{"id":84860,"date":"1967-02-27T00:00:00","date_gmt":"1967-02-26T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/i-c-golaknath-ors-vs-state-of-punjab-anrs-with-on-27-february-1967"},"modified":"2016-02-11T19:21:11","modified_gmt":"2016-02-11T13:51:11","slug":"i-c-golaknath-ors-vs-state-of-punjab-anrs-with-on-27-february-1967","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/i-c-golaknath-ors-vs-state-of-punjab-anrs-with-on-27-february-1967","title":{"rendered":"I. C. Golaknath & Ors vs State Of Punjab & Anrs.(With … on 27 February, 1967"},"content":{"rendered":"
Supreme Court of India<\/div>\n
I. C. Golaknath & Ors vs State Of Punjab & Anrs.(With … on 27 February, 1967<\/div>\n
Equivalent citations: 1967 AIR 1643, \t\t 1967 SCR (2) 762<\/div>\n
Author: K S Rao<\/div>\n
Bench: Rao, K. Subba Wanchoo, K.N., Hidayatullah, M. & Shah, J.C., Sikri, S.M. & Bachawat, R.S., Ramaswami, V. & Shelat, J.M., Bhargava, Vishishtha & Mitter, G.K. & Vaidyialingam, C.A.<\/div>\n
           PETITIONER:\nI.   C. GOLAKNATH & ORS.\n\n\tVs.\n\nRESPONDENT:\nSTATE OF PUNJAB & ANRS.(With Connected Petitions)\n\nDATE OF JUDGMENT:\n27\/02\/1967\n\nBENCH:\nRAO, K. SUBBA (CJ)\nBENCH:\nRAO, K. SUBBA (CJ)\nWANCHOO, K.N.\nHIDAYATULLAH, M.\nSHAH, J.C.\nSIKRI, S.M.\nBACHAWAT, R.S.\nRAMASWAMI, V.\nSHELAT, J.M.\nBHARGAVA, VISHISHTHA\nMITTER, G.K.\nVAIDYIALINGAM, C.A.\n\nCITATION<\/a>:\n 1967 AIR 1643\t\t  1967 SCR  (2) 762\n CITATOR INFO :\n RF\t    1967 SC1776\t (7)\n F\t    1968 SC1395\t (7)\n RF\t    1970 SC 898\t (61)\n RF\t    1972 SC 425\t (7,16,21)\n D\t    1972 SC 963\t (27)\n O\t    1973 SC1461\t (10,15,16,17,25,30,32,37,50,51\n RF\t    1975 SC2299\t (251,325,522,576,577,649)\n F\t    1976 SC 490\t (196)\n RF\t    1976 SC1207\t (283,285,397,548)\n R\t    1977 SC1027\t (42)\n R\t    1978 SC  68\t (89,101,233,261)\n D\t    1978 SC 489\t (9)\n E&R\t    1978 SC 597\t (19)\n RF\t    1979 SC1550\t (9)\n RF\t    1980 SC1762\t (5)\n RF\t    1980 SC1789\t (86)\n RF\t    1981 SC 271\t (33,42)\n RF\t    1981 SC 431\t (10)\n R\t    1984 SC 326\t (8)\n O\t    1984 SC 684\t (65)\n RF\t    1987 SC1140\t (3)\n R\t    1987 SC1986\t (29)\n F\t    1991 SC 101\t (131)\n RF\t    1991 SC1676\t (66,71)\n\n\nACT:\n Constitution of India, Arts. 13(2), 368, 245, 248, Schedule\n7,  List  1.  Entry 97-Power  to  amend\t Constitution  where\nresides-Whether resides in Art. 368 or in residuary power of\nParliament  under  Art.\t 248  read with\t Entry\t97  List  1-\nFundamental  Rights in Part III whether can be\tamended\t and\nabridged by the procedure in Art. 368-Law' under Art.  13(2)\nWhether\t  Includes   constitutional   amendments-Scheme\t  of\nConsitution  Fundamental  rights  whether  intended  to\t  be\npermanent  and\tunamendable-Amendment  whether\texercise  of\nsovereign power-Amendment whether a political matter outside\nthe purview of courts.\nConstitution   Seventeenth  Amendment\tAct,,\t1964-Whether\ninvalid for contravention of Art. 13(2).\nProspective  overruling, doctrine of-Vast  agrarian  changes\nunder constitutional amendments-Necessity of preserving past\nwhile protecting future decisis.\nPunjab Security of Land Tenures Act, 1953 (Act 10 of  1953)-\nMysore\tLand Reforms Act (Act 10 of 1962) as amended by\t Act\n14  of\t1965-Acts  contravening\t fundamental  rights-Whether\nvalid.\n\n\n\nHEADNOTE:\nThe  validity  of the Punjab Security of Land  Tenures\tAct,\n1953  (Act  10 of 1953) and of the Mysore Land\tReforms\t Act\n(Act 10 of 1962) as amended by Act 14 of 1965 was challenged\nby the petitioners under Art. 32 of the Constitution.  Since\nthese  Acts  were  included  in\t the  9th  Schedule  to\t the\nConstitution  by  the Constitution  (Seventeenth)  Amendment\nAct,  1964, the validity of the said Amendment Act was\talso\nchallenged.   In this connection it was urged  that  Sankari\nPrasad's  case\tin which the validity  of  the\tconstitution\n(First)\t Amendment  Act,  1951 had been\t upheld\t and  Sajjan\nSingh's\t case  in  which the validity  of  the\tConstitution\n(Seventeenth)  Amendment Act, 1964, had been upheld by\tthis\nCourt,\thad  been wrongly decided.  It\twas  contended\tthat\nParliament had no   power  to  amend fundamental  rights  in\nPart III of the Constitution.\nHELD:\tPer  Subba  Rao,  C.J.,\t Shah,\tSikri,\tShelat\t and\nVaidialingam, JJ.   (Hidayatullah,    J.    Concurring)\t   :\nFundamental Rights cannot be abridged\tor taken away by the\namending  procedure  in Ail. 368 of  the  Constitution.\t  An\namendment to the Constitution is 'law' within the meaning of\nArt.  13(2)  and  is therefore subject to Part\tIII  of\t the\nConstitution. Sri Sankari Prasad Singh Deo v. Union of India\nJUDGMENT:\n<\/pre>\n
Rajasthan,  [1965] 1 S.C.R. 933, reversed.  Per Subba,\tRao,
\nC.J., Shah, Sikri, Shelat and Vaidialingam, JJ.\n<\/p>\n
(i)  Fundamental rights are the primordial rights  necessary
\nfor  the  development of human personality.   They  are\t the
\nrights which enable a
\n763<\/span>
\nman  to chalk out his own life in the manner he likes  best.
\nOur Constitution, in addition to the well-known\t fundamental
\nrights,\t also  included the rights of minorities  and  other
\nbackward communities in such rights. [789 E]
\nThe  fundamental rights are given a transcendental  position
\nunder  our  Constitution and are kept beyond  the  reach  of
\nParliament.   At  the  same time Parts III  and\t IV  of\t the
\nConstitution constituted an integrated scheme forming a self
\ncontained code.\t The scheme is made so elastic that all\t the
\nDirective  Principles  of  State Policy\t can  reasonably  be
\nenforced  without  taking away or-abridging the\t fundamental
\nrights.\t While recognisingthe\timmutability   of    the
\nfundamental   rights,\tsubject\t to   social   control\t the
\nConstitution  itself  provides\tfor the\t suspension  or\t the
\nmodification   of   fundamental\t  rights   under    specific
\ncircumstances, as in Arts. 33, 34 and 35.  The\tnon-obstante
\nclause with which the last article opens makes it clear that
\nall the other provisions of the Constitution are subject  to
\nthis  provision.   Article 32 makes the right  to  move\t the
\nSupreme Court by appropriate proceedings for the enforcement
\nof  the\t rights conferred by the said  Parts  a\t fundamental
\nright.\tEven during grave emergencies Art. 358 only suspends
\nArt.  19  and all other rights are  untouched  except  those
\nspecifically suspended by the President under Art. 359. [789
\nH; 790 D]
\n     The Constitution has given a place of permanence to the
\nfundamental   freedoms.\t   In  giving  to   themselves\t the
\nConstitution  the  people  have\t reserved   the\t fundamental
\nfreedoms  to themselves.  Art. 13 merely in-corporates\tthat
\nreservation.   The Article is however not the source of\t the
\nprotection  of fundamental rights but the expression of\t the
\nreservation.   The  importance attached to  the\t fundamental
\nfreedoms  is  so  transcendatal that a\tbill  enacted  by  a
\nunanimous  vote\t of  all  the  members\tof  both  Houses  is
\nineffective to derogate from its guaranteed exercise.  It is
\nnot  what Parliament regards at a given moment as  conducive
\nto the public benefit but what Part III declarer. protected,
\nwhich determines the ambit of the freedom. The incapacity of
\nParliament  therefore in exercise of its amending  power  to
\nmodify, restrict, or imposefundamental\tfreedoms in  Part
\nIII arises from the scheme of theConstitution\tand    the
\nnature of the freedoms. [792 D-F]
\nA. K. Gopalan v. State of Madras,<\/a> [1950] S.C.R.88,  State
\nof Madras v.   Smt.   Champakam\t Dorairajan,<\/a>  (1951)  S.C.R.
\n525,  Pandit  M.  S. M. Sharma v. Shri\tSri  Krishna  Sinha,<\/a>
\n[1959]\tSupp.  1 S.C.R. 806 and Ujjam Bai v. State of  Uttar
\nPradesh,<\/a> [1963] 1 S.C.R. 778, referred to.
\nIf  it\tis  the\t duty of  Parliament  to  enforce  directive
\nprinciples  it is equally its duty to enforce  them  without
\ninfringing   the   fundamental\trights.\t  The\tverdict\t  of
\nParliament  on\tthe scope of the law of\t social\t control  of
\nfundamental rights is not final but justiciable.  If it were
\nnot  so, the whole scheme of the Constitution  would  break.
\n[815 H; 816 A-B] ,\n<\/p>\n
(ii)Article  368 in terms only prescribes various steps\t in
\nthe  matter of amendment.  The article assumes the power  to
\namend  found else where.  The completion of  the  procedural
\nsteps cannot be said to culminate in the power to amend\t for
\nif  that  was so the Constitution makers could\thave  stated
\nthat  in  the Constitution.  Nor can the  power\t be  implied
\neither\tfrom  Art. 368 or from the nature  of  the  articles
\nsought to be amended; the doctrine of necessary\t implication
\ncannot\tbe invoked if there is an express provision.   There
\nis  no necessity to imply any such power as  Parliament\t has
\nthe plenary power to make any law including the law to amend
\nthe  Constitution  subject  to\tthe  limitations  laid\tdown
\ntherein [793 E-G]\n<\/p>\n
(iii)The power of Parliament to amend the  Constitution
\nis derived from Arts. 245, 246 and 248 read with item 97  in
\nList I. The residuary
\n764<\/span>
\npower of Parliament can certainly take in the power to amend
\nthe Constitution. [794 A-D]
\nThough\ta  law\t    made under Art. 245 is  subject  to\t the
\nprovisions of the Constitution it would be wrong to say that
\nevery  law of amendment made under it would  necessarily  be
\ninconsistent  with  the articles sought to be  amended.\t  It
\ncannot reasonably be said that a law amending an article  is
\ninconsistent  with  it.\t The limitation in Art.\t 245  is  in
\nrespect of the power to make a law and not of the content of
\nthe law made within the scope of its power. [794 E-F]
\nAn order by the President under Art. 392 cannot attract\t Art
\n368  as the amendment contemplated by the latter  provisions
\ncan  be\t initiated  only by the introduction of\t a  bill  in
\nParliament.   It cannot therefore be said that if the  power
\nof amendment is held to be a legislative power the President
\nacting under Art. 392 can amend the Constitution in terms of
\nArt. 368. [794 G-H]\n<\/p>\n
(iv) The Constituent Assembly, it so minded, could certainly
\nhave conferred an express legislative power on Parliament to
\namend  the  Constitution by  ordinary  legislative  process.
\nThere  is,  therefore,\tno  inherent  inconsistency  between
\nlegislative  process and the amending one.  Whether  in\t the
\nfield of a constitutional law or statutory law amendment can
\nbe brought about only by ‘law’. [794 C-D]
\nArticle\t 13(2),\t for the purpose of that Article,  gives  an
\ninclusive  definition  of ‘law’.  It does  not\tPrima  facie
\nexclude\t constitutional\t law.  The process  under  Art.\t 368
\nitself closely resemble the legislative process.
\nArticle\t 368  is  not  a complete code\tin  respect  of\t the
\nprocedure of amendment.\t The details of procedure in respect
\nof  other  bills have to be followed so far as\tpossible  in
\nrespect of a Bill under Art. 368 also, The rules made by the
\nHouse  of the People providing procedure for amendments\t lay
\ndown  a\t procedure similar to that of other bills  with\t the
\naddition  of  certain special provisions.  If  amendment  is
\nintended  to be Something other than law the  constitutional
\ninsistence  on the said legislative process is\tunnecessary.
\nThe  imposition\t of further conditions is only\ta  safeguard
\nagainst the hasty action or a protection to the states\t but
\ndoes  not change the legislative character of the  amendment
\n[795 G 796 C]
\nArticle 3 of the Constitution permits changes in States\t and
\ntheir boundaries by a legislative process under Arts. 4\t and
\n169  amendments in the Solution are made by ‘law’ but  by  a
\nfiction\t are deemed not to be amendments for the purpose  of
\nArt. 368.  This shows that amendment is law and that but for
\nthe  fiction it would be an amendment within the meaning  of
\nArt, 368. [796 C-F]
\nTherefore  amendments either under Art. 368 or\tunder  other
\nArticles   are\tonly  made  by\tParliament   following\t the
\nlegislative  process and are ‘law’ for the purpose  of\tArt.
\n13(2). [798 C]
\nMccawley  v.  The  king, [1920]A.C.,  691  and\tThe  Bribery
\nCommissioner  v.  Pedrick Ransinghe, [1964] 2  W.L.R.  1301,
\nreferred to.\n<\/p>\n
(v)  One need not cavil at the description of amending power
\nas  a sovereign power for it is sovereign only\tviithin\t the
\nscope  of the power conferred by a  particular\tConstitution
\nwhich  may  expressly  limit the  power\t of  amendment\tboth
\nsubstantive  and  procedural.  If cannot therefore  be\tsaid
\nthat amending power can have no limitations being a sovere4p
\npower. [804]
\nThe  argument that the amending process\t involves  political
\nquestions and is therefore outside.the scope of judicial re-
\nview cannot also be aeCePted- It may be.Parliament seeks  to
\namend  the Constitution for political reasons but the  court
\nin denying that power will not be deciding
\n765<\/span>
\na   political  question;  it  will  only  be  holding\tthat
\nParliament has no power to armed Particular articles of\t the
\nConstitution for any purpose whatsoever, be it political  or
\notherwise. [804 E-G]\n<\/p>\n
(vi) If power to abridge the fundamental rights is denied to
\nParliament  revolution\tis  not\t a  necessary  result.\t The
\nexistence  of  an  all comprehensive  power  cannot  prevent
\nrevolution if there is chaos in the country brought about by
\nmisrule\t or abuse of power.  Such considerations are out  of
\nplace in construing the provisions of the Constitution by  a
\nCourt of law. [816 B-C]\n<\/p>\n
(vii)\t  While-ordinarily  @  Court will  be  reluctant  to
\nreverse\t its  previous\tdecisions  it is  its  duty  in\t the
\nconstitutional field to correct itself as early as possible,
\nfor  otherwise\tthe  future  progress  of  the\tcountry\t and
\nhappiness  of the people will be at stake.  As it was  clear
\nthat the decision in Sankari Prasad’s case was wrong, it was
\npre-eminently  a  typical  case\t where\tthis  Court   should
\noverrule  it.  The longer it held the field the greater\t the
\nscope  for erosion of fundamental rights.  As  it  contained
\nthe  seeds  of destruction of the cherished  rights  of\t the
\npeople,\t the  sooner  it was overruled the  better  for\t the
\ncountry. [816 G-H]
\nThe  Superintendent  and Legal Remembrancer  Stale  of\tWest
\nBengal\tv.The Corporation at Calcutta, [1967] 2 S.C.R.,\t 170
\nrelied on.\n<\/p>\n
(viii)\t  The  Constitution  (Seventeenth  Amendment)\tAct,
\n1964,  inasmuch\t as it takes away  or  abridges\t fundamental
\nrights was beyond ‘the amending power of Parliament and void
\nbecause\t of contravention of Art. 13(2).  But having  regard
\nto  the\t history  of  this  and\t earlier  amendment  to\t the
\nConstitution,  their  effect  on  the  social  and  economic
\naffairs of the country and the chaotic situation that may be
\nbrought\t about by the sudden withdrawl at this stage of\t the
\namendments from the Constitution it was undesirable to\tgive
\nretroactivity of this decision.\t The present was therefore a
\nfit   case   for  the  application  of\t the   doctrine\t  of
\n“prospective.  overruling,  evolved  by the  courts  in\t the
\nUnited States of America. [805 E; 807 E, G; 808 C-D]
\nGreat  Northern Railway v. Sunburst Oil & Ref.\t Co.  (1932)
\n287  U.S.  358:\t 77 L. Ed. 360, Chicot\tCounty\tDrainage  v.
\nBaxter State Bank, (1940) 308 U.S. 371, Griffin v. Illionis,
\n(1956)\t351 U.S. 12, Wolf v. Colorado, 338 U.S. 25 : 193  L.
\nEd.  872, Mapp v. Ohio, 367 U.S. 643 : 6 L. Ed.\t (2nd  Edn.)
\n1081  and  Link\t letter\t v. Walker,  (1965)  381  U.S.\t618,
\nreferred to.\n<\/p>\n
(ix),  The doctrine of “prospective overruling” is a  modern
\ndoctrine suitable for a fast moving society.  It does not do
\naway with the doctrine of state decision but confines it  to
\npast  transactions.  While in Strict theory it may  be\tsaid
\nthat  the  doctrine ‘involves the making of  law,  *hat\t the
\ncourt  really does is to declare the law but refuse to\tgive
\nretroactivity  to  it.\tIt is really  a\t pragmatic  solution
\nreconciling  the two conflicting doctrines, namely,  that  a
\ncourt  finds the law and that it does make law It finds\t law
\nbut  restricts its operation to the future.  It enables\t the
\ncourt to bring about a smooth transition by correcting,\t its
\nerrors without disturbing the impact of those errors on past
\ntransactions.  By the application of this doctrine the\tpast
\nmay be preserved and the future protected. [913 A-C; 814  E-
\nF]
\nOur   Constitution  does  not  expressly  of  by   necessary
\nimplication  speak  against  the  doctrine  of\t prospective
\noverruling.   Articles 32, 141 and 142 are  designedly\tmade
\ncomprehensive to enable the Supreme Court to declare law and
\nto give such directions or pass such orders as are necessary
\nto  do complete justice.  The expression ‘declared’ in\tArt.
\n141  is\t wider\tthan the words ‘found  or  made’.   The\t law
\ndeclared  by the Supreme Court is the law of the  land..  If
\nso, there is no acceptable reason why
\n7 66
\nthe  Court, in declaring the law in supersession of the\t law
\ndeclared by it earlier, could not restrict the operation  of
\nthe law as declared to the future and save the\ttransactions
\nwhether\t statutory  or otherwise that were affected  on\t the
\nbasis of the earlier law. [813 F-H]
\nAs  this  Court for the first time has been called  upon  to
\napply  the  doctrine evolved in a  different  country  under
\ndifferent circumstances, it would like to move warily in the
\nbeginning  and would lay down the following  propositions  :
\n(1)  The doctrine of prospective overruling can\t be  invoked
\nonly  in matters arising under our Constitution; (2) it\t can
\nbe  applied  only by highest court of the country,  ie.\t the
\nSupreme\t Court as it has the constitutional jurisdiction  to
\ndeclare\t law binding on all the Courts as it has India;\t (3)
\nthe scope of the retrospective operation of the law declared
\nby  the supreme Court superseding its earlier  decisions  is
\nleft to its discretion to be moulded in accordance with- the
\njustice of the cause or matter before it. [814 C-D]
\nApplying  the  doctrine\t of prospective\t overruling  in\t the
\ncircumstances  of the present case the Court  declared\tthat
\nthis   decision\t would\tnot  affect  the  validity  of\t the
\nConstitution  (Seventeenth  Amendment) Act  1964,  or  other
\namendments  to the Constitution taking away or\tabridge\t the
\nfundamental  rights.   It further declared  that  in  future
\nParliament  will  have\tno power to amend Part\tIII  of\t Abe
\nConstitution  so as to take away or abridge the\t fundamental
\nrights. [814 F-G]\n<\/p>\n
(x)  As\t according  to the above decision  the\tConstitution
\n(Seventeenth  Amendment) Act held the field the validity  of
\nthe  two impugned Acts, namely the Punjab Security  of\tLand
\nTennures Act, 10 of 1953 and the Mysore Land Reforms Act, 10
\nof  1962,  as  amended\tby Act 14 of  1965,  could,  not  be
\nquestioned on the ground that they offended Art 13, 14 or 31
\nof the Constitution. [815 E]\n<\/p>\n
(xi) On\t the findings the following, questions did not\tfall
\nto be considered :\n<\/p>\n
\t      (a)   Whether in the exercise of the power  of
\n\t      amendment\t the  fundamental structure  of\t the
\n\t      Constitution may be changed or even  destroyed
\n\t      or  whether the power is restricted to  making
\n\t      modification  within  the\t framework  of\t the
\n\t      original\t  instrument\tfor    its    better
\n\t      effectuation ?<\/p>\n
\t      (b)   Whether  the  amendment  of\t fundamental
\n\t      rights is covered by the proviso to Art. 368 ?\n<\/p><\/blockquote>\n
\t      (c)   To what extent can the provisions of die
\n\t      Constitution other than fundamental rights  be
\n\t      amended ?\n<\/p><\/blockquote>\n
\t      (d)   To\twhat extent can Part III be  amended
\n\t      otherwise thin by taking away or abridging the
\n\t      fundamental rights ?\n<\/p><\/blockquote>\n
\t      (e)   Whether   the  impugned  Act  could\t  be
\n\t      sustained\t  under\t  the  provisions   of\t the
\n\t      Constitution without the aid of Arts. 31A\t and
\n\t      31B of the Schedule.\n<\/p><\/blockquote>\n
Obiter\t  If  necessity\t to abridge the\t fundamental  rights
\ndoes arise the residuary power\tof Parliament may be  relied
\nupon to call for a constituent bly for\t  making    a\t new
\nConstitution  or  radically  changing it.   The\t recent\t Act
\nproviding  for a poll in Goa, Daman and Diu was an  instance
\nof  analogus  exercise\tof  such  residuary  power  by\t the
\nParliament, [816 E-F]
\nPer Hidayatullah.  J. : (i) The scope of the amending  power
\nunder the COnstitution is not to be determined by taking  an
\napriori view of the
\n767<\/span>
\nomnicompetence of Art. 368.  When there is conflict  between
\nthat Article and Art. 13(2) juridical hermeneutics  requires
\nthe  Court to interpret them by combining ‘them and  not  by
\ndestroying  one\t with the aid of the other.  No\t part  in  a
\nConstitution   is  superior  to\t another  part\tunless\t the
\nConstitution-itself  says  so and there is no  accession  of
\nstrength to any provision. by calling it a code.  It is, the
\ncontext of the legal provisions that illustrates the meaning
\nof  the different parts so that among them and between\tthem
\nthere should be correspondence and harmony. [857 H-858C]\n<\/p>\n
(ii) It\t is  wrong  to think of the  Fundamental  Rights  as
\nwithin\tParliament’s giving or taking.\tThey are secured  to
\nthe people by Arts. 12, 13, 32, 136, 141,,144 and 226.\t The
\nHigh Courts and finally this Court have been made the Judges
\nof whether any lagislative or executive action on  the\tpart
\nof   the   State,  considered  as  comprehensively   as\t  is
\npossible,offends     the   Fundamental\t Rights\t  and\tArt.
\n13(2)declares  that  legislation which so offends is  to  be
\ndeemed to be void.  The general words of art. 368 cannot  be
\ntaken  to  mean that by calling an Act an Amendment  of\t the
\nConstitution Act a majority of total strengths and a  2\/3rds
\nmajority of the members presnt and voting in each House\t may
\nremove not only any of the Fundamental Rights but the  whole
\nChapter giving them. [860 A-D; 867 FF]\n<\/p>\n
(iii)\t  In   Britain\tthere  is  no  distinction   between
\nconstitutional law and’ ordinary law as to the procedure  of
\ntheir  enactment.  In our Constitution too in spite  of\t the
\nclaim that Art. 368 is a Code Arts. 4, 11 and 169 show\tthat
\nthe amendment of the Constitution can be by the ordinary law
\nmaking\tprocedure.   By this method one of  the\t legislative
\nlimbs  in a State can be removed or created.  This  destroys
\nat  one stroke the claim that Art. 368 is a code  and.\talso
\nthat any special method of amendment of the Constitution  is
\nfundamentally necessary. [861 E-G]
\nThe only difference between constitutional law and  ordinary
\nlaw can, be said to arise from the fact that  constitutional
\nlaws  are  generally  amend-able under a  process  which  in
\nvarying\t degrees, is more difficult or elaborate.  This\t may
\ngive a distinct character to the law of the  Constitutionbut
\nit  does not serve to distinguish it from the other laws  of
\nthe land for the purpose of Art. 13(2).\t The Article  itself
\ndoes  not exclude constitutional law which could  have\tbeen
\neasily\tdone had the constitution makers. so intended.\t[862
\nB; 866 B]
\nAn  amendment  to the Constitution is not made\tunder  power
\nderived’ from Arts. 245 or 248 of the Constitution read with
\nentry  97 of List 1. The power of amendment is sui  generis.
\n[900 E]\n<\/p>\n
(iv) A\t narrow\t view  need  not  be  taken  of\t  the\tword
\namendment’..  By an amendment new matter may be\t added,\t old
\nmatter\tremoved\t or  altered.  The  power  of  amending\t the
\nConstitution  is  however  not\tintended  to  be  used\t for
\nexperiments or as an escape, from restrictions against undue
\nState action enacted in the Constitution itself.  Nor is the
\npower  of  amendment available for the\tpurpose\t of  remoing
\nexpress\t or implied restrictions against the State. [862  F;
\n863 B-C]
\nColeman v. Milter, 307 U.S. 443 (83 L. Ed. 1385), Luther  V.
\nBorden,, 7 How. 1(12 L. Ed. 58) and Baker v. Carr, 369\tU.S.
\n186 (7 L. Ed. 2d., 633), referred to.\n<\/p>\n
The  State is no doubt supreme but in the supremacy  of\t its
\npowers\tit  may create impediments on its  own\tsovereignty.
\nThere  is nothing to prevent the State from placing  certain
\nmatters\t outside the amending procedure.  When this  happens
\nthe  ordinary  procedure  of  amendment\t ceases\t to   apply.
\nAmendment can then only be by a freshly constituted body..\n<\/p>\n
768<\/span><\/p>\n
To  attempt  to do this otherwise is to\t attempt  revolution
\nwhich  is  to  alter the will of the people  in\t an  illegal
\nmanner.\t  Courts can interfere to nullify the  revolutionary
\nchange\tbecause there is an infraction of exiting  legality.
\nDemocracy  may be lost if there is no liberty based  on\t law
\nand   law  based  on  equality.\t  The  protection   of\t the
\nfundamental  rights is necessary so that we may not walk  in
\nfear of democracy itself. [863 G; 864 A-C; 865 A-D]\n<\/p>\n
(v)  In\t Art.  13(2) the restriction is against\t the  State.
\nThere  is  a difference between the State and  its  agencies
\nsuch  as  Government,  Parliament, the\tLegislature  of\t the
\nStates,\t and  the local and other  authorities.\t  The  State
\nmeans  more than any of these or all of them  put  together.
\nBy  making  the State subject to Fundamental  Rights  it  is
\nclearly stated in Art. 13(2) that any of the agencies acting
\nalone or all the agencies acting together are not above\t the
\nFundamental Rights.  Therefore when the- House of the People
\nor  the\t Council  of  States  introduces  a  Bill  for\t the
\nabridgement  of\t the  Fundamental  Rights,  it\tignores\t the
\ninjunction  against it and even if the two Houses  pass\t the
\nBill the injunction is next operative against the  President
\nsince  the  expression Government of India  in\tthe  General
\nClauses\t Act  means  the  President  of\t India.\t  Thus\t the
\ninjunction  in Art. 13(2) is against the whole force of\t the
\nState\tacting\teither\tin  its\t executive  or\t legislative
\ncapacity. [866 E-H]\n<\/p>\n
(vi) It\t is wrong to invoke the Directive Principles  as  if
\nthere  is  some antinomy between them  and  the\t Fundamental
\nRights.\t  The  Directive Principles lay down the  routes  of
\nState  action  but such action must avoid  the\trestrictions
\nstated\tin the Fundamental Rights.  It cannot  be  conceived
\nthat  in following the Directive Principles the\t Fundamental
\nRights can be ignored. [867 G, 868 B]\n<\/p>\n
(vii)\t  Our  Constitution has given a guaranteed right  to
\nthe  persons whose fundamental rights are affected  to\tmove
\nthe  Court.   The guarantee is worthless if the\t rights\t are
\ncapable\t of being taken away.  This makes  our\tConstitution
\nunique\tand the American or other foreign precedents  cannot
\nbe of much assistance. [875 H]
\nHollingsworth  v. Virginia, 3 Dall. 378, Leser\tv.  Garnett,
\n258  U.S.  130, Dillon v. Gloss, 256 U.S. 368 and  Texas  v.
\nWhite, 7 Wall, 700, referred to.\n<\/p>\n
It  is\tnot that Fundamental Rights are not subject  to\t any
\nchange\t or  modification.   The  Constitution\t permits   a
\ncurtailment  of\t the  exercise of most\tof  the\t Fundamental
\nRights\tby  stating  the limits\t of  that  curtailment.\t  It
\npermits\t  the  Fundamental  Rights  to\tbe  controlled\t but
\nprohibits their erasure. [878 B]\n<\/p>\n
(viii)\t  Parliament  today is not the constituent  body  as
\nthe  constituent ‘assembly was but a constituted body  which
\nmust  bear  true allegiance to the Constitution\t as  by\t law
\nestablished.\tTo  change  the\t Fundamental  Part  of\t the
\nindividuals  liberty  is  a usurpation\tof  the\t constituent
\nfunctions because they have been placed outside the scope of
\nthe power of the constituted Parliament. [870 B-D]
\nOur  Constitution like some others has kept certain  matters
\noutside\t  the\tamendatory  process  so\t  that\t the   their
\nrepresentatives.  In Art. 35 obstante clause.  They  exclude
\nArticle under the proviso.  It is therefore a great error to
\nthink  of Art. 368 as a code or as omnicompetent. [901\tC-E;
\n902 A-B]
\n769<\/span>
\nGarnishee case, 46 C.L.R. 155, referred to.
\nArticle\t 368  cannot directly be amended  by  Parliament  to
\nconfer power on itself over the fundamental rights, It would
\nbe against Art. 13(2).\tParliament cannot do indirectly what
\nit cannot do directly. [878 H]\n<\/p>\n
(ix) If it is desired to abridge the Fundamental Rights\t the
\nlegal  method  is that the State must  reproduce  the  power
\nwhich it has chosen to put under restraint.  Parliament must
\namend Art. 368 to convoke another constituent assembly, pass
\na  law under item 97 of the List 1 of Schedule 7 to  call  a
\nconstituent assembly, and then that assembly may be able  to
\nabridge\t or  take away the fundamental\trights.\t  Any  other
\nmethod must be regarded as revolutionary. [878 D-E; 879 B]\n<\/p>\n
(x)  The   various  amendments\tthat  have  been   made\t  by
\nParliament   in\t Arts.\t15,  16\t and  19  did  not   abridge
\nfundamental rights and were therefore valid. [879 C, 883 B]\n<\/p>\n
(xi) Our  Constitution\taccepted the theory  that  Right  of
\nProperty  is  a fundamental right though perhaps it  was  an
\nerror  to  do so if socialisation was desired.\t It  treated
\nproperty rights as inviolable except through law for  public
\ngood  and on payment of compensation.  However\tthe  various
\namendments  have significantly changed the position.   As  a
\nresult\tof  them,  except for  land  within  the  prescribed
\nceiling,  all other land can be acquired or  rights  therein
\nextinguished   or  modified  without  compensation  and\t  no
\nchallenge to the law can be made under Arts. 14, 19 or 31 of
\nthe Constitution. [887 B; 888 B-C; 896 F-G]
\nAs  there is apprehension that the erosion of the  right  to
\nproperty  may be practised against other fundamental  rights
\nit  is necessary to call a halt.  An attempt to\t abridge  or
\ntake  away  Fundamental Rights by a  constituted  Parliament
\neven through an amendment of the Constitution can I declared
\nvoid.\tThis Court has the power and the jurisdiction to  do
\nso.  The opposite view expressed in Sajjan Singh’s case\t was
\nwrong.. [898 B-C]\n<\/p>\n
(xii)\t  The  First, Fourth and Seventh amendments  of\t the
\nConstitution,  cannot  now  be challenged  because  of\tlong
\nacquiescence.\tIt  is good sense and sound policy  for\t the
\ncourts to decline to take up an amendment for  consideration
\nafter  a  considerable\tlapse  of  time\t when  it  was\t not
\nchallenged  before or was sustained on an  earlier  occasion
\nafter challenge. [893 O, H 1902 D-E]
\nLesser\tv. Garnett, 258 U.S. 130 (1922), referred to.\n<\/p>\n
(xiii)\t  In the Seventeenth Amendment, the extension of the
\ndefinition of ‘estate’ to include ryotwari and\tagricultural
\nlands is an inroad into the Fundamental Rights but it cannot
\nbe questioned in view, of the existence of Art. 3 1A(1)\t (a)
\nwhose validity cannot now be challenged.  The new definition
\nof estate introduced by the amendment is beyond the reach of
\nthe Courts not because it is not law but because it is “law”
\nand fills within that word in Art. 31(1) (2) (2A) and Art. 3
\n1-A(1). [899 C-G]
\nThe third section of the Act is however invalid.  It adds 44
\nState  Acts  to the ninth schedule.  The Schedule  is  being
\nused  to  give advance protection  to-legislation  which  is
\nknown  or  apprehended\tto  derogate,from  the\t Fundamental
\nRights.\t  The  power under Art. 368 was not  meant  to\tgive
\nprotection to State statute-, which offend the Constitution.
\nThe  intent here is to silence the courts and not  to  amend
\nthe Constitution. [900 A-D]
\n770<\/span>\n<\/p>\n
(xiv)\t  The  two impugned Acts namely the Punjab  Security
\nof  Land Tenures Act, 1953 and the Mysore Land Reforms\tAct,
\n1962 as amended are valid under the Constitution not because
\nthey  are  included in Schedule 9 of  the  Constitution\t but
\nbecause they are protected by Art. 3 1-A and the President’s
\nassent. [902 G-H]
\nPer  Wanchoo, Bachawat, Ramaswami, Bhargava and Mitter,\t JJ.
\n(dissenting):  Article\t368 carries the power to  amend\t all
\nparts  of the Constitution including the fundamental  rights
\nin  Part III of the Constitution. An amendment is not  ‘law’
\nfor  the  purpose of Art. 13(2) and cannot be  tested  under
\nthat Article.\n<\/p>\n
Sri  Sankari  Prasad  Singh Deo v. Union  of  India,  [1952]
\nS.C.R.\t89 and Sajjan Singh v. State of Rajasthan, [1965]  1
\nS.C.R. 933, reaffirmed.\n<\/p>\n
Per  Wanchoo, Bhargava and Mitter, JJ.-(i) The\tConstitution
\nprovides   a   separate\t part  headed  ‘Amendment   of\t the
\nConstitution’ and Art. 368 is the only article in that Part.
\nThere can therefore, be no doubt that the power to amend the
\nConstitution  must be contained in Art. 368.  If  there\t was
\nany doubt in the matter it is resolved by the words, namely,
\n“the Constitution shall stand amended in accordance with the
\nterms  of  the bill”.  These words can only  mean  that\t the
\npower  is  there  to  amend  ,the  Constitution\t after\t the
\nprocedure has been followed. [826 A-D]\n<\/p>\n
(ii) While there is a whole part devoted to the amendment of
\nthe  Constitution  there  is  no  specific  mention  of\t the
\namendment of the Constitution in Art. 248 or in any entry of
\nList  1. It would in the circumstances ‘be more\t appropriate
\nto  read  the power in Art. 368 than in Art. 248  read\twith
\nitem 97 of List I. [826 H-827 A]
\nThe  original  intention of the Constitution makers  was  to
\ngive  residuary\t power to the States.  The  mere  fact\tthat
\nduring\tthe passage of the Constitution by  the\t Constituent
\nAssembly  residuary  power was finally vested in  the  Union
\nwould not therefore mean that it includes the power to amend
\nthe  Constitution.  Moreover residuary power cannot be\tused
\nto  change the fundamental law of the  Constitution  because
\nall legislation is under Art. 245 “subject to the provisions
\nof this Constitution”. [827 B, H]
\nMere  accident of similarity of procedure provided  in\tArt.
\n368  to\t that  provided\t for  ordinary\tlegislation   cannot
\nobliterate the basic difference ‘between constitutional\t law
\nand  ordinary law.  It is the quality and nature of what  is
\ndone  under  Art.  368\tand  not  its  similarity  to  other
\nprocedure  that should be stressed.  What emerges after\t the
\nprocedure in Art. 368 has been followed is not ordinary\t law
\nbut fundamental law. [829 D; 830 C-D]\n<\/p>\n
(iii)\t  The  procedure  under\t the proviso  to  Art.\t III
\ncannot\tapply to a ‘bill to amend the Constitution.  If\t the
\nPresident  refused to, give his assent to such a bill-,\t the
\nproposed  amendment falls.  In this respect at any rate\t the
\nprocedure   under  Art.\t 368  differs  from,  the   ordinary
\nlegislative process. [831 B-E]\n<\/p>\n
(iv) The  word ‘law’ has been avoided apparently with  great
\ncare  in Art.368. What emerges after the procedure has\tbeen
\nfollowed is not an Act but the Constitution stands  amended.
\nAfter that the courts can only see whether the procedure  in
\nArt. 368 was followed.\tIf it has been followed there is  no
\nquestion of testing the amendment of the Constitution On the
\navail  of fundamental rights or in any other way as  in\t the
\ncase of ordinary legislation. [832 A-G]
\n771<\/span>\n<\/p>\n
(v)  To\t say  that ‘amendment’ in law only  means  a  change
\nwhich results in improvement would make amendment impossible
\nfor what is improvement is a matter of opinion. [834 B]
\nIt  may\t be  open to doubt whether the\tpower  of  amendment
\ncontained  in  Art.  368 goes to the  extent  of  completely
\nabrogating the present Constitution and substituting I it by
\nan  entirely new one.  But short of that the power to  amend
\nincludes the power to add any provision to the\tConstitution
\nto alter any provision and substitute any other provision in
\nits place or to delete any provision. [834 F-G]
\nThe seventeenth amendment is merely in exercise of the power
\nof amendment as indicated above and cannot be struck down on
\nthe  ground  that  it goes beyond  the\tpower  conferred  by
\nParliament to amend the Constitution by Art. 368. [834 H]\n<\/p>\n
(vi) There is no express limitation on power of amendment in
\nArt. 368 and no limitation can or should be implied therein.
\nIf the Constitution makers intended certain basic provisions
\nin  the Constitution, and Part III in particular, to be\t not
\namendable  there  is no reason why it was not so  stated  in
\nArt. 3 68.  The acceptance of the principle that them is  an
\nimplied\t  bar  to  amendment  of  basic\t features   of\t the
\nConstitution  would lead to the position that any  amendment
\nto  any\t article  would be liable to  challenge\t before\t the
\ncourts\ton  the ground that it amounted to  amendment  of  a
\nbasic  feature.\t Constituent power like that in Art 368\t can
\nonly  be  subject  to  express limitations  so\tfar  as\t the
\nsubstance of the amendments is concerned. [835 A; 836 D, G]\n<\/p>\n
(vii)\t  For interpreting Art. 369 it is not permissible to
\nread   the  speeches  made  in\tthe  Constituent   Assembly.
\nHistorical  facts namely what was accepted or what  was\t not
\naccepted or what was avoided in the Constituent Assembly can
\nbe looked into; but in connection with Art. 368 no help\t can
\nbe got from the historical material available. [838 C]
\nAdministrator General, of Bengal v. Prem Lal Mullick, (1895)
\nXXII I.A- 107, Baxter v. Commissioner of Taxation, (1907)  4
\nC.I.R. 1087, A. K. Gopalan v. State of Madras<\/a> [1950]  S.C.R.
\n88 and The Automobile Transport (Rajasthan) Ltd. v. State of
\nRajasthan,<\/a> [1963] 1 S.C.R. 491, referred to.\n<\/p>\n
(viii)\t  The  preamble to the Constitution cannot  prohibit
\nor control in any way or impose any implied restrictions  or
\nlimitations on the power to amend the Constitution contained
\nin Aft. 368. [838 H]
\nIn re the Berubari Union and Exchange of Enclaves, [1960]  3
\nS.C.R. 250, referred to.\n<\/p>\n
(ix) The word ‘law’ in Art. 13(1) does not include. any\t law
\nin the nature of a constitutional.provision for no such\t law
\nremained in view of Art. 395 which provided that “the Indian
\nIndependence  Act,  1947 and the Government  of\t India\tAct,
\n1935, together with all enactments amending or supplementing
\nthe  latter  Act, but not including the Abolition  of  Privy
\nCouncil Jurisdiction Act, 1949, are hereby repealed.   There
\nis no reason why if the word ‘law’ in Art. 13(1) relating to
\npast laws does not include any constitutional provision the-
\nword  ‘law’  in\t cl.  (2) would take in\t an  amount  of\t the
\nConstitution for it would be reasonable to read the word  in
\nthe same sense in both the clauses. [839 D-F]
\nArticle\t 13 (2) when it talks of the State making  any\tlaw,
\nrefers to the law made under the provisions contained in Ch.
\n1  of Part XI of the Constitution beginning with  Art.\t245.
\nIt can have no reference to the
\n772<\/span>
\nConstituent  power of amendment under Art. 368.\t For  it  is
\nsomewhat  contradictory that in Art. 368 power\tshould\thave
\nbeen  given  to\t amend any  provision  of  the\tConstitution
\nwithout any limitations but indirectly that power should  be
\nlimited by using words of doubtful import in Art. 13(25.[841
\nC]
\nThe  power  conferred  by  the\twords  of  Art.\t 368   being
\nunfettered,  inconsistency  between.  that  power  and\t the
\nprovision  in  Art.  13(2) must be  avoided.   Therefore  in
\nkeeping with the unfettered power in Art. 368 the word ‘law’
\nin  Art. 13(2) must be read as meaning law passed under\t the
\nordinary   legislative\tpower  and  not\t  a   constitutional
\namendment.   The  words in Art. 13(2) are not  specific\t and
\nclear enough to be regarded as an express limitation on Art.\n<\/p>\n
368. [842 G-H]\n<\/p>\n
(x)  Merely  because there was some indirect effect on\tArt.
\n226  it\t was not necessary that\t the  Seventeenth  Amendment
\nshould\thave  been ratified under the proviso to  Art.\t368.
\nArt. 245 had not also been directly affected by the said Act
\nand  no\t ratification %-as required on this  ground  either.
\n[843 G-H; 846 C]\n<\/p>\n
(xi) The laws added to the Ninth Schedule by the Seventeenth
\nAmendment   Act\t had  already  been  passed  by\t the   State
\nLegislatures  and it was their constitutional infirmity,  if
\nany, which was being cured by the device adopted in Art. 31B
\nread  with the Ninth Schedule, the amendment being  only  of
\nthe relevant provisions of Part III which were compendiously
\nput in one place in Art. 31B.  Parliament could alone do  it
\nunder\tArt.  368  and\tthere  was  no\tnecessity  for\t any
\nratification under the proviso, for amendment of Part HI  is
\nnot entrenched in the proviso. [847 E]
\nIn curing the infirmity of the said laws Parliament was\t not
\nencroaching  on\t the  exclusive legislative  powers  of\t the
\nStates\tbecause\t only Partiament could card  the  infirmity.
\nFor the same reason the fact that the laws in question\twere
\nState laws did. not make  ratification\tobligatory.. [847 G]
\nA limited meaning cannot be given to Art, 368 because of the
\npossibility of abuse of the power.  The check is not in\t the
\ncourts\tbut in the people who plect members  of\t Parliament.
\n[848 F]
\nThe  power  of\tamendment contained  in\t a  written  federal
\nconstitution  is  a  safety valve which to  a  large  extent
\nprovides for stable growth and makes violent revolution more
\nor  less  unnecessary.\tThe fact that in  the  last  sixteen
\nyears a large number of amendments , could be made and\thave
\nbeen  made  is due to the accident that one party  has\tbeen
\nreturned  by electors in sufficient strength to be  able  to
\ncommand\t Special majorities which are required in Art.\t368,
\nnot  only at the Centre but in all the States.\tBut that  is
\nno ground for limiting the clear words of Art. 368. [850  C-
\nD, E]\n<\/p>\n
(xii)Though  the period for which Sankari Prasad’s case\t has
\nstood  unchallenged  is\t not long, the\teffects\t which\thave
\nfollowed  on the passing of State laws on the faith of\tthat
\ndecision,  are so overwhelming that the decision should\t not
\nbe disturbed otherwise chaos will follow.  This is the
\nfittest\t possible  case\t in which  the\tprinciple  of  stare
\ndecisis should be applied [851 G]
\nKeshav Mills: Company,\t  Ltd  V  Commissioner\t  of Income-
\ntax,[1965] 2 S.C.R. 908, referred to.\n<\/p>\n
(xii)The  doctrine  of\tprospective  overruling\t cannot\t  be
\naccepted in this    country.  The doctrine accepted here  is
\nthat courts declare law and  that   a declaration made by  a
\ncourt is the law of the land and takes effect
\n773<\/span>
\nfrom  the  date\t the  law came\tinto  force.   It  would  be
\nundesirable  to give up that doctrine and supersede it\twith
\nthe doctrine of prospective overruling.\t [852,D-F]
\nMoreover a law contravening Art. 13(2) is void ab initio  as
\nheld  by  this Court in Deep Chand’s case and  Mahendra\t Lal
\nJaini’s\t case.\t In  the  face\tof  these  decisions  it  is
\nimpowible to apply the doctrine of prospective overruling to
\nordinary  laws.\t If constitutional law is to be\t treated  as
\nordinary  law the same principle applies.  If however it  is
\nnot  treated  as  ‘law’ under Art. 13(2) then  there  is  no
\nnecessity   of\t applying  the\tprinciple   of\t prospective
\noverruling  for\t in that case the amendment under  Art.\t 368
\ndoes  not have to be tested under Art. 13(2). [852 G-H;\t 853
\nB]
\nDeep Chand v. St ate of Uttar Pradesh, [1959] Supp. 2 S.C.R.
\n8 and Mahendra, Lal Jaini v. State of Uttar Pradesh,<\/a>  [1963]
\nSupp.  1 S.C.R. 912, referred to.\n<\/p>\n
Per  Bachawat  J.-(i) Article 368 not  only  prescribes\t the
\nprocedure  but\talso gives the power of\t amendment.   It  is
\nbecause\t the power to amend is given by the article that  by
\nfollowing  its\tprocedure the Constitution  stands  amended.
