaw the immunity from attack on the ground that it is in contravention of the rights
\nconferred by Part III.\n<\/p>\n
1830. If Article 31C is assumed to invest Parliament in its legislative capacity or State
\nlegislatures with power to pass a law of the description in question amending
\nFundamental Rights under Articles 14, 19 and 31 in such a way as to take away or
\nabridge them is the grant of such a power valid. The answer seems to me to be simple. If
\nthe effect of Article 31C is as assumed, then it is a pro-tanto amendment of Article 368. It
\nis not necessary that Article 31C should in such a case purport to amend Article 368. See
\nMohamed Samsudeen Kariapper v. S.S. Wijesinha and Anr. (1968) A.C. 717, 739 to 744.
\nNor is it necessary that Article 31C should commence with the words “Notwithstanding
\nanything contained in Article 368”. Just as the Dog Act under an uncontrolled
\nConstitution, pro-tanto amends the so called Constitution if it is inconsistent with it, so
\nalso under a controlled Constitution an amendment of the Constitution, if inconsistent
\nwith any provision of the Constitution would pro-tanto amend it. The 25th Amendment
\nwas passed in the manner and form required for amendment of Article 368. I cannot read
\nany limitation upon the power to amend the amending power which would preclude
\nArticle 368 from being amended in such a way as to invest part of the amending power in
\nParliament in its ordinary legislative capacity or in State legislature, to be exercised by
\nthem in a form and manner different from that prescribed by Article 368.
\n1831. The supposed bad odour about the article should not upset our judgment in
\nadjudging its Constitutionality. We have no power under the Constitution to adjudge a
\nConstitutional amendment as unConstitutional on the ground that the amendment would
\nin effect vest large powers in Parliament and State legislatures to pass laws which might
\nviolate Articles 14, 19 and 31.\n<\/p>\n
1832. Counsel for the petitioner asked the question why the right to pass laws violating
\nthe freedom of speech guaranteed under Article 19(1)(a) is given to Parliament in its
\nlegislative capacity and to the State legislatures by Article 31C when it is seen that
\nClauses (b) and (c) of Article 39 are concerned with matters which have no connection
\nwith that freedom.\n<\/p>\n
1833. In my dissenting judgment in Bennett Coleman and Co. and Ors. v. Union of India
\nand Ors.<\/a> etc. [1972] 2 S.C.C. 788, I had occasion to deal with certain aspects of the
\nmodern press. Mr. Seervai has rightly emphasized its commercial character and how that
\naspect, though connected with freedom of speech might require control. Though the press
\nstands as the purveyor of truth and the disinterested counsellor of the people, it is now
\nprimarily a business concern; an undertaking conducted for profit like any other, that the
\nproprietor is a man of business and though he may desire power as well as money, profit
\ncomes before political opinions. According to Lord Bryce the power of the newspaper
\nhas two peculiar features. It has no element of Compulsion and no element of
\nResponsibility. Whoever exposes himself to its influence does so of his own free will. He
\nneed not buy the paper, nor read it nor believe it. If he takes it for his guide, that is his
\nown doing. The newspaper, as it has no legal duty, is subject to no responsibility, beyond
\nthat which the law affixes to indefensible attacks on private character or incitements to
\nillegal conduct. The temptations to use the influence of a newspaper for the promotion of
\npecuniary interests, whether of its proprietors or of others, have also increased.
\nNewspapers have become one of the most available instruments by which the Money
\npower can make itself felt in politics, and its power is practically irresponsible, for the
\nonly thing it need fear is the reduction of circulation, and the great majority of its readers,
\ninterested only in business and sport, know little of and care little for the political errors it
\nmay commit. See Lord Bryce, “Modern Democracies”, Vol. I, the Chapter on “The Press
\nin a Democracy”, pp. 104-124.\n<\/p>\n
1834. The news content of the press enters at once into the thought process of the public.
\nThe fulness and unbent integrity of the news thus becomes a profund social concern. That
\nwhich is a necessary condition of performing a duty is a right; we may therefore speak of
\nthe moral right of a people to be well served by its press. Since the citizen’s political duty
\nis at stake, the right to have an adequate service of news becomes a public responsibility
\nas well. So freedom of the press must now cover two sets of rights and not one only. With
\nthe rights of editors and publishers to express themselves there must be associated a right
\nof the public to be served with a substantial and honest basis of fact for its judgments of
\npublic affairs. Of these two, it is the latter which today tends to take precedence in
\nimportance. The freedom of the press has changed its point of focus from the editor to the
\ncitizen. This aspect of the question was considered by the United States Supreme Court in
\nUnited States v. Associated Press 326 U.S. 20. Mr. Justice Black who wrote the majority
\nopinion sees the welfare of the public as the central issue. The fundamental
\nacknowledgement that press functions are now, in the eyes of the law as well as common
\nsense “clothed with a public interest” suggest an affirmative obligation on the part of the
\nGovernment.\n<\/p>\n
1835. Nobody demurs when a law preventing adulteration of food is passed. Is the
\nadulteration of news, the everyday mental pabulum of the citizen, a less serious matter?
\nThe need of the consumer to have adequate and uncontaminated mental food is such that
\nhe is under a duty to get it. Because of this duty his interest acquires the status of a right
\nsince the consumer is no longer free not to consume and can get what he requires only
\nthrough the existing press organs, the protection of the freedom of the issuer is no longer
\nsufficient to protect automatically the consumer or the community. The general policy of
\nlaissez faire in this matter must be reconsidered. The press is a public utility in private
\nhands and cannot be left free from all kinds of regulation. The ante-thesis between
\ncomplete laissez faire and complete governmental operation or control of the press is for
\nour society unreal Therefore, the question is whether, without intruding on the press
\nactivity, the State may regulate the conditions under which those activities take place so
\nthat the public interest is better served. See Hocking, “The Freedom of the Press”, pp.
\n167-9. As I said in my judgment, concentration of power substitutes one controlling
\npolicy for many independent policies, it lessens the number of competitOrs. The
\ninfluential part of the nation’s press is large scale enterprise closely inter-locked with the
\nsystem of finance and industry. It will not escape the natural bias of what it is. Yet, if
\nfreedom is to be secure, the bias must be known and overcome. It may also be necessary
\nfor the State to extend the scope of present legal remedies, if a given type of abuse
\namounts to poisoning the wells of the public opinion. It might be necessary in passing a
\nJaw for giving effect to the State policy towards securing the Directive Principles
\ncontained in Article 39(b) and (c) to deal with the commercial aspect of the press, and
\nthat aspect being connected with the freedom of speech, it might become inevitable for
\nthe law to abridge that freedom.\n<\/p>\n
1836. Whatever one’s personal views might be about the wisdom of Article 31C,
\nwhatever distrust one might have in the attempt at improving society by what one may
\nthink as futile if not mischievous economic tinkering, it is not for us to prescribe for the
\nsociety or deny the right of experimentation to it within very wide limits.
\n1837. It was said that, as Article 31C bars judicial scrutiny of the question that a law
\ncontaining the declaration gives effect to the policy of the State, Parliament and State
\nlegislatures can pass laws having no nexus with the Directive Principles specified in
\nArticle 39(b) or (c) and violate with impunity the Fundamental Rights under Articles 14,
\n19 and 31.\n<\/p>\n
1838. The purpose of Article 31C is only to give immunity to a law for giving effect to
\nthe policy of the State towards securing the Directive Principles under Article 39(b) and\n<\/p>\n
(c) from attack on the ground that its provisions violate Articles 14, 19 and 31. A law
\nwhich will never give effect the State policy towards securing these principles will enjoy
\nno immunity, if any of its provisions violates these articles. It is only a law for giving
\neffect to the State policy towards securing the principles specified in Article 39 (b) and\n<\/p>\n
(c) that can contain a declaration that it is for giving effect to such a policy and it is only
\nsuch a declaration that will bar the scrutiny by the Court of the question that the law does
\nnot give effect to the policy. The expression ‘no law’ in the latter part of Article 31C can
\nonly mean the type of law referred to in the first part. To be more specific the expression
\n‘no law’ occurring in the latter part of the article can only mean ‘no such law’ as is referred
\nto in the first part. It would be very strange were it otherwise. If any other construction
\nwere to be adopted, a declaration could shield any law, even if it has no connection with
\nthe principles specified in Article 39(b) or (c) from attack on the ground of violation of
\nthese articles. Any law under the Sun can be brought under the protective umbrella of the
\ndeclaration. Therefore, as I said, it is only a law for giving effect to the policy of the State
\ntowards securing the principles specified in Clauses (b) and (c) of Article 39, that can
\ncontain a declaration. If a declaration is contained in any law which does not give effect
\nto the policy of the State towards securing the principles specified in these clauses, the
\nCourt can go into the question whether the law gives effect to the said policy. Whenever
\na question is raised that the Parliament or State legislatures have abused their power and
\ninserted a declaration in a law not for giving effect to the State policy towards securing
\nthe Directive Principles specified in Article 39(b) or (c), the Court must necessarily go
\ninto that question and decide it. To put it in other words, the legislative jurisdiction to
\nincorporate a declaration that the law gives effect to the policy of the State is conditioned
\nupon the circumstances that the law gives effect to the policy of the State towards
\nsecuring the Directive Principles specified in Article 39(b) and (c). If this is so, the
\ndeclaration that the law is to give effect to the policy of the State cannot bar the
\njurisdiction of the Court to go into the question whether the law gives effect to the policy.
\nThe declaration can never oust the jurisdiction of the Court to see whether the law is one
\nfor giving effect to such a policy, as the jurisdiction of the legislature to incorporate the
\ndeclaration is founded on the law being one to give effect to the policy of the State
\ntowards securing these principles.\n<\/p>\n
1839. In order to decide whether a law gives effect to the policy of the State towards
\nsecuring the Directive Principles specified in Article 39(b) or (c), a Court will have to
\nexamine the pith and substance, the true nature and character of the law as also its design
\nand the subject matter dealt with by it together with its object and scope. If the Court
\ncomes to the conclusion that the declaration was merely a pretence and that the real
\npurpose of the law is the accomplishment of some object other than to give effect to the
\npolicy of the State towards securing the Directive Principles in Article 39(b) and (c), the
\ndeclaration would not be a bar to the Court from striking down any provision therein
\nwhich violates Articles 14, 19 or 31. In other words, if a law passed ostensibly to give
\neffect to the policy of the State is, in truth and substance, one for accomplishing an
\nunauthorized object, the Court would be entitled to tear the veil created by the declaration
\nand decide according to the real nature of the law.\n<\/p>\n
1840. Apart from the safeguard furnished by judicial scrutiny, there is sufficient
\nguarantee in Article 31C that a State legislature will not abuse the power as the law
\npassed by it will be valid only when it has been reserved for the assent of the President
\nand has obtained his assent. In the light of what I have said, the apprehension expressed
\nin some quarters that if judicial scrutiny of the question whether the law gives effect to
\nthe policy of the State towards securing these Directive Principles is barred, it will lead to
\nthe disintegration of the country has no real foundation. Nor has the dictum of Justice
\nHolmes : Holmes, “Collected Legal Papers”, pp. 295-296. “I do not think that the United
\nStates would come to an end if the Supreme Court lost our power to declare an Act of the
\nCongress void. But I do think that the Union would be imperilled if we could not make
\nthat declaration as to the laws of the several States”, any relevance in the context.
\n1841. It was said that the Constitution-makers never intended that Fundamental Rights
\nshould be subservient to Directive Principles and that they visualized a society where the
\nrights in Part III and the aspirations in Part IV would co-exist in harmony. (The doctrine
\nof harmonious construction has been a panacea for many of our ills. But I am not sure of
\nits efficiency.) A succeeding generation might view the relative importance of the
\nFundamental Rights and Directive Principles in a different light or from a different
\nperspective. The value judgment of the succeeding generations as regards the relative
\nweight and importance of these rights and aspirations might be entirely different from
\nthat of the makers of the Constitution. And it is no answer to say that the relative priority
\nvalue of the Directive Principles over Fundamental Rights was not apprehended or even
\nif apprehended was not given effect to when the Constitution was framed or to insist that
\nwhat the Directive Principles meant to the vision of that day, it must mean to the vision of
\nour time.\n<\/p>\n
1842. I have no doubt in my mind as regards the validity of the 29th Amendment. For the
\nreasons given in the judgment of my learned brother Ray, J., I hold that the 29th
\nAmendment is valid.\n<\/p>\n
1843. The argument in these cases lasted for well nigh six months. Acres of paper and
\nrivers of ink have been employed before and during the argument in supplying the Court
\nwith materials from all sources. It will be a tragedy if our conclusion were to fail to give
\nadequate guidance to the Bench concerned in disposing of these cases. I do not, want the
\nconclusions to which I have reached to remain a Delphic oracle. I would, therefore, sum
\nup my findings.\n<\/p>\n
1844. I hold that the decision in Golaknath Case that the Parliament had no power to
\namend Fundamental Rights in such a way as to take away or abridge them was wrong,
\nthat the power to amend under Article 368 as it stood before the 24th Amendment was
\nplenary in character and extended to all the provisions of the Constitution, that the 24th
\nAmendment did not add anything to the content of Article 368 as it stood before the
\namendment, that it is declaratory in character except as regards the compulsory nature of
\nthe assent of the President to a bill for amendment and that the article as amended makes
\nit clear that all the provisions of the Constitution can be amended by way of addition,
\nvariation or repeal. The only limitation is that the Constitution cannot be repealed or
\nabrogated in the exercise of the power of amendment without substituting a mechanism
\nby which the State is constituted and organized. That limitation flows from the language
\nof the article itself.\n<\/p>\n
1845. I do not think there were or are any implied or inherent limitations upon the power
\nof amendment under the article.\n<\/p>\n
1846. The 24th Amendment is valid.\n<\/p>\n
1847. The 25th Amendment, including Article 31C, is valid. The word ‘amount’ in Article
\n31(2), as amended, does not convey the idea of any norm. The fixation of the amount or
\nthe principle for determining the amount is a matter within the absolute discretion of the
\nParliament or the State Legislatures. The Court cannot go into the question whether the
\namount fixed by law or the principle laid down for determining the amount is adequate or
\nrelevant.\n<\/p>\n
1848. The declaration visualized in Article 31C that the law gives effect to the policy of
\nthe State towards securing the principles specified in Article 39(b) and (c) of the
\nConstitution would not oust the jurisdiction of the Court to go into the question whether
\nthe law gives effect to the policy. The jurisdiction of Parliament or the State legislatures
\nto incorporate the declaration in a law is conditioned upon the circumstance that the law
\nis one for giving effect to the State policy towards securing the aforesaid principles.
\n1849. The 29th Amendment is valid.\n<\/p>\n
1850. I would have the writ petitions disposed of in the light of these findings. I would
\nmake no order as to costs here.\n<\/p>\n
M.H. Beg, J.\n<\/p>\n
1851. This reference to a special bench of thirteen Judges, larger than any previous bench
\nhearing a case in this Court, was made so that the correctness of a view which became
\nbinding law of this country by a narrow majority of one, as a result of the eleven Judge
\ndecision of this Court, in Golak Nath and Ors. v. State of Punjab and Anr. [1967] 2
\nS.C.R. 762 may be if need be reconsidered. That view was that the prohibition contained
\nin Article 13(2) of our Constitution against the making of any law by the State “which
\ntakes away or abridges the rights conferred” by the chapter on Fundamental Rights
\nmaking laws made in contravention of this provision void “to the extent of the
\ncontravention” applies to Constitutional amendments also. Although that was a decision
\non a limitation held to exist, under our Constitution, as it then stood, on the power of
\namendment contained in Article 368 of the Constitution, yet, it did not decide what the
\nposition would be, if Article 368 was itself amended under the express power of such
\namendment recognised by Clause (e) of the proviso to Article 368 (2) of the Constitution.
\nAlthough, that question, which then neither arose nor was decided, is before us now
\ndirectly for decision, yet, I think, we cannot avoid pronouncing upon the correctness of
\nthe majority decision in the Golak Nath’s case (Supra), which has a bearing upon the
\nscope of the power of amendment contained in the unamended Article 368.
\n1852. The cases before us have become so much loaded with learning and marked by
\nbrilliance of exposition of all the points involved, either directly or indirectly, both by my
\nlearned brethren and the members of the Bar of this Court, in view of the crucial
\nimportance, for the future Constitutional history of this country, of the issues placed
\nbefore us, that it would be presumptuous on my part to attempt to deal with every point
\nwhich has been raised. Indeed, it is not necessary for me to repeat such views as I accept
\nas correct expressed by my learned brethren with whose conclusion I agree. The reasons
\nfor my very respectful disagreement with those conclusions of some of my other learned
\nbrethren with which I do not concur will become evident in the course of the few
\nobservations with which I shall content myself before recording my conclusions. I
\nventure to make these observations because, as my learned Brother Mathew has pointed
\nout, in cases of the nature before us, the healthier practice is to follow the example of
\nHouse of Lords even though a multiplicity of opinions may produce a “thicket”, which,
\naccording to Judge Learned Hand, it is the function of judicial learning and wisdom to
\nremove. I do hope that my observations will not add to the thickness of this thicket
\nwithout some useful purpose served by making them.\n<\/p>\n
1853. I think that we do stand in danger, in the circumstances stated above, of losing
\nsight of the wood for the trees, and, if we get entangled in some of the branches of the
\ntrees we may miss reaching the destination; the correct conclusion or decision. I think I
\ncan speak for all my learned brethren as well as myself when I say that we are all
\nconscious of the enormous burden which rests upon our shoulders in placing before the
\ncountry the solution or solutions which may not only be correct but beneficial for it
\nwithout doing violence to the law embodied in our Constitution to which we take oaths of
\nallegiance.\n<\/p>\n
1854. I am reminded here of what, Prof. Friedmann wrote in “Law in a Changing
\nSociety’. He said at page 61:\n<\/p>\n
The task of the modern judge is increasingly complex. Hardly any major
\ndecision can be made without a careful evaluation of the conflicting values
\nand interests of which some examples have been given in the preceding
\npages. Totalitarian government eliminates much of the conflict by
\ndictating what should be done”.\n<\/p>\n
The lot of the democratic judge is heavier and nobler. He cannot escape
\nthe burden of individual responsibility, and the great, as distinct from the
\ncompetent, judges have, I submit, been those who have shouldered that
\nburden and made their decisions as articulate a reflection of the conflicts
\nbefore them as possible. They do not dismiss the techniques of law, but
\nthey are aware that by themselves, they provide ho solution to the social
\nconflicts of which the law is an inevitable reflection”.\n<\/p>\n
He also wrote there (at page 62):\n<\/p>\n
The law must aspire at certainly at justice, at progressiveness, but these
\nobjectives are constantly in conflict one with the other. What the great
\njudges and jurists have taught is not infallible knowledge, or a certain
\nanswer to all legal problems, but an awareness of the problems of
\ncontemporary society and an acceptence of the burden of decision which
\nno amount of technical legal knowledge can take from us.\n<\/p>\n
1855. The ‘Core’, a term and concept which Mr. Palkiwala has tried to impress upon us
\nrepeatedly with his extra-ordinary forensic ability and eloquence, or crux of the problem
\nbefore us is thus stated in writing, in part 10 of Book 3, containing the concluding written
\nsubmission of Mr. Palkiwala.\n<\/p>\n
It is submitted that it would be impossible to dispose of these petitions
\nwithout dealing with the most crucial question the true ambit of the
\namending power. This question can be decided either on the ground of the
\nmeaning of the word “amendment” in the unamended Article 368 or on the
\nground of inherent and implied limitations or on both the grounds, since
\nthey converge on the same point.\n<\/p>\n
It is submitted with great respect that it would be impossible to deal with
\nthe questions relating to the 24th and 25th Amendments without deciding
\nthe true ambit of the amending power”.\n<\/p>\n
The questions of the correct interpretation of the 24th Amendment and its
\nvalidity cannot be decided unless this Hon’ble Court first comes to a
\nconclusion as to whether the original power was limited or unlimited. If it
\nwas originally limited the question would arise whether the 24th
\nAmendment should be “read down” or whether it should be held to be
\nunConstitutional. Even the question of the correct construction of the 24th
\nAmendment cannot be decided unless the starting point is first established,
\nnamely, the true, scope of the original amending power”.\n<\/p>\n
Again, it would be impossible to decide the question whether Article 31(2)
\nwhich has been altered by the 25th Amendment should be “read down” in
\nsuch a way as to preserve the right to property or should be declared
\nunConstitutional as abrogating the right to property,-unless and until it is
\nfirst decided whether Parliament has the right to abrogate the right to
\nproperty. This directly involves the question whether the amending power
\nis limited or unlimited.\n<\/p>\n
When one comes to Article 31C the necessity of deciding the limits of the
\namending power becomes unmistakable. The Article violates 7 essential
\nfeatures of the Constitution and makes the Constitution suffer a loss of
\nidentity. There can be no question of ‘reading down’ Article 31C. It can
\nonly be held to be unConstitutional on the ground that Parliament’s
\namending power was limited”.\n<\/p>\n
To decide the question of the validity of Article 31C only on the ground
\nthat it virtually provider for amendment of the Constitution in a “manner
\nand form” different from that prescribed by Article 368 would be a most
\nunsatisfactory ground of decision. The question of prune importance is the
\nlimit on the amending power. The question of manner and form pales into
\ntotal insignificance compared to the question of substantive limitation on
\nthe amending power”.\n<\/p>\n
It is submitted with the greatest respect that the 69 days hearing would be
\nvirtually wasted if the judgment were to rest merely on the point of
\nmanner and form, avoiding the real issue of momentous significance,
\nnamely, the scope of the amending power. It is this vital issue which has
\nreally taken up the time of the Court for almost five months”.\n<\/p>\n
1856. Before tackling the core or crux of the case which, as Mr. Palkiwala has rightly
\npointed out, is the question of the limits of the amending power found in Article 368 of
\nthe Constitution, I must make some preliminary observations on the very concepts of a
\nConstitution and of legal sovereignty embodied in it, and the nature of the amending
\npower as I conceive it. This and other parts of my judgment may also disclose what I
\nthink a judge should not hesitate to explore and expose leaving it merely to be inferred
\nfrom the judgment as his “undisclosed major premises”. It is part of judicial function, in
\nmy estimation, to disclose and to justify to the citizens of this country what these
\npremises are.\n<\/p>\n
1857. I think that it is clear from the Preamble as well as the provisions of Parts III and
\nIV of our Constitution that it seeks to express the principle : “Solus Populi Seprema Lex”.
\nIn other words, the good of the mass of citizens of our country is the supreme law
\nembodied in our Constitution prefaced as it is by the preamble or the ‘key’ which puts
\n“justice, social, economic and political” as the first of the four objectives of the
\nConstitution by means of which “the people” of India constituted “a sovereign democratic
\nRepublic”.\n<\/p>\n
1858. A modern democratic Constitution is to my mind, an expression of the sovereign
\nwill of the people, although, as we all know, our Constitution was drawn up by a
\nConstituent Assembly which was not chosen by adult franchise. Upon this Constituent
\nAssembly was conferred the legal power and authority, by Section 8 of the Indian
\nIndependence Act, passed by the British Parliament, to frame our Constitution. Whether
\nwe like it or not, Section 6 and 8 of an Act of the British Parliament transferred, in the
\neye of law, the legal sovereignty, which was previously vested in the British Parliament,
\nto the Indian Parliament which was given the powers of a Constituent Assembly for
\nframing our Constitution.\n<\/p>\n
1859. The result may be described as the transfer of political as well at legal sovereignty
\nfrom one nation to another, by means of their legally authorised channels. This transfer
\nbecame irrevocable both as a matter of law and even more so of fact. Whatever theory
\nsome of the die-hard exponents of the legal omnipotence of the British Parliament may
\nhave expounded, the modern view, even in Britain, is that what was so transferred from
\none nation to another could not be legally revoked. The vesting of the power of making
\nthe Constitution was however, legally in the Constituent Assembly thus constituted and
\nrecognised and not in “the people of India”, in whose name the Constituent Assembly no
\ndoubt spoke in the Preamble to the Constitution. The Constituent Assembly thus spoke
\nfor the whole of the people of India without any specific or direct legal authority
\nconferred by the people themselves to perform this function.\n<\/p>\n
1860. The voice of the people speaking through the Constituent Assembly constituted a
\nnew “Republic” which was both “Sovereign and Democratic”. It no doubt sought to
\nsecure the noble objectives laid down in the Preamble primarily through both the
\nFundamental rights found in Part III and the Directive Principles of State Policy found in
\nPart IV of the Constitution. It would, however, not be correct, in my opinion, to
\ncharacterise, as Mr. Palkiwala did, the Fundamental rights contained in Part III, as merely
\nthe means whereas the Directive Principles, contained in Part IV as the ends of the
\nendeavours of the people to attain the objectives of their Constitution. On the other hand,
\nit appears to me that it would be more correct to describe the Directive Principles as
\nlaying down the path which was to be pursued by our Parliament and State Legislatures
\nin moving towards the objectives contained in the Preamble. Indeed, from the point of
\nview of the Preamble, both the fundamental rights and the Directive Principles are means
\nof attaining the objectives which were meant to be served both by the fundamental rights
\nand Directive Principles.\n<\/p>\n
1861. If any distinction between the fundamental rights and the Directive Principles on
\nthe basis of a difference between ends or means were really to be attempted, it would be
\nmore proper, in my opinion to view fundamental rights as the ends of the endeavours of
\nthe Indian people for which the Directive principles provided the guidelines. It would be
\nstill better to view both fundamental rights and the “fundamental” Directive Principles as
\nguide lines.\n<\/p>\n
1862. Perhaps, the best way of describing the relationship between the fundamental rights
\nof individual citizens, which imposed corresponding obligations upon the States and the
\nDirective Principles, would be to look upon the Directive principles as laying down the
\npath of the country’s progress towards the allied objectives and aims stated in the
\nPreamble, with fundamental rights as the limits of that path, like the banks of a flowing
\nriver, which could, be mended or amended by displacements replacements or
\ncurtailments or enlargements of any part according to the needs of those who had to use
\nthe path. In other words, the requirements of the path itself were more important. A
\ncareful reading of the debates in the Constituent Assembly also lead me to this premise or
\nassumption. If the path needed widening or narrowing or changing, the limits could be
\nchanged. It seems to be impossible to say that the path laid down by the Directive
\nPrinciples is less important than the limits of that path. Even though the Directive
\nPrinciples are “non-justiciable,” in the sense that they could not be enforced through a
\nCourt, they were declared, in Article 37, as “the principles…fundamental in the
\ngovernance of the country”. The mandate of Article 37 was : “it shall be the duty of the
\nState to apply these principles in making laws”. Primarily the mandate was addressed to
\nthe Parliament and the State Legislatures, but, in so far as Courts of justice can indulge in
\nsome judicial law making, within the interstices of the Constitution or any Statute before
\nthem for construction, the Courts too are bound by this mandate.
\n1863. Another distinction, which seems to me to be valid and very significant it that,
\nwhereas, the fundamental rights were “conferred” upon citizens, with corresponding
\nobligations of the State, the Directive Principles lay down specific duties of the State
\norgans. In conferring fundamental rights, freedom of individual citizens, viewed as
\nindividuals, were sought to be protected, but, in giving specific directives to State organs,
\nthe needs of social welfare, to which individual freedoms may have to yield, were put in
\nthe forefront. A reconciliation between the two was, no doubt, to be always attempted
\nwhenever this was reasonably possible. But, there could be no doubt, in cases of possible
\nconflict, which of the two had to be subordinated when found embodied in laws properly
\nmade.\n<\/p>\n
1864. Article 38 shows that the first of the specific mandates to State organs says:\n<\/p>\n
38. The State shall strive to promote the welfare of the people by securing
\nand protecting as effectively as it may a social order in which justice,
\nsocial, economic and political, shall inform all the institutions of the
\nnational life.\n<\/p>\n
In other words, promotion of a social order in which “justice, social, economic, and
\npolitical” was the first duty of all the organs of the State.\n<\/p>\n
1865. The second specific mandate to State, organs, found in Article 39, contains the
\nprinciples of what is known as the socialistic “welfare State”. It attempts to promote
\nsocial justice by means of nationalisation and State action for a better distribution of
\nmaterial resources of the country among its citizens and to prevent the exploitation of She
\nweak and the helpless. It runs as follows:\n<\/p>\n
39. The State shall, in particular, direct its policy towards securing:\n<\/p>\n
(a) that the citizens, men and women equally, have the light
\nto an adequate means of livelihood.\n<\/p>\n
(b) that the ownership and control of the material resources
\nor the community are so distributed as best to subserve the
\ncommon good;\n<\/p>\n
(c) that the operation of the economic system does not
\nresult in the concentration of wealth and means of
\nproduction to the common deteriment;\n<\/p>\n
(d) that there is equal pay for equal work for both men and
\nwomen;\n<\/p>\n
(e) that the health and strength of workers, men and
\nwomen, and the tender age of children are not abused and
\nthat citizens are not forced by economic necessity to enter
\navocations unsuited to their age or strength;\n<\/p>\n
(f) that childhood and youth are protected against
\nexploitation and against moral and material abandonment.\n<\/p>\n
1866. On the views stated above, it would be difficult to hold that, the necessarily
\nchangeable limits of the path, which is contained in the Directive Principles, are more
\nimportant than the path itself. I may mention here that it was observed in one of the early
\nFull Bench decisions of the Allahabad High Court in Motilal and Ors. v. The Government
\nof the State of Uttar Pradesh and Ors. A.I.R. 1951 All. 257 @ 296 by Sapru J.:
\nI shall also say a few words about the directives of State policy which,
\nthough not justiciable, may be taken info account in considering the
\nConstitution as a whole. These directives lay down the principles which it
\nwill be the duty of the State to apply in the making of laws and their
\nexecution. Article 38 states that the State shall strive to promote the
\nwelfare of the people by securing and protecting as effectively as it may a
\nsocial order in which justice, social, economic and political shall inform
\nall the institutions of the national life”.\n<\/p>\n
Article 39 lays down the principles which must inspire State policy.
\nArticles 40 to 51 concern themselves with such questions inter alia, as, for
\nexample, the right to work, to education and to public assistance, the
\npromotion of education and economic interest of scheduled castes and the
\nduty of the State to raise the level of of nutrition and to improve public
\nhealth”.\n<\/p>\n
My object in drawing attention to the nature of these objectives is to show
\nthat what the framers of the Constitution were after was to establish, what
\nis generally known, now as the ‘welfare’ or the ‘social service state’, in this
\ncountry. They had taken a comprehensive view of State activities and it is
\nquite clear that they were not dominated by the laissez faire thought of the
\nlast century. So much about Directives. Now we come to fundamental
\nrights”.\n<\/p>\n
The object of these fundamental rights, as far as I can gather from a
\nreading of the Constitution itself, was not merely to provide security to
\nand equality of citizenship of the people living in this land and thereby
\nhelping the process of nation-building, but also and not less importantly to
\nprovide certain standards of conduct, citizenship, justice and fair play. In
\nthe background of the Indian Constitution, they were intended to make all
\ncitizens and persons appreciate that the paramount law of the land has
\nswept away privilege and has laid down that there is to be perfect equality
\nbetween one section of the community and another in the matter of all
\nthose rights which are essential for the material and moral perfection of
\nman”.\n<\/p>\n
1867. Indeed, in Balwant Rai v. Union of India A.I.R. 1968 All. 14, Dhavan J. went so as
\nfar to hold that “the duty of the State” under Article 37 to apply these principles in
\n“making laws” was to be carried out even by the judiciary of the State whenever it had a
\nchoice between two possible constructions that is to say, when it could indulge in judicial
\n“law making”.\n<\/p>\n
1868. The next topic on which I will venture to make some observations is the
\nsignificance and meaning of the word “sovereign”. What was constituted by the
\nConstituent Assembly, speaking for the people of India, was a “Sovereign Democratic
\nRepublic”.\n<\/p>\n
1869. Here, I may, mention the well-known distinction between “political sovereignty”
\nand “legal sovereignty”. Dicey in his Law of the Constitution (tenth edition), discussing
\nthe nature of Parliamentary Sovereignty said (at page 73):\n<\/p>\n
The matter indeed may be carried a little further, and we may assert that
\nthe arrangements of the Constitution are now such as to ensure that the
\nwill of the electors shall by regular and Constitutional means always in the
\nend assert itself as the predominant influence in the country. But this is a
\npolitical, not a legal fact. The electors can in the long run, always enforce
\ntheir will. But the courts will take no, notice of the will of the electOrs.
\nThe judges know nothing about any will of the people except in so far as
\nthat will be expressed by an Act of Parliament, and would never suffer the
\nvalidity of a statute to be questioned on the ground of its having been
\npassed or being kept alive in opposition to the wishes of the electOrs. The
\npolitical sense of the word ‘sovereignty’ is, it is true, fully as important as
\nthe legal sense or more so. But the two significations, though intimately
\nconnected together, are essentially different, and in some part of his work
\nAustin has apparently confused the one sense with the other”.\n<\/p>\n
1870. Legally, the British Parliament transferred the whole of its legal sovereignty over
\nthe people and territories of this country in British India to the Constituent Assembly
\nwhich spoke in the name of the people of India. The Princely States came in through
\n“Instruments of accession”. This means that the legal sovereignty was vested in the
\nConstituent Assembly whereas the people of India may be said to be only politically
\n“sovereign”. Their views were carefully ascertained and expressed, from various angles,
\nby the Members of the Constituent Assembly, political sovereign thus operated outside
\nthe ambit of law yet made its impact and effect felt upon the legal sovereign, that is to
\nsay, the Constituent Assembly. In recognition of this fact and to bring out that it was
\nreally speaking on behalf of the people of India, the Constituent Asembly began the
\nPreamble with the words : “We, the people of India”. This meant, in my estimation,
\nnothing more than that the Constituent Assembly spoke for the people of India even
\nthough it was vested with the legal authority to shape the destiny of this country through
\nthe Constitution framed by it. There is not to be found, anywhere in our Constitution, any
\ntransfer of legal sovereignty to the people of India.\n<\/p>\n
1871. The people of India speak through their representatives in the two Houses of
\nParliament. They approach the courts for the assertion of their rights. The courts
\nadjudicate upon the rights claimed by them and speak for the Constitution and not
\ndirectly for the people. Judges and other dignitaries of State as well as Members of
\nParliament take oadhs of allegiance to the Constitution and not to the people of India. In
\nother words, the Constitution is the “Legal sovereign” recognised by Courts, although the
\nultimate ‘political’ sovereignty may and does reside in “the people”.
\n1872. We need not, I think”, embark on any academic discourse upon the various
\nmeanings of the term “sovereignty” which has given much trouble to political thinkers
\nand jurists such as Luguit, Grierke, Maitland, Laski, Cole and others. I will be content
\nwith quoting the views of Prof. Ernest Barker expressed in his “Principles of Social &
\nPolitical Theory” an the nature and meaning of the term “sovereignty”, as the lawyers
\ngenerally understand it. He says (at page 59):\n<\/p>\n
There must exist in the State, as a legal association, a power of of final
\nlegal adjustment of all legal issues which arise in its ambit. The legal
\nassociation will not be a single unit, and law will not be a unity, unless
\nthere is somewhere one authority to which crucial differences ultimately
\ncome, and which gives, as the authority of last resort, the ultimate and
\nfinal decision. Different social groups may press different views of what
\nis, or ought to be, law; it is even possible that different departments of the
\nState may hold, and seek to enforce, different notions of what is legally
\nright; there must be a final adjustment centre. That final adjustment-centre
\nis the sovereign, the topmost rung of the ladder, the superanus or
\nsoverano, the ‘authority of the last word’. Sovereignty is not the same as
\ngeneral State-authority, or puissance publique : it is the particular sort of
\nState authority which is the power and the right of ultimate decision”.
\nIn one sense sovereignty is ‘unlimited-unlimited and illimitable. There is
\nno question arising in the legal association, and belonging to the sphere of
\nits operation, which may not come up to the sovereign, and which will not
\nbe finally decided by the sovereign if it so comes up to the topmost rung.
\nThe adjustment-centre must be competent to adjust every issue, without
\nexception, which may stand in need of adjustment. But there are other
\nconsiderations also to be noticed; and these will show us that sovereignty,
\nif it is not limited to particular questions and definite objects (limited, that
\nis to say, in regard to the things which it handles), is none the less limited
\nand defined by its own nature and its own mode of action”.\n<\/p>\n
In the first place, and as regards its nature, sovereignty is the authority of
\nthe last word. Only questions of the last resort will therefore be brought to
\nthe sovereign. Much will be settled in the lower ranges and in the ordinary
\ncourse of the action of general State-authority. In the second place, and as
\nregards its mode of action, the sovereign is a part : and an organ of the
\nlegal association. Nothing will therefore come to the soverign which does
\nnot belong to the nature and operation of the legal association, as such.
\nSovereignty moves within the circle of the legal association, and only
\nwithin that circle; it decides upon questions of a legal order, and only upon
\nthose questions. Moving within that circle, and deciding upon those
\nquestions, sovereignty will only make legal pronouncements, and it will
\nmake them according to regular rules of legal procedure. It is hot a
\ncapricious power of doing anything in any way : it is legal power of
\nsettling finally legal questions in a legal way”.\n<\/p>\n
1873. Prof. Ernest Barker went on to say\n<\/p>\n
(a) Ultimately, and in the very last resort, the sovereign is the Constitution
\nitself-the Constitution which is the efficient and formal cause of the
\nassociation; which brings it into being; which forms and defines the
\norgans and methods of its operations, and may also form and define (if the
\nConstitution either contains or is accompanied by a ‘declaration of right’)
\nthe purposes of its operation. It may be objected to this view that the
\nsovereign is a body of living persons, and not an impersonal scheme; and
\nthat ultimate sovereignty must accordingly be ascribed, not to the
\nConstitution, but to the Constitution-making body behind it which can
\nalter and amend its provisions. But there is an answer to that objection.
\nThe impersonal scheme of the Constitution is permanently present, day by
\nday, and year by year; it acts continuously, and without interruption, as the
\npermanent control of the whole operation of the State. The body of
\npersons which can alter and amend the Constitution (and which, by the
\nway, can act only under the Constitution, and in virtue of the Constitution)
\nis a body which acts only at moments of interruption,, and therefore at rare
\nintervals. The continuous control may more properly be termed sovereign
\nthan the occasional interruption; and we may accordingly say that the
\nConstitution itself, in virtue of being such a control, is the ultimate
\nsovereign”.\n<\/p>\n
(b) Secondarily, however, and subject to the ultimate sovereignty of the
\nConstitution we may say that the body which makes ordinary law, in the
\nsense of issuing the day-to-day and the year-by-year rules of legal
\nconduct, is the immediate sovereign. That body may be differently
\ncomposed in different political systems. In the United States, for example,
\nit is composed of Congress and President acting independently (though
\nwith mutual checks and reciprocal powers of overriding one another’s
\nauthority) on a system of co-ordination. In the United Kingdom it is
\ncomposed of Parliament and His Majesty’s Ministers acting
\ninterdependently, and with a mutual give and take (though here too there
\nare mutual checks, the Parliament can dismiss the Ministers by an adverse
\nvote as vice versa they can dismiss Parliament by advising His Majesty to
\nuse his power of dissolution), on a system which is one of connextion
\nrather than co-ordination. However composed, the body which makes the
\nordinary law of the land is the immediate sovereign, which issues final
\nlegal pronouncements on ordinary currrent questions to the extent and by
\nthe methods authorized under the Constitution. The immediate sovereign
\nwhich makes the ordinary law in the United Kingdom is authorized by the
\nConstitution to a greater extent of action, and to action by easier and
\nspeedier methods, than the the immediate sovereign which makes the
\nordinary law in the United States; but in either case the immediate
\nsovereign is a body authorized by the Constitution, acting and able to act
\nbecause it is so authorized”.\n<\/p>\n
On the argument which is here advanced the Constitution is the ultimate
\nsovereign, in virtue of being the permanent scheme, or standing
\nexpression, of what may be called the primary law of the political
\nassociation; and the law and rule-making body is the immediate sovereign,
\nin virtue of being the constant source and perennially active fountain of
\nwhat may be called the secondary law of the land. Two difficulties
\nconfront the argument, one of them largely formal, but the other more
\nsubstantial The first and largely formal difficulty is that it would appear to
\nbe inconsistent to begin by ascribing ultimate sovereignty to the
\nConstitution rather than to the Constitution-making body, and then to
\nproceed to ascribe immediate sovereignty to the law and rule making body
\nrather than to the law. Does not consistency demand either that both
\nsovereigns should be impersonal systems, or that both should be personal
\nbodies; either that the ultimate sovereign should be ‘the rule of the
\nConstitution’ and the immediate sovereign ‘the rule of law’, or that the
\nultimate sovereign should be the Constitution-making body and the
\nimmediate the law and rule-making body ? We may answer that
\ninconsistency is inherent in the nature of the case. The position of the
\nprimary law of the State is different from that of the secondary law”.
\n1874. I have quoted rather extensively from the views of Prof. Ernest Barker as they
\nappeared to me to have a special significance for explaining the relevant provisions of our
\nConstitution. Indeed, Prof. Ernest Barker begins his exposition by citing the Preamble to
\nthe Constitution of India; and, he gives this explanation in his preface for such a
\nbeginning:\n<\/p>\n
I ought to explain, as I end, why the preamble to the Constitution of India
\nis printed after the table of contents. It seemed to me, when I read it, to
\nstate in a brief and pithy form the argument of much of the book; and it
\nmay accordingly serve as a key-note. I am the more moved to quote it
\nbecause I am proud that the people of India should begin their independent
\nlife by subscribing to the principles of a political tradition which we in the
\nWest call Western, but which is now something more than Western.
\n1875. The “sovereignty of the Constitution”, as I see it, is “a feature”, as Bosanquet put it
\nin his Theory of the Stale, “inherent in a genuine whole”. This means that it is not vested
\nin all its aspects in any one of the three organs of the State but may be divided between
\nthem A mark of such sovereignty is certainly the possession of “Constituent Power”,
\nalthough the totality of sovereign power may be divided. Laski wrote, in his “Grammar of
\nPolitics” (pages 296-297):\n<\/p>\n
It may yet be fairly argued that, in every State, some distinction between
\nthe three powers is essential to the maintenance of freedom. Since the
\nwork of Locke and Montesquieu, we have come generally to admit the
\ntruth of Madison’s remark that the accumulation of all powers…in the
\nsame hands…may justly be pronounced the very definition of tyranny.
\n1876. In order to avoid concentration of such excessive power in few hands that it may
\ncorrupt or be misused by chose who wield it, our Constitution also divides or distributes
\nlegal sovereignty into three branches or organs of the State the Legislative, the Executive,
\nand the Judicature. The sphere of the sovereignty of each is sought to be so demarcated
\nby our. Constitution that the “genuine whole” appears in the form of three intersecting
\ncircles. In those portions of these circles where the judicial power intersects the
\nlegislative and the executive powers, the judicature acts as the supervisor or guardian of
\nthe Constitution and can check legislative or executive action. But, in the remaining parts
\nof the two interhecting circles of the Legislative and the Executive spheres, the two other
\nbranches are supreme legally, just as the judicature is in its own, so that their decisions
\nthere cannot be questioned by the judicial branch of the State.
\n1877. Here we are concerned only with the relationship between judicial and the
\nlegislative organs. Our Constitution makes the judicature the ultimate testing authority, as
\nthe guardian of the Constitution, in so far as the ordinary law making is concerned. In the
\nsphere of the primary fundamental law of the Constitution lies also the amending power
\ncontained in Article 368 of the Constitution over which the control of the judicature is
\nlimited to seeing that the form and the manner of the amendment is properly observed.