\nThe  proviso is enacted on the assumption that\tthe  several
\narticles mentioned in it are amendable; but for the  proviso
\nthey  would have been amendable under the main part.   There
\nis no other provision in the Constitution under which  these
\narticles’ can be amended. [904 D]
\nArticles  4, 169, Fifth Schedule Part D and  Sixth  Schedule
\nPara 21 empower the Parliament to make amendments to certain
\nparts of the Constitution by law, and by, express  provision
\nsuch  law is deemed not to be amendment for the\t purpose  of
\nArt.  368.  All other provisions of the Constitution can  be
\namended\t by  recourse to Art. 368 only.\t  No  other  article
\nconfers the power of amending the Constitution. [904E-F]\n<\/p>\n
(ii) The  power to amend the Constitution cannot be said  to
\nreside in Art. 248 and List 1, item 97 because if  amendment
\ncould be made by ordinary legislative process Art. 368 would
\nbe meaningless.\t Under the residual power the Parliament has
\nno  competence\tto make any law with respect to\t any  matter
\nenumerated  in\tLists II and III of the\t 7th  Schedule,\t but
\nunder  Art.  368  even\tLists 11 and  III  can\tbe  amended.
\nMoreover a law passed by residual power is passed by  virtue
\nof  Art.  245 and must be subject to the provisions  of\t the
\nConstitution   so   that  it  cannot   derogate\t  from\t the
\nConstitution or amend it.  Such a law would be void. [905 C-
\nP]\n<\/p>\n
(iii)\t  Article  368\tgives the power\t of  amending  ‘this
\nConstitution’.\t This Constitution means every part  of\t the
\nConstitution  including Part ITT and Art. 13(2).  Thus\tArt.
\n13(2)  is  also\t within the reach  of  the  amending  power.
\nInstead\t of  controlling Art. 368 it is controlled  by\tthat
\nArticle. [906 C-D; H]\n<\/p>\n
(iv) The  contention that a constitutional  amendment  under
\nArt.  368  is a law within the meaning of Art.\t13  must  be
\nrejected.  The distinction between the Constitution and\t law
\nis so fundamental that the Constitution is not regarded as a
\nlaw  or\t a  legislative act.  The  Constitution\t mean-,\t the
\nConstitution  as amended.  An amendment made  in  conformity
\nwith Art. 368 is a part of the Constitution and is  likewise
\nnot  law.  Save as expressly provided in Arts. 4, 169  Fifth
\nSchedule Part D and Sixth Schedule para 21 no law can  amend
\nthe  Constitution and a law which purports to make  such  an
\namendment  is  void.  It is for this reason  that  Art.\t 368
\navoids all reference to law making by the Parliament.  There
\n3 Sup.\tCI.\/67-4
\n774<\/span>
\nare.  also  material differences between  the  ordinary\t law
\nmaking\tprocedure and the procedure under the Article.\t[907
\nB-F; 908 D-H]
\nIf  a  constitutional amendment creating a  new\t fundamental
\nrights and incorporating it in Part III were a law, it would
\nnot  be open to the Parliament by a subsequent amendment  to
\nabrogate  the  new fundamental right for such  an  amendment
\nwould  be  repugnant  to Part 111.  But\t the  conclusion  is
\nabsurd for the body which enacted the right can surely\ttake
\nit away by the same process. [909 E]
\nMarbury\t v.  Madison, (1803) 1 Cranch 137 :2  L.Ed.  60\t and
\nRiley v. Carter, 88 A.L.R. 1008, referred to.\n<\/p>\n
(v)  There is no conflict between Arts. 13(2) and 368.\t The
\ntwo articles operate in different fields, the former in\t the
\nfield\tof  law,  the  latter  in  that\t of   constitutional
\namendment. [910 B]\n<\/p>\n
(vi) The  non-obstante clause in Art. 35 does not show\tthat
\nthe article is not amendable.  The non-obstante clause is to
\nbe found also in, Arts. 258(1). 364, 369, 370 and 371A.\t  No
\none  has  suggested that these articles are  not  amendable.
\n[910 D]\n<\/p>\n
(vii)\t  The  words ‘fundamental’ used in regard to  rights
\nin  Part III and the word guaranteed in Art. 32 do not\tmean
\nthat the said rights cannot be amended.\t The constitution is
\nnever  at rest; it changes with the progress of\t time.\t The
\nscale  of  values in Parts III and IV is  not  immortal\t and
\nthese  Parts being parts of the Constitution are not  immune
\nfrom amendment under Art. 368. [910 F-G]
\nThe impugned amendments to be Constitution were made to meet
\nthe  situations\t created by decisions of this Court  and  to
\ncarry  out urgent agrarian reforms.  If it is held that\t the
\nrights,\t conferred by Part III cannot be abridged  or  taken
\naway  by  constitutional amendments,  all  these  amendments
\nwould  be invalid.  The Constitution makers could  not\thave
\nintended  that the ‘ rights conferred by Part III could\t not
\nbe  altered for’ giving effect to the policy of\t Part.\t IV.
\nNor  was it intended that defects in Part III could  not  be
\ncured or that possible errors in judicial interpretations of
\nPart   III   could  not\t be  rectified\t by   constitutional
\namendments. [913 D-E]\n<\/p>\n
(viii)\t  It  cannot be said that the people in exercise  of
\ntheir  sovereign  power have placed the\t fundamental  rights
\nbeyond\tthe reach of the amending power.  The people  acting
\nthrough\t the  Constituent Assembly reserved  for  themselves
\ncertain\t rights and liberties and ordained that\t they  shalt
\nnot be curtailed by ordinary legislation.  But the people by
\nthe same Constitution also authorised the Parliament to make
\namendments to the Constitution.\t In exercise of the amending
\npower the Parliament has ample authority to, abridge or take
\naway the fundamental rights under Part III [915 B-C]
\nMerely because of possibility of abuse, the power cannot  be
\ndenied. [916 H]
\nWebb  v. Outrim, [1907] A.C. 81 and amalgamated\t Society  of
\nEngineers’.   The Adelaide Steamship Company Limited &\tOrs.
\n28 C.L.R. 129, referred to.\n<\/p>\n
(ix) The  main part of Art. 368 gives the power to amend  or
\nmake   changes\tin  the\t Constitution.\t A  change  is\t not
\nnecessarily  an\t improvement.  Normally the change  is\tmade
\nwith the object of making an improvement but the  experiment
\nmay fail to achieve the purpose. [916 A]
\nLivermore  v.  E. G. Waite, 102 Cal. 113-25 L.R.A.  312\t and
\nNational Prohibition case. 253 U.S. 350, referred to.\n<\/p>\n
\t\t\t\t     77 5\n<\/p>\n
(x)  The  best exposition of the Constitution is that  which
\nit has received from contemporaneous judicial decisions\t and
\nenactments.   No one in Parliament doubted  the\t proposition
\nthat  fundamental  rights could be amended, when  the  First
\nAmendment   Act\t of  1951  was\tpassed.\t  The\tconcept\t  of
\namendability  was upheld in S. Krishnan & Ors. v.  State  of
\nMadras<\/a> [1951] S.C.R. 621 decided in 1951,’in Sankari  Prasad
\ndecided in 1952 and Sajjan Singh decided in 1964. [918 C-D]\n<\/p>\n
(xi) There is no provision in the Constitution for calling a
\nconvention  for\t its  revision\tor  far\t submission  of\t any
\nproposal for amendment to the referendum. [918 G]\n<\/p>\n
(xii)\t  The impugned amendments affected Arts. 226 and 245
\nonly  indirectly and did not require ratification under\t the
\nproviso to Art. 168. [919 D-H]
\nIn   validating\t the  impugned\tlaws  Parliament   was\t not
\nencroaching on-.the State List.\t It was only validating\t the
\nsaid laws and such constitutional validating was within\t its
\ncompetence. [920 C-E]\n<\/p>\n
(xiii)\t  The abolition of Zamindari was a necessary reform.
\nIt  is the First Constitution Amendment Act that  made\tthis
\nreform\tpossible.,  No\tlegal  argument’  can  restore\t the
\noutmoded  feudal Zamindari system.What has been done  cannot
\nbe undone.  The battle for the put is lost. [921 B-C]
\nIf the First Fourth, Sixteenth & Seventeenth Amendments Acts
\nare  void  they do not legally exist from  their  inception.
\nThey  cannot  be,  valid  from\t1951  to  1967\tand  invalid
\nthereafter.   To  say that they were valid in the  past\t and
\nWill be invalid in the future is to amend  the.Constitution.
\nSuch  a naked power of amendment is not given to the  Judges
\nand therefore the doctrine of prospective overruling  cannot
\nbe, adopted. [921 D-E]
\nIt  is\tnot  possible  to say  that  the  First\t and  Fourth
\nAmendments  though originally valid have now been  validated
\nby acquiescence.  If they infringe Art. 13(2) they were void
\nfrom their inception.  If these ammendments are validated by
\nacquiescence the Seventeenth Amendment is equally validated.
\n[921 F; 922 B]\n<\/p>\n
(xv) The  contention  that Dr. Ambedkar did not\t regard\t the
\nfundamental  rights  as amendable is not  supported  by\t the
\nspeeches in the’ Constituent Assembly. [922 C-D]
\nPer Ramaswami J.(i) In a written Constitution the  amendment
\nof the Constitution is a substantive constituent act  which,
\nis  made  in the exercise of the sovereign power  through  a
\npredesigned procedure unconnected with ordinary legislation.
\nThe  amending  power in Art. 368 is hence  sui\tgeneris\t and
\ncannot\tbe  compared to the law making power  of  Parliament
\npursuant to Art. 246 read with Lists II and Ill.  It follows
\nthat the expression ‘law’ in Art. 13(2) cannot be  construed
\nas  including  an  amendment of the  Constitution  which  is
\nachieved   by  Parliament  in  exercise\t of  its   sovereign
\nconstituent  power but must mean law made by  Parliament  in
\nits legislative capacity under Art. 246 read ‘with I List  I
\nand  III of the 7th Schedule.  It is also clear on the\tsame
\nline of reasoning that law in Art. 13(2) cannot be construed
\nso  as\tto include “law’ made by Parliament under  Arts.  4,
\n169, 392, 5th Schedule Part 1 and 6th Schedule para 21.\t The
\namending power of Parliament exercised under these  Articles
\nstands on the same pedestal as the constitutional amend ment
\nmade under Art. 368 so far as Art. 13(2) is concerned.\t[930
\nH 931 E]\n<\/p>\n
(ii) The  language  of\tArt. 368 is  perfectly\tgeneral\t and
\nempowers  Parliament to amend the Constitution\twithout\t any
\nexception whatsoever.\n<\/p>\n
776<\/span><\/p>\n
The use of the word ‘fundamental’ to describe the rights  in
\nPart  III and the word ‘guaranteed’ in Art. 32\tcannot\tlift
\nthe fundamental rights above the Constitution itself [931 F,
\nH]\n<\/p>\n
(iii)\t  It  is unreasonable to suggest that what Art.\t 368
\nprovides  is  only  the\t mechanics  of\tthe  procedure\t for
\namendment and not the power to amend.  The significant\tfact
\nthat  a separate part has been devoted in  the\tConstitution
\nfor  “amendment of the constitution” and there is  only\t one
\nArticle\t in  that  Part shows that both the  power  and\t the
\nprocedure to amend are enacted in Art. 368.  Again the words
\n“the Constitution shall stand amended in accordance with the
\nterms  of  the\tBill” in Art. 368  clearly  contemplate\t and
\nprovide for the power to amend after the requisite procedure
\nhas been followed. [932 C-E]\n<\/p>\n
(iv) The  power\t of  constitutional  amendment\tcannot\tfall
\nwithin Arts. 246 and 248 read with item 97 of List I because
\nit is illogical and a contradiction in terms to say that the
\namending  power can be exercised “subject to the  provisions
\nof the Constitution” as the power under these articles\tmust
\nbe. [933 B]\n<\/p>\n
(v) There is no room for an implication in the\tconstruction
\nofArt. 368.    If  the\tConstitution makers  wanted  certain
\nbasic  features to be unamendable they would have  said\t so.
\n[933 G-H]
\nState of West Bengal v. Union of India,<\/a> [1964] 1 S.C.R.\t 371
\nand In re The Berubari Union and Exchange of Enclaves [1960]
\n3 S.C.R. 250, referred to.\n<\/p>\n
The  concepts  of  liberty and\tequality  are  changing\t and
\ndynamic\t and hence the notion of permanency or\timmutability
\ncannot\tbe attached to any of the fundamental  rights.\t The
\nadjustment  between  freedom  and  compulsion,\tbetween\t the
\nrights\tof individuals and the social interest\tand  welfare
\nmust  necessarily  be  a  matter  for  changing\t needs\t and
\nconditions.  The proper approach is therefore to  look\tupon
\nthe  fundamental rights of the individual as conditioned  by
\nsocial responsibility, by the necessities of the society, by
\nthe  balancing\tof  interests and not  as  pre-ordained\t and
\nuntouchable private rights. [934 E-935 C]\n<\/p>\n
(vi) It\t must  not be forgotten that neither the  rights  in
\nArt. 31 nor those in Art. 19 are absolute.  The purposes for
\nwhich\tfundamental  rights  can  be  regulated\t which\t are
\nspecified in cls. (2) to (6) could not have been assumed  by
\nthe  Constitution  makers  to be  static  and  incapable  of
\nexpansion.   It\t cannot\t be assumed  that  the\tConstitution
\nmakers\tintended  to  forge a  political  strait-jacket\t for
\ngenerations  to\t come.\tToday at a time when  absolutes\t are
\ndiscredited,  it must not be too readily assumed that  there
\nare  basic  features of the Constitution which\tshackle\t the
\namending  power and which take precedence over\tthe  general
\nwelfare\t of  nation  and the need for  agrarian\t and  social
\nreform. [936 B-937 C]\n<\/p>\n
(vii)\t  In construing Art. 368 it is essential to remember
\nthe  nature  and  subject  matter of  that  Article  and  to
\ninterpret it subjectae materies.  The power of amendment  is
\nin  point  of quality an adjunct of sovereignty.  It  is  in
\ntruth  the  exercise of the highest sovereign power  in\t the
\nState. if the amending power is an adjunct of sovereignty it
\ndoes not admit of any limitations. [937 D]\n<\/p>\n
(viii)\t  If  the fundamental rights are unamendable and  if
\nArt. 368 does not include any such power it follows that the
\namendment  of, say, Art. 31 by insertions of Arts.  31A\t and
\n31B  can  only\tbe  made by a  violent\trevolution.   It  is
\ndoubtful  if the proceedings of a new  Constituent  Assembly
\nthat may be called will have any legal validity for if the
\n777<\/span>
\nConstitution provides its own method of amendment, any other
\nmethod will be unconstitutional and void. [490 A-B]
\nGeorge\tS.  Hawke  v.  Harvey C. Smith,\t 64  L.Ed.  871\t and
\nFeigenspan v.  Bodine, 264 Fed. 186, referred to.\n<\/p>\n
(ix) It is not permissible in the first place to assume that
\nin a matter of constitutional amendment there will be  abuse
\nof  power and then utilise it as a test for finding out\t the
\nscope of the amending power.  In the last analysis political
\nmachinery  and artificial limitations will not\tprotect\t the
\npeople from themselves. [941 F-G]
\nState of West Bengal v. Union of India,<\/a> [1964] 1 S.C.R.\t 371
\nand  American Federation of Labour v. American Sash  &\tDoor
\nCo. 335 U.S. 538, referred to.\n<\/p>\n
(x)  What the impugned Act purports to do is not to make any
\nand legislation but to protect and validate the\t legislative
\nmeasure\t passed by different State legislatures.   This\t was
\nwithin the legislative competence of Parliament. [942 F]
\nLeser v. Garnett, 258 U.S. 130, National Prohibition  Cases.
\n253  U.S.  350 and United States v. Sprague, 282  U.S.\t716,
\nreferred to.\n<\/p>\n
Articles  226  and 245. were not directly  affected  by\t the
\nimpugned  Act  and therefore no ratification  by  the  State
\nLegislatures was necessary. [942 D-H; 945 D]
\nA.   K.\t Gopalan v. State of Madras,<\/a> [1950] S.C.R.  88,\t Ram
\nSingh  & Ors. v.  State of Delhi & Anr., [1951] S.C.R.\t451,
\nExpress\t Newspapers  (Pvt.) Ltd. v. Union of  India,<\/a>  [1959]
\nS.C.R. 12, Atiabari Tea Co. Ltd. v. State of Assam,<\/a> [1961] 1
\nS.C.R.\t809  and  Naresh  Shridhar  Mirajkar  v.  State\t  of
\nMaharashtra<\/a> [1966] 3 S.C.R. 744, referred to.\n<\/p>\n
(xi) Even  on  the  assumption\tthat  the  impugned  Act  is
\nunconstitutional  the  principle of stare  decisis  must  be
\napplied\t to  the  present  case and the\t plea  made  by\t the
\npetitioners for reconsideration of Sankari Prasad’s case and
\nSajjan Singh’s case must be rejected. [948 D-E]
\nOn  the landings it was not necessary to express an  opinion
\non  the doctrine of prospective overruling  of\tlegislation.
\n[948 G-H]<\/p>\n
&
\nORIGINAL JURISDICTION: Writ Petition No. 153 of 1966. (Under
\nArticle\t 32 of the Constitution of India for enforcement  of
\nthe Fundamental Rights)
\nAnd
\nWrit Petition No. 202 of 1966.\n<\/p>\n
(Under Article 32 of the Constitution of India for  enforce-
\nment of the Fundamental Rights)
\n\t\t\t    And
\nWrit Petition No. 205 of 1966.\n<\/p>\n
(Under\t Article  32  of  the  Constitution  of\t India\t for
\nenforcement of the Fundamental Rights)
\n778<\/span>
\nIn Writ Petition No. 153 of 1966.\n<\/p>\n
R. V.\t  S.  Mani,  S. K, Mehta and K. L.  Mehta,<\/a>  for\t the
\npetitioners.\n<\/p>\n
Niren,De, Additional Solicitor-General\t    of India,and
\nR. N. Sachthey, for the Respondents.\n<\/p>\n
Niren De, Additional Solicitor-General of India,G.Rajagopal,
\nand R. H. Dhebar,for Intervener Ng. 1.\n<\/p>\n
S.   D.\t Banerjee,  Advocate-General for the State  of\tWest
\nBengal,
\nB.   Sen and P. K. Bose,for Intervener No.2.\n<\/p>\n
Lal Narain Sinha, Advocate-General for the State of Bihar,
\nBajrang\t Saha, M. M. Gajadhar, K. M. K. Nair, D. P.   Singh,
\nM.  K.\tRamamurthi, R. K. Garg, S. C.. Agarwala\t and  G.  D.
\nGupta, for Intervener No. 3.\n<\/p>\n
Mohan  Kumaramangalam.,\t Advocate-General for the  State  of
\nMadras, B.  Ramamurthi and A. V. Rangam, for Intervener No.
\nV. D. Mahajan and R. H. Dhebar, for Intervener No., 5.
\nK.   L.\t Mishra,  Advocate-General for the  State  of  Uttar
\nPradesh, and O. P. Rana, for Intervener No., 6.
\nV.   A.\t Seyid\tMuhamad, Advocate-General for the  State  of
\nKerala,\t B.  R. L. Iyengar, A. G. Pudissery, for  Intervener
\nNo. 7.\n<\/p>\n
Naunit Lal, for Intervener No. 8.\n<\/p>\n
K.   B. Mehta, for Intervener No. 9.\n<\/p>\n
P.   Ram  Reddy and T. V. R. Tatachari, for  Intervener\t No.\n<\/p>\n
10.
\nM.   C.\t Stealvad,  B. R. L. Iyengar and R. H.\tDhebar,\t for
\nInter-vener No. 11.\n<\/p>\n
R.   Thiagarajan, for Intervener No. 12.\n<\/p>\n
D.   N. Mukherjee, for Interveners Nos. 13 and 19 to 21.
\nE.   Udayairatnam, S. S. Dalal and D.  D. Sharma, for Inter-
\nveners Nos. 14 and 15.\n<\/p>\n
R.   K Garg, D.. P. Singh, M. K. Ramamurthi, S. C. Agarwala,
\nG. D. Gupta and K. M. K. Nair’\t    for Intervener No. 16.
\n‘K.  Parasaran and K. R. Chaudhuri, for Intervener No. 17.
\nBasudev\t Prasad,  K.  Parasaran and  K.\t R.  Chaudhuri,\t for
\nIntervener No. 18.\n<\/p>\n
Basudev-Prasad,\t K. Rajendra Chaudhuri, K. R. Chaudhuri\t and
\nS. N. Prasad, for Interveners Nos. 22 to 24.\n<\/p>\n
779<\/span><\/p>\n
in Writ Petition No. 202 of 1966.\n<\/p>\n
M.K.  Nambyar,\tK. B. Jinaraja Hegde,  N.  A.,\tSubramaniam,
\nBhuvanesh Kumari, O. C. Mathur, J. B. Dadachanji and  Ravin-
\nder Narain, for the Petitioner.\n<\/p>\n
H.   R.\t Gokhale,  B. P.. G. K. Achar, K. H. Dhebar,  R.  N.
\nSachthey and S. P. Nayyar, for Respondent No. 1.
\nNiren De, Additional Solicitor-General, N. S. Bindra and
\nR.   N. Sachthey, for Respondent No. 2.\n<\/p>\n
A.  K. Sen, F. S. Nariman, M. L. Bhakte, S. I.\tThakere,  J.
\nB.\n<\/p>\n
Dadachanji, O. C. Mathur and Ravinder Narain, for Intervener
\nNo. 1.\n<\/p>\n
N.   A.\t Palkhiwala,  F.  S. Nariman, M. L.  Bhakte,  D.  M.
\nPopat,0.  P.  Malhotra, J. B. Dadachanji, O. C.\t Mathur\t and
\nRavinder Narain, for Intervener No. 2.\n<\/p>\n
D.   M., Parulekar B. Dutta, J. B.  Dadachanji, O. C. Mathur
\nand Ravinder Narain, for Intervener No. 3.
\nIn Writ Petition No. 205 of 1966.\n<\/p>\n
M.   K.\t Nambyar, K. B. Jinaraja Hegde, N.  A.\tSubramaniam,
\nBhuvanesh Kumari, O. C. Mathur, J. B. Dadachanji and  Ravin-
\nder Narain, for the Petitioner.\n<\/p>\n
H. R. Gokhale, B. R. G. K. Achar, R. H. Dhebar and S. P.
\nNayyar, for Respondent No. 1.\n<\/p>\n
S.   G.\t Patwardhan,  D.  M.  Parulekar,  B.  Dutta,  S.  K.
\nDhelika,\n<\/p>\n
1.   B.\t Dadachanji, O. C. Mathur and Ravinder\tNarain,\t for
\nthe Intervener.\n<\/p>\n
The  Judgment  Of SUBBA RAO, C.J., SHAH, SIKRI,\t SHELAT\t and
\nVAIDIALINGAM, JJ. was delivered by SUBBA RAO, C.I. According
\nto this Judgment-(i) the power to amend the Constitution  is
\nnot  to be found in Art. 368 but in Arts. 245, 246  and\t 248
\nread  with Entry 97 of List 1; (ii) the amending power\tcan.
\nnot  be used to abridge or take away the fundamental  rights
\nguaranteed  in\tPart III of the Constitution;  (iii)  a\t law
\namending  the  Constitution is “Law” within the\t meaning  of
\nArt.  13(2)  and  (iv). the First,  Fourth  and\t Seventeenth
\nAmendments  though  they abridged  fundamental\trights\twere
\nvalid in the past on the basis of earlier decisions of\tthis
\nCourt  and  continue  to be valid for the  future.   On\t the
\napplication of the doctrine of “prospective over-ruling”, as
\nenunciated  in\tthe judgment, the decision  will  have\tonly
\nprospective  operation and Parliament will have no power  to
\nabridge or take away Fundamental Rights from the date of the
\njudgment.\n<\/p>\n
The  Judgment  of  WANCHOO, BHARGAVA  and  MITTER,  JJ.\t was
\ndelivered by WANCHOO, J. According to this Judgment (i) the
\n780<\/span>
\npower  of amending the Constitution resides in Art. 368\t and
\nnot in Arts. 245, 246 and 248, read with EntrY 97 of List 1;\n<\/p>\n
(ii)  there,  are  no  restrictions  on\t the  power  if\t the
\nprocedure  in Art. 368 is followed and all the Parts of\t the
\nConstitution  including Part III, can be amended,  (iii)  an
\namendment  of  the  Constitution is not\t “‘law”\t under\tArt.
\n13(2);\tand  (iv) the doctrine of  “prospective\t overruling”
\ncannot be applied in India.\n<\/p>\n
HIDAYATULLAH, J. delivered a separate judgment agreeing with
\nSUBBA  RAo,  CJ. on the following two points: (i)  that\t the
\npower to amend the Constitution cannot be used to abridge or
\ntake  away fundamental rights; and (ii) that a law  amending
\nthe Constitution is “law” under Art. 13 (2).  He agrees With
\nWANCHOO, J. that the power to amend does not reside in Arts.
\n245 and 248 read wish Entry 97 of List 1.\n<\/p>\n
Art.  368, according to him, is sui generis  and  procedural
\nand  the  procedure when correctly followed, results  in  an
\namendment.  He does not rely on the doctrine of “prospective
\noverruling”.   As  regards  the First,\tFourth\tand  Seventh
\nAmendments, these having long enured and been acquiesced in,
\nhe  does not treat the question of their validity  as  being
\nbefore\thim.  As regards the Seventeenth Amendment he  finds
\nsufficient support for it in the Constitution as amended  by
\nthe First, Fourth and Seventh Amendments and holds that\t the
\nnew  definition\t of “estate”, introduced by  the  Amendment,
\nthough\tit is “law” under Art. 13 (2) and is an inroad\tinto
\nfundamental  rights,  is  beyond the  reach  of\t the  courts
\nbecause it falls within the word “law” in Arts. 31 (1), (2),
\n2A  and\t 31A(1).   He, however, declares section  3  of\t the
\nSeventeenth  Amendment Act ultra vires the amending  process
\nas an illegitimate exercise of the amending power.
\n[BACHAWAT  and RAMASWAMI, JJ. delivered\t separate  judgments
\nconcurring with WANCHOO, J.]
\nSubbarao,   C.J.  These\t three\twrit  petitions\t raise\t the
\nimportant  question  of\t the validity  of  the\tConstitution
\n(Seventeenth Amendment) Act, 1964.\n<\/p>\n
Writ  Petition No. 153 of 1966, is filed by the\t petitioners
\ntherein\t against  the  State of\t Punjab\t and  the  Financial
\nCommissioner, Punjab.  The petitioners are the son, daughter
\nand granddaughters of one Henry Golak Nath, who died on July
\n30,  1953.  The Financial Commissioner, in revision  against
\nthe  order  made by the Additional  Commissioner,  Jullundur
\nDivision,  held by an order dated January 22, 1962  that  an
\narea  of 418 standard acres and 9-1\/4 units was\t surplus  in
\nthe  hands  of the petitioners under the provisions  of\t the
\nPunjab Security of Land Tenures Act X of 1953, read with  s.
\n10-B  thereof.\tThe petitioners, alleging that the  relevant
\nprovisions of the said Act where under the said area was
\n781<\/span>
\ndeclared surplus were void on the ground that they infringed
\ntheir  rights under cls. (f) and (g) of Art. 19 and Art.  14
\nof  the Constitution, filed a writ in this Court under\tArt.
\n32 of the Constitution for a direction that the Constitution
\n(First Amendment) Act 1951, Constitution (Fourth  Amendment)
\nAct,  1955, Constitution (Seventeenth Amendment) Act,  1964,
\ninsofar\t as  they  affected their  fundamental\trights\twere
\nunconstitutional and inoperative and for a direction that s.
\n10-B  of  the said Act X of 1953 was void  as  violative  of
\nArts. 14 and 19 (1) (f) and (g) of the Constitution.
\nWrit  Petitions\t Nos.  202 and 203 of  1966  were  filed  by
\ndifferent petitioners under Art. 32 of the Constitution\t for
\na  declaration that the Mysore Land Reforms Act (Act  10  of
\n1962) as amended by Act 14 of 1965, which fixed ceilings  on
\nland  holdings and conferred ownership of surplus  lands  on
\ntenants\t infringed Arts. 14, 19 and 31 of  the\tConstitution
\nand, therefore, was unconstitutional and void.
\nThe States of Punjab and Mysore, inter alia, contended\tthat
\nthe said Acts were saved from attack on the ground that they
\ninfringed  the\tfundamental  rights of\tthe  petitioners  by
\nreason\tof  the Constitution  (Seventeenth  Amendment)\tAct,
\n1964,  which, by amending Art. 31-A of the Constitution\t and
\nincluding the said two Arts in the 9th Schedule thereto, had
\nplaced them beyond attack.\n<\/p>\n
In Writ Petition No. 153 of 1966, 7 parties intervened.\t  In
\nWrit  Petition\tNo. 202 of 1966 one  party  intervened.\t  In
\naddition,  in  the first petition, notice was given  to\t the
\nAdvocates  General  of\tvarious\t States.   A11\tthe  learned
\ncounsel\t appearing  for the parties, the  Advocates  General
\nappearing  for\tthe States and the learned counsel  for\t the
\ninterveners   have,  placed  their   respective\t  viewpoints
\nexhaustively before us.\t We are indebted to all of them\t for
\ntheir  thorough\t preparation  and clear\t exposition  of\t the
\ndifficult  questions  of law that were raised  in  the\tsaid
\npetitions.\n<\/p>\n
At  the outset it would be convenient to place\tbriefly\t the
\nrespective  contentions\t under\tdifferent heads\t :  (1)\t The
\nConstitution is intended to be permanent and, therefore,  it
\ncannot\tbe  amended  in a way which would  injure,  maim  or
\ndestroy\t  its\tindestructible\tcharacter.  (2)\t  The\tword
\n“amendment”  implies such an addition or change\t within\t the
\nlines\tof  the\t original  instrument  as  will\t effect\t  an
\nimprovement or better carry out the purpose for which it was
\nframed\tand  it\t cannot be so construed\t as  to\t enable\t the
\nParliament  to\tdestroy\t the  permanent\t character  of\t the
\nConstitution.  (3) The fundamental rights are a part of\t the
\nbasic structure of the Constitution and, therefore, the said
\npower can be exercised only to preserve rather than  destroy
\nthe essence of those rights. (4) The limits on the power  to
\namend are implied in Art. 368, for the
\n782<\/span>
\nexpression   “amend”  has  a  limited  meaning.\t  The\twide
\nphraseo-logy  used  in the Constitution in  other  Articles,
\nsuch as “repeal” and “re-enact” indicates that art. 368 only
\nenables a modification of the Articles within the  framework
\nof  the\t Constitution  and a destruction of  them.  (5)\t The
\ndebates in the Constituent Assembly, particularly the speech
\nof  Mr. Jawahar Lal Nehru, the first PA= Minister of  India,
\nand the reply of Dr. Ambedkar, who piloted the Bill disclose
\nclearly that it was never the intention of the makers of the
\nConstitution by putting in Art. 368 to enable the Parliament
\nto  repeal the fundamental rights, the\tcircumstances  under
\nwhich  the amendment moved by Mr. H. V. Kamath, one  of\t the
\nmembers of Constituent Assembly, was withdrawn and Art.\t 368
\nwas  finally adopted, support the contention that  amendment
\nof  Part II, is outside the scope of Art. 368. (6) Part\t III
\nof  the\t Constitution  is a  self-contained  Code.  and\t its
\nprovisions  are\t elastic  enough  to  meet  all\t  reasonable
\nrequirements of changing situations. (7) The power to  amend
\nis  sought to be derived from three sources, namely, (i)  by
\nimplication  under Art. 368 itself; The procedure  to  amend
\nculminating in the amendment of the Constitution necessarily
\nimplies\t that power, (ii) the power and ,the limits  of\t the
\npower  to  amend are implied in the Articles  sought  to  be
\namended, and (iii) Art. 368 only lays down the procedure  to
\namend, but the power to amend is only the legislative  power
\nconferred on the Parliament under Arts. 245, 246 and 248  of
\nthe Constitution. (8) The definition of “law” in Art.  13(2)
\nof the Constitution includes every branch of law, statutory,
\nconstitutional, etc.,’ and therefore, the power to amend  in
\nwhichever  branch it may be classified, if it takes away  or
\nabridges  fundamental rights would be void  thereunder.\t (9)
\nThe impugned amendment detracts from the jurisdiction of the
\nHigh  Court under Art. 226 of the Constitution and also\t the
\nlegislative  powers  of the States and\ttherefore  it  falls
\nwithin the scope of the proviso to Art. 368.
\nThe  said summary, though not exhaustive, broadly gives\t the
\nvarious\t nuances  of the contentions raised by\tthe  learned
\ncounsel,  who question the validity of the  17th  Amendment.
\nWe  have  not noticed the other arguments  of  Mr.  Nambiar,
\nwhich  are peculiar to the Writ Petition No. 153 of 1966  as
\nthose  questions do not arise for decision, in the  view  we
\nare taking on the common questions.\n<\/p>\n
On  behalf of the Union and the States the following  points
\nwere  pressed  : (1) A Constitutional amendment is  made  in
\nexercise of the sovereign power and not legislative power of
\nParliament  and,.  therefore, it partakes  the\tquality\t and
\ncharacter   of\tthe  Constitution  itself.  (2)\t  The\treal
\ndistinction is between a rigid and a flexible  Constitution.
\nThe  distinction  is based upon the express  limits  of\t the
\namending power. (3) The provisions of Art.\n<\/p>\n
\t\t\t    783<\/span><\/p>\n
368-axe\t clear\tand unequivocal and there  is  no-scope\t for
\ninvoking  implied  limitations on that\tpower:\tfurther\t the
\ndoctrine  of impliedpower has been rejected by the  American
\ncourts and jurists. (4) The object of the amending clause in
\na  flexible  Consetitution is to enable\t the  Parliament  to
\namend  the Constitution in order to express the will of\t the
\npeople\taccording  to the changing course of events  and  if
\namending  power\t is restricted by implied  limitations,\t the
\nConstitution  itself  might  be\t destroyed  by\t revolution.
\nIndeed,\t it  is\t a safety valve and  an\t alternative  for  a
\nviolent\t change by revolution. (5) There- are no  basic\t and
\nnon-basic  features of the Constitution; everything  in\t the
\nConstitution is basic and it can be amended in order to help
\nthe future growth and progress of the country. (6)  Debates.
\nin  the\t Constituent  Assembly cannot  be  relied  upon\t for
\nconstruing Art. 368 of the Constitution and even if-they can
\nbe,  there  is nothing in the debates to  prove,  positively
\nthat  fundamental rights were excluded from  amendment.\t (7)
\nMost of the amendments are made out of political  necessity:
\nthey  involve, questions, such. as, how to exercise  power,,
\nhow to make the lot of the citizens better and the like and,
\ntherefore,  not being judicial questions, they\tare  outside
\nthe  court’s jurisdiction. (8) The language of Art.  368  is
\nclear,\tcategorical, imperative and universal, on the  other
\nhand,  the  language  of  Art. 13(2) is\t such  as  to  admit
\nqualifications or limitations and, therefore, the Court must
\nconstrue  them\tin such a manner as that Article  could\t not
\ncontrol\t Art.  368. (9) In order to  enforce  the  Directive
\nPrinciples  the Constitution was amended from time  to\ttime
\nand  the  great fabric of the Indian Union  has\t been  built
\nsince  1950  on\t the basis that the  Constitution  could  be
\namended\t and,  therefore, any reversal of,  the\t previous  I
\ndecisions would introduce economic chaos in our country\t and
\nthat,\ttherefore,   the  burden  is  very   heavy   uponthe
\npetitioners to establish that the fundamental rights  cannot
\nbe amended under Art. 368 of the Constitution. (10) Art. 31-
\nA  and the 9th Schedule do not affect the power of the\tHigh
\nCourt under Art. 226 or the legislative power of the  States
\nthough\t the  area  of\ttheir  operation  is  limited\tand,
\ntherefore, they do not fall within the scope of the  proviso
\nto Art. 3 68.\n<\/p>\n
The aforesaid contentions only represent a brief summary  of
\nelaborate arguments, advanced by learned counsel.  We  shall
\ndeal  in  appropriate context with the other  points  mooted
\nbefore US.\n<\/p>\n
\t      It  will\tbe convenient to read  the  material
\n\t      provisions of theConstitution at. this  stage.
\n\t      Article 13(1)
\n\t      (2)   The\t State shall not make any law  which
\n\t      takes away or   abridges the rights  conferred
\n\t      by this part and any law\tmade\t\t  in
\n\t      contravention  of this clause shall,  toy\t the
\n\t      extent of the contravention, be void.\n<\/p>\n
\t      784<\/span><\/p>\n
\t      (3)   In\tthis  article,\tunless\tthe  context
\n\t      otherwise requires,-\n<\/p>\n
\t      (a)   “law”  includes  any  Ordinance,  order,
\n\t      bye-law, rule regulation, notification, custom
\n\t      or usage having in the territory of India\t the
\n\t      force of law.\n<\/p>\n
\t      Article\t31-A(1),  Notwithstanding   anything
\n\t      contained in article 13, no law providing for,\n<\/p>\n
\t      (a)   the\t acquisition  by the  State  of\t any
\n\t      estate  or  of  any  rights  therein  or\t the
\n\t      extinguishment  or  modification of  any\tsuch
\n\t      rights,
\n\t      shall be deemed to be void on the ground\tthat
\n\t      it  is  inconsistent with, or  takes  away  or
\n\t      abridges\tany  of\t the  rights  conferred\t  by
\n\t      article 14, article 19 or article 31.\n<\/p>\n
\t      (2)   (a)\t the expression “estate”  shall,  in
\n\t      relation\tto  any local area,  have  the\tsame
\n\t      meaning  as  that\t expression  or\t its-  local
\n\t      equivalent has in the existing law relating to
\n\t      land  tenure in force in that area  and  shall
\n\t      also include,\n<\/p>\n
\t      (ii)  any land held under ryotwari settlement,\n<\/p>\n
\t      (iii) any\t land  held or let for\tpurposes  of
\n\t      agriculture   or\t for   purposes\t   ancillary
\n\t\t\t    thereto……\n<\/p>\n
\t      Article\t31-D.\tWithout\t prejudice  to\t the
\n\t      generality  of  the  provisions  contained  in
\n\t      article 31-A, none of the Acts and Regulations
\n\t      specified in the Ninth Schedule nor any of the
\n\t      provisions thereof shall be deemed to be void,
\n\t      or  ever\tto have become void, on\t the  ground
\n\t      that  such  Act, Regulation  or  provision  is
\n\t      inconsistent  with, or takes away or  abridges
\n\t      any of the rights conferred by, any provisions
\n\t      of   this\t Part,\tand  not  withstanding\t any
\n\t      judgment\tdecree\tor  order of  any  court  or
\n\t      tribunal\tto  the contrary, each of  the\tsaid
\n\t      Acts  and\t Regulations shall, subject  to\t the
\n\t      power  of any competent Legislature to  repeal
\n\t      or amend it, continue in force.\n<\/p>\n
In  the Ninth Schedule to the Constitution the\tMysore\tLand
\nReforms\t Act, 1961, (Mysore Act 10 of 1962) is\tincluded  as
\nitem  51 and the Punjab Security of Land Tenures  Act,\t1953
\n(Punjab\t Act  10  of  1953) is included\t as  item  54.\t The
\ndefinition  of “estate” was amended and the  Ninth  Schedule
\nwas  amended by including therein the said two Acts  by\t the
\nConstitution (Seventeenth Amendment) Act, 1964.\n<\/p>\n
785<\/span><\/p>\n
The result of the said amendments is that both the said Acts
\ndealing-   with\t estates,  within  their   wide\t  definition
\nintroduced by the Constitution (Seventeenth Amendment)\tAct,
\n1964, having been included in the Ninth Schedule, are placed
\nbeyond\tany attack on the ground that their  provisions\t are
\ninconsistent with or take away or abridge any of the  rights
\nconferred  by  Part III of the Constitution.  It  is  common
\ncase  that if the Constitution (Seventeenth Amendment)\tAct,
\n1964, was constitutionally valid, the said Acts could not be
\nimpugned on any of the said grounds.\n<\/p>\n
The  question of the amendability of the fundamental  rights
\nwas  considered\t by  this Court earlier\t in  two  decisions,
\nnamely,\t Sri Sankari Prasad Singh Deo v. Union of India\t and
\nState of Bihar(1) and in Sajjan Singh v. State of  Rajasthan
\n(2)<\/span>
\nIn the former the validity of the Constitution (First Amend-
\nment) Act, 1951, which inserted, inter alia, Arts. 31-A\t and
\n31-B  in the Constitution, was questioned.   That  amendment
\nwas  made  under  Art.\t368  of\t the  Constitution  by\t the
\nProvisional Parliament.\t This Court held that Parliament had
\npower to amend Part III of the Constitution.  The Court came
\nto  that  conclusion on two grounds, namely,  (1)  the\tword
\n“law” in Art. 13(2) was one made in exercise of\t legislative
\npower  and  not\t constitutional\t law  made  in\texercise  of
\nconstituent  power; and (ii) there were two articles  (Arts.
\n13(2)  and  368)  each\tof which  was  widely  phrased\tand,
\ntherefore, harmonious construction required that one  should
\nbe  so read as to be controlled and qualified by the  other,
\nand  having  regard to the circumstances  mentioned  in\t the
\njudgment  Art.\t13  must be read subject  to  Art.  368.   A
\ncareful\t perusal of’ the judgment indicates that  the  whole
\ndecision turned upon an assumption that the expression “law”
\nin Art 13(2) does not include constitutional law and on that
\nassumption  an attempt was made to harmonise Article 13\t (2)
\nand 368 of the Constitution.\n<\/p>\n
The decision in Sajjan Singh’s case(2) was given in the con-
\ntext  of  the question of the validity of  the\tConstitution
\n(Seventeenth  Amendment) Act, 1964.  Two questions arose  in
\nthat  case:  (1)  Whether  the\tamendment  Act\tinsofar\t  it
\npurported  to take away or abridge the rights  conferred  by
\nPart III of the Constitution fell within the prohibition  of
\nArt. 13(2) and (2) Whether Articles 31-A and 31-B sought  to
\nmake changes in Arts. 132, 136 or 226 or in any of the lists
\nin  the Seventh Schedule and therefore the  requirements  of
\nthe  proviso to Article 368 had to be satisfied.   Both\t the
\nChief Justice and Mudholkar, J. made it clear that the first
\ncontention  was\t not raised before the Court.\tThe  learned
\ncounsel\t  appearing  for  both\tthe  parties  accepted\t the
\ncorrectness  of the decision in Sankari Prasad’s case(1)  in
\nthat
\n(1) [1952] S.C.R. 89,105.\n<\/p>\n
(2) [1965] 1 S.C.R. 933, 946, 950, 959, 961, 963.\n<\/p>\n
786<\/span><\/p>\n
regard.\t Yet Gajendragadkar, C.J. speaking for the  majority
\n,agreed\t with the reasons given in Sankari Prasad’s  case(1)
\non  the first question and Hidayatullah and  Mudholkar,\t JJ.
\nexpressed their dissent from the-said view.  But all of them
\nagreed, though for different reasons on the second question.
\nGajendragadkar,\t C.J.  speaking\t for  himself,\tWanchoo\t and
\nRaghubar  Dayal, JJ. rejected the contention that  Art.\t 368
\ndid  not  confer  power\t on Parliament\tto  take.  away\t the
\nfundamental rights guaranteed by Part III. When a suggestion
\nwas  made that the decision in the aforesaid case should  be
\nreconsidered and reviewed, the learned Chief Justice  though
\nhe  conceded  that  in\ta  case-  where\t a  decision  had  a
\nsignificant  impact on the fundamental rights  of  citizens,
\nthe  Court would be inclined to review its earlier  decision
\nin  the\t interests  of\tthe public good,  he  did  not\tfind
\nconsiderations of substantial and compelling character to do
\nso  in\tthat case.  But after: referring  to  the  reasoning
\ngiven in Sankari Prasad’s case(1) the; learned Chief Justice
\nobserved
\n\t      “In our opinion , the expression “amendment of
\n\t      the,  Constitution” plainly and  unambiguously
\n\t      means  amendment of all the provisions of\t the
\n\t      Constitution.”\n<\/p>\n
Referring,  to Art. 13 (2), he restated the  same  reasoning
\nfound in, the earlier decision and added that if it was\t the
\nintention  of the Constitution-makers to  save,\t fundamental
\nrights from the amending,process they should have taken\t the
\nprecaution of making A-. clear provision in that regard.  In
\nshort,\tthe majority, speaking through\tGajendragadkar,\t C.L
\nagreed\tthat  no case had been made, out for  reviewing\t the
\nearlier decision and practically accepted the reasons  given
\nin the-earlier decision.  Hidyatullah J.     speaking\t for
\nhimself, observed
\n\t      “But  I  make  it clear that  I  must  not  be
\n\t      understood to have subscribed to the view that
\n\t      the word “law” in Art. 13(2) does not  control
\n\t      constitutional   amendments.,  I\treserve\t  my
\n\t      opinion  on that case for I apprehend that  it
\n\t      depends  on  how\twide  is  the  “law”in\tthat
\n\t      Article.”\n<\/p>\n
\t      After  giving  his reasons  for  doubting\t the
\n\t      correctness of the reasoning given in  Sankari
\n\t      Prasad’s case(1), the learned Judge  concluded
\n\t      thus :\n<\/p>\n
\t      “I  would require stronger reasons than  those
\n\t      given  in Sankari Prasad’s case(1) to make  me
\n\t      accept  the view that Fundamental Rights\twere
\n\t      not really fundamental but were intended to be
\n\t      within the powers of amendment in common\twith
\n\t      the  other  parts\t of  the  Constitution\t and
\n\t      without the concurrence of the States.”\n<\/p>\n
\t      (1)   [1952] S.C.R. 89.\n<\/p>\n
\t      787<\/span><\/p>\n
\t      The. learned Judge continued
\n\t      “The Constitution gives so many assurances  in
\n\t      Part  III that it would be difficult to  think
\n\t      that  they  were the playthings of  a  special
\n\t      majority.”\n<\/p>\n
Mudholkar, J. was positive that the result of a\t legislative
\naction\tof a legislature could not be other than “law”\tand,
\ntherefore,  it\tseemed\tto  him\t that  the  fact  that\t the
\nlegislation  dealt with the amendment of a provision of\t the
\nConstitution would not make, its results anytheless a ‘law”.
\nHe  further  pointed  out that Art. 368\t did  not  say\tthat
\nwhenever Parliament made an amendment to the Constitution it
\nassumed\t a  different capacity from that  of  a\t constituent
\nbody.\tHe  also brought out other defects in  the  line  of
\nreasoning  adopted  in Sankari Prasad’s case(1).   It  will,
\ntherefore,be  seen-that the correctness of the\tdecision  in
\nSankari\t Prasad’s  case(1)  was not  questioned\t in   Sajjan
\nSingh’s\t case(2) Though it was not questioned, three of\t the
\nlearned\t Judges agreed with the view expressed therein,\t but
\ntwo  learned Judges were inclined to take a different  view.
\nBut,  as that question was not raised, the  minority  agreed
\nwith  the  conclusion,\tarrived at by the  majority  on\t the
\nquestion whether the Seventeenth Amendment Act was,  covered
\nby  the\t proviso.  to Art. 368\tof  the\t Constitution.\t The
\nconflict between the majority and the minority in   Sajjan’s
\nSingh’s case(1) falls to be resolved in this case.  The said
\nconflict and, the great importance of the question raised is
\nthe  justification  for-..the  Constitution  of\t the  larger
\nBench., The decision in Sankri Prasad’s case(1) was  assumed
\nto be correct in subsequent decisions of this Court.  See S.