\nBeyond that, the authority of the judicial organ over the Constituent power vested in the
\nConstitutional bodies or organs mentioned in Article 368 of the Constitution ceases. No
\ndoubt the judicial organ has to decide the question of the limits of a sovereign authority
\nas well as that of other authorities in cases of dispute. But, when these authorities act
\nwithin these limits, it cannot interfere.\n<\/p>\n
1878. After having made a few observations about the nature of the sovereignty of the
\nConstitution and the judicial function connected with it. I will say something about the
\nurge for dynamic changes amply disclosed by the speeches in the Constituent Assembly,
\nwhich is found embodied in the Preamble as well as the Directive Principles of our
\nConstitution. Granville Austin observed in the “Indian Constitution : Cornerstone of a
\nNation” (at page 43):\n<\/p>\n
What was of greatest importance to most Assembly members, however,
\nwas not that socialism be embodied in the Constitution, but that a
\ndemocratic Constitution, with a socialist bias be framed so as to allow the
\nnation in the future to become as socialist as its citizens desired or as its
\nneeds demanded. Being, in general, imbued with the goals, the
\nhumanitarian bases, and some of the techniques of social democratic
\nthought, such was the type of Constitution that Constituent Assembly
\nmembers created.\n<\/p>\n
1879. Thus, the direction towards which the nation was to proceed was indicated but the
\nprecise methods by which the goals were to be attained, through socialism or state action,
\nwere left to be determined by the State organs of the future. In laying down the
\nprinciples, by means of which the poverty-stricken, exploited, down-trodden, ignorant,
\nreligion and superstition ridden masses of India, composed of diverse elements, were to
\nbe transferred into a strong united, prosperous, modern nation, it was assumed and said
\nrepeatedly that India’s economy must change its feudal character. Its social patterns,
\nmodes of thought and feeling, were to be changed and guided by scientific thinking and
\nendavour so as to lead its people on towards higher and higher ranges of achievement in
\nevery direction.\n<\/p>\n
1880. Our Constitution-makers, who included some of the most eminent jurists in the
\ncountry, could not have been ignorant of the teachings of our own ancient jurists, Manu
\nand Parashara, who had pointed out that the laws of each age are different. In support of
\nthis view, the late Dr. Ganga Nath Jha, in his treatise on Hindu Law, has cited the original
\npassages from Manu and Parashara which run as follows:\n<\/p>\n
(1) Anye krita yugay dharmaah tretaayam duaaparey parey anye kali
\nyugey nreenaam yoga roopaanusaaratah-Manu.\n<\/p>\n
(2) anye krita yugev dharma tretaayaama dyaaparcy parey anye kali yugey
\nnreenaam yuga roopaanusaratah-Parashara.\n<\/p>\n
1881. An English translation of the sense of the above passages runs as follows:
\n1882. “The fundamental laws (imposing fundamental duties or conferring fundamental
\nrights) differ from age to age; they are different in the age known as krita from those in
\nthe dvaapara age; the fundamental, laws of the kali age are different from all previous
\nages; the laws of each age conform to the distinctive character of the age (yuga roopa
\nnusaara tah)”. In other words, even our ancient jurists recognised the principle that one
\ngeneration has no right to down future generations to its own views or laws even on
\nfundamentals. The fundamentals may be different not merely as between one society and
\nanother but also as between one generation and another of the same society or nation.
\n1883. At any rate, I am convinced that we cannot infer from anything in the language of
\nthe unamended Article 368 any distinction, beyond that found in the more difficult
\nprocedure prescribed for amendment of certain Articles, between more and less basic
\nparts of the Constitution. None are sacrosanct and transcendental, in the sense that they
\nare immune from and outside the process of amendment found in Article 368 and while
\nothers only are subject to and within its ambit even before its amendment.
\n1884. My learned Brother Dwivedi, J., has, very, aptly, compared the mode of progress
\nvisualized by the Constitution as the movement of the chakra. Such a movement naturally
\ninvolves that a part of the nation which may have been at the top at one time may move
\ntowards the bottom and then come back to the top again. The Constitution, however,
\nvisualizes the progress of the whole nation towards greater equality as well as prosperity.
\nThe function of the amending provision, in such a Constitution, must necessarily be that
\nof an instrument for dynamic and basic changes in the future visualized by our
\nConstitution makers. The whole Constitution is based on the assumption that it is a means
\nof progress of all the people of India towards certain goals. The course of progress may
\ninvolve, as choices of lesser of two evils, occasional abrogations or sacrifices of some
\nfundamental rights, to achieve economic emancipation of the masses without which they
\nare unable to enjoy any fundamental rights in any real sense. The movement towards the
\ngoals may be so slow as to resemble the movement of a bullock-cart. But, in this age of
\nthe automobile and the aeroplane, the movement could be much faster.
\n1885. The Constitutional function with which the judiciary is entrusted, in such a
\nConstitution, is to see that the chosen vehicle does not leave the charted course or path or
\ntransgress the limits prescribed by the Constitution at a particular time. The fundamental
\nrights, as I have said eariler, may be viewed as such limits. The power of amendment, in
\na Constitution such as ours, must include the power to change these limitations to suit the
\nneeds of each age and generation. As the celebrated Justice Holmes said in his “Common
\nLaw”, the life of law has not been logic, but the “felt necessities” of the times. Every kind
\nof law, whether fundamental or ordinary, has to be an attempted adaptation to the needs
\nof the people at a particular time. The power of adaptation in a progressive nation, with a
\nConstitution which visualizes a movement towards socialism must, therefore, be
\nconstrued in the context of the whole setting of urges enshrined in the Constitution and
\nwhat their satisfaction demands. So construed, it may involve changes in the very
\nfeatures considered basic today.\n<\/p>\n
1886. I think it has been properly pointed out by Mr. Niren De, the Attorney General, and
\nMr. Seeravai, the Advocate-General of Maharashtra, that the proper function of Article
\n368, in a Constitution is to act as a safety valve against violent revolution. It can only so
\noperate as a safety valve if we do not construe the powers of amendment contained in it
\nso narrowly as to import, contrary to the clear meaning of its explicit language, any bar
\nagainst the alteration or change of any features of our Constitution which may be
\ncharacterised as basic.\n<\/p>\n
1887. We have been taken through a number of principles of interpretation and
\nconstruction of documents, including a document such as our Constitution, containing the
\nfundamental law of the land. It has been properly pointed out that the amending power, in
\nso elaborate a Constitution, could not possibly omit from its ambit or scope the power of
\namendment of any part of it so that the 24th Amendment merely clarifies the original
\nintention to lodge a wide amending power within the bosom of Article 368. It has been
\nrightly pointed out that the careful manner in which the Constitution, and, particularly,
\nthe amending Article 368 was framed precludes the possibility of a delibrate casus
\nomissus so as to exclude from its scope the making of any provision which may either
\ntake away or abridge or affect a fundamental right or any other basic feature. In any case,
\nin such a Constitution as ours, we must strongly lean against a construction which may
\nenable us to hold that any part of the Constitution is exempt from the scope of Article 368
\nas originally framed. Without express words in Article 368 itself to that effect, I am not
\nprepared to merely presume or infer the presence of any casus omissus here.
\n1888. It was no doubt argued, on the strength of the Golak Nath case (supra), that direct
\nor indirect abridgement or taking away of a fundamental right by an amendment under
\nArticle 368 was expressly barred by the language of Article 13(2) of the Constitution. I
\nam in agreement with the views of my learned brethern who hold that Article 13(2) is
\nmeant to deal with ordinary laws or the functions of the Parliament and of State
\nLegislatures in their ordinary law-making capacities. It was not intended to extend its
\nscope indirectly to Article 368 which deals with the amendment of the fundamental law
\nitself of which Article 13(2) is a part. The language and the context as well as the subject
\nmatter of it, found stated in Article 13(2) of the Constitution itself, preclude me from
\nholding that it could possibly operate as a restriction on the powers of amendment of any
\npart of the Constitution contained in Article 368 of the Constitution even before it was
\namended by the 24th Amendment.\n<\/p>\n
1889. The majority of the learned Judges of this Court in Golak Nath case (Supra) held
\nthat the power of amendment itself and not merely its procedure was contained in Article
\n368 of the Constitution. They also held this power of amendment to be wide.
\nHidayatullah, J., however, thought that the ambit of the term “law”, as used in Article
\n13(2) of the Constitution, was wide enough to cover a change in the fundamental law on
\nwhich Article 368 exclusively operates. The view of Hidayatullah, J., turned the scales by
\na narrow majority of one in favour of the opinion that Article 13(2) operates as an express
\nrestriction upon the powers contained in Article 368 even though it does not say so
\nexpressly. The limitation was inferred from the wide meaning given to the term “law”.
\nBut the view of the majority of Judges of this Court who have had the occasion to
\nconsider this question, that is, if we include or add the number of those who gave
\ndecisions in Sajjan Singh v. State of Rajasthan [1965] 1 S.C.R. 933 and Sri Sankari
\nPrasad Singh Deo v. Union of India and State of Bihar [1952] S.C.R. 89, is still in favour
\nof the view that the word “law”, as used in Article 13(2) of the Constitution, does not
\nextend to the fundamental law or the Constitution. If it was really the intention to so
\nextend it, at least Article 13(2) would have clarified it.\n<\/p>\n
1890. I am not impressed by the contention that Article 13(2), as originally passed by the
\nConstituent Assembly, contained a specific exemption of the powers of amendment
\nexercised under Article 368 of the Constitution which was dropped afterwards. If the
\ndropping of this clause was intended to bring about also drastic a change in the intention
\nof the Constitution makers as the counsel for the petitioners contends for, there would
\nhave been some explanation given by the drafting Committee for such a change.
\nMoreover, we have not been shown what authority the drafting committee had to adopt
\nlanguage implying so drastic a change of intention of the Constituent Assembly without
\neven bringing the matter to the notice of the Constituent Assembly. The safer
\npresumption is that the drafting committee dropped the addition proposal by Mr.
\nSanthanam and adopted by the Constituent Assembly merely because it considered the
\nadditional words to be otiose and unnecessary.\n<\/p>\n
1891. Our Constitution itself contains in various places a distinction between the
\nConstitution and the law. It mentions both the “Constitution and the law” suggesting that
\nthere is a difference between them made by the Constitution itself. See : e.g.:
\n(1) Form of oath of the President prescribed by Article 60 of the
\nConstitution to “preserve protect, and defend “the Constitution and the
\nlaw”.\n<\/p>\n
(2) The form of oath or affirmation, prescribed by Article 159 of the
\nConstitution for the Governor of a State to “protect and defend the
\nConstitution and the law”.\n<\/p>\n
(3) The form of oath prescribed by Article 75(4) for a Union Minister
\ngiven in Schedule III-Form I to do “right to all manner of people in
\naccordance with the Constitution and the law”,
\n(4) The form of oath prescribed for a Judge of the Supreme Court, under
\nArticle 124(6) of the Constitution, given in Third Schedule-Form IV, to
\n“uphold the Constitution and the laws”. The form is the same for the
\nComptroller and Auditor-General of India under Article 148(2) of the
\nConstitution.\n<\/p>\n
(5) The form of the oath prescribed by Article 164(4) of the Constitution
\nfor a Minister of a State Government given in Third Schedule Form V to
\n“do right to all manner of people in accordance with Constitution and the
\nlaw”.\n<\/p>\n
(6) The form of oath prescribed by Article 219 of the Constitution for a
\nHigh Court judge given in Form VIII-Third Schedule to “uphold the
\nConstitution and the laws”.\n<\/p>\n
1892. Clause 7 of the Fifth Schedule part D, of the Constitution only explains the
\nmeaning of word amend as covering an “addition, variation or repeal” and similar is the
\ncase with Clause 21 of the Sixth Schedule. I am not attracted by the distinction between
\namendments, which are “deemed” not to be amendments, falling within Article 368,
\nmentioned in the Fifth and Sixth Schedules, and actual amendments covered by Article\n<\/p>\n
368. The word “deemed” was used in these provisions and Articles 4 and 169 merely to
\nindicate that the procedure required by Article 368 was not required here. These
\nprovisions certainly furnish an aid in construing and fixing the meaning of the word
\n“amendment” wherever used in the Constitution. And, as I have already held, the scope
\nof amendment must necessarily be wide in the context of the whole Constitution.
\n1893. It may also be noticed that the term “law”, which is not used in Article 368 at all, is
\nsought to be defined in Article 13, Sub-article (3) of the Constitution, after stating
\nexplicitly “unless the context otherwise requires”. I have already dealt with the context of
\nArticle 368 containing the power of amendment which necessarily operates on every part
\nof the Constitution so long as its operation on any part is not found expressly excluded.
\n1894. However, even ignoring the context in which Article 13(3) itself occurs and other
\nforegoing reasons, if we were to assume, for the sake of argument, that, because law is
\nnot exhaustively defined by Article 13(3) of the Constitution, the term “law” used there
\ncould include the law of the Constitution, another principle of construction could also
\napply here. This is that even a prior general provision followed by an express provision
\ndealing with a particular type of law could reasonably exclude the particular and special
\nfrom the purview and scope of the general. It is immaterial if the general provision
\nprecedes the provision containing a special law. This could not really affect the basis of
\nthe principle applicable.\n<\/p>\n
1895. The principle indicated above has been usually applied between different pieces of
\nlegislation or to different Acts. There is no doubt that when the subsequent Act is general
\nand the prior Act is special, the Special Act is not repealed by the provisions of the
\ngeneral Act by the application of the maxim : “Generalia specialibus non derogant” i.e.
\nprovisions will not abrogate special provisions (See : Crates on Statute Law p. 376).
\nAgain, “if a special enactment, whether it be in a public or private Act, and a subsequent
\ngeneral Act or absolutely repugnant and inconsistent with one another”, it has been said
\nthat “the Courts have no alternative but to declare the prior special enactment repealed by
\nthe subsequent general Act”. See : Craies on Statute Law p. 380). On the same principle,
\nit has been held that a subsequent particular Act may have the effect of partially repealing
\nthe earlier general Act. (See : Mirfin v. Attwood [1869] L.R. 4 Q.B. 330 Heston &
\nIsleworth U.D.C. v. Grout [1897] 2 Ch. 306 Harishankar Bagla v. M.P. State). A.I.R.
\n1954 S.C. 465.\n<\/p>\n
1896. The above mentioned principle has been applied generally where the question has
\narisen whether the particular law prevails over, and, therefore, repeals the general law. It
\nhas, however, also been held that the principle may operate to merely curtail the
\noperation of the general law by exempting from its scope the special cases dealt with by
\nthe particular law (See : Re Williams; [1887] 36 Ch. D. 573 @ p. 577 Mirfin v. Atttwood,
\nHarishanker Bagla v. M.P. State (Supra).). In other words, the principle may so operate as
\nto curb or reduce the extent or ambit of applicability of the general law. An application of
\nthis principle would also show that Constitutional law, as Special Law, may be removed
\nfrom the purview of “law”, as found in Article 13 of the Constitution, even if, by
\nstretching one’s imagination, it was really possible to so stretch the scope of the term
\n“law”, as used in Article 13 of the Constitution, as would include, but for such a
\nprinciple, amendments of the Constitution. Prima facie, however, amendments of the
\nConstitution operate on every provision of the Constitution unless any part of it is
\nexpressly excluded from the scope of such operation. The use of such a principle to
\nremove an assumed conflict does not appear necessary.\n<\/p>\n
1896. Mr. Palkiwala, presumably faced with insurmountable difficulties in relying
\nentirely upon the very narrow majority decision in Golak Nath’s case (Supra), in favour
\nof the view that Article 13(2) operates as a restriction upon the power of amendment
\ncontained in Article 368 of the Constitution, relied primarily upon a theory of implied
\nlimitations. The only “implied” limitation which I can read into the word amendment, as
\n“perhaps” necessarily implied, or, as part of the meaning of the word “amendment” is the
\none so characterised by Wanchoo J., in Golak Nath’s case (supra). In other words, it may
\nnot include the power of completely abrogating the Constitution at one stroke. It,
\nhowever, seems wide enough to erode the Constitution completely step by step so as to
\nreplace it by another.\n<\/p>\n
1897. The Attorney General himself had, very properly, conceded that the scope of
\namendment could not be so wide as to create a vacuum by abrogating the rest of the
\nConstitution leaving nothing behind to amend. The Attorney General’s argument was
\nthat, short of creating such a vacuum, the power is wide enough to cover a replacement of
\nthe present Constitution by another. It seems to me that the necessary implication of the
\nword “amendment” or the meaning of the term itself may exclude a possible complete
\nabrogation of the present Constitution although that could be done, step by step, by the
\nbodies empowered to amend if they so desired and followed the appropriate procedure.
\n1898. For the reasons already given at length by my brethern Ray, Palekar, Mathew and
\nDwivedi with whom I concur, I find that there is nothing in cases cited which could
\nenable us to put in implied limitations, in a Constitution such as ours, on Article 368,
\ncontaining expressly the sovereign law-making power of amendment of every part of it.
\nThe cases have really little bearing on the interpretation of such a provision containing
\nthe constituent power. As they were cited before us and examined by us, I will very
\nbriefly refer to the main cases cited.\n<\/p>\n
1899. The American cases really go against the submission that relied limitations could
\nbe put on expressly stated Constitutional powers. They were : Oscar Leser v. J. Mercer
\nGarnett 258 U.S. p. 130 U.S.A. v. William H. Sprague & William J. Howey 282 U.S. p.
\n716 State of Rhode Island v. A. Mitchell Palmer, Attorney General etc. 253 U.S. p. 350.
\nSchneiderman v. U.S. 320 U.S. p. 118 @ p. 137-145.\n<\/p>\n
1900. The cases from Australia decided by the Privy Council were : McCawley v. The
\nKing 1920 A.C. p. 691., Taylor v. Attorney General of Queensland 23 C.L.R. p. 457
\nwhere an interpretation of Section 5 of the Colonial Law Validity Act was given in the
\nlight of a presumption that the power transferred to a British Colonial Legislature must be
\nread subject to the fundamental assumption underlying the Constitution of the British
\nEmpire that the position of the Crown has not been affected; Webb v. Outrim [1907] A.C.
\np. 81 where the theory of implied restrictions on powers found in the Commonwealth
\nParliament Act was rejected; Victoria v. Commonwealth, 45 Australian L.J. p. 251
\nwhere, without questioning the basic principle of grant of plenary powers of legislation,
\nlaid down by Lord Selborne in Q. v. Burah (1878) 3 A.C. 889 a decision was given on the
\nlack of powers in the Federal Legislature, to tax a State, on a subject falling outside
\nSection 51 of the Australian Constitution, which laid down the powers of taxation of the
\nFederal Legislature, in the course of which some observations were made on the
\nimplications of Federalism which assumes the continued existence of States.
\n1901. The cases from Canada may lend some support to the implications of a grant of
\npower contained by an enactment of the sovereign British Parliament, but they do not
\nappear to me to be helpful in the context of the theory of the sovereignty of our
\nConstitution, of which Article 368 is a pivotal part, which we have adopted. The cases
\nfrom Canada cited before us were : Alberta Press cases 1938 (2) D.L.R. p. 81 Switzman
\nv. Elbing & Attorney General of Quebec 1957 (7) D.L.R. p. 337 Saumur v. City of
\nQuebec & Attorney General of Quebec 1953 (4) D.L.R. p. 461 A.G. for the Province of
\nOntario and Ors. v. A.G. for the Dominion of Canada and Anr. [1912] A.C. p. 571 where
\nthe assumption, underlying some of the decisions, that Canada did not possess fully
\nblossomed legislative power, seems to have been repelled; In Re the Initiative and
\nReferendum Act, where legislation offending Section 92 head 1 of the British North
\nAmerica Act, 1867; was held to be invalid.\n<\/p>\n
1902. So far as Ryan’s case, [1935] Irish Reports p. 170 is concerned, Mr. Palkiwala
\ncould only rely on the minority judgment of Kennedy, C.J. In Moore v. Attorney General
\nfor the Irish State [1935] A.C. p. 484 it was conceded on behalf of a petitioner who had
\nchallenged the validity of an Act of the Irish Parliament that the majority decision in
\nRyan’s case was correct. I do not think that the Irish cases give much help to the
\npetitioners’ submissions on implied limitation.\n<\/p>\n
1903. Cases coming up from Ceylon also do not assist the petitioners. In the Bribery
\nCommissioner v. Pedrick Ranasinghe 1965 A.C. p. 172 a provision of the Bribery
\nAmendment Act, 1958, was held to be bad because it conflicted with the provisions of
\nSection 29 of the Ceylon (Constitution) Order in Council, 1946, by which the Constituion
\nof Ceylon was governed. It is, therefore, a simple case of conflict of an enactment of
\nsubordinate law making authority with the instrument of Government which regulated
\nsubordinate law-making powers and was, therefore, supreme. In that case the
\nrequirements of manner and form as laid down in Attorney-General for New South Wales
\nand Ors. v. Trethowan and Ors. 1932 A.C. p. 526 were also held not to have been
\ncomplied with. In Don John Francis Douglas Liyanage and Ors. v. The Queen 1967 (1)
\nA.C. p. 259 it was held, with regard to the Acts the validity of which was impugned:
\n…the Acts could not be challenged on the ground that they were contrary
\nto the fundamental principles of justice. The Colonial Laws Validity Act,
\n1865, which provided that “colonial laws should be void to the extent that
\nthey were repugnant to an Act of the United Kingdom applicable to the
\ncolony but not otherwise and should not be void on the grounds of
\nrepugnancy to the law of England, did not leave in existence a fetter of
\nrepugnancy to some vague and unspecified law of natural justice : those
\nliberalising provisions were incorporated in, and enlarged by, the Ceylon
\nIndependence Act, 1947, of the British Parliament, the joint effect of
\nwhich, with the Ceylon (Constitution) Order in Council, 1946, was to
\nconfer on the Ceylon Parliament the full legislative powers of a sovereign
\nindependent state.\n<\/p>\n
1904. This case shows that repugnancy to some vague principle of “natural justice” could
\nnot invalidate the enactments of a fully competent legislative authority.
\n1905. There can be no question of delegation of the power of amendment if, as I have
\nalready indicated, I hold that the Constitution is the principal and the source of all
\nConstitutionally valid power and authority in the eye of law. The principle delegatus non
\npotest delegare is only applicable against a delegate but not against the principal. When
\nan amendment is made by an appropriate procedure, the amendment becomes a part of
\nthe principal’s own will and intention and action. Of course, if the principal is and must
\nnecessarily be a human authority, the bodies of persons authorised to amend under
\nArticle 368 of the Constitution would share the legislative sovereignty and would
\nconstitute the “Principal” whose will is expressed in the amendment.
\n1906. It may be possible to use the test of consequences in order to check an abuse of
\npower by a legally non-sovereign law-making body as the Parliament is when it does not
\nexercise the Constituent power by the use of the two-thirds’ majorities in both Houses of
\nParliament as required by Article 368 of the Constitution. It may also be possible to use
\nthe theory of implied limitations by implying and annexing rules of natural justice to
\nparticular kinds of non-legislative functions laid down by statutory or even Constitutional
\nlaw. But, this is done only by presuming that the Constitution did not intend abrogation
\nof the fundamental rules of natural justice. If these rules are sought to be dispensed with
\nby any particular ordinary enactment it may be possible to assail the validity of that
\nenactment when Articles 14 and 19 of the Constitution apply. The exclusion of Articles
\n14 and 19 by a Constitutionally valid amendment only carves out or creates a new
\nlegislative field by a provision which becomes a part of the Constitution by amendment,
\nso that the Constitutional validity of its creation cannot be assailed in any court of law so
\nlong as the form and manner prescribed by Article 368 of the Constitution have been
\nobserved in making the necessary amendment. Enactments properly falling within this
\nfield would be immune from attack for any alleged violations of Articles 14 and 19 and\n<\/p>\n
31.
\n1907. Mr. Palkiwala then made an impassioned appeal to the theories of natural law and
\nnatural rights sought to be embodied in present day international laws as well as
\nConstitutional laws. It is not necessary for me to deal at length with the political
\nphilosophy or the juristic implications of various and conflicting natural law theories,
\nsuch as those of Spinoza, Hobbes, Locke or Rousseau, discussed by T.H. Green in his
\n“Principles of Political Obligation”. I also do not find it necessary to embark on an
\nacademic discussion of ancient and medeival theories of natural law. I will, however,
\nquote a passage from Friedmann on Legal Theory (5th Edition-p. 95-96), where the
\nposition, place, and uses of “natural law” theories are thus summarised:
\nThe history of natural law is a tale of the search of mankind for absolute
\njustice and of its failure. Again and again, in the course of the last 2,500
\nyears, the idea of natural law has appeared, in some form or other, as an
\nexpression of the search for an ideal higher than positive law after having
\nbeen rejected and derided in the interval. With changing social and
\npolitical conditions the notions about natural law have changed. The only
\nthing that has remained constant is the appeal to something higher than
\npositive law. The object of that appeal has been as often the justification of
\nexisting authority as a revolt against it.\n<\/p>\n
Natural law has fulfilled many functions. It has been the principal
\ninstrument in the transformation of the old civil law of the Romans into a
\nbroad and cosmopolitian system; it has been a weapon used by both sides
\nin the fight between the medieval Church and the German emperors; in its
\nname the validity of international law has been asserted, and the appeal for
\nfreedom of the individual against absolutism launched. Again it was by
\nappeal to principles of natural law that American judges, professing to
\ninterpret the Constitution, resisted the attempt of state legislation to
\nmodify and restrict the unfettered economic freedom of the individual.
\nIt would be simple to dismiss the whole idea of natural law as a
\nhypocritical disguise for concrete political aspirations and no doubt it has
\nsometimes exercised little more than this function. But there is infinitely
\nmore in it. Natural law has been the chief though not the only way to
\nformulate ideals and aspirations of various peoples and generations with
\nreference to the principal moving forces of the time. When the social
\nstructure itself becomes rigid and absolute, as at the time of Schoolmen,
\nthe ideal too will take a static and absolute content. At other times, as with
\nmost modern natural law theories, natural law ideals become relative or
\nmerely formal, expressing little more than the yearning of a generation
\nwhich is dissatisfied with itself and the world, which seeks something
\nhigher, but is conscious of the relativity of values. It is as easy to deride
\nnatural law as it is to deride the futility of mankind’s social and political
\nlife in general, in its unceasing but hitherto vain search for a way out of
\nthe injustice and imperfection for which Western civilisation has found no
\nother solution but to move from one extreme to another”.\n<\/p>\n
The appeal to some absolute ideal finds a response in men, particularly at
\na time of disillusionment and doubt, and in times of simmering revolt.
\nTherfore natural law theories, far from being theoretical speculations, have
\noften heralded powerful political and legal developments”.\n<\/p>\n
1908. I am not prepared to use any natural law theory for putting a construction on
\nArticle 368 of the Constitution which will defeat its plain meaning as well as the objects
\nof the Constitution as stated in the Preamble and the Directive Principles of State Policy.
\nI do not know of any case in which this has been done. Even in the Golak Nath’s case
\n(supra) Subba Rao, C.J. relied on a natural law theory to strengthen his views really based
\non an application of the supposed express bar contained in Article 13(2).
\n1909. I have already stated my point of view, that we should approach the questions
\nplaced before us from the pragmatic angle of the changing needs of social and economic
\norders visualised by those who were or are the final Judges of these needs in exercise of
\nthe Constituent power. Checks on possible abuses of such powers do not lie through
\nactions in Courts of law. The pressure of public opinion, and the fear of revolt due to
\nmisuse of such powers of amendment are the only practically possible checks which can
\noperate if and when such contingencies arise. These checks lie only in the political fields
\nof operation. They are not subject to judicial review or control. In other words, what
\nDicey calls the external and the internal limits may operate to control and check possible
\nmisuses of such power. Courts of justice have no means of control over a power
\nexpressly sanctioned by the Constitution which is the legal sovereign. They can only
\nspeak for the Constitution. Through their pronouncements must be heard the voice of the
\nConstitution and of nothing beyond it.\n<\/p>\n
1910. Although the Courts must recognise the validity of the exercise of a legally
\nsovereign constituent power, such power may itself be ineffective for actually bringing
\nabout the desired results. Whether the change is in the direction of what may be
\nconsidered better may itself be a matter of dispute. The answers to such questions and
\ndisputes depend upon many conditions which are outside the control of law courts. The
\nvery existence or absence of such conditions cannot be appropriately investigated or
\ndetermined in law Courts. Therefore, such investigations lie outside the judicial domain
\nwhen once a change is brought in by the exercise of constituent or sovereign law making
\npower in accordance with the prescribed procedure.\n<\/p>\n
1911. A socialistic state, must have the power and make the attempt to build a new social
\nand economic order free from exploitation, misery and poverty, in the manner those in
\ncharge of framing policies and making appropriate laws think best for serving the public
\ngood. We do not today conceive of public good or progress in terms of a “movement
\nfrom status to contract”, but in terms of a movement for control of economic and other
\nkinds of powers of exploitation by individuals so as to ensure that public good not merely
\nappears to be served but is actually served by all individuals wherever or however placed.
\nThe emphasis today is upon due performance of their social obligations by individuals
\nbefore claiming any right however fundamental or important it may be because rights and
\nduties are correlative.\n<\/p>\n
1912. Another contention advanced was that a creature of the Constitution could not
\npossibly possess the power to create or recreate the Constitution. Therefore, it was
\ncontended, resort could not be had to Article 368 to expand the power of amendment. I
\nam unable to accept this contention in the face of the express provision in Clause (e) to
\nthe proviso to the Article 368(2) of the Constitution. There Article 368 expressly
\nprovided either for the expansion or diminution of the scope of the powers of
\namendment. It cannot, therefore, be reasonably contended that the power of recreation
\neven of the whole Constitution by stages was not already contained in the unamended
\nArticle 368. This part of proviso also shows that the Constitution makers contemplated a
\nwide amending power so as to meet the challenges of the times offered by rapidly
\nchanging social, political, economic, national and international conditions and situations.
\nWe cannot contract what the Constitution makers clearly intended to make elastic and
\nexpansible.\n<\/p>\n
1913. For the foregoing reasons, I hold that the 24th Amendment of the Constitution is
\nvalid. It would, therefore, follow that the 25th and 29th Amendments are also valid. The
\nreasons for the validity of each of these amendments have been so fully dealt by my
\nlearned brethren Ray, Palekar, Mathew, and Dwivedi, with most of which I respectfully
\nconcur, that I need not discuss or repeat any of them here. Nor have I, for this very
\nreason, attempted to discuss the enormous array of cases, both Indian and foreign, or the
\ngreat many juristic writings, placed before and closely examined by us. I will, however,
\nindicate before I conclude, my special reasons for holding Section 3 of the Constitution
\n(25th Amendment) Act 1971, adding Article 31C to the Constitution also as valid.
\n1914. Article 31C has two parts. The first part is directed at removing laws passed for
\ngiving effect to the policy of the State towards securing the principles specified in Clause\n<\/p>\n
(b) or Clause (c) of Article 39 of the Constitution from the vice of invalidity on the
\nground that any such law “is inconsistent with or takes away or abridges any of the rights
\nconferred by Articles 14, 19 and 31 of the Constitution”. If we, stop here, the question
\nwhether the law is really for the purpose of giving effect to the principles specified in
\nClauses (b) or (c) of Article 39 would still be justiciable whenever laws passed under this
\nprovision come up before Courts. In other words, the question of relevancy of the law
\npassed to the specified principles could still be examined by courts although the effect of
\ninvalidity for alleged violations of Articles 14 or 19 or 31 would vanish so long as the
\nlaw was really meant to give effect to the principles of Article 39(b) and (c). A colourable
\npiece of legislation with a different object altogether but merely dressed up as a law
\nintended for giving effect to the specified principles would fail to pass the test laid down
\nby the first part. The second part of Article 31C goes on to provide that, if such a law
\ncontains a declaration that it is for giving effect to such policy, it will become immune
\nfrom judicial review altogether. In cases of laws passed by State legislatures there is a
\nfurther safeguard that such laws must have been reserved for consideration by the
\nPresident and assented to by him. The purpose of the declaration is, therefore, to take the
\nplace of a judicial verdict on relevancy of the grounds to the principles found in Clauses\n<\/p>\n
(b) and (c) of Article 39 as well as on effectiveness of these laws for the intended
\npurposes. Nevertheless, the Attorney General and the Solicitor General, appearing for the
\nUnion of India, conceded, both in written submissions and in the course of arguments,
\nthat the question of relevancy or nexus with the specified principles would be open to
\njudicial scrutiny in such cases of declarations annexed to laws passed.
\n1915. My learned brother Khanna has been pleased, despite the concession mentioned
\nabove, to declare the second part of Article 31C to be void on the ground among others,
\nthat it involves a trespass on the judicial field. It was said that, under the guise of exercise
\nof the power of amendment, one of the pillars of the Constitution or one of the essential
\nfeatures of its basic structure, that is to say, judicial review, had been removed.
\n1916. I think that the concession made on behalf of the Union of India is quite justifiable
\non a ground which I now proceed to adopt. It is that a declaration by itself is not part of
\nthe law made, but it is something only attached to the law even though this annexation is
\nby a purported law. In other words, the declaration, though provided for by law, takes the
\nplace of judicial consideration by the Courts and involves consideration of the question
\nwhether it is reasonable and necessary to attach such a declaration to a particular law.
\n1917. I do not think that it is necessary for me to decide what the exact nature of the
\nfunction in giving the declaration is or whether it carries with it, by implication, the
\nproposition that some rules of natural justice must be complied with. Such questions were
\nnot argued before us by any party. Nevertheless, I think that the concession could only be
\nmade on the strength of the view that the declaration by itself would not preclude a
\njudicial examination of the nexus so that Courts can still determine whether the law
\npassed is really one covered by the field carved out by Article 31C or merely pretends to
\nbe so protected by parading under cover of the declaration. I, therefore, adopt this reason
\nas perfectly good one for making the concession. Hence, I hold that both parts of Article
\n31C are valid.\n<\/p>\n
1918. On questions relating to the Amendment of Article 31(2) and the 29th Amendment
\nof the Constitution, I adopt the reasons of my learned brethern Ray, Mathew and Dwivedi
\nwith whose conclusions I concur on these and other questions.\n<\/p>\n
1920. My conclusions may now be stated as follows:\n<\/p>\n
(1) The majority view in Golak Nath’s case (supra), holding that Article 13
\noperated as a limitation upon the powers of Constitutional amendment
\nfound in Article 368, was erroneous. The minority view there was correct
\non this question.\n<\/p>\n
(2) The 24th Amendment is valid.\n<\/p>\n
(3) The 25th Amendment, including addition of Article 31C, is valid.
\n(4) The word ‘amount’ in Article 31(2), as amended, does not convey the
\nidea of any prescribed norm. The fixation of the amount or the laying
\ndown of a principle for determining the amount are matters within the
\nexclusive power of Parliament or the State Legislature concerned. In other
\nwords, the norms and their satisfaction on the question of adequacy of
\ncompensation or its reasonableness, are matters within the exclusive
\ncompetence of the legislative authorities to determine.\n<\/p>\n
(5) The declaration contemplated by Article 31C is like a certificate given
\nafter considering the relevancy of the principles specified in Article 39(b)
\nand (c) of the Constitution, and, therefore, the jurisdiction of the Court is
\nnot ousted. The Courts can still consider and decide whether the
\ndeclaration is really good or a mere pretence attached to a colourable piece
\nof legislation or to a law which has no bearing on or nexus with the
\nprinciples found in Article 39(b) and (c) of the Constitution. Out of two
\nequally acceptable views, even on the question of nexus, the one in
\nconformity with the legislative verdict should prevail.\n<\/p>\n
(6) The 29th Amendment is valid.\n<\/p>\n
1921. I would also have the petitions disposed of in the light of decisions given above. I
\nmake no order as to costs incurred by parties for this stage of hearing
\nS.N. Dwivedi, J.\n<\/p>\n
1922. I concur with the conclusions reached by brother Ray with respect to the
\nConstitutionality, of the 24th, 25th and 29th amendments. But in view of the importance
\nof the case I wish to add my own reasons in support of those conclusions.
\n1923. Ideas which failed to win the minds of Englishmen in the Stuart period and died in
\ndiscomfiture are seeking transmigration into the Constitution of India now. Perceive
\nsome resemblances:\n<\/p>\n
 Ideas during the Stuart Period Arguments of Sri Palkhiwala 1. “Acts of
\nParliament may take away flowers 1. By virtue of Article 368 Parliament
\nand ornaments of the crown but not cannot so amend the Constitution the
\ncrown itself…. Sir John Finch C.J., as to take away or abridge the
\nFundamental Law in English Constitutional essential features of the
\nConstitution. History by J.W. Gough, 1955 Edn. p. 73. 2. “The
\nParliament cannot deliver over 2. Parliament cannot so amend the the
\nfree, people of England to a foreign Constitution as to make the
\nRepublic government, or to laws imposed by of India a satellite of a
\nforeign country. foreigners….” William Ball of Barkham Esquire, Ibid.
\np. 107. 3. “The Parliament cannot deprive the free 3. Parliment cannot
\nso amend the Constitution people of England of their innate rights as
\nto damage or destroy the of electing knights, citizens and core of the
\nfundamental rights in Part III burgesses for Parliament. In these
\nthings of the Constitution. of the nature of these tending to the fund
\nmental rights and laws of the people the parliament cannot nor ought
\nnot any way to violate the people or nation.” William Ball of Barkham
\nEsquire, Ibid. p. 107. 4. “Properties are the foundaion of 4. The right
\nto property is a humam. Constitutions,and not the Constitutions right
\nand is necessary for the enjoyment of property. Or if so be there were
\nno of every other right. It is Constitution yet Law of Nature does give
\nbased on Natural Law. It cannot be a principle for every man to have a
\ntaken away or abridged by an property of what he has or may have
\namendment of the Constitution. which is not another man’s.” Captain
\nClarke Gough, supra, p. 115. 5. “How any representative, that has not\n<\/p>\n
5. Parliament is a creature of the only a more trust to preserve
\nfundamental Constitution. It cannot rise above its but that is a
\nrepresentative that makes creator i.e., the Constitution. So it laws,
\nby virtue of this fundamental law, cannot damage or destroy the core of
\nviz. that the people have a power in the fundamental rights.\n<\/p>\n
legislation…can have a right to remove or destroy that fundamental?
\nThe fundamental makes the people free : this free people makes a
\nrepresentative; can this creature unqualify the creator ?”Quaker
\nWilliam Penn, Ibid., p. 155. 6. “When an act of Parliament is against\n<\/p>\n
6. Amending power in Article 368 is common right or reason…the
\nlimited by the principles of Natural Common Law will control it and
\nadjudge Law and an amendment in violation such act to be void.” Coke in
\nDr. Bonham’s of these principles will be void. case, quoted in the
\nRevival of Natural Law concepts by C.G. Heines, 1930 Edn. pages 33-34.\n<\/p>\n
7. “Cases which concern the life or 7. The inherent and implied
\nlimitations inheritance, or goods or fortunes of to the amending power
\nin Article 368 subjects…are not to be decided will be determined by
\njudges possessing by natural reason, but by artificial a trained and
\nperceptive judicial mind. reason and judgment of law, which law is an
\nact which requires long study and experience before that a man can
\nattain to the cognizance of it.” Coke as quoted in the English
\nConstitutional Conflicts of the Seventeenth Centure 1603-1689 by J.R.
\nTanner, 1961 Student Edn. p. 37.\n<\/p>\n
1924. Of the three contenders for primacy in the Stuart period-King, Parliament,
\nCommon Law-Parliament came out victorious. F.W. Maitland, Constitutional History of
\nEngland (Paper back reprint (1963) pages 300-301. The King and the Common Law
\naccepted its supremacy. Stuart England was passing through an age of transition. So is
\nIndia today. “We are passing through the great age of transition when we are passing
\nthrough the great age of transition the various systems-even systems of law-have to
\nundergo changes. Conceptions which had appeared to us basic undergo changes”
\nJawaharlal Nehru : C.A.D. Vol. 9 page 1194 (emphasis added). At bottom the
\ncontroversy in these cases is as to whether the meaning of the Constitution consists in its
\nbeing or in its becoming. The Court is called upon to decide whether it is a prison-house
\nor a freeland, whether it speaks for the few or for the many. These issues can hardly be
\nresolved with the aid of foreign legal know-how. Decisions of foreign courts and treatises
\nand articles written on various Constitutions by foreign writers would not be safe guide in
\nconstruing our Constitution. “(I)n the last analysis the decision must depend upon the
\nwords of the Constitution and since no two Constitutions are in identical terms, it is
\nextremely unsafe to assume that a decision on one of them can be applied without
\nqualification to another. This may be so even where the words or expressions used are
\nsame in both cases, for a word or phrase may take a colour from its context and bear
\ndifferent senses accordingly.” (In Re. C.P. & Berar Sales of Motor Spirit Lubricants
\nTaxation Act, 1938). [1939] F.C.R. 18 at page 38 per Gwyer C.J. For instance, law-
\nmaking and Constitution-amending are both called ‘law’ in Canada and Ceylon because a
\nConstitutional amendment there is really a subordinate enactment passed under a statute
\nof the British Parliament or under an Order-in-Council which is delegated legislation.
\nOur Constitution “is something fresh and in that sense unique…. It seems to me therefore
\nthat it is useless to try and look at this through the eyes of another country or of their
\ncourts.” (In re. The Delhi Laws Act, 1912). [1951] S.C.R. 747 at page 1112 per Bose J.
\n1925. “A Constitution is the expression in national life of the genius of a people. It
\nreflects the tendencies of the age and the articles have to be interpreted, without doing
\nviolence to the language, in the light of the pervailing phase of sentiments in the country
\nin which the Constitution is intended to operate.” (Motilal v. State of U.P.) A.I.R. 1911
\nAll. 251 at page 297 per Sapru J. Constitutions which grew up in the 17th, 18th and 19th
\ncenturies reflected the hopes and aspirations of men of those times; the Constitution of
\nIndia reflects the hopes and aspirations of the people of India emerging from colonial
\neconomy in the second half of the 20th century. Constitutions framed in the past for
\norganising political democracy cannot serve as a safe guide in construing the Constitution
\nof India framed for ushering in social and economic democracy.
\n1926. Constitutions which grew up in the preceding three centuries were understood to
\nsanctify the Supremacy of Property. Said Tocqueville : “The French Revolution has
\nallowed one exclusive right to remain, the right of property, and the main problems of
\npolitics will deal with the alterations to be brought about in the right of property-holders.”
\nAs quoted in French Political Thought in the 19th Century by Roger Henry Soltau, p. 55.
\nOur Constitution is conceived in a radically different tradition. Our forbears did not
\nbelieve in the acquisition of things of pleasure (Preya); they stood for the good and the
\nwhoelsome (Shrey). They addressed their king as Rajan because it was his duty to secure
\nthe welfare of his people (See Richard Henry Tawney, “The Acquisitive Society”,
\nChapter II & IV) Their rule of law (Dharma) was intended to help the power-minus keep
\nthe power-plus in check. Their rule of law (rita) was a stream, not a puddle. It recognised
\nthe inevitability of change. They believed in the moral precept : distribute and enjoy the
\nresidue of wealth.(Mahabharata, Shanti Prava, 57 : 11.)
\n1927. The Constitution bears the imprint of the philosophy of our National Movement for
\nSwaraj. That philosophy was shaped by two pre-eminent leaders of the Movement-
\nMahatma Gandhi and Jawaharlal Nehru. Mahatma Gandhi gave to the Movement the
\nphilosophy of Ahimsa. Two essential elements of his Ahimsa are : (1) equality; and (2)
\nabsence of the desire of self-acquisition (Aparigrah). He declared that “to live above the
\nmeans befitting a poor country is to live on stolen food.” Dr. P. Sitaramaya, “The History
\nof the Indian Congress, Vol. I, page 386. And he also said : “I consider it a sin and
\ninjustice to use machinery for the purpose of concentration of power and riches in the
\nhands of the few. Today the machinery is used in this way.” Jawaharlal Nehru :
\nDiscovery of India, Signet Press, 1956, page 432.\n<\/p>\n
1928. While Mahatma Gandhi laid stress on the ethics of the Movement, Jawaharlal
\nNehru enriched its economic content. In his presidential address to the Lahore Congress
\nSession of 1929 he said : “The philosophy of socialism has gradually permeated the
\nentire structure of the society the world over and almost the only point in dispute is the
\nphase and methods of advance to its full realisation. India will have to go that way too if
\nshe seeks to end her poverty and inequality though she may evove her own methods and
\nmay adopt the ideal to the genius of her race.” R.D. Agarwala, Economic Aspect of a
\nWelfare State in India, page 32.\n<\/p>\n
1929. Emphasising the intimate and inseverable connection between national liberation
\nand social liberation, he said : “(I)f an indigenous Government took place of the foreign
\ngovernment and kept all the vested interests in tact, this would not be even the shadow of
\nfreedom. India’s immediate goal can only be considered in terms of the ending of the
\nexploitation of her people. Politically it must mean independence and cession of the
\nBritish connection; economically and socially it must mean the ending of all special class
\nprivileges and vested interests. Jawaharlal Nehru Whither India, 1933.
\n1930. The philosophy of Mahatma Gandhi was rooted in our ancient tradition; the
\nphilosophy of Jawaharlal Nehru was influenced by modern progressive thinking. But the
\ncommon denominator in their philosophies was humanism. The humanism of the
\nWestern Enlightenment comprehended mere poltical equality; the humanism of
\nMahatama Gandhi and Jawaharlal Nehru was instinct with social and economic equality.
\nThe former made man a political citizen; the latter aims to make him a ‘perfect’ citizen.
\nThis new humanist philosophy became the catalyst of the National Movement for Swaraj.