\nKrishnan  v. State of Madras<\/a>(1), The State-‘ of West  Bengal
\nv.   Anwar   All  Sarkar<\/a>(1)  and  Basheshar  Nath   v.\t The
\nCommissioner  of  Income-tax, Delhi and\t Rajasthan<\/a>(5).\t But
\nnothing\t turns\tupon that fact, as the\tcorrectness  of\t the
\nderision was not questioned-. in those cases.
\nA correct appreciation of the scope and the place of  funda-
\nmental\trights in our Constitution will give its  the  right
\nperspective for solving the problem presented before us, Its
\nscope  cannot be appreciated unless we have a conspectus  of
\nthe Constitution, its objects. and its machinery to  achieve
\nthose  object.\tThe objective sought- to be achieved by\t the
\nConstitution is declared in sonorous terms. in its  preamble
\nwhich reads
\n\t      “We  the\tpeople\tof  India  having   solemnly
\n\t      resolved to constitute India into a Sovereign,
\n\t      Democratic, Republic and to secure to all\t its
\n\t      citizens\t justice.  liberty.  equality.\t and
\n\t      fraternity-.\n<\/p>\n
(1)  [1952] S.C.R. 89
\n(3)  [1951] S.C.R. 621 at page 652.\n<\/p>\n
(2)  [1965] 1 S.C.R.933.\n<\/p>\n
(4) [1952] S.C.R. 284, 366.\n<\/p>\n
(5) [1959] Supp.  1 S.C.R. 528,563.\n<\/p>\n
788<\/span><\/p>\n
It  contains in a nutshell, its ideals and its\taspirations.
\nThe  preamble  is  not\ta platitude but\t the,  mode  of\t its
\nrealisation  is\t worked out in detail in  the  Constitution.
\nThe    Constitution   brings   into   existence\t   different
\nconstitutional\tentities, namely, the Union, the States\t and
\nthe  Union Territories.\t It creates three major\t instruments
\nof  power,  namely, the Legislature, the Executive  and\t the
\nJudiciary.   It demarcates their jurisdiction  minutely\t and
\nexpects\t them  to exercise their respective  powers  without
\noverstepping their limits.  They should function within\t the
\nspheres allotted to them.  Some powers overlap and some\t are
\nsuperseded  during emergencies.\t The mode of  resolution  of
\nconflicts   and\t  conditions  for  supersession\t  are\talso
\nprescribed.  In short, the scope of the power and the-manner
\nof its exercise are regulated by law.  No authority  created
\nunder  the  Constitution  is supreme;  the  Constitution  is
\nsupreme; and all the authorities function under the  supreme
\nlaw of the land.  The rule of law under the Constitution has
\na  glorious content.  It embodies the. modem concept of\t law
\nevolved over the centuries.  It empowers the Legislatures to
\nmake  laws in respect of matters enumerated in the  3  Lists
\nannexed\t to Schedule VII.  In Part IV of  the  Constitution,
\nthe Directive Principles of State Policy are laid down.\t  It
\nenjoins\t it to bring about a social order in which  justice,
\nsocial.\t  economic  and\t political-shall  inform   all\t the
\ninstitutions of national life.\tIt directs it to work for an
\negalitarian  society  where  there is  no  concentration  of
\nwealth,\t where\tthere  is  plenty,  where  there  is   equal
\nopportunity for all, to education, to work, to\tlivelihood’.
\nand  where there is social justice.  But, having  regard  to
\nthe  past  history of our country, it could  not  implicitly
\nbelieve the representatives of the people, for\tuncontrolled
\nand unrestricted power might lead to an authoritarian State.
\nIt,  therefore,\t preserves the natural\trights\tagainst\t the
\nState  encroachment and constitutes the higher judiciary  of
\nthe  State  as\tthe  sentinel of the  said  rights  and\t the
\nbalancing  wheel  between  the\trights,\t subject  to  social
\ncontrol.   In  short,  the fundamental\trights,\t subject  to
\nsocial\tcontrol, have been incorporated in the rule of\tlaw.
\nThat  is  brought about by an interesting process.   In\t the
\nimplementation\tof the Directive Principles,  Parliament  or
\nthe  Legislature of a State makes laws in respect of  matter
\nor  matters allotted to it.  But the higher Judiciary  tests
\ntheir  validity on certain objective criteria,\tnamely,\t (i)
\nwhether\t the  appropriate Legislature  has  the\t legislative
\ncompetency  to\tmake  the law; (ii)  whether  the  said\t law
\ninfringes  any of the fundamental rights; (iii) even  if  it
\nInfringement  the  freedoms  under  Art.  19,  whether\t the
\ninfringement  only  amounts to “reasonable  restriction”  on
\nsuch  rights  in  “public  interest.”  By  this\t process  of
\nscrutiny, the court maintains the validity of only such laws
\nas keep a just balance between freedoms and social  control.
\nThe  duty of reconciling fundamental rights in Art.  19\t and
\nthe laws of social control is cast upon the courts
\n789<\/span>
\nand the touchstone or the standard is contained in the\tsaid
\ntwo expressions.  The standard is an elastic one; it  varies
\nwith  time, space and condition.  What is  reasonable  under
\ncertain\t  circumstances\t may  not  be  so  under   different
\ncircumstances.\t The  constitutional philosophy\t of  law  is
\nreflected  in  Parts-1111 and IV of the\t Constitution.\t The
\nrule  of law under the Constitution serves the needs of\t the
\npeople\t without   unduly  infringing  their   rights.\t  It
\nrecognizes the social reality and tries to adjust itself  to
\nit  from-time,\tto  time avoiding  the\tauthoritarian  pat@.
\nEKery  institution or political party that  functions  under
\nthe  Constitution must accept it; otherwise it has no  place
\nunder the Constitution.\n<\/p>\n
Now, what are the fundamental rights ? They are embodied  in
\nPart III of the Constitution and they may be classified thus
\n:  (i) right to equality, (ii) right to freedom,  (iii)right
\nagainst exploitation, (iv) right to freedom of religion, (v)
\ncultural and educational rights, (vi) right to property, and\n<\/p>\n
(vii) right to constitutional remedies.\t They are the rights
\nof  the people preserved by our Constitution.\t“Fundamental
\nrights” are the modern name for what have been traditionally
\nknown  as “natural rights”.  As one author puts:  “they\t are
\nmoral rights which every human being everywhere at all times
\nought\tto  have  sim  y  because  of  the  fact   that\t  in
\ncontradistinction  with ot moral.” They are  the  primordial
\nment of human personality. man to chalk out his own life  in
\nis  rational and ry for the developrights which enable a  he
\nlikes best.  Our Constitution, in addition to the well-known
\nfundamental   rights,  also  included  the  rights  of\t the
\nminorities, untouchables and other backward communities,  in
\nsuch rights.\n<\/p>\n
After\thaving\t declared  the\t fundamental   rights,\t our
\nConstitution says that all laws in force in the territory of
\nIndia\timmediately   before   the   commencement   of\t the
\nConstitution, insofar as they are inconsistent with the said
\nrights, are, to the extent of such inconsistency, void.\t The
\nConstitution  also  enjoins the State not to  make  any\t law
\nwhich  takes away or abridges the said rights  and  declares
\nsuch laws, to the extent of such inconsistency, to be  void.
\nAs  we\thave  stated earlier, the only\tlimitation  c)n\t the
\nfreedom\t enshrined  in Art. 19 of the Constitution  is\tthat
\nimposed by a valid law rating as a reasonable restriction in
\nthe interests of the public.\n<\/p>\n
It  will,  therefore, be seen that  fundamental\t rights\t are
\ngiven\ttranscendental position under our  Constitution\t and
\nare  kept beyond the reach of Parliament.  At the same\ttime
\nParts 1111 and V constituted an integrated scheme forming  a
\nself-contained code.\t  The scheme is made so elastic that
\nall   the  Directive  ‘\t Principles  of\t State\tPolicy\t can
\nreasonably be enforced ‘without taking\n<\/p>\n
-up.  Cl\/67-5
\n790<\/span>
\naway or abridging the fundamental rights.  While recognizing
\nthe  immutability of fundamental rights, subject  to  social
\ncontrol,   the\tConstitutional\titself\tprovides   for\t the
\nsuspension  or the modification of fundamental rights  under
\nspecific  circumstances,  for  instance,  Art.\t33  empowers
\nParliament  to\tmodify the rights conferred by Part  III  in
\ntheir  application to the members of the armed forces,\tArt.
\n34 enables it to impose restrictions on the rights conferred
\nby the said parts while martial law is in force in an  area,
\nArt. 35 confers the power on it to make laws with respect to
\nany of the matters which under clause (3) of Art. 16, Clause
\n(3) of Art. 32,\t    Art. 33 and Art. 34\t\t\t may
\nbe provided for by law.\t The non-obstante clause with  which
\nthe\t   last article opens makes  it clear that  all\t the
\nother  provisions  of the Constitution are subject  to\tthis
\nprovision.   Article 32 makes the right to move the  Supreme
\nCourt, by appropriate proceedings for the enforcement of the
\nrights conferred by the said Parts a guaranteed right.\tEven
\nduring\t grave\temergencies  Art.  358\tonly  suspends\t the
\nprovisions of Art. 19; and Art. 359 enables the President by
\norder  to  declare  the\t right to move\tany  court  for\t the
\nenforcement  of such of the rights conferred by Part III  as
\nmay  be mentioned in that order to be suspended; that is  to
\nsay,  even  during  emergency, only  Art.  19  is  suspended
\ntemporarily and all other rights are untouched except  those
\nspecifically suspended by the President.
\nIn the Book “Indian Constitution-Corerstone of a Nation”  by
\nGranville Austin, the scope origin and the object of  funda-
\nmental\trights\thave been graphically stated.\tTherein\t the
\nlearned author says :\n<\/p>\n
\t      “……..\t the core of the commitment  to\t the
\n\t      social revolution lies in Parts III and IV, in
\n\t      the  Fundamental Rights and fit the  Directive
\n\t      Principles  of  State Policy.  These  are\t the
\n\t      conscience of the Constitution.”
\n\t      Adverting\t to the necessity for  incorporating
\n\t      fundamental  rights  in  a  Constitution,\t the
\n\t      learned author says
\n\t      That a declaration of rights had assumed\tsuch
\n\t      importance  was  not surprising; India  was  a
\n\t      land  of communities, of\tminorities,  racial,
\n\t      religious, linguistic, social and caste.\t For
\n\t      India  to become a state these minorities\t had
\n\t      to agree to be governed both at the centre and
\n\t      in  the  provinces by  fellow  Indian-members,
\n\t      perhaps,\tof  another minority-and  not  by  a
\n\t      mediatory\t third power, the British.  On\tboth
\n\t      psychological    and    political,    rounds.,
\n\t      therefore-,  the\tdemand\tfor  written   right
\n\t      rights  would  provide  tangible\t safeguards,
\n\t      against oppression-proved overwhelming.\n<\/p><\/blockquote>\n
791<\/span><\/p>\n
Motilal Nehru, who presided over the Committee called for by
\nthe Madras Congress resolution, in May, 1928 observed in his
\nreport :\n<\/p>\n
\t      “It  is obvious that our first care should  be
\n\t      to have our Fundamental Rights guaranteed in a
\n\t      manner which will not permit their  withdrawal
\n\t      under  any circumstances ….  Another  reason
\n\t      why great importance attached to a Declaration
\n\t      of  Rights-  is the unfortunate  existence  of
\n\t      communal differences in the country.   Certain
\n\t      safeguards   are\tnecessary  to\tcreate\t and
\n\t      establish a sense of security among those\t who
\n\t      look   upon  each\t other\twith  distrust\t and
\n\t      suspicion.   We could dot, better\t secure\t the
\n\t      full  enjoyment  of  religious  and   communal
\n\t      rights  to all communities than  by  including
\n\t      them   among  the\t basic\tprinciples  of\t the
\n\t      Constitution.”\n<\/p><\/blockquote>\n
\t      Pandit Jawaharlal Nehru, on April 30, 1947  in
\n\t      proposing\t for  the adoption  of\tthe  Interim
\n\t      Report on Fundamental Rights, said thus :
\n\t      “A  fundamental right should be  looked  upon,
\n\t      not  from the point of view of any  particular
\n\t      difficulty  of  the moment, but  as  something
\n\t      that  you\t want  to  make\t permanent  in\t the
\n\t      Constitution.   The  other  matter  should  be
\n\t      looked upon-however important it might  be-not
\n\t      from  this permanent and fundamental point  of
\n\t      view,  but  from the more temporary  point  of
\n\t      view.”\n<\/p><\/blockquote>\n
Pandit Jawaharlal Nehru, who was Prime Minister at that time
\nand. who must have had an effective voice in the framing  of
\nthe Constitution, made this distinction between\t fundamental
\nrights and other provisions of the Constitution, namely, the
\nformer\twere  permanent and the latter were  amendable.\t  On
\nSeptember 18, 1949 Dr. Ambedkar in speaking on the amendment
\nproposed by Mr. Kamath to Art. 304 of the Draft Constitution
\ncorresponding\tto  the\t present  Art.\t368,  namely,\t“Any
\nprovision  of this Constitution may be amended,\t whether  by
\nway of variation, addition or repeal, in the manner provided
\nin this article”, said thus
\n\t      “Now,  what  is  it  we do  ?  We\t divide\t the
\n\t      articles\tof  the\t Constitution  under   three
\n\t      categories.   The\t first category is  the\t one
\n\t      which   consists\tof-articles  which  can\t  be
\n\t      amended by Parliament by a bare majority.\t The
\n\t      second  set  of articles\tare  articles  which
\n\t      require  two-thirds majority.  If\t the  future
\n\t      Parliament  wishes  to  amend  any  particular
\n\t      article which is not mentioned in Part III  or
\n\t      article 304, all that is necessary for them is
\n\t      to  have two-thirds majority.  Then  they\t can
\n\t      amend it.”\n<\/p>\n
792<\/span><\/p>\n
Therefore,  in\tDr. Ambedkar’s view the\t fundamental  rights
\nwere  so  important that they could not be  amended  in\t the
\nmanner provided by Art. 304 of the Draft Constitution, which
\ncorresponds to the present Art. 368.\n<\/p>\n
We have referred to the speeches of Pandit Jawaharlal  Nehru
\nand Dr. Ambedkar not with a view to interpret the provisions
\nof  Art. 368, which we propose to do on its own\t terms,\t but
\nonly  to  notice the transcendental character given  to\t the
\nfundamental rights by two of the important architects of the
\nConstitution.\n<\/p>\n
This  Court also noticed the paramountcy of the\t fundamental
\nrights in many decisions.  In A. K. Gopalan v. State of Mad-
\nras(1) they are described as “paramount’, in State of Madras
\nv. Smt.\t Champakam Dorairajan<\/a>(2) as “sacrosanct”, in  Pandit
\nM.  S.\tM. Sharma v. Shri Sri Krishna  Sinha<\/a>(s)\t as  “rights
\nreserved  by  the people’, in Smt.  Vijam Bai  v.  State  of
\nUttar  Pradesh(1)  as “inalienable  and\t inviolable”,and  in
\nother  cases as “transcendental”.  The\tminorities  regarded
\nthem  as  the bedrock of their political existence  and\t the
\nmajority  considered  them as a guarantee for their  way  of
\nlife.  This, however, does not mean that the problem is\t one
\nof  mere  dialectics.\tThe Constitution has  given  by\t its
\nscheme\ta place of permanence to the  fundamental  freedoms.
\nIn  giving to themselves the Constitution, the\tpeople\thave
\nreserved the fundamental freedoms to themselves.  Article 13
\nmerely\tincorporates  that  reservation.   That\t Article  is
\nhowever\t not  the source of the\t protection  of\t fundamental
\nrights\t but  the  expression  of  the\t reservation.\t The
\nimportance  attached  to  the  fundamental  freedoms  is  so
\ntranscendental\tthat a bill enacted by a unanimous  vote  of
\nall  the members of both the Houses is ineffective to  dero-
\ngate  from  its\t guaranteed exercise.  It is  not  what\t the
\nParliament  regards  at a given moment as conducive  to\t the
\npublic benefit, but what Part III declares protected,  which
\ndetermines the ambit of the freedom.  The incapacity of\t the
\nParliament  therefore in exercise of its amending  power  to
\nmodify, restrict or impair fundamental freedoms in Part\t III
\narises from the scheme of the Constitution and the nature of
\nthe freedoms.\n<\/p>\n
Briefly stated, the, Constitution declares certain rights as
\nfundamental  laws  infringing  the  said  rights  of  social
\ncontrol infringing the said power on Parliament and the them
\nin specified circumstances; if the decisions in San Prasad’s
\ncase(1)\t and  Sajjan Singh’s case(1) laid down\tthe  correct
\nlaw,  it enables the same Parliament to abrogate  them\twith
\none  stroke,  provided\tthe  party in  power  singly  or  in
\ncombination with other parties commands the neces-
\n(1)  [1950] S.C.R. 88 198.\n<\/p>\n
(3)  [1959] Supp.  1 S.C.R. 806.\n<\/p>\n
(5)  [1952] S.C.P. 89,105.\n<\/p>\n
(2)  [1951] S.C.R, 525.\n<\/p>\n
(4)  [1963] 1 S.C.R. 778.\n<\/p>\n
(6)  [1965] S. C. R. 933.\n<\/p>\n
793<\/span><\/p>\n
sary  majority.\t While articles of less\t significance  would
\nrequire\t consent of the majority of the States,\t fundamental
\nrights can. be dropped without such consent.  While a single
\nfundamental  right cannot be abridged or taken away  by\t the
\nentire Parliament unanimously voting to that effect, a\ttwo-
\nthirds’\t majority  can\tdo away\t with  all  the\t fundamental
\nrights.\t The entire super structure built with precision and
\nhigh  ideals  may  crumble  at\tone  false  step.   Such   a
\nconclusion would attribute unreasonableness to the makers of
\nthe Constitution, for, in that event they would be  speaking
\nin  two voices.\t Such an intention cannot be  attributed  to
\nthe makers of the Constitution unless the provisions of\t the
\nConstitution compel us to do so.\n<\/p>\n
With  this  background\tlet  us\t proceed  to  consider\t the
\nprovisions  of\tArt.  368,  vis-a-vis  Art.  13(2)  of\t the
\nConstitution.\n<\/p>\n
The first question is whether amendment of the\tConstitution
\nunder  Art. 368 is “law” within the meaning of\tArt.  13(2).
\nThe marginal note to Art. 368 describes that article as\t one
\nprescribing  the  procedure for amendment.  The\t article  in
\nterms only prescribes various procedural steps in the matter
\nof amendment: it shall be initiated by the introduction of a
\nbill  in either House of Parliament; it shall be  passed  by
\nthe prescribed majority in both the Houses; it shall then be
\npresented  to  the President for his assent; and  upon\tsuch
\nassent\tthe  Constitution shall stand amended.\tThe  article
\nassumes the power to amend found else and says that it shall
\nbe  exercised in the manner laid down therein. The  argument
\nthat  the completion of the procedural AM culminates in\t the
\nexercise  of the power to amend may be subtle but  does\t not
\ncarry  conviction.   If\t that  was  the\t intention  of\t the
\nprovisions, nothing prevented the makers of the Constitution
\nfrom  stating  that the Constitution may be amended  in\t the
\nmanner suggested.  Indeed, whenever the Constitution  sought
\nto  confer  a  special power to amend on  any  authority  it
\nexpressly said so : (See Arts. 4 and 392).  The\t alternative
\ncontention that the said power shall be implied either\tfrom
\nArt.  368  or from the nature of the articles sought  to  be
\namended\t cannot be accepted, for the simple reason that\t the
\ndoctrine of necessary implication cannot be invoked if there
\nis  an express sion or unless but for such  implication\t the
\narticle will no necessity to imply any plenary power to make
\nany Constitution subject to the
\nUninfluenced  by  any foreign doctrines let us look  at\t the
\nprovisions of our Constitution.\t Under Art. 245, “subject to
\nthe provisions of the Constitution, Parliament may make laws
\nfor the whole or any part of the territory of  India……..
\nArticle\t 246  demarcates  the matters in  respect  of  which
\nParliament and State
\n794<\/span>
\nLegislatures  may  make\t laws.\tIn the\tfield  reserved\t for
\nParliament there is Entry 97 which empowers it to make\tlaws
\nin respect of ” any other matter not enumerated in Lists  II
\nand  III including any tax not mentioned in either of  those
\nlists.”\t Article  248 expressly states that  Parliament\t has
\nexclusive  power to make any law with respect to any  matter
\nnot  enumerated in the Concurrent List ,or State  List.\t  It
\nis, therefore, clear that the residuary power of legislation
\nis vested in Parliament.  Subject to the argument based upon
\nthe  alleged nature of the amending power as  understood  by
\njurists\t in  other countries, which we shal  consider  at  a
\nlater stage, it cannot be contended, and indeed, it was\t not
\ncontended,  that  the Constituent Assembly, if\tit  were  so
\nminded,\t could\tnot have conferred  an\texpress\t legislative
\npower  on Parliament to amend the Constitution\tby  ordinary
\nlegislative process.  Articles 4 and 169, and para 7 of\t the
\n5th Schedule and para 21 of the 6th Schedule have  expressly
\nconferred  such\t power.\t There is,  therefore,\tno  inherent
\nInconsistency  between legislative process and the  amending
\none.  Whether  in  the\tfield of  a  constitutional  law  or
\nstatutory  law amendment can be brought about only  by\tlaw.
\nThe  residuary power of Parliament, unles there is  anything
\ncontrary in the ,Constitution, certainly takes in the  power
\nto  amend  the Constitution. It is said\t that  two  Articles
\n‘indicate the contrary intention.  As Art. 245, the argument
\nproceeds, is subject to the provisions of the  Constitution,
\nevery law of amendment will necessarily be inconsistent with
\nthe articles sought to be amended.  ‘Ibis is an argument  in
\na circle.  Can it be said reasonably that a law amending  an
\narticle\t is  inconsistent with the article amended ?  If  an
\narticle of the Constitution expressly says that it cannot be
\namended,  a law cannot be made amending it, as the power  of
\nParliament to make a law is subject to the said Article.  It
\nmay-well be that in a given case such a limitation may\talso
\nnecessarily  be implied.  The limitation in Art. 245  is  in
\nrespect of the power to make a law and not of the content of
\nthe  law  made Within the scope of its\tpower.\t The  second
\ncriticism  is based upon Art. 39 of the Constitution.\tThat
\nprovision   confers  power  on\tthe  President\t to   remove
\ndifficulties;\tin  the\t circumstances\tmentioned  in\tthat
\nprovision,  he\tcan by order direct  that  the\tConstitution
\nshall  during such period as may be specified in that  order
\nhave  effect subject to such adaptations, whether by way  of
\nmodification,  addition ,or omission, as he may deem  to  be
\nnecessary   or\t expedient.   The  argument  is\t  that\t the
\nPresident’s power, though confined to a\t temporqry period,is
\nco-extensive  with  legislative power and if  the  power  to
\namend  is a legislative power it would have to be held\tthat
\nthe  President can amend the Constitution in terms  of\tArt.\n<\/p>\n
368.   Apart  from the limited scope of Art. 392,  which  is
\nintended  only for the purpose of removing difficulties\t and
\nfor bringing about a smooth transition, an order made by the
\nPresi-\n<\/p>\n
795<\/span><\/p>\n
dent cannot attract Art. 368, as the amendment\tcontemplated
\nby that provision can be initiated only by the\tintroduction
\nof a bill in the Parliament.  There is no force in either of
\nthe two criticisms.\n<\/p>\n
 Further,  there is, internal evidence in  the\tConstitution
\nitself which indicates that amendment to the Constitution is
\na “law” within the meaning of Art. 245.\t Now, what is  “law”
\nunder  the  Constitution  ? It is not  denied  that  in\t its
\ncomprehensive  sense it includes constitutional law and\t the
\nlaw  amending the Constitution is constitutional  law.\t But
\nArt.  13(2)  for  the  purpose\tof  that  Article  gives  an
\ninclusive  definition.\tIt does not  exclude  Constitutional
\nlaw.-  It prima facie,takes in constitutional law.   Article
\n368  itself  gives the necessary clue to the  problem.\t The
\namendment  can be initiated by. the introduction of a  bill;
\nit shall be passed by the two Houses; it shall’ receive\t the
\nassent\tof the President.  These are  well-known  procedural
\nsteps  in the process of law-making : Indeed this  Court  in
\nSankari\t Prasads  case(1)  brought out this  idea  in  clear
\nterms.. It said “in the first place, it is provided that the
\namendment  must be initiated by the introduction of a  “bill
\nin  either  House  of  Parliament’  a  familiar\t feature  of
\nParliament  procedure (of Article 107(1) which says “A\tbill
\nmay  originate in either House of Parliament”).\t ‘Then,\t the
\nbill  must be “Passed in each House,”-just  what  Parliament
\ndoes  when  it\tis  called  upon  to  exercise\tits   normal
\nlegisrative function Article 107(2)1; and finally, the\tbull
\nthus  passed  must be “president to the President”  for\t his
\n“assent”, again a parliamentary process through which  every
\nbill  must  pass  before  it  can  reach  the  statute-book,
\n(Article  1 1 1 ). We thus- find that each of the  component
\nunits of Parliament is to play its allotted part in bringing
\nabout  an  amendment to the Constitution.  We  have  already
\nseen  that Parliament effects amendments of the first  class
\nmentioned  above  by  going  through  the  same\t  three-fold
\nprocedure  but\twith  a simple majority.  The  fact  that  a
\ndifferent  majority  in\t the  same  body  is  required\t for
\neffecting  the second and third- categories of 1  amendments
\nmake the amending agency a different body.”
\nIn the same decision it is pointed out that Art. 368 is\t not
\na  complete  code in respect of the procedure.\t This  Court
\nsaid  “There are gaps in the procedure as to how  and  after
\nwhat  notice  a bill is to be introduced, how it  is  to  be
\npassed by each House and how the President’s assent is to be
\nobtained.   Having  provided  for  the\tConstitution  of   a
\nParliament  and\t prescribed  a\tcertain\t procedure  for\t the
\nconduct\t  of  its  ordinary  legislative  business   to\t  be
\nsupplemented by rules made by each House (Article 118),\t the
\nmakers\tof the Constitution must be taken to  have  intended
\nParliament  to follow that procedure, so far as they may  be
\napplicable  consistently with the express provision of\tArt.
\n368, when they have entrusted to it the power of =ending the
\nCon-\n<\/p>\n
(1)  ( 1 952) S.C. R. 89.\n<\/p>\n
796<\/span><\/p>\n
stitution.”  The  House of the People made  rules  providing
\nprocedure  for amendments, the same as for other Bills\twith
\nthe addition of certain special provisions viz., Rules\t155,
\n156, 157 and 158.  If amendment is intended to be  something
\nother  than law, the constitutional insistence on  the\tsaid
\nlegislative  process  is unnecessary.  In  short,  amendment
\ncannot\tbe made otherwise than by following the\t legislative
\nprocess.  The fact that there are other conditions, such as,
\na  larger majority and in the case of articles mentioned  in
\nthe proviso a ratification by Legislatures is provided, does
\nnot make the amendment anytheless a law.  The imposition  of
\nfurther conditions is only a safeguard against hasty  action
\nor  a  protection  to the States, but does  not\t change\t the
\nLegislative character of the amendment.\n<\/p>\n
This  conclusion is reinforced by the other articles of\t the
\nConstitution.\tArticle 3 enables Parliament by law to\tform
\nnow  States  and  alter areas, boundaries or  the  names  of
\nexisting  States.  imposed two, further conditions,  of\t the
\nPresident,  and (ii) in therein, the views expressed by\t the
\nLegislatures.  Notwithstanding the said conditions it cannot
\nbe  suggested  that  the expression  “law”  under  the\tsaid
\nArticle\t is not one made by the Legislative process.   Under
\nArt.  4, such a law can contain provisions for amendment  of
\nSchedules  I and IV indicating thereby that  amendments\t are
\nonly  made  by Legislative process.  What is more,  cl.\t (2)
\nthereof\t introduces a fiction to the affect that such a\t law
\nshall not be deemed to be an amendment to the  Constitution.
\nThis  shows that the amendment is law and that but  for\t the
\nfiction it would be an amendment within the meaning of\tArt.\n<\/p>\n
368.   Article\t169  which empowers  Parliament\t by  law  to
\nabolish or create Legislative Councils in States, para 7  of
\nthe  5th  Schedule  and para 21 of the\t6th  Schedule  which
\nenable\tParliament by law to amend the said Schedules,\talso
\nbring  out the two ideas that the amendment is law  made  by
\nlegislative process and that but for the fiction  introduced
\nit would attract Article 368.\t   That\t  apart\t  amendments
\nunder the said provisions can be made\tby     the     Union
\nParliament  by simple majority.\t That an amendment  is\tmade
\nonly by legislative process with or without conditions\twill
\nbe  clear  if  two  decisions  of  the\tPrivy  Council\t are
\nconsidered  in\tjuxta-position.\t They are  McCawley  v.\t The
\nKing(1)\t and  The  Bribery  Commissioner  v.  Pedrick\tRana
\nsinghe(2).\n<\/p>\n
The  facts  in McCawley v. The King(1) were these:  In\t1859
\nQueensland  had been granted a Constitution in the terms  of
\nan Order in Council made on June 6 of that year under powers
\nderived\t by Her Majesty from the Imperial Statute, 18  &  19
\nVict.\n<\/p>\n
(1) [1920] A.C. 691.\n<\/p>\n
(2) [1964] W.L.R. 1301.\n<\/p>\n
797<\/span><\/p>\n
c.   54.  The Order in Council had set up a legislature\t for
\nthe  territory,\t consisting  of\t the  Queen,  a\t Legislative
\nCouncil\t and  a. Legislative Assembly,\tand  the  law-making
\npower  was vested in Her Majesty acting with the advice\t and
\nconsent of the Council and Assembly.  Any laws could be made
\nfor the “peace, welfare and good government of the  Colony”.
\nThe  said legislature of Queensland in the year 1867  passed
\nthe Constitution Act of that year.  Under that Act power was
\ngiven  to  the\tsaid legislature to make  laws\tfor  “peace,
\nwelfare\t and  good  Government of the Colony  in  all  cases
\nwhatsoever”.  But, under s. 9 thereof a two-thirds  majority
\nof  the\t Council  and of the Assembly  %,as  required  as  a
\ncondition precedent to the validity of legislation  altering
\nthe  constitution,of the Council.  The\tLegislature,  there-
\nfore, had, except in the case covered by s. 9 of the Act, an
\nunrestricted  power to make laws.  The Legislature passed  a
\nlaw  which conflicted with one of the existing terms of\t the
\nConstitution Act.  Lord Birkenhead, L.C., upheld-the law, as
\nthe  Constitution Act conferred an absolute power  upon\t the
\nlegislature  to pass any law by majority even though it,  in
\nsubstance, amended the terms of the Constitution Act.
\nIn  The Bribery Commissioner v. Pedrick\t Ranasinghe(1),\t the
\nfacts are these : By section 29 of the Ceylon (Constitution)
\nOrder in Council, 1946, Parliament shall have power to\tmake
\nlaws  for  the, “peace. order and good\tgovernment”  of\t the
\nIsland\tand  in\t the exercise of its power  under  the\tsaid
\nsection it may amend or repeal any of the provisions of\t the
\nOrder in its application to the Island.\t The proviso to that
\nsection says that no Bill for the amendment or repeal of any
\nof  the provisions of the Order shall be presented  for\t the
\nRoyal  assent  unless it has endorsed on  it  a\t certificate
\nunder the hand of the Speaker that the number of votes\tcast
\nin  favour thereof in the House of Representatives  amounted
\nto  not less than two-thirds of the whole number of  members
\nof the House.  Under s. 55 of the said Order the appointment
\nof Judicial Officers was vested in the Judicial Service Com-
\nmission.   But\tthe Parliament under s. 41  of\tthe  Bribery
\nAmendment  Act,\t 1958, provided for the appointment  of\t the
\npersonnel  of the Bribery Tribunals by the  Governor-General
\non  the\t advice\t of  the  Minister  of\tJustice.   The\tsaid
\nAmendment  Act\twas in conflict with the said s. 55  of\t the
\nOrder and it was passed without complying with the terms  of
\nthe  proviso to s. 29 of the Order.  The Privy Council\theld
\nthat  the  Amendment  Act  was\tvoid.\tLord  Pearce,  after
\nconsidering   McCawley’s   case(2)   made   the\t   following
\nobservations, at p. 1310 :\n<\/p>\n
\t      “……..\t a  legislature\t has  no  power\t  to
\n\t      ignore, the conditions of law-making that\t are
\n\t      imposed by the
\n\t      (1) [1964] 2 W.L.R. 1301.\n<\/p><\/blockquote>\n
\t      (2) [1920] A.C. 69 1.\n<\/p><\/blockquote>\n
\t      798<\/span><\/p>\n
\t      instrument which itself regulates its power to
\n\t      make    law.     This    restriction    exists
\n\t      independently  of the , question\twhether\t the
\n\t      legislature   is\t sovereign,   as   is\t the
\n\t      legislature   of\t Ceylon,  or   whether\t the
\n\t      Constitution  is “uncontrolled”, as the  Board
\n\t      held  the\t Constitution of Queensland  to\t be.
\n\t      Such a Constitution can, indeed, be altered or
\n\t      amended by the legislature, if the  regulating
\n\t      instrument  so  provides and if the  terms  of
\n\t      those provisions are complied with……..\n<\/p><\/blockquote>\n
It will be seen from the said judgments that an amendment of
\nthe  Constitution is made only by legislative  process\twith
\nordinary majority or with special majority, as the case\t may
\nbe.   There.fore, amendments either under Art. 368 or  under
\nother Articles ,axe made only by Parliament by following the
\nlegislative process adopted by it ‘ n making other law,.  In
\nthe  premises,\tan  amendment “Of the  Constitution  can  be
\nnothing but “law”.\n<\/p>\n
A comparative study of other Constitutions indicates that no
\nparticular pattern is followed.\t AR the Constitutions confer
\nan  ,express  power  to\t amend, most  of  them\tprovide\t for
\nlegislative  procedure\twith special  majority,\t referendum,
\nconvention,  etc., and a few with simple majority.   Indeed,
\nParliament  of England, which is a supreme body,  can  amend
\nthe  constitution like any other :statute.  As none  of\t the
\nConstitutions  contains provisions similar to Art.  368\t and
\nArt. 13(2), neither the said Constitutions nor the decisions
\ngiven  by  courts  thereon would be  of\t any  assistance  in
\nconstruing the scope of Art. 368 of our Constitution.
\nA brief survey of the nature of the amending process adopted
\nby various constitutions will bring out the futility of\t any
\nattempt\t to  draw  inspiration from  the  said\topinions  or
\ndecisions  on  the said constitutions.\tThe  nature  of\t the
\namending power in different constitutions generally  depends
\non  the\t nature of the polity created by  the  constitution,
\nnamely, whether it is federal or unitary constitution or  on
\nthe   fact  whether  it\t is  a\twritten\t or   an   unwritten
\nconstitution  or on the circumstances whether it is a  rigid
\nor a flexible constitution.  Particularly the difference can
\nbe traced to the “spirit and genius of the nation in which a
\nparticular  constitution  has  its  birth”.   The  following
\narticles of the ‘Constitution of the different countries are
\nbrought\t to our notice by one or other of the  counsel\tthat
\nappeared  before  us.\tArt. 5 of the  Constitution  of\t the
\nUnited\tStates\tof  America,  Arts.  125  and  128  of\t the
\nCommonwealth  of Australia Constitution Act, Art. 92 (1)  of
\nthe British North American Act, s. 152 of the South  African
\nAct,  Art. 217 of the Constitution of, the United States  of
\nBrazil,\t Section  46 of the Constitution of  Ireland,  1937,
\nArts.  207, 208 and 209 of the Constitution of the Union  of
\nBurma,\tArt.  88  ,of the Constitution\tof  the\t Kingdom  of
\nDenmark Act, Art. 90 of
\n799<\/span>
\nthe  Constitution of the French Republic, 1954, Art. 135  of
\nthe United States of Mexico, Art. 96 of the Constitution  of
\nJapan,\tArt. 112 of the Constitution of Norway, Art.  85  of
\nthe  Constitution of the Kingdom of Sweden, Arts. 118,\t119,
\n120,  121,  122\t and 123 of the Constitution  of  the  Swiss
\nFederation,  Arts. 140, 141 and 142 of the  Constitution  of
\nVenezuela, and Art. 146 of the Constitution of the Union  of
\nSoviet\tSocialist  Republics, 1936 and s.  29(4)  of  Ceylon
\nConstitution Order in Council, 1946.\n<\/p>\n
Broadly speaking amendments can be made by four methods (i)  by
\nordinary  legislative process with or without  restrictions,\n<\/p>\n
(ii) by the people through, referendum, (iii) by majority of
\nall  the   units of a federal State; and (iv) by  a  special
\nconvention.  The first method can be in four different ways,
\nnamely,\t (i)  by  the  ordinary\t course\t of  legislation  by
\nabsolute majority or by special majority, (See Section 92 (1
\n)-  of the British North America Act, sub-section 152  South
\nAfrican\t Apt, where under except sections 35, 137  and\t152,
\nother  provisions could be amended by  ordinary\t legislative
\nprocess\t by absolute majority.\tMany  constitutions  provide
\nfor special majorities.); (ii) by a fixed quorum of  members
\nfor  the  consideration\t of the\t proposed  amendment  and  a
\nspecial\t  majority  for\t its  passage;\t(see   the   defunct
\nConstitution  of Rumania), (iii) by dissolution and  general
\nelection  on a particular issue; (see the  Constitutions  of
\nBelgium,  Holland,  Denmark  and  Norway),  and\t (iv)  by  a
\nmajority of two Houses of Parliament in joint session as  in
\nthe  Constitution  of the South Africa.\t The  second  method
\ndemands\t a  popular vote, referendum , or plebiscite  as  in
\nSwitzerland, Australia, Ireland, Italy, France and  Denmark.
\nThe third method is by an agreement in some form or other of
\neither of the majority or of all the federating units as  in
\nSwitzerland,  Australia\t and the United States\tof  America.
\nThe fourth method is generally by creation of a special body
\nad hoc for the purpose of constitution revision as in  Latin
\nAmerica.    Lastly,   some  constitutions   impose   express
\nlimitation on the power to amend. (See Art. 5 of the  United
\nStates\tConstitution  and  the Constitution  of\t the  Fourth
\nFrench Republic).  A more elaborate discussion of this topic
\nmay  be\t found\tin the American\t political  Constitution  by
\nStrong.\t It will, therefore, be seen that the power to amend
\nand  the procedure to amend radically-differ from  State  to
\nState;\tit is left to the constitution-makers  to  prescribe
\nthe  scope of the power and the method of  amendment  having
\nregard\tto the requirements of the particular State.   There
\nis  no\tarticle in any of the constitutions referred  to  us
\nsimilar to article 13(2) of our Constitution.  India adopted
\na  different system altogether: it empowered the  Parliament
\nto amend the Constitution by the legislative process subject
\nto  fundamental rights.\t The Indian 1 Constitution has\tmade
\nthe amending process comparatively flexible, but it is\tmade
\nsubject to fundamental rights.\n<\/p>\n
800<\/span><\/p>\n
Now let us consider the argument that the power to amend  is
\na  sovereign  power, that the said power is supreme  to\t the
\nlegislative  power,  that  it does not\tpermit\tany  implied
\nlimitations  and  that amendments made in exercise  of\tthat
\npower involve political questions and that, therefore,\tthey
\nare outside judicial review, This wide proposition is sought
\nto  be\tsupported on the basis of opinions  of\tjurists\t and
\njudicial decisions.  Long extracts have been read to us from
\nthe  book “The Amending of the Federal Constitution  (1942)”
\nby  Lester Bernhardt Orfield, and particular  reference\t was
\nmade to the following passages :\n<\/p>\n
\t      “At the point it may be well to note that when
\n\t      the  Congress  is\t engaged  in  the   amending
\n\t      process\tit  is\tnot  legislating.    It\t  is
\n\t      exercising  a peculiar power bestowed upon  it
\n\t      by  Article Five.\t This Article for  the\tmost
\n\t      part   ,controls\t the  process;\t and   other
\n\t      provisions of the Constitution, such as  those
\n\t      relating to the passage of legislation, having
\n\t      but little bearing.”\n<\/p><\/blockquote>\n
Adverting to the Bill of Rights, the learned author  remarks
\nthat  they may be repealed just as any other  amendment\t and
\nthat  they are no more sacred from a legal  standpoint\tthan
\nany  other  part  of the  Constitution.\t  Dealing  with\t the
\ndoctrine of implied limitations, he says that it is  clearly
\nuntenable.   Posing the question ‘Is other a law  about\t the
\namending power of the Constitution ?”, he answers, “there is
\nnone”.\t He would even go to the extent of saying  that\t the
\nsovereignty,  if it can be said to exist at all, is  located
\nin  the\t amending body.\t The author is\tcertainly  a  strong
\nadvocate  of  the  supremacy of the amending  power  and  an
\nopponent  of  the  doctrine  of\t implied  limitations.\t His
\nopinion\t  is  based  upon  the\tterms  of  Art.\t 5  of\t the
\nConstitution  of  the  United  States  of  America  and\t his
\ninterpretation\tof  the decisions of the  Supreme  Court  of
\nAmerica.  Even such an extreme exponent of the doctrine does
\nnot  say  that a particular  constitution  cannot  expressly
\nimpore\trestrictions on the power to amend or that  a  court
\ncannot\t reconcile   the  articles  couched   in   unlimited
\nphraseology.   Indeed  Art. 5 of the  American\tConstitution
\nimposes\t express  limitations on the amending  power.\tSome
\npassages from the book “Political Science and Government” by
\nJames Wilford Garner are cited.\t Garner points out :\n<\/p>\n
\t      “An unamendable constitution, said Mulford, is
\n\t      the  &&worst  tyranny of time, or\t rather\t the
\n\t      very tyranny of time”<\/p><\/blockquote>\n
\t      But he also notices
\n\t      “The provision for amendment should be neither
\n\t      so rigid as to make needed changes practically
\n\t      impossible  nor  so flexible as  to  encourage
\n\t      frequent and
\n\t\t\t    801<\/span>
\nunnecessary changes  and thereby lower the authority of\t the
\nConstitution.”\n<\/p>\n
Munro in his book “The Government of the United States”, 5th
\nEdition, uses strong words when he says
\n\t      “…….\tit is impossible to conceive  of  an
\n\t      unamendable  constitution\t as anything  but  a
\n\t      contradiction in terms.”\n<\/p>\n
The  learned  author  says that such  a\t constitution  would
\nconstitute  “government\t by the\t graveyards.”  Hugh  Evander
\nWills in his book “Constitutional Law of the United  States”
\navers that the doctrine of amendability of the\tConstitution
\nis grounded in the doctrine of the sovereignty of the people
\nand  that  it  has no such implied limitations\tas  that  an
\namendment  shall not contain a new grant of power or  change
\nthe dual form of government or change the protection of\t the
\nBill   of   Rights,  or\t make  any  other  change   in\t the
\nConstitution.\tHerman\tFiner in his book  “The\t Theory\t and
\nPractice of Modem Government” defines “constitution” as\t its
\nprocess\t of  amendment,\t for, in his view, to  amend  is  to
\ndeconstitute and reconstitute.\tThe learned author concludes
\nthat the amending clause is so fundamental to a constitution
\nthat he is tempted to call it the constitution itself.\t But
\nthe  learned author recognizes that difficulty in  amendment
\ncertainly  products circumstances and makes  impossible\t the
\nsurreptitious\tabrogation  of\trights\tguaranteed  in\t the
\nconstitution.\tWilliam\t S. Livingston\tin  “Federalism\t and
\nConstitutional Change” says :\n<\/p>\n
\t      “The  formal  procedure  of  amendment  is  of
\n\t      greater\t importance   than   the    informal
\n\t      processes,  because  it constitutes  a  higher
\n\t      authority to which appeal lies on any question
\n\t      that may arise.”\n<\/p><\/blockquote>\n
But  there  are\t equally  eminent  authors  who\t express   a
\ndifferent  view.  In “American Jurisprudence”, 2nd  Edition,
\nVol.  16,  it is stated that a statute\tand  a\tconstitution
\nthough of unequal dignity are both laws.  Another calls\t the
\nconstitution  of  a State as one of the laws of\t the  State.
\nCooley\tin  his\t book on “Constitutional  Law”\topines\tthat
\nchanges\t in  the  fundamental  laws of\tthe  State  must  be
\nindicated  by  the people themselves.\tHe  further  implies
\nlimitations  to\t the amending power from the belief  in\t the
\nconstitution  itself,  such  as,  the  republican  form\t  of
\nGovernment cannot be abolished as it would be  revolutionary
\nin ifs characters.  In the same book it is further said that
\nthe  power to amend the constitution by\t legislative  action
\ndoes  not  confer  the power to break it any  more  than  it
\nconfers the power to legislate on any other subject contrary
\nto  the\t prohibitions.\t C. F. Strong  in  his\tbook  “Modem
\nPoliical  Constitutions”, 1963 edition, does not accept\t the
\ntheory\tof absolute sovereignty of the amending power  which
\ndoes not brook any limitations, for he says.\n<\/p>\n
802<\/span><\/p>\n
\t      “In  short,  it attempts to  arrange  for\t the
\n\t      recreation of a constituent assembly  whenever
\n\t      such  matters are in future to be\t considered,
\n\t      even though that assembly be nothing more than
\n\t      the ordinary legislature acting under  certain
\n\t      restrictions.  At the same time, there may  be
\n\t      some  elements of the constitution  which\t the
\n\t      constituent    assembly\twants\tto    remain
\n\t      unalterable  by  the action of  any  authority
\n\t      whatsoever.    These   elements  are   to\t  be
\n\t      distinguished  from  the rest,  and  generally
\n\t      come  under  the heading of  fundamental\tlaw.
\n\t      Thus, for example, the American  Constitution,
\n\t      the  oldest  of  the  existing  Constitutions,
\n\t      asserts that by no process of amendment  shall
\n\t      any   State,  without  its  own  consent,\t  be
\n\t      deprived of its equal suffrage in the  Senate,
\n\t      , while among the Constitutions more  recently
\n\t      promulgated, those of the Republics of; France
\n\t      and  Italy, each containing a  clause  stating
\n\t      that the republican form of government  cannot
\n\t      be the subject of an amending proposals”\n<\/p><\/blockquote>\n
it is not necessary to multiply citations from text-books.
\nA catena of American decisions have been cited before us  in
\nsupport\t of  the  contention that the unending\tpower  is  a
\nsupreme power or that it involves political issues which are
\nnot  justiciable.  It would be futile to consider  them.  at
\nlength, for after going through them carefully we find\tthat
\nthere  are no considered judgments of the  American  Courts,
\nwhich would have a persuasive effect in that regard.  In the
\nConstitution  of the United States of America,\tprepared  by
\nEdwards S. Corwin, Legislative Reference Service, Library of
\nCongress,  (1953  edn.),  the following\t summary  under\t the
\nheading “Judicial Review under Article V” is given :\n<\/p>\n
\t      “Prior  to 1939, the Supreme Court  had  taken
\n\t      cognizance  of a number of diverse  objections
\n\t      to the validity of specific amendments.  Apart
\n\t      from   holding   that   official\t notice\t  of
\n\t      ratification  by the several States  was\tcon-
\n\t      clusive upon the Courts, it had treated  these
\n\t      questions\t as  justiciable,  although  it\t had
\n\t      uniformly\t rejected  them on the\tmerits.\t  In
\n\t      that  year,  however, the\t whole\tsubject\t was
\n\t      thrown  into  confusion  by  the\tinconclusive
\n\t      decision in Coleman v. Miller.  This case came
\n\t      up  on  a writ of certiorari  to\tthe  Supreme
\n\t      Court of Kansas to review the denial of a writ
\n\t      of  mandamus  to compel the Secretary  of\t the
\n\t      Kansas  Senate  to erase an endorsement  on  a
\n\t      resolution ratifying the\t\tchild
\n\t      labour  amendment to the Constitution  to\t re-
\n\t      effect that it had been adopted by the  Kansas
\n\t      Senate.  The attempted ratification was
\n\t      803<\/span>
\n\t      assailed\ton  three  grounds :  (1)  that\t the
\n\t      amendment had been previously rejected by\t the
\n\t      State  Legislature; (2) that it was no  longer
\n\t      open  to ratification because an\tunreasonable
\n\t      period  of  time thirteen years,\thad  elapsed
\n\t      since  its submission to the States,  and\t (3)
\n\t      that  the lieutenant governor had no right  to
\n\t      cast the deciding vote in the Senate in favour
\n\t      of  ratification.\t Four opinions were  written
\n\t      in   the\tSupreme\t Court,\t no  one  of   which
\n\t      commanded\t the support of more than four\tmem-
\n\t      bers  of the Court.  The majority\t ruled\tthat
\n\t      the  plain-tiffs, members of the Kansas  State
\n\t      Senate,  had  a  sufficient  interest  in\t the
\n\t      controversy   to\tgive  the   federal   courts
\n\t      jurisdiction  to\treview\tthe  case.   Without
\n\t      agreement\t  as  to  the  grounds\t for   their
\n\t      decision,\t a different majority  affirmed\t the
\n\t      judgment\tof  the\t Kansas\t court\tdenying\t the
\n\t      relief sought.  Four members who concur-red in
\n\t      the  result had voted to dismiss the  writ  on
\n\t      the  ground  that\t the  amending\tprocess\t “is
\n\t      political”  in its. entirety, from  submission
\n\t      until   an  amendment  becomes  part  of\t the
\n\t      Constitution,  and is not subject to  judicial
\n\t      guidance,\t control  or  interference  at\t any
\n\t      point.”\twhether\t the  contention  that\t the
\n\t      lieutenant governor should have been permitted
\n\t      to  cast\tthe  deciding  vote  in\t favour\t  of
\n\t      ratification    presented\t   a\t justiciable
\n\t      controversy  was\tleft  undecided,  the  court
\n\t      being  equally  divided on the point.   In  an
\n\t      opinion  reported\t as  “the  opinion  of\t the
\n\t      Court”‘  but  in which it\t appears  that\tonly
\n\t      three Justices concurred, Chief Justice Hughes
\n\t      declared\tthat  the  writ\t of’  mandamus\t was
\n\t      properly denied because the question as to the
\n\t      effect  of  the  previous\t rejection  of\t the
\n\t      amendment\t and the lapse of time since it\t was
\n\t      submitted\t  to  the  States   were   political
\n\t      questions\t which should be left  to  Congress.
\n\t      On  the same day, the Court dismissed a.\twrit
\n\t      of  certiorari  to review a decision  ‘of\t the
\n\t      Kentucky Court of Appeals declaring the action
\n\t      of the Kentucky General Assembly purporting to
\n\t      ratifying\t the child labour amendment  illegal
\n\t      and  void.   Inasmuch  as\t the  governor\t had
\n\t      forwarded the certified copy of the resolution
\n\t      to the Secretary of State before being  served
\n\t      with a copy of the restraining order issued by
\n\t      the State Court, the Supreme Court found\tthat
\n\t      there ‘was no longer a controversy susceptible
\n\t      of judicial determination.”\n<\/p><\/blockquote>\n
This passage, in our view, correctly summarises the American
\nlaw  on the subject.  It will be clear therefrom that  prior
\nto  1939  the  Supreme\tCourt of  America  had\ttreated\t the
\nobjections  to\tthe  validity  of  specific  amendments\t  as
\njusticiable  and  that only in 1939 it rejected them  in  an
\ninconclusive judgment without
\n804<\/span>
\ndiscussion.   In  this state of affairs we  cannot  usefully
\ndraw  much  from the judicial wisdom of the  Judges  of\t the
\nSupreme Court of America.\n<\/p>\n
One  need not cavil at the description of an amending  power
\nas  sovereign  power, for it is sovereign  only\t within\t the
\nscope  of the power conferred by a particular  constitution.
\nAll  the authors also agree, that a particular\tconstitution
\ncan expressly limit the power of amendment, both substantive
\nand  procedural.   The only conflict lies in the  fact\tthat
\nsome  authors  do not pen-nit implied limitations  when\t the
\npower  of  amendment  is expressed in  general\twords.\t But
\nothers\tcountenance  such  limitations\tby  construction  or
\notherwise.   But none of the authors goes to the  extent  of
\nsaying, which is the problem before us, that when there\t are
\nconflicting articles couched in widest terms, the court\t has
\nno jurisdiction to construe and harmonize them.\t If some  of
\nthe  authors meant to say that-in our view, they did  not-we
\ncannot agree with them, for, in that event this Court  would
\nnot be discharging its duty.\n<\/p>\n
Nor  can we appreciate the arguments repeated before  us  by
\nlearned\t counsel  for  the  respondents\t that  the  amending
\nprocess involves political questions which are, outside\t the
\nscope  of judicial review.  When a matter comes\t before\t the
\nCourt,\tits jurisdiction does not depend upon the nature  of
\nthe  question raised but on die, question whether  the\tsaid
\nmatter\tis expressly or by necesssary  implication  excluded
\nfrom  its  jurisdiction.  Secondly, it is  not\tpossible  to
\ndefine\twhat is a political question and what is  not.\t The
\ncharacter  of a question depends upon the circumstances\t and
\nthe  nature of a political society.  To put if\tdifferently,
\nthe  court does not decide any political question at all  in
\nthe ordinary sense of the. term, but only ascertains whether
\nParliament is acting within the scope of the amending power.
\nIt  may be that Parliament seeks to amend  the\tConstitution
\nfor  political reasons, but the Court in denying that  power
\nwill  not be deciding on political questions, but will\tonly
\nbe holding that Parliament has no power to amend  particular
\narticles of the Constitution for any purpose whatsoever,  be
\nit  political or otherwise.  We, therefore, hold that  there
\nis nothing in the nature of the amending power which enables
\nParliament  to\toverride all the express  or  implied  limi-
\ntations\t imposed  on  that power.  As we  have\tpointed\t out
\nearlier,   our\tConstitution adopted a novel method  in\t the
\nsense  that  Parliament makes the amendment  by\t legislative
\nprocess\t  subject  to  certain\trestrictions  and,that\t the
\namendment so made being law” is.subject to Art. 13(2).
\nThe  next argument is based upon the expression\t “amendment”
\nin Art. 368 of the Constitution and if is contended that the
\nsaid
\n805<\/span>
\nexpression  has-.a Positive and a negative content and\tthat
\nin exercise of the power amendment parliament cannot destroy
\nthe  structure of the Constitution, but it can\tonly  modify
\nthe provisions thereof within the framework of the  original
\ninstrument for its better effectuation.\t If the fundamentals
\nwould be amenable to the ordinary process of amendment\twith
\na special majority, the argument proceeds, the\tinstitutions
\nof  the\t President  can\t be  abolished,\t the   parliamentary
\nexecutive  can\tbe removed, the fundamental  rights  can  be
\nabrogated, the concept of federalism’ can be obliterated and
\nin short the sovereign democratic republic can be  converted
\ninto   a  totalitarian\tsystem\tof  government.\t  There\t  is
\nconsiderable  force in this argument.  Learned\tand  lengthy
\narguments  are advanced to sustain it or to reject it.\t But
\nwe  are relieved of the necessity to express our opinion  on
\nthis  all important question as, so far as  the\t fundamental
\nrights\tare concerned, the question  raised can be  answered
\non   a\t narrower  basis.  This\t question  may\t arise\t for
\nconsideration  only  if\t Parliament  seeks  to\tdestroy\t the
\nstructure  of  the Constitution embodied in  the  provisions
\nother  than  in Part III of the Constitution.\tWe  do\tnot,
\ntherefore, propose to express our opinion in that regard.
\nIn  the view we have taken on the scope of Art.\t 368  vis–a
\nvis  the  fundamental  rights, it  is  also  unnecessary  to
\nexpress our opinion on the question whether the amendment of
\nthe  fundamental  rights is covered by the proviso  to\tArt.\n<\/p>\n
368.
\nThe result is that the Constitution (Seventeenth  Amendment)
\nAct, 1964, inasmuch as it takes away or abridges the  funda-
\nmental rights is void under Art. 13(2) of the Constitution.
\nThe  next question is whether our decision should  be  given
\nretrospective operation.     During the period between\t1950
\nand 1967 i.e 17 years as many as 20 amendments were made in
\nour  Constitution.   But  in  the  context  of\tthe  present
\npetitions  it  would be enough if we notice  the  amendments
\naffecting  fundamental right to property.  The\tConstitution
\ncame into force on January 26, 1950. The Constitution (First
\nAmendment) Act, 1951, amended Arts. 15 and 19, and Arts. 31-
\nA  and\t31-B were inserted with retrospective  effect.\t The
\nobject\tof  the\t amendment was said to be  to  validate\t the
\nacquisition  of\t zamindaries or the abolition  of  permanent
\nsettlement  without interference from courts.  The  occasion
\nfor  the  amendment  was that the High\tCourt  of  Patna  in
\nKameshwar  Singh  v, State of Bihar(1) held that  the  Bihar
\nLand  Reforms Act (30 of 1950) passed by the State of  Bihar
\nwas unconstitutional, while the High Courts of Allahabad and
\nNagpur upheld the validity of corresponding legislations  in
\nUttar Pradesh and Madhya Pradesh respectively.
\n(1) A. I. R. 1951 Patna 91.\n<\/p>\n
p.C.T.167-6
\n806<\/span>
\nThe amendment was made when the appeals from those decisions
\nwere  pending  in the Supreme Court.   In  Sankari  Prasad’s
\ncase(1)\t the  constitutionality of the\tsaid  amendment\t was
\nquestioned but the amendment was upheld.  It may be  noticed
\nthat  the  said amendment was not made on the basis  of\t the
\npower  to amend fundamental rights recognized by this  Court
\nbut only in view of the conflicting decisions of High Courts
\nand without waiting for the final decision from this  Court.
\narticle\t 31-A was again amended by the Constitution  (Fourth
\nAmendment) Act, 1955.  Under that amendment cl. (2) of\tArt.
\n31 was amended and cl. (2-A) was inserted therein.  While in
\nthe  original  article\t31-A  the  general  expression\t“any
\nprovisions  of his Part” was found, in the  amended  article
\nthe scope was restricted only.to the violation of Arts.\t 14,
\n19 and 31 and 4 other clauses were included, namely, clauses
\nproviding for (a) taking over the management of any property
\nby  the State for a limited-period; (b) amalgamation of\t two
\nor more corporations; (c) extinguishment or modification  of
\nrights\tof  person;  interested\t in  corporations;  and\t (d)
\nextinguishment or modification of rights accruing under\t any
\nagreement,  lease or licence relating to minerals,  and\t the
\ndefinition of “estate” was enlarged in order to include\t the
\ninterests  of  raiyats\tand  under-raiyats.   The  expressed
\nobject\tof the amendment was to carry out  important  social
\nwelfare\t legislations on the desired lines, to\timprove\t the
\nnational   economy  of\tthe  State  and\t to  avoid   serious
\ndifficulties  raised by courts in that regard.\tArticle\t 31A
\nhas  further  been  amended  by\t the  Constitution   (Fourth
\nAmendment)  Act, 1955.\tBy the said amendment in  the  Ninth
\nSchedule  to the Constitution entries 14 to 20\twere  added.
\nThe main objects of this amending Act was to distinguish the
\npower of compulsory acquisition or requisitioning of private
\nproperty  and the deprivation of property and to extend\t the
\nscope  of Art. 31-A to cover different categories of  social
\nwelfare legislations and to enable monopolies in  particular
\ntrade  or  business to be created in favour  of\t the  State.
\nAmended\t Art.  31(2)makes the adequacy of  compensation\t not
\njusticiable.   It may be said-that the Constitution  (Fourth
\nAmendment)  Act, 1955 was made by Parliament as\t this  Court
\nrecognized the power of Parliament to amend Part III of\t the
\nConstitution;  but  it can’ also be said with  some  plausi-
\nbility\tthat,  as Parliament had exercised  the\t power\teven
\nbefore\tthe.  decision\tof this Court  in  Sankari  Prasad’s
\ncase(1), it would have amended the Constitution even if\t the
\nsaid decision was not given by this Court.  The\t Seventeenth
\nAmendment  Act was made on June 20, 1964.  The occasion\t for
\nthis  amendment was the decision of this Court\tin  Karimbil
\nKunhikoman  v.\tState of Kerala<\/a>(2), which  struck  down\t the
\nKerala\tAgrarian  Relations  Act  IV  of  1961\trelating  to
\nryotwari lands.\t Under that amendment the definition of\t the
\nexpression “estate” was enlarged so as to take
\n(1) [1952] S.C.R. 89, 105
\n(2) [1962] Supp.  1 S.C.R. 829
\n807<\/span>
\nin  any land held under ryotwari settlement and any held  or
\nlet  for purposes of agriculture or for\t purposes  ancillary
\nthereto, including waste land, forest land, land for pasture
\nor  sites  of  buildings and other  structures\toccupied  by
\ncultivators  of\t land, agricultural  labourers\tand  village
\nartisans.   In\tthe Ninth Schedule  the\t amendment  included
\nitems  21 to 65.  In the objects and reasons it\t was  stated
\nthat  the definition”‘estate” was not wide enough, that\t the
\ncourts\thad  struck  down many land reform  Acts  and  that,
\ntherefore,  in order to give them protection  the  amendment
\nwas made.  The validity of the Seventeenth Amendment Act was
\nquestioned in this Court and was held to be valid in  Sajian
\nSingh’s case(1).  From the history of these amendments,\t two
\nthings\tappear, namely, unconstitutional laws were made\t and
\nthey were protected by the amendment of the Constitution  or
\nthe amendments were made in order to protect the future laws
\nwhich  would be void but for the amendments.  But  the\tfact
\nremains\t that  this  Court held as early  as  in  1951\tthat
\nParliament  had power to amend the fundamental\trights.\t  It
\nmay,   therefore,   said  that\tthe   Constitution   (Fourth
\nAmendment)  Act,  1955, and  the  Constitution\t(Seventeenth
\nAmendment) Act, 1964, were based upon the scope of the power
\nto  end recognized by this Court.  Further  the\t Seventeenth
\nAmendment Act was also approved by this Court.
\nBetween\t 1950  and 1967 the Legislatures of  various  States
\nmade  laws  bringing  about an agrarian\t revolution  in\t our
\ncountry\t zamindaries, inams and other  intermediary  estates
\nwere  abolished,  vested  rights were  created\tin  tenants,
\nconsolidation  of  holdings of villages was  made,  ceilings
\nwere  fixed  and the surplus lands transferred\tto  tenants.
\nAll these were done on the, basis of the correctness of\t the
\ndecisions  in  Sankari Prasads case(2)\tand  Sajjan  Singh’s
\ncase(1), namely, that Parliament had the power to amend\t the
\nfundamental  rights and that Acts in regard to estates\twere
\noutside\t judicial scrutiny on the ground they infringed\t the
\nsaid rights.  The agrarian structure of our country has been
\nrevolutionised on the basis of the said laws.  Should we now
\ngive  retrospectivity  to our decision, it  would  introduce
\nchaos and unsettle the conditions in our country.  Should we
\nhold  that because of the said consequences  Parliament\t had
\npower  to  take away fundamental rights, a time\t might\tcome
\nwhen  we  would\t gradually and imperceptibly  pass  under  a
\ntotalitarian  rate.  Learned counsel for the petitioners  as
\nwell as those for the respondents placed us on the horns  of
\nthis  dilemma, for they have taken extreme  positions-leamed
\ncounsel\t for  the petitioners want us to reach\tthe  logical
\nposition by holding that all the said laws are void and\t the
\nlearned counsel for the respondents persuade us to hold that
\nParliament has unlimited power and, if it chooses, it can do
\naway with fundamental rights.  We do not think that
\n(1) [1965] 1 S.C.R. 933.\n<\/p>\n
(2) [1952] S.C.R. 89,
\n808<\/span>
\nthis Court is so helpless.  As the highest Court in the land
\nwe  must  evolve  some reasonable  principle  to  meet\tthis
\nextraordinary situation.  There is an essential\t distinction
\nbetween Constitution and statutes.  Comparatively  speaking,
\nConstitution  is  permanent; it is an  organic\tstatute;  it
\ngrows  by  its\town  inherent  force.\tThe   constitutional
\nconcepts are couched in elastic terms.\tCourts are  expected
\nto  and\t indeed should interpret, its  terms  without  doing
\nviolence to the language, to suit the expanding needs of the
\nsociety.   In  this process and in a real  sense  they\tmake
\nlaws.\tThough\tit is not admitted, the said  role  of\tthis
\nCourt is effective and cannot be ignored.  Even in the realm
\nof  ordinary statutes, the subtle working of the process  is
\napparent  though  the  approach\t is  more  conservative\t and
\ninhibitive.–In the constitutional field, therefore, to meet
\nthe  present extraordinary situation that may be  caused  by
\nour  decision, we must evolve some doctrine which has  roots
\nin  reason and precedents so that the past may be  preserved
\nand the future protected.\n<\/p>\n
There are two doctrines familiar to American  Jurisprudence,
\none  is\t described as Blackstonian theory and the  other  as
\n“prospective over-ruling”, which may have some relevance  to
\nthe  present  enquiry.\tBlackstone in his  Commentaries,  69
\n(15th  edn., 1809) stated the common law rule that the\tduty
\nof  the\t Court\twas  “not to pronounce a  new  rule  but  to
\nmaintain and expound .the old one”.  It means the Judge does
\nnot make law but only discovers or finds the true law.\t The
\nlaw  has  always been the same.\t If  a\tsubsequent  decision
\nchanges\t the earlier one, the latter decision does not\tmake
\nlaw  but only discovers the correct principle of  law.\t The
\nresult of this view is that it is necessarily  retrospective
\n,operation.   But Jurists, George F. Canfield,\tRobert\tHill
\nFreeman, John Henry Wigmore and Cardozo, have expounded\t the
\ndoctrine of “prospective over-ruling” and suggested it as “a
\nuseful\tjudicial .tool”.  In the words of Canfield the\tsaid
\nexpression means
\n\t      “……a court should recognize a duty to\t an-
\n\t      nounce  a\t new  and  better  rule\t for  future
\n\t      transactions  whenever the court\thas  reached
\n\t      the   conviction\t that  an   old\t  rule\t (as
\n\t      established by the precedents) is unsound even
\n\t      though  feeling compelled by stare decisis  to
\n\t      apply  the  old  and  condemned  rule  to\t the
\n\t      instant  case  and to transactions  which\t had
\n\t      already taken place.”\n<\/p>\n
Cardozo,  before he became a Judge of the Supreme  Court  of
\nthe United States of America, when he was the Chief  Justice
\nof New York State addressing the Bar Association said thus
\n\t      The  rule (the Blackstonian rule) that we\t are
\n\t      asked  to apply is out of tune with  the\tlife
\n\t      about us.\t It has been made discordant by\t the
\n\t      forces that generate a
\n\t\t\t\t   809<\/span>
\n\t      living law.  We apply it to this case  because
\n\t      the  repeal might work hardship to  those\t who
\n\t      have trusted to its existence.  We give notice
\n\t      however that any one trusting to it  hereafter
\n\t      will do at his peril.”\n<\/p>\n
The  Supreme Court of the United States of America,  in\t the
\nyear 1932, after Cardozo became an Associate Justice of that
\nCourt  in  Great  Northern Railway v. Sunburst\tOil  &\tRef.
\nCo.,(1) applied the said doctrine to the facts of that case.
\nIn  that case the Montana Court had adhered to its  previous
\nconstruction  of the statute in question but  had  announced
\nthat  that  interpretation  would not  be  followed  in\t the
\nfuture.\t  It was contended before the Supreme Court  of\t the
\nUnited\tStates of America that a decision of a\tcourt  over-
\nruling\t earlier   decision  and  not  giving\tits   ruling
\nretroactive operation violated the due process clause of the
\n14th Amendment.\t Rejecting that plea, Cardozo said :\n<\/p>\n
\t      “This   is  not  a  case\twhere  a  Court\t  in
\n\t      overruling an earlier decision has come to the
\n\t      new ruling of retroactive dealing and  thereby
\n\t      has  made\t invalid what was  followed  in\t the
\n\t      doing.   Even  that may often be\tdone  though
\n\t      litigants not infrequently have argued to\t the
\n\t      contrary …. This is a case where a Court has
\n\t      refused  to make its ruling  retroactive,\t and
\n\t      the novel stand is taken that the Constitution
\n\t      of  the  United  States is  infringed  by\t the
\n\t      refusal.\t  We   think   that   the    Federal
\n\t      Constitution has no voice upon the subject.  A
\n\t      state in defining the elements of adherence to
\n\t      precedent may make a choice for itself between
\n\t      the principle of forward operation and that of
\n\t      relation\tbackward.   It may be  so  that\t the
\n\t      decision\tof the highest courts, though  later
\n\t      over-ruled,    was   law\t  nonetheless\t for
\n\t      intermediate  transactions …. On  the  other
\n\t      hand,  it may hold to the ancient\t dogma\tthat
\n\t      the law declared by its Courts had a  platonic
\n\t      or ideal existence before the act of  declara-
\n\t      tion,   in   which  event,   the\t discredited
\n\t      declaration will be viewed as if it had  never
\n\t      been and to reconsider declaration as law from
\n\t      the  beginning… . The choice for  any  state
\n\t      maybe determined by the juristic philosophy of
\n\t      the Judges of her Courts, their considerations
\n\t      of law, its origin and nature.”\n<\/p><\/blockquote>\n
The  opinion of Cardozo tried to harmonize the\tdoctrine  of
\nprospective over-ruling with that of stare decisis.
\nIn 1940, Hughes, C.J., in Chicot County Drainage District v.
\nBaxter State Bank(2) stated thus
\n(1)  (1932) 287 U.S. 358, 366. 17 L. Ed. 360.\n<\/p>\n
(2) (1940) 308 U.S. 371.\n<\/p>\n
810<\/span><\/p>\n
\t      “The   law  prior\t to  the  determination\t  of
\n\t      unconstitutionality  is an operative fact\t and
\n\t      may  have consequences which cannot justly  be
\n\t      ignored.\tThe past cannot always be erased  by
\n\t      a new judicial declaration.”\n<\/p><\/blockquote>\n
In  Griffin  v.\t Illionis(1) the Supreme  Court\t of  America
\nreaffirmed  the doctrine laid down in Sunburst’s  case\t(2).
\nThere,\ta  statute required defendants to  Submit  bills  of
\nexceptions   as\t a  pre-requisite  to  an  appeal   from   a
\nconviction;  the  Act was held unconstitutional in  that  it
\nprovided no means whereby indigent defendants could secure a
\ncopy  of the record for this purpose.  Frankfurter,  J.,  in
\nthat context observed
\n\t      “……  in arriving at a new  principle,\t the
\n\t      judicial\tprocess is not important to,  define
\n\t      its  scope and limits.  Adjudication is not  a
\n\t      mechanical   exercise  nor  does\t it   compel
\n\t      ‘either\/or’ determination.”\n<\/p>\n
In Wolf v. Colorado(3) a majority of the Supreme Court\theld
\nthat  in a prosecution in a State Court for a  state  crime,
\nthe 14th Amendment did not forbid the admission of  evidence
\nobtained  by  an unreasonable search and  seizure.   But  in
\nMapp.  v. Ohio(4) the Supreme Court reversed  that  decision
\nand held that all evidence obtained by searches and  seizure
\nin   violation\t of  the  4th  Amendment  of   the   Federal
\nConstitution was, by virtue of the due process clause of the
\n14th  Amendment guaranteeing the right to privacy free\tfrom
\nunreasonable  State  instrusion,  inadmissible\tin  a  State
\ncourt.\t In  Linkletter\t v.  Walker(5)\tthe  question  arose
\nwhether\t the  exclusion of the rule enunciated\tin  Mapp  v.
\nOhio(4)\t did not apply to State Court convictions which\t had
\nbecome final before the date of that judgment.\tMr.  Justice
\nClarke, speaking for the majority observed
\n\t      “We  believe  that the existence of  the\tWolf
\n\t      doctrine prior to Mapp is ‘an operative’\tfact
\n\t      and may have consequences which cannot  justly
\n\t      be ignored.  The past cannot always be  erased
\n\t      by a new judicial declaration.”\n<\/p>\n
\t      “Mapp had as its prima purpose the enforcement
\n\t      of the Fourth Amendment through the  inclusion
\n\t      of   the\t exclusionary\trule   within\t its
\n\t      rights…………..\n<\/p>\n
\t      We  cannot  say  that this  purpose  would  be
\n\t      advanced\tby  making the\trule  retrospective.
\n\t      The misconduct of the police prior to Mapp has
\n\t      already occurred and win
\n\t      (1)  [1956]351U.S.12,2..(2) (1932) 287  U.  S.
\n\t      358,366: 77 L Ed. 360.\n<\/p>\n
\t      (3) [1948-49] 338 U. S. 25: 193L.Ed. 872.\t (4)
\n\t      [1966] 367 U.S. 643: 6 L. Ed.\n<\/p>\n
\t      (5) [1965] 381 U.S. 618.(2nd Edn.) 1081.\n<\/p>\n
\t      811<\/span><\/p>\n
\t      not  be corrected by releasing  the  prisoners
\n\t      involved….  On\tthe other hand,\t the  States
\n\t      relied  on  Wolf\tand  followed  its  command.\n<\/p>\n
\t      Final  judgments\tof conviction  were  entered
\n\t      prior  to\t Mapp.\tAgain and  again  the  Court
\n\t      refused  to  reconsider  Wolf  and  gave\t its
\n\t      implicit\tapproval  to hundreds  of  cases  in
\n\t      their  application of its rule.  In  rejecting
\n\t      the Wolf doctrine as to, the exclusionary rule
\n\t      the purpose was to deter the lawless action of
\n\t      the  police  add to  effectively\tenforce\t the
\n\t      Fourth  Amendment.  That purpose will  not  at
\n\t      this  late  date be served  by  the  wholesale
\n\t      release of the guilty victims.”\n<\/p>\n
\t      “Finally,\t  there\t  are  interests   in\tthe,
\n\t      administration of justice and the integrity of
\n\t      the judicial process to consider.\t To make the
\n\t      rule  of\tMapp  retrospective  would  tax\t the
\n\t      administration  of  justice  to  the   utmost.<\/p>\n
\t      Hearings\t would\thave  to  be  held  on\t the
\n\t      excludability    of   evidence   long    since
\n\t      destroyed,  misplaced or deteriorated.  If  it
\n\t      is excluded, the witness available at the time
\n\t      of the original trial will not be available or
\n\t      if  located their memory will be\tdimmed.\t  To
\n\t      thus   legitimate\t  such\t an    extraordinary
\n\t      procedural weapon that has no bearing on guilt
\n\t      would seriously disrupt the administration  of
\n\t      justice.”\n<\/p>\n
This  case  has\t reaffirmed  the  doctrine  of\t prospective
\noverruling and has taken a pragmatic approach in refusing to
\ngive it retroactivity.\tIn short, in America the doctrine of
\nprospective  overruling is now accepted in all\tbranches  of
\nlaw,  including constitutional law.  But the carving of\t the
\nlimits of retrospectivity of the new rule is left to  courts
\nto  be done, having regard to the requirements\tof  justice.
\nEven  in England the Blackstonian theory was  criticized  by
\nBentham and Austin.  In Austin’s Jurisprudence, 4th Ed.,  at
\npage 65, the learned author says :\n<\/p>\n
\t      “What  hindered Blackstone was  ‘the  childish
\n\t      fiction’\temployed  by our  judges,  that\t the
\n\t      judiciary or common law is not ‘Made by  them,
\n\t      but-  is\ta  miraculous  something  made,\t  by
\n\t      nobody,  existing, I suppose,  from  eternity,
\n\t      and  merely declared from time to time by\t the
\n\t      Judges.”\n<\/p><\/blockquote>\n
Though English Courts in the past accepted the\tBlackstonian
\ntheory and though the House of Lords strictly adhered to the
\ndoctrine  of  ‘precedent’  in the earlier  years,  both\t the
\ndoctrines  were\t practically  given  up\t by  the   “Practice
\nStatement (Judicial Precedent)” issued by the House of Lords
\nrecorded  in  (1966)  1 W.L.R. 1234.   Lord  Gardiner  L.C.,
\nspeaking   for\tthe  House  of\tLords  made  the   following
\nobservations
\n812<\/span>
\n\t      “Their  Lordships nevertheless recognise\tthat
\n\t      too  rigid adherence to precedent may lead  to
\n\t      injustice in a particular case and also unduly
\n\t      restrict\tthe proper development of  the\tlaw.
\n\t      They  propose,  therefore,  to  modify   their
\n\t      present  practice and, while  treating  former
\n\t      decisions\t of this House as normally  binding,
\n\t      to  depart  from a previous decision  when  it
\n\t      appears right to do so.\n<\/p>\n
\t      In this connection they will bear in mind\t the
\n\t      danger of disturbing retrospectively the basis
\n\t      on  which contracts, settlements\tof  property
\n\t      and fiscal arrangements have been entered into
\n\t      and also the especial need for certainty as to
\n\t      the criminal law.”\n<\/p>\n
\t      This  announcement is not intended  to  affect
\n\t      the  use of precedent elsewhere than  in\tthis
\n\t      House.”\n<\/p>\n
It  will be seen from this passage that the House  of  Lords
\nhereafter in appropriate cases may depart from its  previous
\ndecision when it appears right to do so and in so  departing
\nwill  bear in mind the danger of giving effect to  the\tsaid
\ndecision retroactivity.\t We consider that what the House  of
\nLords means by this statement is that in differing from\t the
\nprecedents it will do so only without interefering with\t the
\ntransactions  that had taken place on the basis\t of  earlier
\ndecisions.   This decision, to a large extent, modifies\t the
\nBlackstonian theory and accepts, though not expressly but by
\nnecessary   implication\t  the\tdoctrine   of\t“prospective
\noverruling.”\n<\/p>\n
Let us now consider some of the objections to this doctrine.
\nThe objections are: (1) the doctrine involved legislation by
\ncourts; (2) it would not encourage parties to prefer appeals
\nas  they  would\t not  get any  benefit\ttherefrom;  (3)\t the
\ndeclaration  for the future would only be obiter, (4) it  is
\nnot   a\t  desirable  change;  and  (5)\t the   doctrine\t  of
\nretroactivity  serves  as a brake on court  which  otherwise
\nmight be tempted to be so fascile in overruling.  But in our
\nview,  these objections are not insurmountable.\t If a  court
\ncan over-rule its earlier decision-there cannot be any\tdis-
\npute now that the court can do so there cannot be any  valid
\nreason\twhy it should not restrict its ruling to the  future
\nand not to the past.  Even if the party filing an appeal may
\nnot be benefited by it, in similar appeals which he may file
\nafter  the change in the law he will have the benefit.\t The
\ndecision cannot be obiter for what the court in effect\tdoes
\nis  to declare the law but on the basis of another  doctrine
\nrestricts  its scope.  Stability in law does not  mean\tthat
\ninjustice shall be perpetuated.\t An illuminating article  on
\nthe subject is found in Pennsylvania Law Review, [Vol.\tI 10
\np. 650].\n<\/p>\n
813<\/span><\/p>\n
It  is a modem doctrine suitable for a fast moving  society.
\nIt does not do away with the doctrine of stare decisis,\t but
\nconfines  it to past transactions.  It is true that  in\t one
\nsense  the court only declares the law, either customary  or
\nstatutory or personal law.  While in strict theory it may be
\nsaid  that  the doctrine involves making of  law,  what\t the
\ncourt really does is to declare the law but refuses to\tgive
\nretroactivity  to  it.\tIt is really  a\t pragmatic  solution
\nreconciling  the two conflicting doctrines, namely,  that  a
\ncourt finds law and that it does make law.  It finds law but
\nrestricts its operation to the future.\tIt enables the court
\nto bring about a smooth transition by correcting its  errors
\nwithout\t disturbing the impact of those errors on  the\tpast
\ntransactions.  It is left to the discretion of the court  to
\nprescribe  the\tlimits of the retroactivity and\t thereby  it
\nenables it to would the relief to meet the ends of justice.
\nIn India there is no statutory prohibition against the court
\nrefusing  to give retroactivity to the law declared  by\t it.
\nIndeed,.  the doctrine of res judicata precludes  any  scope
\nfor  retroactivity in respect of a subject-matter  that\t has
\nbeen  finally decided between the parties.  Further,  Indian
\ncourt  by interpretation reject retroactivity. to  statutory
\nprovisions  though  couched in general terms on\t the  ground
\nthat  they  affect  vested rights.  The\t present  case\tonly
\nattempts  a  further  extension of  the\t said  rule  against
\nretroactivity.\n<\/p>\n
Our Constitution does not expressly or by necessary implica-
\ntion speak against the doctrine of prospective\tover-ruling.
\nIndeed,\t Arts. 32, 141 and 142 are couched in such wide\t and
\nelastic\t terms\tas to enable this Court to  formulate  legal
\ndoctrines to meet the ends of justice.\tThe only  limitation
\nthereon is reason, restraint and injustice.  Under Art.\t 32,
\nfor  the enforcement of the fundamental rights\tthe  Supreme
\nCourt  has the power to issue suitable directions or  orders
\nor  writs.   Article 141 says that the law declared  by\t the
\nSupreme\t Court shall be binding on all courts; and Art.\t 142
\nenables it in the exercise of its jurisdiction to pass\tsuch
\ndecree or make such order as is necessary for doing complete
\njustice\t in  any cause or matter pending before\t it.   These
\narticles  are  designedly made comprehensive to\t enable\t the
\nSupreme Court to declare law and to give such directions  or
\npass  such orders as are necessary to do  complete  justice.
\nThe expression “declared” is wider than the words “found  or
\nmade”.\t To  declare is to announce  opinion.\tIndeed,\t the
\nlatter\tinvolves  the process, while  the  former  expresses
\nresult.\t  Interpretation,  ascertainment and  evolution\t are
\nparts of the process, while that interpreted, ascertained or
\nevolved is declared as law.  The law declared by the Supreme
\nCourt  is  the\tlaw of the and.\t If so, we do  not  see\t any
\nacceptable reason why it, in declaring the law in superses-\n<\/p>\n
814<\/span><\/p>\n
sion  of the law declared by it earlier, could not  restrict
\nthe operation of the law as declared to future and save\t the
\ntransactions,  whether\tstatutory  or  otherwise  that\twere
\neffected  on  the basis of the earlier law.   To  deny\tthis
\npower  to  the Supreme Court on the basis of  some  outmoded
\ntheory that the Court only finds law but does not make it is
\nto  make  ineffective the powerful  instrument\tof.  justice
\nplaced\tin  the\t hands\tof the\thighest\t judiciary  of\tthis
\ncountry.\n<\/p>\n
As  this  Court for the first time has been called  upon  to
\napply  the  doctrine evolved in a  different  country  under
\ndifferent  ,circumstances, we would like to move  warily  in
\nthe beginning.\tWe would lay down the following propositions
\n:  (I)\tThe  doctrine of  prospective  over-ruling,  can  be
\ninvoked\t only in matters arising under our Constitution;  (2
\nit  an be applied only by the highest court of the  country,
\ni.e.,  the  Supreme  Court  as\tit  has\t the  constitutional
\njurisdiction  to  declare an binding on all  the  courts  in
\nIndia; (3) the scope of the retroactive operation of the law
\ndeclared  by  the  Supreme  Court  superseding\tits  earlier
\ndecisions  .is\tleft  to its discretion\t to  be\t moulded  in
\naccordance  with the justice of the cause or  matter  before
\nit.\n<\/p>\n
We  have arrived at two conclusions, namely, (1)  Parliament
\nhas no power to amend Part III of the Constitution so as  to
\ntake away or abridge the fundamental rights; and (2) this is
\na  fit case to invoke and apply the doctrine or\t prospective
\noverruling.   What then is the effect of our  conclusion  on
\nthe  instant  case ?. Having regard to the  history  of\t the
\namendments  their impact on the social and economic  affairs
\nof our country and the chaotic situation that may be brought
\nabout  by  the\tsudden\twithdrawal  at\tthis  stage  of\t the
\namendments from the Constitution, we think that considerable
\njudicial  restraint is called for.  We,\t therefore,  declare
\nthat  our  decision  will not affect  the  validity  of\t the
\nConstitution  (Seventeenth  Amendment) Act, 1964,  or  other
\namendments made to the Constitution taking away or abridging
\nthe  fundamental rights.  We further declare that in  future
\nParliament  will  have\tno power to amend Part\tIII  of\t the
\nConstitution  so as to take away or abridge the\t fundamental
\nrights.\t  In  this  case we do not propose  to\texpress\t our
\nopinion on the question of the scope of the amendability  of
\nthe   provisions   of  the  Constitution  other\t  than\t the
\nfundamental  rights, as it does not arise for  consideration
\nbefore us.  Nor are we called upon to express out opinion on
\nthe  question regarding the scope of the amends\t ability  of
\nPart  Ill of the constitution otherwise than by taking\taway
\nor  abridging the fundamental rights.  We will not also\t in-
\ndicate\tour  view one way or other whether any of  the\tActs
\nquestioned  can\t be sustained under the\t provisions  of\t the
\nConstitution  without the aid of Arts. 31A, 31B and the\t 9th
\nSchedule.\n<\/p>\n
815<\/span><\/p>\n
The aforesaid discussion leads to the following results
\n\t      (1)  The power of the Parliament to amend\t the
\n\t      Constitution  is derived from Arts.  245,\t 246
\n\t      and 248 of the Constitution and not from\tArt.
\n\t      368  thereof which only deals with  procedure.
\n\t      Amendment is a legislative process.\n<\/p>\n
\t      (2)   Amendment is ‘law’ within the meaning of
\n\t      Art. 13 of the Constitution and, therefore, if
\n\t      it takes away or abridges the rights conferred
\n\t      by Part III thereof, it is void.\n<\/p>\n
\t      (3)   The Constitution (First Amendment)\tAct,
\n\t      1951,  Constitution  (Fourth  Amendment)\tAct,
\n\t      1955,   and,the\tConstitution\t(Seventeenth
\n\t      Amendment)  Act, 1964, abridge the  scope.  of
\n\t      the fundamental rights.  But, on the basis  of
\n\t      earlier  decisions  of this Court,  they\twere
\n\t      valid.\n<\/p>\n
\t      (4)   On\tthe application of the\tdoctrine  of
\n\t      ‘prospective over-ruling’, as explained by  us
\n\t      earlier,\t our   decision\t  will\t have\tonly
\n\t      prospective operation and, therefore, the said
\n\t      amendments will continue to be valid.\n<\/p>\n
\t      (5)   We declare that the Parliament will have
\n\t      no  power\t from the date of this\tdecision  to
\n\t      amend any of the provisions of Part III of the
\n\t      Constitution so as to take away or abridge the
\n\t      fundamental rights enshrined therein.\n<\/p>\n
\t      (6)   As\t  the\tConstitution\t(Seventeenth
\n\t      Amendment)  Act holds the field, the  validity
\n\t      of  the two impugned Acts, namely, the  Punjab
\n\t      Security\tof Land Tenures Act X of  1953,\t and
\n\t      the  Mysore  Land Reforms Act X  of  1962,  as
\n\t      amended\tby  Act\t XIV  of  1965,\t cannot\t  be
\n\t      questioned  on  the ground  that\tthey  offend
\n\t      Arts. 13, 14 or 31 of the Constitution.\n<\/p>\n
Before we close, it would be necessary to advert to an argu-
\nment  advanced on emotional plane.  It was said that if\t the
\nprovisions  of\tthe   Constitution could not be\t amended  it
\nwould  lead  to\t revolution.   We have\tnot  said  that\t the
\nprovisions of the Constitution cannot be amended but what we
\nhave said is that they cannot be amended so as to take\taway
\nor  abridge the fundamental rights.  Nor can  we  appreciate
\nthe  argument  that  all  the  agrarian\t reforms  which\t the
\nParliament  in power wants to effectuate cannot\t be  brought
\nabout  without\tamending  the fundamental  rights.   It\t was
\nexactly to prevent this attitude- and to project the  rights
\nof  the\t that the fundamental rights were  inserted  in\t the
\nConstitution.\tIf  it\tis the duty  of\t the  Parliament  to
\nenforce the directive principles, it is equally its duty  to
\nenforce them without infringing the fundamental rights.\t The
\nConstitution-makers  thought  that it could be done  and  we
\nalso think that the directive prin-\n<\/p>\n
816<\/span><\/p>\n
ciples can reasonably be enforced within the self-regulatory
\nmachinery  provided by Part III.  Indeed both Parts III\t and
\nIV  of\tthe Constitution form an integrated  scheme  and  is
\nelastic\t enough\t to  respond to the changing  needs  of\t the
\nsociety.  The verdict of the Parliament on the scope of\t the
\nlaw  of social control of fundamental rights is\t not  final,
\nbut  justiciable.   If\tnot  so, the  whole  scheme  of\t the
\nConstitution  will break.  What we can- I not understand  is
\nhow  the enforcement of the provisions of  the\tConstitution
\ncan   bring   about  a\trevolution.   History\tshows\tthat
\nrevolutions  are brought about not by the majorities but  by
\nthe  minorities\t and  some  time  by  military\tcoups.\t The
\nexistence  of  an all comprehensive  amending  power  cannot
\nprevent\t revolutions,  if  there is  chaos  in\tthe  country
\nbrought\t about by mis-rule or abuse of power.  On the  other
\nhand,  such  a\trestrictive power  gives  stability  to\t the
\ncountry and prevents it from passing under a totalitarian or
\ndictatorial  regime.  We cannot obviously base our  decision
\non  such hypothetical or extraordinary situations which\t may
\nbe  brought  about with or without  amendments.\t  Indeed,  a
\nConstitution  is only permanent and not eternal.   There  is
\nnothing\t to  choose between destruction by amendment  or  by
\nrevolution,  the  former is brought  about  by\ttotalitarian
\nrule, which cannot brook constitutional checks and the other
\nby the discontentment brought about by mis-rule.  If  either
\nhappens,  the constitution will be a scrap of  paper.\tSuch
\nconsiderations are out of place in construing the provisions
\nof the Constitution by a court of law.\n<\/p>\n
Nor  are we impressed by the argument that if the, power  of
\namendment is ‘not all comprehensive there will be no way  to
\nchange\tthe  structure of our Constitution  or\tabridge\t the
\nfundamental  rights  even if the whole country\tdemands\t for
\nsuch  a\t change.   Firstly,  this  visualizes  an  extremely
\nunforeseeable and
\nextravagant  demand; but even if such a\t contingency  arises
\nthe residuary power of the Parliament may be relied upon  to
\ncall   for   a\tConstituent  Assembly  for  making   a\t new
\nConstitution  or  radically  changing it.   The\t recent\t Act
\nproviding for a poll in Goa, Daman and Diu is an instance of
\nanalogous   exercise   of  such\t residuary  power   by\t the
\nParliament.   We  do not express our final opinion  on\tthis
\nimportant question.\n<\/p>\n
A  final  appeal  is made to us that we\t shall\tnot  take  a
\ndifferent  view as the decision in Sankari Prasad’s  case(1)
\nheld the field for many years.\tWhile ordinarily this  Court
\nwill  be reluctant to reverse its previous decision,  it  is
\nits  duty in the constitutional field to correct  itself  as
\nearly as possible, for otherwise the future progress of\t the
\ncountry\t and the happiness of the people will be  at  stake.
\nAs  we are convinced that the decision in  Sankari  Prasad’s
\ncase(1)\t is wrong, it is pre-eminently a typical case  where
\nthis  Court  should over-rule it.  The longer it  holds\t the
\nfield the greater will
\n(1)  [1952] S.C.R 89, 105
\n817<\/span>
\nbe  the\t scope\tfor erosion of fundamental  rights.   As  it
\ncontains the seeds of destruction of the cherished rights of
\nthe  people the sooner it is over-ruled the better  for\t the
\ncountry.\n<\/p>\n
This argument is answered by the remarks made by this  Court
\nin  the\t recent\t judgment in The  Superintendent  and  Legal
\nRemembrancer  State  of West Bengal v., The  Corporation  of
\nCalcutta(1).\n<\/p>\n
\t      “The third contention need not detain us\t]’or
\n\t      it  has  been rejected by this  Court  in\t The
\n\t      Bengal  Immunity Company Limited v. The  State
\n\t      of  Bihar<\/a>(2)  .  There a\tBench  of  7  Judges
\n\t      unanimously held that there was nothing in the
\n\t      Constitution that prevented the Supreme  Court
\n\t      from departing from a previous decision of its
\n\t      own  if it was satisfied of its error  and  of
\n\t      its baneful effect on the general interest  of
\n\t      the   public.   If  the  aforesaid   rule\t  of
\n\t      construction  accepted  by this Court  is\t in-
\n\t      consistent  with the legal philosophy  of\t our
\n\t      Constitution,  it\t is  our  duty\tto   correct
\n\t      ourselves\t and  lay down the right  rule.\t  In
\n\t      constitutional   matters\twhich\taffect\t the
\n\t      evolution of our polity, we must more  readily
\n\t      do  so  than  in other  branches\tof  law,  as
\n\t      perpetuation  of a mistake will be harmful  to
\n\t      public   interests.   While   continuity\t and
\n\t      consistency   are\t conducive  to\tthe   smooth
\n\t      evolution of the rule of law, hesitancy to set
\n\t      right  deviation will retard its\tgrowth.\t  In
\n\t      this  case, as we are satisfied that the\tsaid
\n\t      rule of construction is inconsistent with\t our
\n\t      republican  polity and, if accepted,  bristles
\n\t      with  anomalies,\twe  have  no  hesitation  to
\n\t      reconsider our earlier decision.”\n<\/p><\/blockquote>\n
In  the\t result\t the petitions are  dismissed,\tbut  in\t the
\ncircumstances without costs.\n<\/p>\n
Wanchoo,  J.  This Special Bench of eleven  Judges  of\tthis
\nCourt  has been constituted to consider the  correctness  of
\nthe  decision of this Court in Sri Sankari Prasad Singh\t Deo
\nv.  Union of India(,,) which was accepted as correct by\t the
\nmajority in Sajjan Singh v. State of Rajasthan (4) .