\n1931. In 1929 the All India Congress Committee resolved that the great poverty and
\nmisery of the Indian people was due also “to the economic structure of the society.”
\nIndian National Congress Resolutions on Economic Policy, Programme and Allied
\nMatters, 1924-1969, p. 3. The Karachi Congress resolution, on fundamental rights and
\neconomic programme revised in the All India Congress Session of Bombay in 1931
\ndeclare that in order to end the exploitation of the masses political freedom must include
\neconomic freedom of the starving millions. Resolutions, supra pp. 6-9. It provided that
\n“property was not to be sequestered or confiscated “save in accordance with law” Ibid
\n(emphasis added). It also provided that the State shall own or control the key industries
\nand services, mining resources, railways waterways, shipping and other means of public
\ntransport.” Ibid. According to the Congress Election Manifesto of 1945, “the most vital
\nand urgent of India’s problems is how to remove the curse of poverty and raise the
\nstandard of masses. Ibid p. 14. It declared that for that purpose it was “necessary…to
\nprevent the concentration of wealth and power in the hands of individuals and groups,
\nand to prevent vested interests inimical to society from growing.” Ibid. p. 14. It proposed
\nacquisition of the land of intermediaries on payment of equitable compensation. Ibid. pp.
\n15-16. In November 1947 the All India Congress Committee Session at Delhi passed a
\nresolution to the effect that the object of the Congress should be to secure “an economic
\nstructure which would yield maximum production without the creation of private
\nmonopolies and the concentration of wealth.” Ibid. pp. 18-19. It was thought that such
\n“social structure can provide an alternative to the acquisition of economic and political
\nequality.” Ibid. pp. 18-19.\n<\/p>\n
1932. In sum, the National Movement was committeed : (1) to work for social, economic
\nand political equality of the weaker sections of the people; (2) to disperse concentration
\nof wealth in any form in a few hands; and (3) to acquire property in accordance with law.
\nPayment of compensation would be determined by equitable considerations and not by
\nmarket value. The men who took the leading part in framing the Constitution were
\nanimated by these noble ideals. They embodied them in the Preamble to the Constitution;
\nthey proliferated them in the Directive Principles of the State Policy; they gave them
\nascendancy over the rights in Part III of the Constitution. (See Articles 15(3), 16(4), 17,
\n19(2) to (6), 24, 25(a) and (b), 31(4), (5) and (6)). They made them ‘fundamental’ in the
\ngovernance of the country. Pandit Govind Ballabh Pant called them ‘vital principles’.
\nC.A.D. Vol 9 p. 1288. And indeed so they are, for when translated into life, they will
\nmultiply the number of owners of fundamental rights and transform liberty and equality
\nfrom a privilege into a universal human right.\n<\/p>\n
1933. However, pleasing its name-plate or its trumpet, every form of focussed power was
\nsuspect in the eyes of the Constitution-makers. They apprehended that concentration of
\nthe ownership of the means of production and material resources and the resultant
\nincarceration of wealth in a few profit-seeking hand may bring into being an economic
\npower as all-assimilating and omnicompetent as the Hegelian State. It may manipulate a
\nfall in the prices of raw-materials; it may inflate the prices of manufactures by low
\nproduction and hoarding; it may increase unemployment and bring down wages; it may
\nshrink investments and control the industrial progress of the nation. J.K. Gailbraith :
\nAmerican Capitalism, pp. 21, 40 and 64; Report of the Monopolies Inquiry Commission
\n(1965) Vol. 1 pp. 125, 128, 132 and 134. It may seek to influence politics and public
\nopinion. J.K. Gailbraith, Ibid, p. 123; Bertrand Russel : Power (Unwin Books) p. 85;
\nMonopolies Inquiry Commission Report p. 136. It may try to threaten, restrain and
\nchange governments in self-interest. B. Russel, Ibid. pp. 86, 88 and 124; Monopolies
\nInquiry Commission Report pp. 1, 135 and 193. It may endanger liberty, the rule of law
\nand peace. J.K. Gailbraith, Ibid, pp. 67 and 70; W. Friedmann. An Introduction to World
\nPolitics : London Macmillan and Co. Ltd. 1962, p. 4. It may retard national unity, the
\ngrowth of culture and education. Monopolies Inquiry Commission Report, p. 136. To
\nprevent these manifold abuses of the economic power, the Constitution-makers enacted
\nArticles 39(b) and (c). It will be legitimate to bear in mind the preemptive significance of
\nPart IV in understanding the Constitution.\n<\/p>\n
1934. It is now necessary to consider whether the majority decision in Golaknath (1967)
\n2 S.C.R. 762 is correct.\n<\/p>\n
Residence of Amending Power
\n1935. In Golaknath Wanchoo J. and two other Judges who associated with him and
\nHidayatullah, Bachawat and Ramaswami JJ. took the view that the power to amend the
\nConstitution is located in Article 368. Subba Rao C.J. and four other learned Judges who
\nassociated with him, on the contrary, held that Article 368 does not grant the power of
\namending the Constitution. It merely provides for the procedure for amendment of the
\nConstitution. I respectfully agree with the view that the amending power resides in the
\noriginal Article 368.\n<\/p>\n
1936. Despite the marginal note to Article 368, which indicates that Article 368 is
\nprescribing the procedure for amendment, several considerations clearly show that the
\namending power is located in Article 368. Article 368 provides specifically for a
\nprocedure for amending the Constitution. When the prescribed procedure is strictly
\nfollowed, “the Constitution shall stand amended in accordance with the terms of the Bill.”
\nParliament can bring about this result by strictly following the prescribed procedure. Who
\ncan bring about a certain result may truly be said to have the power to produce that result.
\nPower to amend the Constitution is accordingly necessarily implied in Article 368.
\n1937. Article 368 finds place in Part XX of the Constitution. It is the solitary Article in
\nthat part. If provision was being made in Article 368 merely for procedure for amending
\nthe Constitution by Parliament, the Constitution-makers would have placed it logically
\nunder the heading “Legislative procedure” in Part V of the Constitution. Including the
\nsolitary Article 368 in a separate part suggests that it was intended to confer the
\namending power as well as to provide for the amending procedure. The heading of Part
\nXX is “amendment of the Constitution” and not “procedure for amendment of the
\nConstitution”. The heading will include both power as well as procedure. The proviso to
\nArticle 368 also shows that the amending power is lodged therein.
\n1938. Power to amend the Constitution cannot reasonably be located in Entry 97 of List I
\nof Schedule VII read with Article 248 of the Constitution. The idea of a provision for
\namending the Constitution was indisputably present in the minds of the Constitution-
\nmakers. If they had considered that the power to amend the Constitution was in its nature
\nlegislative, they would have surely included in express words this power in a specific
\nentry in List I. Article 248 and Entry 97 of List I confer residuary power on Parliament.
\nArticle 246 and List I confer certain specific powers on Parliament. Residuary power is
\nintended to comprehend matters which could not be foreseen by the Constitution-makers
\nat the time of the framing of the Constitution. As the topic of amending the Constitution
\nwas foreseen by them, it could not have been put in the residuary power. Article 245(1)
\nconfers power on Parliament “subject to the provisions of this Constitution.” Articles 246
\nand 248 are subject to Article 245. Accordingly, a law made under Article 348 and Entry
\n97 of List I cannot be inconsistent with any provision of the Constitution. But a law made
\nunder Entry 97 for amending any provision of the Constitution would be inconsistent
\nwith that provision. Accordingly it would be invalid. But on following the prescribed
\nprocedure in Article 368 there ensues a valid amendment of the Constitution. So Article
\n248 and Entry 97 cannot include the power to amend the Constitution. The history of
\nresiduary power in our country also indicates that the power to amend the Constitution
\ncannot be subsumed in the residuary power. Section 104 of the Government of India Act,
\n1935 provided for residuary power. The Governor-General could by public notification
\nempower either the Federal Legislature or a Provincial Legislature to enact a law with
\nrespect to any matter not enumerated in any of the Lists in Schedule VII. Acting under
\nSection 104, the Governor-General could not empower either Legislature to make a law
\nfor, amending the Government of India Act. The power to amend the said Act vested
\nexclusively in the British Parliament. While the Constitution was on the anvil, residuary
\npower was proposed to be vested in the States. If that power had been vested in the
\nStates, it could not have been possible to argue that the Constitution could be amended by
\nresort to residuary power because the amending bill is to be initiated in Parliament and
\nnot in the States. It was only at a later stage that the residuary power was included in List
\nI. The foregoing considerations show that the amending power does not reside in Article
\n248 and Entry 97 of List I. As already stated, it is located in Article 368 of the
\nConstitution. Article 304(1) of the Draft Constitution was similar to Article 368. Article
\n304(2) enabled States to amend the Constitution as regards the method of choosing a
\nGovernor or the number of Houses of the State Legislature. In Clause 18 of his letter
\ndated February 21, 1948 to the President of the Constituent Assembly, Dr. B.R.
\nAmbedkar, while forwarding the Draft Constitution, said that a provision giving ‘a
\nlimited constituent power’ to the State Legislature has been inserted in Article 304.
\n1939. The procedure prescribed in Article 368 is the exclusive procedure for amendment
\nof the Constitution. The word ‘only’ in Article 368 rules out all other procedures for
\namendment. So no law can be made for a referendum or a constituent assembly. A
\nreferendum or a constituent assembly will reduce Article 368 to redundance. Referendum
\nwas not accepted by the framers of the Constitution. Dr. B.R. Ambedkar said : “The Draft
\nConstitution has eliminated the elaborate and difficult procedure such as a decision by a
\nconvention or a referendum. The powers of amendment are left with the Legislatures,
\nCentral and Provincial”. C.A.D. Vol. 7, page 43.\n<\/p>\n
Nature of Amending Power
\n1940. With respect I find it difficult to share the view of Hidayatullah J. that the
\namending power in Article 368 is a legislative power.’ (Golaknath, Supra at page 900).
\n1941. During the British period neither the people of this country nor their elected
\nrepresentatives were endowed with the power to make or amend their Constitution Act.
\nThe Constitution Act by which they were governed until August 14, 1947 was enacted by
\nthe British Parliament. The power to amend that Act was vested in that Parliament. The
\nelected representatives of the people could until that date make only legislative laws
\nunder the Constitution Act. The Constitution Act endowed them with a legislative power.
\nUnder Sections 99 and 100 of the Government of India Act, 1935, the Union and
\nProvincial Legislatures made legislative laws. Under Sections 42, 43 and 44 and Section
\n72 of Schedule IX the Governor General made ordinances. The Governor made
\nordinances and Acts under Sections 88, 89 and 90. The headings of all those provisions
\ndescribe the law-making power as ‘legislative power’. The framers of the Constitution
\nwere familiar with the historical meaning of the expression ‘legislative power’ in this
\ncountry. The were also aware of the meaning of ‘constituent power’. Accordingly, it is
\nreasonable to believe that they have made a distinction between legislative power’ and
\n‘constituent power’. Indeed they have described the power of making legislative laws as a
\n‘legislative power’. The heading of Part XI is ‘Distribution of Legislative Powers’; the
\nheading of Article 123 is ‘legislative power of the President’; the heading of Article 213 is
\n‘legislative power of the Governor’. It may be observed that the framers did not include
\nArticle 368 under the heading legislative power’ or in Part XI or in the company of the
\nprovisions dealing with the legislative procedure in Part V of the Constitution. They
\nplaced it in a separate part. This omission is explained by the fact that they were making a
\ndistinction between ‘legislative power’ and ‘constituent power’.
\n1942. Broadly speaking, ‘constituent power’ determines the frame of primary organs of
\nGovernment and establishes authoritative standards for their behaviour. In its ordinary
\nsense, legislative power means power to make laws in accordance with those
\nauthoritative standards. Legislative power may determine the form of secondary organs
\nof Government and establish subordinate standards for social behaviour. The subordinate
\nstandards are derived from the authoritative standards established by the constituent
\npower. Discussing the concept of ‘legislative power’, Bose J. said : “We have to try and
\ndiscover from the Constitution itself what the concept of legislative power looked like in
\nthe eyes of the Constituent Assembly which conferred it. When that body created an
\nIndian Parliament for the first time and endowed it with life, what did they think they
\nwere doing ? What concept of legislative power had they in mind ? …First and foremost,
\nthey had the British model in view where Parliament is supreme in the sense that it can
\ndo what it pleases and no Court of law can sit in judgment over its Acts. That model it
\nrejected by introducing a federation and dividing the ambit of legislative authority. It
\nrejected by drawing a distinction between the exercise of constituent powers and ordinary
\nlegislative activity…” (In re. The Delhi Laws Act 1912 (Supra) at page 1112).
\n1943. Parliament’s additional power to amend certain provisions of the Constitution by
\nordinary law would not obliterate the distinction between constituent power and
\nlegislative power. Constitutions may be uncontrolled like the British Constitution, or
\ncontrolled like the Constitution of the United States of America. There may be a hybrid
\nclass of Constitutions, partly controlled and partly uncontrolled. In an uncontrolled
\nConstitution the distinction between constituent power and legislative power disappears,
\nbecause the legislature can amend by the law-making procedure any part of the
\nConstitution as if it were a statute. In a controlled Constitution the procedure for making
\nlaws and for amending the Constitution are distinct and discrete. No part of the
\nConstitution can be amended by the law-making procedure. This distination between
\nconstituent power and legislative power in a controlled Constitution proceeds from the
\ndistinction between the law-making procedure and the Constitution-amending procedure.
\nOur Constitution is of a hybrid pattern. It is partly controlled and partly uncontrolled. It is
\nuncontrolled with respect to those provisions of the Constitution which may be amended
\nby an ordinary law through the legislative procedure; it is controlled with respect to the
\nremaining provisions which may be amended only by following the procedure prescribed
\nin Article 368. When any part of the Constitution is amended by following the legislative
\nprocedure, the amendment is the result of the exercise of the legislative power; when it is
\namended through the procedure prescribed by Article 368, the amendment is the result of
\nthe exercise of the constituent power. The amending power conferred by Article 368 is a
\nconstituent power and not a legislative power.\n<\/p>\n
Dominion of Amending Power
\n1944. The phrase “amendment of this Constitution” is the nerve-centre of Article 368. It
\nis determinative of the dominion as well as the magnitude of the amending power. The
\nwords “this Constitution” in the phrase embrace the entire Constitution, as according to
\nArticle 393 “this Constitution” is called “the Constitution of India”. These words are also
\nused in Articles 133(2) and 367(1), (2) and (3). In those provisions these words would
\nenvelop each and every provision of the Constitution. They should convey the same
\nmeaning in Article 368. Accordingly each and every provision of the Constitution
\nincluding Part III falls within the sway of the amending power.
\n1945. In re : Barubari Union and Exchange of Enclaves [1960] 3 S.C.R. 250 at page 282
\nit is said that “the preamble is not a part of the Constitution”. This remark cannot assist
\nthe argument that a Preamble is not liable to amendment. It seems to me that the Court
\nreally intended to say that the Preamble is not enacting part of the Constitution. On
\nOctober 17, 1949 the Constituent Assembly passed a resolution to the effect that “the
\nPreamble stand part of the Constitution.” C.A.D. Vol. X, p. 456.
\n1946. According to Article 394 that article and Articles 5 to 9, Articles 60, 324, 366, 367,
\n379, 380, 388 and 391 to 393 came into force on November 26, 1949, while “the
\nremaining provisions of this Constitution” were to come into force on January 26, 1950.
\nIt is clear from the phrase “the remaining provisions of this Constitution” that the
\nPreamble also came into force on January 26, 1950. Replying to Sri K. Santhanam’s
\nquestion in regard to the date of the coming into force of the Preamble, Shri Alladi
\nKrishnaswami Ayyar said : “The Preamble will come into force in all its plentitude when
\nthe Constitution comes into force.” C.A.D. Vol. X, p. 418.\n<\/p>\n
1947. A statute has four parts-title, preamble, enacting clause and purview or body.
\nCrawford : Statutory Construction (1948 Edn.) p. 123 : Sutherland : Statutory
\nConstruction (1943 Edn.) Vol. 2, pp. 348-349; Haloburg’s : Laws of England, Vol. 36, p.
\n370, Craies on Statute Law (1963 Edn.) pp. 190 and 201. The Preamble to the
\nConstitution of the United States of America is regarded as a part of the Constitution.
\nWilloughby, Constitutional Law of the United States (1929 Edn.), Vol. I, p. 62. The
\nheading “the Constitution of India” above the Preamble shows that the Preamble is a part
\nof it.\n<\/p>\n
1948. As the Preamble is a part of the Constitution, it is liable to amendment under
\nArticle 368. Those parts of the Preamble which operate on the past such as “this 26th day
\nof November, 1949” may perhaps not be capable of miodification. ‘Even Jove hath not
\npower on the past’. But there is little doubt that such parts can be deleted by the exertion
\nof the amending power.\n<\/p>\n
1949. In sum, no provision of the Constitution can claim immunity from the sway of the
\namending power. The amending power can amend each and every provision of the
\nConstitution including the Preamble and Part III.\n<\/p>\n
Magnitude of Amending Power
\n1950. The magnitude of amending power is measurable by the broad-shouldered word
\n“amendment” in Article 368. According to Wanchoo J., the word “amendment” should be
\ngiven its full meaning as used in law and that means that by amendment an existing
\nConstitution…can be changed, and this change can take the form either of addition to the
\nexisting provisions or alteration of existing provisions and their substitution by others or
\ndeletion of certain provisions altogether.” (Golaknath, supra at page 834). Hidayatullah J.
\nsaid : “I do not take a narrow view of the word “amendment” as including only minor
\nchanges within the general frame-work. By amendment new matter may be added, old
\nmatter removed or altered.” (Ibid, p. 862) Bachawat and Ramaswami JJ. gave the same
\nextensive meaning to the word “amendment”. Thus according to six out of eleven judges
\nin Golaknath, the word “amendment” means amending by addition, alteration or repeal.
\nAccording to the Shorter Oxford English Dictionary “amendment” means “removal of
\nfaults or errors; reformation esp. (law) in a writ or process 1607.” According to Webster’s
\nThird New International Dictionary, it means “act of amending esp. for the better,
\ncorrection of a fault or faults, the process of amending as a motion, bill, act or
\nConstitution that will provide for its own amendment; an alteration proposed or effected
\nby such process.” According to the Random House Dictionary of the English Language
\n(Unabridged Edn.) “amendment” means “to alter, modify, rephrase or add to, substract
\nfrom (a motion, bill, Constitution etc.) by formal procedure, to change for the better,
\nimprove, to remove or correct faults.” According to Crawford (Statutory Construction
\n(1940 Edn.) page 170) there “are many different definitions of the term amendment, as it
\napplies to legislation. Generally, it may be defined as an alteration or change of
\nsomething, proposed in a bill or established as law. We are not, however, here concerned
\nwith the amendment of the proposed bills, but with the amendment of existing laws. Thus
\nlimited, a definition as suitable as any, defines an amendment as a change in some of the
\nexisting provisions of a statute. Or stated in more detail, a law is amended when it is in
\nwhole or in part permitted to remain and something is added to or taken from it or it is in
\nsome way changed or altered in order to make it more complete or perfect or effective.”
\nAccording to these definitions the power to amend means the power to make an addition
\nto or alteration in or subtraction from the text The purpose of addition, alteration or
\nsubtraction may vary; it may be to make the text or some part of it more complete or
\nperfect or effective. It also appears that the whole text of a law cannot be repealed or
\nabrogated in one step; some part of it must remain while the other is repealed.
\n1951. The Constitution does not define the word “amendment”. Article 367(1) applies the
\nGeneral Clauses Act to the interpretation of the Constitution. The Act also does not
\ndefine “amendment”. However, Section 6A provides that where any Central Act repeals
\nany enactment by which, the text of any Central Act was “amended by express omission,
\ninsertion or substitution of any matter” the repeal unless different intention appears, shall
\nnot affect the continuance of “any suck amendment made by the enactment so repealed”
\nand in operation at the time of such repeal. Section 6A shows that “amendment” includes
\naddition, substitution and omission. There is no reason why this definition which was
\nknown to the Constitution-makers should not apply to “amendment” in Article 368.
\n1952. According to the petitioners, “amendment” in Article 368 is used in the narrow
\nsense of making improvements. Now, an improvement may be made not only by an
\naddition, but also by omission or repeal. Thus the curing of an error in the text
\nundoubtedly improves it. According to Hidayatullah J. it “was an error to include (the
\nright of property) in (Part III)”. (Golaknath, supra at page 887). The removal of this error
\nby an amendment under Article 368 will surely improve the text of the Constitution. It
\nwill remove the roadblock in the way of implementing Part IV of the Constitution.
\nFurther, every mover of an amendment considers his proposal as an improvement in the
\nexisting text and the Court should not substitute its own evaluation for that of the mover
\nof the amendment.\n<\/p>\n
1953. The grants of legislative power are ordinarily accorded the widest amplitude. A
\nfortiori, the constituent power in Article 368 should receive the same hospitable
\nconstruction. The word “amendment” should be so construed as to fructify the purpose
\nunderlying Article 368. The framers of the Constitution have enacted Article 368 for
\nseveral reasons. First, the working of the Constitution may reveal errors and omissions
\nwhich could not be foreseen by them. Article 368 was designed to repair those errors and
\nomissions. Second, the Court’s construction of the Constitution may not correspond with
\nthe Constitution-makers’ intention or may make the process of orderly government
\ndifficult. The first Amendment to the Constitution became necessary on account of the
\ndecision of this Court in the State of Madras v. Srimathi Champakam Dorairajan<\/a> [1951]
\nS.C.R. 525 and the decision of the Patna High Court in Kameshwar Singh v. State of
\nBihar A.I.R. 1951, Patna p. 91. Third, the Constituent Assembly which framed the
\nConstitution was not elected on adult franchise and was in fact not fully representative of
\nthe entire people. On January 22, 1947 Jawaharlal Nehru said : “We shall frame the
\nConstitution, and I hope it will be a “good Constitution, but does anyone in this House
\nimagine that when a free India emerges it will be bound down by anything that even this
\nHouse might lay down for it ? A free India will see the bursting forth of the energy of a
\nmighty nation. What it will do and what it will not, I do not know, but I do know that it
\nwill not consent to be bound down by anything…. It may be that the Constitution, this
\nHouse may frame may not satisfy an India, that free India. This House cannot bind down
\nthe next generation or people who will duly succeed us in this task.” C.A.D. Vol. 2, pages
\n322-323. On November 8, 1948 he reiterated : “While we who are assembled in this
\nHouse undoubtedly represent the people of India, nevertheless, I think it can be said and
\ntruthfully that when a new House, by whatever name it goes, is elected in terms of this
\nConstitution and every adult in India has the right to vote, the House that emerges then
\nwill certainly be fully representative of every section of the Indian people. It is right that
\nthat House elected so…should have an easy opportunity to make such changes as it wants
\nto….” C.A.D. Vol. V, pp. 322-323. The Constitution-makers conferred very wide
\namending power on Parliament because it was believed that Parliament elected on adult
\nfranchise would be fully representative of the entire people and that such a Parliament
\nshould receive a right to have a fresh look at the Constitution and to make such changes
\ntherein as the entire people whom it represents desire. Fourth, at the apex of all human
\nrights is the right of self-preservation. People collectively have a similar right of self-
\npreservation. Self-preservation implies mutation, that is adaptation to the changing
\nenvironment. It is in the nature of man to adjust himself to the changing social, economic
\nand political conditions in the country. Without such adaptation the people decays and
\nthere can be no progress. Kant said : “One age cannot enter into an alliance on oath to put
\nthe next age in a position when it would be impossible for it to extend and correct its
\nknowledge; or to make any progress whatsoever in enlightenment. This would be a crime
\nagainst human nature whose original destiny lies precisely in such progress. Later
\ngenerations are thus perfectly entitled to dismiss these agreements as unauthorised and
\ncriminal.” Kant’s Political Writings, Edited by Hans Reiss, Cambridge University Press,
\n1970, p. 57.\n<\/p>\n
1954. Speaking in the same vein, Jawaharlal Nehru said : “In any event we should not
\nmake a Constitution such as some other great countries have, which are so rigid that they
\ndo not and cannot be adapted to changing conditions. Today-especially, when the world
\nis in turmoil and we are passing through a very swift period of transition, what, we may
\ndo today may not be wholly applicable tomorrow. Therefore, while we make a
\nConstitution which is sound and as basic as we can, it should also be flexible. C.A.D.
\nVol. 7, p. 322.\n<\/p>\n
1955. Article 368 is shaped by the philosophy that every generation should be free to
\nadapt the Constitution to the social, economic and political conditions of its time. Most of
\nthe Constitution-makers were freedom-fighters. It is difficult to believe that those who
\nhad fought for freedom to change the social and political organisation of their time would
\ndeny the identical freedom to their descendents to change the social, economic and
\npolitical organisation of their times. The denial of power to make radical changes in the
\nConstitution to the future generation would invite the danger of extra Constitutional
\nchanges of the Constitution. “The State without the means of some change is without
\nmeans of its conservation. Without such means it might even risk the loss of that part of
\nthe Constitution which it wished the most religiously to preserve.” Burke : Recollections
\non the Revolution in France and other writings Oxford University Press, 1958 Reprint, p.\n<\/p>\n
23.
\n1956. The context also reinforces the widest meaning of the word “amendment”. The
\nproviso to Article 368 states that if an amendment of the Constitution seeks to make any
\n“change” in the provisions specified therein, such amendment shall also require the
\nratification by at least half of the State Legislatures. Thus the proviso contemplates an
\namendment by way of a ‘change’ in certain provisions of the Constitution. According to
\nthe Shorter Oxford English Dictionary (3rd Edition Vol. 1, page 291) “change” means
\n“substitution, or succession of anything in place of another; alteration in the State or
\nquality of anything; variation, mutation, that which is or may be substituted for another of
\nthe same kind.” The power to amend accordingly includes the power to substitute one
\nprovision for another. For instance, it will be open to Parliament to remove List II in the
\nSeventh Schedule and substitute another List therefor by strictly following the procedure
\nprescribed in Article 368 and its proviso. The words “amendment” and “amend” have
\nbeen used in Articles 107(2), 108(1) and (4), 190(3), 110(1)(b), proviso to Article 111,
\nArticles 147, 196(2), 197(1)(c) and (2)(c), 198(3), 199(1)(b), 200, 201 and 395. In all
\nthese provisions those words include the power of repeal or abrogation. Article 110(1)(b)
\nprovides that a Bill shall be deemed to be a Money Bill if it contains a provision dealing
\nwith “the amendment of the law with respect to any financial obligations undertaken or to
\nbe undertaken by the Government of India.” Without doubt, the word “amendment”
\nwould also include repeal or abrogation of a law with respect to any financial obligation
\nundertaken or to be undertaken by the Government of India. The word “amendment”
\ncannot be confined to mere minor changes. To the same effect is Article 199(1)(b) in
\nrelation to the States. Article 147 provides that in Chapter IV of Part V and in Chapter V
\nof Part VI references to any substantial question of law as to the interpretation of the
\nConstitution shall be construed as including reference to any substantial question of law
\nas to the interpretation) of the Government of India Act, 1935 (including any enactment
\n“amending or supplementing that Act”). Here also the word “amending” would take in
\nany enactment which has repealed any provision of the Government of India Act, 1935.
\nArticle 395 provides that the “Indian Independence Act, 1947 and the Government of
\nIndia Act, 1935, together with all other enactments amending or supplementing the
\nlaw…are hereby repealed.” Here again, the word “amending” includes an enactment
\nwhich has repealed any provision of the Government of India Act, 1935. It cannot be said
\nthat the framers of the Constitution intended to continue an enactment which has repealed
\nan essential provision of the Government of India Act, 1935.\n<\/p>\n
1957. Paragraph 7 of Schedule V to the Constitution reads : “(1) Parliament may from
\ntime to time by law amend by way of addition, variation or repeal any of the provisions
\nof this Schedule and, when the Schedule is so amended, any reference to this Schedule in
\nthis Constitution shall be construed as reference to such Schedule as so amended : (2) No
\nsuch law as is mentioned in sub-paragraph (I) of this paragraph shall be deemed to be an
\namendment of this Constitution for the purpose of Article 368.
\n1958. In paragraph 7(1) the words, “addition, variation, or repeal” do not enlarge the
\nmeaning of ‘amend’; they are expositive of it. If the word “amendment” in Article 368 did
\nnot include the power of repealing a provision of the Constitution, sub-paragraph (2)
\ncould not have been enacted. It has been held by this Court that Parliament may change
\nthe boundaries of a State by a law enacted under Article 3 or by an amendment of the
\nConstitution under Article 368. (Berubari Union, supra). It would follow from this
\ndecision that Parliament may repeal any provision of Schedule V by an ordinary law
\nenacted under paragraph 7 of Schedule V or by an amendment under Article 368. The
\namending power under Article 368 which provides for amendment of the Constitution by
\na more difficult procedure than the one by which any provision of Schedule V may be
\nrepealed under paragraph 7 cannot surely be narrower than the power under paragraph 7
\nof Schedule V. The same consideration equally applies to paragraph 21 of Schedule VI to
\nthe Constitution.\n<\/p>\n
1959. According “to Article 33 Parliament may by law determine to what extent any of
\nthe rights conferred by Part III shall in their application to the members of the Armed
\nforces or forces charged with the maintenance of public order be restricted or abrogated
\nso as to ensure better discharge of their duties and the maintenance of discipline amongst
\nthem. It is open to Parliament to make a law abrogating the fundamental rights of the
\ncitizens for the time being employed in the Army and the forces charged with the
\nmaintenance of public order. For instance, it is open to it to make a law abrogating the
\nfreedom of speech of persons employed in the Army. For the reasons already discussed in
\nrelation to paragraph 7 of Schedule V, it cannot be disputed that Parliament may abrogate
\nthe fundamental rights of the citizens employed in the Army or forces charged with the
\nmaintenance of public order in the exercise of the amending power under Article 368.
\n1960. The power of a Constituent Assembly, which is a representative body, to frame a
\nConstitution is unlimited and unconfined. Its absolute power is explained by the fact that
\nit is called upon to chart a process of government of a country. In carrying out its task it
\nhas to take decisions on matters of high policy. The high power is made to match the high
\npurpose. The nature of the power conferred on Parliament by Article 368 is similar to the
\npower exercisable by a Constituent Assembly. Therefore the amending power in Article
\n368 is as unlimited and unconfined as the power of a Constituent Assembly. Indeed, it
\nmay truly be said that Parliament acts as a Continual Constituent Assembly.
\n1961. The history of Article 368 supports the broadest construction of the word
\n“amendment”. Article 368 is similar to Article 304 of the Draft Constitution. Article 305
\nof the Draft Constitution is material for our purpose. It relevantly read : “Notwithstanding
\nanything contained in Article 304, the provisions of this Constitution relating to the
\nreservation of seats for the Muslims, the Scheduled Castes, the Scheduled Tribes or the
\nIndian Christians either in Parliament or in the legislature of any State…shall not be
\namended during a period of 10 years from the commencement of this Constitution.
\n1962. Part XIV of the Draft Constitution made reservation of seats in Parliament and
\nState Legislatures for Muslims, Scheduled Castes, Scheduled Tribes and Indian
\nChristians. The word “amended” in Article 305 unmistakably include the repeal of the
\nprovisions prescribing the reservations. As Article 305 was an exception to Article 304,
\nthe word “amendment” in Article 304 would include the power of abrogating the
\nreservations. As in Article 304, so in Article 368 “amendment” should include the sense
\nof repeal and abrogation.\n<\/p>\n
1963. According to Sri Palkhiwala, whenever the Constitution-makers intended to confer
\nthe power of repeal on any authority, they have expressly said so as in Articles 35(b),
\n252(2), the proviso to Article 254(2) and Article 372(1) and (2). In all these provisions
\nthe Words “alter, repeal or amend” are used with reference to a law. As “amend” would
\nnot authorise repeal simpliciter of the entire law, the framers of the Constitution have
\nexpressly conceded the power of repealing the entire law. So these provisions do not help
\nthe argument of Sri Palkhiwala that “amendment” in Article 368 should be given a
\nnarrow meaning.\n<\/p>\n
1964. To sum up, the nature, object and history of the amending power and the context of
\nArticle 368 leave little room for doubt that the word “amendment” includes the power of
\nrepealing or abrogating each and every provision of the Constitution. It may be that
\nParliament may not be able to annhilate the entire Constitution by one stroke of pen. But
\nit can surely repeal or abrogate all provisions in Part III. Article 368 permits Parliament
\nto apply not only the physician’s needle but also the surgeon’s saw. It may amputate any
\npart of the Constitution if and when it becomes necessary so to do for the good health and
\nsurvival of the other parts of the Constitution.\n<\/p>\n
Meaning of ‘Law’ in Article 13(2)
\n1965. There is a distinction between ‘Constitution’ and ‘law’. (Ordinarily) a ‘Constitution’
\nsignifies a politico-legal document. President Wilson once said that the U.S. Constitution
\nhas been, to a considerable extent, a political document and not a mere ‘lawyers
\ndocument’. C.G. Hains : Role of the Supreme Court in American Government and
\nPolitics, 1944 Edn., p. 44. On the other hand, in its ordinary sense ‘law’ signifies a statute
\nor a legislative enactment. Again, a ‘Constitution’ prescribes the paramount norm or
\nnorms; a law prescribes derivative norms. They are derived from the paramount norms.
\nThe reckoning of a Constitutional amendment in the eye of law is the same as that of a
\nConstitution. Therefore ordinarily a Constitutional amendment is not law. Significantly,
\nthere is not a whisper of the word ‘law’ in Article 368.\n<\/p>\n
1966. The context of the word ‘law’ in Article 13(2) does not show that it includes an
\namendment of the Constitution made under Article 368. The word ‘law’ in Article 13(1)
\nobviously does not include a Constitution. No Constitution existing at the time of the
\ncommencement of our Constitution and taking away or abridging the fundamental rights
\nof the people conferred by Part III of the Constitution has been brought to our notice in
\nspite of the assiduous research of Sri Palkhiwala. Article 13(3)(a) provides for an
\nextensive definition of the word ‘law’ by including things which are not ordinarily
\nregarded as included in it. It mentions an ordinance, order, bye-law, rule, regulation,
\nnotification, custom or usage having the force of law. But it does not include the
\nConstitution which in the ordinary sense does not mean ‘law’.\n<\/p>\n
1967. A distinction between ‘Constitution’ and ‘law’ is made in the Constitution itself.
\nAccording to Article 60 the President of India has to take the oath that he will preserve,
\nprotect and defend “the Constitution and the law”. Article 159 requires the Governor of a
\nState to take the same oath. A Minister of the Union and a State, the Judges of the
\nSupreme Court and High Courts and the Comptroller and Auditor General also take the
\nsame kind of oath. If the framers of the Constitution had regarded the Constitution as
\n‘law’, they would not have separately mentioned the Constitution in various oaths.
\n1968. Various provisions of the Constitution indicate that the product which comes into
\nbeing by fallowing the legislative procedure prescribed in Articles 107 to 111 is called
\n‘law’. The heading over Articles 107 and 196 reads as “Legislative Procedure”. When the
\nprescribed legislative procedure is followed, the end-product is law. But when the
\nprocedure prescribed in Article 368 is strictly followed, it results in the amendment of the
\nConstitution. The Constitution-makers did not call it ‘law’.
\n1969. Ordinarily fundamental rights avail against the State organs, that is, the Legislature,
\nthe Executive and the Judiciary and other agencies of the State. While making an
\namendment under Article 368, Parliament acts as a constituent authority and not as a
\nState organ. The body making a law in accordance with the procedure prescribed under
\nArticles 107 to 111 and an amendment according to the procedure prescribed in Article
\n368 may be the same, but the two functions are fundamentally different in character. It is
\ncommon knowledge that often there is a polarisation of various functions in one and the
\nsame body. For instance, the House of Lords in Great Britain exercises legislative
\nfunctions as well as judicial functions. It may pass a Bill by a bare majority of the Lords
\nassembled in a particular session. But all the Lords minus the Lord Chancellor, the Law
\nLords and such other Lords as have held or are holding high judicial offices cannot
\ndecide a civil appeal. On the other hand, three Lords selected from any one of the last
\nthree categories of Lords may decide a civil appeal. The functional difference accounts
\nfor this apparent paradox of numbers. The members of the Dominion Parliament of India
\ncould not, by their unanimous vote, make the Constitution of India. But the same
\nmembers-acting as the Constituent Assembly could, by a bare majority, make the
\nConstitution. The functional difference in making a legislative law and an amendment of
\nthe Constitution likewise explains the basic difference in the procedures prescribed in
\nArticles 107 to 111 and Article 368. In case of difference on a Bill between the House of
\nthe People and the Council of States, the two Houses may meet unicamerally and pass a
\nlegislative measure. The President cannot refuse his assent to a Bill passed by both
\nHouses bicamerally or unicamerally. But an amendment of the Constitution under Article
\n368 cannot be made by a vote in a joint sitting of the two Houses. The two Houses must
\nmeet separately and pass tile amending bill by the requisite majority. The President may
\nwithhold his assent to the Constitution amending bill. It is on account of the functional
\ndifference between law making and Constitution amending that a law passed by the
\nunanimous vote of Parliament according to the procedure in Articles 107 to 111 cannot
\noverride any fundamental right. A Bill passed by more than half of the members of each
\nHouse assembled separately and by two third of the members present and voting will,
\nhowever, result in the amending of the fundamental rights.\n<\/p>\n
1970. Legislative power in Article 245 is made ‘subject to the provisions of this
\nConstitution’. But Article 368 is not made ‘subject to the provisions of this Constitution’.
\nArticle 368 places only one express fetter on the amending power, that is, the procedural
\nfetter. A substantive fetter on the amending power is accordingly not contemplated by
\nArticle 368. The framers of the Constitution were aware of the fact that certain foreign
\nConstitutions have expressly put the amending power in substantive fetters. Indeed
\nArticle 305 sought to place such a fetter on the Draft Article 304 (corresponding to
\nArticle 368). In the absence of clear textual evidence, I am unable to expand the meaning
\nof ‘law’ in Article 13(2), for an expansive construction would permanently rule out the
\nlawful making of structural reforms in the social, economic and political frame of the
\ncountry. Speaking on the First amendment to the Constitution following the decision of
\nthis Court in State of Madras v. Srimathi Champakan Dorairajan, (1951) S.C.R. 525 on
\nMay 29, 1951 Jawaharlal Nehru said : “We have to give them (the weaker sections of the
\nsociety) opportunities-economic opportunities, educational opprtunities and the like. Now
\nin doing that we have been told that we come up against some provisions in the
\nConstitution which rather lay down some principles of equality or some principles of
\nnon-discrimination etc. So we arrive at a peculiar tangle. We cannot have equality
\nbecause in trying to attain equality we come up against some principles of equality. That
\nis a very peculiar position. We cannot have equality because we cannot have non-
\ndiscrimination because if you think in terms of giving a lift to those who are down, you
\nare somehow affecting the present status quo undoubtedly. Therefore, if this argument is
\ncorrect, then we cannot make any major change in the status quo, whether economic or in
\nany sphere of public or private activity.” Parliamentary Debates Vols. XII-XIII, Part II-
\n1951, pages 9616-9617.\n<\/p>\n
1971. The word ‘compensation’ in the unamended Article 31(2) has been construed by
\nthis Court to mean full market value of the acquired property. This construction creates a
\ndirect conflict between Article 31(2) and Article 39(c). Article 39(c) enjoins the State to
\ndirect its policy towards securing “that the operation of the economic system does not
\nresult in the concentration of wealth and means of production to the common detriment.”
\nThis object can never be achieved if full market value of the acquired properly is to be
\npaid to its owner. The payment of full market value to the owner will change the form of
\nthe concentration of wealth from property to cash. The concentration would remain. The
\nhistory of our National Movement clearly shows that the Constitution-makers were
\ncommitted to the accomplishment of the objects specified in Part IV of the Constitution.
\nThey have expressly declared that those objects are ‘fundamental’. in the governance of
\nthe country. It is accordingly reasonable to think that they have provided for the means of
\nresolving the conflict between Articles 31(2) and 39(c) or between Articles 29 and 46.
\nThey must have intended that when a conflict arises between the rights in Part III and the
\nobligations of the State in the Part IV, that conflict may be resolved by an amendment of
\nthe Constitution under Article 368. “My concept of a fundamental right is something
\nwhich Parliament cannot touch save by an amendment of the Constitution” (emphasis
\nadded) (S. Krishnan versus State of Madras) [1951] S.C.R. 621 at page 652 per Bose J.
\n1972. The phrase ‘notwithstanding anything in the Constitution’ is used in a provision
\ngranting power for emancipating the grant from any restrictive provision in the
\nConstitution. As the word ‘law’ in the Article 13(2) is not intended to include an
\namendment of the Constitution, Article 368 does not open with the non-obstante clause.
\n1973. No unmistaking conclusion can be drawn from the history of Article 13(2) as to the
\nmeaning of the word ‘law’. The Draft Report of the Sub-Committee on Fundamental
\nRights, dated April 3, 1947, contained an annexure dealing with Fundamental Rights.
\nShiva Rao, Framing of India’s Constitution, Vol. II, p. 137. Clause 2 of the annexure
\nrelevantly provided that “any law which may hereafter be made by the State inconsistent
\nwith the provisions of this Chapter\/Constitution shall be void to the extent of such
\ninconsistency.” By a letter of April 16, 1947, the Chairman of the Fundamental Rights
\nsub-Committee forwarded an annexure on Fundamental Rights to the Chairman,
\nAdvisory Committee on Fundamental Rights. Clause 2 of the annexure materially read:
\n“All existing laws or usages in force…inconsistent with the rights guaranteed under this
\nConstitution shall stand abrogated to the extent of such inconsistency : nor shall the
\nUnion or any unit make any law taking away or abridging any such right.” Ibid, p. 171.
\nOn April 23, 1947, the Advisory Committee on Fundamental Rights presented an interim
\nreport to the President of the Constituent Assembly. The Report contained an annexure
\nproviding for fundamental rights. Clause (2) of the annexure materially read : “All
\nexisting laws, notifications, regulations, customs or usages in force…inconsistent with the
\nrights guaranteed under this Part of the Constitution shall stand abrogated to the extent of
\nsuch inconsistency, nor shall the Union or any unit make any law taking away or
\nabridging any such right.” Ibid, p. 290. Shri K. Santhanam proposed an amendment
\nsubstituting for the last words in Clause (2) the words “Nor shall any such right be taken
\naway or abridged except by an amendment of the Constitution.” In his speech he
\nexplained that “if the clause stands as it is even by an amendment of the Constitution we
\nshall not be able to change any of these rights if found unsatisfactory or inconvenient….
\nIn order to avoid any such doubts I have moved this amendment.” C.A.D. Vol. 3, pp.
\n415-416. So according to him the amendment was by way of abundant caution. Sardar
\nVallabh Bhai Patel accepted the amendment. It was put to vote and adopted. Ibid, p. 415.
\nThe Constituent Assembly thus accepted the position that fundamental rights could be
\nabrogated by a Constitutional amendment.\n<\/p>\n
1974. In October, 1947, a Draft Constitution was prepared by the Constitutional Adviser.
\nShiva Rao, supra, p. 7. Section 9(2) of his Draft Constitution materially read : “Nothing
\nin this Constitution shall be taken to empower the State to make any law which curtails,
\nor takes away any of the rights conferred by Chapter II of this Constitution except by way
\nof amendment of this Constitution under Section 232 and any law made in contravention
\nof this section shall to the extent of such contravention be void.” Although the
\nConstituent Assembly had expressly accepted the amendment of Sri K. Santhanam, the
\nDrafting Committee omitted the words “except by way of amendment of this
\nConstitution.” The relevant portion of Article 8(2) of the Draft Constitution read : “The
\nState shall not make any law which takes away or abridges the rights conferred by this
\nPart and any law made in contravention of this Part shall to the extent of the
\ncontravention be void.” No explanation for excluding the words “except by way of
\namendment of this Constitution”, which were approved by the Constituent Assembly, is
\nto be found in the records. It is, however, important to observe that when the words
\n“except by way of amendment of the Constitution” are omitted from Sri K. Santhanam’s
\namendment, the remaining words “nor shall any such rights be taken away or abridged”
\nare quite wide to prohibit the abrogation or abridgment of fundamental rights even by a
\nConstitutional amendment. The same effect seems to be produced by the words “nothing
\nin this Constitution” in Section 9(2) of the Draft Constitution prepared by the
\nConstitutional Adviser. But the Drafting Committee substituted Section 9(2) by Article
\n8(2) of the Draft Constitution. Article 8(2) of the Draft Constitution does not enmesh in
\nplain words all the provisions of the Constitution including Article 304. This may perhaps
\nexplain the omission of the words “except by way of amendment of this Constitution.”