\nThe  reference has been made in three petitions\t challenging
\nthe  constitutionality of the Seventeenth Amendment  to\t the
\nConstitution.\tIn one of the petitions, the  inclusion,  of
\nthe Punjab Security of Land Tenures Act, (No.  X of 1953) in
\nthe Ninth Schedule, which makes it immune from. attack under
\nany  provisions contained in Part III of  the  Constitution’
\nhas  been  attacked  on\t the  ground  that  the\t Seventeenth
\nAmendment  is in itself unconstitutional.  In the other\t two
\npetitions,  the\t inclusion of the Mysore Land  Reforms\tAct,
\n(No. 10 of 1962) has been attacked on the same grounds.\t  It
\nis not necessary to set out the facts in
\n(1)  [1967] 2 S.C.R. 170,176
\n(2)  [1955] 2S.C.R.603.\n<\/p>\n
(3)  [1952] S.C.R. 89.\n<\/p>\n
(4)  [1965] 1.C.S.R. 933.\n<\/p>\n
818<\/span><\/p>\n
the three petitions for present purposes.  The main argument
\nin  all\t the three petitions has been as to  the  scope\t and
\neffect\tof  Art.  368  of the  Constitution  and  the  power
\nconferred thereby to amend the Constitution.
\nBefore\twe  come  to the specific I  points  raised  in\t the
\npresent\t petitions,  we may indicate  the  circumstances  in
\nwhich  Sankari\tPrasad’s case(1) as well as  Sajjan  Singh’s
\ncase (2) came to be decided and what they actually  decided.
\nThe  Constitution  came into force on January  26,.1950.  It
\nprovides  in  Part  III\t for  certain  fundamental   rights.
\nArticle\t 31  which is in Part 111, as it  originally  stood,
\nprovided for compulsory acquisition of property.  By  clause
\n(1)  it\t provided that “no person shall be deprived  of\t his
\nproperty  save\tby authority of law”.\tClause\t(2)  ;hereof
\nprovided  that any law authorising taking of  Possession  or
\nacquisition  of\t property  must\t provide  for\tcompensation
\ntherefor  and  either  fix the\tamount\tof  compensation  or
\nspecify the principles on which, and the manner in which the
\ncompensation  was to be determined and paid.  Clause(4) made
\na  special provision to the effect that if any Bill  pending
\nat  the commencement of the Constitution in the\t Legislature
\nof  a  State had, after it had been passed  by\tsuch  Legis-
\nlature, been reserved for the consideration of the President
\nand  had  received his assent, then such law  would  not  be
\ncalled\tin question though it contravened the provisions  of
\ncl. (2) relating to compensation.  Clause (6) provided\tthat
\nany  law of the State enacted not more than eighteen  months
\nbefore the Constitution might be submitted to the  President
\nfor his certification, and if so certified, it could not  be
\ncalled\tin  question on the ground that it  contravened\t the
\nprovision of cl. (2) of Art. 31 relating to compensation.
\nThese  two  clauses  of\t Art. 31  were\tmeant  to  safeguard
\nlegislation  which either had been passed by  Provincial  or
\nState  legislatures  or\t which was on  the  anvil  of  State
\nlegislatures for the purpose of agrarian reforms.  One\tsuch
\npiece  of legislation was the Bihar Land Reforms Act,  which
\nwas  passed  in 1950.  That Act received the assent  of\t the
\nPresident  as  required under cl. (6) of Art.  31.   It\t was
\nhowever\t challenged  before  the Patna High  Court  and\t was
\nstruck\tdown  by that court on the ground that\tit  violated
\nArt’ 14\t of  the  Constitution.\t Then there  was  an  appeal
\nbefore this    Court, but while that appeal was pending, the
\nFirst Amendment\t    to the Constitution was made.
\nWe may briefly refer to what the First Amendment provided
\nfor.   It was the First Amendment which was  challenged\t and
\nwas upheld in Sankari Prasad’s case(1).\t The First Amendment
\ncontained  a number of provisions; but it is  necessary\t for
\npresent\t purposes  only to refer to those  provisions  which
\nmade changes in Part III of the Constitution.  These changes
\nrelated to Arts. 15
\n(1) [1952] S.C.R. 89.\n<\/p>\n
(2) [1965] 1 S.C.R. 933
\n819<\/span>
\nand  19\t and  in addition, provided  for  insertion  of\t two
\nArticles,  numbered  31-A and 31-Bin Part III  Article\t31-A
\nprovided  that no law providing for the acquisition  by\t the
\nState  of  any\testate\tor of  any  rights  therein  or\t the
\nextinguishment\tor modification of any such rights shall  be
\ndeemed\tto be void on the ground that it  was.\tinconsistent
\nwith,  or took away or abridged any of the rights  conferred
\nby  any provision in part Ill.\t‘The word “estate” was\talso
\ndefined\t for the purpose of Art. 31-A Further Article  31-B.
\nprovided for validation of certain Acts and  Regulations and
\nspecified  such Acts and Regulations in the Ninth  Schedule,
\nwhich was for the first time added to the Constitution.\t The
\nNinth  Schedule\t then  contained 13 Acts,  all\trelating  to
\nestates , passed by various legislatures of the Provinces or
\nStates.\t It laid down that those Acts and Regulations  would
\nnot be deemed to be void or ever to have become void, on the
\nground\tthat  they were inconsistent with. or took  away  or
\nabridged  any  of the rights conferred by any  provision  of
\nPart  III.   It further provided  that\tnotwithstanding\t any
\njudgment,  decree or order of any court or tribunal  to\t the
\ncontrary, all such Acts and Regulations subject to the power
\nof  any\t competent  legislature to  repeal  or\tamend  them,
\ncontinue in force.\n<\/p>\n
This amendment, and in particular Arts. 31-A and 31-B  were.
\nimmediately  challenged\t by various writ petitions  in\tthis
\nCourt  and  these came to be decided on October 5,  1951  in
\nSankari Prasad’s case(1).  The attack on the validity of the
\nFirst Amendment was made on various grounds; but three\tmain
\ngrounds which were. taken were, first 1 , that amendments to
\nthe  Constitution  made\t under Art. 368 were  liable  to  be
\ntested under Art. 13(2); secondly that in any case as  Arts.
\n31  A  and  31-B  insert  the  Constitution  by\t the  First.
\nAmendment  affected the power of the High Court\t under\tArt.
\n226  1\tand of this Court under Articles 132  and  136;\t the
\namendment  required ratification under the proviso  to\tArt.
\n368;  and, thirdly that Acts. 31-A and 31 B were invalid  on
\nthe ground that they related to matters-covered by the State
\nList, namely, item 18 of List 11, and could not therefore be
\npassed\tby  Parliament.This  Court rejected  all  the  three
\ncontentions.  It held that although .”law” would  ordinarily
\ninclude\t constitutional law, there was a  clear\t demarcation
\nbetween\t ordinary  law made in the exercise  of\t legislative
\npower  and  constitutional  law\t made  in  the\texercise  of
\nconstituent power, and in the context of Art. 13, “law” must
\nbe  taken to mean rules or regulations made. in exercise  of
\nordinary  legislative  power  and  not\tamendments  to,\t the
\nConstitution  made in the exercise of constituent power;  in
\nconsequence Art. 13(2) did not affect amendments made  under
\nArt.  3 68.  It further held that Arts. 3 1 A and  31-B\t did
\nnot curtail the power of the High Court under Art. 226 or of
\nthis  court  under Arts. 132 and 136- and  did\tnot  require
\nratification under the
\n(1)  [1952] S.C.R. 89
\n820<\/span>
\nproviso\t contained in Art. 368.\t Finally, it was held  that-
\nArts.  31.-A  and 31-B were essentially\t amendments  to\t the
\nConstitution  and Parliament as such had the power to  enact
\nsuch amendments.  In consequence, the First Amendment to the
\nConstitution was upheld as valid.\n<\/p>\n
After\tthis   decision,   there   followed   sixteen\tmore
\namendment   .to\t the  Constitution  till  we  come  to\t the
\nSeventeenth  Amendment, which was passed on June  20,  1964.
\nThere does not seem to have been challenge to any  amendment
\nup  to\tthe Sixteenth Amendment, even though  two  of  them,
\nnamely,\t the Fourth Amendment and the Sixteenth\t Amendment,,
\ncontained  changes  in\tthe provisions of Part\tIII  of\t the
\nConstitution.  Further the nature of these amendments was to
\nadd  to, or alter or delete various other provisions of\t the
\nConstitution  contained in Part III thereof On\tDecember  5,
\n1961  came  the decision of this Court by which\t the  Kerala
\nAgrarain  Reforms Act (No. 4 of 1961), passed by the  Kerala
\nlegislature,  was struck down, among other grounds, for\t the
\nreason\tthat ryotwari lands in South India were not  estates
\nwithin the meaning of Art. 31-A and therefore acquisition of
\nreyotwari  land\t was not protected under Art.  31-A  of\t the
\nConstitution   :  [see\tKarimbil  Kunhikoman  v.  State\t  of
\nKerala<\/a>(1)].   This decision was followed by the\t Seventeenth
\nAmendment on June 20, 1964.  By this amendment, changes were
\nmade  in  Art.\t31-A of the Constitution and  44  Acts\twere
\nincluded  in  the  Ninth  Schedule  to\tgive  them  complete
\nprotection  from attack under any provision of Part  III  of
\nthe  Constitution.   Practically all these Acts\t related  to
\nland tenures and were concerned with agrarian reforms.\tThis
\namendment  was\tchallenged  before  this  ‘Court  in  Sajjan
\nSingh’s\t case(2).  The points then urged were that  as\tArt.
\n226 was likely to be affected by the Seventeenth  Amendment,
\nit  required ratification under the proviso to Art. 368\t and
\nthat  the  decision  in Sankari Prasads\t case(3)  which\t had
\nnegatived this contention required re-consideration.  It was
\nalso  urged that the Seventeenth Amendment  was\t legislation
\nwith  respect  to  land\t and  Parliament  bad  no  right  to
\nlegislate   in\tthat  behalf,  and  further  that   as\t the
\nSeventeenth  Amendment\tprovided that the Acts\tput  in\t the
\nNinth  Schedule would be valid in spite of the\tdecision  of
\nthe  Courts,  it  was unconstitutional..  This\tCourt  by  a
\nmajority  of 3 to 2 upheld the correctness of  the  decision
\nin  Sankari Prasad’s case(,,).\tIt further held\t unanimously
\nthat the Seventeenth Amendment did not require\tratification
\nunder the proviso to Art. 368 because of its indirect effect
\non  Art. 226, and that Parliament in enacting the  Amendment
\nwas  not  legislating with respect to land and that  it\t was
\nopen  to Parliament to validate legislation which  had\tbeen
\ninvalid by courts.  Finally this Court held by majority
\n(1) [1962] Supp. 1 S.C.R. 829.\t(2) [1965] 1 S.C.R. 933.
\n(3)  [1952] S.C.R. 89.\n<\/p>\n
821<\/span><\/p>\n
that  the power conferred by Art. 368 included the power  to
\ntake away fundamental rights guaranteed by Part HI and\tthat
\nthe  power to amend was a very wide power and could  not  be
\ncontrolled  by\tthe literal dictionary meaning of  the\tword
\n“amend”\t and  that  the word “law” in Art. 13  (2)  did\t not
\ninclude\t an amendment of the Constitution made in  pursuance
\nof  Art. 368.  The minority however doubted the\t correctness
\nof  the view taken in Sankari Prasads case(1) to the  effect
\nthat the word ‘law” in Art. 13 (2) did not include amendment
\nto  the\t Constitution  made under  Art.\t 368  and  therefore
\ndoubted\t the competence of Parliament to make any  amendment
\nto Part III of the Constitution.  One of the learned  Judges
\nfurther\t doubted  whether  making  a  change  in  the  basic
\nfeatures of the Constitution could be regarded merely as  an
\namendment  or would, in effect, be re-writing a part of\t the
\nConstitution,  and  if so, whether it could’ be\t done  under
\nArt.  368.   It\t was because of this  doubt  thrown  on\t the
\ncorrectness  of the view taken in Sankari  Prasad’s  case(1)
\nthat  the  present reference has been made to  this  Special
\nBench.\n<\/p>\n
As  the\t question  referred  to\t this  Bench  is  of   great
\nconstitutional importance and affected legislation passed by
\nvarious\t States, notice was issued to the Advocates  General
\nof all States and they have appeared and, intervened  before
\nus.   Further a number of persons who were also affected  by
\nthe Seventeenth Amendment have been permitted to  intervene.
\nThe   arguments\t on  behalf  of\t the  petitioners  and\t the
\ninterveners who support them may now. be briefly summarised.
\nIt is urged that Art. 368-when it provides for the amendment
\nof the Constitution merely’ contains the procedure for doing
\nso and that the power to make amendment has to be found.  in
\nArt.  248 read with item 97 of List 1. It is  further  urged
\nthat  the  word\t “amendment”  in Art.  368  means  that\t the
\nprovisions  in\tthe  Constitution can be changed  so  as  to
\nimportant  upon\t them And that this power is  of  a  limited
\ncharacter  and\tdoes not authorise Parliament  to  make\t any
\naddition to, alteration of or deletion of any ,provision  of
\nthe Constitution, including the provision contained in\tPart
\nIII.   So  Art. 368 authorises only those  amendments  which
\nhave  the effect of improving the Constitution.\t Then it  is
\nurged  that amendment permissible under Art. 368 is  subject
\nto certain implied limitations and the these limitations are
\nthat basic features of the Constitution cannot be amended at
\nall.   An attempt was made to indicate some of\tthese  basic
\nfeatures,  as, f( example, the provisions in Part  III,\t the
\nfederal\t structure, the republican character of\t the  State,
\nelected\t Parliament and State Legislatures on-the  basis  of
\nadult  suffrage, control by the judiciary and so on, and  it
\nis.  said that- an amendment under Art. 3 69 is\t subject  to
\nthe implied limi-\n<\/p>\n
(1) (1952] S.C.R. 89.\n<\/p>\n
L3Sup.CI\/67-7
\n822<\/span>
\ntations\t that  these basic features and others of  the\tkind
\ncannot\tbe,  changed.  Thus in effect the argument  is\tthat
\nthere  is  a  very  limited power  of  amendment  under\t the
\nConstitution.\n<\/p>\n
It   is\t further  urged\t that  apart  from   these   implied
\nlimitations, there is an express limitation under Art. 13(2)
\nand  the word “law in that Article includes an amendment  of
\nthe  Constitution. The argument thus in the  alternative  is
\nthat   as   the\t word  “law”  in  Art.\t13(2)\tincludes   a
\nconstitutional\tamendment, no amendment can be made in\tPart
\nHI under Art. 368 which would actually take away or  abridge
\nthe  rights  guaranteed under that Part.  In effect,  it  is
\nsaid that even if there are no implied limitations to  amend
\nthe  Constitution under Art. 368, Art. 13(2) is\t an  express
\nlimitation  insofar  as\t the  power to\tamend  Part  III  is
\nconcerned and by virtue of Art. 13(2) the rights  guaranteed
\nunder  Part III cannot be taken away or abridged under\tArt.
\n368,  though it is conceded that Part III may be amended  by
\nway of enlarging the rights contained therein.
\nAnother\t line  of  argument  is that  in  any  case  it\t was
\nnecessary  to take action under the proviso to Art. 368\t and
\nas that was not done the Seventeenth Amendment is not valid.
\nIt  is\turged that Art. 2,26 is seriously  affected  by\t the
\nprovisions  contained in the Seventeenth Amendment and\tthat
\namounts\t to  an\t amendment of Aft. 226\tand  in\t consequence
\naction\tunder the- proviso was necessary.  It is also  urged
\nthat Art. 245 was addition of a number of Acts in the  Ninth
\n13  (2) and therefore also it was necessary to\ttake  action
\nunder  the  proviso.  It is further urged that\tit  was\t not
\ncompetent  for\tParliament  to\tamend  the  Constitution  by
\nputting a large number of Acts in the Ninth Schedule as\t the
\npower  to  legislate with respect to land is  solely  within
\nthe.  competence of State Legislatures and that\t is  another
\nreason why the addition to the Ninth Schedule read with Art.
\n31 B should be struck down.\n<\/p>\n
Lastly\tan argument had been advanced which we may call\t the
\nargument  of  fear.  It is said that if Art.368 is  held  to
\nconfer full to amend each and every part of the Constitution
\nas has been    held in Sankari Prasad’s case(1).  Parliament
\nMay do all kinds of things, which were never intended, under
\nthis unfettered power and may, for example, abolish  elected
\nlegislatures,  abolish the President or change\tthe  present
\nform of Government into a Presedential type like the  United
\nStates.\t Constitution or do away with the federal  structure
\naltogether.   So it is urged that, we should,interpret\tArt.
\n368 in such a way that Parliament may not be able to do- all
\nthese things.  In effect this argument of fear has been\t put
\nforward to reinforce the contention that this Court should
\n(1)[1952] S.C.R. 89.\n<\/p>\n
823<\/span><\/p>\n
hold that there are some implied limitations on the amending
\npower and these implied limitations should be that there  is
\nno  power any where in the Constitution to change the  basic
\nfeatures of the Constitution to which reference has  already
\nbeen made.  This is in brief the submission on behalf of the
\npetitioners and the interveners who support them.
\nThe   submission  on behalf of the Union of  India  and\t the
\nStates may now be summarised.  It is urged that Art. 368 not
\nonly provides procedure or amendment but also contains in it
\nthe  power to amend the Constitution.  It is  further  urged
\nthat the word “amendment” in law does not merely mean making
\nsuch  changes  in the Constitution as would improve  it\t but
\nincludes the power to make any addition to the Constitution,
\nany  alteration\t of any of the existing provisions  and\t its
\nsubstitution by another provisions, and any deletion of\t any
\nparticular provision of the Constitution.  In .effect, it is
\nurged  that  even if the word “amendment” used in  Art.\t 368
\ndoes not take in the power to abrogate the entire ‘Constitu-
\ntion  and  replace  it\tby  another  new  Constitution,\t  it
\ncertainly means that any provisions of the Constitution\t may
\nbe  changed and this change can be in the form\tof  addition
\nto,  alteration\t of  or deletion of  any  provision  of\t the
\nConstitution.  So long therefore as the Constitution is\t not
\nentirely  abrogated and replaced by a- new  Constitution  at
\none  stroke, the power of amendment would enable  Parliament
\nto-  make  all\tchanges\t in  the  existing  Constitution  by
\naddition, alteration or deletion.  Subject only to co repeal
\nbeing not possible, the power of amendment contained in Art.
\n368 is unfettered.  It is further urged that there can be no
\nimplied\t  limitations  on  the\tpower  to  amend   and\t the
\nlimitations  if any on this. power must be found hi  express
\nterms  in  the\tArticle\t providing  for-amendment.   It\t  is
\nconceded that there may be an express limitation not  merely
\nin  the Article providing for amendment, but in\t some  other
\npart  of the Constitution.  But it is said that if  that  is
\nso, there must be a clear provision to that effect.  In\t the
\nabsence\t of express limitations, therefore, there can be  no
\nimplied limitations ,on the power to amend the\tConstitution
\ncontained  in  Art.  368 and that power\t will  take  in\t all
\nchanges whether by way of addition, alteration or  deletion,
\nsubject\t only to this that the power of amendment  may\triot
\ncontain\t the,  power  to  abrogate  and\t repeal\t the  entire
\nConstitution and substitute it with a new one.
\nIt  is\tthen  urged that there is no  express  provision  in
\nArt.368\t itself\t so  far as any amendment  relating  to\t the
\nsubstance  of  the amending power is  concerned-,  die\tonly
\nlimitations  in Art, 368 are as to procedure and courts\t can
\nonly  see  that the procedure as indicated in  Art.  368  is
\nfollowed before an amendment can be said to be valid.  It is
\nfurther\t urged\tthat  the word “law”, in Art.  13  does\t not
\ninclude an amendment of the Constitution and only
\n824<\/span>
\nmoans\tlaw  as\t made.\tunder  the  legislative\t  provisions
\ncontained  in Chapter, I of Part XI read with,\tChapters  II
\nand III of Part V of the.  Constitution and Chapters III and
\nV  of Part VI thereof.\tIn effect it is a law which is\tmade
\nunder  the Constitution which included in the word “law”  in
\nArt.  13(2) and not an amendment to the\t Constitution  under
\nArt. 368.\n<\/p>\n
As  to\tArticles  226 and 245 and the  necessity  of  taking
\naction under the proviso to Art. 368, it is urged that there
\nis no change in Arts. 226 and 245on account of any provision
\nin  the Seventeenth Amendment and therefore no action  under
\nthe proviso was necessary.    it  is only direct  change  in
\nArts.  226  and\t 245  which  would  require  following\t the
\nprocedure  as to ratification or at any rate such change  in
\nother  Articles\t which\twould have the\teffect\tof  directly
\ncompelling  change  in\tArts 226 and 245  and  that  in\t the
\npresent case no such\t direct compulsion arises.
\n Lastly as to the argument of fear it is urged that there is
\nalways\ta  provision with respect to  amendment\t in  written
\nfederal\t Constitutions.\t  Such a provision may be  rigid  or
\nflexible.   In\tour  Constitution Art. 368  provides  for  a
\ncomparatively flexible provision for amendment and there is’
\nno  reason to make it rigid by implying any  limitations  on
\nthat power.  Further there Is no reason to suppose that\t all
\nthose  things  will be done by Parliament  which  are  being
\nurged to deny the power under Art. 368 which flows naturally
\nfrom its terms.\n<\/p>\n
Besides the above, reliance is also placed on behalf of\t the
\nUnion  of  India and the States on the\tdoctrine.  of  stare
\ndecisis.  It is urged that since the decision of this  Court
\nin Sankari Prasad’s case(1), sixteen further amendments have
\nbeen  made  by\tParliament on the  faith  of  that  decision
\ninvolving  over\t 200  Articles\tof  the\t Constitution.\t The
\namendments  relating  to  Part III  have  been\tmainly\twith
\nrespect to agrarian reforms resulting in transfers of  title
\nof  millions  of  acres of land in  favour  of\tmillions  of
\npeople.\t  Therefore’, even though Sankari  Prasad’s  case(1)
\nhas  stood  only  for fifteen years there has  been  a\tvast
\nagrarian  revolution effected on the faith of that  decision
\nand this Court should not now go back on what was decided in
\nthat  case.   Further, besides the argument based  on  state
\ndecisis,  it is urged on the basis of certain  decisions  of
\nthis  Court that the unanimous decision in Sankari  Prasad’s
\ncase(1)\t  which\t had  stood  practically  unchallenged\t for
\nabout’15’years till the decision in Sajjan Singh’s  case(2),
\nshould not be over-ruled unless it is found to be  incorrect
\nby a large majority of the Judges constituting this  Special
\nBench.\t It  is urged that if the present Bench is  more  or
\nless  evenly divided it should not over-rule  the  unanimous
\ndecision in’ Sankari Prasad’s case(1) by a Majority of one.
\n(1) (1952] S.C.R. 89.\n<\/p>\n
(2) [1965] 1 S.C.R. 933
\n825<\/span>
\nWe shall first take Art, 368.  It is found in Part XX of the
\nConstitution   which   is   headed.    Amendment   of\t the
\nConstitution”  and is the only Article in that\tPart.\tThat
\nPart  thus  provides specifically for the amendment  of\t the
\nConstitution, and the first question that arises is  whether
\nit  provides power for the amendment of the Constitution  as
\nwell as the procedure for doing so.  It is not disputed that
\nthe  procedure\tfor amendment of the Constitution is  to  be
\nfound  in Art. 368, but what is in dispute is  whether\tArt.
\n368 confers power also in that behalf. Now the procedure for
\nthe amendment of the Constitution is this: The amendment  is
\ninitiated  by the introduction of a Bill in either House  of
\nParliament.   The Bill has to be passed in each House  by  a
\nmajority  of  the total membership of that House  and  by  a
\nMajority of not less two-thirds of the members of that House
\npresent\t and  voting.  After it is so passed, it has  to  be
\npresented  to  the  President  for  his\t assent.   On\tsuch
\npresentation if the President assents to the Bill, Art. 3-68
\nprovides  that\tthe  Constitution  shall  stand\t amended  in
\naccordance  with the terms of the Bill.\t Further there is  a
\nproviso\t for ratification with respect to  certain  Articles
\nand other provisions of the Constitution including Art. 368,
\nand those matters can only be amended if the Bill passed  by
\nthe  two  Houses by necessary majority is  ratified  by\t the
\nlegislatures  of  not less than one-half of  the  States  by
\nresolutions to that effect.  In such a case the Bill  cannot
\nbe presented for his assent to the President until necessary
\nratification   is  available.\tBut  when   the.   necessary
\nratification  has been made, the Bill with respect to  these
\nmatters is then presented to the President and on his assent
\nbeing given, the Constitution stands amended. in  accordance
\nwith the terms of the Bill.\n<\/p>\n
The argument is that there is no express provision in  terms
\nin  Art.  368 conferring power on Parliament  to  amend\t the
\nConstitution, and in this connection our attention has\tbeen
\ninvited\t to  an analogous provision in the  Constitution  of
\nIreland in Art. 46, where cl. 1 provides that any  provision
\nof  the Constitution, may be amended in the manner  provided
\nin  that  Article,  and\t then  follows\tthe  procedure\t for
\namendment  in  clauses\t2 to 5. Reference is  also  made  to
\nsimilar\t provisions  in.  other\t constitutions,\t but  it  is
\nunnecessary to refer to them. . It is urged that as Art. 368
\nhas  nothing  comparable to cl.\t I of Art. 46 of  the  Irish
\nConstitution, the power to amend the Constitution is not in.
\nArt.  3\t 68  and  must .be. found  elsewhere.\tWe  are\t not
\nprepared to accept this argument.  The fact that Art. 368 is
\nnot  in\t two  parts,  the first\t part  indicating  that\t the
\nConstitution  shall  be\t amended  in  the  manner   provided
\nthereafter, and the second part indicating the procedure for
\namendment,  does not mean that the power to amend the  Cons-
\ntitution is not contained in Art. 368 itself.  The very fact
\nthat a
\n826<\/span>
\nseparate  Part\thas  been devoted in  the  Constitution\t for
\namendment thereof and there is only one Article in that Part
\nshows  that  both the power to amend and the  procedure\t for
\namendment  are to be found in Art. 368.\t Besides, the  words
\n“the  Constitution shall stands amended in accordance  ‘with
\nthe  terms of the Bill” in Art. 368 clearly in\tour  opinion
\nprovide for the power to amend after the procedure has\tbeen
\nfollowed.   It\tappears that  our  Constitution-makers\twere
\napparently  thinking  of economy of words  and\telegance  of
\nlanguage  in  enacting\tArt. 368 in the terms  in  which  it
\nappears and that is why it is not in two parts on the  model
\nof  Art.46 of the Irish Constitution.  But there can in\t our
\nopinion.  be  not doubt, when a separate Part  was  provided
\nheaded\t“Amendment  of the Constitution” that the  power  to
\namend  the Constitution must also be contained in  Art.\t 368
\nwhich  is the only Article in that Part.  If there  was\t any
\ndoubt  about  the-  matter, that doubt\tin  our\t opinion  is
\nresolved  by  the words to which we  have  already  referred
\nnamely “the Constitution shall stand amended in the terms of
\nthe  Bill”.   These words can only mean that the.  power  is
\nthere to amend the Constitution after the procedure has been
\nfollowed.\n<\/p>\n
 It   is  however  urged  that\tthe  power  to\t amend\t the
\nConstitution is not to be found in Art. 368 but is contained
\nin  the residuary power of Parliament in Art. 48  read\twith
\nitem  97 of List 1. It is true that Art. 248 read with\titem
\n97 of List I, insofar as it provides for residuary power  of
\nlegislation, is very wide in its scope and the argument that
\nthe,  power to amend the Constitution is contained  in\tthis
\nprovision  appears  prima facie attractive ‘in view  of\t the
\nwidth  of the residuary power.\tBut we fail to see why\twhen
\nthere is a whole Part devoted to the amendment of the  Cons-
\ntitution  the  power to amend should not be  found  in\tthat
\nPart,  if it can be reasonably found there and why Art.\t 368
\nshould\tonly  be  confined to providing\t for  procedure\t for
\namendment.  It is true that the marginal note to Art. 368 is
\n“procedure  for\t amendment of the  Constitution”,  but.\t the
\nmarginal note cannot control the meaning of the words in the
\nArticle\t itself,  and we have no doubt that the\t words\t“the
\nConstitution  shall  stand amended in accord  the  power  of
\namendment.  If we were to compare the language of cls. 2  to
\n5of Art. 46- of the Irish Constitution which prescribes\t the
\nprocedure for amendment, we find no words therein comparable
\nto  these words in Art. 368.  These words clearly  are\tcom-
\nparable\t to cl.\t I of Art. 46-of the Irish Constitution\t and
\nmust  be rod as conferring power on Parliament to amend\t the
\nConstitution.\tBesides\t it is remarkable in  contrast\tthat
\nArt.  248  read with List I does not in\t terms\tmention\t the
\namendment  of the Constitution. while therefore there  is  a
\nwhole Part devoted to the amendment of the Constitution,  we
\ndo not find any specific mention of the
\n827<\/span>
\namendment of the Constitution in Art. 248 or in any entry of
\nList 1.\n<\/p>\n
It  would in the circumstances be more appropriate to\tread
\nin  power in Art. 3 68 in view of the, words which  we\thave
\nalready\t referred to than in Art. 248 read with item  97  of
\nList  I.  Besides it is a historical fact to  which  we\t can
\nrefer  that originally the intention was to  vest  residuary
\npower  in States, and if that intention had been  eventually
\ncarried\t out, it would have been impossible for any  one  to
\nargue  that  the power to amend the Constitution was  to  be
\nfound  in the residuary power if it had been vested  in\t the
\nStates and not in the Union.  The mere fact that during\t the
\npassage\t of  the Constitution by the  Constituent  Assembly,
\nresiduary  power was finally vested in the Union  would\t not
\ntherefore mean that it includes the power to amend the Cons-
\ntitution.   On a comparison of the scheme, of the  words  in
\nArt  368 and the scheme of the words in Art. 248  read\twith
\nitem 97 of List 1, therefore, there is no doubt in our\tmind
\nthat both the procedure and power to amend the\tConstitution
\nare to be found in Art. 368 and they are not to be found  in
\nArt.  248  read with item 97 of List I\twhich  provides\t for
\nresiduary legislative power of Parliament.
\nThere  is  in our opinion another reason why  the  power  to
\namend  the Constitution cannot found in Art. 248  read\twith
\nitem  97 of List 1. The Constitution is the fundamental\t law
\nand no law passed under mere legislative power conferred  by
\nthe Constitution can affect any change, in the\tConstitution
\nunless there is an express power to that effect given in the
\nConstitution  itself.\tBut subject to\tsuch  express  power
\ngiven  by  the\tConstitution itself,  the  fundamental\tlaw,
\nnamely\tthe Constitution, cannot be changed by a law  passed
\nunder\tthe   legislative  provisions\tcontained   in\t the
\nConstitution as all legislative acts passed under the  power
\nconferred   by\t the  Constitution  must  conform   to\t the
\nConstitution can make no change therein.  There are a number
\nof Articles in the Constitution, which expressly provide for
\namendment by law, as,. for example, 3, 4, 10, 59(3),  65(3),
\n73(2),\t97,  98(3), 106, 120(2), 135, 137,  142(1),  146(2),
\n148(3), 149, 169, 171(2), 196, 187(3), 189(3), 194(3),\t195,
\n210(2), 221(2). 225, 229(2), 239(1), 241(3), 283(1) and (2),
\n285(2), 287, 306(1), 313, 345, 373, Sch.  V. cl. 7 and\tSch.
\nVI, cl. 21,, and so far as these Articles are concerned they
\ncan  be\t amended  by  Parliament  by.  ordinary\t  law-making
\nprocess.   But\tso far as the other Articles  are  concerned
\nthey  can only be amended by amendment of ‘the\tConstitution
\nunder Art. 368.\t Now Art. 245 which gives power to make\t law
\nfor  the  whole\t or any part of the territory  of  India  by
\nParliament  is\t“subject to the provisions of  this  Consti-
\ntution”\t and any law made by Parliament whether\t under\tArt.
\n246 read with List I or under Art. 248 read with item 97  of
\nList I be subject to the provisions of the Constitution.  If
\ntherefore  the power to amend the Constitution is  contained
\nin Art. 248
\n828<\/span>
\nread with item 97 of List 1, that power has to\tbe exercised
\nsubject to the provisions of the Constitution and cannot  be
\nused   to   change   the  fundamental\tlaw   (namely,\t the
\nConstitution) itself.  But it is argued that Art. 368  which
\nprovides   a   special\tprocedure  for\tamendment   of\t the
\nConstitution should be read along with Arts. 245 248, and so
\nread  it  would\t be  open to  amend  any  provision  of\t the
\nConstitution by law passed under Art. 248 on the ground that
\nArt.  248  is  subject to Art. 368  and\t therefore  the\t two
\ntogether  give power to Parliament to pass a law under\tArt.
\n248   which  will  amend  even\tthose  provisions   of\t the
\nConstitution  which are not expressly made amendable by\t law
\npassed under the legislative power of Parliament.  This\t in-
\nour opinion is arguing in a circle.- If the fundamental\t law
\n(ie. the Constitution) cannot be I changed by any law passed
\nunder\tthe  legislative  powers  contained   therein,\t for
\nlegislation  so passed must conform to the fundamental\tlaw,
\nwe  fail to see how a law, passed under the residuary  power
\nwhich  is nothing, more than legislative power conferred  on
\nparliament   under   the  Constitution,\t  can\tchange\t the
\nConstitution (namely, the fundamental law) Itself.
\nWe,may in this connection refer to the following passage  in
\nThe Law.and the Constitution by W. Ivor Jennings (1933\tEd.)
\nat p. 51 onwards :-\n<\/p>\n
\t       “A   written   constitution   is\t  thus\t the
\n\t      fundamental  law\tof a  country,\tthe  express
\n\t      embodiment  of the doctrine of the  region  of
\n\t      law.    All   public   uthorities-legislative,
\n\t      administrative  and judical-take their  powers
\n\t      directly\tor indirectly  from  it…..Whatever
\n\t      the  nature of the written constitution it  is
\n\t      clear that there “is a fundamental distinction
\n\t      between constitutional law and the rest of the
\n\t      law……..  There  is  a\t clear\t separation,
\n\t      therefore, between the constitutional law\t and
\n\t      the rest of the law.”\n<\/p><\/blockquote>\n
It  is because of this difference between  the.\t fundamental
\nlaw (namely, the Constitution) and the law passed under\t the
\nlegislative  provisions of the Constitution that it  is\t not
\npossible  in  the absence of an express\t provision  to\tthat
\neffect in the fundamental law to ,change the fundamental law
\nby ordinary legislation passed thereunder, for such ordinary
\nlegislation must always conform to the fundamental law (i.e.
\nthe  Constitution).  If the power to amend the\tConstitution
\nis  to be found in Art. 248 read with item 97 of List 1.  It
\nwill mean that ordinary legislation passed under fundamental
\nlaw  would  amend that law and this cannot  be\tdone  unless
\nthere is express provision as in Art. 3 etc. to that effect
\nIn  the\t absence of such express provisions any\t law  passed
\nunder the legislative powers granted under the fundamental’-
\nlaw  cannot amend it.  So if we were to hold that the  power
\nto amend the
\n829<\/span>
\nConstitution is comprised in-Art. 248, that would mean that-
\nno  amendment-,of the Constitution would be possible at\t all
\nexcept to the extent expressly provided in various  Articles
\nto  which  we  have  referred  already,\t for  the  power  to
\nlegislate  under  Art.\t245 read with  Art.  248  is  itself
\nsubject to the Constitution.  Therefore reading Art. 368 and
\nconsidering  the scheme of the legislative powers  conferred
\nby Articles 245 and 248 read with item 97 of List I” this to
\nour  mind  is clear, firstly that the power  to\t amend\tthe,
\nConstitution  is  to  be  found\t in  Art.  368\titself,\t and
\nsecondly, that the power to amend the Constitution can never
\nreside in Art. 245 and Art. 248 read with item 97 of List 1,
\nfor  that  would  make any  amendment  of  the\tConstitution
\nimpossible  except  with respect to  the  express-provisions
\ncontained in certain Articles thereof for amendment by law-.
\nWe  may in this connection add that all this  argument\tthat
\npower  to amend the Constitution is to be found in Art.\t 245
\nand  Art. 248 read with item 97 of List I has been based  on
\none    accidental   circumstance,   and\t  that\t  accidental
\ncircumstance  is  that the procedure for  amendment  of\t the
\nConstitution   contained  in  Art.  368\t is  more  or\tless
\nassimilated to the procedure for making ordinary laws  under
\nthe  Constitution.   The  argument  is\tthat  constitutional
\namendment  is also passed by the two Houses  of\t Parliament,
\nand   is  assented  to\tby  the\t President   like   ordinary
\nlegislation, with this difference that a special majority is
\nrequired  for certain purposes and a special  majority\tplus
\nratification is required for certain other purposes.  It may
\nbe admitted that the procedure for amendment under Art.\t 368
\nis  somewhat similar to the procedure for  passing  ordinary
\nlegislation under the Constitution.  Even so, as pointed out
\nby Sir Ivor Jennings in the passage already quoted, there is
\na  clear separation between constitutional law and the\trest
\nof  the law and that must never be forgotten.  An  amendment
\nto the Constitution is a constitutional law and as  observed
\nin  Sankari Prasad’s case(1) is in exercise  of\t constituent
\npower;\tpassing of ordinary law is in exercise\tof  ordinary
\nlegislative power and is clearly different from the power to
\namend  the Constitution.  We may in this  connection  refer,
\nfor  example, to Art.  V of other U.S.\tConstitution,  which
\nprovides  for  the, amendment thereof.\tIt will\t be  clearly
\nseen  that  the\t power\tcontained in Art.   V  of  the\tU.S.
\nConstitution  is not ordinary legislative power and  no\t one
\ncan possibly call it ordinary legislative power, because the
\nprocedure provided for the amendment of the Constitution  in
\nArt.   V differs radically from the procedure  provided\t for
\nordinary legislation, for example, the President’s assent is
\nnot  required constitutional amendment under Art.  V of\t the
\nU.S. Constitution,; Now if Art. 368 also had made a  similar
\ndeparture   from   the\tprocedure  provided   for   ordinary
\nlegislation, it could never have
\n(1)  [1952 ] 1 S. C. R. 89
\n830<\/span>
\nsaid  that  Art.  368 merely  contained\t the  procedure\t for
\namendment  and\tthat what emerges after\t that  procedure  is
\nfollowed  is ordinary law of the same quality and nature  as
\nemerges\t after following the procedure for passing  ordinary
\nlaw.  If, for example, the assent of the President which  is
\nto  be\tfound  in  Art.\t 368 had  not  been  there  and\t the
\nConstitution  would  have stood amended after the  Bill\t had
\nbeen  passed  by the two Houses by  necessary  majority\t and
\nafter  ratification by not less than one-half of the  States
\nwhere so required , it could never have been argued that the
\npower  to amend the Constitution was contained in  Art.\t 245
\nand 248 read with item 97 of List I and Art. 368 merely con-
\ntained the procedure.\n<\/p>\n
We are however of opinion that we should look at the quality
\nand  nature  of what is done under Art. 368 and not  lay  so
\nmuch stress on the similarity of the procedure contained  in
\nArt.  368 with the procedure for ordinary lawmaking.  If  we
\nthus  look at the quality and nature of what is\t done  under
\nArt.  368,  we find that it is the exercise  of\t constituent
\npower  for the purpose of amending the\tConstitution  itself
\nland  is  very\tdifferent  from\t the  exercise\tof  ordinary
\nlegislative  power  for\t passing  laws\twhich  must  be\t  in
\nconformity  with the Constitution and cannot go against\t any
\nprovision thereof, unless there is express provision to that
\neffect to which we have already referred.  If we thus  refer
\nto the nature and quality of what is done under Art. 368, we
\nimmediately  See  that what emerges after the  procedure  in
\nArt.  368 is gone through is not ordinary law which  emerges
\nafter\tthe   legislative   procedure\tcontained   in\t the
\nConstitution  is gone through.\tThus Art. 368  provides\t for
\nthe  coming  into  existence  of  what\tmay  be\t called\t the
\nfundamental  law  in  the  form\t of  an\t amendment  of\t the
\nConstitution and therefore what emerges after the  procedure
\nunder  Art. 368 is gone through is not ordinary\t legislation
\nbut  an amendment of the Constitution which becoming a\tpart
\nof  the\t fundamental  law itself, by  virtue  of  the  words
\ncontained  in Art. 368 to the effect that  the\tConstitution
\nshall  stand  amended in accordance with the  terms  of\t the
\n‘Bill.\n<\/p>\n
It  is\turged in this connection on behalf of the  Union  of
\nIndia  that  even  though the assent  of  the  President  is
\nrequired under Aft. 368, the ;President must assent  thereto
\nand cannot withhold his assent as is possible in the case of
\nordinary  law in view of Art.  III of the Constitution,\t for
\nthe words “that he withholds assent therefrom” found in Art.
\nIII  are  not  to  be found in\tArt.  368.   It\t is  however
\ndifficult to accept the argument on behalf of the Union that
\nthe  President\tcannot withhold his assent when a  Bill\t for
\namendment of the Constitution is presented to him.   Article
\n‘368  provides\tthat  a\t Bill  for  the\t amendment  of\tthe,
\nConstitution  shall  be presented to the President  for\t his
\nassent.\t It further provides
\n831<\/span>
\nthat  upon  such assent by the President,  the\tConstitution
\nshall,\tstand amended.\tThat in our opinion postulates\tthat
\nif assent is not given, the Constitution cannot be  amended.
\nWhether\t a  President will ever withhold his assent  in\t our
\nform of Government is a different matter altogether, but  as
\nwe road Art. 368 we cannot. hold that the President is bound
\nto  assent  and cannot withhold his assent when a  Bill\t for
\namendment  of the Constitution is presented to him.  We\t are
\nof opinion that ‘the President can refuse to give his assent
\nwhen  a Bill for amendment of the Constitution is  presented
\nto him, the result being that the Bill altogether falls, for
\nthere  is no specific provision for anything further  to  be
\ndone,: about the Bill in Art. 368 as there is in Art.\tIII.
\nWe  may in this. connection refer to the different  language
\nused  in  cl. 5 of Art. 46 of the Irish\t Constitution  which
\nsays that “a Bill containing a proposal for the amendment of
\nthis Constitution shall be signed by the President Forthwith
\nupon his being satisfied that the provisions of this Article
\nhave  been complied with, in respect thereof’.\tIt  will  be
\nseen  therefore\t that if the intention kinder Art.  368\t had
\nbeen that the President cannot withhold his assent, we would
\nhave  found  language similar in terms to that in cl.  5  of
\nArt. 46 of the Irish Constitution.\n<\/p>\n
We thus see that in one respect at any rate Art. 368 even on
\nits present terms differs from the power of the President in
\nconnection with ordinary legislation under the\tConstitution
\nand  that is if the President withholds his assent the\tBill
\nfor  amendment of’ the Constitution immediately\t falls.\t  We
\ncannot accept that the procedure provided under the  proviso
\nto  Art. 111 can apply in such a case, for this much  cannot
\nbe  disputed that so far as the procedure for  amendment  of
\nthe Constitution is concerned we must look to Art. 368\tonly
\nand  nothing  else.   In any case the  mere  fact  that\t the
\nprocedure  in  Art.  368 is very much  assimilated.  to\t the
\nprocedure for passing ordinary legislation is no reason for,
\nholding that what emerges after the procedure under Art. 368
\nis followed is ordinary law and no more.  We repeat that  we
\nmust  look at the quality and nature of what is\t done  under
\nArt.  368, and that is, the amendment of  the  Constitution.
\nIf  we\tlook at that we must bold that what emerges  is\t not
\nordinary  law  passed under the Constitution  but  something
\nwhich has the effect of amending the fundamental law  itself
\nwhich  could  not be done by  ordinary\tlegislative  process
\nunder the Constitution unless there is express provision  to
\nthat  effect.\tWe  have already referred  to  such  express
\nprovisions  in\tvarious\t Articles, but Art.  368  cannot  be
\ntreated\t as such an Article, for it deals specifically\twith
\nthe amendment of the Constitution as a whole.
\nIt  is also remarkable to note in this connection that\tthe,
\nword  “law” which has been used in so many Articles of\t‘the
\nConsti-\n<\/p>\n
832<\/span><\/p>\n
tution\thas been avoided apparently with great care in\tArt.\n<\/p>\n
368.  We again refer to the concluding words 368 which\tsays
\nthat  the  “Constitution shall stand amended  in  accordance
\nwith  the terms of the Bill.  Now it is well-known  that  in
\nthe case of ordinary legislation as soon both Houses and has
\nreceived  the assent of the main part of Art. stand  amended
\nin ac it is well-known that as the Bill is passed by of\t the
\nPresident it becomes an Act.  But Art. 368 provides that  as
\nsoon as the Bill for amendment of the Constitution has\tbeen
\npassed\tin accordance with the procedure provided  there  in
\nthe  Constitution shall stand amendmend in  accordance\twith
\nthe  terms  of the Bill.  These words in  our  opinion\thave
\nsignificance of their own.  It is also remarkable that these
\nwords  clearly show the difference between the,\t quality  of
\nwhat emerges after the procedure under Art., 368 is followed
\nand  what  happens  when ordinary  law-making  procedure  is
\nfollowed.   Under  Art.\t III, in the case of  ordinary\tlaw-
\nmaking when a Bill is passed by the two Houses of parliament
\nit  is presented to the President and the  President   shall
\ndeclare\t either\t that  he assents to the  Bill\tor  that  he
\nwithholds assent therefrom.  But it is remarkable that\tArt.
\n111 does not provide that when the Bill has been assented to
\nby  the President it becomes an Act’ The reason for this  is
\nthat  the  Bill assented to by the President though  it\t may
\nbecome law is still not declared by Art.  I I I to be a law,
\nfor  such  law\tis open to challenge in\t courts\t on  various
\n,grounds,  namely,  on\tthe  ground  that  it  violates\t any
\nfundamental rights, or on the ground that Parliament was not
\ncompetent  to pass it or on the ground that it is in  breach
\nof any provision of the Constitution.  On the other hand  we
\nfind that when a Bill for the amendment of the\tConstitution
\nis  passed  by\trequisite majority and assented\t to  by\t the
\nPresident,  the\t Constitution  itself  ,declares  that\t the
\nConstitution  shall  stand amended in  accordance  with\t the
\nterms  of  the\tBill.  Thereafter what\tcourts\tcan  see  is
\nwhether\t the  procedure\t provided  in  Art.  368  has\tbeen
\nfollowed,  for if that is not done, the Constitution  cannot
\nstand amended in accordance with the terms of the Bill.\t But
\nif the procedure has been followed, the Constitution  stands
\namended,  and there is no question of testing the  amendment
\nof  the Constitution thereafter on the anvil of\t fundamental
\nrights\tor  in\tany other way as in  the  case\tof  ordinary
\nlegislation.  In view of an this we have no
\ndoubt that- even though. by accident the procedure  provided
\nin  the Constitution for amendment thereof is very  akin  to
\nthe  procedure for passing ordinary legislation,  the  power
\ncontained  in  Art. 368 is still  not  ordinary\t legislative
\npower  but  constituent power for the  specific\t purpose  of
\namendment of the Constitution; and it is the quality of that
\npower which determines the nature of what emerges after\t the
\nprocedure  in  Art.  368 has been  followed  and  what\tthus
\nemerges\t is  not ordinary legislation  but  fundamental\t law
\nwhich  cannot be tested,. for example, under Art.  13(2)  of
\nthe  Constitution  or  under  any  other  provision  of\t the
\nConstitution.\n<\/p>\n
833<\/span><\/p>\n
We  may briefly refer to an argument on behalf of the  Union
\nof  India that the amending power contained in Art.  368  is
\nsame sovereign power which was possessed by the\t Constituent
\nAssembly  when it made the Constitution and therefore it  is
\nnot subject to any fetters of any kind.\t We do not think  it
\nnecessary  to enter into the academic question as  to  where
\nsovereignty re-sides and whether legal sovereignty is in the
\npeople and political. sovereignty in the body which has\t the
\npower to amend the Constitution and vice versa.\t In our view
\nthe words of Art. 368 clearly confer the power to amend\t the
\nConstitution  and also provide the procedure for  doing\t so,
\nand  that  in  our  opinion is enough  for  the\t purpose  of
\ndeciding whether the Seventeenth Amendment is valid or\tnot.