\nfrom Article 8(2) of the Draft Constitution. In any case, this history of Article 13(2) does
\nnot prove that the Drafting Committee intended Up give supremacy to fundamental rights
\nover the Constitution amending power. In this connection it is important to refer to a note
\nfrom the Constitutional Adviser’s office that ‘law’ in Section 9(2) did not include an
\namendment of the Constitution. Shiva Rao, Vol. IV, p. 26.\n<\/p>\n
1975. A careful reading of Dr. B.R. Ambedkar’s speeches would show that the
\nConstitution amending power can be used to abrogate or abridge the fundamental rights.
\nOn November 4, 1948 he said:\n<\/p>\n
The provisions of the Constitution relating to the amendment of the
\nConstitution divide the Articles of the Constitution into two groups. In the
\none group are placed Articles relating to : (a) the distribution of legislative
\npowers between the Centre and the State, (b) the representation of the
\nStates in Parliament; and (c) the powers of the Courts, All other Articles
\nare placed in another group. Articles placed in the second group cover a
\nvery large part of the Constitution and can be amended by Parliament by a
\ndouble majority, namely, a majority of not less than two third of the
\nmembers of each House present and voting and by a majority of the total
\nmembership of each House. The amendments of these articles did not
\nrequire ratification by the States.” C.A.D. Vol. VII, p. 36. (emphasis
\nadded).\n<\/p>\n
He reiterated:\n<\/p>\n
It is only for amendments of specific matters-and they are only few-that
\nthe ratifications of the State legislatures is required. All other articles of
\nthe Constitution are left to be amended by Parliament.” C.A.D. Vol. VII,
\np. 43. (emphasis added).\n<\/p>\n
On another occasion he repeated:\n<\/p>\n
Now, what is it we do ? We divide the articles of the Constitution under
\nthree categories. The first category is one which consists of articles which
\ncan be amended by Parliament by a bare majority. The second set of
\narticles are articles which require two-thirds majority. If the future
\nParliament wishes to amend any particular article which is not mentioned
\nin Part III or Article 304, all that is necessary is to have two-thirds
\nmajority. Then, they can amend it.\n<\/p>\n
Mr. President : Of members present
\nThe Honourable Dr. B.R. Ambedkar : Yes, Now, we have no doubt put
\ncertain articles in a third category where for the purpose of amendment the
\nmechanism is somewhat different or double. It requires two-thirds
\nmajority plus ratification by the States.” C.A.D. Vol. IX, pp. 660-663.
\n1976. It would appear from these speeches that for the purpose of amendment Dr.
\nAmbedkar has classified all the Articles of the Constitution in three categories. The
\nArticles must fit in one or the other of the three categories, for according to him there is
\nno fourth category. Articles in Part III of the Constitution should accordingly fit into one
\nof these categories. It seems to me that having regard to his threefold classification of the
\nArticles it is not fair to interpret his speeches as showing that the Articles in Part III are
\nnot at all amendable. The word “not” in the sentence “if the future Parliament wishes to
\namend any particular article which is not mentioned in Part III or Article 304” is
\npresumably either a slip of tongue or a printer’s devil. When Jawaharlal Nehru said that
\nthe fundamental rights were intended to be “permanent in the Constitution”, he did not
\nreally mean that they are not amendable. His speeches, already quoted by me, would
\nclearly show that he regarded the entire Constitution to be subject to amendment by any
\nfuture Parliament.\n<\/p>\n
1977. Sri Kamath had moved an amendment to Article 304 which expressly provided for
\namendment in the provisions of Part III, but that amendment was rejected by the
\nConstituent Assembly. No inference of unamendability of those provisions can be drawn
\nfrom the rejection of his motion, for the members of the Constituent Assembly might
\nhave thought that the language of Article 304 of the Draft Constitution was sufficiently
\nspacious to include an amendment of the provisions of Part III and that accordingly Sri
\nKamath’s motion was unnecessary.\n<\/p>\n
1978. The phrase “Constitution as by law established” in the President’s oath would not
\nestablish that the Constitution is a law in the ordinary sense of the term. The word ‘law’ in
\nthe phrase, in my view, means lawful. The phrase would mean “Constitution established
\nin a lawful manner, that is, by the people through their representatives.
\n1979. The oath of the President to defend “the Constitution and the law” does not bind
\nhim to the Constitution as it stood on the day he took the oath. The word ‘law’
\nundoubtedly means the law for the time being in force. A variation or repeal of a part of a
\nlaw would not compromise the oath. In the context of law, the ‘Constitution’ would mean
\nthe Constitution as varied or repealed from time to time.\n<\/p>\n
1980. Sri Palkhiwala has contended vigorously that people have reserved to themselves
\nthe fundamental rights and that those rights are sacred and immutable natural rights. It
\nseems to me that it is an error to consecrate the rights enumerated in Part III of the
\nConstitution as “Sacrosanct” or “transcendental” or to romanticise them as “natural
\nrights” or “primordial rights” or to embalm them in the shell of “inalienable and
\ninviolable” and “immutable.\n<\/p>\n
1981. To regard them as sacrosanct does not seem to comport with the secular virtue of
\nour Constitution. To regard them as “natural rights” or “primordial rights” overlooks the
\nfact that the rights specified in Articles 15, 16, 17, 18, 21, 22, 23, 24, 25, 27, 28. 29, 30
\nand 32 were begotten by our specific national experience. They did not exist in India
\nbefore the Constitution.\n<\/p>\n
1982. The Constitution-makers did not regard the rights mentioned in Part III as
\n‘sacrosanct’ or as ‘inalienable’ and ‘inviolable’ or as ‘immutable’. Jawaharlal Nehru said :
\n“So, if you wish to kill this Constitution make it sacred and sacrosanct certainly. But if
\nyou want it to be a dead thing, not a growing thing, a static, unwieldy, unchanging thing,
\nthen by all means do so, realising that that is the best way of stabbing it in the front and in
\nthe back. Because whatever the ideas of the 18th century philosophers or the philosophers
\nof the early 19th century…nevertheless the world has changed within a hundred years-
\nchanged mightily” Parliamentary Debates Vols. XII-XIII, Part II, pp. 9624-9625.
\n1983. Articles 15(3), 16(4) and (5), 19(2) to (6), 21, 22(3), 4(b) and 7(a) and (b), 23(2),
\n25(1) and (2), 26, 28(2), 31(4), (5), and (6) encumber the rights with manifold
\nunpredictable limitations. Article 19(2) has invented a completely new restriction to free
\nspeech, namely, ‘friendly relations with foreign states’ Article 33 expressly empowers
\nParliament to restrict or abrogate the rights in their application to the Army and forces
\nresponsible for the maintenance of public order. For a period of five years from May 14,
\n1954, the ‘reasonableness’ of restrictions on the rights specified in Article 19 was made
\nunjusticiable in the State of Jammu and Kashmir. Clause (7) added to Article 19 by the
\nPresident provided that ‘reasonable restrictions’ in Clauses (2), (3), (4) and (5) shall be
\nconstrued as meaning such restrictions as the appropriate legislature in Jammu and
\nKashmir “deems reasonable”. Article 35A applied to that State by the President made
\ninroads into the rights of employment under the State, the right to acquire property the
\nright to settlement and the right to scholarships and other aids in the State. Article 303(2)
\nempowers Parliament to make law giving preferences and making discrimination in the
\nmatter of inter-State trade if it is necessary to do so for dealing with a situation arising
\nfrom scarcity of goods in any part of the country. Article 358 suspends rights under
\nArticle 19 during the operation of the Proclamation of Emergency under Article 352.
\nArticle 359 empowers the President to suspend the rights under Article 32 during
\nEmergency, so that all fundamental rights may be made quiescent. All these provisions
\nprove that the fundamental rights may be taken away or abridged for the good of the
\npeople. (Basheskar Nath v. The Commissioner of Income Tax [1959] Supp. 1 S.C.R. 528
\nat pages 604-605 per S.K. Das J.).\n<\/p>\n
1984. Rights in Part III are downright man made. According to Dr. B.R. Ambedkar, they
\nare the ‘gift of law’ C.A.D. Vol. VII, p. 40. Article 13(2) and 32(1) and (2) and 359
\nexpressly speak of the fundamental rights as “conferred by Part III”. They are thus the
\ncreatures of the Constitution. They are called fundamental rights not because they are
\nreserved by the people to themselves but because they are made indestructible by
\nlegislative laws and executive action. There is no analogue in the Constitution to the X
\nAmendment of the U.S. Constitution which expressly speaks of the reservation of powers
\nby the people. It is well to remember that the I Amendment taking away or abrogating
\ncertain rights was passed by the Constituent Assembly acting as the Provisional
\nParliament. It reflects the Constitution-makers’ intention that the rights can be abrogated.
\n1985. The prescription of a more rigid procedure for changing the provisions specified in
\nthe provisio to Article 368 underscores the fact that the framers of the Constitution
\nregarded them as more valuable than the provisions of Part III. They attached more value
\nto federalism than to the fundamental rights.\n<\/p>\n
Inherent and implied limitations on amending power
\n1986. Wanchoo J. and two other learned Judges who associated with him have held that
\nthere are no inherent and implied limitations on the amending power in Article 368
\n(Golaknath, Supra at page 836). Bhachawat and Ramaswami JJ. shared their opinion.
\n(ibid, pages 910 and 933). It seems to me that Hidayatullah J. also did not favour the
\nargument of inherent and implied limitations on the amending power, for he has said :
\n“The whole Constitution is open to amendment. Only two dozen articles are outside the
\nreach of Article 368. That too because the Constitution has made them fundamental.”
\n(ibid, p. 878).\n<\/p>\n
1987. Sri Palkhiwala’s argument of inherent and implied limitations may be reduced to
\nthe form of a syllogism thus. All legislative powers are subject to inherent and implied
\nlimitations.\n<\/p>\n
1988. The constituent power in Article 368 is a legislative power.
\n1989. The constituent power is subject to inherent and implied limitations.
\n1990. If the major and minor premises in the syllogism are valid, the conclusion also
\nmust be valid. But both premises are fallacious. Some legislative powers are not subject
\nto any inherent and implied limitations. Take the case of the War Power. During the
\ncourse of arguments I had asked Sri Palkhiwala to point out any inherent and implied
\nlimitation on the War Power, but he could point out none. When the President has issued
\na Proclamation of Emergency under Article 352, the cardinal principle of federalism is in
\neclipse. Parliament may make laws for the whole or any part of the territory of India with
\nrespect to any of the matters enumerated in the State List. (See Article 250(1)). The
\nexecutive power of the Union shall extend to the giving of directions to any State as to
\nthe manner in which the executive power thereof is to be exercised. Parliament may
\nconfer powers and impose duties or authorise the conferring of powers and the imposition
\nof dudes upon the Union officers and authorities in respect of a matter not enumerated in
\nthe Union List. (See Article 353). The teeth, of Article 19 become blunted. (See Article\n<\/p>\n
358). The President may suspend the right to move any Court for the enforcement of
\nfundamental rights. (See Article 359) it would virtually suspend the fundamental rights
\nduring Emergency. Article 83(2) provides that the House of the People shall continue for
\nfive years from the date appointed for its first meeting. According to its proviso, the
\nperiod of five years may, while a Proclamation of Emergency is in operation, be extended
\nby Parliament by law for a period not exceeding one year at a time. Evidently during
\nEmergency the War Power of Parliament and the President is at its apogee, uncribbed and
\nuncabined. It has already been shown earlier that the constituent power in Article 368 is
\nnot a legislative power. As both premises of the syllogism are fallicious, the conclusion
\ncannot be valid.\n<\/p>\n
1991. According to Sri Palkhiwala, an inherent limitation is one which inheres in the
\nstructure of Parliament. Parliament consists of two Houses and the President. The House
\nof the People is elected by adult franchise. It is argued that Parliament cannot make any
\namendment doing away with its structure. Its structure limits its amending potency. It is a
\nbig assumption and should not be accepted without proof from the text of the
\nConstitution. The Constitution does not embody any abstract philosophy. It is still
\nseriously debated whether ‘birds fly because they have wings’ or ‘birds have wings
\nbecause they fly’. Many maintain that function works change in structure. Proviso to
\nArticle 83(2), Articles 250, 353, 358 and 359 demonstrate that the structure of our polity
\nand of Parliament suffer change from the tasks of Emergency. Article 368 itself can be
\namended to enlarge the amending power. The magnitude of the amending power is to be
\nmeasured by the purposes which it is designed to achieve than by the structure of
\nParliament.\n<\/p>\n
1992. Implied limitations cannot be spelt out of the vague emotive generalities of the
\nPreamble. ‘People’, ‘Sovereign’, ‘Democratic’, ‘Republic’, ‘Justice’, ‘Liberty’, ‘Equality’ and
\n‘Fraternity’ are plastic words, and different people have impressed different meanings on
\nthem. Slavery had coexisted with democracy and republic. Liberty and religious
\npersecution have walked hand in hand. It was once believed that equality was not
\ncompromised by denying vote to the propertyless. Preamble is neither the source of
\npowers nor of limitations on power. (In re. Barubari Union, Supra, p. 282).
\n1993. According to Sri Palkhiwala, an implied limitation is one which is implicit in the
\nscheme of various provisions of the Constitution. The scheme “of various provisions is to
\ncreate primary organs of State and to define, demarcate and limit their powers and
\nfunctions. The scheme of Article 368, on the other hand, is to re-create the primary
\norgans of State and to re-define, re-demarcate and re-limit their powers and functions if
\nand when it becomes imperative to do so for the good of the people. Accordingly it must
\nplainly have been the intention of the Constitution-makers that Article 368 should control
\nand condition rather than be controlled and conditioned by other provisions of the
\nConstitution. Article 368 is the master, not the slave of the other provisions. Acting under
\nArticle 368, Parliament is the creator, not the creature of the Constitution. In one word, it
\nis supreme. As Lord Halifax has said : The “reverence that is given to a
\nfundamental…would be much better applied to that supremacy or power, which is set up
\nin every nation in differing shapes, that altereth the Constitution as often as the good of
\nthe people requireth it…. I lay down, then, as a fundamental first, that in every
\nConstitution there is some power which neither will nor ought to be bounded. Gough,
\nSupra, at page 170.” Jawaharlal Nehru also said : “(U)ltimately the whole Constitution is
\na creature of Parliament.” C.A.D. Vol. IX, p. 1195.\n<\/p>\n
1994. It is said that Article 368 cannot be used to abrogate any basic, fundamental or
\nessential feature of the Constitution or to damage or destroy the core of any fundamental
\nright. But no accurate test for ascertaining a basic, fundamental or essential feature or the
\ncore of a fundamental right has been suggested by Sri Palkhiwala. An appeal is made to
\nthe trained and perceptive judicial mind to discover the essential features of the
\nConstitution and their core. During the Stuart period in England the King as well as the
\nParliament were both claiming to defend the fundamentals of English polity. Charles I
\ndeclared that he had taken up arms only “to defend the fundamental laws of this
\nKingdom.” Gough, supra, p. 78. On the other hand, Parliamentarians maintained that the
\nright of the people was more truly fundamental than anything based merely on tradition
\nor prescription Ibid, p. 99. Commenting on the remark of Sir John Finch C.J. (quoted in
\nthe opening of this judgment) Maitland said: (W)ho is to decide what is an ornastitution
\nabove both king and Parliament, limiting to royal acts a ment and what a substantial part
\nof the crown. The notion of a Conproper sphere, limiting to statutes a proper sphere, was
\nnowhere to be found expressed in any accurate terms, and would satisfy neither king nor
\nnation Constitutional History of England, Supra, p. 300.\n<\/p>\n
1995. At the end of the 17th century Lord Halifax derisively remarked : “Fundamental is
\na pedestal that men set everything upon that they would not have broken. It is a nail
\neverbody would use to fix that which is good for them; for all men would have that
\nprinciple to be immutable that serves their use at the time.\n<\/p>\n
1996. Fundamental is a word used by the laity as the word sacred is by the clergy, to fix
\neverything to themselves they have a mind to keep, that nobody else may touch it Gough,
\nsupra, pp. 169-170.\n<\/p>\n
1997. The Constitution-makers who were familiar with the English Constitutional history
\ncould not conceivably have left undetermined the test of distinguishing the essential
\nfeatures from the non-essential features or their core. The test is writ large in Article 368
\nitself. Every provision of the Constitution which may be amended only by the procedure
\nprescribed in Article 368 is an essential feature of the Constitution, for it is more set than
\nlegislative laws. The test is the rigid procedure. The more rigid the procedure, the more
\nessential the provision amendable thereby. Thus the provisions specified in the proviso to
\nArticle 368 are more essential than the rights in Part III. It has already been shown earlier
\nthat the fundamental rights, even though an essential feature of the Constitution, are
\nwithin the sway of the amending power in Article 368. On a parity of reasoning, judicial
\nreview of legislation is also amendable. The Constitution creates, enlarges, restricts and
\nexcludes judicial review of legislation. (See Articles 32(2), 138, 139, 143, 77(2), 166(2)
\nand 31(4), (5) and (6)). Article 32(2) is as amendable as any fundamental right in Part III.
\nThe word “guaranteed” in Article 32(1) does not testify to its unamendable character. The
\nguarantee is good against the Government organs and not against the constituent power.
\nIt may be recalled that on December 9, 1948, Dr. B.R. Ambedkar, while speaking on
\nArticle 25 of the Draft Constitution (present Article 32) said : “The Constitution has
\ninvested the Supreme Court with these writs and these write could not be taken away
\nUnless and until the Constitution itself is amended by means left open to the Legislature
\nC.A.D. Vol. VII, p. 953.” And this he said in spite of his affirmation that Article 25 is the
\n“very soul” and the “very heart” of the Constitusion.\n<\/p>\n
1998. Article 368 places no express limits on the amending power. Indeed, it expressly
\nprovides for its own amendment. Parliament and more than half of the States may jointly
\nrepeal Article 368 and thus make fundamental rights immutable if they so desire. It is not
\npermissible to enlarge constructively the limitations on the amending power. Courts are
\nnot free to declare an amendment void because in their opinion it is opposed to the spirit
\nsupposed to pervade the Constitution but not expressed in words. (A.K. Gopalan v. The
\nUnion of India [1950] S.C.R. 88 at p. 120 per Kania C.J. and p. 220 per Mahajan J.; Raja
\nSuriya Pal Singh v. State of U.P.<\/a> [1952] S.C.R. 1056 at page 1068 per Mahajan J.). In
\nBabu Lal Pavate versus State of Bombay [1960] 1 S.C.R. 905 the Constitutionality of the
\nStates Reorganisation Act, 1956 was questioned by this Court. The Act provided for the
\nformation of two separate units out of the former State of Bombay: (1) The State of
\nMaharashtra and (2) The State of Gujarat. It also provided for transfer of certain
\nterritories from one State to another. The Act was passed under Article 3 of the
\nConstitution. Article 3 has a proviso to the effect that no Bill under the main part of
\nArticle 3 shall be introduced in either of the Houses unless, where the proposal contained
\nin the Bill affects the area, boundary or name of any of the States, the Bill has been
\nreferred by the President to the Legislature of that State for expressing its views thereon.
\nThe Bill carved out three units out of the State of Bombay, but the Act carved out only
\ntwo units. It was urged that the word “State” in Article 3 should be given a larger
\nconnotation so as to mean not merely the State but its people as well. This according to
\nthe argument was the “democratic process” incorporated in Article 3. According to this
\n“democratic process” the representatives of the people of the State of Bombay assembled
\nin the State Legislature should have been given an opportunity of expressing their views
\nnot merely on the proposal contained in the Bill but on any subsequent modification
\nthereof. Rejecting this argument, S.K. Das, J. said:\n<\/p>\n
(I)t will be improper to import into the question of construction doctrines
\nof democratic theory and practice obtaining in other countries, unrelated to
\nthe tenor, scheme and words of the provisions which we have to
\nconstrue…. It does not appear to us that any special or recondite doctrine
\nof “democratic process” is involved therein.\n<\/p>\n
1999. In the South India Corporation (P) Ltd. v. The Secretary, Board of Revenue,
\nTrivandrum<\/a> (1964) 4 S.C.R. 280 at page 295, Subba Rao J., while construing Article 372
\nobserved:\n<\/p>\n
Whatever it may be, the inconsistency must be spelled out from the other
\nprovisions of the Constitution and cannot be built up on the supposed
\npolitical philosophy underlying the Constitution.\n<\/p>\n
2000. Counsel for the petitioners has relied on Mangal Singh v. Union of India (1967) 2
\nS.C.R. 109. The Punjab Reorganisation Act, 1966 was enacted with the object of
\nreorganising the State of Punjab. Its Constitutionality was questioned in this Court. The
\nargument of the respondent that a law made under Articles 2, 3 and 4 may also make
\nsupplemental, incidental and consequential provisions which shall include provisions
\nrelating to the set-up of the legislative, executive and judicial organs of the State was
\ncountered by the appellant with the argument that such a wide power Parliament might
\nconceivably exercise to abolish the legislative and judicial organs of the state altogether.
\nRejecting the counter-argument Shah J. said:\n<\/p>\n
We do not think that any such power is contemplated by Article 4. Power
\nwith which the Parliament is invested by Articles 2 and 3 is power to
\nadmit, establish or form new States which conform to the democratic
\npattern envisaged by the Constitution; and the power which the Parliament
\nmay exercise by law is supplemental, incidental or consequential to the
\nadmission, establishment or formation of a State as contemplated by the
\nConstitution and is not power to override the Constitutional scheme. No
\nState can therefore be formed, admitted or set up by law under Article 4
\nby the Parliament which has no effective legislative, executive and judicial
\norgans.\n<\/p>\n
2001. Under Articles 2 and 3 Parliament may by law form a new State, increase or
\ndiminish the area of any State, and alter the boundary or name of any State. The power is
\nthus exercisable with reference to a State. The observation, of Shah J. is to be read in the
\ncontext of Chapters II, III and IV of Part VI. Chapter II of Part VI provides for the
\nexecutive structure of a State. Article 155 states that there shall be a Governor for each
\nState. Chapter III of Part VI deals with the structure of the State Legislature. Article 168
\nprovides that for every State there shall be a Legislature. The composition of the
\nLegislature, its powers and functions are laid down in this Chapter. Chapter V provides
\nfor the structure of the State Judiciary. Article 214 provides that there shall be a High
\nCourt for each State. The provisions in these Chapters are mandatory. Parliament, while
\nmaking a law under Articles 2, 3 and 4, cannot make radical changes in the legislative,
\nexecutive and judicial administration of a State, for its law-making power is subject to
\nChapter II, III and V of Part VI.\n<\/p>\n
2002. Sri Palkhiwala has invoked natural law as the higher law conditioning the
\nconstituent power in Article 368. Natural Law has been a sort of religion with many
\npolitical and Constitutional thinkers. But it has never believed in a single Godhead. It has
\na perpetually growing pantheon. Look at the pantheon, and you will observe there : ‘State
\nof Nature’, ‘Nature of Man’, ‘Reason’, ‘God’, ‘Equality’, ‘Liberty’, ‘Property’, ‘Laissez Faire’,
\n‘Sovereignty’, ‘Democracy’, ‘Civilised Decency’, ‘Fundamental Conceptions of Justice’ and
\neven ‘War’ “In justifying and extolling war as an institution Treitschke appealed “to the
\nlaws of human thought and of human nature” which forbid any alternative.” H.
\nLauterpacht : International Law and Human Rights, (1950 Edn.) p. 108.
\n2003. The religion of Natural Law has its illustrious Priestly Heads such as Chrysippus,
\nCicero, Seneca, St. Thomas Acquinas, Grotius, Hobbes, Locke, Paine, Hamilton,
\nJefferson and, Trietschke. The pantheon is not a heaven of peace. Its gods are locked in
\nconstant internecine conflict.\n<\/p>\n
2004. Natural Law has been a highly subjective and fighting faith. Its bewildering variety
\nof mutually warring gods has provoked Kelson to remark: “(O)utstanding representatives
\nof the natural law doctrine have proclaimed in the name of Justice or Natural Law
\nprinciples which not only contradict one another, but are in direct opposition to many
\npositive legal orders. There is no positive law that is not in conflict with one or the other
\nof these principles; and it is not possible to ascertain which of them has a better claim to
\nbe recognised than any other. All these principles represent the highly subjective value
\njudgments of their various authors about what they consider to be just of natural What is
\nJustice? University of California Press, 1960, page 259”.\n<\/p>\n
2005. Article 368 should be read without any preconceived notions. The framers of the
\nConstitution discarded the concept of “due process of law” and adopted the concept of
\n“procedure established by law” in Article 21. It is therefore reasonable to believe that
\nthey have discarded the vague standard of due process of law for testing the legitimacy of
\na Constitutional amendment. Due Process of Law is another name of natural law. The
\nConstitution-makers could have easily imposed any express limitation on the content of
\nthe amending power. The absence of any express limitation makes me think that they did
\nnot surround the amending power with the arnorphic penumbra of any inherent and
\nimplied limitations.\n<\/p>\n
Judicial Review of Constitutional amendments
\n2006. The history of this Court from Gopalan (Supra) to Golaknath (Supra) brings out
\nfour variant judicial attitudes. In Gopalan the majority of the Court expressly or tacitly
\nacknowledged “the omnipotence of the sovereign legislative power.” The Court displayed
\nhumility and self-restraint. But two years later in 1952 the Court assumed the posture of a
\nsentinel. In the State of Madras v. V.G. Row<\/a> (1952) S.C.R. 597 a unanimous Court spoke
\nthus: “(A)s regards the fundamental rights’…this Court has been assigned the role of a
\nsentinel on the qui vive.” While the Court took care to assure that it has no ‘desire to tilt at
\nlegislative authority in a crusader’s spirit’, it added by way of warning that “it cannot
\ndesert its own duty to determine finally the Constitutionality of an impugned statute.”
\nThe Court moved away from its Gopalan attitude of humility and self-restraint to the
\nsentinel’s role, compounded of self-restraint and self-consciousness. In 1954 the Court
\nmoved away a step further. In Virendra Singh and Ors. v. State of Uttar Pradesh<\/a> [1955] 1
\nS.C.R. 415 the Court, making the people its mouthpiece, asserted : “(W)e do not found on
\nthe will of the Government, we have upon us the whole armour of the Constitution
\nwearing the breastplate of its protecting provisions and flashing the sword of its
\ninspirations.” Perhaps this passage is a faithful drawing of a crusader. But the picture is of
\na crusader getting ready to set out on a new path. This is the Third attitude of the Court. It
\ndisplays more of self-assertion than of self-suppression. By 1963 Gopalan attitude of
\nhumility and self-restraint had lost its appeal. With the banner of “natural”, “sacrosanct”,
\nand “transcedental” rights in one hand and ‘the flaming sword of (the Constitution’s)
\ninspiration’ in the other, the Court announced in Golaknath that Parliament cannot take
\naway or abridge the fundamental rights in Part III. This is the fourth attitude of the Court
\ntowards judicial review. From Gopalan to Golaknath, the Court has shifted from one end
\nto the other end of the diagonal, from Parliament’s supremacy to its own supremacy.
\n2007. At the centre of the Court’s legal philosophy, there is the rational free-will of the
\nindividual. The Court’s claim to the guardianship over fundamental rights is reminiscent
\nof the Platonic guardians, the philosopher kings who were to rule over the Republic. The
\nCourts’s elevation of the fundamental rights recalls Locke, ‘whose notion of liberty
\ninvolves nothing more spiritual than the security of property and is consistent with
\nslavery and persecution’ Acton: The History of Freedom and Power, p. 104. When the
\nCourt surrounds the fundamental rights with the nimbus of ‘sacred’ and ‘sacrosanct’, we
\nare reminded of the theories of Grotius and Pufendorf with their theological strains.
\nWhen the Court declares that the fundamental rights are ‘primordial’, ‘immutable’ and
\n‘inalienable’ it is presumably banking on Blackstone with the difference that unlike him it
\nis negating the omnipotence of Parliament. When it is claimed that fundamental rights are
\naccorded a “transcendental position” in the Constitution, it is seeking to read Kant’s
\ntranscendental idealism into the Constitution.\n<\/p>\n
2008. This philosophy has entailed the subservience of the Directive Principles of State
\nPolicy to the fundamental rights. January 26, 1950 became the great divide : on one side
\nof it were those who became endowed with the fundamental rights and enjoyed their
\nblessings; on the other side were those who were formally granted fundamental rights but
\nhad no means and capacity to enjoy their blessings. This great divide is to remain for all
\ntime to come. But the Constitution-makers had a contrary intention. Said Jawaharlal
\nNehru: “These (the Directive Principles of State Policy) are, as the Constitution says, the
\nfundamentals in the governance of the country. Now, I should like the House to consider
\nhow you can give effect to these principles if the argument which is often being used…is
\nadhered to, you can’t. You may say you must accept the Supreme Court’s interpretation of
\nthe Constitution. But, I say, then if that is correct, there is an inherent contradiction in the
\nConstitution between the fundamental rights and the Directive Principles of State Policy.
\nTherefore, again, it is upto this Parliament to remove that contradiction and make the
\nfundamental rights subserve the Directive Principles of State Policy Lok Sabha Debates,
\n1955-Vol. II, p. 1955”.\n<\/p>\n
2009. Article 31(4), (5) and (6) establish beyond doubt that the Constitution-makers
\nintended to give ascendency to the Directive Principles of State Policy over fundamental”
\nrights. “It is futile to cling to our notions of absolute sanctity of individual liberty or
\nprivate property and to wishfully think that our Constitution-makers have enshrined in
\nour Constitution the notions of individual liberty and private property that prevailed in
\nthe 16th century when Hugo Grotius flourished or in the 18th century when Blackstone
\nwrote his Commentaries and when the Federal Constitution of the United States of
\nAmerica was framed. We must reconcile ourselves to the plain truth that emphasis has
\nnow unmistakbly shifted from the individual to the community. We cannot overlook that
\nthe avowed purpose of our Constitution is to set up a welfare State by subordinating the
\nsocial…interest in the rights of the communitySocial interests are ever expanding and are
\ntoo numerous to enumerate or even to anticipate and therefore, it is not possible to
\ncircumscribe the limits of social control to be exercised by the State…. It must be left to
\nthe State to decide when and how and to what extent it should exercise this social control
\nState of West Bengal v. Subodh Gopal<\/a> (1954) S.C.R. 587 at page 655 per Das J.”.
\n2010. The Constitution does not recognise the supremacy of this Court over Parliament.
\nWe may test legislative laws only on the touchstone of authoritative norms established by
\nthe Constitution. Its procedural limitations aside, neither Article 368 nor any other part of
\nthe Constitution has established in explicit language any authoritative norms for testing
\nthe substance of a Constitutional amendment. I conceive that it is not for us to make
\nultimate value choices for the people. The Constitution has not set up a government of
\njudges, in this country. It has confided the duty of determining paramount norms to
\nParliament alone. Courts are permitted to make limited value choices within the
\nparameters of the Constitutional value choices. The Court cannot gauge the urgency of an
\namendment and the danger to the State for want of it, because all evidence cannot come
\nbefore it. Parliament, on the other hand, is aware of all factors, social, economic,
\npolitical, financial, national and international pressing for an amendment and is therefore
\nin a better position to decide upon the wisdom and expediency of it.
\n2011. Reason is a fickle guide in the quest for structural socio-political values. In the
\ntrilogy of Sankari Prasad Singh v. Union of India [1952] S.C.R. 89, Sajjan Singh of State
\nof Rajasthan [1965] 1 S.C.R. 933 and Golaknath (Supra) the opinion of seven judges
\nprevailed over the opinion of thirteen judges. The reason of the author of the
\nNicomochean Ethics found reason in slavery. The reason of the impassioned advocate of
\nUnlicensed Printing saw reason in denying freedom of speech to the Catholics. So
\nSchanupenhaur has said : “We do not want a thing because we have sound reasons for it;
\nwe find a reason for it because we want it” As quoted in the Story of Philosophy by Will
\nDurant at p. 339. Pure reason is a myth. Structuring reason is also calculating expediency,
\ncomputing the plus and minus of clashing values as a particular time, in a particular place
\nand in particular conditions, striking difficult balances.\n<\/p>\n
2012. Structural socio-political value choices involve a complex and complicated
\npolitical process. This Court is hardly fitted for performing that function. In the absence
\nof any explicit Constitutional norms and for want of complete evidence, the Court’s
\nstructural value chokes will be largely subjective. Our personae predilections will
\nunavoidably enter into the scale and give colour to our judgment. Subjectivism is
\ncalculated to undermine legal certainty, an essential element of the rule of law.
\n2013. Judicial review of Constitutional amendments will blunt the people’s vigilance,
\narticulateness and effectiveness. True democracy and true republicanism postulate the
\nsettlement of social, economic and political issues by public discussion and by the vote of
\nthe people’s elected representatives, and not by judicial opinion. The Constitution is not
\nintended to be the arena of legal quibbling for men with long purses. It is made for the
\ncommon people. It should generally be so construed that they can understand and
\nappreciate it. The more they understand it, the more they love it and the more they prize
\nit.\n<\/p>\n
2014. I do not believe that unhedged amending power would endanger the interests of the
\nreligious, linguistic and cultural minorities in the country. As long as they are prepared to
\nenter into the political process and make combinations and permutations with others, they
\nwill not remain permanently and completely ignored or out of power. As an instance,
\nwhile the Hindu Law of Succession has been amended by Parliament, no legislature from
\n1950 to this day has taken courage to amend the Muslim Law of Succession. A minority
\nparty has been sharing power in one State for several years. Judicial review will isolate
\nthe minorities from the main stream of the democratic process. They will lose the
\nflexibility to form and re-form alliances with others. Their self-confidence will disappear,
\nand they will become as dependent on the Court’s protection as they were once dependent
\non the Government’s protection. It seems to me that a two-third majority in Parliament
\nwill give them better security than the close vote of this Court on an issue vitally
\naffecting them.\n<\/p>\n
2015. Great powers may be used for the good as well as to the detriment of the people.
\nAn apprehended abuse of power would not be a legitimate reason for denying
\nunrestricted amending power to Parliament, if the language of Article 368 so permits
\nwithout stretch or strain. While construing the Constitution, it should be presumed that
\npower will not be abused. (A.K. Gopalan v. State [1950] S.C.R. 88 at pp. 320-21 at pages
\n320-21 per Das J.; Dr. N.B. Khare v. The State of Delhi<\/a> [1950] S.C.R. 519 at page 526
\nper Kania C.J.; In Re. Delhi Laws Act [1951] S.C.R. 747 at p. 1079 per Das J.), There is
\na general presumption in favour of an honest and reasonable exercise of power. (State of
\nWest Bengal v. Anwar Ali Sarkar<\/a> [1952] S.C.R. 284 at page 301 per Patanjali Sastri J.).
\nWe should have faith in Parliament. It is responsible to the people; it cannot ignore any
\nsection of them for all time.\n<\/p>\n
2016. Repelling the abuse of power argument, Das J. observed:\n<\/p>\n
(W)hat, I ask, is our protection against the legislature in the matter of
\ndeprivation of property by the exercise of the power of taxation? None
\nwhatever. By exercising its power of taxation by law, the State may
\ndeprive us of almost sixteen annas in the rupee of our income. What, I ask,
\nis the protection which our Constitution gives to any person against the
\nlegislature in the matter of deprivation even of life or personal liberty.
\nNone, except the requirement of Article 21, namely, a procedure to be
\nestablished by the legislature itself and skeleton procedure prescribed in
\nArticle 22…. What is abnormal if our Constitution has trusted the
\nlegislature as the people of Great Britain have trusted their Parliament ?
\nRight to life and personal liberty and the right to private property still exist
\nin Great Britain in spite of the supremacy of Parliament. Why should we
\nassume or apprehend that our Parliament…should act like mad man and
\ndeprive us of our property without any rhyme or reason? After all our
\nexecutive government is responsible to the legislature and the legislature is
\nanswerable to the people. Even if the legislature indulges in occasional
\nvagaries, we have to put up with it for the time being. That is the price we
\nmust pay for democracy. But the apprehension of such vagaries can be no
\njustification for stretching the language of the Constitution to bring it into
\nline with our notion of what an ideal Constitution should be. To do so is
\nnot to interpret the Constitution but to make a new Constitution by
\nunmaking the one which the people of India have given to themselves.
\nThat, I apprehend, is not the function of the Court. (1954) S.C.R. 587
\n2017. The argument of fear therefore is not a valid argument. Parliament as a legislature
\nis armed with at least two very vast powers in respect of war and currency. Any
\nimprudent exercise of these two powers may blow the whole nation into smithereens in
\nseconds, but no court has so far sought to restrict those powers for apprehended abuse of
\npower. Democracy is founded on the faith in self-criticism and self-correction by the
\npeople. There is ‘nothing to fear from a critical and cathartic democracy.
\n2018. The conflicts of the mediaeval Pope and the Emperor put on the Wane their power
\nas well as their moral authority. Conditions in India today are not propitious for this
\nCourt to act as a Hildebrand. Unlike the Pope and the Emperor, the House of the People,
\nthe real repository of power, is chosen by the people. It is responsible to the people and
\nthey have confidence in it. The Court is not chosen by the people and is not responsible to
\nthem in the sense in which the House of the People is. However, it will win for itself a
\npermanent place in the hearts of the people and thereby augment its moral authority if it
\ncan shift the focus of judicial review from the numerical concept of minority protection to
\nthe humanitarian concept of protection of the weaker sections of the people.
\n2019. It is really the poor, starved and mindless millions who need the Court’s protection
\nfor securing to themselves the enjoyment of human rights. In the absence of an explicit
\nmandate, the Court should abstain from striking down a Constitutional amendment which
\nmakes art endeavour to ‘wipe out every tear from every eye’. In so doing the Court will
\nnot be departing from but will be upholding the national tradition. The Brihadaranyaka
\nUpanishad says : “Then was born the Law (Dharma), the doer of good. By the law the
\nweak could control the strong.” (I. IV, 14). Look at the national emblem, the chakra and
\nsatyameva jayate. The chakra is motion; satyam is sacrifice. The chakra signifies that the
\nConstitution is a becoming, a moving equilibrium; satyam is symbolic of the
\nConstitution’s ideal of sacrifice and humanism. The Court will be doing its duty and
\nfulfilling its oath of loyality to the Constitution in the measure judicial review reflects
\nthese twin ideals of the Constitution.\n<\/p>\n
Twentyfourth Amendment
\n2020. It consists of two relevant sections, Sections 2 and 3, These sections have been
\ndrawn in the light of various judgments in Golaknath (supra). Section 2 adds Clause (4)
\nto Article 13. As the majority decision in Golaknath had taken the view that Article 13(2)
\nis a limitation on the amending power to take away or abridge the fundamental rights,
\nClause (4) removes that limitation. Section 3 consists of four clauses. Clause (a)
\nsubstitutes the marginal note to the unamended Article 368. The substituted marginal
\nnote reads as “Power of Parliament to amend the Constitution and procedure therefor”.
\nClause (b) renumbers the unamended Article 368 as Clause (2) and adds Clause (1) to it.
\nThe new Clause (1) calls the amending power as ‘constituent power’. It empowers
\nParliament to amend ‘by way of addition, variation or repeal’ any provision of the
\nConstitution in accordance with the prescribed procedure. It opens with the wellknown
\nphrase “Notwithstanding anything in this Constitution”. In the renumbered Clause (2)
\nalso, that is, the unamended Article 368, there is an amendment It says that the President
\nshall give his assent to the Bill. Clause (d) adds Clause (3) no Article 368. It provides that
\nnothing in Article 13 shall apply to any amendment made under Article 368:
\n2021. It may be observed that except as regards the assent of the President to the Bill,
\neverything else in the 24th Amendment was already there in the unamended Article 368.
\nI have already held to that effect earlier in this judgment. Accordingly, the amendment is
\nreally declaratory in nature. It removes doubts cast on the amending power by the
\nmajority judgment in Golaknath (supra) I am of opinion that the 24th Amendment is
\nvalid.\n<\/p>\n
2022. The unamended Article 368 imposed a procedural limit to the amending power.
\nThe amending Bill could not become a part of the Constitution until it had received the
\nassent of the President. I have held earlier that the President could withhold his assent.
\nAfter the amendment the President cannot withhold assent. The procedural restrictions
\nare a part of Article 368. The unamended Article 368 provided for its own amendment. It
\nwas accordingly open to Parliament to amend the procedure. So I find no difficulty in
\nupholding the amendment that the President “shall give his assent to the Bill
\n2023. One thing more. Let us assume for the sake of argument that the amending power
\nin the unamended Article 368 was subject to certain inherent and implied limitiations. Let
\nus also assume that it was restricted by the provisions of Article 13(2). The unamended
\nArticle 368 would impliedly read as “subject to Article 13(2) and any inherent and
\nimplied limitations.” So the restrictions imposed by Article 13(2) and inherent and
\nimplied limitations were a part of the body of Article 368. As Article 368 is itself liable to
\namendment, these restrictions are now removed by Parliament for they will fall within the
\nambit of the word “amendment”. The phrase “notwithstanding anything in this
\nConstitution” in the newly added Clause (1) of Article 368 is apt to sweep away all those
\nrestrictions. In the result, the amending power is now free of the incubus of Article 13(2)
\nand inherent and implied limitations, if any.\n<\/p>\n
In my opinion, the whole of the 24th amendment is perfectly valid.
\nSection 2 of the 25th Amendment
\n2024. Section 2 amends Article 31(2). The unamended Article 31(2) obligated the State
\nto pay ‘compensation’ for any property acquired or requisitioned by it. Section 2
\nsubstitutes the word ‘compensation” by the words “an amount”. It also provides that the
\namount fixed by law or determined in accordance with the principles prescribed by law
\nmay be “given in such a manner as may be specified in such law.\n<\/p>\n
2025. The last part of the main part of the amended Article 31(2) also states that “No
\nsuch law shall be called in question in any Court on the ground that the amount so fixed
\nor determined is not adequate or that the whole or any part of such amount is to be given
\notherwise than in cash.\n<\/p>\n
2026. A proviso has also been added to Article 31(2). According to the proviso, while
\nmaking any law-providing for the compulsory acquisition of any property of educational
\ninstitution, established and administered by a minority referred to in Clause (1) of Article
\n30, the State shall ensure that the amount fixed by or determined under the law is such as
\nwould not restrict or abrogate the rights guaranteed under that clause.
\n2027. Section 2 adds Clause (2B) to Article 31. Clause (2B) states that the provisions of
\nArticle 19(1)(f) shall not affect any law referred to in the amended Article 31(2).
\n2028. The birth of Section 2 is dictated by the history of Article 31(2). Article 24 of the
\nDraft Constitution became Article 31(2). Article 24 was moved by Jawaharlal Nehru in
\nthe Constituent Assembly on September, 10, 1949. Then he said that compensation could
\nnot be questioned “except where it is thought that there has been a gross abuse of law,
\nwhere in fact there has been a fraud on the Constitution C.A.D. Vol. IX, p. 1193”. His
\nconstruction of Article 24 received support from Sri Alladi Krishnaswami Ayyar and Sri
\nK.M. Munshi. Sri K.M. Munshi narrated his personal experience. In 1938 Bombay
\nGovernment acquired the Bardoli lands. In one case the property acquired was worth over
\nrupees five lacs. It was sold during the Non-cooperation Movement to an old Diwan of a
\nnative State for something like Rs. 6000. The income from the property was about Rs.
\n80,000.00 a year. The Diwan had received that income for about 10 years. The Bombay
\nLegislature acquired the property by paying compensation equal to the amount invested
\nby the Diwan in the property plus 6%. In direct opposition to the manifest intention of the
\nConstitution makers, this Court held that the word “compensation” in Article 31(2) means
\n“full cash equivalent” (The State of West Bengal v. Mrs. Bela Banerjee)<\/a> (1954) S.C.R.\n<\/p>\n
558.