\nFurther as we have already stated, the power conferred under
\nArt. 368 is constituent power to change the fundamental\t law
\ni.e.  the Constitution, and is distinct and  different\tfrom
\nthe  ordinary legislative power conferred on  Parliament  by
\nvarious\t other provisions in the Constitution.\tSo  long  as
\nthis  distinction is kept in mind Parliament would have\t the
\npower  under  Art. 368 to amend the  Constitution  and\twhat
\nParliament  does under Art. 368 is not\tordinary  law-making
\nwhich is subject to Art. 13 (2) or any other Article of\t the
\nConstitution.  What is the extent of the power conferred  on
\nParliament   and  whether  there  are  any  limitations\t  on
\nit–express  or implied-will be considered by us  presently.
\nBut we have no doubt, without entering into the question  of
\nsovereignty  and  of  whether  Art.  368  confers  the\tsame
\nsovereign  power on Parliament as the  Constituent  Assembly
\nhad when framing the Constitution, that Art. 368 does confer
\npower  on  Parliament  subject\tto  the\t procedure  provided
\ntherein for amendment of any provision of-the Constitution..
\nThis  brings  us  to  the scope\t and  extent  of  the  power
\nconferred,  for amendment under Art. 368.  It is urged\tthat
\nArt.  368  only\t gives\tpower  to  amend  the  Constitution.
\nRecourse  is  had  on  behalf  of  the\tpetitioners  to\t the
\ndictionary  meaning  of the word, “amendment”.\tIt  is\tsaid
\nthat  amendment implies and means improvement in detail\t and
\ncannot\ttake  in  any change in the basic  features  of\t the
\nConstitution.  Reference in this connection may be made\t to-
\nthe  following\tmeaning of the word “‘amend” in\t the  Oxford
\nEnglish Dictionary, namely, “to make professed\timprovements
\nin  a,\tmeasure\t before Parliament; formally,  to  after  in
\ndetail, though practically it may be to alter its principle,
\nso  as\tto  thwart “. This meaning lit\tany  rate  does\t not
\nsupport\t the case of the petitioners that  amendment  merely
\nmeans  such change as results in improvement in detail.\t  It
\nshows  that  in-law  though amendment  MAY  professedly,  be
\nintended to make- improvements and to alter only in  detail,
\nin  reality, it may make a radical change in  the  provision
\nwhich is amended.  In any case, as was pointed out in Sajjan
\nSingh’s\t case(1)  the word “amend” or “amendment”‘  is\twell
\nunder-\n<\/p>\n
(1)  [1965] 1 S.C.R. 933.\n<\/p>\n
834<\/span><\/p>\n
stood  in law and will certainly include any change  whether
\nby  way\t of  addition  or  alteration  or  deletion  of\t any
\nprovision in the Constitution.\tThis is no reason to suppose
\nthat  when  the word.  “amendment” of the  Constitution\t was
\nbeing  used  in\t Art. 368, the intention  was  to  give\t any
\nmeaning\t less than what we have stated above.  To  say\tthat
\n“amendment”  in\t law only means a change ‘which\t results  in
\nimprovement  would make amendments impossible, for what-  is
\nimprovement  of an existing law is a matter of\topinion\t and
\nwhat,\tfor  example,  the  legislature\t may   consider\t  an
\nimprovement  may  not  be so considered by  others.   It  is
\ntherefore  in  our opinion impossible to  introduce  in\t the
\nconcept\t of  amendment\tas  used in Art.  368  any  idea  of
\nimprovement  as\t to details of the Constitution.   The\tword
\n“amendment”  used  in Art. 368 must therefore be  given\t its
\nfull  meaning  as  used\t in law\t and  that  .means  that  by
\namendment  an existing Constitution or law can\tbe   changed
\nand this change can take the form either of addition to\t the
\nexisting  provisions, or alteration of\texisting  provisions
\nand  their  substitution by others or  deletion\t of  certain
\nprovisions.  altogether.  In this connection  reference\t has
\nbeen  made-to  contrast\t certain  other\t provisions  of\t the
\nConstitution,  where, for example the word “amend” has\tbeen
\nfollowed  by such words as “by way of addition, variance  or
\nrepeal” (see Sixth Schedule, paragraph 2-1) and more or less
\nsimilar\t expressions in other Articles,of the  Constitution.
\nit is very difficult to say fact, that no such words  appear
\nin Art. make any difference, for the meaning of the word why
\nthis  was  done.   But\tthe  368  does\tnot  in\t our,\tmind
\n“amendmend”  in law is clearly as indicated above by us\t and
\nthe  presence or sense, of explanatory words of\t the  nature
\nindicated above do not in our opinion make any difference.
\nThe  question whether the power of amendment given  by\tArt.
\n368  also ‘includes the power to abrogate  the\tConstitution
\ncompletely and to replace it by an entire new  Constitution,
\ndoes  not  really  arise  in  the  present  case,  for\t the
\nSeventeenth  Amendment has not done any such thing and\tneed
\nnot be considered.  It is enough to say that it may be\topen
\nto doubt whether the power of amendment\t  contained in\tArt.
\n568 goes to the extent of completely abrogating the  present
\nConstitution and substituting it by an entirely new    one.
\nBut short of that, we are of opinion that the power to amend
\nincludes      the  power  to  add  any\tprovision   to\t the
\nConstitution.  to  alter any  provision and  substitute\t any
\nother  provision in its place and to delete  any  provision.
\nThe Seventeenth Amendment is merely in exercise of the power
\nof amendment a indicated above and cannot be struck down  on
\nthe  ground  that  it goes beyond  the\tpower  conferred  on
\nParliament to amend the Constitution by Art. 368.
\nThe next question that arises is whether there is any  limi-
\ntation on the power of amendment as explained by us above.\n<\/p>\n
835<\/span><\/p>\n
Limitations may be of two kinds, namely, express or implied.
\nSo far as express limitations are concerned, there are\tnone
\nsuch in’ Art. 368.  When it speaks of the “amendment of this
\nConstitution it obviously and clearly refers to amendment of
\nany provision thereof, including the provisions contained in
\nPart III relating to fundamental rights.  Whether Art. 13(2)
\nis  an express limitation on the power of amendment will  be
\nconsidered  by us law, but so far as, Art. 368 is  concerned
\nthere  are  no\tlimitation  whatsoever\tin  the\t matter\t  of
\nsubstance  on  the amending power and any provision  of\t the
\nConstitution,  be it in Part III and any other Part, can  be
\namended under Art. 368.\n<\/p>\n
The  next question is whether there are any implied  limita-
\ntions  on the power of amendment contained in Art. 368,\t and
\nthis  Wags us to the argument that there are  certain  basic
\nfeatures of the Constitution which cannot be amended at\t all
\nand there is an implied limitation on the power of amendment
\ncontained  in Art. 5-68 so far as these basic  features\t are
\nconcerned.   We\t may in this connection refer  to  the\tview
\nprevailing  amongst jurists in the United States of  America
\nas  to whether there are any plied limitations on the  power
\nof amendment contained in Art.\tV of the U.S.  Constitution.
\nThere are two lines of thought in this matter in the  United
\nStates.\t Some jurists take the, view that there are  certain
\nimplied limitations on the power to amend contained in\tArt.
\nV  of  the  U.S. Constitution.\tThese are said\tto  be\twith
\nrespect\t  to  certain basic features, like,  the  republican
\ncharacter of Government, the federal structure etc.  On\t the
\nother  hand,  it is  that the more  prevalent  view  amongst
\njurists\t in the United States is that there are\t no  implied
\nlimitations on the scope of the amending power in Art.\tV of
\nthe U.S. Constitution.\tWillis on the Constitutional Law  of
\nthe  United  States  of\t America  (1936-Edition\t says\tthat
\nprobably  the  correct position is that the  amending  power
\nembraces  everything;  in  other words there  are  no  legal
\nlimitations whatever on the power of amendment, except\twhat
\nis expressly provided, in Art.\tV : (see- discussion on\t pp.
\n1.22   to  127).   Even\t with  respect\tto   these   express
\nlimitations,  Munro in The Government of the  United  States
\n(Fifth\tEdition)  at  p. 77 says  that\teven  these  express
\nlimitations  can be removed and one of the ways of doing  so
\nis “to remove, the exception by a preliminary amendment\t and
\nthus  clear  the  way for further action”.   Besides,  as  a
\nmatter of fact there is no decision of the Supreme Court  of
\nthe United States holding that there are implied limitations
\non  the power of amendment contained in Art.  V of the\tU.S.
\nConstitution  and all amendments so far made in\t the  United
\nStates\thave been upheld by the Supreme Court there  in\t the
\nfew  cases  that  have\tbeen taken  to-it  for\ttesting\t the
\nvalidity of the amendments.\n<\/p>\n
836<\/span><\/p>\n
We  have  given careful consideration to the  argument\tthat
\ncertain basic features of our Constitution cannot be amended
\nunder  Art.  368 and have come to, the\tconclusion  that  no
\nlimitations  can be and should be implied upon the power  of
\namendment  under Art. 368.  One. reason for coming  to\tthis
\nconclusion  is that if we were to accept that certain  basic
\nfeatures  of the Constitution cannot be amended\t under\tArt.
\n368, it will lead to the position that any amendment made to
\nany Article of the Constitution would be liable to challenge
\nbefore courts on the ground that it amounts to amendment  of
\na  basic  feature.  Parliament would thus never be  able  to
\nknow  what  amendments it can make in the  Constitution\t and
\nwhat  it  cannot; for, till a complete\tcatalogue  of  basic
\nfeatures  of  the  Constitution is available,  it  would  be
\nimpossible  to\tmake any amendment under Art. 368  with\t any
\ncertainty  that\t it would be upheld by courts.\tIf  such  an
\nimplied limitation were to be put on the power of  amendment
\ncontained  in  Art. 368, it would only be the  courts  which
\nwould  have the power to decide what are basic\tfeatures  of
\nthe  Constitution and then to declare whether  a  particular
\namendment  is  valid or not on the ground that it  amends  a
\nparticular basic feature or not.  The .result would be\tthat
\nevery  amendment  made in the Constitution would  provide  a
\nharvest\t of  legal wrangles so much so that  Parliament\t may
\nnever  know what provisions can be amended and what  cannot.
\nThe  power to amend being a constituent power cannot in\t our
\nopinion\t for  these reasons be held subject to\tany  implied
\nlimitations  thereon  on  the  ground  that  certain   basic
\nfeatures of the Constitution cannot be amended.\t We fail  to
\nsee  why if there was any intention to make any part of\t the
\nConstitution unamendable, the Constituent Assembly failed to
\nindicate  it  expressly in Art. 368.  If, for  example,\t the
\nConstitution-makers  intended  certain\tprovisions  in\t the
\nConstitution,  and  Part  III  in  particular,\tto  be\t not
\namendable, we can see no reason why it was not so stated  in
\nArt. 368.  On the clear words of Art. 368 which provides for
\namendment  of  the Constitution which  means  any  provision
\nthereof,. we cannot infer an implied limitation on the power
\nof  amendment of any provision of the Constitution’,  be  it
\nbasic  or  otherwise.  Our conclusion  is  that\t constituent
\npower, like that contained,in Art. 368, can only be  subject
\nto  express limitations and not to any\timplied\t limitations
\nso,far\tas substance of the amendments are concerned and  in
\nthe absence of anything in Art. 368 making any provision  of
\nthe Constitution unamendable, it Must be held that the power
\nto.  amend  in\tArt. .3 68 reaches every  provision  of\t the
\nConstitution and can be used to amend any provision  thereof
\nprovided the procedure indicated, in Art. 368 is followed.
\nCopious references were made during the course of  arguments
\nto debates in Parliament and it is urged that it is open  to
\nthis
\n837<\/span>
\nCourt  to look into the debates in order to  interpret\tArt.
\n368  to find out the intention of the  Constitution  makers.
\nWe  are of opinion that we cannot and should not  look\tinto
\nthe  debates that took place in the Constituent Assembly  to
\ndetermine  the interpretation of Art. 368 and the scope\t and
\nextent\tof  the\t provision contained  therein.\t It  may  be
\nconceded  that\thistorical background and perhaps  what\t was
\naccepted  or what was rejected by the  Constituent  Assembly
\nwhile  the Constitution was being framed, may be taken\tinto
\naccount\t in  finding out the scope and extent of  Art.\t368.
\nBut we have no doubt that what was spoken in the debates  in
\nthe  Constituent  Assembly cannot and should not  be  looked
\ninto- in order to interpret Art. 368.  Craies on Statute Law
\n(Sixth\tEdition) at p. 128 says that “it is not\t permissible
\nin discussing the meaning of an obscure enactment, to  refer
\nto ‘parliamentary history’ of a statute, in the sense of the
\ndebates which took place in Parliament when the statute\t was
\nunder  consideration”, and supports his view with  reference
\nto a large number of English cases.  The same is the view in
\nMaxwell on Interpretation of Statutes, (11th Edition) p. 26.
\nCrawford on Statutory Construction (1940 Edition) at p.\t 340
\nsays  that  resort may not be had to  debates  to  ascertain
\nlegislative Intent though historical background in which the
\nlegislation   came   to\t be  passed,  can  be\ttaken\tinto
\nconsideration-.\n<\/p>\n
In  Administrator General of Bengal v. Prem Lai\t Mullick(1),
\nthe Privy Council held that “proceedings of the\t legislature
\ncannot be referred to as legitimate aids to the construction
\nof the Act in which they result.”\n<\/p>\n
In  Baxter v. Commissioner of Taxation(2), it was said\tthat
\nreference  to  historical  facts can be\t made  in  order  to
\ninterpret a statute.  There was however no reference to\t the
\ndebates\t in order to arrive at the meaning of  a  particular
\nprovision of the Constitution there in dispute.
\nIn  A. K. Gopalan v. the State of Madras(3), Kania C.J.\t re-
\nferring to the debates and reports of the Drafting Committee
\nof the Constituent Assembly in respect of the words of\tArt.
\n21  observed  at  p. I 10 that they might  not\tbe  read  to
\ncontrol\t the meaning of the Article.  In that case all\tthat
\nwas accepted was that “due process of law” which was a\tterm
\nused  in the.  U.S. Constitution, was not accepted  for\t the
\npurpose\t of Art. 21 which used the words  44  the  procedure
\nestablished  by law”.  Patanjali Sastri J. (at p. 202)\talso
\nrefused\t to  look  at  the  debates  ‘and  particularly\t the
\nspeeches made in order to determine the meaning of Art.\t 21.
\nFazl Ali, J. (at p. 158) was of opinion that the pro-
\n(1) [1895] 22 LA. 107.\t(2) [1907] 4 C.L.R. 1087.
\n(3) [1950] S.C.R. 88.\n<\/p>\n
Sup.CI\/67-8
\n838<\/span>
\nceedings  and discuss ions In Constituent Assembly were\t not
\nrelevant for the purpose of construing the expressions\tused
\nin Art. 2 1.\n<\/p>\n
Again in The Automobile Transport (Rajasthan) Limited v. the
\nState\tof  Rajasthan(.’),  this  Court\t looked\t  into\t the
\nhistorical  background but refused to look into the  debates
\nin  order to determine the meaning of the provisions of\t the
\nConstitution in dispute in that case.\n<\/p>\n
We are therefore of opinion that it is not possible to\tread
\nthe  speeches made in the Constituent Assembly in  order  to
\ninterpret  An. 368 or to define its extent and scope and  to
\ndetermine what it,takes in and what it does not.  As to this
\nhistorical  facts..  namely, what was accepted or  what\t was
\navoided in the Constituent Assembly in connection with\tArt.
\n368, it is enough to say that we have not been able to\tfind
\nany  help  from the material relating to this.\t There\twere
\nproposals for restricting the power of amendment under\tArt.
\n368 and making fundamental rights immune from and there were
\ncounter proposals before the Constituent assembly for making
\nthe  power, of amendment all embracing They were all  either
\ndropped or negatived and in the circumstanses are of no help
\nin determining the interpretation of Art. 368 which must  be
\ninterpreted on the words thereof as they finally found place
\nin  the\t Constitution, and on those words we have  no  doubt
\nthat  there  are no implied limitations of any kind  on\t the
\npower to amend given therein.\n<\/p>\n
An argument is also raised that limitations on the power  to
\namend  the Constitution can be found in the preamble to\t the
\nConstitution.\tAs to that we may refer only to in  re:\t the
\nBerubari  Union and Exchange of Enclaves(2) with respect  to
\nthe  value  of\tthe preamble to\t the  Constitution  and\t its
\nimportance   therein.\t It  was  observed  in\t that\tcase
\nunanimously by a Bench of nine judges that “although it\t may
\nbe correct to describe the preamble as a key to the mind  of
\nthe Constitution-makers, it form no part of the Constitution
\nand  cannot  be regarded as the source\tof  any\t substantive
\npower which the body of the Constitution alone can confer on
\nthe  Government\t ,  expressly or by  implication.   This  is
\nequally\t true to prohibitions and limitations”.\t  The  Court
\nthere was considering whether the preamble could in any\t way
\nlimit  the  power  of Parliament to cede  any  part  of\t the
\nnational  teritory and held that it was not correct  to\t say
\nthat “the preamble  in any way limit the power of Parliament
\nto  cede parts of the national territory”.  On a parity,  of
\nreasoning  we  are  of\topinion\t that  the  preamble  cannot
\nprohibit  or  control  in  any way  or\timpose\tany  implied
\nprohibitions  or  limitations  oft Me  power  to  amend\t the
\nConstitution contained in Art. 368.\n<\/p>\n
(1) [1963] 1 S.C.R. 491.       (2) [1960] 3 S.C.R. 250.\n<\/p>\n
       839<\/span><\/p>\n
This  brings  us to the question whether the word  “law”  in
\nArt.  13 (2) includes an amendment of the Constitution,\t and
\ntherefore  there  is an express provision in Art.  1  3\t (2)
\nwhich at least limits the power of amendment under Art. 3 68
\nto  this  extent that by such amendment\t fundamental  rights
\nguaranteed by Part 111 cannot be taken away or abridged.  We
\nhave already pointed out that in Sankari Prasad’s case(1) as
\nwell as Sajjan Singh’s case(1) it has already been held,  in
\none case unanimously and in the other by majority, that\t the
\nword  “law” in Art. 13(2) does not include an  amendment  of
\nthe  Constitution,  and it is the correctness of  this\tview
\nwhich  is being imputed before this Bench, Article 13 is  in
\nthree  parts.\tThe first part lays down that “all  laws  in
\nforce  in  the territory of India  immediately\t before\t the
\ncommencement  of  this\tConstitution, insofar  as  they\t are
\ninconsistent with the provisions of this Part, shall, to the
\nextent\tof  such  inconsistency,  be  void”.   Further\t all
\nprevious constitutional,provisions were repealed by Art. 395
\nwhich provided that “‘the Indian Independence Act, 1947, and
\nthe  Government\t of  India  Act,  1935,\t together  with\t all
\nenactments amending or supplementing the latter Act, but not
\nincluding  the Abolition of Privy Council Jurisdiction\tAct,
\n1949, are hereby repealed.”‘ Thus it is clear that the\tword
\n“law”  in Art. 13(1) does not include any law in the  nature
\nof  a  constitutional provision, for no\t such  law  remained
\nafter the repeal’in Art. 395.\n<\/p>\n
Then comes the second part of Art. 13, which says that State
\nshall  not  make any law which takes away  or  abridges\t the
\nrights\t conferred  by\tthis  Part  and\t any  law  made\t  in
\ncontravention  of  this clause shall, to the extent  of\t the
\ncontravention,\tbe void”.  The third part defines  the\tword
\n“law”  for  the\t purpose  of  Art.  13;\t the  definition  is
\ninclusive  and\tnot  exhaustive.   It  is  because  of\t the
\ndefinition in cl. (3-) of Art. 13 being inclusive that it is
\nurged  that  the  word\t“law” in Art.  13  (2)\tincludes  an
\namendment  of the Constitution also.  Now we see  no  reason
\nwhy  if the word “law” in Art. 13(1) relating to  past\tlaws
\ndoes not include any constitutional provision the word “law”
\nin  cl. (2) would take in an amendment of the  Constitution,
\nfor  it would be reasonable to the word “law”‘in Art.  13(2)
\nincludes  an  amendment\t of  the 13.  But  apart  from\tthis
\nconsideration, we are of opinion that the word “law” in\t Art
\n13(2) could never have been intended to take in an amendment
\nof  the Constitution.  What Art. 13(2) means is that  a\t law
\nmade under the constitutional provisions would, be tested on
\nthe  anvil  of\tPart III and if it takes  away\tor  abridges
\nrights conferred by Part III it would be void to the  extent
\nof the contraventions.\tThere are many Articles in the\tCon-
\nstitution,  which  directly for making law  in\taddition  to
\nArticles  245, 246, 248, etc. and the three  Lists  and-Aft.
\n13(2)
\n(1) [1952] S.C.R. 89.\n<\/p>\n
(2) [1965] 1 S.C.R 933.\n<\/p>\n
840<\/span><\/p>\n
prohibits  the\tState  from  making  any  law  under   these
\nprovisions.   We see no difficulty in the  circumstances  in
\nholding\t that Art. 13 (2) when it talks of the State  making
\nany  law,  refers  to  the law\tmade  under  the  provisions
\ncontained in Ch.  I of Part XI of the Constitution beginning
\nwith Art. 245 and also other provisions already referred  to
\nearlier.  Article 246 provides that Parliament may make laws
\nfor the whole or any part of the territory of India and\t the
\nlegislature  of a State may make laws for the whole  or\t any
\npart of the State.  Article 246(1) gives exclusive power  to
\nParliament to make laws with respect to subjects  enumerated
\nin  List  1. Article 246(3) gives exclusive power  to  State
\nlegislatures to make laws with respect to List II.   Article
\n248(1) gives exclusive power to Parliament to make laws with
\nrespect to any matter not enumerated in the Concurrent\tList
\nor  the\t State List.  We are referring to  these  provisions
\nmerely\tto show that the various provisions in Chapter I  of
\nPart XI provide for making laws,and these laws are all\tlaws
\nwhich  are  made under the legislative\tpower  conferred  on
\nParliament or on State legislatures under the  Constitution.
\nTherefore when in Art. 13( ) it is said that the State shall
\nnot  make  any\tlaw (State there  including  Parliament\t and
\nlegislature  of each State), its meaning could only take  in
\nlaws  made  by Parliament and State legislatures  under\t the
\npowers conferred under Chapter I of Part XI. and also  other
\nprovisions  already  referred to earlier.  We  have  already
\nheld that the power to amend the Constitution is to be found
\nin Art. 368 along with the procedure and that such power  is
\nnot  to\t be  found  in Art. 248 read  item  97\tof  List  I.
\nTherefore  an  amendment  of  the  Constitution\t is  not  an
\nordinary law made under the powers conferred under Chapter I
\nof Part XI of the Constitution and cannot be subject to Art.
\n13(2) where the word “law” must be read as meaning law\tmade
\nunder  the  ordinary  legislative power.   We  have  already
\nreferred  to a large number of Articles where Parliament  is
\ngiven the power to make law with respect to those  Articles.
\nSo far as this power of Parliament is concerned it is  ordi-
\nnary  legislative power and it will certainly be subject  to
\nArt. 13 (2).  But there can in our opinion be no doubt\tthat
\nwhen  Art.  13(2) prohibits the State from  making  any\t law
\nwhich  takes away or abridges rights conferred by Part\tIII,
\nit is only referring to ordinary legislative power conferred
\non  Parliament and legislatures of States and  cannot  halve
\nany reference to the constituent power for amendment of\t the
\nConstitution contained in Art. 368.\n<\/p>\n
 We  have  already  pointed out that there  are\t no  implied
\nlimitative  on the power to amend under Art. 368 and  it  is
\nopen  to Parliament under that Article to amend any part  of
\nthe Constitution, including Part M. It is worth\t remembering
\nthat  a whole Part XX is devoted by the\t Constitution-makers
\nto the subject of
\n841<\/span>
\namendment  of the Constitution.\t If it was  their  intention
\nthat  Part  III of the Constitution will not  be  liable  to
\namendment  by  way of abridgement or  abrogation  under\t the
\namending power contained in Art. 368 we see no reason why an
\nexpress\t provision to that effect was not made in Art.\t368.
\nWe  cannot see what prevented the Constituent Assembly\tfrom
\nmaking\tthat clear by an express provision in Art. 368.\t  It
\nis however said that it was not necessary to say so in\tArt.
\n368,  because the provision was already made in Art.  13(2).
\nWe  are\t unable to accept this contention, for\twe  have  no
\ndoubt  that Art. 13(2), when it refers to making of laws  is
\nonly referring to the ordinary legislative power and not  to
\nthe constituent power which results in amendment of the Con-
\nstitution.    In   any\tcase  it  seems\t  to   us   somewhat
\ncontradictory that in Art. 368 power should have been  given
\nto  amend  any\tprovision of the  Constitution\twithout\t any
\nlimitations  but indirectly that power is limited  by  using
\nwords  of doubtful import in Art. 13(2).  It  is  remarkable
\nthat  in  Art.\t13(2) there is\tno  express  provision\tthat
\namendment  of  the Constitution, under Art.  368,  would  be
\nsubject\t thereto.  It seems strange indeed that\t no  express
\nprovision  was\tmade in Part XX in this matter and  even  in
\nArt. 13(2) no express provision is made to this effect,\t and
\nin both places the matter is left in a state of uncertainty.
\nIt is also remarkable that in Art. 368 the word “law”, which
\nwe   find  so  often  used  in\tso  many  Articles  of\t the
\nConstitution   is   conspicuously   avoided,   and   it\t  is
\nspecifically provided that after the procedure has been gone
\nthrough\t the Constitution shall stand amended in  accordance
\nwith  the terms of the Bill.  This language of Art.  368  is
\nvery  significant and clearly makes a distinction between  a
\nconstitutional\tAmendment and an ordinary law passed  as  an
\nAmending Act.  The validity of a law has to be determined at
\nthe time when the Bill actually matures into an Act and\t not
\nat  the\t stage while it is still a Bill.  The  provision  in
\nArt.  368  has\tthe effect that when  a\t Bill  amending\t the
\nConstitution  receives\tthe  assent of\tthe  President,\t the
\nConstitution stands amended in accordance with the terms  of
\nthe Bill.  The Constitution thus stands amended in terms  of
\nthe  Bill  if  the  Bill has  been  introduced,\t passed\t and
\nassented  to  by  the  President  in  accordance  with\t the
\nprocedure  laid down in Art. 368 and not as a result of\t the
\nBill becoming an Amendment Act introducing amendment in\t the
\nConstitution.\tThe  provision that the\t Constitution  shall
\nstand amended in terms of the Bill was thus clearly intended
\nto  indicate that the amendment of the Constitution  is\t not
\ndependent on the Bill being treated as a law or an Act\tduly
\npassed\tby Parliament.\tThus it is clear that by  indicating
\nthat the Constitution is to stand amended in accordance with
\nthe  terms of the Bill, Art. 368 clearly envisages that\t the
\npower of amendment of the Constitution stands on an entirely
\ndifferent footing from an ordinary law made by Parliament in
\nexercise of its legislative power.\n<\/p>\n
842<\/span><\/p>\n
If  We keep in mind this difference, between  constitutional
\namendment or constitutional law and an ordinary amending Act
\nor law, it should not be difficult to hold that when Art  13
\n(2),  speaks of the St-ate making a law, it is referring  to
\nordinary law made under the powers conferred by Art. 245 etc
\nread  with  various  Lists and\tvarious\t provisions  of\t the
\nConstitution where express provision to that effect has been
\nmade   and  is\tnot  referring\tto  the\t amendment  of\t the
\nConstitution  which  is made under the\t‘constituent  power.
\nOnce it is held that the power to amend is found in Art. 368
\nand is not to be found in Art. 248 read with item 97 of List
\nI,  it must follow that the power to amend the\tConstitution
\nunder  Art.  368 is a different power  (namely,\t constituent
\npower)\tand when Art. 13 (2) speaks of making ‘law,  it\t can
\nonly  refer  to making ordinary law,  particularly  when  we
\ncompare\t the words of Art. 13 (2) (namely, the\tState  shall
\nnot  make any law) and the words of Arts. 245, 248, and\t 250
\n(which\t all   speak  of  Parliament  making   law,   State-
\nlegislatures making law, and so on).\n<\/p>\n
Lastly,\t as  the power to amend is in Art. 368\tand  on\t the
\nwords,\tas  they  stand\t in  that  Article,  that  power  is
\nunfettered  and includes the power to amend Part III, it  is
\nstrange\t that  that power should be limited  by\t putting  an
\ninterpretation on the word “law” in Art. 13(2), which  would
\ninclude\t constitutional\t law  also.   There  is\t nothing  to
\nsuggest\t this even in the inclusive definition of the  words
\n“law”  and  “laws in force” in Art. 13(3).  Besides,  it  is
\nconceded  on behalf of the petitioners that Art.  368  gives
\npower to amend Part 111, but that power is only to amend one
\nway,  namely,  towards enlargement of the  rights  contained
\ntherein,  and not the other way, namely, for,  abridging  or
\ntaking\taway  the rights contained therein.  W.-,  must\t say
\nthat  it  would\t require  a  very  clear  provision  in\t the
\nConstitution  to  read the power to amend  the\tConstitution
\nrelating  to Part III in this manner.  We cannot  find\tthat
\nclear  provision in Art. 1 3 (2).  We repeat that  when\t the
\nConstituent  Assembly was taking the trouble of providing  a
\nwhole  Part for amendment of the Constitution and  when\t the
\nwords  in  Art.\t 368 clearly give the  power  to  amend\t the
\nConstitution  and are subject to no implied limitations\t and
\ncontain no express limitations, it is strange indeed that it
\nshould\thave  omitted to provide in that very  Article\tthat
\nPart III is not liable to amendment thereunder.\t In any case
\nif the power of amendment conferred by the words of Art. 368
\nis unfettered, we must avoid any inconsistency between\tthat
\npower and the provision contained in Art. 13 (2).  We  avoid
\nthat  in  keeping with the unfettered power in Art.  368  by
\nreading the word “law” in Art. 13 (2) as meaning law  passed
\nunder: ordinary legislative power and thus not including  an
\namendment of the Constitution therein.\tThe words in  Art.II
\n(2)  are  in our opinion not specific and clear’  enough  to
\ntake in
\n843<\/span>
\nthe  power of amendment under Art. 368 and must be  confined
\nonly to the power of ordinary law-making contained in  Arts.
\n245 etc., and other provisions of the Constitution read with
\nvarious Lists.\tWe have therefore no hesitation in  agreeing
\nwith  the view taken in Sankari Prasad’s case(1)  which\t was
\nupheld by the majority in Sajjan Singh’s case(2).
\nThe  next argument is that action under the proviso to\tArt.
\n368  is necessary as the Seventeenth Amendment\taffects\t the
\npower  of the High Court contained in Art. 226.\t It is\tsaid
\nthat  by  including various Acts in the Ninth  Schedule\t and
\nmaking\tthem  immune  from challenge  under  the  provisions
\ncontained  in  Part III, the power of the High\tCourt  under
\nArt.  226  is  affected inasmuch as the\t High  Court  cannot
\nstrike\tdown any of the Acts included in the Ninth  Schedule
\non  the\t ground that they take away or\tabridge\t the  rights
\nconferred by Part III.\tSo it is said that there has been  a
\nchange in Art. 226 and it was necessary that the Seventeenth
\nAmendment  should have been ratified by more than  half\t the
\nStates under the proviso.  A similar argument was raised  in
\nSankari\t Prasad’s case(1) and was turned  down\tunanimously.
\nThe same argument was again raised in Sajjan Singh’s case(2)
\nand  was  also turned down.  Now  ratification\tis  required
\nunder the proviso if the amendment seeks to make any  change
\nin  various  provisions\t mentioned  therein  and  one\tsuch
\nprovision  is Art. 226.\t The question therefore\t is  whether
\nthe   Seventeenth Amendment makes any change in Art. 226 and
\nwhether\t this change has to be a direct change in the  words
\nof  Art.  226 or whether merely because there  may  be\tsome
\neffect\tby the Seventeenth Amendment on the, content of\t the
\npower in Art. 226 it will amount to change in Art. 226.\t  We
\nare  of opinion that when the proviso lays down\t that  there
\nmust  be  ratification\twhen  there is\tany  change  in\t the
\nentrenched  provisions,\t  including Art. 226, it means\tthat
\nthere  must be actual change in the terms of  the  provision
\nconcerned.   If\t there is no actual change directly  in\t the
\nentrenched  provision, no ratification is required, even  if
\nany amendment of any other provision of the Constitution may
\nhave  some  effect indirectly on the  entrenched  provisions
\nmentioned in the proviso.  But it is urged that there may be
\nsuch  a\t change in some other provision as  would  seriously
\naffect\t an  entrenched\t provision,  and  in  such  a\tcase
\nratification  should be necessary.  This argument  was\talso
\ndealt  with  ‘in  the majority judgment\t in  Sajjan  Singh’s
\ncase(2) where the doctrine of pith and substance was applied
\nand  it\t was  held that where the  amendment  in  any  other
\nArticle so affects the entrenched Article as to amount to an
\namendment therein, then ratification may be necessary,\teven
\nthough\tthe entrenched Article may not be directly  touched.
\nPerhaps the use of the doctrine of pith and substance
\n(1) [1952] S. C. R. 89.\n<\/p>\n
(2) [1965] 1 S.C.P. 933.\n<\/p>\n
844<\/span><\/p>\n
in  such  a case is not quite apt.  But what  was  meant  in
\nSajjan\tSingh’s\t case(1)  was  that  if\t there\tis  such  an
\namendment  of an unentrenched Article that it will  directly
\naffect\tan  entrenched\tArticle\t and  necessitate  a  change
\ntherein, then recourse must be had to ratification under the
\nproviso.   We may illustrate this by two examples.   Article
\n226  lays  down inter alia that the High  Court\t shall\thave
\npower  to  issue  writs for the enforcement of\tany  of\t the
\nrights conferred by Part III and for any other purpose.\t Now
\nassume\tthat Part III is completely deleted by amendment  of
\nthe Constitution.  If that takes place, it will\t necessitate
\nan amendment of Art. 226 also and deletion therefrom of\t the
\nwords “for the enforcement of any of the rights conferred by
\nPart III”.  We have no doubt that if such a contingency ever
\nhappens and Part III is completely deleted, Parliament\twill
\namend  Art. 226 also and that will necessitate\tratification
\nunder  the proviso.  But suppose Parliament  merely  deletes
\nPart  III  and\tdoes not make  the  necessary  consequential
\namendment in Art. 226, it can then be said that deletion  of
\nPart III necessitates change in Art. 226 also, and therefore
\nin  such  a  case ratification\tis  necessary,\teven  though
\nParliament  may not have in fact provided for  amendment  of
\nArt 226.\n<\/p>\n
Take  another example.\tArticle 54 is an entrenched  Article
\nand provides for the election of the President.\t So is\tArt.
\n55  which provides for the manner of election.\t Article  52
\nwhich  lays down that there shall be a President is  on\t the
\nother hand not an entrenched Article.  It is said that\tArt.
\n52  may be altered and something else may be substituted  in
\nits  place and that would not require ratification in  terms
\nas Art. 52 is not among the entrenched Articles.  But we are
\nof opinion that if Parliament amends Art. 52, it is bound to
\nmake consequential amendments in Arts. 54 and 55 which\tdeal
\nwith  the election of the President and the  manner  thereof
\nand  if it is so the entire amendment must be submitted\t for
\nratification.  But suppose Parliament merely amends Art.  52
\nand makes no change in Arts. 54 and 55 (a supposition  which
\nis  impossible to visualise).  In that case it would in\t our
\nopinion\t be right to hold that Art. 52 could not be  altered
\nby abolition of the office of the President without necessi-
\ntating\ta  change in Arts. 54 and 55 and in such a  case  if
\nArt.  52  alone\t is altered by Parliament,  to\tabolish\t the
\noffice of President, it will require ratification.
\nThese two examples will show where alteration or deletion of
\nan  unentrenched Article would necessitate amendment  of  an
\nentrenched  Article, and in such a case if Parliament  takes
\nthe  incredible\t course of amending  only  the\tunentrenched
\nArticle and not amending the entrenched Article, courts\t can
\nsay that ratifi-\n<\/p>\n
(1)  [1965] 1 S.C.R. 933.\n<\/p>\n
845<\/span><\/p>\n
cation\tis  necessary  even for\t amending  the\tunentrenched
\nArticle,  for  it  directly necessitates,  a  change  in  an
\nentrenched  Article.   But short of that we are\t of  opinion
\nthat  merely because there is some effect indirectly  on  an
\nentrenched  Article by amendment of an unentrenched  Article
\nit  is\tnot necessary that there should be  ratification  in
\nsuch circumstances also.\n<\/p>\n
Besides,  let us consider what would happen if the  argument
\non  behalf of the petitioners is accepted that\tratification
\nis  necessary whenever there is even indirect effect  on  an
\nentrenched  Article  by amending  an  unentrenched  Article.
\nTake  the  case of Art. 226 itself.. It gives power  to\t the
\nHigh  Court not only to issue writs for the  enforcement  of
\nfundamental rights but to issue them for any other  purpose.
\nWrits  have  thus been issued by High Courts  for  enforcing
\nother  rights  conferred by ordinary laws as well  as  under
\nother  provisions  of the Constitution, like Arts.  301\t and\n<\/p>\n
311.   On this argument if any change is made in  Arts.\t 301
\nand  311  there\t is bound to be an effect on  Art.  216\t and
\ntherefore ratification would be necessary, even though\tboth
\nArts.  301  and\t 311  are not  entrenched  in  the  proviso.
\nFurther,  take an ordinary law which confers certain  rights
\nand it is amended and those rights are taken away.   Article
\n226  would be clearly affected.\t Before the amendment  those
\nrights\tmay  be enforced through Art. 226  while  after\t the
\namendment  the\trights having disappeared there\t can  be  no
\nenforcement  thereof.  Therefore, on this argument  even  if
\nthere is amendment of ordinary law there would be an  effect
\non Art. 226 and it must therefore be amended every time even
\nwhen ordinary law is changed and the entire procedure  under
\nArt.  368 must be gone through including ratification  under
\nthe  proviso.  It is however said that when ordinary law  is
\namended, rights disappear and therefore there is no question
\nof  enforcement thereof; if that is correct with respect  to
\nordinary  law,\tit is in our opinion  equally  correct\twith
\nrespect to the amendment of an unentrenched provision of the
\nConstitution.  The answer given in Sankari Prasad’s  case(1)
\nto this argument was that Art. 226 remained just the same as
\nit  was before, and only a certain class of cases  had\tbeen
\nexcluded  from the purview of Part III and the courts  could
\nno longer interfere, not because their powers were curtailed
\nin  any manner or to any extent, but because there would  be
\nno  occasion thereafter for the exercise of their  power  in
\nsuch  cases.  We respectfully agree with these\tobservations
\nand  are  of  opinion  that merely  because  there  is\tsome
\nindirect  effect on Art. 226 it was not necessary  that\t the
\nSeventeenth Amendment should have been ratified by more than
\none half of the States.\t It is only in the extreme case, the
\nexamples of which we have given above, that an amendment  of
\nan  unentrenched  Article without  amendment  of  entrenched
\nArticle
\n(1)  [1952] S.C.R. 89.\n<\/p>\n
846<\/span><\/p>\n
might be had for want of ratification, and this is what\t was
\nintended-  by  the  majority  judgment\tin  Sajjan   Singh’s
\ncase(1), when it applied the doctrine of pith and  substance
\nin  these circumstances.  The argument that ratification  is
\nnecessary  as Art. 226 is indirectly affected has  therefore
\nno  force and must be rejected.\t This is equally  true\twith
\nrespect to the power of this Court under Arts. 132 and 136.
\nThen  it  is  urged  that  Art.\t 245  is  enlarged  by\t the
\nSeventeenth  Amendment\tinasmuch as State  legislatures\t and
\nParliament  were freed from the control of Part III  in\t the
\nmatter\tof  certain laws affecting,  for  example.  ryotwari
\nlands,\tand therefore as Art. 245 is an\t entrenched  Article
\nthere should have been ratification under the proviso.\tThis
\nargument in our opinion is of the same type as the  argument
\nwith respect to the effect on Art. 226 and our answer is the
\nsame, namely, that there is no direct effect on Art. 245  by
\nthe  amendment\tand the indirect effect, if.-any,  does\t not
\nrequire\t that  there should have been  ratification  in\t the
\npresent case.\n<\/p>\n
It is then urged that ratification is necessary as Art. 31-B
\ndeals  with  State legislation and in  any  case  Parliament
\ncannot make, any law with respect to Acts which were put  in
\nthe Ninth Schedule and therefore Parliament could not  amend
\nthe  Constitution  in  the manner in which it  was  done  by
\nmaking\tadditions in the  Ninth Schedule, both for  want  of
\nratification  and for want of legislative  competence.\t The
\nanswer\tto  this  argument was\tgiven  in  Sahkari  Prasad’s
\ncase(2) and it was observed there that-\n<\/p>\n
\t      “Article\t31-A and 31-B really seek to save  a
\n\t      certain  class of laws and  certain  specified
\n\t      laws   already   passed  from   the   combined
\n\t      operation of Art. 13 read with other  relevant
\n\t      Articles of Part III.  The new Articles  being
\n\t      thus   essentially  amendments  of  the\tCon-
\n\t      stitution,   Parliament  had  the\t  power\t  of
\n\t      enacting them.  That laws thus saved relate to
\n\t      matters covered by List II does not in any way
\n\t      affect   the  position.\tIt  was\t said\tthat
\n\t      Parliament  could not validate a law which  it
\n\t      had no power to enact.  The proposition  holds
\n\t      good  where.  the\t validity  of  the  impugned
\n\t      provision turns on whether the subject matter,
\n\t      falls  within or without the  jurisdiction  of
\n\t      the legislature which passed it.. But to\tmake
\n\t      a\t law  which  contravenes  the  Constitution,
\n\t      constitutionally\t valid\t is  a\t matter\t  of
\n\t      constitutional amendment and as such it  falls
\n\t      within the exclusive power of Parliament.”\n<\/p><\/blockquote>\n
(1) [1965] 1 S.C.R. 933.\n<\/p>\n
(2) [1952] S.C.R. 89.\n<\/p>\n
847<\/span><\/p>\n
We   respectfully  agree  with\tthese  observations.\tThey
\nsuccinctly  put the legal and constitutional  position\twith
\nrespect to the ‘validity of Arts, 3 1 A and 3 1 B.  It seems
\nto  us\tthat  Art.  3 1 B in  particular  is  a\t legislative
\ndrafting  device  which\t compendiously\tputs  in  one  place
\namendments  which  would otherwise have been  added  to\t the
\nConstitution  under various Articles in Part III.  The\tlaws
\nin the Ninth Schedule have by the device of Art. 3 1 B\tbeen
\nexcepted  from\tthe various provisions in Part\t]III,  which
\naffected  them\tand  this exception could only\tbe  made  by
\nParliament.   The  infirmity in the Arts put  in  the  Ninth
\nSchedule was apprehended to be a constitutional infirmity on
\nthe ground that those laws might take away or abridge rights
\nconferred by Part HI. Such a constitutional infirmity  could
\nnot be cured by State legislatures in any way and could only
\nbe  cured by Parliament by constitutional  amendment.\tWhat
\nParliament  in\tfact did by including various  Acts  in\t the
\nNinth Schedule read with Art. 3 1 B was to amend the various
\nprovisions in Part III, which affected these Acts by  making
\nthem  an  exception to those provisions in Part\t III.\tThis
\ncould only be done by Parliament under the constituent power
\nit  had\t under\tArt. 368 and there was no  question  of\t the
\napplication  of the proviso in such a case,  for  Parliament
\nwas amending Part III only with respect to these laws.\t The
\nlaws  had already been passed by State legislatures  and  it
\nwas their constitutional infirmity, if any, which was  being
\ncured  by  the device adopted in Art. 3 1 B  read  with\t the
\nNinth  Schedule, the amendment ‘being only of  the  relevant
\nprovisions  of Part III which was compendiously put  in\t one
\nplace  in  Art. 3 1 B.\tParliament could alone do  it  under
\nArt.  368  and there was no necessity for  any\tratification
\nunder  the  proviso,  for  amendment  of  Part\tIII  is\t not
\nentrenched in the proviso.\n<\/p>\n
Nor  is\t there\tany force in the  argument  that  Parliament
\ncould’ not validate those laws by curing the  constitutional
\ninfirmity  because they dealt with land which is in List  11
\nof the Seventh Schedule to the Constitution over which State
\nLegislatures have exclusive legislative power.\tThe laws had
\nalready\t been  passed  by  State  legislatures\tunder  their
\nexclusive  powers;  what has been done\tby  the\t Seventeenth
\nAmendment is to cure the constitutional’ infirmity, if\tany,
\nin  these laws in relation to Part III.\t That could only  be
\ndone  by  Parliament  and in so\t doing\tParliament  was\t not
\nencroaching on the exclusive legislative power of the State.
\nThe States had already passed the laws and all that was done
\nby the Seventeenth Amendment was to cure any  constitutional
\ninfirmity  in  the  laws  by including\tthem  in  the  Ninth
\nSchedule read with Art. 31-B.  We must therefore reject\t the
\nargument    that   the\t Seventeenth   Amendment    required
\nratification  because  laws put in the Ninth  Schedule\twere
\nState  law-,.  We must equally reject the argument  that  as
\nthese laws dealt with land, which is in the-\n<\/p>\n
848<\/span><\/p>\n
exclusive legislative power of State legislature, Parliament
\ncould  not  cure the constitutional infirmity,\tif  any,  in
\nthese laws by putting them in the Ninth Schedule.
\nWe now come to what may be called the argument of fear.\t  It
\nis  urged that if Art. 368 confers complete power  to  amend
\neach and every provision of the Constitution as we have held
\nthat  it does-frightful consequences will follow on such  an
\ninterpretation.\t If Parliament is clothed with such a  power
\nto  amend  the Constitution it may proceed to do  away\twith
\nfundamental  rights  altogether,  it  may  abolish   elected
\nlegislatures, it may change the present form of\t Government,
\nit  may\t do  away with the federal structure  and  create  a
\nunitary\t state\tinstead, and so on. It is  therefore  argued
\nthat we should give a limited interpretation to the power of
\namendment  contained in Art. 368, as otherwise we  shall  be
\ngiving\tpower  to  Parliament to  destroy  the\tConstitution
\nitself.\n<\/p>\n
This  argument is really a political argument and cannot  be
\ntaken into account in interpreting Art. 368 when its meaning
\nto our mind is clear.  But as the argument was urged with  a
\ngood deal of force on behalf of the petitioners and was\t met
\nwith  equal force on behalf of the Union and the States,  we
\npropose\t to  deal with it briefly.  Now,  if  this  argument
\nmeans  that  Parliament\t may abuse its\tpower  of  amendment
\nconferred  by  Art. 368, all that need be said in  reply  is
\nthat  mere  possibility\t of abuse cannot  result  in  courts
\nwithholding the power if the Constitution grants it.  It  is
\nwell-settled so far as ordinary laws are concerned that mere
\npossibility of abuse will not induce courts to hold that the
\npower  is  not\tthere, if the law is  valid  and  its  terms
\nclearly confer the power.  The same principle in our opinion
\napplies\t to the Constitution.  If the Constitution  gives  a
\ncertain\t power and its terms are clear, there is  no  reason
\nwhy  that  power  should  be  withheld\tsimply\tbecause\t  of
\npossibility  of\t abuse.\t If we may say\tso,  possibility  of
\nabuse of any power granted to any authority is always there;
\nand if possibility of abuse is a reason for withholding\t the
\npower,\tno  power  whatever can ever  be  conferred  on\t any
\nauthority,  be it “executive, legislative or even  judicial.