\n2029. To give effect to the intention of the Constitution-makers, Article 31(2) was
\namended by the 24th Amendment to the Constitution in 1955. The 4th Amendment added
\nto Article 31(2) these words: “and no such law shall be called in question in any court on
\nthe ground that the compensation provided by law is not adequate.” The effect of the 4th
\namendment was considered by this Court in P. Vajravelu v. Special Deputy Collector,
\nMadras<\/a> [1965] 1 S.C.R. 614. Subba Rao J. said:\n<\/p>\n
The fact that Parliament Used the same expressions, namely,
\n‘compensation’ and ‘principles’ as were found in Article 31 before the
\namendment is a clear indication that it accepted the meaning given by this
\nCourt to those expressions in Mrs. Bela Banerjee’s case. It follows that a
\nLegislature in making a law of acquisition or requisition shall provide for
\na just equivalent of what the owner has been deprived of or specify the
\nprinciples for the purpose of ascertaining the ‘just equivalent’ of what the
\nowner has been deprived of. If Parliament intended to enable a Legislature
\nto make such a law without providing for compensation so defined, it
\nwould have used other expressions like ‘price’, ‘consideration’ etc. Ibid. at
\npage 626.\n<\/p>\n
2030. Regarding the amendment he said:\n<\/p>\n
(A) more reasonable interpretation is that neither the principles prescribing
\nthe ‘just equivalent’ nor the ‘just equivalent’ can be questioned by the Court
\non the ground of the inadequacy of the compensation fixed or arrived at by
\nthe working of the principles. To illustrate, a law is made to acquire a
\nhouse; its value at the time of the acquisition has to be fixed; there are
\nmany modes of valuation, namely, estimate by an engineer, value reflected
\nby comparable sales, capitalisation of rent and similar others. The
\napplication of different principles may lead to “different results. The
\nadoption of one principle may give a higher value and the adoption of
\nanother principle may give a lesser value. But none the less they are
\nprinciples on which and the manner in which compensation is determined.
\nThe Court cannot obviously say that the law should have adopted one
\nprinciple and not the other, for it relates only to the question of adequacy.
\nOn the other hand, if a law lays down principles which are not relevant to
\nthe property acquired or to the value of the property at or about the time it
\nis acquired it may be said that they are not principles contemplated by
\nArticle 31(2) [1965] 1 S.C.R. Supra, at page 627.\n<\/p>\n
2031. In Union v. Metal Corporation<\/a> [1967] 2 S.C.R. 255 at page 264-265 Subba Rao J.
\nspoke again on the implications of the Fourth Amendment. He said:
\nThe law to justify itself has to provide for the payment of a ‘just
\nequivalent’ to the land acquired or lay down principles which will lead to
\nthat result. If the principles laid down are relevant to the fixation of
\ncompensation and are not arbitrary, the adequacy of the resultant product
\ncannot be questioned in a court of law. The validity of the principles
\njudged by the above tests falls within judicial scrutiny, and if they stand
\nthe tests, the adequacy of the product falls outside its jurisdiction.
\n2032. These two decisions neutralised the object of the 4th Amendment. In State of
\nGujarat v. Shantilal Mangaldas<\/a> [1969] 3 S.C.R. 341 this Court overruled the Metal
\nCorporation. Shah J. said at page 363 of the Report:\n<\/p>\n
Right to compensation in the view of this Court was intended by the
\nConstitution to be a right to a just equivalent of the property of which a
\nperson was deprived. But the just equivalent was not capable of precise
\ndetermination by the application of any recognised principles. The
\ndecisions of this Court in the two cases-Mrs. Bela Banerjee’s case and
\nSubodh Gopal Bose’s case were therefore likely to give rise to formidable
\nproblems, when the principles specified by the Legislature as well as the
\namounts determined by the application of those principles were declared
\njusticiable. By qualifying ‘equivalent’ by the adjective ‘just’ the enquiry
\nwas made more controversial; and apart from the practical difficulties the
\nlaw declared by this Court also placed serious obstacles in giving effect to
\nthe directive principles of State policy incorporated in Article 39.
\n(emphasis added).\n<\/p>\n
2033. He added:\n<\/p>\n
If the quantum of compensation fixed by the Legislature is not liable to be
\ncanvassed before the Court on the ground that it is not a just equivalent,
\nthe principles specified for determination of compensation will also not be
\nopen to challenge on the plea that the compensation determined by the
\napplication of those principles is not a just equivalent…(I)t does not mean
\nhowever that something fixed or determined by the application of
\nspecified principles which is illusory or can in no sense be regarded as
\ncompensation must be held by the Courts, for, to do so would be to grant a
\ncharter of arbitrariness, and permit a “device to defeat the Constitutional
\nguarantiee. A challenge to a statute that the principles specified by it do
\nnot award a just equivalent will be in clear violation of the Constitutional
\ndeclaration that adequacy of compensation provided is not justiciable.
\n[1969] 3 S.C.R. pages 365-366.\n<\/p>\n
2034. Shantilal Mangaldas transfused blood in the 4th Amendment made anaemic by
\nVajravelu and Metal Corporation. But soon thereafter came the majority decision in R.C.
\nCooper v. Union of India<\/a> [1970] 3 S.C.R. 530. Cooper in substance overruled Shantilal
\nMangaldas and restored the old position. More, it also added the test of Article 19(1)(f) to
\nvalid acquisition of property. These decisions of the Court constrained Parliament to
\nenact Section 2 of the 25th Amendment.\n<\/p>\n
2035. Having regard to this history, it will not be proper to import the concept of
\ncompensation in Article 31(2), Section 2 has substituted the word ‘compensation’ by the
\nword ‘amount’ at every relevant place in Article 31(2). The Court should not minimize or
\nneutralize its operation by introducing notions taken from or inspired by the old Article
\n31(2) which the words of Section 2 are intended to abrogate and do abrogate.
\n2036. According to Webster’s Dictionary on Synonyms (1st Edn. page 47) the word
\n‘amount’ means ‘sum, total, quantity, number, aggregate, whole’. According to the Shorter
\nOxford English Dictionary, the word ‘principle’ means ‘that from which something takes
\nits rise originates or derives’. The word ‘adequate’, according to the same Dictionary,
\nmeans ‘equal in magnitude or extent, commensurate in fitness, sufficient, suitable’.
\nAccording to the Words and Phrases (Permanent Ed. Vol. II, p. 363) the word “adequate”
\nsome time means that which is equal to the value; but in its primary and more properly
\nsignificance nothing can be said to be adequate which is not equal to what is required
\nsuitable to the case or occasion, wholly sufficient, proportionate and satisfactory.
\n2037. Unlike ‘compensation’ the word ‘amount’ is not a term of art. It bears no specific
\nlegal meaning. The amount fixed by law or determined in accordance with the principles
\nspecified by law may be paid partly in cash and partly in kind. In such a case it may often
\nbe difficult to quantify the aggregate value of the cash and the thing given. Again, the
\namount may be paid in such a manner as may be specified in the law. Thus the law may
\nprovide for payment of the amount over a long period of years. Article 19(1)(f) shall now
\nhave no impact on Article 31(2). Having regard to all these circumstances, it is, I think,
\nnot permissible to import the notion of reasonableness in Article 31(2) as amended by
\nSection 2. The phrase ‘principle on which and the manner in which the compensation is to
\nbe determined and given’ in the old Article 31(2) is now substituted by the phrase ‘amount
\nwhich may be determined in accordance with such principles and given in such a manner
\nas may be specified in such law? As the word ‘compensation’ found place in the former
\nphrase, the Court has held that the principles should be relevant to ‘compensation’, that is,
\nto the ‘just equivalent’ of the property acquired. That phrase is no more there now in
\nArticle 31(2). The notion of ‘the relevancy of principles to compensation’ is jettisoned by
\nSection 2. Obviously, where the law fixes the amount, it cannot be questioned in any
\ncourt on the ground that it is not adequate, that is, not equal to the value of the property
\nacquired or requisitioned. The legislative choice is conclusive. It would accordingly
\nfollow that the amount determined by the principles specified in the law is equally
\nunquestionable in courts.\n<\/p>\n
2038. The newly added proviso to Article 31(2) appears to me to fortify this construction.
\nAccording to the proviso, the law providing for compulsory acquisition of any property
\nof an educational institution which would receive the protection of Clause (1) of Article
\n30, should ensure that the amount fixed by or determined under it for the acquired
\nproperty would not restrict or ‘abrogate’ the right guaranteed under that clause. Now, the
\nobject of a proviso is to take out something which is included in the main part of a
\nprovision. So the amount payable under the main part of the amended Article 31(2) may
\nbe such as would ‘abrogate’ the right of property of all and sundry. Accordingly it is not
\npermissible to import in the amended Article 31(2) the notions of ‘arbitrary amount’ or
\n‘illusory amount’ or ‘fraudulent amount’. As some amount must be paid, the law may be
\nvirtually confiscatory, but not literally confiscatory. The position now is akin to the legal
\nposition in Section 25 of the Contract Act. Under that provision the adequacy of
\nconsideration negotiated by the contracting parties cannot be questioned in court. Most
\ntrifling benefit or detriment is sufficient. There is however this difference between
\nSection 25 and Article 31(2). While the consideration is settled by the contracting parties,
\nthe amount payable for the acquisition or requisitioning of property is settled by the
\nlegislature. Like the former, the latter is also not to be questioned in courts.
\n2039. Article 31(2) is distinguishable from Articles 31A, 31B and 31C. While some
\namount is payable under a law protected by Article 31(2), no amount whatsoever may be
\npaid under a law protected by Articles 31A, 31B and 31C. The former may be virtually
\nconfiscatory, the latter may be wholly confiscatory. The amount fixed by law or
\ndetermined in accordance with the principles in such a law is now not justiciable even
\nthough it may seem to be an ‘arbitrary amount’ or ‘illusory amount’ or ‘fraudulent amount’
\nby the measure of compensation. The ouster of judicial oversight does not imply that the
\nlegislature would act whimsically. The value of the property acquired or requisitioned,
\nthe nature of the property acquired or requisitioned, the circumstances in which the
\nproperty is being acquired or requisitioned and the object of acquisition or requisition
\nwill be the guiding principles for legislative determination of amount. The second
\nprinciple may involve, inter alia, consideration of the income already received by the
\nowner of the property and the social contribution to the value of the property by way of
\npublic loans at lower rates of interest, cheap state supply of energy and raw materials
\nsubsidies and various kinds of protection, tax holidays, etc. It should be remembered that
\nthe value of a property is the resultant of the owner’s industry and social contribution.
\nThe owner ought not to receive any amount for the value contributed by society. He is
\nentitled to payment for his own contribution. The third principle will include the element
\nof social justice. It is thus wrong to say that on my interpretation of Article 31(2) the
\nlegislatures will act arbitrarily in determining the amount. The amended Article 31(2)
\ndoes not remove the bar of Article 14. If the amount paid to the owner of property is in
\nviolation of the principles of Article 14, the law may even now be struck down. Although
\nthe amended Article 31(2), according to my construction of it, will abrogate the right of
\nproperty, it is Constitutional as it falls within the scope of the 24th Amendment which I
\nhave held to be Constitutional.\n<\/p>\n
Section 3 of the 75th Amendment
\n2040. Section 3 adds Article 31C to Part III of the Constitution. It reads :
\n“Notwithstanding anything contained in Article 13, no law giving effect to the policy of
\nthe State towards securing the principles specified in Clause (b) and (c) of Article 39,
\nshall be deemed to be void on the ground that it is inconsistent with or takes away or
\nabridges any of the rights conferred by Article 14, Article 19 or Article 31; and no law
\ncontaining a declaration that it is for giving effect to such policy shall be called in
\nquestion in any court on the ground that it does not give effect to such policy.
\n2041. Provided that where such law is made by the Legislatures of a State, the provisions
\nof this article shall not apply thereto unless such law, having been reserved for the
\nconsideration of the President, has received his assent.\n<\/p>\n
2042. Section 3, like Section 2, is made under Article 368 as amended by the 24th
\nAmendment. The provisions of Article 31C fall within the scope of the amended Article
\n368, and its validity, too, cannot be assailed.\n<\/p>\n
2043. It is pointed out by Sri Paikhiwala that Article 31C authorises State Legislatures
\nand Parliament as a legislative body to make laws contravening the rights conferred by
\nArticles 14, 19 and 31 and that it, in effect, delegates the power of making amendments
\nin those articles. Pointedly, the argument is that the Parliament as the constituent power
\nhas delegated the constituent power to the Parliament as a legislative body and the State
\nLegislatures.\n<\/p>\n
2044. It is also stressed that the second part of Section 3 arms the legislatures with the
\nabsolute power of sheltering laws which violate Articles 14, 19 and 31 and have no
\nrelation to the principles specified in Article 39(b) and (c).
\n2045. The second part prohibits any court from inquirying whether the law protected by
\nArticle 31C has relevancy to Article 39(b) and (c) if it contains a declaration that it gives
\neffect to the policy specified in that provision. Howsoever shocking it may seem, it is not
\nan innovation. You will find several articles having a close resemblance to it. Article
\n77(2) provides that the validity of an order or instrument which is authenticated as
\nprovided therein ‘shall not be called in question on the ground that it is not an order or
\ninstrument made or executed by the President’. A similar provision is made in Article
\n166(2) in relation to the Governor. Article 103(1) provides that if any question arises as
\nto whether a member of either House of Parliament has become subject to any of the
\nqualifications mentioned in Article 102(1), the question shall be decided by the President
\nand ‘his decision shall be final.’ A similar provision is to be found in Article 192(1) as
\nregards the members of the State Legislature with respect rto the decision of the
\nGovernor, Article 311(2) gives a right of licaring to an employee sought to be dismissed
\nor removed or reduced in rank. Clause (b) of the proviso to the article enacts that where
\nthe appointing authority’is satisfied that for some reason it is not reasonably practicable to
\nhold such inquiry, the pre-requisite of hearing may be dispensed with. Clause (3) of
\nArticle 311 then enacts that if a question arises whether it is reasonably practicable to
\nhold an inquiry, ‘the decision thereon of the authority…shall be final’. Article 329(a)
\nenacts that notwithstanding anything in the Constitution the validity of any law relating to
\nthe delimitation of constituencies or allotment of seats to such constituencies made or
\npurporting to be made under Article 327 or Article 328 shall not be called in question in
\nany court. Like these articles, the second part of Section 3 excludes judicial review to a
\nlimited extent.\n<\/p>\n
2046. The main part of Article 31C consists of two parts; The first part provides that no
\nlaw giving effect to the policy of the State towards securing the principles specified in
\nArticle 39(b) and (c) shall be deemed to be void on the ground that it is inconsistent with
\nor takes away or abridges any of the rights conferred by Articles 14, 19 and 31. The fast
\npart may be split up into two : (a) giving effect to the policy of the State towards securing\n<\/p>\n
(b) the principles specified in Article 39(b) and (c). Under the first part the Court has to
\nsee two things before a particular law can receive protection of Article 31C. Firstly, the
\nlaw must have relevancy to the principles specified in Article 39(b) and (c); secondly, the
\nlaw should give effect to those principles. Article 39(b) provides that the State shall strive
\nto secure that the ownership and control of the material resources of the community are
\nso distributed as best to subserve the common good. Article 39(c) urges the State to strive
\nto secure that the operation of the economic system does not result in the concentration of
\nwealth and means of production to the common detriment, It may be observed that
\n“subserve the common good” in Clause (b) and ‘common detriment’ in Clause (c) raise
\nquestions of fact Now, it is possible to imagine a state of affairs where a law having
\nrelevancy to the principles specified in Article 39(b) and (c) may not appear to the Court
\nto subserve the common good or to prevent common detriment. Such a law will not
\nprevail over Articles 14, 19 and 31. Thus the first part retains the Court’s power to decide
\nthe legal question of the law’s relevancy to the principles specified in Article 39(b) and\n<\/p>\n
(c) as well as the factual question of the law’s efficacy to subserve the common good or to
\nprevent common detriment. It can test the ends as well as the means of the law.
\n2047. Coming to the second part, it excludes judicial review ‘on the ground that (the law)
\ndoes not give effect to such policy’. So the law cannot be challenged on the ground that
\nthe means adopted by the law are not sufficient to subserve the common good and
\nprevent common detriment. In other words, the sufficiency of the law’s efficacy alone is
\nmade non-justiciable. The Court still retains power to determine whether the law has
\nrelevancy to the distribution of the ownership and control of the material resources of the
\ncommunity and to the operation of the economic system and concentration of wealth and
\nmeans of production. If the Court finds that the law has no such relevancy, it will declare
\nthe law void if it offends the provisions of Articles 14, 19 and 31.
\n2048. The fate of a provision included in a law containing the requisite declaration but
\nhaving no relevancy as discussed will be no better. It will also be void if it offends
\nagainst Articles 14, 19 and 31 unless it is subordinate, ancillary or consequential to any
\nprovision having such relevancy or forms an integral part of the scheme of such
\nprovision.\n<\/p>\n
Delegation of Amending Power
\n2049. As Article 368(2) as now amended provides that ‘only’ Parliament may amend the
\nConstitution by the prescribed procedure, it is said that Parliament may not delegate the
\nconstituent power to any extraneous authority. It is not necessary to decide this question.
\nAssuming that Parliament may not delegate the constituent power, the question still
\nremains whether Article 31C authorise the State Legislatures and Parliament as a
\nlegislative body to amend any part of the Constitution.\n<\/p>\n
2050. The power of the Parliament and State Legislatures to make a law with respect to
\nthe principles specified in Articles 39(b) and (c) is derived from Article 246 read with
\nLists I, II and III of the Seventh Schedule. Their legislative power is however not
\nabsolute. It is restricted by various fundamental rights including those in Articles 14, 19
\nand 31, for Article 13(2) expressly prohibits the legislatures from making a law which
\nwill be violative of those rights.\n<\/p>\n
2051. What does Article 31C seek to do? One, the non-obstante clause in Article 31C
\nremoves the bar of Article 13(2) against law making with respect to the principles
\nspecified in Article 39(b) and (c). The bar, however, is not removed in respect of all the
\nfundamental rights. It is removed in respect of the rights in Articles 14, 19 and 31 only.
\nSecond, Articles 14, 19 and 31 remain operative as a bar against law-making with respect
\nto all matters other than the principles specified in Articles 39(b) and (c). They are in
\npartial eclipse as regards laws having relevancy to the principles specified in Article
\n39(b) and (c). This is the true nature and character of Article 31C. We should be guided
\nby what it really does and not by how it seems, by its effect and not by its semantic garb.
\nLooked at in this manner, Article 31C is in the nature of a saving clause to Articles 14, 19
\nand 31. Instead of being placed at the end of each of these articles, it is placed at one
\nplace for the sake of drafting elegance and economy. As a saving clause, Article 31C
\nsaves certain kinds of laws from destruction at the hands of Articles 14, 19 and 31.
\n2052. This effect is brought about directly and immediately by the choice of the
\nconstituent power expressed in Article 31C itself and not by the laws which claim its
\nprotection. Those laws do not expressly or impliedly take away or abridge the rights in
\nArticles 14, 19 and 31. The constituent power itself has brought about that effect through
\nArticle 31C. There is therefore no delegation of the constituent power. In Harishankar
\nBagla v. The State of Madhya Pradesh<\/a> [1955] 1 S.C.R. 380 this Court has considered the
\nquestion of delegation of legislative power. Section 3 of the Essential Supplies.
\n(Temporary Powers) Act, 1946 enabled the Central Government to make orders for
\nmaintaining or increasing supplies of any essential commodity or for securing for their
\nequitable distribution and availability at fair prices and for regulating or prohibiting the
\nproduction, supply and distribution thereof and trade and commerce therein Section 6
\nprovided that any order made under Section 5 would have effect notwithstanding
\nanything inconsistent therewith contained in any enactment other than the Act or any
\ninstrument having effect by virtue of any enactment other than the Act. It was argued
\nbefore the High Court that Section 6 delegated legislative power to the Central
\nGovernment because an order made under Section 3 had the effect of repealing an
\nexisting law. The High Court accepted the argument. But on appeal this Court reversed
\nthe judgment of the High Court and held that Section 6 did not delegate legislative power.
\nThe Court said:\n<\/p>\n
The effect of Section 6 certainly is not to repeal any one of these laws or
\nabrogate them. Its object is simply to by-pass them where they are
\ninconsistent with the provisions of the Essential Supplies (Temporary
\nPowers) Act, 1946 or the orders made thereunder. In other words, the
\norders made under Section 3 would be operative in regard to the essential
\ncommodity covered by the Textile Control Order wherever there is
\nrepugnancy in this Order with the existing laws and to that extent the
\nexisting laws with regard to those commodities will not operate. By
\npassing a certain law does hot necessarily amount to repeal or abrogation
\nof that law. That law remains unrepealed but during the continuance of the
\norder made under Section 3 it does not operate in that field for the time
\nbeing. The ambit of its operation is just limited without there being any
\nrepeal of any one of its provisions. Conceding, however, for the sake of
\nargument that to the extent of a repugnancy between an order made under
\nSection 3, and the provisions of an existing law the existing law stands
\nrepealed by implication, it seems to us that the repeal is not by any Act of
\nthe Parliament itself. By enacting Section 6 Parliament itself has declared
\nthat an order made under Section 3 shall have effect notwithstanding any
\ninconsistency in this order with any enactment other than that Act. This is
\nnot a declaration made by the delegate but the Legislature itself has
\ndeclared its will that way in Section 6. The abrogation or the implied
\nrepeal is by force of the order made by the delegate under Section 3. The
\npower of the delegate is only to make an order under Section 3. Once the
\ndelegate has made that order its power is exhausted. Section 6 then steps
\nin wherein the Parliament has declared that as soon as such an order
\ncomes into being that will have effect notwithstanding any inconsistency
\ntherewith contained in any enactment other than this Act…. There is no
\ndelegation involved in the provisions of Section 6 at all…[1955] 1 S.C.R.
\n380 at page 391-392.\n<\/p>\n
2053. These observations squarely apply to the provisions of Article 31C accordingly
\nhold that there is no delegation of the constituent power.\n<\/p>\n
2054. Since the laws claiming protection of Article 31C themselves do not work an
\namendment in Articles 14, 19 and 31, it is not necessary that they should pass through the
\nprocedure prescribed in Article 368.\n<\/p>\n
The meaning of ‘distributed’ in Article 39(b)
\n2055. Sri Palkhiwala has submitted that the nationalisation of property is not
\ncontemplated by the word ‘distributed’ in Article 39(b). But the question will be sufficient
\nat this stage to refer to certain aspects briefly. The State is the representative and trustee
\nof the people. A nationalised property is vested in the State. Through the State, the entire
\npeople collectively may be said to own property. It may be said that in this way the
\nownership of the nationalised property is distributed amongst the people represented by
\nthe State. (See Essays in Fabian Socialism, Constable & Co. Ltd. 1949 Edn; p. 40;
\nC.E.M. load, Introduction to Modern Political Theory, Oxford University Press, 1959, pp.
\n49-50; W.A. Robson, Nationalised Industry and Public Ownership, George Allen and
\nLenwin Ltd. 1960, pages 461, 462, 476, 477 and 485).\n<\/p>\n
2056. The draft Article 31(ii) became Article 39(b). Prof. K.T. Shah moved an
\namendment to the draft article to this effect: “that the ownership, control and
\nmanagement of the natural resources of the country in the shape of mines and minerals,
\nwealth, forests, rivers and flowing waters as well as in the shape of the seas along the
\ncoast of the country shall be vested in and belong to the country collectively and shall be
\nexploited and developed on behalf of the community by the State as represented by the
\nCentral or Provincial Governments or local governing authority or statutory corporation
\nas may be provided for in each case by Act of Parliament C.A.D. Vol. VII, p. 506.
\n2057. Replying to Prof. K.T. Shah, Dr. B.R. Ambedkar said : “with regard to his other
\namendment, viz, substitution of his own clause for Sub-clause (ii) of Article 31, all I want
\nto say is this that I would have been quite prepared to consider the amendment of Prof.
\nShah if he had shown that what he intended to do by substitution of his own clause was
\nnot possible to be done under the language as it stands. So far as I am able to see, I think
\nthe language that has been used in the Draft is much more extensive language which
\nincludes the propositions which have been moved by Prof. Shah, and I therefore do not
\nsee the necessity C.A.D. Vol. VII, p. 518.\n<\/p>\n
2058. In Dr. Ambedkar’s view the nationalisation of property is included in the word
\n‘distributed’ in Article 39(b).\n<\/p>\n
29th Amendment
\n2059. This amendment has added to the Ninth Schedule the Kerala Land Reforms
\n(Amendment) Act, 1969 (Kerala Act 35 of 1969) and the Kerala Land Reforms
\n(Amendment) Act, 1971 (Kerala Act 25 of 1971). The effect of the inclusion of these
\nActs in the Ninth Schedule is that the Acts get me protection of Article 31B. The
\nargument of Sri Palkhiwala is twofold. First Article 31B is inextricably dovetailed with
\nArticle 31A and that accordingly any law which is included in the Ninth Schedule should
\nbe connected with agrarian reforms which is the object of Article 31A. If a law included
\nin the Ninth Schedule is not related to agrarian reforms, it cannot by-pass Articles 14, 19
\nand 31. It is not possible to accept this argument In State of Bihar v. Maharajadhiraja Sir
\nKameshwar Singh<\/a> [1952] S.C.R. 889, Patanjali Sastri C.J. rejected this limited meaning
\nof Article 31B. The learned Chief Justice observed:\n<\/p>\n
There is nothing in Article 31B to indicate that the specific mention of
\ncertain statutes was only intended to illustrate the application of the
\ngeneral words of Article 31A. The opening words of Article 31B are not
\nonly intended to make clear that Article 31A should not be restricted in its
\napplication by reason of anything contained in Article 31B and are in no
\nway calculated to restrict the application of the latter article or of the
\nenactments referred to therein to acquisition of estates Ibid, at pages 914-\n<\/p>\n
915.
\n2060. In Wisheshwar Rao v. State of Madhya Pradesh [1952] 1 S.C.R. 1020 at page
\n1037, Mahajan J. said:\n<\/p>\n
In my opinion, the observation far from supporting the contention, raised
\nnegatives it. Article 31B specifically validates certain Acts mentioned in
\nthe Schedule despite the provisions of Article 31A and is not illustrative of
\nArticle 31A, but stands independent; of it.\n<\/p>\n
2061. (See also N.B. Jeajeabhoy v. Assistant Collector, Thana<\/a> [1965] 1 S.C.R. 636 at
\npage 648 per Subba Rao J.)
\n2062. The next argument is that the two Kerala Acts which abrogate the fundamental
\nrights of property are void because the amending power in Article 368 cannot be used for
\nthat purpose. I have already rejected this argument in connection with the 24th and 25th
\nAmendments. So nothing more need be said about it. I hold that the 29th Amendment is
\nvalid.\n<\/p>\n
2063. Let me summarise the discussion:\n<\/p>\n
(1) The majority decision in Golaknath is not correct and should be
\noverruled.\n<\/p>\n
(2) The word ‘amendment’ in Article 368 is broad enough to authorise the
\nvarying, repealing or abrogating of each and every provision in the
\nConstitution including Part III.\n<\/p>\n
(3) There are no inherent and implied limitations on the amending power
\nin Article 368.\n<\/p>\n
(4) The 24th, 25th and 29th Amendments are valid in their entirety.
\n(5) According to Article 31(2) the amount fixed by law or determined in
\naccordance with the principles prescribed by such law for the acquired or
\nrequisitioned property cannot be questioned in any court.\n<\/p>\n
(6) The last part of Article 31C does not oust the jurisdiction of courts to
\nexamine whether the impugned law has relevancy to the distribution of the
\nownership and control of the material resources of the community or to the
\noperation of the economic system and the concentration of wealth and
\nmeans of production.\n<\/p>\n
2064. The Constitution Bench will now decide the case according to law.
\nY.V. Chandrachud, J.\n<\/p>\n
2065. I wanted to avoid writing a separate judgment of my own but such a choice seems
\nno longer open. We sat in full strength of 13 to hear the case and I hoped that after a free
\nand frank exchange of thoughts, I will be able to share the views of someone or the other
\nof my esteemed Brothers. But, we were overtaken by adventitious circumstances.
\nCounsel all round consumed so much time to explain their respective points of view that
\nvery little time was left for us to elucidate ours. And the time factor threatened at one
\nstage to assume proportion as grave as the issues arising in the case. The Court, very soon
\nwill be poorer by the retirement of the learned Chief Justice and that has set a date-line
\nfor the judgment. There has not been enough time, after the conclusion of the arguments,
\nfor an exchange of draft judgment amongst us all and I have had the benefit of knowing
\nfully the views of only four of us. I deeply regret my inability to share the views of the
\nlearned Chief Justice and of Hegde J., on some of the crucial points involved in the case.
\nThe views of Ray J. and Palekar J. are fairly near my own but I would prefer to state my
\nreasons a little differently. It is tall to think that after so much has been said by so many
\nof us, I could still present a novel point of view but that is not the aim of this judgment.
\nThe importance of the matter under consideration would justify a personal reflection and
\nit is so much more satisfactory in a matter ridden, albiet wrongly, with political over-
\ntones, to state one’s opinion firmly and frankly so that one can stand one’s ground without
\nfear or favour.\n<\/p>\n
2066. I do not propose to pin-point every now and then what the various counsel have
\nurged before us, for I apprehend that a faithful reproduction of all that has been said will
\nadd to the length, not necessarily to the weight, of this judgment. However, lest I may be
\nmisunderstood, particularly after the earlier reference to the counsel consuming so much
\ntime, let me in fairness say that I acknowledge with gratitude the immense contribution of
\nthe learned Counsel to the solution of the intricate problems which arise for decision.
\nSuch brilliance, industry, scholarship and precision as characterised the arguments of Mr.
\nPalkhivala, the learned Attorney-General, the learned Advocate-General of Maharashtra
\nand the learned Solicitor-General are rarely to be surpassed. What my judgment contains
\nis truly theirs-if this the least be good, the praise be theirs, not mine.
\n2067. Lester Barnhardt Orfield, an extreme exponent of the sovereignty of amending
\npower under Article V of the American Constitution, has described that power as ‘sui
\ngeneris’. I will borrow that expression to say that the whole matter before us is truly sui
\ngeneris. The largest Bench sat for the longest time to decide issues described as being of
\ngrave moment not merely to the future of this country but to the future of democracy
\nitself. For a proper understanding of the meaning and scope of the amending provisions
\ncontained in Article 368 of our Constitution. We were invited to consider parallel clauses
\nin the Constitutions of 71 countries of the world spread far and wide, with conflicting
\nsocial and political philosophies. We travelled thus to new lands like Bolivia, Costa Rica,
\nEl Salvador, Gautemala, Honduros, Liberia, Nicarague, Paraguay, Uruguay and
\nVenezuela. Constitutional sojourns to Australia, Canada, Ceylon, France, Germany,
\nIreland, Switzerland, U.S.S.R. and U.S.A. were of course of frequent occurrence. These
\nexcursions were interesting but not proportioned to their utility, for I believe there is no
\ninternational yardstick with which” to measure the width of an amending power.
\n2068. We were then taken through the writings of scores of scholars, some of whom have
\nexpressed their beliefs with a domatism not open to a Judge. There was a faith
\ncontroversy regarding the credentials of some of them, but I will mention the more-often
\nquoted amongst them, in order to show what a wide and clashing variety of views was
\nfed to us. They are : Granville Austin, James Bryce, Charles Bumdick, John W. Burgess,
\nA.P. Canaway, Dr. D. Conrad, Thomas M. Cooley, Edward S. Crowin, S.A. DeSmith, de
\nTocqueville, A.V. Dicey, Herman Finer, W. Friedmann, Carl J. Friedrich, James, W.
\nGarner, Sir Ivor Jennings, Arthur Berriedale Keith, Leo Kohn, Harold J. Laski, Bora
\nLaskin, A.H.F. Lefroy, William S. Livingston, William Marbury, C.M. McIlwain,
\nCharles E. Merriam, William B. Munro, Lester B. Orfield, Henry Rottschaeffer, George
\nSkinner, Joseph Story, C.F. Strong, Andre Tunc, Samuel P. Weaver, K.C. Wheare, E.
\nWillis, Westel W. Willoughby, Woodrow Willson, W. Anstay Wynes and Arnold
\nZurcher.\n<\/p>\n
2069. At one end is the view propounded by writers like James Garner (‘Political Science
\nand Government’) and William B. Munro (‘The Government of the United States’) that an
\nunamendable Constitution is the worst tyranny of time or rather the very tyranny of time
\nand that such a Constitution constitutes government by the graveyard. At the other end is
\nthe view expressed with equal faith and vigour by writers like Dr. Conrad (‘Limitation of
\nAmendment Procedures and the Constituent Power’), William Marbury (‘The Limitations
\nupon the Amending Power’-Harvard Law Review, Vol. XXXIII) and George Skinner
\n‘Intrinsic Limitations on the Power of Constitutional Amendment’-Michigan Law
\nReview, Vol. 18 that any amending body organised within the statutory scheme, however
\nverbally unlimited its power, cannot by its very structure change the fundamental pillers
\nsupporting its Constitutional authority; that the constituent assembly cannot create a
\nsecond perpetual pouvoir constitueant above the nation; that it may be safely premised
\nthat the power to amend the Constitution cannot include the power to destroy it; that the
\ngreatest delusion of the modern political world is the delusion of popular sovereignty-a
\nfiction under which all the dictators have sprung up and thrived; and that men should be
\nafraid that any Judge complaint enough to read into a Constitution a beneficial power
\npatently not there, might at another time be complient enough to read within it any or all
\nof the guarantees of their liberty for, a Judge willing to take orders from a benevolent
\ndespot might be equally subservient to a malevolent one. Someone has said in a lighter
\nvein that Law comes from the west and Light from the east, but brushing aside such
\nconsiderations, the conflicting views of these writers, distinguished though they be,
\ncannot conclude the controversy before us, which must be decided on the terms of our
\nConstitution and the genius of our Nation. The learning of these scholars has lighted my
\npath and their views must be given due weight and consideration. But the danger of
\nrelying implicitly on everyone of the standpoints of everyone of these authors is apparent
\nfrom what Andre Tune said in answer to a question put to him at the end of his lecture on
\n‘Government under Law : A Civilian View’. He confessed that the picture drawn by him
\nat one time, of the French Law was too rosy and, on a misconception, it was too gloomy
\nof American law and American life; and that, Frenchmen had by and large rectified to
\nsome extent their first impression that it could be extremely dangerous to have a
\n‘Government of Judges’, according to the famous slogan. That reminds me of what Sir
\nIvor Jennings has said in his book ‘Some Characteristics of the Indian Constitution’ that
\n“It is a useful principle that one should never trust politicians; but it is equally true that in
\nthe context of the future one should never trust Constitutional lawyers. On the whole the
\npolitician of tomorrow is more likely to be right than the Constitutional lawyer of today.”
\nI will therefore make a spare and studied use of the views of some of these men of
\nearning. But I cannot restrain the reflection, in the strain of Dr. Conrad, that after going
\nthrough all this erudition, one may well conclude this tour d’horizon with the opening
\nquotation of Walter Bagehot’s famous treatise: ‘On all great subjects, says Mr. Mill, much
\nremains to be said.\n<\/p>\n
2070. Theories of political science, sociology, economics and philosophy were copiously
\nquoted before us. Some of these contain a valiant defence of the right of property without
\nwhich, it is said, all other fundamental freedoms are as writ in water. Others propound the
\nview that of all fundamental rights, the right to property is the weakest, from which the
\nconclusion is said to follow that it was an error to include it in the chapter on
\nFundamental Rights. Our dicision of this vexed question must depend upon the postulate
\nof our Constitution which aims at bringing about a synthesis between ‘Fundamental
\nRights’ and the ‘Directive Principles of State Policy’, by giving to the former a pride of
\nplace and to the latter a place of permanence. Together, not individually, they form the
\ncore of the Constitution. Together, not individually, they constitute its true conscience.
\n2071. The charter of United Nations, the Universal Declaration of Human Rights and the
\nEuropean Convention of 1950 were cited to show the significant change in the world
\nthinking towards the rights of individuals which, by these documents have been accorded
\nrecognition on an international plane. Will India, the largest democracy in the world, do
\nmere lip service to these precious freedoms and shall it not accord to them their rightful
\nplace in the lives of men and in the life of the nation? Such is the dialectical query. Apart
\nfrom whether the so-called intellectuals-the ‘classe non classe’-believe in the communistic
\nmillennium of Marx or the individualistic Utopia of Bastiat, the answer to this question
\nmust depend upon the stark urgency for striking a balance between the rights of
\nindividuals and the general good of the society.\n<\/p>\n
2072. We were also invited to have a glimpse of the social and political philosophies of
\nGrotius (1583-1645), Hobbes (1588-1679), Locke (1632-1704), Wolff (1679-1784),
\nRousseau (1712-1778), Blackstone (1723-1780), Kant (1724-1804), Bentham (1748-
\n1832) and Hegel (1770-1831). These acknowledged giants of the past-their opinions have
\na high persuasive value-have expounded with care and deliberation the controversial
\ntheory of ‘Natural Law’ and ‘Natural Rights’. Each has his own individualistic approach to
\nthe question but arising out of their writings is a far-reaching argument that there are
\nrights which inhere in every man as a rational and moral being; that these rights are
\ninalienable and inviolable; and that the core of such of these rights as are guaranteed by
\nthe Constitution cannot be damaged or destroyed. The answer to this contention would
\nconsist in the inquiry, firstly as regards the validity of the core and hence the
\nconsequences of natural law thinking; and secondly, on whether our organic document
\nsupports the inference that natural rights were either recognised by it-explicitly or
\nimplicitly-and if so, whether any of such rights were permitted to be reserved by the
\npeople without any qualification, so that an individual would be entitled to protect and
\nnurse a minimal core of such rights, uninfluenced by social considerations.
\n2073. The debates of the Constituent Assembly and of the first Provisional Parliament on
\nwhich none declined to rely furnished a lively experience. The speeches of Pandit
\nJawaharlal Nehru, Sardar Vallabhbhai Patel, Dr. Rajendra Prasad, Dr. S. Radhakrishnan,
\nDr. Ambedkar, Govind Ballabh Pant, Dr. K.M. Munsi, Alladi Krishnaswamy Ayyar, Dr.
\nShyama Prasad Mookherjee, Acharya Kripalani, Rev. Jerome D’Souza, K. Santhanam,
\nDr. Punjabrao Deshmukh, H.V. Kamath and others were read out to us in support of the
\nrival stands mainly touching the question of ‘inalienability’ of fundamental rights and
\nwhat in those days was freely referred to as the power of ‘Eminent Domain’. Some of the
\nspeakers were acknowledged national leaders of high stature, some were lawyers of
\neminence and some had attained distinction in the undefined field of politics and social
\nreform. Their speeches are inspiring and reflect the temper of the times but we cannot
\npass on the amplitude of the power of amendment of the Constitution by considering
\nwhat amendments were moved to the corresponding Article 13 of the Constitution and
\nwhy those proposals for amendment were dropped or not pursued. Similarly, the fact that
\nthe First Amendment to the Constitution was passed in 1951 by members of the
\nConstituent Assembly sitting as the Provisional Parliament cannot relieve us of the task
\nof judicially interpreting the validity of the contention that the Fundamental Rights
\ncannot be abridged or taken away or that the core of the essential features of the
\nConstitution cannot be damaged or destroyed. Jawaharlal Nehru undoubtedly said in the
\nConstituent Assembly that “Hundreds of millions of our own people look to us and
\nhundreds of millions of others also look to us; and remember this, that while we want this
\nConstitution to be as solid and as permanent a structure as we can make it nevertheless
\nthere is no permanence in Constitution. There should be a certain flexibility. If you make
\nanything rigid and permanent you stop a Nation’s growth, the growth of a living vital
\norganic people,”; and again in the Provisional Parliament that “A Constitution which is
\nunchanging and static, it dos not matter how good it is, how perfect it is, is a Constitution
\nthat has past its use. It is in its old age already and gradually approaching its death. A
\nConstitution to be living must be growing; must be adaptable; must be flexible; must be
\nchangeable. And if there is one thing which the history of political developments has
\npointed out, I say with great force, it is this that the great strength of the British Nation
\nand the British people has laid in their flexible Constitution. They have known how to
\nadapt themselves to changes, to the biggest changes, Constitutionally. Sometimes they
\nwent through the process of fire and revolution”. But he also said when the Constitution
\n(First Amendment) Bill, 1951, was on the anvil that “-so far as this House is concerned, it
\ncan proceed in the manner provided by the Constitution to amend it, if this House so
\nchoose.\n<\/p>\n
2074. “Now there is no doubt that this House has that authority. There is no doubt about
\nthat, and here, I am talking not of the legal or Constitutional authority, but of moral
\nauthority, because it is, roughly speaking, this House that made the Constitution.” Our
\ntask is not to pass on the “moral authority” of the Parliament to amend the Constition but
\nto determine whether it has “legal or Constitutional authority” to do so. Applying the
\nsame test, the speech which the other of the two chief architects of the Constitution-Dr.
\nAmbedkar-made in the Constituent Assembly can raise no estoppel and decide no
\nConstitutional issue. He said: “Now, what is it we do? We divide the articles of the
\nConstitution under three categories. The first category is the one which consists of
\narticles which can be amended by Parliament by a bare majority. The second set of
\narticles are articles which require two-thirds majority. If the future Parliament wishes to
\namend any particular article which is not mentioned in part III or Article 304,
\n(corresponding to present Article 368), all that is necessary for them is to have two-thirds
\nmajority. Then they can amend it.” Perhaps, there is a slip in the reference to Part III”-
\neven Homer nods. Perhaps, there is an error on the part of the typist-they often nod. But
\neven granting that the eminent cannot ever err, what was said by Dr. Ambedkar and
\nothers in the Constituent Assembly and the Parliament was at best their opinion of law.
\nThe true legal position is for us and none else to decide, though within the limits set by
\nthe Constitution.\n<\/p>\n
2075. During the course of arguments, a catena of decisions of several courts were cited
\nbefore us. I thought when the arguments began-yes, I remember it because the
\ncommencement of the case is not that lost in antiquity-that the judgments of this Court
\nwill form the focus of discussion, foreign decisions making a brief appearance. But in
\nretrospect, I think I was wrong. Learning, like language, is no one’s monopoly and
\ncounsel were entitled to invite us to consider how heroically courts all over the world had
\nwaged battles in defence of fundamental freedoms and on the other hand how, on
\noccasions, the letter of law was permitted to prevail in disregard of evil consequences.
\nBetween such extremes, the choice is always difficult and delicate but it has to be made
\nfor, in a matter involving the cherished freedoms of the subject and the powers of the
\nParliament, I do not want to project my freedom to say, as Justice McReynolds of the
\nAmerican Supreme Court did in the National Prohibition Cases involving the validity of
\nthe Eighteenth Amendment to the American Constitution, that I am unable to come to
\nany conclusion. But I am quite clear that I have no use for the advice of Walter Berns
\n(‘Freedom, Virtue & The First Amendment’ 1957), that since there can be no freedom to
\nend freedom even if the people desire to enslave themselvs, “the Suprme Court must act
\nundemocratically in order to preserve democracy”. Nor indeed shall I walk down the
\ngarden-path laid by Dale. Gibson (‘Constitution Amendment and the implied Bill of
\nRights’, McGill Law Journal, Volume 12), that “where an issue as vital as the protection
\nof civil liberties is concerned, and where the legislators have demonstrated their inability
\nto provide adequate safeguards, the courts are entirely justified (perhaps even morally
\nobliged) in employing all the ingenuity and imagination at their command to preserve
\nindividual rights”. Such exhortations have a spartan air which lends colourfulness to arid
\ntexts but they overlook the fundamental premise that judges, unlike Manu, are not law-
\ngivers. Besides, it cannot ever be too strongly stressed that the power of substantive ‘due
\nprocess of law’ available under the Fourteenth Amendment to the American Constitution
\nwas considered and rejected by our Constituent Assembly which contained a galaxy of
\nlegal talent. In America, under the due process clause, there was a time when the
\nSupreme Court used to invalidate laws because they were thought to be unwise or
\nincompatible with some particular economic or social philosophy. Thus, in Lochner v.
\nNew York, 49 L. ed. 937 the law restricting employment in baker to 10 hours per day and
\n60 hours per week was regarded as an unConstitutional interference with the right of
\nadult labourers, tut juris, to contract with respect to their means of livelihood. It was
\ndecades later that the Court recognised the value and the validity of the dissenting
\nopinion recorded by Justice Holmes:\n<\/p>\n
This case is decided upon an economic theory which a large part of the
\ncountry does not entertain. If it were a question whether agreed with that
\ntheory, I should desire to study it further and long before making up my
\nmind. But I do not conceive that to be my duty, because I strongly believe
\nthat my agreement or disagreement has nothing to do with the right of a
\nmajority to embody their opinions in law. It is settled by various decisions
\nof this Court that State Constitutions and State laws may regulate life in
\nmany ways which we as legislators might think as injudicious or if you
\nlike as tyranical as this, and which equally with this interfere with the
\nliberty to contract.* * * The Fourteenth Amendment does not enact Mr.
\nHerbert Spencer’s Social Statics. * * * But a Constitution…is made for
\npeople of fundamentally differing views and the accident of our finding
\ncertain opinions natural and familiar or novel and even shocking ought not
\nto conclude our judgment upon the question whether statutes embodying
\nthem conflict with the Constitution.\n<\/p>\n
In course of time such shining dissents became the majority view and the due process
\nclause came to be construed as permitting enactment of laws limiting the hours of labour
\nin mines, prohibiting employment of children in hazardous occupations, regulating
\npayment of wages, preserving minimum wages for women and children, the ‘Blue Sky
\nlaws’ and the ‘Man’s Best Friend (Dog) laws’. Even laws like the Kentuky Statutes
\nrequiring Banks to turn over to the protective custody of that State deposits that were
\ninactive for 10 or 25 years were upheld, as not involving taking over the property of the
\nbanks Anderson National Bank v. Luckett 321 U.S. 233. With this American history
\nbefore them, the Drafting Committee of the Constituent Assembly chose in Article 21 of
\nour Constitution a phrase of certain import, ‘procedure established by law’ in place of the
\nvague and uncertain expression ‘due process of law’.\n<\/p>\n
2076. We were taken through an array of cases decided by the Privy Council, the
\nSupreme Court of the United States of America, the Supreme Courts of American States,
\nthe High Court of Australia, the Supreme Court of Ireland, the High Court of Ireland, the
\nSupreme Court of South Africa and of course our own Supreme Court, the Federal Court
\nand the High Courts. Why, consistently with American practice, we were even referred to
\nbriefs which counsel had filed before the Supreme Court in the Rhode Island case. We
\nalso spent a little time on the judgment of the District Court of New Jersey in the Sprague
\ncase, a judgment which though reversed in appeal by the Supreme Court, was thought to
\nhave a certain relevance.\n<\/p>\n
2077. We began, speaking chronologically, with the decision rendered in 1803 by the
\nAmerican Supreme Court in William Marbury v. James Madison 2 L. ed. 69 in which the
\nopinion of the Court was delivered by Chief Justice John Marshall in words whose
\nsignificance custom has still not staled:\n<\/p>\n
Certainly all those who have framed written Constitutions contemplate
\nthem as forming the fundamental and paramount law of the nation, and,
\nconsequently, the theory of every such government must be, that an act of
\nthe legislature, repugnant to the Constitution is void.\n<\/p>\n
2078. We ended with some of the very recent decisions of this Court like the Bank
\nNationalisation Case [1970] 3 S.C.R. 530 in which a Bench of 11 Judges held by a
\nmajority of 10 to 1 that the Banking Companies (Acquisition and Transfer of
\nUndertakings) Act, 1969 violated the guarantee of compensation under Article 31(2) in
\nthat, it provided for giving certain amounts determined according to principles which
\nwere not relevant in the determination of compensation of the undertaking of the named
\nBanks and by the method prescribed, the amounts so declared could not be regarded as
\ncompensation. In between come several decisions, prominent amongst which are: (1) The
\nPrivy Council decision in Burah’s case (1878, Attorney-General of Ontario case (1911),
\nVacher & Son’s case (1912), McCawley’s case (1919), In Re the Initiative and
\nReferendum Act case (1919), Trethowan’s case (1932), Moore’s case (1935), Ibralabee’s
\ncase (1964), Ranasinghe’s case (1965), Don John Liyanage’s case (1965) and Kariapper’s
\ncase (1967); (2) The decisions of the Federal Court in the C.P. & Berar Reference (1938),
\nSubramaniam Chettiyar’s case (1940) and Suraj Narain Anand’s case (1941); (3) The
\ndecisions of the American Supreme Court in Lochner’s case (1904), Hawke v. Smith
\n(1920), the Rhode Island Case (1920), Dillon v. Gloss (1920), Lesser v. Garnett (1922),
\nEx parte Grossman (1925), Sprague’s case (1931); Schneiderman’s case (1943) and
\nSkrupa’s case (1963); (4) The decisions of the American State Supreme Courts in
\nLivermore v. Waite (1894), Edwards v. Lesseur (1896), Ex parte Dillon (1920) and
\nGeigenspan v. Boding (1920); (5) The decision of the Irish Supreme Court in Ryan’s case
\n(1935); (6) The decisions of the Appellate Division of the Supreme Court of South Africa
\nin Harris’ case (1952) and in the ‘High Court of Parliament Case’ (1952); (7) The
\ndesicions of the Canadian Supreme Court in the Alberta Press Case (1938), the case of
\nAttorney-General of Nova Scotia (1950), Samur’s case (1953) and Switzman’s case
\n(1957); and (8) The decisions of the Hight Court of Australia in Engineer’s case (1920),
\nWest v. Commonwealth of Australia in (1937), South Australia v. Commonwealth (1942)
\nand State of Victoria v. Commonwealth (1970).\n<\/p>\n
2079. Most of the decisions of the Privy Council noticed above have an important
\nbearing on the issues arising before us and some of these decisions present a near parallel
\nto our Constitutional provisions which require interpretation. They will help a clearer
\nperception of the distinction between ‘controlled’ and ‘uncontrolled’ Constitutions, which
\nin turn has an important bearing on the patent distinction between laws made in the
\nexercise of constituent power and those made in the exercise of ordinary legislative
\npower conferred by the Constitution. In this distinction would seem to lie an answer to
\nsome of the basic contentions of the petitioner in regard to the interpretation of Articles
\n13 and 368 of the Constitution.\n<\/p>\n
2080. The decisions of American courts may bear examination, but in their application to
\nthe problems arising under our Constitution it would be necessary to keep in constant
\nsight some of the crucial differences between the circumstances attendant on the birth of
\nthe two Constitutions, the purposed vagueness of theirs and the finical content of ours
\nand the significant disparity in the structure of their Article 5 and our Article 368. In
\nAmerica, an important principle of Constitutional liberty is that the sovereignty resides in
\nthe people and as they could not in their collective character exercise governmental
\npowers, a written document was by common consensus agreed upon in each of the States.
\nThe American Constitution, thus, is covenant of the sovereign people with the individuals
\nwho compose the nation. Then, the Supreme Court of America, as said by Sir Henry
\nMain, is not only a most interesting but a unique creation of the fathers of the
\nConstitution. “The success of the experiment has blinded men to its novelty. There is no
\nexact precedent for it, either in the ancient or modern world.” In fact, it is said that the
\nhistory of the United States has been written not meerly in the halls of Congress or on the
\nfields of battle but to a great extent in the Chambers of the Supreme Court. The peculiar
\nrole played by that court in the development of the nation is rooted, apart from the
\nimplications arising out of the due process clause, in the use of a few skeleton phrases in
\nthe Constitution. We have drawn our Constitution differently. It is, however, relevant that
\nAmerican courts were time and again asked to pass on the existence of inherent
\nlimitations on the amending power and their attitude to that question requires
\nexamination of the claim of writers like Edward Corwin that such arguments were
\nbrushed aside by the court as unworthy of serious attention. Another aspect of American
\ndecisions which has relevance in this matter is the explication of the concept of
\namendment in cases like Livermore’s (California, 1894), McCleary’s (Indiana, 1917) and
\nEx Parte Dillon’s (California, 1920).\n<\/p>\n
2081. Decisions of the Australian High Court like the Engineers’ case, the State of
\nVictoria case and the Melbourne Corporation case bear on the central theme of the
\npetitioner’s argument that the Parliament which is a creature of the Constitution cannot in
\nexercise of its powers act in derogation of the implications to be derived, say, from the
\nfederal nature of the Constitution. That is, some implications must arise from the
\nstructure of the Constitution itself.\n<\/p>\n
2082. The two decisions of the South African Supreme Court (Harris’ case and the High
\nCourt of Parliament case) may serve to throw some light on the concept that the
\nsovereignty of a legislature is not incompatible with its obligation to comply with the
\nrequirements of form and manner prescribed by the instrument which regulates its power
\nto make law, for a legislature has no power to ignore the conditions of law-making.
\n2083. The Canadian cases really bear on the legislative competence of provincial
\nlegislatures in regard to individual freedoms or in regard to criminal matters. In Canada,
\nas many as six different views have been propounded on civil liberties and it would
\nappear that though different judges have voiced their opinion in favour of one or the other
\nof such views, none has pronounced finally in favour of any particular view.
\n2084. A special word must be said of Ryan’s case which was decided by the Irish
\nSupreme Court. It was read out in extenso to us and I am free to confess that it evoked in
\nme a quick response. In that case, the three Judges of the Irish High Court and two of the
\n3 Judges of their Supreme Court rejected contentions similar to those of the petitioner
\nherein but Chief Justice Kennedy, though he did not deal directly with the meaning of the
\nword ‘amendment’, read limitations on the meaning of that word as a result of various
\nimplications derived from the Irish Constitution. Petitioner relies on the lone voice of the
\nChief Justice. That it is lone is immaterial for our purpose for, after all, the decision has
\nbut a pesuasivc value. Respondents not only distinguished the judgment of the learned
\nChief Justice but contended that the ratio of the decision is clearly in their favour. Ryan’s
\ncase became for both sides an ‘Irish Golak Nath’.\n<\/p>\n
2085. I have made this compact summary of the decisions to indicate, in the first place,
\nthat these perhaps are the only decisions which require close consideration out of the vast
\nmultitude of those that were canvassed before us and secondly, to show the broad trend of
\njudicial thinking on the points pressed upon us. It is impossible, in what I consider to be
\nthe true scope of this judgment and unnecessary for what I feel is its real purpose, to deal
\nat length with everyone of these decisions. That task, I think, may well be left to receive a
\nscholarly treatment at the hands of a Constitutional writer. As Judges, we are confronted
\nand therefore concerned with practical problems and it is well to remind ourselves that
\nour principal task is to construe the Constitution and not to construe judgments. Those
\njudgments are without doubt, like lamp-posts on the road to freedom and judges who
\nhave shed on that road the light of their learning and the impress of their indepedence,
\nhave carved for themselves a niche in the history of civil liberties. See what Frankfurter J.
\nsaid in Joint Anti-Fascist Ref. Comm. v. McGraths 341, U.S. 123, 171 “Man being what
\nhe is, cannot safely be trusted with complete immunity from outward responsibility in
\ndepriving others of their rights”; or, what Jackson J. said in American Comm. Assoc. v.
\nDoudds 339, U.S. 382, 439 “Our protection against all kinds of fanatics and extremistes,
\nnone of whom can be misted with unlimited power over others, lies not in their
\nforbearance but in the limitations of our Constitution”; or, what Patterson J. said in his
\nfamous charge to the Jury in Van Home’s lessee v. Dorrance 1 L. ed. 391: “The
\nConstitution…is stable and permanent, not to be worked upon by the temper of the times,
\nnor to rise and fall with the tide of events…. One encroachment leads to another;
\nprecedent gives birth to precedent; what has been done may be done again; thus radical
\nprinciples are generally broken in upon, and the Constitution eventually destroyed.”
\nThese are sonorous words and they will resound through the corridor of Times. But these
\nlandmarks in the development of law cannot be permitted to be transformed into weapons
\nfor defeating the hopes and aspirations of our teeming millions,-half-clad, half-starved,
\nhalf-educated. These hopes and aspirations representing the will of the people can only
\nbecome articulate through the voice of their elected representatives. If they fail the
\npeople, the nation must face death and destruction. Then, neither Court nor Constitution
\nwill save the country. In those moments of peril and disaster, rights and wrongs are
\ndecided not before the blind eyes of justice, not under the watchful eyes of the Speaker
\nwith a Marshal standing by but, alas, on streets and in by-lanes, Let us, therefore, give to
\nthe Parliament the freedom, within the framework of the Constitution, to ensure that the
\nblessings of liberty will be shared by all. It is necessary, towards that end, that the
\nConstitution should not be construed in a “narrow and pedantic sense Per Lord Wright in
\nJames v. Commonwealth of Australia, (1936) A.C. 578, 614” Rules of interpretation
\nwhich govern other statutes also govern a Constitutional enactment but those “very
\nprinciples of interpretation compel us to take into account the nature and scope of the Act
\nthat we are interpreting,-to remember that it is a Constitution, a mechanism under which
\nlaws are to be made and not a mere Act which declares what the law is to be Per Higgins
\nJ. in Att. Genl. for New South Wales v. Brewery Employees Union, (1908) 6
\nCommonwealth L.R. 469, 611-12.(2)” To put it in the language of Sir Maurice Gwyer
\nC.J., “a broad and liberal spirit should inspire those whose duty it is to interpret it; but I
\ndo not imply by this that they are free to stretch or pervert the language of the enactment
\nin the interests of any legal or Constitutional theory, or even for the purpose of supplying
\nomissions or of correcting supposed errOrs. A Federal Court will not strengthen, but only
\nderogate from, its position, if it seeks to do anything but declare the law; but it may
\nrightly reflect that a Constitution of government is a living and organic thing, which of all
\ninstruments has the greatest claim to be construed ut res magis valeat quam pereat In re.
\nThe Central Provinces and Berar Act No. XIV of 1939. (1938) F.C.R. p. 18, 37.” In the
\nexercise of our powers of judicial review, let us therefore not act as a check of the past on
\nthe present and the future “…it is the present that represents the will of the people and it is
\nthat will that must ulimately be given effect in a democracy Schwartz : A Basic History
\nof the U.S. Supreme Court” The core of social commitment is the quint-essence of our
\nConstitution and we must approach it in the spirit in which it was conceived. We erected
\nthe edifice of our Constitution in the hope that it will last, unlike the French who, on the
\nestablishment of the Third Republic in 1875, framed a Constitution in the hope that it will
\nfail, since the majority of the Constitution-makers were not Republicans but Royalists. In
\nthe peculiar conditions in which the French Republic found itself, there was only one
\nthrone but three claimants for a seat on it. The social philosophy of our Constitution
\ndefines expressly the conditions under which liberty has to be enjoyed and justice is to be
\nadministered in our country; and shall I say of our country what Justice Fitzgibbon said
\nof his in Ryan’s case : “this other Eden demi-Paradise, this precious stone, set in the silver
\nsea, this blessed plot, this earth, this, realm, this” India. If it is not that to-day, let us strive
\nto make it so by using law as a flexible instrument of social order. Law is not, in the
\nphrase of Justice Holmes, a “brooding omnipotence in the sky.\n<\/p>\n
2086. All through the hearing of the case, there was hardly a point on which Dictionaries
\nand Law Lexicons were not cited. Sec this long list: The Shorter Oxford English
\nDictionary on historical Principles, 3rd Ed.; Shorter Oxford English Dictionary;
\nWebster’s Third New International Dictionary of the English Language; Webster’s
\nEnglish Dictionary, 1952; The Random House Dictionary of the English Language; The
\nReader’s Digest Great Encyclopaedic Dictionary; The Dictionary of English Law, Earl
\nJowitt; The Cyclopaedic Law Dictionary by Frank D. Moore; Prem’s Judicial Dictionary-
\nWords & Phrases judicially defined in India England, U.S.A. & Australia; Bouvier’s Law
\nDictionary; Universal English Dictionary; Chamber’s 20th Century Dictionary; Imperial
\nDictionary by Ogilvie; Standard Dictionary by Funk & Wagnalls; Stroud’s Judicial
\nDictionary; Judicial and Statutory Definitions of Words and Phrases, Second Series;
\nWords and Phrases legally defined, John B. Saunders; Wharton’s Law Lexicon;
\nVenkataramaiya’s Law Lexicon; Law Lexicon of British India-compiled and edited by P.
\nRamanatha Aiyer; Words and Phrases, Permanent Edition; The Construction of Statutes
\nby Earl T. Crawford; Corpus Juris Secundum and American Jurisprudence. These
\ncitations were made in order to explain the meaning, mainly, of the words ‘Amendment’,
\n‘Constituent’, ‘Constitution’, ‘Constitutional law’, ‘Distribute’ and ‘law’. This is of course in
\naddition to several decisions which have dealt with these words and phrases in some
\ncontext or the other. It is useful to have a dictionary by one’s side and experience has it
\nthat a timely reference to a dictionary helps avert many an embarrassing situation by
\ncorrecting one’s inveterate misconception of the meaning of some words. But I do not
\nthink that mere dictionaries will help one understand the true meaning and scope of
\nwords like ‘amendment’ in Article 368 or ‘law’ in Article 13(2). These are not words
\noccurring in a school text-book so that one can find their meaning with a dictionary on
\none’s right and a book of grammar on one’s left. These are words occurring in a
\nConstitution and one must look at them not in a school-masterly fashion, not with the
\ncold eye of a lexicographer, but with the realization that they occur in “a single complex
\ninstrument, in which one part may throw light on another”, so that “the construction must
\nhold a balance between all its parts Per Lord Wright in James v. Commonwealth of
\nAustralia (1936) A.C. 578, 613. Such words, having so significant an impact on a power
\nas important as the power to amend the Constitution cannot be read in vacuo. The
\nimplication of the social philosophy of the instrument in which they occur and the general
\nscheme of that instrument under which the very object of the conferment of freedoms
\nentrenched in Part III is the attainment of ideals set out in Part IV, must play an important
\nrole in the construction of such words. “A word, is not a crystal, transparent and
\nunchanged; it is the skin of living thought and may vary greatly in colour and content
\naccording to circumstances and the time in which it is used Per Holmes J. in Towne v.
\nEisner 62 L. ed. 372, 376”.\n<\/p>\n
2087. ‘Sui generis’, I called this case. I hope I have not exaggerated its uniqueness. It is
\nmanifest that the case has a peculiar delicacy. And now through the cobwebs of 71
\nConstitutions, dozens of dictionaries, scores of texts and a multitude of cases, I must find
\na specific answer to the questions raised before us and state it as briefly as I may.
\n2088. The main argument was made in Writ Petition No. 135 of 1970. The Kerala Land
\nReforms Amendment Act (35 of 1969) came into force in the State of Kerala on January
\n1, 1970. The Kerala Land Reforms Amendment Act (25 of 1971) came into force on
\nAugust 7, 1971. The High Court of Kerala struck down some of the provisions of the Act
\nof 1969 and that judgment was upheld by this Court on April 26, 1972 in Kunjukutty
\nSahib, etc. v. The State of Kerala and Anr. [1972] 2 S.C.C. 364.\n<\/p>\n
2089. Writ Petition No. 135 of 1970 was filed in this Court under Article 32 of the
\nConstitution on March 21, 1970. During the pendency of this Petition, the Constitution,
\n24th 25th, 26th and 29th Amendment Acts were passed by the Amending body, that is,
\nthe Parliament. The 24th Amendment Act received the President’s assent on November 5,
\n1971. In a House of 518 members of the Lok Sabha, 384 members voted in favour of the
\n24th Amendment and 23 against it. In a House of 243 members of the Rajya Sabha 177
\nmembers voted in favour and 8 against it. As regards 25th Amendment, 355 voted in
\nfavour and 20 against it in the Lok Sabha; while in the Rajya Sabha, 166 voted in favour
\nand 20 against it. The voting on the 29th Amendment in the Lok Sabha was 286 in favour
\nand 4 against. In the Rajya Sabha, 170 voted in favour and none against it.
\n2090. In August, 1972, the Petitioner was permitted by an amendment to challenge the
\nvalidity of the 24th, 25th and 29th Amendments to the Constitution. These Amendments,
\nafter receiving the President’s assent, came into force on November 5, 1971, April, 20,
\n1972 and June 9, 1972.\n<\/p>\n
2091. The Constitution (Twenty-Fourth Amendment) Act, 1971 has by Section 2 thereof
\nadded a new Clause (4) to Article 13 of the Constitution providing that nothing in that
\narticle “shall apply to any amendment of this Constitution made under Article 368”.
\nSection 3(a) of the Amending Act substitutes a new marginal heading to Article 368 in
\nplace of the old. The marginal heading of the unamended Article 368 was : “Procedure
\nfor amendment of the Constitution.” The new heading is: “Power of Parliament to amend
\nthe Constitution and procedure therefor.” Section 3(b) of the Amending Act inserts a new
\nSub-section (1) in Article 368 : “Notwithstanding anything in this Constitution,
\nParliament may in exercise of its constituent power amend by way of addition, variation
\nor repeal any provision of this Constitution in accordance with the procedure laid down in
\nthis article.” Section 3(c) makes it obligatory for the President to give his assent to the
\nAmendment Bill. Section 3(d) adds a new Clause (3) to Article 368 stating that “Nothing
\nin Article 13 shall apply to any amendment
\n2092. The Constitution (Twenty-Fifth Amendment) Act, 1971 brings about significant
\nchanges in Article 31 and introduces a new Article 31C. By Section 2(a) of the
\nAmendment Act, 1971, Clause (2) of Article 31 is substituted by a new clause which
\npermits compulsory acquisition or requisitioning of the property for a public purpose by
\nauthority of law, which provides for acquisition or requisitioning of the property “for an
\namount which may be fixed by such law or which may be determined in accordance with
\nsuch principles and given in such manner as may be specified in such law.” No such law
\ncan be called in question on the ground that the amount is not adequate or that the whole
\nor any part of it is to be given otherwise than in cash. The newly added proviso to Article
\n31(2) makes an exception in regard to properties of educational institutions of minorities.
\nIf such properties are compulsorily acquired, the State has to ensure that the amount fixed
\nfor acquisition is such as would not restrict or abrogate the right guaranteed under Article
\n30(1) of the Constitution. Section 2(b) of the Amendment Act, 1971 adds a new Clause
\n2(b) to Article 31 which provides that nothing in Article 19(1)(f) shall affect any such
\nlaw as is referred to in Article 31(2) as substituted. Section 3 of the Amendment Act,
\n1971, introduces a new Article 31C, which provides that notwithstanding anything
\ncontained in Article 79, no law giving effect to the policy of the State towards securing
\nthe principles mentioned in Article 39(b) or (c) shall be deemed to be void on the ground
\nthat it takes away or abridges the rights conferred by Articles 14, 19 and 31. No law
\ncontaining a declaration that it is for giving effect to such policy can be called in question
\nin any court on the ground that it does not give effect to such policy. If such a law is
\nmade by the Legislature of a State, the provisions of Article 31C can apply only if the law
\nreceived the assent of the President.\n<\/p>\n
2093. By the Constitution (Twenty-Ninth Amendment) Act, 1972, the two Kerala Acts –
\nAct 35 of 1969 and Act 25 of 1971 – were included in the Ninth Schedule thereby giving
\nthem the protection of Article 31B. By such inclusion, the challenge made by the
\npetitioner to these two Acts by his Writ Petition filed in March, 1970 became infructuous
\ndepending upon the validity of the 29th Amendment Act.\n<\/p>\n
2094. Shorn of refinements, the main questions which arise for decision are: (1) What is
\nthe true ratio and effect of the decision in the Golak Nath case? (2) Should that ratio be
\nupheld? (3) If the majority decision in the Golak Nath case be incorrect, what is the
\nextent of the inherent or implied limitations, if any, on the power of the Parliament to
\namend the Constitution by virtue of its power under Article 368? and (4) Are the 24th,
\n25th and 29th Constitution Amendment Acts valid?\n<\/p>\n
2095. The Constitution of India came into force on January 26, 1950 and on June 18,
\n1951 the Constitution (First Amendment) Act, 1951 was passed by the Parliament,
\nSections 2, 3, 4 and 5 of the Amending Act made significant amendments resulting to a
\nlarge extent in the abridgement of Fundamental Rights conferred by Part III of the
\nConstitution. By Section 4, a new Article 31A was inserted and by Section 5 was inserted
\nArticle 31B for the validation of certain Acts and Regulations. These Acts and
\nRegulations were enumerated in the Ninth Schedule to the Constitution, which itself was
\nadded by Section 14 of the Amendment Act.\n<\/p>\n
2096. The validity of the Amendment Act, 1951 was challenged in this Court in Sri
\nShankar Prasad Singh Deo v. Union of India and State of Bihar [1952] 1 S.C.R. 89. It
\nwas urged in that case that the Amendment. Act in so far as it purported to take away or
\nabridge the rights conferred by Part III felt within the prohibition of Article 13(2) and
\nwas therefore unConstitutional. Patanjali Sastri J. who spoke for the unanimous court
\nrejected this argument by holding that although ‘law’ would ordinarily include
\nConstitutional law, there was a clear demarcation between ordinary law made in the
\nexercise of legislative power and Constitutional law made in exercise of constituent
\npower; and therefore, in the absence of a clear indication to the contrary, Fundamental
\nRights were not immune from Constitutional amendment. The challenge to the
\nAmendment Act, 1951 was on these grounds rejected.\n<\/p>\n
2097. The Constitution (Fourth Amendment) Act, 1955 abridging the Fundamental
\nRights guaranteed by Aritcle 31 was passed on April 27, 1955. Section 2 of this Act
\nintroduced a radical change by providing that no law to which Article 31(2) was
\napplicable shall be called in question in any court on the ground that the compensation
\nprovided by that law was not adequate. By Section 3 of the Amending Act a new and
\nextensive Clause (1) was substituted for the old Clause (1) of Article 31A, with
\nretrospective effect. The newly added provision opens with a non-obstante clause:
\n“Notwithstanding anything contained in Article 13” and privides that no law providing
\nfor matters mentioned in new Clauses (a) to (s) Article 31A(1), shall be deemed to be
\nvoid on the ground that it is inconsistent with, or takes away or abridges any of the rights
\nconferred by Article 14, Article 19 or Article 31. No challenge was ever made to these
\namendments.\n<\/p>\n
2098. The Constitution (Seventeenth Amendment) Act, 1964 came into force on June 20,
\n1964. This Act, by Section 2(ii) inserted a new definition of “estate” in Article 31A(2)(a)
\nwith retrospective effect and added as many as 44 Acts in the Ninth Schedule, thus
\nextending the protection of the Schedule to 64 Acts in all.\n<\/p>\n
2099. The validity of the Seventeenth Amendment Act was challenged before this Court
\nin Sajjan Singh v. State of Rajasthan [1965] 1 S.C.R. 933. Out of the the several
\narguments which were urged in that case the only one which is relevant for the present
\npurpose is that the Amendment Act was void in view of the provisions of Article 13(2),
\nin so far as the Act purported to abridge the Fundamental Rights guaranteed by Part III.
\nDelivering the majority judgment, Gajendragadkar C.J. took the view on behalf of
\nhimself, Wanchoo and Raghubar Dayal JJ. that the expression ‘amendment of the
\nConstitution’ plainly and unambiguously means amendment of all the provisions of the
\nConstituion and therefore the amending power conferred by Article 368 extended to all
\nthe provisions of the Constitution. The majority judgment rejected the contention that the
\nword ‘law’ in Article 13(2) would take in Constitution Amendment Acts passed under
\nArticle 368, as there was a clear distinction between the constituent power conferred by
\nArticle 368 and the ordinary legislative power and Article 13(2) would take in laws made
\nin the exercise of the latter power only. Hidayatullah J. and Mudholkar J. concurred in the
\nfinal conclusion but by separate judgments they doubted the majority view and observed
\nthat it was possible that Article 368 merely laid down the procedure for amending the
\nConstitution but did not confer the power to amend the Constitution. Both the learned
\nJudges however stated expressely that they should not be taken to have expressed a final
\nopinion on that question. The seeds of the controversial decision in I.C. Golak Nath and
\nOrs. v. State of Punjab and Anr. [1967] 2 S.C.R. 762 were sown by the doubt thus
\nexpressed by Hidayatullah J. and Mudholkar J.\n<\/p>\n
2100. The decision in the Golak Nath case was rendered by a Bench of 11 Judges of this
\nCourt on February 27, 1967. The petitioners therein had challenged the validity of Punjab
\nAct 10 of 1953 and the Mysore Act 10 of 1962 as amended by Act 14 of 1965, on the
\nground that these Acts violated their Fundamental Rights, alleging that though the
\nimpugned acts were included in the Ninth Schedule, they did not receive the protection of
\nthe 1st, 4th and 17th Amendment Acts. It was common case that if the 17th Amendment
\nwhich included the impugned Acts in the Ninth Schedule was valid, the Acts would not
\nbe open to challenge on any ground.\n<\/p>\n
2101. Chief Justice Subba Rao delivered the leading majority judgment for himself and
\nfor Justices Shah, Sikri, Shelat and Vaidilingam. Hidayatullah J. concurred with their
\nconclusion but delivered a separate judgment. Wanchoo J. delivered the leading minority
\njudgment on behalf of himself and Justices Bhargava and Mitter. Justice Bachawat and
\nJustice Ramswami concurred by their separate judgments with the view expressed in the
\nleading minority judgment.\n<\/p>\n
2102. The leading majority judgment recorded the following conclusions:\n<\/p>\n
1. That Fundamental Rights are the primordial rights necessary for the
\ndevelopment of human personality and as such they are rights of the
\npeople preserved by the Constitution.\n<\/p>\n
2103. The Constitution has given by its scheme a place of permanence to the fundamental
\nfreedoms. In giving to themselves the Constitution the people have reserved the
\nfundamental freedoms to themselves. The incapacity of the Parliament, therefore, in
\nexercise of its amending power to modify, restrict or impair fundamental freedoms in Part
\nIII arises from the scheme of the Constitution and the nature of the freedoms.
\n2104. Article 368 assumes the power to amend found elsewhere. In other words, Article
\n368 does not confer power on Parliament to amend the Constitution but merely prescribes
\nthe procedure for the exercise of such power to amend.\n<\/p>\n
2105. The power to amend is to be found in Articles 245 and 248 read with Entry 97 in
\nList I of the Seventh Schedule to the Constitution.\n<\/p>\n
2106. In the exercise of the power of amendment, Parliament could not destroy the
\nstructure of the Constitution but it could only modify the provisions thereof within the
\nframework of original instrument for its better effectuation. In other words, the provisions
\nof the Constitution could undoubtedly be amended but not so as to take away or abridge
\nthe Fundamental Rights.\n<\/p>\n
2107. There is no distinction between the power to amend the Constitution and the
\nordinary power to make laws.\n<\/p>\n
2108. Article 13(2) which contains an inclusive definition, prima facie takes in
\nConstitutional law.\n<\/p>\n
2109. The residuary power of Parliament could be relied upon to call for a Constituent
\nAssembly for making the new Constitution or radically changing it. (This opinion
\nhowever was tentative and not final).\n<\/p>\n
2110. The Seventeenth Amendment Act impugned before the court as also the First,
\nFourth and Sixteenth Amendments were Constitutionally invalid. Declaring these
\namendments invalid was, however, likely to lead to confusion and chaos and therefore
\nthese amendments would be deemed to be valid except for future purposes, by
\napplication of the principle of ‘prospective invalidation’.
\n2111. In future, Parliament will have no power to amend Part III of the Constitution so as
\nto take away or abridge the Fundamental Rights.\n<\/p>\n
2112. Hidayatullah J. agreed with the final decision expressed in the leading majority
\njudgment and his views can be summarised as follows:\n<\/p>\n
1. The power of amendment must be possessed by the State. One could
\nnot take a narrow view of the word ‘amendment’ as including only minor
\nchanges within the general framework. By an amendment, new matter
\nmay be added, old matter removed or altered.\n<\/p>\n
2113. Article 368 outlines a process which if followed strictly results in the amendment
\nof the Constitution. The article gives power to no particular person or persons.
\n2114. The procedure of amendment, if it can be called a power at all is a legislative
\npower but it is sui generis and outside the three Lists of Schedule Seven of the
\nConstitution.\n<\/p>\n
2115. There is no distinction in our Constitution between laws made ordinarily and laws
\nmade occasionally for the amendment of the Constitution. Therefore, Constitutional
\namendments must fall within the scope of Article 13(2).\n<\/p>\n
2116. The whole Constitution is open to amendment, only two dozen articles being
\noutside the reach of Article 368; that too, because the Constitution has made them
\nfundamental.\n<\/p>\n
2117. Fundamental Rights cannot be abridged or taken away by the ordinary amending
\nprocess. Parliament must amend Article 368 to convoke another Constituent Assembly,
\npass a law under Item 7 of List I to call a Constituent Assembly and then that Assembly
\nmay be able to abridge or take away the Fundamental Rights. The Parliament was
\nconstituted with powers of legislation which included amendments of the Constitution
\nbut only so far as Article 13(2) allowed.\n<\/p>\n
2118. Parliament had no power to amend Article 368 so as to confer on itself constituent
\npowers over the Fundamental Rights. This would be wrong and against Article 13(2).
\n2119. The conclusion recorded by the leading majority judgment was correct, not on the
\nground of prospective invalidation of laws but on the ground of acquiescence. The First,
\nFourth and Seventh Amendments were part of the Constitution by acquiescence for a
\nlong time and could not therefore be challenged. They also contained authority for the
\nSeventeenth Amendment.\n<\/p>\n
2120. Wanchoo J. who delivered the leading minority judgment came to the following
\nconclusions:\n<\/p>\n
1. Both the procedure and the power to amend the Constitution are to be
\nfound in Article 368 and not in Entry 97 of List I.\n<\/p>\n
2121. The word ‘amendment’ must be given its full meaning, that is, that the power was
\nnot restricted to improvement of details but extended to the addition to or substitution or
\ndeletion of existing provisions.\n<\/p>\n
2122. In exercise of the power conferred by Article 368 it was competent to the
\nParliament by observing the procedure prescribed therein to amend any provision of the
\nConstitution.\n<\/p>\n
2123. The word ‘law’ in Article 13(2) could only take in laws made by Parliament and
\nState Legislatures in the exercise of their ordinary legislative power but not amendments
\nmade under Article 368.\n<\/p>\n
2124. The power to amend being a constituent power cannot be held to be subject to any
\nimplied limitations on the supposed ground that the basic features of the Constitution
\ncould not be amended.\n<\/p>\n
2125. Bachawat J. agreed with Wanchoo J. and stated:\n<\/p>\n
1. No limitation on the amending power could be gathered from the
\nlanguage of Article 368. Each and every part of the Constitution could
\ntherefore be amended under that Article.\n<\/p>\n
2126. The distinction between the Constitution and the laws is so fundamental that the
\nConstitution cannot be regarded as a law or a legislative act.\n<\/p>\n
2127. Article 368 indicates that the term ‘amend’ means ‘change’. A change is not
\nnecessarily an improvement.\n<\/p>\n
2128. It was unnecessary to decide the contention whether the basic features of the
\nConstitution, as for example, the republic form of government or the federal structure
\nthereof could be amended, as the question did not arise for decision.
\n2129. Ramaswami J. adopted a similar line of reasoning and held:
\n2130. That the definition of ‘law’ in Article 13(3) did not include in terms ‘Constitutional
\namendment’. Had it been intended by the Constitution-makers that the Fundamental
\nRights guaranteed by Part III should be completely outside the scope of Article 368 it is
\nreasonable to assume that they would have made an express provision to that effect.
\n2131. The Preamble to the Constitution which declared India as a sovereign democratic
\nrepublic was not beyond the scope of the amending power; similarly certain other basic
\nfeatures of the Constitution like those relating to distribution of legislative power, the
\nparliamentary power of Government and the establishment of the Supreme Court and the
\nHigh Courts were also not beyond the power of amendment.\n<\/p>\n
2132. Every one of the articles of the Constitution is amendable under Article 368 and
\nthere was no room for any implication in the construction of that article.
\n2133. It is thus clear that the majority of Judges in the Golak Nath case consisting of
\nJustices Wanchoo, Hidayatullah, Bhargava, Mitter, Bachawat and Ramaswami rejected
\nthe argument that Article 368 merely prescribes the procedure to be followed in
\namending the Constitution. They held that Article 368 also conferred the power to amend
\nthe Constitution. They rejected the argument that the power to amend could be found in
\nEntry 97 of List I. The majority of Judges consisting of Subba Rao, C.J. and his 4
\ncolleagues as well as Hidayatullah J. held that there was no distinction between
\nconstituent power and legislative power and that the word ‘law’ used in Article 13(2)
\nincludes a law passed by Parliament to amend the Constitution. Subba Rao C.J. and his 4
\ncolleagues suggested that if a Constitution had to be radically altered the residuary power
\ncould be relied upon to call for a Constituent Assembly. Hidayatullah J. took a different
\nview and held that for making radical alterations so as to abridge Fundamental Rights
\nArticle 368 should be suitably amended and the Constituent Assembly should be called
\nafter passing a law under Entry 97 in the light of the amended provisions of Article 368.
\nIt is important to mention that all the eleven Judges who constituted the Bench were
\nagreed that even Fundamental Rights could be taken away but they suggested different
\nmethods for achieving that purpose. Subba Rao C.J. and his 4 colleagues suggested
\ncalling of a Constituent Assembly; Hidayatullah J. suggested an amendment of Article
\n368 for calling a Constituent Assembly after passing a law under Entry 97; the remaining
\n5 Judges held that the Parliament itself had the power to amend the Constitution so as to
\nabridge or take away the Fundamental Rights.\n<\/p>\n
2134. The leading majority judgment did not decide whether Article 368 itself could be
\namended so as to confer a power to amend every provision of the Constitution. The
\nreason for this was that the Golak Nath case was decided on the basis of the unamended
\nArticle 368. The question whether Fundamental Rights could be taken away by amending
\nArticle 368 was not before the Court. The question also whether in future Parliament
\ncould by amending Article 368 assume the power to amend every part and provision of
\nthe Constitution was not in issue before the Court. Such a question could arise directly, as
\nit arises now, only after an amendment was in fact made in Article 368, and the terms of
\nthat amendment were known. The observation in the leading majority judgment putting
\nrestraints on the future power of the Parliament to take away Fundamental Rights cannot
\ntherefore constitute the ratio of the majority judgment. The learned Judges did not
\nevidently consider that in future the chapter on Fundamental Rights could be made
\nsubject to an amendment by first amending Article 368 as is now done under the Twenty-
\nFourth Amendment.\n<\/p>\n
2135. It shall have been seen that the petitioners in the Golak Nath case won but a Pyrrhic
\nvictory. They came to the Court, not for the decision of an academic issue, but to obtain a
\ndeclaration that laws which affected their fundamental rights were unConstitutional.
\nThose laws were upheld by the court but I suppose that the petitioners left the court with
\nthe consolation that posterity will enjoy the fruits of the walnut tree planted by them. But
\nit looks as if a storm is brewing threatening the very existence of the tree.
\n2136. As stated above, 6 out of the 11 learned Judges held in the Golak Nath case that
\nArticle 368 prescribed not merely the procedure for amendment but conferred the power
\nto amend the Constitution and that the amending power cannot be traced to the Residuary
\nEntry 97 of List I, Schedule VII read with Articles 245, 246 and 248 of the Constitution. I
\nrespectfully adopt this view taken by the majority of Judges.\n<\/p>\n
2137. Part XX of the Constitution is entitled “Amendment of the Constitution”, not
\n“Procedure for Amendment of the Constitution”. Article 368, which is the only article in
\nPart XX must therefore be held to deal both with the procedure and the product of that
\nprocedure. The marginal note to Article 368: “Procedure for Amendment of the
\nConstitution” was only a catchword and was in fact partially correct. It did not describe
\nthe consequence of the adoption of the procedure because the title of the part described it
\nclearly. The justification of the somewhat inadequate marginal note to Article 368 can be
\nsought in the fact that the article does not confer power on any named authority but
\nprescribes a self-executing procedure which if strictly followed results in this : “the
\nConstitution shall stand amended”. The history of the residuary power since the days of
\nthe Government of India Act, 1935, and the scheme of distribution of legislative power
\nshow that if a subject of legislative power was prominently present to the minds of the
\nframers of the Constitution, it would not have been relegated to a Residuary Entry, but
\nwould have been included expressly in the legislative list-more probably in List I. That
\nthe question of Constitutional amendment was prominently present to the minds of the
\nConstitution-makers is clear from the allocation of a separate Part-Part XX-to
\n“Amendment of the Constitution”. Then, the legislative power under Entry 97, List I,
\nbelongs exclusively to the Parliament. The power to amend the Constitution cannot be
\nlocated in that Entry because in regard to matters falling within the proviso to Article
\n368, Parliament does not possess exclusive power to amend the Constitution. The Draft
\nConstitution of India also points in the direction that the power of amendment cannot be
\nlocated in the Residuary Entry. Draft Article 304, which corresponds to Article 368,
\nconferred by Sub-article (2) a limited power of amendment on the State Legislatures also
\nand those Legislatures neither possessed the residuary power of legislation nor did the
\nState List, List II, include ‘Amendment of the Constitution’ as a subject of legislative
\npower. Finally, the power to legislate under Article 245 is “subject to the provisions of
\nthis Constitution”, so that under the residuary power, no amendment could be made to
\nany part of the Constitution, as any amendment is bound, to some extent, to be
\ninconsistent with the article to be amended.\n<\/p>\n
2138. Having located the amending power in Article 368 and having excluded the
\nargument that it can be traced to Entry 97 of List I, it becomes necessary to determine the
\nwidth and scope of that power. Is the power unfettered and absolute or are there any
\nlimitations-express, implied or inherent on its exercise?\n<\/p>\n
2139. Counsel for the petitioner urges : (1) That the word ‘amendment’ is not a term of art
\nand has no precise and definite, or primary and fundamental, meaning; (2) That Article
\n368 carries vital implications by its very terms and there is inherent evidence in that
\nArticle to show chat in the context thereof the word ‘amendment’ cannot cover alterations
\nin, damage to, or destruction of any of the essential features of the Constitution; (3) That
\nArticle 13(2) by taking in Constitutional amendments constitutes an express limitations
\non the power of amendment; (4) That there are implied and inherent limitations on the
\namending power which disentitle Parliament to damage or destroy any of the essential
\nfeatures, basic elements or fundamental principles of the Constitution; and (5) That in
\nconstruing the ambit of the amending power, the consequences on the power being held
\nto be absolute and unfettered must be taken into account. Counsel says that Article 368
\nshould not be read as expressing the death-wish of the Constitution or as being a
\nprovision for its legal suicide. Parliament, he says, cannot arrogate to itself, under Article
\n368, the role of an Official Liquidator of the Constitution. Each of these propositions is
\ndisputed by the Respondents as stoutly as they were asserted.\n<\/p>\n
2140. ‘Amendment’ is undoubtedly not a term of art and the various dictionaries, texts
\nand law lexicons cited before us show that the word has several shades of meaning. (Sec
\nfor example the meanings given in The Shorter Oxford English Dictionary on historical
\nPrinciples, 3rd Ed.; Webster’s Third New International Dictionary of the English
\nLanguage; The Random House Dictionary of the English Language; The Dictionary of
\nEnglish Law, Earl Jowitt; Judicial and Statutory Definitions of Words and Phrases,
\nSecond Series; Words and Phrases legally defined, John B. Saunders; Wharton’s Law
\nLexicon, 14 Ed.; Words and Phrases Permanent Edition; and The Construction of Statutes
\nby Earl T. Crawford.)
\n2141. Some of the American State Supreme Courts have taken the view that the term
\n‘amendment’ implies such an addition or change within the lines of the original
\ninstrument as will effect an improvement, or better carry out the purpose for which it was
\nframed. (See Livermore v. Waite (1894) 102 Cal. 113; McFadden v. Jordan 32, Cal. 2d.
\n330; Foster v. Evatt 144, Ohio St. 65). Another line of decisions, again of the American
\nState Supreme Court, has accepted a wider meaning of the word ‘amendment’ so as to
\ninclude within it even a ‘revision’ of a Constitutional document. (See Edwards v. Lesseur,
\nSouthwestern Reporter, Vol. 33, p. 1120; Ex Parte Dillon, Federal Reporter No. 262, p.
\n563; Staples v. Gilmer, American Law Reports Annotated, Vol. 158, p. 495).
\n2142. In brief, it would be correct to say that at least three different meanings have been
\ngenerally given to the word ‘amendment’:\n<\/p>\n
(a) to improve or better; to remove an error;\n<\/p>\n
(b) to make changes which may not improve the instrument but which do
\nnot alter, damage or destroy the basic features, essential elements or
\nfundamental principles of the instrument sought to be amended; and\n<\/p>\n
(c) to make any changes whatsoever.\n<\/p>\n
2143. These texts and authorities are useful in that they bring a sense of awareness of the
\nconstructional difficulties involved in the interpretation of a seemingly simple word like
\n‘amendment’. But enriched by such awareness, we must in the last analysis go to our own
\norganic document for determining whether the word ‘amendment’ in Article 368 is of an
\nambiguous and uncertain import.\n<\/p>\n
2144. The various shades of meaning of the word ‘amendment’ may apply differently in
\ndifferent contexts, but it seems to me that in the context in which that word occurs in
\nArticle 368, it is neither ambiguous nor amorphous, but has a definite import.