\nTherefore,  the\t so-called fear of  frightful  consequences,
\nwhich  has  been urged on behalf of the Petitioners  (if  we
\nhold, as we do, that the power to amend the Constitution  is
\nunfettered  by\tany implied limitations), is no\t ground\t for
\nwithholding the power, for we have no reason to suppose that
\nParliament  on whom such power is ,conferred will abuse\t it.
\nFurther\t even  if  it abuses  the  power  of  constitutional
\namendment under Art. 368 the check in such circumstances  is
\nnot  in\t courts but is in the people who  elect\t members  of
\nParliament.  The argument for giving a limited
\n849<\/span>
\nmeaning\t to  Art. 368 because of possibility of\t abuse\tmust
\ntherefore be rejected.\n<\/p>\n
The other aspect of this argument of fear is that we  should
\nnot  make  the Constitution too flexible so that it  may  be
\nopen   to   the\t requisite  majority  with   the   requisite
\nratification   to  make\t changes  too  frequently   in\t the
\nConstitution.\tIt  is\tsaid that  the\tConstitution  is  an
\norganic document for the governance of the country and it is
\nexpected  to  endure and give stability to  the\t institution
\nwhich it provides.  That is undoubtedly so and this is. very
\ntrue  of a written federal Constitution.  But a perusal\t of.
\nvarious\t Constitutions\tof the world shows  that  there\t are
\nusually provisions for amendment of the Constitution in\t the
\nConstitution itself.  This power to amend a Constitution may
\nbe rigid or flexible in varying degrees.  Jurists have\tfelt
\nthat  where the power to amend the Constitution is made\t too
\nrigid  and the people outgrow a particular Constitution\t and
\nfeel  that it should be amended but cannot do so because  of
\nthe   rigidity\t of  the  Constitution,\t  they\t break\t the
\nConstitution,  and this breaking is more often than  not  by
\nviolent revolution.  It is admitted by even those writers on
\nthe  United  States Constitution who are of  the  view\tthat
\nthere are certain basic features which cannot be amended and
\nwho would thus make the U. S. Constitution even more  rigid’
\nthan it is; that howsoever rigid the Constitution may be its
\nrigidity  will not stop the people from breaking it if\tthey
\nhave  outgrown it and this breaking is, generally  speaking,
\nby violent revolution.\tSo, making our Constitution rigid by
\nputting the interpretation which the petitioners want us  to
\nput on it will not stop the frightfulness which is  conjured
\nup before us on behalf of the petitioners.  If anything,  an
\ninterpretation which will make our Constitution rigid in the
\nmanner\tin which the petitioner want the amending  power  in
\nArt.  368 to be interpreted will make a violent\t revolution,
\nfollowed  by  frightfulness  of which  the  petitioners\t are
\nafraid,\t a nearer possibility than an  interpretation  which
\nwill make it flexible.\n<\/p>\n
It  is clear that our Constitution-makers wanted  to  avoid’
\nmaking the Constitution too rigid.  It is equally clear that
\nthey  did not want to make an amendment of the\tConstitution
\ntoo easy.  They preferred an intermediate course which would
\nmake,the Constitution flexible and would still not allow  it
\nto be amended too easily.  That is why Art. 368 provides for
\nspecial\t majorities  of the two Houses for  the\t purpose  of
\namendment of the Constitution.\tBesides it also provides for
\nratification  by  more\tthan  half the\tStates\tin  case  of
\nentrenched  Provisions\tin the proviso.\t  Subject  to  these
\nlimitations,  the  Constitution has  been,  made  moderately
\nflexible  to  allow  any change when the  people  feel\tthat
\nchange is necessary.  The necessity for special majorities
\n850<\/span>
\nin   each   House  separately  and,   the   necessity\tfor,
\nratification  by more than half the States in certain  cases
\nappear to us to be sufficient safeguards to prevent too easy
\nchange in the Constitution without making it too rigid.\t But
\nit  is said that, in the last sixteen Years, a large  number
\nof  amendments have been made to the constitution  and\tthat
\nshows that the power to amend is much too easy and should be
\nrestricted   by\t judicial  interpretation.   Now,   judicial
\ninterpretation\tcannot restrict the power on the basis of  a
\npolitical  argument.  It has to interpret  the\tConstitution
\nand   finds  it\t on  the  basis\t of   well-known,canons\t  of
\nconstruction,and on the terms of Art. 368 in particular.  If
\non those terms it is clear    we  think it is-that power  to
\namend is subject to no limitations except   those   to\t  be
\nexpressly found in the Constitution, courts must give effect
\nto  that.  The fact that ‘m the last sixteen years  a  large
\nnumber of amendments could be made and have been made is  in
\nour  opinion  due to the accident that one  party  has\tbeen
\nreturned  by electors in sufficient strength to be  able  to
\ncommand the special majorities which are required under Art.
\n368, not only at the Centre but also in all the Stites.\t It’
\nis  because  of this circumstance that we have had  so\tmany
\namendments  in\tthe course of the last sixteen\tyears.\t But
\nthat  in  our opinion is no ground for\tlimiting  the  clear
\nwords of Art. 368.\n<\/p>\n
The  power of amendment contained in a written federal\tCon-
\nstitution is a safety valve which to a large extent provides
\nfor stable growth and makes violent revolution more or\tless
\nunnecessary.  It has been said by text-book writers that the
\npower of amendment, though it allows for change, also  makes
\na Constitution long lived and stable and serves the needs of
\nthe  people  from time to time.\t If this power to  amend  is
\nmade  too rigid it loses its value as a safety\tvalve.\t The
\nmore rigid a Constitution the more likely it is that  people
\nwill  outgrow it and throw it over-board violently.  On\t the
\nother  hand, if the Constitution is flexible (though it\t may
\nnot  be made too easy to modify it) the power  of  amendment
\nprovides  for stability of the Constitution itself  and\t for
\nordered progress of  the nation.  If therefore there had  to
\nbe  a  choice between giving an interpretation-to  Art.\t 368
\nwhich  would  make  our Constitution  rigid  and  giving  an
\ninterpretation which would make it flexible, we would prefer
\nto make it flexible, so that it may endure for a long period
\nof time and may, if necessary, be amended from time to\ttime
\nin  accordance with the progress in the ideas of the  people
\nfor whom it is meant.  But we feel that it is not  necessary
\nto  go to this extent, for that would be entering  into\t the
\nfield of politics.  As we see the terms of Art. 368, we\t are
\nclearly\t Df  opinion that the Constitutionmakers  wanted  to
\nmake  our  Constitution reasonably flexible and\t ,.that\t the
\ninterpretation that we have given to Art. 368 is in
\n851<\/span>
\nconsonance with the terms thereof and the intention of those
\nwho  made  it.\t We therefore reject the  argument  of\tfear
\naltogether.\n<\/p>\n
This  brings us to the argument of stare decisis  raised  on
\nbehalf\tof the Union of India and the States.  The  argument
\nis  put\t thus.\tAfter the decision of the Patna\t High  Court
\ninvalidating  the Bihar Land Reforms Act,  1950,  Parliament
\npassed\tthe  First  Amendment  to  the\tConstitution.\tThat
\nAmendment  was challenged in this Court by a number of\twrit
\npetitions  and\twas upheld in Sankari  Prasad’s\t case(-)  in
\n1951.  That case practically stood unchallenged till  Sajjan
\nSingh’s case(2) in 1964 after the Seventeenth Amendment\t was
\npassed.\t  Thus in the course of these fifteen years or so  a
\nlarge  number of State Acts were passed on the basis of\t the
\nFirst  Amendment by which in particular Arts. 31-A and\t31-B
\nwere introduced in the Constitution.  It is said that though
\nSankari\t Prasad’s case (1) has stood for less than 15  years
\nthere  have been so many laws dealing with agrarian  reforms
\npassed on the basis of the First Amendment which was  upheld
\nby this Court that the short period for which that case\t has
\nstood  should not stand- in the way of this Court acting  an
\nthe  principle\tof, stare decisis.  The reason for  this  is
\nthat  an agrarian revolution, has taken place all  over\t the
\ncountry\t after the First Amendment by State laws  passed  on
\nthe faith of the decision of this Court in Sankari  Prasad’s
\ncase(1).   This agrarian revolution has led to\tmillions  of
\nacres  of  land\t having changed hands and  millions  of\t now
\ntitles\thaving\tbeen created.  So it is urged that  the\t un-
\nanimous\t decision  in Sankari Prasad’s\tcase(2),  which\t was
\nchallenged when the Seventeenth Amendment was passed and was
\nupheld by majority in Sajjan Singh’s case(2) should not\t now
\nbe  disturbed as its disturbance would create chaos  in\t the
\ncountry,   particularly\t in  the  agrarian-   sector   which
\nconstitutes  the  vast majority of the\tpopulation  in\tthis
\ncountry.\n<\/p>\n
We  are\t of opinion that there is force in this\t argument  .
\nThough\tthe  period for which Sankari Prasad’s\tcase(1)\t has
\nstood  unchallenged  is\t not long, the\teffects\t which\thave
\nfollowed in, the passing of State laws on the faith of\tthat
\ndecision’,  are so overwhelming that we should\tnot  disturb
\nthe decision in that case.  It is not disputed that millions
\nof  acres  of land have changed hands and  millions  of\t new
\ntitles in agricultural lands have been created and the State
\nlaws  dealing with Agricultural land which have been  passed
\nin  the course of the last fifteen years after the  decision
\nin  Samkari Prasad’s case(1) have brought about an  agrarian
\nrevolution.   Agricultural  population\tconstitutes  a\tvast
\nmajority  of  the  population in  this\tcountry.   In  these
\ncircumstances  it would in our opinion be wrong to hold\t now
\nthat
\n(1) [1952] S.C.R. 89.\n<\/p>\n
(2) [1965] 1 S.C.R. 933.\n<\/p>\n
852<\/span><\/p>\n
Sankari Prasad’s case (1) was not correctly decided and thus
\ndisturb all that has been done during the last fifteen years
\nand  create  chaos  into  the  lives  of  millions.  of\t our
\ncountrymen  who\t have benefited by these laws  relating,  to
\nagrarian reforms.  We would in the circumstances accept\t the
\nargument on behalf of the Union of India and the States that
\nthis is the fittest possible case in which the principle  of
\nstare decisis should be applied.  On this basis also,  apart
\nfrom  our  view that Sankari Prasad’s case (1) was  in\tfact
\nrightly\t decided, we would not interfere with that  decision
\nnow.\n<\/p>\n
But  it is urged that instead of following the principle  of
\nstare  decisis\twhich  would make die  decision\t in  Sankari
\nPrasad’s  case(1) good for all times., we should follow\t the
\ndoctrine of prospective over-ruling, which has been  evolved
\nby  some  United States courts so that everything  that\t has
\nbeen  done  up to now, including the  Seventeenth  Amendment
\nwould  be  held good but in future it would not be  open  to
\nParliament to amend Part III by taking away or abridging any
\nof  the rights conferred thereby and, if the argument as  to
\nimplied\t limitations  on  the power to\tamend  is  accepted,
\nfurther\t limit the power of Parliament to amend what may  be
\ncalled basic features of the Constitution.  We must say that
\nwe  are not prepared to accept the doctrine  of\t prospective
\nover-ruling.  We do not know whether this doctrine which  it
\nis urged should be applied to constitutional amendment would
\nalso be applied to amendments of ordinary laws.\t We find  it
\ndifficult  to  visualise what would be the  effect  of\tthis
\ndoctrine if it is applied to amendment of ordinary laws.  We
\nhave  so far been following in this country  the  well-known
\ndoctrine that courts declare law and that a declaration made
\nby a court is the law of the land and takes effect from\t the
\ndate  the  law came into force.\t We would  on  principle  be
\nloath to change that well-known doctrine and supersede it by
\nthe  doctrine of prospective over-ruling.  Further it  seems
\nto us that in view of the provisions of Art. 13(2) it  would
\nbe  impossible\tto apply the doctrine of  prospective  over-
\nruling\tin our country, particularly where a  law  infringes
\nfundamental rights.  Article 13(2) lays down that all.\tlaws
\ntaking away or abridging fundamental rights would be void to
\nthe extent of contravention.  It has been held by this Court
\nin  Deep Chand v. The State of Uttar Pradesh<\/a> (2) that a\t law
\nmade after the Constitution came into force which  infringes
\nfundamental   rights  is  a  stillborn\tlaw  and  that\t the
\nprohibition contained in Art. 13(2) went to the root of\t the
\nState power of legislation and any-law made in contravention
\nof  that provision was void ab initio.\tThis case  has\tbeen
\nfollowed  in  Mahendra\tLal  Jaini v.  The  State  of  Uttar
\nPradesh<\/a>(3).  In the face of these
\n(1) [1952] S.C.R. 89. (2) [1959] Supp. 2 S.C.R. 8.
\n(3)  [1963] Supp. 1. S.C.R. 912.\n<\/p>\n
853<\/span><\/p>\n
decisions  it  is  impossible  to  apply  the  principle  of
\nprospective  over-ruling in this country so far as  ordinary
\nlaws  are  concerned.  Further, if the word  “law”  in\tArt.
\n13(2)  includes an amendment of the Constitution,  the\tsame
\nprinciple will apply, for that amendment would be  stillborn
\nif  it\tinfringes any fundamental rights contained  in\tPart
\nIII.   In  these circumstances, it would  be  impossible  to
\napply\tthe   principle\t of   prospective   over-ruling\t  to
\nconstitutional\tamendments also.  On the other hand, if\t the
\nword  “law” in Art. 13(2) does not include an  amendment  of
\nthe Constitution, then there is no necessity of applying the
\nprinciple  of  prospective  over-ruling, for  in  that\tcase
\nunless\tsome  limitations on the power of amendment  of\t the
\nConstitution are implied the amendment under Art. 368  would
\nnot  be\t liable\t to  be tested under  Art.  13(2).   We\t are
\ntherefore unable to apply the doctrine of prospective  over-
\nruling\tin the circumstances.  Further as we are of  opinion
\nthat  this is the fittest possible case in which  the  prin-
\nciple  of  stare  decisis  applies,we  must  uphold  Sankari
\nPrasad’s case (1) for this reason also.\n<\/p>\n
Lastly\twe  would  refer to the\t following  observations  in
\nSajjan Singh’s case(2) (at pp. 947-48) with respect to over-
\nruling earlier judgments  of this Court and specially  those
\nwhich are unanimious like Sankari Prasad’s case(1):-\n<\/p>\n
\t      “It  is  true that the Constitution  does\t not
\n\t      place any restriction on our powers to  review
\n\t      our  earlier decisions or even to depart\tfrom
\n\t      them and there can be no doubt that in matters
\n\t      relating\tto  the decision  of  constitutional
\n\t      points which have a significant impact on\t the
\n\t      fundamental  rights of citizens, we  would  be
\n\t      prepared to.’ review our earlier decisions  in
\n\t      the interest of public good………….\tEven
\n\t      so,  the\tnormal\tprinciple  that\t  “judgments
\n\t      pronounced  by  this  Court  would  be  final,
\n\t      cannot be ignored and unless considerations of
\n\t      a substantial and compelling character make it
\n\t      necessary\t to. . do so, we should be  slow  to
\n\t      doubt the correctness of previous decisions.or
\n\t      to depart from them.\n<\/p><\/blockquote>\n
\t      “It  is universally recognised that in  regard
\n\t      to  a large number of constitutional  problems
\n\t      which  are brought before this Court  for\t its
\n\t      decision,\t complex  and  difficult   questions
\n\t      arise and on many of such questions two  views
\n\t      are   possible.\tTherefore, if one  view\t has
\n\t      been   taken.  by\t this  Court  after   mature
\n\t      deliberation,  the fact that another Bench  is
\n\t      inclined\tto  take a  different-view  may\t not
\n\t      justify the Court in reconsidering the earlier
\n\t      decision\t   or\t  in\t departing     from,
\n\t      it…………….  Even so, the Court  should
\n\t      be re-\n<\/p><\/blockquote>\n
\t      (1) (1952] S.C.R.\t 89.\t (2) [1965] 1 S.C.R.\n<\/p><\/blockquote>\n
\t      933.
\n\t      p. CI\/67-9
\n\t      854<\/span>
\n\t      luctant  to accede to the suggestion that\t its
\n\t      earlier  decisions should\t be  light-heartedly
\n\t      reviewed\tand departed from.  In such  a\tcase
\n\t      the test should be: is it absolutely necessary
\n\t      and   essential  that  the  question   already
\n\t      decided should be reopened The answer to\tthis
\n\t      question\t would depend on the nature  of\t the
\n\t      infirmity alleged in the earlier decision, its
\n\t      impact  on public good, and the  validity\t and
\n\t      compelling  character  of\t the  considerations
\n\t      urged in support of the contrary view.  If the
\n\t      said  decision  has been followed in  a  large
\n\t      number of cases, that again is a factor  which
\n\t      must be taken into account.”\n<\/p><\/blockquote>\n
A similar view was taken in the Keshav Mills Company Limited
\nv.  Commissioner  of Income-tax,<\/a>(1) where  it  was  observed
\nthat-\n<\/p>\n
\t      “…before  a previous decision is  pronounced
\n\t      to  be  plainly erroneous, the Court  must  be
\n\t      satisfied\t with  a fair  amount  of  unanimity
\n\t      amongst  its  members that a revision  of\t the
\n\t      said view is fully justified.”\n<\/p><\/blockquote>\n
These principles were applied in Sajjan Singh’s case(2)\t and
\nit was observed that if Sankari\t Prasad’s case(3) were to be
\noverruled, “it would lead to the inevitable consequence that
\nthe  amendments\t made in the Constitution both in  1951\t and
\n1955  would  be\t rendered  invalid and\ta  large  number  of
\ndecisions dealing with the validity of the Acts included  in
\nthe Ninth Schedule which have been pronounced by,  different
\nHigh Courts ever since the decision of this Court in Sankari
\nPrasad’s  case(3)  was declared, would also be\texposed.  to
\nserious jeopardy.”\n<\/p>\n
The  majority  in that case therefore was not in  favour  of
\nreviewing  Sankari Prasad’s case(“.) even so in View of\t the
\nargument  raised  and  the importance  of  the\tquestion  it
\nconsidered  the arguments against that decision and came  to
\nthe conclusion its that that case was rightly decided We may
\nadd that besides so many cases in the High Courts there have
\nbeen  a large number of cases in this Court to which  it  is
\nunnecessary   to  refer\t where\ton  the\t faith\tof   various
\namendments made in the Constitution, particularly the First,
\nthe  Fourth and the Sixteenth, amending fundamental  rights,
\nthis  Court has upheld the, validity of various Acts on\t the
\nbasis  of  these  amendments.\tFurther\t we  would  be\tvery
\nreluctant  to  over-rule the unanimous decision\t in  Sankari
\nPrasad’s  case.(3)  or any other unanimous decision  by\t the
\nslender\t majority of one in a larger Bench  constituted\t for
\nthe purpose.  We say this with great respect and would\thold
\nthat  apart ‘from the principle of stare decisis  we  should
\nnot say that the
\n(1) [1965] 2 S.C.R. 908.\n<\/p>\n
(2) [1965] 1 S.C.R. 933
\n(3) [1952] S.C.R. 89
\n855<\/span>
\nunanimous  judgment in Sankari Prasad’s case(,) was  wrongly
\ndecided by such a slender majority in this Special Bench.
\nWe  therefore  hold  that  Sankari  Prasad’s  cases(1)\t was
\ncorrectly  decided and that the majority,in  Sajjan  Singh’s
\ncase(2)\t WAS Correct in following that decision.   We  would
\nfollow the decision in Sankari Prasad’s case(1) even now  as
\nin  our\t opinion it was correctly decided.’  Following\tthat
\ndecision we hold that the Seventeenth Amendment is good.
\nIn view of this decision it is unnecessary to refer to other
\narguments   raised  with  respect  to  the   two   petitions
\nchallenging the Mysore Land Reforms Act.\n<\/p>\n
In  our view therefore all the three petitions\tshould\tfail
\nand  we would dismiss them.  In the circumstances  we  would
\npass no order as to costs.\n<\/p>\n
Hidayatulla.  J In these three writ petitions, the facts  of
\nwhich  appear  in  the\ttwo  judgment  just  delivered,\t the
\nvalidity  of the Punjab Security of Land Tenures  Act,\t1953
\nand  the  Mysore  Land Reforms\tAct,  1953,  is\t principally
\ninvolved.    ‘\tSince  these  Acts  are\t protected  by\t the
\nConstitution (Seventeenth Amendment) Act, 1964, the validity
\nof   the  constitutional  amendment  is\t  also\t questioned.
\nTherefore, a much larger field must be traversed because  of
\nthe claim of the State that no part of the Constitution from
\nthe Preamble to the Ninth Schedule, is beyond the  provision
\nfor amendment contained in Art. 368.  The article, forms the
\nTwentieth Part of the Constitution and is said to be a\tcode
\nby  itself in which reposes a sovereign power,\ttranscending
\nanything  elsewhere in the Constitution.  The State  submits
\nthat  (except  as  stated  in  the  article)  there  are  no
\nlimitations on the amending power and denies that there\t are
\nany  implied  restrictions.  It claims, therefore,  that  an
\namendment  of  the Constitution Or of any of  its  part\t can
\nnever be a justiciable issue if the procedure for  amendment
\nhas been duly followed.\t In this claim no exception is made-
\nthe Preamble, the Fundamental Rights, the guaranteed  remedy
\nto  uphold them all of them severally and together are\tsaid
\nto  be capable of being Partially or wholly abrogated by  an
\namendment.   Looked at from, this Point of view\t the  Seven-
\nteenth Amendment Act not only ‘must be valid but also beyond
\nthe  Power of the courts to question.  The  petitioners,  on
\nthe  other  hand,  contend that this is\t to  deny  the\treal
\nimportance and inviolability of the Fundamental Rights which
\nthe  Constitution  itself,  paramount  even  to\t Art.,\t 368
\nconsideration.’ before we can Acts are valid or not.
\n(1) [1952] S.C.R. 89.\t  (2)  [1965] 1 S.C.  R.933.\n<\/p>\n
856<\/span><\/p>\n
 The  same questions were before this Court on\ttwo  earlier
\noccasions.  They arose for the first time immediately  after
\nthe Constitution (First Amendment) Act, 1951 was adopted and
\nbecame\tthe subject of a decision of this Court reported  in
\nSri  Sankari Prasad Singh Deo v. Union of  India(1).   There
\nPatanjali  Sastri  J.  speaking\t for  Harilal  Kania   C.J.,
\nMukherjea,  Das\t and Chandrasekhara  Aiyar,  JJ.and  himself
\nupholds\t the First Amendment on the grounds that  the  power
\nconferred by Part XX is constituent, paramount and sovereign
\nand is, therefore, not subject to Art. 13(2) which prohibits
\nthe making of ordinary laws   tending  to  abridge  or\ttake
\naway Fundamental Rights.The   questions\t were  again  before
\nthe Court in sajjan Singh c. State of Rajasthan(2) when\t the
\nSeventeenth Amendment was impugned. The authority of Sankari
\nPrasad’s case(1) was the ministry ofof\tthe argument  in
\nsupport of the validity of the new amendment. This  time the
\nCourt was not unanimous although the Court as aas a whole
\ndid not strike down the Act. Three opinions weredelivered
\nby  Gajendragadkar, C.J. on behalf of Wanchoo  and  Raghubar
\nDayal, JJ. and himself, by Mudholkar, J. and by me.  I found
\nthe  reasoning in Sankari Prasad’s case(1) to  be  unaccept-
\nable,  although for reasons which I shall give, I  refrained
\nfrom  expressing  a  final opinion.  Mudholkar,\t J.  in\t his
\nopinion\t supported me with additional and  forceful  reasons
\nbut  he also did not express himself finally on the  broader
\nquestion.    I\t closed\t my  opinion  with   the   following
\nobservations :–\n<\/p>\n
\t      “I  would require stronger reasons than  those
\n\t      given  in Sankari Prasad’s case(1) to make  me
\n\t      accept  the view that Fundamental Rights\twere
\n\t      not really fundamental but were intended to be
\n\t      within the powers of amendment in common\twith
\n\t      the  other  parts\t of  the  Constitution\t and
\n\t      without  the  concurrence of the\tStates.\t  No
\n\t      doubt  Art.  19  by clauses numbered  2  to  6
\n\t      allows  a curtailment of rights in the  public
\n\t      interest.\t  Ibis\tshows that Part III  is\t not
\n\t      static.\tIt Visualises changes  and  progress
\n\t      but   at\tthe  same  time\t it  preserves\t the
\n\t      individual   rights.   There  is\thardly\t any
\n\t      measure  of reform which cannot be  introduced
\n\t      reasonably,   the\t guarantee   of\t  individual
\n\t      liberty  notwithstanding.\t Even  the  agrarian
\n\t      reforms  could  have been partly\tcarried\t out
\n\t      without  Article 31-A and 31-B but they  would
\n\t      have cost more to the public exchequer.\t‘the
\n\t      rights of society are made paramount and\tthey
\n\t      ire placed above those of the individual.
\n\t      This is as it should be.\tBut  restricting the
\n\t      Fundamental Rights by resort to cls. 2 to 6 of
\n\t      Mt. 19 is
\n\t      (1)  [1952] S.C.R. 89.\n<\/p><\/blockquote>\n
\t      (2)   [1965] 1 S.C.R. 933.\n<\/p><\/blockquote>\n
\t      857<\/span><\/p>\n
\t      one  thing  and removing the rights  from\t the
\n\t      Constitution   or\t debilitating  them  by\t  an
\n\t      amendment\t is  quite  another.   This  is\t the
\n\t      implication of Sankari Prasad’s case(1). It is
\n\t      true that such things would never be, but\t one
\n\t      is concerned to know if such a doing would  be
\n\t      possible.”\n<\/p><\/blockquote>\n
\t      “The Constitution gives so many assurances  in
\n\t      Part  III that it would be difficult to  think
\n\t      that  they  were the playthings of  a  special
\n\t      majority.\t To hold this would prima facie that
\n\t      the  most\t solemn parts  of  our\tConstitution
\n\t      stand  on\t the  same  footing  as\t any   other
\n\t      provision and even on a less firm ground\tthan
\n\t      one  on  which the articles mentioned  in\t the
\n\t      proviso  stand.\tThe anomaly  that  Art.\t 226
\n\t      should  be somewhat protected but not Art.  32
\n\t      must give us pause.  Article 32 does not erect
\n\t      a\t shield against private conduct but  against
\n\t      state conduct including the legislatures\t(See
\n\t      Art. 12).\t Can the legislature take away\tthis
\n\t      shield  ?\t  Perhaps  by  adopting\t a   liberal
\n\t      construction  of\tArt. 368 one can  say  that.
\n\t      But  I am not inclined to play a\tgrammarian’s
\n\t      role.   As at present advised I can  only\t say
\n\t      that  the power to make amendments  ought\t not
\n\t      ordinarily  to  be  a  means  of\tescape\tfrom
\n\t      absolute constitutional restrictions.”\n<\/p><\/blockquote>\n
My opposition (lest one misunderstands its veridical charac-
\nter)  appears  to be cautious and even timid  but  this\t was
\nbecause\t it was attended by an uneasy feeling that  I  might
\nhave  missed  some immanent truth beyond what  was  said  in
\nSankari Prasad’s case(1).  The arguments then were extremely
\nbrief.\t After hearing full arguments in this-\tcase,  which
\nhave  not added to the reasoning of the earlier cases, I  am
\nnot  satisfied that the reasons are cogent enough for me  to
\naccept\tthem.  I say it with respect that I felt then, as  I
\ndo so even more strongly now, that in the two earlier cases,
\nthe  result  was reached by a mechanical juris\tprudence  in
\nwhich harmonious construction was taken to mean that  unless
\nArt. 368 itself made an exception the existence of any other
\nprovision  indicative  of  an  implied\tlimitation  on\t the
\namending power, could not be considered.  This was really to
\nrefuse\tto consider any argument which did not\tsquare\twith
\nthe  a priori view of the omnicompetence of Art. 368.\tSuch
\nreasoning  appears  to\tme  to\tbe  a  kind  of\t doctrinaire
\nconceptualism based on an and textual approach\tsupplemented
\nby one concept that an amendment of the Constitution is\t not
\nan exercise of legislative
\n(1)  [1952] S.C.R. 89.\n<\/p>\n
858<\/span><\/p>\n
power but of constituent Dower and, therefore, an  amendment
\nof  the\t Constitution is not law at all as  contemplated  by
\nArt.  13(2).   I.  am reminded of the.\twords  of.   Justice
\nHolmes\tthat  “we ,must think- things and not  words”.\t The
\ntrue  principle is that if there are two provisions  in\t the
\nConstitution   which   seem   to   be\thostile,   juridical
\nhermeneutics  requires\tthe  Court  to\tinterpret  them\t  by
\ncombining them and not by destroying one with the aid of the
\nother.\t No  part in a Constitution is superior\t to  another
\npart unless the Constitution itself says so and there is  no
\naccession  ‘of\tstrength to any provision by  calling  it  a
\ncode.\tPortalis, the great.  French Jurist .(who helped  in
\nthe  making  of\t the Code Napole on)  supplied\tthe  correct
\nprinciple  when he said that it is the context of the  legal
\nprovisions  which serves to illustrate the meaning.  of\t the
\ndifferent  parts, so that among them and between them  there
\nshould be correspondence and harmony.\n<\/p>\n
We have two provisions to reconcile.  Article 368 which says
\nthat the Constitution may be amended by, following this\t and
\nthis. procedure, and Art. 13(2) which says, the State  shall
\nnot  make  any law which takes away or abridges\t the  rights
\nconferred by Part III and that any law made in contravention
\nof the clause shall, to the extent of the contravention,  be
\nvoid.  The question, therefore, is : does- this create\t any
\nlimitation  upon  the amending process ?  On the  answer  to
\nthis  question depends the solution of all the\tproblems  in
\nthis case.\n<\/p>\n
It is an error to view our Constitution as if it were a mere
\norganisational document by which the people established\t the
\natructure  and\tthe  mechanism\tof  their  Government.\t Our
\nConstitution is intended to be much more because it aims  at
\nbeing a social document In which the relationship of society
\nto  the indiVidual and of Government to both and the  rights
\nof the minorities and the backward classes are clearly\tlaid
\ndown.\tThis social document is headed by a Preamble*  which
\nepitomizes  the\t principles  on\t which\tthe  Government\t  is
\nintended to function and these principles are later expanded
\ninto  Fundamental  Rights  in Part  III\t and  the  Directive
\nPrinciples of Policy in Part TV.  The former ‘are  protected
\nbut the latter are not.\t The former represent the
\n“PREAMBLE  WE THE PEOPLE OF INDIA having  solemnly  Resolved
\nto  .constitute India into a SOVEREIGN\tDEMOCRATIC  REPUBLIC
\nand to secure all Its citizens:\n<\/p>\n
JUSTICE, social, economic and political;
\nEQUALITY of status and of opportunity; and to promote  among
\nthem.all
\nFRATERNITY  assuring the, dignity of the individual  and.the
\nunity of
\nNation:\n<\/p>\n
IN  OUR\t CONSTITUENT  ASSEMBLY\tthis  twenty-sixth  day\t  of
\nNovember,1949,do  HEREBY ADOPT,ENACT AND GIVE  TO  OURSELVES
\nTHIS CONSTffUTION.”\n<\/p>\n
859<\/span><\/p>\n
limits\tof State action and the latter are  the\t obligations
\nand  the  duties  of the Government as\ta  good\t and  social
\nGovernment.\n<\/p>\n
Why  was it necessary to have the Fundamental Rights at\t all
\nand make them justiciable ? As we seem to be forgetting\t our
\nown  history so soon let me say that the answer\t lies  there
\nthe  Nationalist  Movement  and\t the  birth  of\t the  Indian
\nNational  Congm\t in  1885  were the  direct  result  of\t the
\ndiscriminatory\ttreatment  of  the  Indians  in\t their\t own
\ncountry.  The demand for the guarantee of Fundamental Rights
\nhad unfortunately to be made. then to a foreign ruler and it
\nappeared  in  the Constitution of India Bill framed  by\t the
\nIndian\tNational  Congress  ten years later.   All  that  is
\nvaluable  to an Individual in civilized\t society,  including
\nfree  speech,  imprisonment only by a  competent  authority,
\nfree law education, etc. were claimed therein.\t Resolutions
\nof  the Congress since then reiterated this demand  and\t the
\nsecuring  of Fundamental Rights in any\tfuture\tConstitution
\nbecame\tone of the articles of faith.  To cut the  narration
\nshort, the main steps may only be mentioned.  Mrs.  Besant’s
\nCommonwealth  of India Bill 1925 with its seven\t fundamental
\nrights\t(the  precursor\t of Art. 19),  the  Madras  Congress
\nResolution   of\t 1927–“a  constitution\t on  the  basis\t  of
\ndeclaration  of rights”– the Nehru Report–it\tis  obviour,
\nthat our first care should be to have the Fundamental Rights
\nguaranteed   in\t a  manner  which  will\t not  permit   their
\nwithdrawal in any circumstancees–, the draft article in the
\nNehru  Constitution  “No  person shall be  deprived  of\t his
\nliberty,  nor  shall his dwelling or  property\tbe  entered,
\nrequisitioned or confiscated save in accordance with  law”-,
\nthe  Independence  Resolution  of  26th\t January,   1930–We
\nbelieve\t that  it  is the inalienable right  of\t the  Indian
\npeople, as of any other people, to have freedom and to enjoy
\nthe  fruits of their toil and have the necessities of  life,
\nso  that  they may have full opportunities  of\tgrowth”\t the
\nKarachi\t Resolution  on\t Fundamental  Rights,  Economic\t and
\nSocial Change (1931), the Sapru Report (1945) which for\t the
\nfirst  time  distinguished  between  justiciable  and\tnon-
\n,justiciable  rights, the Suggestion of the Cabinet  Mission
\nfor the constitution of an Advisory Committee on Fundamental
\nand   Minority\t Rights,  and,\tlastly\tthe   Committee\t  on
\nFundamental  Rights of the Constituent Assembly, are just  a
\nfew  of the steps to be remembered.  The Fundamental  Rights
\nand the Directive Principles were the result.
\nFundamental laws are needed to make a Government of laws and
\nnot  of men and the Directive Principles are needed  to\t lay
\ndown the objectives of a good Government.  Our\tConstitution
\nwas  not the cause but the result of political and  personal
\nfreedom”.  Since Dicey had said that “the proclamation .  in
\na Constitution or Charter of the right to personal  freedom,
\nor  indeed  of any other right, gives of itself\t but  slight
\nsecurity that the right has more than a
\n860<\/span>
\nnominal\t  existence”,(1)  provision  had  to  be  made\t for
\nguaranteeing   them   andto  make   them   justiciable\t and
\nenforceable.   This result is reachedby means of  Arts.\t 12,
\n13, 32, 136, 141, 144 and 226. The The\tHigh   Courts\t and
\nfinally this Court have been made the Judges of whether\t any
\nlegislative  or executive action on the part oft  the  State
\nconsidered  as comprehensively as is possible,\toffends\t the
\nFundamental Rights and Art. 13(2) declares that\t legislation
\nwhich  so  offends is to be deemed to be void.\tIt  is\tthus
\nthat  Parliament cannot today abridge or take away a  single
\nFundamental  Right  even by a ‘unanimous vote  in  both\t the
\nChambers.  But on the argument of the State it has only\t ‘to
\nchange\tthe  title of the same Act to an  Amendment  of\t the
\nConstitution  Act and then a majority of the total  strength
\nand  a 2\/3rds majority of the members present and voting  in
\neach  House  may  remove not only  any\tof  the\t Fundamental
\nRights, but the whole Chapter giving them.  And this is said
\nto be possible because of Art. 368 and its general  language
\nwhich,\tit is claimed, makes no exception in its  text\tand,
\ntherefore, no exception can be implied.\t It is obvious\tthat
\nif an Act amending the Constitution is- treated as a law  it
\nmust also be subject to the provisions of Art. 13(2).  Since
\nthe  definition\t of  the word ‘law’, makes  no\texception  a
\nstrenuous  eeffort  is\tmade on the basis  of  argument\t and
\nauthority  to  establish that a constituent power  does\t not
\nresult in a law in the ordinary sense.\tDistinction is\tthus
\nmade  between laws made ordinarily that is to say, from\t day
\nto  day by ordinary majority and laws made occasionally\t for
\nthe  amendment\tof the Constitution by a  slightly  enhanced
\nmajority.  In our Constitution this distinction is not valid
\nin the eye of Art. 13(2).\n<\/p>\n
It  is\tnot essential,, of course, that\t a  difference\tmust
\nalways\t exist\tin  the\t procedure  for\t the   exercise\t  of
\nconstituent and ordinary, legislative power.  One has not to
\ngo   far  to  find  the\t example  of  a\t country  in   which
\nconstitutional\tlaw as such may be made by the\tsame  agency
\nwhich makes ordinary laws.  The most outstanding, example is
\nthat of England about which de Tocqueville observed.\n<\/p>\n
\t      “the  Parliament has an acknowledged right  to
\n\t      modify  the Constitution; as,  therefore,\t the
\n\t      Constitution may undergo perpetual changes, it
\n\t      does  not in reality exist; the Parliament  is
\n\t      at  once\ta  legislative\tand  a\t constituent
\n\t      assembly:”(2)
\nof  course,  the dictum of de Tocqueville that\tthe  English
\nConstitution  “elle n’existe point” (it does not  exist)  is
\nfar from accu-\n<\/p><\/blockquote>\n
(1)Dicey: “Law of the Constitution” 10th Edn. p. 207.
\n(2)Introduction to the Study of the Law of the\tConstitution
\nA.V.  Dicey Tenth Edn p. 88 quoting from  OEuvres  completes
\n(14th ed.,1864) (Democratie en Amerique), pp. 166, 167.\n<\/p>\n
861<\/span><\/p>\n
rate.\tThere  is  a vast body\tof  constitutional  laws  in
\nEngland\t which\tis written and statutory but it is  not\t all
\nfound  in one place and arranged as a  written\tConstitution
\nusually is.  The Act of Settlement (1701), the Act of  Union
\nwith  Scotland (1707), the Act of Union with Ireland  (1800)
\nthe Parliament Act (1911) the Representation of the  Peoples
\nActs  of 1832, 1867, 1884, 1918, 1928 and 1948,\t the  Ballot
\nAct  (1872),  the Judicature Acts 1873, 1875 and  1925,\t the
\nIncitement   to\t Disaffection  Act  (1934),  His   Majesty’s
\nDeclaration of Abdication Act (1936), the Regency Act (1937)
\nand  the  various Acts setting up different  ministries\t are
\nexamples of what will pass for constitutional law under\t our
\nsystem(1).   The  Bill\tof  Rights  (1689)  lays  down\t the
\nfundamental rule in England that taxation may not be  levied
\nwithout the consent of Parliament which in our\tConstitution
\nhas  its counterpart in Art. 265.  In our Constitution\talso
\nthe  laws  relating  to delimitation  of  constituencies  or
\nallotment of seats to such constituencies made or purporting
\nto  be\tmade under Art. 327 or Art. 328, by  reason  of\t the
\nexclusion of the powers of the courts to question them,\t are
\nrendered  constitutional  instruments.\t Other\texamples  of
\nconstitutions  which,  in addition to  constitution  proper,
\ncontain certain ordinary legislation, having  constitutional
\nqualities, also exist. (2)
\nWhat  then is the real distinction between ordinary law\t and
\nthe law made in the exercise of constituent power?  I  would
\nsay under the scheme of our Constitution none at all.\tThis
\ndistinction  has been attempted to be worked out by  several
\nauthors.   It  is not necessary to quote them.\t Taking\t the
\nresults\t obtained by Willoughby(3) it may be said  that\t the
\nfact that a Constitution is written as a Constitution is  no
\ndistinction because in Britain constitutional law is of both
\nkinds\tand   both  parts  coexist.   The  test\t  that\t the
\nConstitution  requires\ta different kind  of  procedure\t for
\namendment,  also  fails because in Britain Parliament  by  a
\nsimple\tmajority makes laws and also  amends  constitutional
\nstatutes.   In our Constitution too, in spite of  the  claim
\nthat  Art.  368\t is a code (whatever is meant  by  the\tword
\n,code, here), Arts. 4, 11 and 169 show that the amendment of
\nthe   Constitution  can\t be  by\t the  ordinary\tlaw   making
\nprocedure.  By this method one of the legislative limbs in a
\nState  can  be removed or created.  ‘This  destroys  at\t one
\nstroke the claim that Art. 368 is a code arid also that\t any
\nspecial\t  method  of  amendment\t of  the   Constitution\t  is
\nfundamentally necessary.\n<\/p>\n
(1)  The list is raken from K. C. Wheare’s: “The Statute  of
\nWestminster  and Dominion Status” (4th Edn) p. 8. Dicey\t and
\nothers give different list.\n<\/p>\n
(2)  See Constitutions of Austria, Honduras, Nicaragua Peru,
\nSpain  and Sweden among others.\t The Constitution of  Spain,
\nin  particular is in several Instruments.  The\tConstitution
\nof  Austria  (A-t.  149)  makes\t special  mention  of  these
\nconstitutional instruments.\n<\/p>\n
(3)  Tagore Law Lectures (1924) p. 83.\n<\/p>\n
862<\/span><\/p>\n
The next test that the courts must apply the Constitution in
\npreference  to the ordinary law may also be rejected on\t the
\nansalogy of the British practice.  There, every statute\t has
\nequal standing.\t Therefore, the only difference can be\tsaid
\nto   arise  from  the  fact  that.constitutional  laws\t are
\ngenerally  amendable  under  a\tprocess\t which\tin   varying
\ndegrees,  is more difficult or elaborate.  This may  give  a
\ndistinct  character  to the law of the Constitution  but  it
\ndoes not serve to distinguish it from the other laws of\t the
\nland for purposes of Art. 13(2).  Another difference is that
\nin   the  written  constitutions  the  form  and  power\t  of
\nGovernment  alone are to be found and not rules\t of  private
\nlaw as is the case with ordinary laws.\tBut this is also not
\nan   invariable\t  rule.\t  The  Ame  Constitution   and\t our
\nConstitution  itself  are  outstanding\texamples  There\t are
\ncertain\t other\tdifferences  of degree, such  as  that\tnary
\n_legislation may be tentative or temporary, more detailed or
\nsecondary,   while  the\t Constitution  is  intended  to\t  be
\npermanent,   general  and  primary.   Because\tit   creates
\nlimitations    on    the   ordinary    legislative    power,
\nconstitutional law in a sense is fundamental law, but if the
\nlegislative  and  constituent processes can become  one,  Ls
\nthere any reason why the result should be regarded as law in
\nthe one case and not in the other ? On the whole, therefore,
\nas observed in the American Jurisprudence
\n\t      “It  should be noticed however that a  statute
\n\t      and a constitution, though of unequal  dignity
\n\t      are  both laws and each rests on the  will  of
\n\t      the people……..”\n<\/p>\n
A Constitution is law which is intended to be, for all\ttime
\nand is difficult to change so that it may not be subject  to
\n“impulses  ofmajority”\t“temporary  excitement\tand  popular
\ncaprice or passion”(2).\n<\/p>\n
I  agree with the authors cited before us that the power  of
\namendment  must be possessed by the State.  I do not take  a
\nnarrow view of the word “amendment” as including only  minor
\nchanges\t within the general framework.\tBy an amendment\t new
\nmatter\tmay be added, old matter removed or altered.  I\t alm
\nconcede\t  that\t the  reason  for  the\tamendment   of\t the
\nConstitution  is a political matter although I do not go  as
\nfar  as\t some  Justice of the Supreme court  of\t the  United
\nStates did in Coleman v. Miller(3) that the whole process is
\n“political   in\t its  entirely\tfrom  submission  until\t  an
\nAmendment  becomes  part  of the  Constitution\tand  is\t not
\nsubject to judicial guidance, control or interference at any
\npoint.” There are fundamental differences between our Con-
\n(1) American Jurispruence Vol.\tII Section 3.
\n(2)  Amendment is expressly called a legislative process  in
\nthe Constitutions of Colombia:, Costa Rica, Hungary,  Panama
\nand  Peru..  In\t Portugal the  ordinary\t legislatures  enjoy
\nconstituent powers every 10 years.\n<\/p>\n
(3)  3)7 U.S. 443 (83 L. Ed. 1385).\n<\/p>\n
863<\/span><\/p>\n
stitution  and\tthe  Constitution of the  United  States  of
\nAmerica..  Indeed  this: dictum of the four  Justices  based
\nupon,  the case of Luther v. Borden(1) has lost some of\t its
\nforce after Baker v. Carr(2)
\nA  Republic must, as says Story, (8) possess the  means\t for
\naltering  and improving the fabric of the Government so\t as,
\nto  promote  the happiness and safety of  the  people.\t The
\npower  is  also\t needed to  disarm  opposition\tand  prevent
\nfactions over the Constitution.\t The power, however, is\t not
\nintended  to  be used for experiments or as an\tescape\tfrom
\nrestrictions  against  undue  state action  enacted  in\t the
\nConstitution  itself.\tNor  %’LS  the\tpower  of  amendment
\navailable  for\tthe purpose of removing express\t or  fmplied
\nrestrictions against the State.\n<\/p>\n
Here I make a difference between Government and State  which
\nI  shall  explain presently.  As  Willoughby(4)\t points\t out
\nconstitutional law ordinarily limits Government but not\t the
\nState  because a constitutional law is the creation  of\t the
\nState for its own purpose.  But there is nothing to  prevent
\nthe  State from limiting itself.  The rights and  duties  of
\nthe individual and the manner in which such rights are to be
\nexercised  and enforced ;ire ordinarily to be found  in\t the
\nlaws though some of the Constitutions also fix them.  It  is
\nnow  customary\tto  have  such\trights\tguaranteed  in\t the
\nConstitution.\tPeaslee,(5) writing in 1956 says that  about
\n88% of the national Constitutions contain clauses respecting
\nindividual  liberty and fair legal process;  83%  respecting
\nfreedom\t of  speech and the press; 82%\trespecting  property
\nright;\t80% respecting rights of assembly  and\tassociation;
\n80%  respecting rights of conscience and religion; 79%\tres-
\npecting secrecy of correspondence and inviolability of domi-
\ncile; 78% respecting education; 73% respecting equality\t 64%
\nrespecting  right  to petition; 56% respecting\tlabour;\t 51%
\nrespecting   social  security;\t47%  respecting\t rights\t  of
\nmovement within, and to and from the nation; 47%  respecting
\nhealth\t and  motherhood;  and\t35%  respecting\t  the\tnon-
\nretroactivity  of laws.\t In some of the Constitutions  there
\nis an attempt to put a restriction against the State seeking
\nto whittle down the rights conferred on the individual.\t Our
\nConstitution  is  the  most  outstanding  example  of\tthis
\nrestriction which is to be found in Art. 13(2).\t ‘The  State
\nis  no\tdoubt legally supreme but in the  supremacy  of\t its
\npowers\tit may create, impediments on its  own\tsovereignty.