\n2145. The proviso to Article 368 furnishes intrinsic evidence to show that the word
\n‘amendment’ is used in that article not in a narrow and insular sense but is intended to
\nhave the widest amplitude. Article 368 provides that “An amendment of this Constitution
\nmay be initiated only by the introduction of a Bill for the purpose in either House of
\nParliament”, and after the Bill is passed by the prescribed majority, “the Constitution
\nshall stand amended in accordance with the terms of the Bill”. The proviso says that the
\namendment shall also require to be ratified by the State legislatures of not less than one-
\nhalf of the States if “such amendment seeks to make any change in” the matters
\nmentioned in Clauses (a) to (e) of the proviso. “Such amendment” obviously means
\n‘amendment’ referred to in the main body of Article 368 and thus the article itself
\nenvisages that the amendment may take the form of ‘change’. There is in this case a
\ndictionary at every corner for every word and we were referred to various meanings of
\n‘change’ also. It is enough to cite the meaning of the word from the Oxford English
\nDictionary (Vol. I, p. 291): “Change: substitution…of one thing for another. Alteration in
\nthe state or quality of any thing”. Webster’s 3rd New International Dictionary Vol. III pp.
\n373-4, gives the same meaning. It is clear beyond doubt that ‘change’ does not mean only
\n‘such an addition…within the lines of the original instrument as will effect an
\nimprovement or better carry out the purpose for which it was framed’.
\n2146. Paragraph 7 of Part D of the Fifth Schedule and paragraph 21 of the Sixth Schedule
\nalso furnish similar proof of the meaning of the word ‘amendment’. These two paragraphs
\nprovide for amendment of the respective Schedules in identical terms:
\nAmendment of the Schedule.-(1) Parliament may from time to time by law
\namend by way of addition, variation or repeal any of the provisions of this
\nSchedule and, when the Schedule is so amended, any reference to this
\nSchedule in this Constitution shall be construed as a reference to such
\nSchedule as so amended.\n<\/p>\n
(2) No such law as is mentioned in sub-paragraph (1) of this paragraph
\nshall be deemed to be an amendment of this Constitution for the purposes
\nof Article 368.\n<\/p>\n
2147. Two things emerge from these provisions of Paragraphs 7 and 21 of the Fifth and
\nSixth Schedules. Firstly, that the concept of “amendment” as shown by Clause (1) takes
\nin “addition, variation or repeal” and secondly, that an amendment even by way of
\n“addition, variation or repeal” would fall within the terms of Article 368. It is expressly
\nexcepted from the scope of that article so that it may not fall within it, which it otherwise
\nwould.\n<\/p>\n
2148. The expression ‘amendment’ was used in a large number of articles of the
\nConstitution as originally enacted: Articles 4(1)(2), 108(4), 109(3)(4), 111, 114(2),
\n169(2), 196(2), 198(3) and (4), 200, 201, 204(2), 207(1)(2)(3), 240(2), 274(1), 304(b) and\n<\/p>\n
349. A reference to the content and the subject matter of these articles would show that in
\nalmost every one of the cases covered by these articles, ‘amendment’ would be by way of
\naddition, variation or repeal.\n<\/p>\n
2149. In several provisions of the original Constitution, different expressions were used
\nto indicate conferment of the amending power. Article 35(b) called it “altered, repealed,
\namended”; Article 243(1) described it as “repeal or amend”. The proviso to Article 254(2)
\ndescribed it as “adding to, amending, varying Or repealing”; and Article 392(1) used the
\nexpression “such adaptations, whether by way of modification, addition or omission”.
\nThe English language has a rich vocabulary and there are such nice and subtle differences
\nin the shades of meaning of different words that it is said that there are, in that language,
\nno synonyms. But I find it impossible to believe that the various expressions enumerated
\nabove have behind them any calculated purpose or design. Their use may easily, though
\nwith a little generosity, be attributed to a common failing to attain elegance of language.
\nReading more than meets the eye tends to visit the writing with the fate reserved for the
\npoems of Sir Robert Browning. When he wrote them, two persons knew what they meant\n<\/p>\n
– he and the God. After hearing the critics, God alone knew what the poet intended:
\n2150. Constitutions of several countries of the world show the words ‘amendment’,
\n‘alteration’, ‘revision’ and ‘change’ are used promiscuously. The Constitutions of Liberia,
\nTrinidad and Tobago show that there is no difference in meaning between ‘amendment’
\nand ‘alteration’. Those of Somalia, Jordan, Kuwait, Lebanon, and the Vietnam
\nDemocratic Republic show that there is no difference between ‘amendment’ and ‘revision’.
\nThe Constitution of Belgium shows that the words ‘revision’ and ‘alteration’ are used in
\nthe same sense. The Constitution of Barundi shows that ‘amendment’ denotes ‘change’.
\nThe Constitutions of Monaco, Costa Rica, Cuba and Nicaragua show that ‘amendment’
\ncan be total or partial.\n<\/p>\n
2151. Dr. D. Conrad says of Article 368, in “Limitation of Amendment Procedures and
\nthe Constituent Power” that “it is hardly possible to restrict the legal meaning of
\namendment to ‘improvement’, nor can it be denied that by amendment complete articles
\nmay be removed or replaced”. The author is justified in this view. The Indian
\nConstitution is neither the first written Constitution of the world nor of course the last.
\nSince the time that the first written Constitution, namely the American Constitution was
\nframed in 1787 until today, the expression ‘amendment’ is known to occur at least in 57
\nConstitutions out of 71. It is inconceivable that the power of changing a written
\ninstrument of fundamental importance would be so expressed for so long and in the
\nConstitutions of so many countries, if the word ‘amendment’ was of doubtful import.
\n2152. On August 21, 1946, the Constituent Assembly passed the Government of India
\n(Third Amendment) Act, 1949, which substituted a new Section 291 in the Government
\nof India Act, 1935 giving to the Governor General the power to make such amendments
\nas he considered necessary, whether by way of “addition, modification or repeal” in
\ncertain provisions. Shortly thereafter, that is, on September 17, 1949, the Constituent
\nAssembly debated Article 304 corresponding to present Article 368, using the word
\n‘amendment’ simpliciter. In the debate on Article 304 amendment No. 3239 moved by
\nShri H.V. Kamath which sought to introduce in that article the words “whether by way of
\nvariation, addition or repeal” was rejected.\n<\/p>\n
2153. I am unable to read in this legislative history an inference that the word
\n‘amendment’ was used in Article 304 in order to curtail the scope of the amending power.
\nIt is significant that the Government of India (Third Amendment) Act, 1939 was
\ndescribed in its title as an “Act to further amend the G.I. Act 1935” and the Preamble
\nstated that it was expedient to amend the Government of India Act, 1935. By Section 4
\nthe old Section 291 was “repealed” totally and the new Section 291 was “substituted”. By
\nSection 3 a new sub-section was “inserted”. By Section 5 a new item was “substituted”
\nand totally new itmes Nos. 31B and 31C were “inserted”. The Act of 1949 therefore
\nleaves no room for doubt that the word ‘amend’ included the power of addition, alteration
\nand repeal. Apart from this it is well recognized that the use of different words does not
\nnecessarily produce a change in the meaning. (See Maxwell ‘Interpretation of Statutes’
\n12th Ed., pp. 286 to 289; State of Bombay v. Heman Alreja A.I.R.<\/a> 1952 Bom. 16, 20 per
\nChagla C.J. and Gajendragadkar J.).\n<\/p>\n
2154. Finally, it is important that 5 out of the 11 Judges in the Golak Nath case took the
\nview that the word ‘amendment’ must be given a wide meaning. The leading majority
\njudgment did not consider that question on the ground that so far as Fundamental Rights
\nwere concerned, the question could be answered on a narrower basis. Ramaswami J. also
\ndid not consider the meaning of the word ‘amendment’. However, Wanchoo J. who
\ndelivered the leading minority judgment, Hidayatullah J. and Bachawat J. took the view
\nthat the word must be given a wide meaning. According to Hidayatullah J., “By an
\namendment new matter may be added, old matter removed or altered”.
\n2156. Thus the word ‘amendment’ in Article 368 has a clear and definite import and it
\nconnotes a power of the widest amplitude to make additions, alterations or variations.
\nThe power contained in Article 368 to amend the Constitution is indeed so wide that it
\nexpressly confers a power by Clause (e) of the proviso to amend the amending power
\nitself. No express restraint having been imposed on the power to amend the amending
\npower, it is unnecessary to seek better evidence of the width of the power of amendment
\nunder our Constitution.\n<\/p>\n
2157. Article 368, manifestly, does not impose any express limitations. The reason for
\nthis is obvious. The power of amendment is in substance and reality a power to clarify the
\noriginal intention obscured, for example, by limitations of language and experience, so as
\nto adjust the intention as originally expressed to meet new challenges. As a nation works
\nout its destiny, new horizons unfold themselves, new challenges arise and therefore new
\nanswers have to be found. It is impossible to meet the new and unforeseen demands on
\nthe enervated strength of a document evolved in a context which may have largely lost its
\nrelevance. The power of amendment is a safety valve and having regard to its true nature
\nand purpose, it must be construed as being equal to the need for amendment. The power
\nmust rise to the occasion. According to Friedrich Constitutional Government &
\nDemocracy, 4th Ed. p. 139, “The constituent power bears an intimate relation to
\nrevolution. When the amending provisions fail to work in adjusting the Constitutional
\ndocument to altered needs, revolution may result.” That is why, the rule of strict
\nconstruction which applies to a penal or taxing statute is out of place in a Constitutional
\nAct and a ‘construction most beneficial to the widest possible amplitude” of its powers
\nmust be adopted British Coal Corporation v. Rex 1935 (A.C.) 500, 518.
\n2158. If, on the terms of Article 368 the power of amendment is wide and unfettered,
\ndoes Article 13(2) impose any restraint on that power? Hereby hangs a tale. A majority of
\nJudges held in the Golak Nath case that the power of amendment was to be traced to
\nArticle 368. But a majority, differently composed, held that amendment of the
\nConstitution was ‘law’ within the meaning of Article 13(2) and, therefore, the Parliament
\nhad no power to take away or abridge the rights conferred by Part III of the Constitution.
\nThis finding contained in the judgment of the leading majority and of Hidayatullah J. is
\nthe nerve of the decision in the Golak Nath case. It is therefore necessary to consider that
\nquestion closely.\n<\/p>\n
2159. I will set out in juxtaposition Articles 13(2), 245 and 368 in order to highlight their
\ninter-relation:\n<\/p>\n
Article 13(2) Article 245 Article 368 The State shall Subject to the
\nAmendment of this not make any Provisions of Constitution may be law
\nwhich takes this Constitution initiated only by the away or abridges
\nParliament may make introduction of a Bill the rights conferred laws
\nfor the whole for the purpose in by this part. or any part of the
\neither House of parliament, territory of India. and when the Bill, is
\npassed each House by a majority of not less than two thirds of that
\nHouse present and voting, it shall be presented to the Emphasis
\nsupplied) president for his assent and upon such assent being given to
\nthe Bill, the Constitution shall stand amended in accordance with the
\nterms of the Bill.\n<\/p>\n
Article 13(2) clearly echoes the language of Article 245. Article 245 gives the power to
\n‘make laws’, while Article 13(2) imposes a limitation on the exercise of the power to
\n‘make laws’. As between the two articles, Article 13(2) is the paramount law for, Article
\n245 is expressly subject to all the provisions of the Constitution including Article 13(2).
\n2160. Article 368 avoids with scrupulous care the use of the word ‘law’, because there is a
\nfundamental distinction between Constitutional law and ordinary law. The term
\n‘Constitutional law’ is never used in the sense of including the laws made under the
\nConstitution. (See Jennings-The Law and the Constitution, 5th Ed., pp. 62-65).
\nConstitutional law is the fundamental, superior or paramount law. Its authority and
\nsanction are higher than those of ordinary laws. (Encyclopaedia Britannica, Vol. VI,
\nConstitution and Constitutional Law, p. 314). As stated by Dicey in his ‘Introduction to
\nthe study of the Law of the Constitution’ (10th Ed.,) pp. 149-151), the legislature in a
\nfederal Constitution is a subordinate law-making body whose laws are in the nature of
\nbye-laws within the authority conferred by the Constitution.
\n2161. Articles 3, 4, 169, Paragraph 7 of the Fifth Schedule and Paragraph 21 of the Sixth
\nSchedule emphasises an important aspect of the distinction between Constitutional law
\nand ordinary law. What is authorised to be done by these provisions would normally fall
\nwithin the scope of Article 368. In order however to take out such matters from the scope
\nof that article and to place those matters Within the ordinary legislative sphere, special
\nprovisions are made in these articles that any laws passed thereunder shall not be deemed
\nto be an amendment of the Constitution for the purposes of Article 368.
\n2162. Article 13(1) provides:\n<\/p>\n
Laws inconsistent with or in derogation of the fundamental rights.-(1) All
\nlaws in force in the territory of India immediately before the
\ncommencement of this Constitution, in so far as they are in consistent with
\nthe provisions of this Part shall, to the extent of such inconsistency, be
\nvoid.\n<\/p>\n
This article deals with the effect of inconsistency between the provisions of Part III and
\nthe pre-Constitution laws and provides that to the extent of such inconsistency the pre-
\nConstitution laws shall be void Article 13(2) pursues the same strain of thought by
\nmaking void postConstitution laws to the extent of their inconsistency with the provisions
\nof Part III. The pre-Constitution and the post-Constitution laws dealt with by the two
\nclauses of Article 13 are in nature and character identical. They are ordinary laws as
\ndistinguished from Constitutional laws.\n<\/p>\n
2163. Counsel for the petitioner urged that Article 395 of the Constitution repealed only
\nthe Indian Independence Act, 1947 and the Government of India Act of 1935 and under
\nArticle 372, notwithstanding the repeal of these two enactments, all the laws in force in
\nthe territory of India immediately before the commencement of the Constitution
\ncontinued in force until altered, repealed or amended. It is urged that several
\nConstitutional laws of the then Indian States were in force on the 26th January, 1950 and
\nthe object of Article 13(1) was partly to save those laws also. There is no substance in
\nthis contention. It is in the first place a proposition of doubtful authority that the Indian
\nStates had a Constitution properly so-called. But even assuming that such Constitutions
\nwere at one time in force, they would cease to be in operation as Constitutional Laws on
\nthe integration of the States with the Indian Union. Article 13(1) therefore does not
\ninclude any Constitutional laws.\n<\/p>\n
2164. Article 13(3)(a) contains an inclusive definition of ‘law’ as including any
\nOrdinance, order bye-law, rule regulation, notification, custom or usage having in the
\nterritory of India the force of law. It is surprising that the necessity to include
\namendments of the Constitution within the inclusive definition of ‘law’ should have been
\noverlooked if indeed Article 13(2) was intended to take in Constitutional amendments.
\nThere is high and consistent authority for the view that Constitution is the fundamental or
\nbasic law, and that it is a law of superior obligation to which the ordinary law must
\nconform. (Corpus Juris Secundum, Vol. 16, pp. 22-25; Weaver-Constitutional Law and
\nits Administration (1946) p. 3; Burgess-Political Science and Constitutional Law, Vol. 1,
\npp. 145-146). Unless, therefore, Constitutional law was expressly included in Article
\n13(3)(a), it would fall outside the purview of Article 13(2).\n<\/p>\n
2165. In America, there is a large volume of authority that the legislatures of the various
\nStates, in initiating Constitutional amendments do not exercise ordinary legislative
\npower. This distinction is brought out clearly by saying that in relation to the federal
\nConstitution of America, a State Constitutional provision or amendment is ‘law’ within
\nthe meaning of the federal Constitution. Again, when under Article V of the Constitution
\nthe Congress makes a proposal for amendment and the States ratify it, neither the
\nCongress nor the States are legislating. (Corpus Juris Secundum, Vol. 16, pp. 48, 49;
\nCharles R. Burdick-The Law of the American Constitution, pp. 40-42).
\n2166. The fundamental distinction between Constitutional law and ordinary law lies in
\nthe criterion of validity. In the case of Constitutional law, its validity is inherent whereas
\nin the case of an ordinary law its validity has to be decided on the touchstone of the
\nConstitution, With great respect, the majority view in Golak Nath case, did not on the
\nconstruction of Article 13(2), accord due importance to this essential distinction between
\nlegislative power and the constituent power. In a controlled Constitution like ours,
\nordinary powers of legislatures do not include the power to amend the Constitution
\nbecause the Body which enacts and amends the Constitution functions in its capacity as
\nthe Constituent Assembly. The Parliament performing its functions under Article 368
\ndischarges those functions not as a Parliament but in a constituent capacity.
\n2167. There is a fundamental distinction between the procedure for passing ordinary laws
\nand the procedure prescribed by Article 368 for affecting amendments to the
\nConstitution. Under Article 368, a bill has to be initiated for the express purpose of
\namending the Constitution, it has to be passed by each House by not less than two-thirds
\nmembers present and voting and in cases falling under the proviso, the amendment has to
\nbe ratified by the legislatures of not less than half the States. A bill initiating an ordinary
\nlaw can be passed by a simple majority of the members present and voting at the sitting
\nof each House or at a joint sitting of the two Houses. Article 368 does not provide for a
\njoint sitting of the two Houses. The process of ratification by the States under the Proviso
\ncannot possibly be called an ordinary legislative process for, the ratification is required to
\nbe made by “resolutions” to that effect. Ordinary bills are not passed by resolutions.
\n2168. The distinction between constituent power and ordinary legislative power can best
\nbe appreciated in the context of the nature of the Constitution which the court has to
\ninterpret in regard to the amending power. In McCawley v. The King [1920] A.C. 691,
\nLord Birkenhead used the words ‘controlled’ and ‘uncontrolled’ for bringing about the
\nsame distinction which was made between ‘rigid’ and ‘flexible’ Constitution first by Bryce
\nand then by Dicey. In a ‘controlled’ or ‘rigid’ Constitution, a different procedure is
\nprescribed for amendming the Constitution than the procedure prescribed for making
\nordinary laws.\n<\/p>\n
2169. In an ‘uncontrolled’ or ‘flexible’ Constitution the procedure for amending the
\nConstitution is same as that for making ordinary laws. In such a Constitution, the
\ndistinction between Constitutional laws and ordinary laws tends to become blurred
\nbecause any law repugnant to the Constitution repeals the Constitution pro tanto
\n[McCawley v. The King [1920] A.C. 691].\n<\/p>\n
2170. Thus, the true ground of division, by virtue of the nature of the Constitution, is
\nwhether it is flexible or rigid. That depends upon whether the process of Constitutional
\nlaw-making is or is not identi cal with the process of ordinary law-making. A typical
\ninstance of a flexible Constitution is that of the United Kingdom. The Constitution of the
\nformer Kingdom of Italy was also flexible, so flexible indeed, that Mussolini was able
\nprofundly to violate the spirit of the Constitution without having to denounce it. The
\nConstitution of the United States is rigid, as it cannot be amended without the special
\nmachinery being set in motion for that purpose. “In short, then, we may say that the
\nConstitution which cannot be bent without being broken is a rigid Constitution.” (See
\nModern Political Constitutions : an Introduction to the Comparative Study of Their
\nHistory and Existing Form by C.F. Strong, 1970 Reprint). The Indian Constitution,
\nconsidered as a whole is a ‘controlled’ or ‘rigid’ Constitution, because, broadly, none of
\nthe articles of that Constitution can be amended otherwise than by the special procedure
\nprescribed by Article 368. Certain provisions thereof like Article 4 read with Articles 2
\nand 3, Article 169, para 7 of the Fifth Schedule and para 21 of the Sixth Schedule confer
\npower to amend the provisions of the Constitution by the ordinary law-making process
\nbut these amendments are expressly excepted by the respective provisions from the
\npurview of Article 368. Schedules V and VI of the Constitution are in fact a Constitution
\nwithin a Constitution.\n<\/p>\n
2171. The distinction between ‘flexible’ and ‘rigid’ Constitutions brings into sharp focus
\nthe true distinction between legislative and constituent power. This is the distinction
\nwhich, with respect, was not given its due importance by the majority in the Golak Nath
\ncase. In a rigid Constitution, the power to make laws is the genus, of which the legislative
\nand constituent powers are species, the differentia being the procedure for amendment. If
\nthe procedure is ordinary, the power is legislative; if it is special, the power is constituent.
\n2172. This discussion will show that in a rigid’ or ‘uncontrolled’ Constitution-like ours-a
\nlaw amending the Constitution is made in exercise of a constituent power and partakes
\nfully of the character of Constitutional law. Laws passed under the Constitution, of which
\nthe validity is to be tested on the anvil of the Constitution are the only laws which fall
\nwithin the terms of Article 13(2).\n<\/p>\n
2173. The importance of this discussion consists in the injunction contained in Article
\n13(2) that the State shall not make any ‘law’ which takes away or abridges the rights
\nconferred by Part III. An Amendment of Constitution within the terms of Article 368 not
\nbeing law within the meaning of Article 13(2), it cannot become void on the ground that
\nit takes away or abridges the rights conferred by Part III.\n<\/p>\n
2174. Fundamental Rights undoubtedly occupy a unique place in civilized societies,
\nwhether you call them “transcendental”, “inalienable”, or as Lieber called them,
\n“Primordial”. There is no magic in these words for, the strength and importance of these
\nrights is implicit in their very description in the Constitution as “fundamental”. But the
\nspecial place of importance which they occupy in the scheme of the Constitution, cannot
\nby itself justify the conclusion that they are beyond the reach of the amending power.
\nArticle 13(2) clearly does not take in the amending power and Article 368 does not
\nexcept the Fundamental Rights from its scope.\n<\/p>\n
2175. But they cannot be tinkered with and the Constitution has taken care to ensure that
\nthey do not become a mere ‘plaything’ of a special majority. Members of the Lok Sabha
\nare elected on adult universal suffrage by people of the States. Whereas, ordinary laws
\ncan be passed by a bare majority of those present, Constitutional amendments are
\nrequired to be passed under Article 368 by a majority of the total membership of each
\nHouse and by a majority of not less than two-thirds of the members of each House
\nseparately present and voting. In matters falling within the proviso, amendments are also
\nrequired to be ratified by the Legislatures of not less than half of the States. Rajya Sabha,
\nunlike the Lok Sabha, is a perpetual body, which changes one-third of its membership
\nevery two years. Members of the Rajya Sabha are elected by Legislative Assemblies of
\nthe States, that is, by those who are directly elected by the people themselves. The mode
\nof election to Rajya Sabha constitutes to some extent an insurance against gusts and
\nwaves of public opinion.\n<\/p>\n
2176. I will now proceed to consider an important branch of the petitioner’s argument
\nwhich, frankly, seemed to me at first sight plausible. On closer scrutiny, however, I am
\ninclined to reject the argument. It is urged by the learned Counsel that it is immaterial
\nwhether the amending power can be found in Article 368 or in Entry 97 of List I, because
\nwherever that power lies, its exercise is subject to inherent and implied limitations.
\n2177. The argument takes this form : Constitutions must of necessity be general rather
\nthan detailed and prolix, and implication must therefore play an important part in
\nConstitutional construction. Implied limitations are those which are implicit in the
\nscheme of the Constitution while inherent limitations are those which inhere in an
\nauthority from its very nature, character and composition. Implied limitations arise from
\nthe circumstances and historical events which led to the enactment of our Constitution,
\nwhich represents the solemn balance of rights between citizens from various States of
\nIndia and between various sections of the people. Most of the essential features of the
\nConstitution are basic Human Rights, sometimes described as “Natural Rights”, which
\ncorrespond to the rights enumerated in the “Universal Declaration of Human Rights”, to
\nwhich India is a signatory. The ultimate sovereignty resides in the people and the power
\nto alter or destory the essential features of a Constitution is an attribute of that
\nsovereignty. In Article 368, the people are not associated at all with the amending
\nprocess. The Constitution gives the power of amendment to the Parliament which is only
\na creature of the Constitution. If the Parliament has the power to destroy the essential
\nfeatures it would cease to be a creature of the Constitution, the Constitution would cease
\nto be supreme and the Parliament would become supreme over the Constitution. The
\npower given by the Constitution cannot be construed as authorising the destruction of
\nother powers conferred by the same instrument. If there are no inherent limitations on the
\namending power of the Parliament, that power could be used to destroy the judicial
\npower, the executive power and even the ordinary legislative power of the Parliament and
\nthe State legislatures. The Preamble to our Constitution which is most meaningful and
\nevocative, is beyond the reach of the amending power and therefore no amendments can
\nbe introduced into the Constitution which are inconsistent with the Preamble. The
\nPreamble walks before the Constitution and is its identity card.
\n2178. Counsel has made an alternative submission that assuming for purposes of
\nargument that the power of amendment is wide enough to reach the Fundamental Rights,
\nit cannot be exercised so as to damage the core of those rights or so as to damage or
\ndestory the essential features and the fundamental principles of the Constitution. Counsel
\nfinally urges that the history of implied and inherent limitations has been accepted by the
\nhighest courts of countries like U.S.A., Canada, Australia and Ireland. The theory is also
\nsaid to have been recognised by this Court, the Federal Court and the Privy Council.
\n2179. In answer to these contentions, it was urged on behalf of the respondents that there
\nis no scope for reading implied or inherent limitations on the amending power, that great
\nuncertainty would arise in regard to the validity of Constitutional amendment if such
\nlimitations were read on the amending power, that the Preamble is a part of the
\nConstitution and can be amended by Parliament, that there is in our Constitution no
\nrecognition of basic human or natural rights and that the consensus of world opinion is
\nagainst the recognition of inherent limitations on the amending power.
\n2180. Before dealing with these rival contentions, I may indicate how the argument of
\ninherent limitations was dealt with in the Golak Nath case. Subba Rao C.J. who delivered
\nthe leading majority judgment said that there was considerable force in the argument but
\nit was unnecessary to decide it (p. 805). According to Hidayatullah J. “the whole
\nConstitution is open to amendment. Only two dozen articles are outside the reach of
\nArticle 368. That too because the Constitution has made them fundamental.” (p. 878).
\nWanchoo J. who delivered the leading minority judgment rejected the argument by
\nobserving : “The power to amend being a constituent power cannot in our opinion…be
\nheld subject to any implied limitations thereon on the ground that certain basic features of
\nthe Constitution cannot be amended.” (p. 836). Bachawat J. observed that it was
\nunnecessary to decide the question, as it was sufficient for the disposal of the case to say
\nthat Fundamental Rights were within the reach of the amending power (p. 906).
\nRamaswami J. considered and rejected the argument by observing that there was no room
\nfor an implication in the construction of Article 368 and it was unlikely that if certain
\nbasic features were intended to be unamendable, the Constitution makers would not have
\nexpressly said so in Article 368 .\n<\/p>\n
2181. It is difficult to accept the argument that inherent limitations should be read into the
\namending power on the ground that Fundamental Rights are natural rights which inhere
\nin every man. There is instrinsic evidence in Part III of the Constitution to show that the
\ntheory of natural rights was not recognised by our Constitution-makers. Article 13(2)
\nspeaks of rights “conferred” by Part III and enjoins the States not to make laws
\ninconsistent therewith. Article 32 of the Constitution says that the right to move the
\nSupreme Court for the enforcement of rights ‘conferred’ by Part III is guaranteed. Before
\nthe Fundamental Rights were thus conferred by the Constitution, there is no tangible
\nevidence that these rights belonged to the Indian people. Article 19 of the Constitution
\nrestricts the grant of the seven freedoms to the citizens of India. Non-citizens were denied
\nthose rights because the conferment of some of the rights on the Indian citizens was not
\nin recognition of the pre-existing natural rights. Article 33 confers upon the Parliament
\nthe power to determine to what extent the rights conferred by Part III should be restricted
\nor abrogated in their application to the members of the Armed Forces. Article 359(1)
\nempowers the President to suspend the rights “conferred” by Part III during the
\nproclamation of an emergency. Articles 25 and 26 by their opening words show that the
\nright to freedom of religion is not a natural right but is subject to the paramount interest
\nof society and that there is no part of that right, however important, which cannot and in
\nmany cases has not been regulated in civilised societies. Denial to a section of the
\ncommunity, the right of entry to a place of worship, may be a part of religion but such
\ndenials, it is well-known, have been abrogated by the Constitution. (1958 S.C.R. 895 at
\n919, per Venkatarama Aiyar J.; Sri Venkataramana Devaru and Ors. v. The State of
\nMysore and Ors. see also Bourne v. Keane 1919 A.C. 815 at 861 per Lord Birken-head
\nL.C.). Thus, in India, citizens and non-citizens possess and are entitled to exercise certain
\nrights of high significance for the sole reason that they are conferred upon them by the
\nConstitution.\n<\/p>\n
2182 The ‘natural right’ theory stands, by and large repudiated today. The notion that
\nsocieties and governments find their sanction on a supposed contract between
\nindependent individuals and that such a contract is the sole source of political obligation
\nis now regarded as untenable. Calhoun and his followers have discarded this doctrine,
\nwhile theorists like Story have modified it extensively. The belief is now widely held that
\nnatural rights have no other than political value. According to Burgess, “there never was,
\nand there never can be any liberty upon this earth among human beings, outside of State
\norganisation.” According to Willoughby, natural rights do not even have a moral value in
\nthe supposed “state of nature”; they would really be equivalent to force and hence have
\nno political significance. Thus, Natural Right thinkers had once “discovered the lost title-
\ndeeds of the human race” but it would appear that the deeds are lost once over again,
\nperhaps never to be resurrected.\n<\/p>\n
2183. The argument in regard to the Preamble is that it may be a part of the Constitution
\nbut is not a provision of the Constitution and therefore, you cannot amend the
\nConstitution so as to destroy the Preamble. The Preamble records like a sun-beam certain
\nglowing thoughts and concepts of history and the argument is that in its very nature it is
\nunamendable because no present or future, however mighty, can assume the power to
\namend the true facts of past history. Counsel relies for a part of this submission on the
\ndecision in Beru Ban case [1960] 3 S.C.R. 250, 282. Our attention was also drawn to
\ncertain passages from the chapter on “preamble” in “commentaries on the Constitution of
\nthe United States” by Joseph Story.\n<\/p>\n
2184. I find it impossible to accept the contention that the Preamble is not a provision of
\nthe Constitution. The record of the Constituent Assembly leaves no scope for this
\ncontention. It is transparent from the proceedings that the Preamble was put to vote and
\nwas actually voted upon to form a part of the Constitution. (Constituent Assembly
\nDebates, Vol. X, pp. 429, 456). As a part and provision of the Constitution, the Preamble
\ncame into force on January 26, 1950. The view is widely accepted that the Preamble is a
\npart of the enactment (Craies on Statute Law, 7th Ed., p. 201; Halsbury, Vol. 36, 3rd. Ed.,
\np. 370).\n<\/p>\n
2185. In considering the petitioner’s argument on inherent limitations, it is well to bear in
\nmind some of the basic principles of interpretation. Absence of an express prohibition
\nstill leaves scope for the argument that there are implied or inherent limitations on a
\npower, but absence of an express prohibition is highly relevant for inferring that there is
\nno implied prohibition. This is clear from the decision of the Privy Council in The Queen
\nv. Burah 5 I.A. 178, 195. This decision was followed by this Court in State of Bombay v.
\nNauratan Das Jaitha Bai 1951 (2) S.C.R. 51, 81 and in Sardar Inder Singh v. State of
\nRajasthan 1957 S.C.R. 605, 616-17. In saying this, I am not unmindful of the fact that
\nBurah’s case and the two cases which followed it, bear primarily on conditional
\nlegislation.\n<\/p>\n
2186. Another principle of interpretation is that it is not open to the courts to declare an
\nAct void on the ground that it is opposed to a ‘spirit’ supposed to pervade the Constitution
\nbut not manifested in words. As observed by Kania C.J. in Gopalan’s case 1950 S.C.R.
\n88, 121, a wide assumption of power to construction is apt to place in the hands of
\njudiciary too great and to indefinite a power, either for its own security or the protection
\nof private rights. The argument of ‘spirit’ is always attractive and quite some eloquence
\ncan be infused into it. But one should remember what S.R. Das J. said in Keshav Madhav
\nMenon’s case 1951 S.C.R. 228, 231 that one must gather the spirit from the words or the
\nlanguage used in the Constitution. I have held that the language of Article 368 is clear
\nand explicit. In that view, it must be given its full effect even if mischievous
\nconsequences are likely to ensue; for, judges are not concerned with the policy of law-
\nmaking and “you cannot pass a covert censure against the legislature.” (Vacher & Sons,
\nLimited v. London Society of Compositors) 1913 (A.C.) 107 at 112, 117, 121. The
\nimportance of the circumstance that the language of Article 368 admits of no doubt or
\nambiguity is that such a language leaves no scope for implications, unless in the context
\nof the entire instrument in which it occurs, such implications become compulsive. I am
\ntempted to say that ‘context’ does not merely mean the position of a word to be construed,
\nin the collocation of words in which it appears, but it also means the context of the times
\nin which a fundamental instrument falls to be construed.\n<\/p>\n
2187. An important rule of interpretation which, I think, has a direct bearing on the
\nsubmissions of the petitioner on inherent limitations is that if the text is explicit, it is
\nconclusive alike in what it directs and what it forbids. The consequences of a particular
\nconstruction, if the text be explicit, can have no impact on the construction of a
\nConstitutional provision (Attorney-General, Ontario v. Attorney-General, Canada) [1892]
\nA.C. 571. As observed by Chief Justice Marshall in Providence Bank v. Alpheus Billings
\nL. ed. 939, 957 a power may be capable of being abused but the Constitution is not
\nintended to furnish a corrective for every abuse of power which may be committed by the
\ngovernment I see no warrant for the assumption that the Parliament will be disposed to
\nout a perverse construction on the powers plainly conferred on it by the Constitution. And
\ntalking of abuse of powers, is there not the widest scope for doing so under several
\nprovisions of the Constitution ? The powers of war and peace, the powers of finance and
\nthe powers of preventive detention, are capable of the widest abuse and yet the Founding
\nFathers did confer those powers on the Parliament. When I look at a provision like the
\none contained in Article 22 of the Constitution, I feel a revolt rising within myself, but
\nthen personal predilections are out of place in the construction of a Constitutional
\nprovision. Clause (7) of Article 22 permits the Parliament to enact a law under which a
\nperson may be detained for a period longer than three months without obtaining the
\nopinion of an Advisory Board. While enacting certain laws of Preventive Detention, the
\nGovernment has shown some grace in specifying the outer limits, however, uncertain, of
\nthe period of detention though, so it seems, it is under no obligation to do so. Thus, even
\nwhen the original Constitution was passed, powers capable of the gravest abuse were
\nconferred on the Parliament, which as the petitioner’s counsel says, is but a creature of the
\nConstitution. In assessing the argument that the gravity of consequences is relevant on the
\ninterpretation of a Constitutional provision, I am reminded of the powerful dissent of
\nJustice Holmes in Lochner v. New York 49 L. ed. 937 regarding a labour statute. The test
\naccording to the learned Judge was not whether he considered the law to be reasonable
\nbut whether other reasonable persons considered it unreasonable. In Bank of Toronto v.
\nLambe [1887] A.C. 575, 586 Lord Hobhous observed: “People who are trusted with the
\ngreat power of making laws for property and civil rights may well be trusted to levy
\ntaxes.” Trust in the elected representatives is the corner stone of a democracy. When that
\ntrust fails, everything fails. As observed by Justice Learned Hand in “the spirit of liberty”
\n: “I often wonder, whether we do not rest our hopes too much upon Constitution, upon
\nlaws and upon courts. These are false hopes, believe me, these are false hopes. Liberty
\nlies in the hearts of men and women; when it dies there, no Constitution, no law, no court
\ncan save it; no Constitution, no law, no court can even do much to help it. While it lies
\nthere it needs no Constitution, no law, no court to save.\n<\/p>\n
2188. Established text books on Interpretation also take the view that “where the
\nlanguage of an Act is clear and explicit, we must give effect to it, whatever may be the
\nconsequences, for in that case the words of the statute speak the intention of the
\nlegislature Craies on “Statute Law”, 6th Ed., p. 66.\n<\/p>\n
2189. It is thus clear that part from Constitutional limitations, no law can be struck down
\non the ground that it is unreasonable or unjust. That is the view which was taken by this
\nCourt in the State of Bihar v. Kameshtvar Singh 1952 S.C.R. 889, 936, 937. Mahajan J.
\nDescribed the Bihar Land Reforms Act, which was under consideration in that case, as
\nrepugnant to the sense of justice of the court. In fact, the learned Judge says in his
\njudgment that it was not seriously disputed by the Attorney-General, that the law was
\nhighly unjust and inequitous and the compensation provided therein in some cases was
\npurely illusory. The Court, however, found itself powerless to rectify an “unjustice”
\nperpetrated by the Constitution itself. No provision incorporated in a Constitution at the
\ntime of its original enactment can ever be struck down as unConstitutional. The same test
\nmust apply to what becomes a part of that Constitution by a subsequent amendment,
\nprovided that the conditions on which alone such amendments can be made are strictly
\ncomplied with. Amendments, in this sense, pulpate with the vitality of the Constitution
\nitself.\n<\/p>\n
2190. The true justification of this principle is, as stated by Subba Rao J. in the Collector
\nof Customs, Baroda v. Digvijaysinhji Spinning & Weaving Mills Ltd.,<\/a> [1962] 1 S.C.R.
\n896, 899 that a construction which will introduce uncertainty into the law must be
\navoided. It is conceded by the petitioner that the power to amend the Constitution is a
\nnecessary attribute of every Constitution. In fact, amendments which were made by the
\nConstitution (First Amendment) Act, 1951 to Articles 15 and 19 were never assailed and
\nhave been conceded before us to have been properly made. It was urged by the learned
\nCounsel that the substitution of new Clause (2) in Article 19 did not abrogate the
\nFundamental Rights, but on the other hand enabled the citizens at large to enjoy their
\nfundamental freedoms more fully. This, I think, is the crux of the matter. What counsel
\nconcedes in regard to Article 19(2) as substituted by the First Amendment Act can be
\nsaid to be equally true in regard to the amendments now under challenge. Their true
\nobject and purpose is to confer upon the community at large the blessings of liberty. The
\nargument is that the Parliament may amend the provisions of Part III, but not so as to
\ndamage or destroy the core of those rights or the core of the essential principles of the
\nConstitution. I see formidable difficulties in evolving an objective standard to determine
\nwhat would constitute the core and what the peripheral layer of the essential principles of
\nthe Constitution. I consider the two to be inseparable.\n<\/p>\n
2191. Counsel painted a lurid picture of the consequences which will ensue if a wide and
\nuntrammelled power is conceded to the Parliament to amend the Constitution. These
\nconsequences do not scare me. It is true that our confidence in the men of our choice
\ncannot completely silence our fears for the safety of our rights. But in a democratic
\npolicy, people have the right to decide what they want and they can only express their
\nwill through their elected representatives in the hope and belief that the trust will not be
\nabused. Trustees are not unknown to have committed breaches of trust but no one for that
\nreason has abolished the institution of Trusts. Can we adopt a presidential system of
\ngovernment in place of the parliamentary system? Can we become a monarchial or
\ntheocratic State ? Shall we permit the Parliament to first destroy the essential features of
\nthe Constitution and then amend the amending power itself so to as provide that in future
\nno amendment shall be made except by a 99 per cent majority? Can the Parliament
\nextend its term from 5 to 50 years and create a legislative monopoly in its favour ? These
\nare the questions which counsel has asked. My answer is simple. History records that in
\ntimes of stress, such extreme steps have been taken both by the people and by the
\nParliament. In 1640, when England was invaded by Scots, Charles the I was obliged to
\nrecall Parliament to raise money for the war. The ‘Short’ Parliament insisted on airing its
\ngrievances before voting the money and was dismissed. Charles had to summon a new
\nParliament immediately, and this ‘Long’ Parliament lasting until 1660, set out to make
\npersonal government by a monarch impossible. The true sanction against such political
\ncrimes lies in the hearts and minds of men. It is there that the liberty is insured. I
\ntherefore say to myself not in a mood of desperation, not in a mood of helplessness, not
\ncynically but in the true spirit of a democrat: If the people acting through the Parliament
\nwant to put the Crown of a King on a head they like, or if you please, on a head they
\ndislike, (for uneasy lies the head that wears a Crown), let them have that liberty. If and
\nwhen they realise the disaster brought by them upon themselves, they will snatch the
\nCrown and scatter its jewels to the winds. As I say this, I am reminded of a famous
\nsaying of Justice Holmes: “About seventy-five years ago, I learnt that I was not God. And
\nso, when the people…want to do something I can’t find anything in the Constitution
\nexpressly forbidding them to do, I say, whether I like it or not : ‘God-dammit, let ’em do it <\/p>\n
2192. No name is mentioned with greater honour in the history of American democracy
\nthan that of Thomas Jefferson. He was the central figure in the early development of
\nAmerican democracy, and on his death he was politically canonized. Jefferson said in
\nregard to the necessity of a wide amending power that “The earth belongs in usufruct to
\nthe living; the dead have neither powers nor rights over it.” “If one generation could hind
\nanother, the dead and not the living would rule. Since conditions change and men change,
\nthere must be opportunity for corresponding change in political institutions, and also for a
\nrenewal of the principle of government by consent of the governed.” According to
\nPresident Wilson, “a Constitution must of necessity be a vehicle of life; that its substance
\nis the thought and habit of the nation and as such it must grow and develop as the life of
\nthe nation changes.\n<\/p>\n
2193. In support of his argument on implied limitations, learned Counsel for the
\npetitioner drew our attention to certain decisions on the theory of immunity of
\ninstrumentalities : The means and instrumentalities of the State Governments should be
\nleft free and unimpaired. Our Court rejected this theory in State of West Bengal v. Union
\nof India<\/a> [1964] 1 S.C.R. 394, 407. Sinha C.J. observed that the argument presented
\nbefore the Court was : “a resucitation of the new exploded doctrine of the immunity of
\ninstrumentalities which originating from the observations of Marshall C.J. in Mc. Culloch
\nv. Maryland has been decisively rejected by the Privy Council…and has been practically
\ngiven up even in the United States.” The doctrine originally arose out of supposed
\nexistence of an implied prohibition that the Federal and State Governments being
\nsovereign and independent must each be free from the control of the other. Dr. Wynes
\nobserves in his book : “Legislative, Executive and Judicial Powers in Australia (4th
\nEdition)” that the doctrine has undergone considerable change in the United States and its
\nprogressive retreat is traced by Dixon J. in the Essendon Corporation case [1947] 74
\nC.L.R. 1, p. 19. In that case, after tracing the history of the doctrine since its enunciation
\nby Chief Justice Marshall, Dixon J. says : “I think that the abandonment by the Supreme
\nCourt of the United States of the old doctrine may be fairly said to be now complete.
\n2194. A large number of cases bearing on inherent or implied limitations were cited to us
\nfrom U.S.A. Canada, Australia, South-Africa and Ceylon. Having considered those cases
\ncarefully, I find it difficult to say that the theory of implied or inherent limitations has
\nreceived a wide recognition. In McCawley v. R. [1920] A.C. 691, 28 C.L.R. 106 the
\ndissenting judgment of Isaacs and Rich JJ. in the Australian High Court was upheld by
\nthe Privy Council, except in regard to a matter which is here not relevant. The judgment
\nof the two learned Judges which received high praise from the Privy Council (p. 112 of
\nCommonwealth Law Reports), shows that implications in limitation of power ought not
\nto be imported from general concepts but only from express or necessarily implied
\nlimitations. It also shows that in granting powers to colonial legislatures, the British
\nParliament, as far back as 1865, refused to place on such powers limitations of vague
\ncharacter. The decision of the Privy Council in Bribery Commissioner v. Ranasinghe
\n1965 A.C. 172 was discussed before us in great details by both the sides. The matter
\narose under the Constitution of Ceylon, of which the material provisions bear a near
\nparallel to our Constitution, a fact which, with respect, was not noticed in the judgment of
\nthe leading” majority in the Golak Nath case. It was not argued by the respondents in
\nRanasinghe’s case that any provision of the Ceylonese Constitution was unamendable. It
\nis also necessary to remember that the appeal did not raise any question regarding the
\nreligious rights protected by Section 29(2) and (3) of the Ceylonese Constitution. It is
\nclear that counsel for the respondents there stated (p. 187), that there was no limitation on
\nthe power of amendment except the procedure prescribed by Section 29(4), and that even
\nthat limitation could be removed by an amendment complying with Section 29(4). The
\nPrivy Council affirmed this position (page 198) and took the widest view of the amending
\npower. A narrower view was in fact not argued.\n<\/p>\n
2195. From out of the decisions of the American Supreme Court, it would be sufficient to
\nnotice three : Rhode Island v. Palmer 64 L. ed. 946; U.S. v. Sprague 75 L. ed. 640 and
\nSchneiderman v. U.S.A. 87 L. ed. 1796.\n<\/p>\n
2196. In the Rhode Island case, the leading majority judgment gave no reasons but only a
\nsummary statement of its conclusions. The learned Advocate-General of Maharashtra
\nhas, however, supplied to us the full briefs filed by the various counsel therein. The briefs
\nshow that the 18th amendment regarding “Prohibition of Intoxicating Liquors” (which
\nwas repealed subsequently by the 21st Amendment) was challenged on the ground, inter
\nalia, that there were implied and inherent limitations on the power of amendment under
\nArticle V of the American Constitution. These arguments were not accepted by the
\nSupreme Court, as is implicit in its decision. The court upheld the Amendment.
\n2197. We were supplied with a copy of the judgment of the District Court of New Jersey
\nin Sprague’s case. The District Court declared the 18th Amendment void on the ground
\nthat there were inherent limitations on the amending power in that, the power had to
\nconform to “theories of political science, sociology, economics etc.” The judgment of the
\nSupreme Court shows that not even an attempt was made to support the judgment of the
\nDistrict Court on the ground of inherent limitations. The appeal was fought and lost by
\nSprague on entirely different grounds, namely : whether ‘amendment’ means
\n‘improvement’; whether the 10th Amendment had an impact on Article 5 of the U.S.
\nConstitution and whether the alternative of ratification by Convention or Legislatures
\nshowed that the method of Convention was essential for valid ratification when the
\namendment affected the rights of the people. Obviously, the Supreme Court saw no merit
\nin the theoretical limitations which the District Court had accepted for, in a matter of such
\ngrave importance, it would not have reversed the District Court judgment if it could be
\nupheld on the ground on which it was founded.\n<\/p>\n
2198. In Schneiderman’s case, action was taken by the Government to cancel the
\nappellant’s naturalisation certificate on the ground that at the time of applying for
\nnaturalisation, he was and still continued to be a communist and thereby he had
\nmisrepresented that he was “attached to the principles of the Constitution of the United
\nStates”.\n<\/p>\n
2199. Schneiderman won his appeal in the Supreme Court, the main foundation of the
\njudgment being that the fundamental principles of Constitution were open to amendment
\nby a lawful process.\n<\/p>\n
2200. Leading Constitutional writers have taken the view that the American Supreme
\nCourt has not ever accepted the argument that there are implied or inherent limitations on
\nthe amending power contained in Article 5. Edward S. Corwin, who was invited by the
\nLegislative Reference Service, Library of Congress, U.S.A., to write on the American
\nConstitution, says after considering the challenges made to the 18th and 19th
\nAmendments on the ground of inherent limitations : “brushing aside these arguments as
\nunworthy of serious attention, the Supreme Court held both amendments valid
\nConstitution of the United States of America prepared by Edward S. Corwin, 1953, p.\n<\/p>\n
712.”. According to Thomas M. Cooley, there is no limit to the power of amendment
\nbeyond the one contained in Article 5, that no State shall be deprived of its equal suffrage
\nin the Senate without its consent. The author says that this, at any rate, is the result of the
\ndecision of the so-called National Prohibition Cases (which include the Rhode Island
\ncase). The decision, according to Cooley, totally negatived the contention that : “An
\namendment must be confined in its scope to an alteration or improvement of that which is
\nalready contained in the Constitution and cannot change its basic structure, include new
\ngrants of power to the Federal Government, nor relinquish to the State those which
\nalready have been granted to it The General Principles of Constitutional Law in the
\nU.S.A. by Thomas M. Cooley, 4th Edn., pp. 46-47. According to Henry Rottschaefer, it
\nwas contended on several occasions that the power of amending the Federal Constitution
\nwas subject to express or implied limitations, “but the Supreme Court has thus far
\nrejected every such claim Handbook of American Constitutional Law by Henry
\nRottschaefer, pp. 8-10”.\n<\/p>\n
2201. In regard to the Canadian cases, it would, I think, be enough to say that none of the
\ncases cited by the petitioner concerns the exercise of the power to amend the
\nConstitution. They are cases on the legislative competence of the provincial legislatures
\nin regard to individual freedoms or in regard to criminal matters. The issue in most of
\nthese cases was whether the provincial legislature had transgressed on the Dominion field
\nin exercise of its powers under Section 92 of the British North America Act, 1867. The
\nCanadian Bill of Rights, 1960, makes the rights incorporated in the Bill defeasible by an
\nexpress declaration that an Act of Parliament shall operate notwithstanding the Bill of
\nRights. At least six different views have been propounded in Canada on the fundamental
\nimportance of these rights. According to Schmeiser, the Supreme Court of Canada has
\nnot given judicial approval to any of these views. “It should also be noted that the
\nfundamental problem is not whether Parliament or the Legislatures may give us our basic
\nfreedoms but rather which one may interfere with them or take they away Civil Liberties
\nin Canada by Schmeiser, p. 13”. I do not think therefore, that any useful purpose will be
\nserved by spending time on Hess’s case (4, D.L.R. 199); Saumur’s case (4, D.L.R. 641);
\nSwitzman’s case (7, D.L.R. (2nd) 337); or Chabot’s case (12, D.L.R. (2nd) 796), which
\nwere cited before us.\n<\/p>\n
2202. The view that there are implied limitations found from Sections 17 and 50 of the
\nBritish North America Act was invoked by Duff C.J. in the Alberta Press Case [1938]
\nS.C.R. 100, 146 (Canada) and by three learned Judges in the Saumur Case. It is, however,
\nimportant that while denying legislative competence to the province of Alberta Duff C.J.
\nwas willing to grant the jurisdiction to the Parliament to legislate for the protection of this
\nright.\n<\/p>\n
2203. The petitioner has relied strongly upon the decision in Attorney-General of Nova
\nScotia v. Attorney-General of Canada [1951] S.C.R. 31 (Canada) but the true ratio of that
\ndecision is that neither the federal nor the provincial bodies possess any portion of the
\npowers respectively vested in the other and they cannot receive those powers by
\ndelegation. The decision in Chabot v. School Commissioners [1947] 12 D.L.R. (No. 2)
\n796 is of the Quebec Court of Appeal, in which Casey J. observed that the religious rights
\nfind their existence in the very nature of man; they cannot be taken away. This view has
\nnot been shared by any judge of the Supreme Court and would appear to be in conflict
\nwith the decision in Henry Briks & Sons v. Montreal [1955] S.C.R. 799 (Canada)(3).
\n2204. I do not think that any useful purpose will be served by discussing the large
\nnumber of decisions of other foreign courts cited before us. As it is often said, a
\nConstitution is a living organism and there can be no doubt that a Constitution is evolved
\nto suit the history and genius of the nation. Therefore, I will only make a brief reference
\nto a few important decisions.\n<\/p>\n
2205. Ryan’s [1935] Irish Reports 170 case created a near sensation and was thought to
\ncover the important points arising before us. The High Court of Ireland upheld the
\namendment made by the Oireachtas, by deleting Article 47 of the Constitution which
\ncontained the provision for referendum, and which also incorporated an amendment in
\nArticle 50. This latter article conferred power on the Oireachtas to make amendments to
\nthe Constitution within the terms of the Scheduled Treaty. An amendment made after the
\nexpiration of a period of 8 years from the promulgation of the Constitution was required
\nto be submitted to a referendum of the people. The period of 8 years was enlarged by the
\namendment into 16 years. The High Court of Ireland upheld the amendment and so did
\nthe Supreme Court, by a majority of 2 to 1. Kennedy C.J. delivered a dissenting judgment
\nstriking down the amendment on the ground that there were implied limitations on the
\npower of amendment An important point of distinction between our Constitution and the
\nIrish Constitution is that whereas Article 50 did not contain any power to amend that
\narticle itself, Article 368 of our Constitution confers an express power by Clause (e) of
\nthe Proviso to amend that article. The reasoning of the learned Chief Justice therefore
\nloses relevance in the present case. I might mention that in Moore v. Attorney General for
\nthe Irish State [1935] A.C. 484 in which a Constitutional amendment made in 1933 was
\nchallenged, it was conceded before the Privy Council that the amendment which was
\nunder fire in Ryan’s case was validly made. The Privy Council added to the concession
\nthe weight of its own opinion by saying that the concession was made ‘rightly’.
\n2206. Several Australian decisions were relied upon by the petitioner but I will refer to
\nthe one which was cited by the petitioner’s counsel during the course of his reply; Taylor
\nv. Attorney General of Queens-land 23 C.L.R. 457. The observations of Isaacs J. on
\nwhich the learned Counsel relies seem to me to have been made in the context of the
\nprovisions of the Colonial Laws Validity Act. The real meaning of those observations is
\nthat when power is granted to a colonial legislature to alter the Constitution, it must be
\nassumed that the power did no comprehend the right to eliminate the Crown as a part of
\nthe colonial legislature. It may be mentioned that well-known Constitutional writers A.P.
\nCanaway, K.C. : “The Safety Valve of the Commonwealth Constitution”, Australian Law
\nJournal, Vol. 12, (1938-39), p. 108 at 109; W. Anstey Wynes : “Legislative, Executive
\nand Judicial Powers in Australia”, 4th Edn., Chapter XVII, p. 507 have expressed the
\nview that all the provisions of the Australian Constitution, including Article 128 itself
\nwhich confers power to amend the Constitution, are within the power of amendment.
\nThis view has been taken even though Article 128 does not confer express power to
\namend that article itself.\n<\/p>\n
2207. While winding up this discussion of authorities, it is necessary to refer to the
\ndecision of the Privy Council in Livange v. the Queen (1967) 1 A.C. 259 in which it was
\nheld that the powers of the Ceylon legislature could not be cut down by reference to
\nvague and uncertain expressions like ‘fundamental principles of British law’.
\n2208. It must follow from what precedes that The Constitution (Twenty-fourth
\nAmendment) Act, 1971 is valid. I have taken the view that Constitutional amendments
\nmade under Article 368 fell outside the purview of Article 13(2). Section 2 of the 24th
\nAmendment Act reiterates this position by adding a new Clause (4) in Article 13 : “(4)
\nNothing in this article shall apply to any amendment of this Constitution made under
\nArticle 368.” I have also taken the view that the old Article 368 not only prescribed the
\nprocedure for amendment of the Constitution but conferred the power of amendment.
\nThat position is made clear by Section 3 of the 24th Amendment which substitutes by
\nClause (a) a fully expressive marginal heading to Article 368. I have held that the power
\nof amendment conferred by Article 368 was wide and untrammelled. Further, that
\nConstitutional amendments are made in the exercise of constituent power and not in the
\nexercise of ordinary law-making power. That position is reiterated by Clause (b) of
\nSection 3. Clause (c) of Section 3 makes it obligatory for the President to give his assent
\nto the bill for a Constitutional amendment. Rightly no arguments have been addressed on
\nthis innovation. Finally, Clause (d) of Section 3 of the 24th Amendment excludes the
\napplication of Article 13 to an amendment made under Article 368. As indicated in this
\njudgment that was the correct interpretation of Articles 13 and 368.
\n2209. The Constitution (Twenty-fourth Amendment) Act, 1971, thus, merely clarifies
\nwhat was the true law and must therefore be held valid.\n<\/p>\n
The Twenty-Fifth Amendment
\n2210. The Constitution (Twenty-Fifth Amendment) Act, 1971, which came into force on
\nApril 20, 1972 consists of two effective sections : Sections 2 and 3. Section 2(a)
\nsubstitutes a new Clause (2) for the original Clause (2) of Article 31 of the Constitution.
\nUnder the original Article 31(2), no property could be acquired for a public purpose
\nunder any law unless it provided for compensation for the property taken possession of or
\nacquired and either fixed the amount of the compensation, or specified the principles on
\nwhich, and the manner in which, the compensation was to be determined and given. In
\nthe State of West Bengal v. Bela Banerjee<\/a> [1954] S.C.R. 558, a unanimous Bench
\npresided over by Patanjali Sastri C.J. held that the principles of compensation must
\nensure the payment of a just equivalent of what the owner was deprived of. The
\nConstitution (Fourth Amendment) Act was passed on April 27, 1955 in order to meet that
\ndecision. By the Fourth Amendment, an addition was made to Article 31(2) providing
\nthat “…no such law shall be called in question in any court on the ground that the
\ncompensation provided by the law is not adequate.” The effect of the amendment was
\nconsidered by this Court in P. Vajravelu Mudaliar v. Deputy Collector<\/a> [1965] 1 S.C.R.\n<\/p>\n
614. The Madras Legislature had passed an Act providing for the acquisition of lands for
\nhousing schemes and had laid down principles for fixing compensation different from
\nthose prescribed in the Land Acquisition Act, 1894. Delivering the judgment of the
\nCourt, Subba Rao J. held that the fact that Parliament used the same expressions,
\n‘compensation’ and ‘principles’ as were found in Article 31 before its Amendment, was a
\nclear indication that it accepted the meaning given by this Court to those expressions in
\nBela Banerjee’s case. The Legislature, therefore, had to provide for a just equivalent of
\nwhat the owner was deprived of or specify the principles for the purpose of ascertaining
\nthe just equivalent. The new clause added by the Fourth Amendment, excluding the
\njurisdiction of the Court to consider the adequacy of compensation, was interpreted to
\nmean that neither the principles prescribing the ‘just equivalent’ nor the ‘just equivalent’
\ncould be questioned by the court on the ground of the inadequacy of the compensation
\nfixed or arrived at by the working of the principles. By applying this test, the Court
\nupheld the principles of compensation fixed under the Madras Act as not contravening
\nArticle 31(2). The Act, however, was struck down under Article 14 on the ground that
\nfull compensation had still to be paid under a parallel Law : The Land Acquisition Act.
\n2211. In Union v. Metal Corporation,<\/a> [1967] 1 S.C.R. 255 a Bench of two Judges
\nconsisting of Subba Rao C.J. and Shelat J. held that the law of acquisition in order to
\njustify itself had to provide for the payment of a ‘just equivalent’ or lay down principles
\nwhich will lead to that result. It is only if the principles laid down are relevant to the
\nfixation of compensation and are not arbitrary that the adequacy of the resultant product
\ncould not be questioned in a court of law. It is evident that this decision marked a
\ndeparture from the judgment in Vajravelu’s case.\n<\/p>\n
2212. In the State of Gujarat v. Shantilal Mangaldas<\/a> [1969] 3 S.C.R. 341 Shah J.
\nspeaking for himself and three other learned Judges expressed his disagreement with the
\nobservations of Subba Rao C.J. in the Metal Corporation’s case and expressly over-ruled
\nthat decision. It was held that if the quantum of compensation was not liable to be
\nchallenged on the ground that it was not a just equivalent, the principles specified for
\ndetermination of compensation could also not be challenged on the plea that the
\ncompensation determined by the application of those principles was not a just equivalent.
\nThe learned Judge observed that this did not, however, mean that something fixed or
\ndetermined by the application of specified principles which is illusory or can in no sense
\nbe regarded as compensation must be upheld by the Courts, for, to do so, would be to
\ngrant a charter of arbitraries, and permit a device to defeat the Constitutional guarantee.
\nPrinciples could, therefore, be challenged on the ground that they were irrelevant to the
\ndetermination of compensation, but not on the ground that what was awarded as a result
\nof the application of those principles was not just or fair compensation.
\n2213. In R.C. Cooper v. Union<\/a> [1970] 3 S.C.R. 530, (the Bank Nationalisation case), the
\njudgment in Shantilal Mangaldas’s case, was in substance overruled by a Bench of 11
\nJudges by a majority of 10 to 1. The majority referred to the meaning of compensation as
\nan equivalent of the property expropriated. It was held that if the statute in providing for
\ncompensation devised a scheme for payment of compensation in the form of bonds and
\nthe present value of what was determined to be given was thereby substantially reduced,
\nthe statute impired the guarantee of compensation.\n<\/p>\n
2214. This chain of decisions on the construction of Articles 31(2) introduced uncertainty
\nin law and defeated to a large extent the clearly expressed intention of the amended
\nArticle 31(2) that a law providing for compensation shall not be called in question in any
\ncourt on the ground that the compensation provided by it was not adequate. Shah J. in
\nShantilal Mangaldas [1969] S.C.R. 341 at 362, 363 case had observed with reference to
\nthe decision in Bela Banerjee’s case and Subodh Gopal’s [1954] S.C.R. 587 case that
\nthose decisions had raised more problems than they solved and that they placed serious
\nobstacles in giving effect to the Directive Principles of State Policy incorporated in
\nArticle 39. Subba Rao J. had also observed in Vajravelu’s [1965] 1 S.C.R. 614, 626 case
\nthat if the intention of the Parliament was to enable the legislature to make a law without
\nproviding for compensation it would have used other expressions like, ‘price’,
\n‘consideration’, etc. This is what the Parliament has now done partially by substituting the
\nword ‘amount’ for the word ‘compensation’ in the new Article 31(2).
\n2215. The provision in the newly added Clause 2B of Article 31 that nothing in Article
\n19(1)(f) shall affect any law referred to in Article 31(2) has been obviously incorporated
\nbecause the Bank Nationalisation case overruled a long line of authorities which had
\nconsistently taken the view that Article 19(1)(f) and Article 31(2) were mutually
\nexclusive so far as acquisition and requisition were concerned [See for example
\nGopalan’s case, 1950 S.C.R. 88; Chiranjit Lal Choudhury’s case, 1950 S.C.R. 869 at 919;
\nSitabati Devi’s case, (1967) 2 S.C.R. 949; Shantilal Mangaldas’s case, 1969 S.C.R. 341;
\nand H.N. Rao’s case, 1969(2) S.C.R. 392].\n<\/p>\n
2216. Learned Counsel appearing for the petitioner mounted a severe attack on the
\nTwenty-Fifth Amendment, particularly on the provisions of Article 31C. He contends
\nthat Article 31C subverts seven essential features of the Constitution, and destroys ten
\nFundamental Rights, which are vital for the survival of democracy, the rule of law and
\nintegrity and unity of the Republic. Seven of these Fundamental Rights, according to the
\ncounsel are unconnected with property rights. The argument continues that Article 31C
\ndestroys the supremacy of the Constitution by giving a blank charter to Parliament and to
\nall the State Legislatures to defy and ignore the Constitution; it subordinates the
\nFundamenal Rights to Directive Principles of State Policy, destroying thereby one of the
\nfoundations of the Constitution; it virtually abrogate the “manner and form” of
\namendment laid down in Article 368 by empowering the State Legislatures and the
\nParliament to take away important Fundamental Rights by an ordinary law passed by a
\nsimple majority; that it destroys by conclusiveness of the declaration the salient safeguard
\nof judicial review and the right of enforcement of Fundamental Rights; and that, it
\nenables the Legislatures, under the guise of giving effect to the Directive Principles, to
\ntake steps calculated to affect the position of religious, regional, linguistic, cultural and
\nother minorities. Counsel complaints that the article abrogates not only the most
\ncherished rights to personal liberty and freedom of speech but it also abrogates the right
\nto equality before the law, which is the basic principle of Republicanism. By enacting
\nArticle 31C, the Parliament has resorted to the strange procedure of maintaining the
\nFundamental Rights unamended, but authorising the enactment of laws which are void as
\noffending those rights, by validating them by a legal fiction that they shall not be deemed
\nto be void. Today, Article 31 permits the enactment of laws in abrogation of Articles 14,
\n19 and 31, but what guarantee is there that tomorrow all the precious freedom will not be
\nexcepted from the range of laws passed under that article? Learned Counsel wound up his
\nmassive criticism against Article 31C by saying that the article is a monstrous outrage on
\nthe Constitution and its whole object and purpose is to legalise despotism.
\n2217. Having given a most anxious consideration to these arguments, I have come to the
\nconclusion that though Article 31C is pregnant with possible mischief, it cannot, by the
\napplication of any of the well-recognised judicial tests be declared unConstitutional.
\n2218. For a proper understanding of the provisions of Article 31C, one must in the first
\nplace appreciate the full meaning and significance of Article 39(b) and (c) of the
\nConstitution. Article 39 appears in Part IV of the Constitution, which lays down the
\nDirective Principles of State Policy. The idea of Directive Principles was taken from Eire,
\nwhich in turn had borrowed it from the Constitution of Republican Spain. These
\npreceding examples, as said by Sir Ivor Jennings Some Characteristics of the Indian
\nConstitution, 1953, 30-32, are significant because they came from countries whose
\npeoples are predominantly Roman Catholic, “and the Roman Catholics are provided by
\ntheir Church not only with a faith but also with a philosophy”. On matters of faith and
\nphilosophy-social or political-there always is a wide divergence of views and in fact
\nRepublican Spain witnessed a war on the heels of the enactment of its Constitution and in
\nEire, de Valera was openly accused of smuggling into the Constitution the pet policies of
\nhis own party. Articles 38 and 39 of our Constitution are principally based on Article 45
\nof the Constitution of Eire, which derives its authority from the Papal Bulls. Article 39
\nprovides by Clause (b) that the State shall, in particular, direct its policy towards
\nsecuring-“that the ownership and control of the material resources of the community are
\nso distributed as best to subserve the common good”. Clause (c) of the article enjoins the
\nState to direct its policy towards securing-“that the operation of the economic system
\ndoes not result in the concentration of wealth and means of production to common
\ndetriment.” Article 31C has been introduced by the 25th Amendment in order to achieve
\nthe purpose set out in Article 39(b) and (c).\n<\/p>\n
2219. I have stated in the earlier part of my judgment] that the Constitution accords a
\nplace of pride to Fundamental Rights and a place of permanence to the Directive
\nPrinciples. I stand by what I have said. The Preamble of our Constitution recites that the
\naim of the Constitution is to constitute India into a Sovereign Democratic Republic and to
\nsecure to “all its citizens”, Justice-social, economic and political-liberty and equality.
\nFundamental Rights which are conferred and guaranteed by Part III of the Constitution
\nundoubtedly constitute the ark of the Constitution and without them a man’s reach will
\nnot exceed his grasp. But it cannot be overstressed that, the Directive Principles of State
\nPolicy are fundamental in the governance of the country. What is fundamental in the
\ngovernance of the country cannot surely be less significant than what is fundamental in
\nthe life of an individual. That one is justiciable and the other not may show the intrinsic
\ndifficulties in making the latter enforceable through legal processes but that distinction
\ndoes not bear on their relative importance. An equal right of men and women to an
\nadequate means of livelihood; the right to obtain humane conditions of work ensuring a
\ndecent standard of life and full enjoyment of leisure; and raising the level of health and
\nnutrition are not matters for compliance with the Writ of a Court. As I look at the
\nprovisions of Parts III and IV, I feel no doubt that the basic object of conferring freedoms
\non individuals is the ultimate achievement of the ideals sec out in Part IV. A circumspect
\nuse of the freedoms guaranteed by Part III is bound to subserve the common good but
\nvoluntary submission to restraints is a philosopher’s dream. Therefore, Article 37 enjoins
\nthe State to apply the Directive Principles in making laws. The freedom of a few have
\nthen to be abridged in order to ensure the freedom of all. It is in this sense that Parts III
\nand IV, as said by Granwille Austin The Indian Constitution-Cornerstone of a Nation,
\nEdn. 1966, together constitute “the conscience of the Constitution”. The Nation stands to-
\nday at the cross-roads of history and exchanging the time-honoured place of the phrase,
\nmay I say that the Directive Principles of State Policy should not be permitted to become
\n“a mere rope of sand”. If the State fails to create conditions in which the Fundamental
\nfreedoms could be enjoyed by all, the freedom of the few will be at the mercy of the
\nmany and then all freedoms will vanish. In order, therefore, to preserve their freedom, the
\nprivileged few must part with a portion of it.\n<\/p>\n
2220. Turning first to the new Article 31(2), the substitution of the neutral expression
\n“amount” for “compensation” still binds the Legislature to give to the owner a sum of
\nmoney in cash or otherwise. The Legislature may either lay down principles for the
\ndetermination of the amount or may itself fix the amount. There is, however, intrinsic
\nevidence in Article 31(2) that it does not empower the State to confiscate or expropriate
\nproperty. Not only does Article 31(2) not authorise the legislature to fix “such amount as
\nit deems fit”, “in accordance with such principles as it considers relevant”, but it enjoins
\nthe legislature by express words either to fix an “amount” for being paid to the owner or
\nto lay down “principles” for determining the amount to be paid to him. If it was desired to
\nauthorise the legislature to pass expropriatory laws under Article 31(2), nothing would
\nhave been easier for the Constituent Body than to provide that the State shall have the
\nright to acquire property for a public purpose without payment of any kind or description.
\nThe obligation to pay an “amount” does not connote the power not to pay any amount at
\nall. The alternative obligation to evolve principles for determining the amount also shows
\nthat there is no choice not to pay. The choice open to the Legislature is that the amount
\nmay directly be fixed by and under the law itself or alternatively, the law may fix
\nprinciples in accordance with which the amount will be determined. The amount may, of
\ncourse, be paid in cash or otherwise.\n<\/p>\n
2221. The specific obligation to pay an “amount” and in the alternative the use of the
\nword “principles” for determination of that amount must mean that the amount fixed or
\ndetermined to be paid cannot be illusory. If the right to property still finds a place in the
\nConstitution, you cannot mock at the man and ridicule his right. You cannot tell him; “I
\nwill take your fortune for a farthing”.\n<\/p>\n
2222. But this is subject to an important, a very important, qualification. The amount
\nfixed for being paid to the owner is wholly beyond the pale of a challenge that it is
\ninadequate. The concept of adequacy is directly co-related to the market value of the
\nproperty and therefore such value cannot constitute an element of that challenge. By the
\nsame test and for similar reasons, the principles evolved for determining the amount
\ncannot be questioned on the ground that by application of those principles the amount
\ndetermined to be paid is inadequate, in the sense that it bears no reasonable relationship
\nwith the market value of the property. Thus the question whether the amount or the
\nprinciples are within the permissible Constitutional limits must be determined without
\nregard to the consideration whether they bear, a reasonable relationship with the market
\nvalue of the property. They may not bear a reasonable relationship and yet they may be
\nvalid. But to say that an amount does not bear reasonable relationship with the market
\nvalue is a different thing from saying that it bears no such relationship at all, none
\nwhatsoever. In the latter case the payment becomes illusory and may come within the
\nambit of permissible challenge.\n<\/p>\n
2223. It is unnecessary to pursue this matter further because we are really concerned with
\nthe Constitutionality of the Amendment and not with the validity of a law passed under
\nArticle 31(2). If and when such a law comes before this Court it may become necessary
\nto consider the matter closely. As at present advised, I am inclined to the view which as I
\nhave said is unnecessary to discuss fully, that though it is not open to the court to
\nquestion a law under Article 31(2) on the ground that the amount fixed or determined is
\nnot adequate, courts would have the power to question such a law if the amount fixed
\nthereunder is illusory; if the principles, if any are stated, for determining the amount are
\nwholly irrelevant for fixation of the amount; if the power of compulsory acquisition or
\nrequisition is exercised for a collateral purpose; if the law offends Constitutional
\nsafeguards other than the one contained in Article 19(1)(f); or, if the law is in the nature
\nof a fraud on the Constitution. I would only like to add, by way of explanation, that if the
\nfixation of an amount is shown to depend upon principles bearing on social good it may
\nnot be possible to say that the principles are irrelevant.\n<\/p>\n
2224. As regards the new Article 31(2B) I see no substance in the submission of the
\npetitioner that the exclusion of challenge under Article 19(1)(f) to a law passed under
\nArticle 31(2) is bad as being in violation of the principles of natural justice. I have stated
\nearlier that Constitutional amendments partake of the vitality of the Constitution itself,
\nprovided they are within the limits imposed by the Constitution. The exclusion of a
\nchallenge under Article 19(1)(f) in regard to a law passed under Article 31(2) cannot
\ntherefore be deemed unConstitutional. Besides, there is no reason to suppose that the
\nlegislature will act so arbitrarily as to authorise the acquisition or requisitioning of
\nproperty without so much as complying with the rules of natural justice. Social good does
\nnot require that a man be condemned unheard.\n<\/p>\n
2225. Article 31C presents a gordian knot. King Gordius of Phrygia had tied a knot
\nwhich an oracle said would be undone only by the future master of Asia. Alexander the
\nGreat, failing to untie the knot, cut it with his sword. Such a quick and summary solutions
\nof knotty problems is, alas, not open to a Judge. The article reads thus:
\n31C. Notwithstanding anything contained in Article 13, no law giving
\neffect to the policy of the State towards securing the principles specified in
\nClause (b) or Clause (c) of Article 39 shall be deemed to be void on the
\nground that it is inconsistent with, or takes away or abridges any of the
\nrights conferred by Article 14, Article 19 or Article 31; and no law
\ncontaining a declaration that it is for giving effect to such policy shall be
\ncalled in question in any court on the ground that it does not give effect to
\nsuch policy:\n<\/p>\n
Provided that where such law is made by the Legislature of
\na State, the provisions of this article shall not apply thereto
\nunless such law, having been reserved for the consideration
\nof the President, has received his assent.\n<\/p>\n
2226. A misconception regarding the ambit of this article may first be removed. The
\narticle protects only “law” and not an executive action. The term ‘law’ is used in Article
\n13(3) in a wider sense, so as to include an Ordinance, order, bye-law, etc., but that
\ndefinition is limited to the purposes of Article 13. Article 31C cannot therefore be said to
\nviolate the provisions of Article 31(1) under which no person can be deprived of his
\nproperty save by authority of law. It is, however, not to be denied that the word ‘law’ in
\nArticle 31C may include all incidents and aspects of law-making.
\n2227. In order properly to understand the scope of Article 31C, it would be necessary to
\nrefer to the history of the allied provisions of the Constitution. Prior to the 4th
\nConstitutional Amendment which came into force on April 27, 1915, Articles 31A and
\n31B which were introduced by the First Amendment Act, 1951 excluded wholly the
\nprovisions of Part III in regard to laws providing for the acquisition of any estate or of
\nany rights therein. The reason of the rule was that the rights of society are paramount and
\nmust be placed above those of the individual.\n<\/p>\n
2228. The language of Article 31C makes it clear that only such laws will receive its
\nprotection as are for giving effect to the policy of the State towards securing the
\nprinciples specified in Article 39(b) or (c). Under Clause (b) the State has to direct its
\npolicy towards securing that the ownership and control of the material resources of the
\ncommunity are so distributed as best to subserve the common good. Under Clause (e) the
\nState has to take steps towards securing that the operation of the economic systems does
\nnot result in the concentration of wealth and means of production to the common
\ndetriment. Apart from the declaration contained in the latter part of Article 31B it seems
\nto me transparent that the nexus between a law passed under Article 31C and the
\nobjective set out in Article 39(b) and (c) is a condition precedent to the applicability of
\nArticle 31C. The declaration cannot be utilised as a cloak to protect laws bearing no
\nrelationship with the objective mentioned in the two clauses of Article 39.
\n2229. The objectives set out in Part IV of the Constitution were not limited in their
\napplication to agrarian reform. The 4th and 17th Amendments extended the basic
\nprinciple underlying the First Amendment by introducing changes in Articles 31 and 31A
\nand the Twenty-Fifth Amendment has taken one step further by extending the principle to
\na vaster field. Article 31C will operate substantially in the same way as Article 31A has
\noperated in the agrarian sphere. In fact Article 31C is a logical extention of the principles
\nunderlying Article 31(4) and (6) and Article 31A.\n<\/p>\n
2230. I find it difficult to accept the argument, so strongly pressed upon us, that Article
\n31C delegates the amending power to State Legislatures and empowers them to make
\namendments to the Constitution without complying with the form and manner prescribed
\nby Article 368. I am also unable to appreciate that the article empowers the Parliament
\nlikewise. The true nature and character of Article 31C is that it identifies a class of
\nlegislation and exempts it from the operation of Articles 14, 19 and 31. Articles 31(4) and
\n(6) identified laws in reference to the period of their enactment. Articles 31(2) and 31A
\nidentified the legislative field with reference to the subject-matter of the law. Articles
\n15(4) and 33 identified laws with reference to the objective of the legislation. In this
\nprocess no delegation of amending power is involved. Thus, these various provisions,
\nlike Article 31C, create a field exempt from the operation of some of the Fundamental
\nRights. The field of legislation is not created by Article 31C. The power to legislate exists
\napart from and indepedently of it. What the article achieves is to create an immunity
\nagainst the operation of the specified Fundamental Rights in a pre-existing field of
\nlegislation. In principle, I see no distinction between Article 31C on the one hand and
\nArticles 15(4), 31(4), 31(5)(b)(ii), and 31(6) on the other. I may also call attention to
\nArticle 31A introduced by the First Amendment Act, 1951 under which
\n“Notwithstanding anything contained in Article 13”, no law providing for matters
\nmentioned in Clauses (a) to (e) “shall be deemed to be void on the ground that it is
\ninconsistent or takes away or abridges any of the rights conferred by Articles 14, 19 or\n<\/p>\n
31. The fact that the five clauses of Article 31A referred to the subject-matter of the
\nlegislation whereas Article 31C refers to laws in relation to their object does not, in my
\nopinion, make any difference in principle.\n<\/p>\n
2231. The argument that Article 31C permits a blatant violation of the form and manner
\nprescribed by Article 368 overlooks that the article took birth after a full and complete
\ncompliance with the form and manner spoken of in Article 368. Besides, implicit in the
\nright to amend Article 368 is the power, by complying with the form and manner of
\nArticle 368, to authorise any other body to make the desired amendments to
\nConstitutional provisions. The leading majority judgment in Golak Nath case and
\nHidayatullah J. thought of a somewhat similar expedient in suggesting that a Constituent
\nAssembly could be convoked for abridging the Fundamental Rights. I do not see any
\ndistinction in principle between creating an authority like the Constituent Assembly with
\npowers to amend the Constitution and authorising some other named authority or
\nauthorities to exercise the same power. This aspect of the matter does not, however, arise
\nfor further consideration, because Article 31C does not delegate the power to amend.
\n2232. The latter part of Article 31C presents to me no difficulty: “no law containing a
\ndeclaration that it is for giving effect to such policy shall be called in question in any
\ncourt on the ground that it does not give effect to such policy.” Clearly, this does not
\nexclude the jurisdiction of the court to determine whether the law is for giving effect to
\nthe policy of the State towards securing the principles specified in Article 39(b) or (c).
\nLaws passed under Article 31C, can, in my opinion, be upheld only, and only if, there is a
\ndirect and reasonable nexus between the law and the Directive Policy of the State
\nexpressed in Article 39(b) or (c). The law cannot be called in question on the ground that
\nit does not give effect to such policy but I suppose no court can ever take upon itself the
\ntask of finding out whether a Jaw in fact gives effect to its true policy. If such a latitude
\nwere open to the Judges, laws of Prohibition and Gambling should have lost their place
\non the statute booklong since.\n<\/p>\n
2233. In my opinion, therefore, Section 3 of the Twenty-Fifth Amendment, which
\nintroduces Article 31C, is valid.\n<\/p>\n
THE CONSTITUTION (TWENTY-NINTH AMENDMENT)
\nACT, 1972.\n<\/p>\n
2234. In regard to the inclusion of the two Kerala Acts, (Act 33 of 1969 and Act 25 of
\n1971) in the Ninth Schedule by the Twenty-Ninth Amendment, it is urged by the
\npetitioner’s counsel that if the provisions of the two Acts do not fall within the terms of
\n31A(1)(a), the Acts will not get the protection of Article 31B.
\n2235. The validity of Article 31B has been accepted in a series of decisions of this Court
\nand I suppose it is too late in the day to re-open that question; nor indeed did the learned
\nCounsel for the petitioner challenge the validity of that article. In State of Bihar v.
\nKameshwar Singh<\/a> [1952] S.C.R. 889, a similar contention was considered and rejected
\nby Patanjali Sastri C.J., who spoke for the Court. The same view was reiterated in
\nVisweshwar Rao v. The State of Madhya Pradesh<\/a> [1952] S.C.R. 1020 by Mahajan J. The
\nargument fell to be considered once again in N.B. Jeejeebhoy v. Assistant Collector,
\nThana, Prant, Thana<\/a> [1965] 1 S.C.R. 636, but Subba Rao J. confirmed the view taken in
\nthe earlier cases. These cases have consistently held that the opening words of Article
\n31B: “without prejudice to the generality of the provisions contained in Article 31A” only
\nindicate that the Acts and Regulations specified in the Ninth Schedule would obtain
\nimmunity even if they did not attract Article 31A. If every Act in the Ninth Schedule has
\nto be covered by Article 31A, Article 31B would become redundant. Article 31B was,
\ntherefore, held not to be governed by Article 31A. The Twenty-Ninth Amendment must,
\naccordingly be held to be valid.\n<\/p>\n
2236. Debates of the Constituent Assembly and of the First Provisional Parliament were
\nextensively read out to us during the course of arguments. I read the speeches with
\ninterest, but in my opinion, the debates are not admissible as aids to construction of
\nConstitutional provisions. In Gopalan’s case [1950] 1 S.C.R. 88, 110, Kania C.J.,
\nfollowing the decisions in The Municipal Council of Sydney v. The Commonwealth
\n[1904] 1 Com. L.R. 208 and United States v. Wong Kim Ark [169] U.S. 649, 699,
\nobserved that while it is not proper to take into consideration the individual opinions of
\nMembers of Parliament to construe the meaning of a particular clause, a reference to the
\ndebates may be permitted when a question is raised whether a certain phrase or
\nexpression was up for consideration at all or not. According to Mukherjea J. (p. 274), the
\ndebates of the Constituent Assembly are of doubtful value as an aid to discover the
\nmeaning of the words in a Constitution. The learned Judge said that a resort can be had to
\nthe debates with great caution and only when latent ambiguities are to be resolved. A
\nsimilar view was expressed by this Court in State of Travancore, Cochin and Anr. v.
\nBombay Co. Limited [1952] S.C.R. 113. In the Golak Golak Nath case, Subba Rao C.J.
\nclarified that he had not referred to the speeches made in the Constituent Assembly for
\nthe purpose of interpreting the provisions of Article 368. Bachawat J. also took the same
\nview.\n<\/p>\n
2237. It was urged by the learned Advocate-General of Maharashtra that there is a
\nnoticeable change in the attitude of this Court to parliamentary debates since the decision
\nin Gopalan’s case and that the most pronounced trend manifested itself first in Golak
\nNath’s case and then decisively in the Privy Purse case [1971] 3 S.C.R. 9, 83. The
\npractice followed in the Privy Purse case is said to have been adopted both by the
\nmajority and the minority in Union of India v. H.S. Dillon<\/a> [1971] 2 S.C.R., 779, 784,
\n829-30.\n<\/p>\n
2238. I am unable to agree that any reliance was placed in the Privy Purse case or in
\nDillon’s case on parliamentary speeches, for the purpose of interpreting the legal
\nprovisions. Shah J., in the Privy Purse case, referred to the speech of Sardar Vallabhbhai
\nPatel in order to show the circumstances in which certain guarantees were given to the
\nformer Rulers. The Advocate-General is right that Mitter J. made use of a speech for
\nconstruing Article 363, but that was done without discussing the question as regards the
\nadmissibility of the speech. In Dillon’s case, it is clear from the judgment of the learned
\nChief Justice, that no use was made of the speeches in the Constituent Assembly for
\nconstruing any legal provision. In fact, the learned Chief Justice observed that he was
\nglad to find from the debates that the interpretation which he and two his colleagues had
\nput on the legal provision accorded with what was intended.\n<\/p>\n
2239. It is hazardous to rely upon parliamentary debates as aids to statutory construction.
\nDifferent speakers have different motives and the system of ‘Party Whip’ leaves no
\nwarrant for assuming that those who voted but did not speak were of identical persuasion.
\nThat assumption may be difficult to make even in regard to those who speak. The safest
\ncourse is to gather the intention of the legislature from language it uses. Therefore,
\nparliamentary proceedings can be used only for a limited purpose as explained in
\nGopalan’s case.\n<\/p>\n
2240. Before summarising my conclusions, let me say that it is with the greatest
\ndeference and not without hesitation that I have decided to differ from the eminent Judges
\nwho constituted the majority in the Golak Nath case. Two of them still adorn this Bench
\nand to them as to the other learned Brothers of this Bench with whom it has not been
\npossible to agree, I say that it has been no pleasure to differ from them, after being with
\nsome of them for a part of the time, on a part of the case. Their concern for common
\nweal, I guess, is no less than mine and so let me express the hope that this long debate
\nand these long opinions will serve to secure at least one blessing-the welfare of the
\ncommon man. We are all conscious that this vast country has vast problems and it is not
\neasy to realise the dream of the Father of the Nation to wipe every tear from every eye.
\nBut, if despite the large powers now conceded to the Parliament, the social objectives are
\ngoing to be a dustbin of sentiments, then woe betide those in whom the country has
\nplaced such massive faith.\n<\/p>\n
2241. My conclusions are briefly these:\n<\/p>\n
2242. The decision of the leading majority in the Golak Nath case that the then Article
\n368 of the Constitution merely prescribed the procedure for amendment of the
\nConstitution and that the power of amendment had to be traced to Entry 97 of List I,
\nSchedule VII read with Articles 245, 246 and 248 is not correct.
\n2243. The decision of the leading majority and of Hidayatullah J. that there is no
\ndistinction between an ordinary law and a law amending the Constitution is incorrect.
\nArticle 13(2) took in only ordinary laws, not amendments to the Constitution effected
\nunder Article 368.\n<\/p>\n
2244. The decision of the leading majority and of Hidayatullah J. that Parliament had no
\npower to amend the Constitution so as to abrogate or take away Fundamental Rights is
\nincorrect.\n<\/p>\n
2245. The power of amendment of the Constitution conferred by the then Article 368 was
\nwide and unfettered. It reached every part and provision of the Constitution.
\n2246. Preamble is a part of the Constitution and is not outside the reach of the amending
\npower under Article 368.\n<\/p>\n
2247. There are no inherent limitations on the amending power in the sense that the
\nAmending Body lacks the power to make amendments so as to damage or destroy the
\nessential features or the fundamental principles of the Constitution.
\n2248. The 24th Amendment only declares the true legal position as it obtained before that
\nAmendment and is valid.\n<\/p>\n
2249. Section 2(a) and Section 2(b) of the 25th Amendment are valid. Though courts
\nhave no power to question a law described in Article 31(2) substituted by Section 2(a) of
\nthe Amendment Act, OP the ground that the amount fixed or determined for compulsory
\nacquisition or requisition is not adequate or that the whole or any part of such amount is
\nto be given otherwise than in cash, courts have the power to question such a law if (i) the
\namount fixed is illusory; or (ii) if the principles, if any are stated, for determining the
\namount are wholly irrelevant for fixation of the amount; or (iii) if the power of
\ncompulsory acquisition or requisition is exercised for a collateral purpose; or (iv) if the
\nlaw of compulsory acquisition or requisition offends the principles of Constitution other
\nthan the one which is expressly excepted under Article 31(2B) introduced by Section 2(b)
\nof the 25th Amendment Act – namely Article 19(1)(f); or (v) if the law is in the nature of
\na fraud on the Constitution.\n<\/p>\n
2250. Section 3 of the 25th Amendment which introduced Article 31C into the
\nConstitution is valid. In spite, however, of the purported conclusiveness of the declaration
\ntherein mentioned, the Court has the power and the jurisdiction to ascertain whether the
\nlaw is for giving effect to the policy of the State towards securing the principles specified
\nin Article 39(b) or (c). If there is no direct and reasonable nexus between such a law and
\nthe provisions of Article 39(b) or (c), the law will not, as stated in Article 31C, receive
\nimmunity from a challenge under Articles 14, 19 or 31.\n<\/p>\n
2251. The 29th Amendment Act is valid. The two Kerala Acts mentioned therein, having
\nbeen included in the Ninth Schedule, are entitled to the protection of Article 31B of the
\nConstitution.\n<\/p>\n
2252. I would direct each party to bear its own costs.\n<\/p>\n
2253. As I am coming to the close of my judgment, drafts of judgments of several of my
\nesteemed colleagues are trickling in. As I look at them, I hear a faint whiser of Lord
\nDunedin. And then I thought : I began this judgment by saying that I wanted to avoid
\nwriting a separate judgment of my own. Are first thoughts best?
\nORDER
\n2263. The Constitution Bench will determine the validity of the Constitution (Twenty-
\nsixth Amendment) Act, 1971 in accordance with law.\n<\/p>\n
2264. The cases are remitted to the Constitution Bench for disposal in accordance with
\nlaw. There will be no order as to costs incurred upto this stage.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Kesavananda Bharati … vs State Of Kerala And Anr on 24 April, 1973 Author: Chandrachud Bench: Sikri, S.M. (Cj) Shelat, J.M., Hegde, K.S. & Grover, A.N., Ray, A.N. & Reddy, P.J. & Palekar, D.G., Khanna, Hans Raj Mathew, K.K. & Beg, M.H., Dwivedi, S.N. Mukherjea, B.K. Chandrachud, Y.V. CASE NO.: Writ […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-206707","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nKesavananda Bharati ... vs State Of Kerala And Anr on 24 April, 1973 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/kesavananda-bharati-vs-state-of-kerala-and-anr-on-24-april-1973\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Kesavananda Bharati ... vs State Of Kerala And Anr on 24 April, 1973 - 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