\nGovernment  is always bound by the restrictions\t created  in
\nfavour\tof fundamental Rights but the State may or  may\t not
\nbe.   Amendment\t may be open to the State according  to\t the
\nprocedure laid
\n(1) 7 How.  1 (12 L. Ed. 58).\t    (2) 369 U. S. 186 (7  L.
\nEd. 2d 633).\n<\/p>\n
(3)  Commentaries on the Constittition of the United  States
\n(1833) Vol.  III pp 686-687.\n<\/p>\n
(4)  Tagore Law Lectures, p. 84.\n<\/p>\n
(5)  Constitutions of Nations, Vol.  I (2nd Edn.) p. 7.\n<\/p>\n
863<\/span><\/p>\n
stitution  and\tthe  Constitution of the  United  States  of
\nAmerica.this:  dicttan of the four Justices based upon,\t the
\ncase of Luther v. Borden(1) has lost some of its force after
\nBaker v. Carr(2).\n<\/p>\n
A Republic must, as says Story,-(,,) ssess the means for  ai
\nand:improving the ‘fabric of tc Government so as, to promote
\nthe  happiness and safety, of the people.  The power, is  dw
\nneeded to disarm opposition and prevent factions over theThe
\npower,\thowever, is not intended to be used for\t experiments
\nor as an escape from restrictions against undue state action
\nenacted\t in  the Constitution itself.  Nor is the  power  of
\namendment  available for the purpose of removing express  or
\nimplied restrictions against the State.\n<\/p>\n
Here I make a difference between Government and Statewhich I
\nshall  explain\tpresently.   As\t Willoughby(4)\tpoints\t out
\nwmtitutional  law ordinarily limits Government but  not\t the
\nState  because a constitutional la,* is the creation of\t the
\nState  for its own pu, se. But there is nothing\t to  prevent
\nthe  State from rpo limiting itself.  The rights and  duties
\nof  the individual and the. manner in which such rights\t are
\nto  be exercised and enforced are ordinarily to be found  in
\nthe laws though some of the Constitutions also fix them.  It
\n   now\tcustomary  to have such\t rights\t guaranteed  in\t the
\nConstitution.\tPeaslee,(5) writing in 1956 says that  about
\n88,Yo\tof  the,  national  Constitutions  contain   clauses
\nrespecting  individual liberty and fair legal  process;\t 83%
\nrespecting  freedom of speech and the press; 82%  respecting
\nproperty  right;  80%  respecting  rights  of  assembly\t and
\nassociation;   80%  respecting\trights\tof  conscience\t and
\nreligion;  79%\trespecting secrecy  of\tcorrespondence\tand’
\ninviolability  of  domicile; 78% respecting  education;\t 73%
\nrespecting equality; .64% respecting right to petition;\t 56%
\nrespecting  labour;  51%  respecting  social  security;\t 47%
\nrespecting  rights of movement within, and to and  from\t the
\nnation;\t 47%  respecting  health  and  motherhood;  and\t 35%
\nrespecting  the non-retroactivity of laws.  In some  of\t the
\nConstitutions  there  is  an attempt to\t put  a\t restriction
\nAgainst\t the  State  seeking  to  whittle  down\t the  rights
\nconferred’ on the ‘individual.\tOur Constitution is the most
\noutstanding  i6xample  of this restriction Which  is  to  be
\nfound in Art. 1.3(2). ,Tbe State is no doubt legally supreme
\nbut  in\t the  supremacy\t of  its  powers  it  may   creat-e-
\nimpediments on its OI%M sovereignty.  Govent is always bound
\nby the restrictions created in favour of Fundamental  Rights
\nbut  the State may or may not be.  Amendment may be open  to
\nthe State according to the procedure lai(r
\n(1)7  How.  1 (12 L. Ed. 58). (2) 369 U. S. 186 (7 L.  Ed.
\n2d 633).\n<\/p>\n
(3) Commentaries on the Constitution of the United,  Sta:tes
\n(1 833)’Vol.  III PP, 686-687.\n<\/p>\n
(4)Tagore Law Lectures, p. 84.\n<\/p>\n
(5)Constitutions of Nations, Vol.  I (2nd Edn.) p. 7.\n<\/p>\n
864<\/span><\/p>\n
down  by  the Constitution.  There is nothing,\thowever,  to
\nprevent\t the State from placing certain matters outside\t the
\namending  procedure(‘).\t Examples of this exist\t in  several
\nConstitutions  of  the world : see Art. 5  of  the  American
\nConstitution; Art. 95 of -the Constitution of France,;\tArt.
\n95   of\t the  Constitution  of\tFinland;  Art.\t97  of\t the
\nConstitution  of Cambodia; Art. 183 of the  Constitution  of
\nGreece;\t Art. 97 of the Japanese Constitution; Art.  139  of
\nthe Italian Constitution, to mention only a few.
\nWhen  this  happens  the  ordinary  procedure  of  amendment
\n,ceases to apply.  The unlimited competence (the  kompetenz-
\nkompetenz of the Germans) does not flow from the  amendatory
\nprocess.  Amendment can then be by a fresh constituent body.
\nTo attempt to do this otherwise is to attempt a\t revolution.
\nI do not known why the word “revolution”, which I have\tused
\nbefore,\t should evoke in some persons an image\tof  violence
\nand  subversion.   The whole American Constitution  was\t the
\nresult of a bloodless revolution and in a sense so was ours.
\nThe  adoption of the whole Constitution and the adoption  of
\nan  amendment to the Constitution have much in\tcommon.\t  An
\namendment  of  the  Constitution has  been  aptly  called  a
\nConstitution in little and the same question arises  whether
\nit  is\tby a legal process or by revolution.   There  is  no
\nthird alternative.  An amendment, which repeals the  earlier
\nConstitution,  unless legal, is achieved by revolution.\t  As
\nstated in the American Jurisprudence :\n<\/p>\n
“An attempt by the majority to change the fundamental law in
\nviolation  of self-imposed restrictions is  unconstitutional
\nand revolutionary”.(‘)
\nThere  are illegal and violent revolutions and\tillegal\t and
\npeaceful revolutions.  Modification of Constitution can only
\nbe  by the operation of a certain number of wills acting  on
\nother  wills.  The pressure runs through a  broad  spectrum,
\nharsh at one end and gentle at the other.  But whatever\t the
\npressure  may  be, kind or cruel, the revolution  is  always
\nthere if the change is not legal.  The difference is one  of
\nmethod, not of kind.  Political thinking starts from the few
\nat the top and works downward more often than in the reverse
\ndirection.   It is wrong to think that masses alone,  called
\n“the people” after Mazini, or “the proletariate” after Marx,
\n‘begin a revolutionary change.\tPolitical changes are always
\npreceded  by  changes  in thought in a\tfew.   They  may  be
\noutside the
\n(1)  In the Constitution of Honduras, partial amendment only
\nis  possible.\tFor  a\tcomplete  amendment  a\t Constituent
\nAssembly has to be convoked.  In the Constitution of Brazil,
\nthe Constitution cannot be amended when there is a state  of
\nseige (our emergency).\tIn Turkey an amendment of Article  1
\ncannot even be proposed.\n<\/p>\n
(2)  Vol. 12, Section 25 pp. 629-630.\n<\/p>\n
865<\/span><\/p>\n
Government or in it.  It is a revolution nevertheless, if an
\nattempt\t is  made  to alter the will of\t the  people  in  an
\nillegal manner.\t A revolution is successful only if there is
\nconsent\t and  acquiescence and a failure if  there  is\tnot.
\nCourts\tcan  interfere to nullify the  revolutionary  change
\nbecause\t in all cases of revolution there is  infraction  of
\nexisting  legality.  It is wrong to classify  as  revolution
\nsome  thing  coming  from  outside  the\t Government  and  an
\nillegality   committed\t by  the  Government   against\t the
\nConstitution as evolution.  I am mindful of the observations
\nof Justice Holmes, that-\n<\/p>\n
\t      “We need education in the obvious to learn  to
\n\t      transcend\t our  own convictions and  to  leave
\n\t      room  for\t much that we hold dear to  be\tdone
\n\t      away with short of revolution, by the  orderly
\n\t      change of law.”(1)
\nBut  the problem we are faced with is not an orderly  change
\nof law but of a claim to a revolutionary change against\t the
\nvitals of the Constitution.  In such a case the apprehension
\nis  that democracy may be lost if there is no liberty  based
\non  law\t and law based on equality.  The protection  of\t the
\nfundamental  Rights is necessary so that we may not walk  in
\nfear of democracy itself.\n<\/p><\/blockquote>\n
Having assumed the distinction between Government and’ State
\nlet me now explain what I mean by that distinction and\twhat
\nthe  force of Art. 13(2) in that context is.  I shall  begin
\nfirst  by  reading the pertinent article.  Article  13\t(2),
\nwhich I quoted earlier, may again be read here:\n<\/p>\n
\t      “13………………………….
\n\t      (2)The  State  shall not make  any  law  which
\n\t      takes away or abridges the rights conferred by
\n\t      this Part and any law made in contravention of
\n\t      this   clause   shall,  to   the\t extent\t  of
\n\t      contravention, be void.”\n<\/p><\/blockquote>\n
\t      The definition of the State in Art. 12 reads
\n\t      “12.    In  this\tPart,  unless  the   context
\n\t      otherwise\t requires, “the State”\tincludes.the
\n\t      Government  and  Parliament of India  and\t the
\n\t      Government and the Legislature of each of\t the
\n\t      States  and  all local  or  other\t authorities
\n\t      within  the  territory of India or  under\t the
\n\t      control of the Government of India.”\n<\/p><\/blockquote>\n
The  State  is the sum total of all the agencies  which\t are
\nalso individually mentioned in Art. 12 and by the definition
\nall   the   parts  severally  are  also\t included   in\t the
\nprohibition.  Now see how ‘law’ is defined:
\n“13…………………..\n<\/p>\n
(1)  The Mind and Faith of Justice Holmes p. 390.\n<\/p>\n
866<\/span><\/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\t the
\nterritory of India the force of law;”\n<\/p>\n
In  Sajjan Singh’s case(1) I said that if amendments of\t the
\nconstitution  were meant to be excluded from the word  “law”
\nit  was\t the  easiest thing to add  to\tthe  definition\t the
\nfurther\t words\t“but shall not include an amendment  of\t the
\nConstitution”. it ‘LS argued now before us that this wag not
\nnecessary  because  Art. 368 does not  make  any  exception.
\nThis  argument came at all stages like a refrain and is\t the
\nreal  cause of the obfuscation in the opposite view.   Those
\nwho  entertain this thought do not pause to consider  :\t why
\nmake a prohibition against the State? As Cooley said:\n<\/p>\n
\t      “there  never  was a  republican\tConstitution
\n\t      which  delegated\tto  functionaries  all\t the
\n\t      latent  powers  which  lie  dormant  in  every
\n\t      nation  and  are\tboundless  in  extent.\t and
\n\t      incapable of definition.”,
\nIf the State wields more power than the functionaries  there
\nmust  be a difference between  the.  State and its  agencies
\nsuch  as  Government, Parliament, the  Legislatures  of\t the
\nStates and the local and other authorities.  Obviously,\t the
\nState  means  more  than any of there or  all  of  them\t put
\ntogether.   By\tmaking\tthe State  subject  ‘to\t Fundamental
\nRights it is clearly stated in Art. 13 (2) that any’ ,of the
\nagencies  acting alone or all the agencies, acting  together
\nare  not above the Fundamental Rights.\tTherefore, when\t the
\nHouse  .of the People or the Council of States introduces  a
\nBill-  for  the abridgement of the  Fundamental\t Rights,  it
\nignores the injunction against it and even if the two Houses
\npass  the Bill the injunction is next operative against\t the
\nPresident since the expression “Government of India” in\t the
\nGeneral\t Clauses Act means the President of India.  This  is
\nequally true of ordinary laws and laws seeking to amend\t the
\nConstitution.\tThe meaning of the word “State” will  become
\nclear  if I draw attention at this stage to Art. 325 of\t the
\nConstitution of Nicargua, which reads as follows:-\n<\/p><\/blockquote>\n
\t      “325.  The agencies of the Government, jointly
\n\t      or separately, are, for-bidden to suspend\t the
\n\t      Constitution or to restrict she rights granted
\n\t      by it, except in the cases provided therein.”\n<\/p><\/blockquote>\n<\/blockquote>\n
In our Constitution the agencies of the State are controlled
\njointly\t and separately and the prohibition is\tagainst\t the
\nwhole force of
\n(1)  [1965] 1 S.C.R. 933.\n<\/p><\/blockquote>\n
867<\/span><\/p>\n
the  State  acting either in its  executive  or\t legislative
\ncapacity.  Ile of the Executive is more important than\teven
\nthe  Legislature.   In modem politics run  on  parliamentary
\ndemocracy  the Cabinet attains a position of dominance\tover
\nthe  Legislature.   The Executive, therefore,  can  use\t the
\nLegislature as a means of securing changes in the laws which
\nit desires.  It happened in Germany under Hitler.  The\tfact
\nhas been noticed by numerous writers. for example, Wade\t and
\nPhilips(1),  Sir Ivor Jennings(2) , Dawson(3), Keith(4)\t and
\nRamsay Muir(5).\t Dawson in particular said that a Cabinet is
\nno  longer  responsible to the Commons but the\tCommons\t has
\nbecome instead responsible to the Government.  Ivor Jennings
\nadded  that  if a Government had majority  it  could  always
\nsecure\tthe  legislation.  The others pointed out  that\t the
\nposition  of the Cabinet towards Parliament tends to  assume
\nmore  or  less dictatorial powers and that  was\t why  people
\nblamed\tGovernment, this is to say, the Cabinet rather\tthan
\nParliament for ineffective and harsh laws.
\nThis  is true of our country also  regarding  administration
\nand  Station.  Fortunately, this is avoided at least  in  so
\nfar  as\t the Fundamental Rights\t are  concerned.   Absolute,
\narbitrary  power  in defiance of  Fundamental  Rights  exist
\nnowhere\t under\tour Constitution, not even  in\tthe  largest
\nmajority.   The\t people’s representatives have,\t of  course,
\ninalienable  and  undisputable\tright to  alter,  reform  or
\nabolish the Government in any manner they think fit, but the
\ndeclarations  of the Fundamental Rights of the citizens\t are
\nthe  inalienable  rights of the people.\t Ile extent  of\t the
\npower  of  the\trulers\tat any\ttime  is,  measured  by\t the
\nFundamental Rights.  It is wrong to think of them as  rights
\nwithin the Parliament’s giving or taking.  Our\tConstitution
\nenables\t an  individual\t to oppose  successfully  the  whole
\ncommunity  and\tthe  State and claim his  rights.   This  is
\nbecause\t the Fundamental Rights are I so  safe-guarded\tthat
\nwithin\t the  limits  set  by  the  Constitution  they\t are
\ninviolate.  The Constitution has itself said what protection
\nhas been created round the person and property of the  citi-
\nzens and to what extent this protection may give way to\t the
\ngeneral good. it is wrong to invoke the Directive Principles
\nas   if\t there\tis  some  antinomy  between  them  and\t the
\nFundamental  Rights.  The Directive Principles lay down\t the
\nroutes of State but such action must avoid the\trestrictions
\nstated\tin  the\t Fundamental Rights.   Prof.   Anderson\t (6)
\ntaking\tthe constitutional amendments, as they have been  in
\nour country, considered the Directive principles to be\tmore
\npotent than the Fundamental
\n(1)  Constitutional Law, 6th Edn. p. 27.\n<\/p>\n
(2)  Parliament (1957) pp. 11-12.\n<\/p>\n
(3)  Government of Canada (1952) Chapter XIX.
\n(4)  An Introduction to British Constitutional Law (1931) P.
\n48,
\n(5)  How Britain is Governed P. 5,6.\n<\/p>\n
(6)  Changing Law in Developing Countries, pp. 88, 89.\n<\/p>\n
868<\/span><\/p>\n
Rights.\t That  they  are not, is clear when  one  takes\t the
\nFundamental-  Rights.  with- the guaranteed  remedies.\t The
\nDirective Principles are not justiciable but the Fundamental
\nRights are’ made justiciable.  This gives a judicial control
\nand check over State action even within the four corners  of
\nthe  Directive Principles.  It cannot be conceived  that  in
\nfollowing  the Directive Principles the\t Fundamental  Rights
\n(say  for example, the equality clause) can be ignored.\t  If
\nit  is\tattempted,  then . the action is  capable  of  being
\nstruck\tdown.\tIn  the same way, if  an  amendment  of\t the
\nConstitution is law for the reasons explained by me, such an
\namendment  is  also open to challenge under Art. 32,  if  it
\noffends\t against  the  Fundamental Rights  by  abridging  or
\ntaking\tthem away.  Of course, it is always open  to  better
\nFundamental Rights.  A law or amendment of the\tConstitution
\nwould offend the Fundamental Rights only when it attempts to
\nabridge or take them away.\n<\/p>\n
The  importance of Fundamental Rights in the world of  today
\ncannot be-lost sight of.  On December 10, 1948, the General.
\nAssembly  of  the  United  Nations  adopted  the   Universal
\nDeclaration  of Human Rights without a dissent.\t This  draft
\nwas made after the Third Committee of the United Nations had
\ndevoted\t 85 meetings to it.  The Declaration represents\t the
\ncivil, political and religious liberties for which men\thave
\nstruggled  through  the centuries and those new\t social\t and
\neconomic  rights  of the Individual which  the\tNations\t are
\nincreasingly  recognising in their Constitutions.   Some  of
\nthese  were  proclaimed\t during the  French  Revolution\t and
\nareincluded  in the declarations of Nations taking pride  in
\nthe  dignity  and  liberty  of\tthe  Individual.   They\t are
\nepitomized  in\tthe Preamble, and more\tfully  expressed  in
\nParts  III and IV of our Constitution.\t These\tDeclarations
\nwherever found are intended to give a key to social progress
\nby  envisaging\trights to work, to education  and  to’social
\ninsurance.\n<\/p>\n
The Nations of the world are now in the second stage,  where
\nCovenants  are\tbeing signed on the-part of  the  States  to
\nrespect such rights.  United Nations Human Rights Commission
\nhas worked to produce two drafts-one dealing, with civil and
\npolitical  rights  and the other with economic,\t social\t and
\ncultural rights., The third stage is still in its infancy in
\nwhich  it is hoped to provide for the enforcement  of  these
\nrights\ton an international basis.  The Regional Charter  of
\nthe Human Rights under which there is established already  a
\nEuropean  Commission  of  Human Rights\tto  investigate\t and
\nreport on violations of Human Rights, is a significant\tstep
\nin  that direction.  After 1955 the European Commission\t has
\nbecome\tcompetent  to receive  complaints  from\t individuals
\nalthough   the\t enforceability\t of  Human  Rights   on\t  an
\ninternational  basis is still far from being  achieved.\t  If
\none compares the Uni
\n869<\/span>
\nversal Declaration with Parts III and IV of our Constitution
\none   finds  remarkable\t similarity  in\t the  two.   It\t  is
\nsignificant  that  our Committee on Fundamental\t Rights\t was
\ndeliberating  when the This Committee of the United  Nations
\nwas  deliberating  on the.  Universal Declaration  of  Human
\nRights.\t  Both\tare  manifestos\t of  man’s  inviolable\t and
\nfundamental freedoms.\n<\/p>\n
While the world is anxious to secure Fundamental Rights\t in-
\nternationally,\t it  is\t a  little  surprising\t that\tsome
\nintellectuals  in our country, whom we may call “classe\t non
\nclasse”\t after Hegel, think of the Directive  Principles  in
\nour  Constitution  as if they were superior  to\t Fundamental
\nRights.\t As a modern philosopher(1) said such people ‘do lip
\nservice’ to freedom thinking all the time in terms of social
\njustice\t “with ‘freedom’ as a by-product”.   Therefore,\t in.
\ntheir  scheme  of things Fundamental Rights become  only  an
\nepitheton  ornans.  One does not know what they\t believe  in
\nthe  communistic millennium of Marx or\tthe  individualistic
\nUtopia of Bastiat.  To them an amendment of the\t Fundamental
\nRights\tis  permissible\t if it can be said to  be  within  a
\nscheme of a supposed socioeconomic reform, however, much the
\ndanger\tto liberty, dignity and freedom of  the\t Individual.
\nThere  are  others who hold to liberty and freedom  of\tthe.
\nIndividual  under all conditions.  Compare the\tattitude  of
\nMiddleton  Murray who would have Communism  provided  “there
\nwas   universal\t freedom  of  speech,  of  association,\t  of
\nelections  and\tof  Parliament”\t To  such  the\tliberty\t and
\ndignity\t of the Individual are inviolable.  Of\tcourse,\t the
\nliberty\t of  the individual under our  Constitution,  though
\nmeant to be fundamental, is subject to such restrictions  as
\nthe  .\tneeds  of  society  dictate.   These  are  expressly
\nmentioned  in  the Constitution itself in the hope  that  no
\nfurther limitations would require to be imposed at any time.
\nI  do  not  for a moment suggest  that\tthe  question  about
\nreasonableness, expediency or desirability of the amendments
\nof  the\t Constitution  from  a\tpolitical  angle  is  to  be
\nconsidered  by\tthe courts.  But what I do say is  that\t the
\npossession of the necessary majority does not put ‘any party
\nabove\tthe  constitutional  limitations  implicit  in\t the
\nConstitution.\tIt is obvious that the Constituent  Assembly
\nin  making  the\t Fundamental  Rights  justiciable  was\t not
\njustisfied  with reliance on the sense of self-restraint  or
\npublic opinion(2) on which the majority in Sajjan Singh’s(3)
\ncase  does.  This is not argument of fear: The\tquestion  to
\nask  is : can a party, which enjoys 2\/3rds  majority  today,
\nbefore it
\n(1)Benedetto Croce.\n<\/p>\n
(2)Sir Robert Peel calls it “that great compound of foiiy,
\nweakness, prejudice, wrong feeling, right feeling, obstinacy
\nand newspaper paragraphs”\n<\/p>\n
(3)[1965] 1 S.C.R. 933.\n<\/p>\n
CI\/67-10
\n870<\/span>
\nloses it, amend Art. 368 in such wise that a simple majority
\nwould  be  sufficient  for  the\t future\t amendments  of\t the
\nconstitution  ?\t  Suppose  it did so,  would  there  be\t any
\ndifference between the constitutional and the Ordinary\tlaws
\nmade thereafter ?\n<\/p>\n
The  liberty of the Individual has to be fundamental and  it
\nhas been so declared by the people.  Parliament today is not
\nthe constituent body as the Constituent Assembly was, but is
\na  constituted body which must bear true, allegiance to\t the
\nConstitution   ‘as  by\tlaw  established.   To\tchange\t the
\nFundamental part of the Individual’s liberty is a usurpation
\nof  constituent\t functions be-cause they  have\tbeen  placed
\noutside the scope of the- power of constituted.\t Parliament.
\nIt is obvious that Parliament need not now legislate at all.
\nIt  has\t spread the umbrella of Art. 31-B and .has  only  to
\nadd,  a\t clause that all legislation  involving\t Fundamental
\nRights\twould  be  deemed  to  be  within  that\t  protection
\nhereafter.   Thus  the only  palladium\tagainst\t legislative
\ndictatorship may be removed by a 2\/3rds majority not only in
\npraesanti  but,\t defuturo.  This can hardly  be\t open  to  a
\nconstituted Parliament.\n<\/p>\n
Having established, that there is no difference between\t the
\nordinary legislative and the amending processes in so far as
\ncl.(2)\tof Aft. 13 is concerned, because both being laws  in
\ntheir  true character, come within the prohibition  created,
\nby  that,  clause against the State and that  the  Directive
\nPrinciples cannot be invoked to destroy Fundamental  Rights.
\nI  proceed  now to examine whether the English\tand  Amercan
\nprecedents  lay down any principle applicable to  amendments
\nof  our\t Constitution.\tIn, Britain the question  whether  a
\nconstitutional\tamendment is valid or not at  arise  because
\nthe  courts are powerless’ Parliamentary  Sovereignty  under
\nthe  English Constitution means that Parliament\t enjoys\t the
\nright  to make or unmake any law whatever  and no  person or
\nbody has any right to question the legislation.\t The  utmost
\nand  absolute  despotic\t power belongs\tto  Parliament.\t  It
\n“make, confirm, enlarge, restrain, abrogate, repeal,  revise
\nand   expand   law  concerning\tmatters\t of   all   possible
\ndenominations”.\t What Parliament does, no authority on earth
\ncan  undo.   The  The Queen, each House\t of  Parliament\t the
\nconstituencies and the law  courts have in the past  claimed
\nindependent   legislative  powers  but\tthese\tclaims\t are
\nunfounded.    It  is  impossible  to  compare\tthe   Indian
\nParliament  with the Brittsh Parliament as the\tformer\tcon-
\ncodedly\t in the ordinary legislation is subject to  judicial
\nreview,\t both  on the ground of competence  arising  from  a
\nfederal\t structure And the existence of Fundamental  Rights.
\nThe question of competence in the matter of amendment of the
\nConstitution  depends  upon, firstly,  compliance  with\t the
\nprocedure  laid\t down in Art. 368 and,\tsecondly,  upon\t the
\nquestion whether,the.process is in
\n871<\/span>
\nany  manner  restricted by the\tFundamental  -Rights.\tSuch
\nquestions   cannot   obviously\t arise\t in   the    British
\nParliament(‘).\n<\/p>\n
The example  of the Constitution of the United States cannot
\nalso  serve  any  purpose although the\tgreatest  amount  of
\nsupport\t was sought to be derived from the decisions of\t the
\nSupreme\t Court and the institutional writings in the  United
\nStates.\t   The\t power\tof  amend  in  the   United   States
\nConstitution  flows from Art.  V. (1).\tIt must\t be  noticed
\nthat  the  power  is  clearly not  made\t equal\tto  ordinary
\nlegislative  process.\tOne salient point of  difference  is
\nthat  the President is nowhere in’ this scheme\tbecause\t his
\nnegative  does not run.(‘) The amendment is thus not of\t the
\nsame quality as ordinary legislation.\n<\/p>\n
The Supreme Court of the United States has no doubt  brushed
\naside  objections to amendments of the Constitution  on\t the
\nscore  of  incompetence, but has refrained from\t giving\t any
\nreasons.   In the most important of them,  which  questioned
\nthe  18th Amendment, the Court only stated its\tconclusions.
\nAfter  recalling  the  texts  of  the  Article\tunder  which
\nAmendments may be made and of the 18th Amendment proposed by
\nthe  Congress  in  1917 and proclaimed as  ratified  by\t the
\nStates in 1919, the Court announced :\n<\/p>\n
“4.  The  prohibition  of  the\tmanufacture,  sale,   trans-
\nportation,  importation,  and  exportation  of\tintoxicating
\nliquors\t for  beverage\tpurposes, as embodied  in  the\t18th
\namendment,  Is within the power to amend reserved by Art.  5
\nof the Constitution.” (emphasis supplied) (4)
\nOne would have very much liked to know why this\t proposition
\nwas laid down in the terms emphasised above if the effective
\nexercise of the. power depended upon a particular  procedure
\nwhich  was immaculately followed.  The silence of the  Court
\nabout  its reasons has been noticed in the same judgment  by
\nMr. Justice
\n(1)  Dicey gives three supposed limitations on the power  of
\nParliament.   Of  these one that language has been  used  in
\nActs  of  Parliament which implies that one  Parliament\t can
\nmake  laws  which  cannot  be  touched\tby  any\t  subsequent
\nParliament,  is\t not  true.  The best examples\tare  Act  of
\ntreaties with Scotland and Ireland but these same Acts\thave
\nbeen  amended later.  Francis Bacon found this claim  to  be\n<\/p>\n
-untenable.  See Dicey ‘The Law of the Constitution pp.\t 64,\n<\/p>\n
65.
\n(2)  Article  V. The Congress, whenever two-thirds  of\tboth
\nhouses shall deem it necessary, shall propose -amendments to
\nthis   Constitution,   or,  on\tthe   application   of\t the
\nlegislatures of two-thirds of the several States, shall call
\na  convention  for proposing amendments,  which,  in  either
\ncase, shall be valid to all intents and purposes, as part of
\nthis  Constitution,  when ratified by  the  legislatures  of
\nthree-fourths  of the several States, or by  conventions  in
\nthree-fourths  thereof,\t as  the one or the  other  mode  of
\nratification may be proposed by the Congress, provided\tthat
\nno  amendment  which  may be made prior\t to  the  year’\t one
\nthousand eight hundred and eight shall in any manner  affect
\nthe  first  and fourth clauses in the ninth section  of\t the
\nfirst article; and that no State, without its consent, shall
\nbe deprived of its equal suffrage in the Senate.”
\n(3)  Hollingsworth v. Virginia 3 Dall. 378.
\n(4)  National Prohibition Cases, 253 U.S. 350.\n<\/p>\n
872<\/span><\/p>\n
Mckenna.   In feser v. Garnett(1) the Court was hardly\tmore
\nexpressive.  The only question considered by the Court was
\n“The  first  contention\t is  that  the\tpower  of  amendment
\nconferred  by  the’ Federal Constitution, and sought  to  be
\nexercised, does not dxtend to this Amendment, because of its
\ncharacter.” (emphasis supplied).\n<\/p>\n
This was repelled by Brandeis, J on behalf of the  unanimous
\ncourt  on the grx)und that the- Amendment was  in  character
\nand  phraseology  similar  to the  15th\t Amendment  and\t was
\nadopted by following the same method.  As the,lsth Amendment
\nhad been accepted for half a century the suggestion that  it
\nwas  not  in  accordance  with law, but\t as  a\twar  measure
\nvalidated by acquiescence was not accepted.
\nIt  is\tsignificant, however, that at the time of  the\t18th
\nAmendment,  the\t arguments were (a)  that  ‘amendment’\twas’
\nlimited\t to  the correction of error in the framing  of\t the
\nConstitution, (b) Article V did not comprehend the  adoption
\nof  additional\tor supplementary  provisions,  (c)  ordinary
\nlegislation  could  not be embodied. in\t the  constitutional
\namendment,  and\t (d) Congress could not\t ‘propose  amendment
\nwhich  pared  the  sovereign power of the States.   None  of
\nthese at I guin ents was accepted.  At the time of the\t19th
\nAmendment, which increased the franchise in the States,\t the
\nnarrow\tground was that a State which had not  ratified\t the
\nAmendment  would be, deprived of its equal suffrage  in\t the
\nSenate\tbecause\t its representatives in that body  would  be
\npersons\t not of its choosing, i.e. persons,chosen by  voters
\nwhom  the  State  itself  had not  authorised  to  vote\t for
\nSenators.  This argument was rejected.\tHowever, in  Dillion
\nv.  Gloss(2) the Supreme Court held that Congress  had\tthe,
\npower  to  a  time limit for ratification  because  Art.   V
\nimplied that application must be within some reasonable time
\nafter.\tthe proposal”.\tThe fixation of 7 years was held  by
\nthe Court to be reasonable.\n<\/p>\n
In  1939 came the case of Coleman v. Miller(3)\twhich  dealt
\nwith the Child Labour Amendment.  Such a law was earlier re-
\njected by the Kansas Leizislature.  Later the State ratified
\nthe amendment after a lapse of 13 years by the casting\tvote
\nof  the\t Lt.  Governor.\t  Mandamus  was\t asked\tagainst\t the
\nSecretary  of  Kansas  Senate to erase\tthe  endorsement  of
\nratification from its record and it was denied.\t The Supreme
\nCourt of Kansas refused to review this denial on certiorari.
\nThe  Supreme  Court of the United States in an\topinion,  in
\nwhich not more than 4 Justices
\n(1) 258-U.S. 130.\t    (2)256 U.S. 368.\n<\/p>\n
(3)  307 U.S. 443.\n<\/p>\n
873<\/span><\/p>\n
took any particular view,. declined to interfere.   Majority
\naffirmed  the  decision of Supreme Court  of  Kansas.\tFour
\nJustices  considered  that the question was  political\tfrom
\nstart  to  finish  and\tthree  Justices\t that  the  previous
\nrejection  of  the law and the extraordinary time  taken  to
\nratify were political questions.\n<\/p>\n
Although  the Supreme Court has scrupulously refrained\tfrom
\npassing on the ambit of Art.  V it has nowhere said that  it
\nwill  not  take\t jurisdiction  in  any\tcase  involving\t the
\namending  process. (1) In Hollingsworth v.  Virginia(2)\t the
\nsupreme\t Court\tassumed that the question  was\tlegal.\t The
\nAttorney General did not even raise an objection.  In Luther
\nv.  Borden($)  the matter was finally held to  be  political
\nwhich  opinion prevailed unimpaired ’till some\tdoubts\thave
\narisen\tafter  Baker  v. Carr(4).  In  the  case  the  Court
\nremarked-\n<\/p>\n
\t      “We conclude…… that the non-justiciability
\n\t      of  claims  resting on  the  guarantee  clause
\n\t      which arises from the embodiment of  questions
\n\t      that  were  thought ‘Political’  can  have  no
\n\t      bearing upon the justiciability of the,  equal
\n\t      protection claim presented in this  case……
\n\t      We  ernphasise that it is the  involvement  in
\n\t      guarantee\t  clause  claims  of  the   elements
\n\t      thought to define “political questions” and no
\n\t      other  feature, which could render  them\tnon-
\n\t      justiciable.  specifically, We have said\tthat
\n\t      such  claims  are\t not  held   non-justiciable
\n\t      because\tthey   touch   matters\t of    State
\n\t      governmental Organisation.\n<\/p><\/blockquote>\n
It would appear that the Equal Protection Clause was held to
\nsupply\ta  guide for examination  of  apportionment  methods
\nbetter than the Guarantee Clause.\n<\/p>\n
Although  there is no clear pronouncement, a  great  contro-
\nversy  exists whether questions of substance can  ever\tcome
\nbefore\t the  Court  and  whether  there  are  any   implied
\nlimitations  upon the amendatory Power.\t In the cases  above
\nnoted, the other articles (particularly the Bill of  Rights)
\nwere  not read as limitations and no limitation outside\t the
\namending  clause was implied.  In the two cases inwhich\t the
\nexpress limitation of Equal suffrage Clause was involved the
\nCourt did not enter the question.  Thus the 15th and, on its
\nstrength,  the 19th Amendments were upheld.  In\t Coleman  v.
\nMiller(5)  the\tpolitical  question  doctrine  brought\t the
\nsupport\t of only four Justices and in Baker v.\tCarr(4)\t the
\nFederal, Courts were held to have jurisdiction to scrutinise
\nthe  fairness of legislative apportionment, under  the\t14th
\nAmendment   and\t to  take  steps  to  assure  that   serious
\ninequities were wiped out.. The
\n(1)  See Rottschaeffer: Handbook of American  Constitutional
\nLaw (1939) pp. 397, 398, though the author’s opinion is that
\nit will deny jurisdiction.\n<\/p>\n
(2)  3 Dall. 378.\n<\/p>\n
(3)  12 L. Ed. 58.\n<\/p>\n
(4)  369 U.S. 186.\n<\/p>\n
(5)  307 U. S. 443
\n874<\/span>
\ncourts have thus entered the political thicket’.The question
\nof delimitation of constituencies cannot, of, course,  arise
\nbefore courts under our Constitution because of Art. 329.
\nBaker  v. Carr(1) makes the Court sit in judgement over\t the
\npossession  and distribution of politcal power which  is  an
\nessential  part of a Constitution.  The magical\t formula  of
\n“political questions” is losing ground and it is to be hoped
\nthat  a change may be Soon. coming.  Many of the attacks  on
\nthe  amendments were the result of a  misunderstanding\tthat
\nthe  Constitution Was a compact between States and that\t the
\nallocation of powers was not to be changed at all.  This was
\nfinally decided by Texas v. White (2) as far back as 1869.
\nThe main question of implied limitations has evoked a  spate
\nof  writings.  Bryce(s), Weaver(4), Mathews(5),\t Burdick(6),
\nWilloughby(7),\tWillis(8), Rottshaefer(9),  Orfield(10)\t (to
\nname  only  a  few) are of the opinion that  there  are\t no,
\nimplied limitations, although, as Cooley points out, “it  is
\nsometimes expressly declared-what indeed is implied  without
\nthe declaration that everything in the declaration of rights
\ncontained   is\texcepted  out  of  the\tgeneral\t powers\t  of
\nGovernment,   and  all\tlaws  contrary\tthereto\t  shall\t  be
\nvoid(11).”  Ex-press  checks  there  are  only\tthree.\t Two
\ntemporary  checks  were operative till 1808 and\t dealt\twith
\ninterference with importation of slaves and the levying of a
\ndirect tax without apportionment among then States according
\nto population.\tPermanent check that now remains is equality
\nof  representation  of States in the Senate.   Some  writers
\nsuggest\t that this, check may also be-removed in two  moves.
\nBy the- first the Article can be, amended and by the  second
\nthe  equality  removed. When this happens it  will  be\tseen
\nwhether\t the  Supreme  Court invokes any  doctrine  such  as
\nachieving. indirectly what cannot be done directly.
\nIt will, of course, be completely out of place in a judgment
\nto discuss the. views of the several writers and so I  shall
\nconfine\t myself to the observation of Orfield to whom  again
\nand again counsel for the State turned either for support or
\ninspiration.   Accord.\ting to him, there  are’\t no  implied
\nlimitations unless the Courts adopt
\n(1)  369 U.S. 186.\n<\/p>\n
(2) Wall.700.\n<\/p>\n
(3)  The American Commonwealth Vol.  I.\n<\/p>\n
(4)  Constitutional law and its Administration (1946).
\n(5)  American Constitutional System (2nd Edn.) p. 43-45.
\n(6)The\tLaw of the American Constitution (7th Imp.)  p.\t 45.
\n(7) Tagore Law Lectures (1924).\n<\/p>\n
(8)constitutionaI Law of United States (1936).
\n(9)  Handbook of American Constitutional Law.
\n(10)The Amending of the Federal Constitution
\n(11)Constitutional  Limitations Vol.  I, 8th Edn.  pp.\t95,\n<\/p>\n
96.
\n875<\/span>
\nthat  view and therefore no limitations on the substance  of
\nthe amendments except the Equality Clause.  His view is that
\nwhen  Congress\tis  in\tthe  amending  process,\t it  is\t not
\nlegislating but exercising a peculiar power bestowed by Art.
\nV.  I  have already shown that under  our  Constitution\t the
\namending   process  is\ta  legislative\tprocess,  the\tonly
\ndifference  being  a special majority and the  existence  of
\nArt.  13(2).  Orfield brushes aside the argument  that\tthis
\nwould destroy the very concept of the Union which, as  Chief
\nJustice.   Marshall had said, was  indestructible.   Orfield
\nfaces boldly the question whether the whole Constitution can
\nbe overthrown by an amendment and answers yes.\tBut he\tsays
\nthat the amendment must not be in violation of the  Equality
\nClause.\t This seems to be a great concession.  He makes this
\nexception but Munro(-‘), who finds it difficult to  conceive
\nof  an unamendable constitution suggests that it  should  be
\npossible  to  begin with that clause and then  the  door  to
\namendments  would  be wide open.  Of  course,  the  Supreme,
\nCourt has not yet faced an amendment of this. character\t and
\nit  has\t not  yet denied jurisdiction to  itself.   In\tthe.
\nUnited States the Constitution works because, as observed by
\nWillis,\t the  Supreme Court is allowed to do “‘the  work  of
\nremolding  the\tConstitution  to keep it  abreast  with\t new
\nconditions  and\t new  times,  and  to  allow  the   agencies
\nexpressly endowed with the; amending process to act only  in
\nextraordinary  emergencies  or\twhen,  the  general  opinion
\ndisagrees  with the  opinion of the Supreme Court.”  In\t our
\ncountry\t amendments,  so far have bean made  only  with\t the
\nobject\tof negativing the Supreme Court,decisions, but\tmore
\nof it later.\n<\/p>\n
I have referred to Orfield although there are greater  names
\nthan  his expounding the same views.  I have refrained\tfrom
\nreferring  to  the  opposite  view which  in  the  words  of
\nWilloughby   has  been\t“strenuously  argued  by   reputable
\nwriters” although Willis discourteously referred to them  in
\nhis book.  My reason for not doing so is plainly this.\t The
\nprocess\t of amendment in the United States is clearly not  a
\nlegislative  process and there is no provision like Art.  13
\n(2) under which “laws” abridging or taking away\t Fundamental
\nRights\tcan be declared void.  Our liberal Constitution\t has
\ngiven  to the Individual all that he should have-freedom  of
\nspeech, of association, of assembly, of religion, of  motion
\nand  locomotion, of property and trade and  profession.\t  In
\naddition  it  has made the State incapable of  abridging  or
\ntaking\taway these rights to the extent guaranteed, and\t has
\nitself\tshown how far the enjoyment of those rights  can  be
\ncurtailed.  It; has given a guaranteed right ‘to the  person
\naffected to move the Court.-, I-le guarantee is worthless if
\nthe rights are capable of being taken away.  This makes\t our
\nConstitution unique and the American precedents cannot be of
\nmuch assistance.\n<\/p>\n
(1)  The Govenment of the United States (5th Edn.) p. 77.\n<\/p>\n
876<\/span><\/p>\n
The  Advocate  General\tof  Madras  relied  upon   Vedel.(1)
\nAccording  to  Vedel,  a  prohibition  in  the\tConstitution
\nagainst its own amendment has a political but not  juridical
\nvalue,\tand from the juridical point of view, a\t declaration
\nof absolute constitutional immutability cannot be  imagined.
\nThe  constituent  power being supreme, the State  cannot  be
\nfettered  even\tby itself.  He notices,\t however,  that\t the
\nConstitution   of  1791\t limited  the  power  of   amendment
\n(revision)  for a certain time and that of  1875  prohibited
\nthe  alteration\t of the Republican form of  Govermment.\t  He
\nthinks\tthat  this hindrance can be removed by\ta  two\tstep
\namendment.   He\t concludes  that the  constituent  of  today
\ncannot\tbind the nation of tomorrow and no Constitution\t can
\nprohibit its amend-\n<\/p>\n
Of  course, the French have experimented with over  a  dozen
\nConstitutions,\tall very much alike, while the British\thave
\nslowly\tchanged\t their entire structure from  a\t monarchical
\nexecutive  to an executive from Parliament and have  reduced
\nthe  power of the House of Lords.  Cambell-Bannerman  former
\nPrime  Minister\t of  England summed  up\t the  difference  to
\nAmbassador M. de Fleurian thus :\n<\/p>\n
\t      “….  Quand nous faisons une Revolution, nous
\n\t      ne ditruisons
\n\t      pas notre maison, nous en conservons avec soin
\n\t      la  facade,  et, derriere cette  facade,\tnous
\n\t      reconstruisons  une  nouvelle  maison.   Vous,
\n\t      Francais, agissez autrement; vous jetez bas le
\n\t      vieil  edifice et vous reconstruisez  la\tmime
\n\t      maison  avec une autre facade et sous  un\t nom
\n\t      different.”  (When we make a Revolution we  do
\n\t      not  destroy an house, we save with  care\t the
\n\t      facade and behind construct a new house.\tYou,
\n\t      Frenchmen,  act differently.  You\t throw\tdown
\n\t      the  old edifice and you reconstruct the\tsame
\n\t      house  with  a different facade  and  under  a
\n\t      different name).\n<\/p><\/blockquote>\n
M.de Fleurian agreed that there was a lot of truth in  it
\n(ll ya du vrai dans cette boutade) (2).\n<\/p>\n
But of course to a Frenchman brought up in a legal system in
\nwhich the Courts do not declare even an ordinary statute  to
\nbe  invalid,  the  idea\t of  the  unconstitutionality  of  a
\nconstitutional\tamendment does not even occur.\t France\t and
\nBelgium\t  have\t created  no   machinery   for\t questioning
\nlegislation and rely on moral and political sanctions.\tEven
\nan  English  lawyer and less so an American lawyer  find  it
\ndifficult to understand how the legality of an amendment  of
\nthe Constitution can ever be questioned.  It
\n(1)  Mannual Elementaire da Droil Constitutional (Sirey) p..\n<\/p>\n
117.
\n(2)  Recounted by M. de Fleuriau in the Preface to J. Magnan
\nde Bornier, L’Empire Britannique, son evolution\t   politique
\net constitutionnelle p.\t 6, quoted in Wheare: The Statute of
\nWestminster and Dominion status, P. 9-10.\n<\/p>\n
877<\/span><\/p>\n
appears\t to them that the procedure for the amendment  being
\ngone through there is no one to question and what emerges is
\nthe  Constitution as valid as the old Constitution and\tjust
\nas  binding.   The matter, however, has to be looked  at  in
\nthis  way.   Where the Constitution is\toverthrown  and\t the
\nCourts lose their position under the old Constitution,\tthey
\nmay  not  be  able  to\tpass on\t the  validity\tof  the\t new
\nConstitution.  This is the, result of a revolution pure\t and
\nsimple.\t Where the new Constitution is not accepted and\t the
\npeople\thave  not acquiesced in the change  and\t the  courts
\nunder the old Constitution function, the courts can  declare
\nthe  new  Constitution to be void.  Perhaps  even  when\t the
\npeople acquiesce and a new Government comes into being,\t the
\ncourts may still declare the new Constitution to be  invalid
\nbut  only  if moved to do so.  It is only  when\t the  courts
\nbegin  to  function  under the new  Constitution  that\tthey
\ncannot consider the vires of that Constitution because\tthen
\nthey  owe their existence to it.  I agree with Or  field  in
\nthese  observations taken from his book.  He, however,\tdoes
\nnot include amendments of the Constitution in these  remarks
\nand  expressly\tomits them.  His opinion seems\tto  indicate
\nthat in the case of amendments courts are completely free to
\nsee  that the prescribed constitutional mode, of  alteration
\nis complied with and the alteration is within the permissive
\nlimits\tto which the Constitution wishes the  amendments  to
\ngo.   This is true of all amendments but particularly of  an
\namendment  seeking to repeal the courts’ decision and  being
\nsmall  in dimension, leaves the courts free to consider\t its
\nvalidity.   The\t courts derive the power from  the  existing
\nterms  of  the Constitution and the amendment  fails  if  it
\nseeks to overbear some existing restriction on legislation.
\nWhat  I have said does not mean that Fundamental Rights\t are
\nnot  subject  to  change  or  modification.   In  the\tmost
\ninalienable  of\t such  rights a\t distinction  must  be\tmade
\nbetween\t possession of a right and its exercise.  The  first
\nis fixed and the latter controlled by justice and necessity.
\nTake for example Art. 21 :\n<\/p>\n
\t      “No  person shall be deprived of his  life  or
\n\t      personal liberty except according to procedure
\n\t      established by law”.\n<\/p><\/blockquote>\n
Of  all\t the rights, the right to one’s life,  is  the\tmost
\nvaluable.   This  article of  the  Constitution,  therefore,
\nmakes. the right fundamental.  But the inalienable right  is
\ncurtailed by a murderer’s conduct as viewed under law.\t The
\ndeprivation, when it takes place, is not of the right  which
\nwas  immutable but of the continued exercise of\t the  right.
\nTake  a Directive Principle which is not enforceable at\t law
\nbut where the same result is reached.  The right to  employ-
\nment is a directive principle.\tSome countries even view  it
\nas  a  Fundamental Right.  The exercise,  however,  of\tthat
\nright  must  depend upon the capacity of Society  to  afford
\nemployment to all
\n878<\/span>
\nand sundry.  The possession of this right cannot be confused
\nwith  its exercise.  One right here is positive and  can  be
\nenforced  although its, exercise can be curtailed  or  taken
\naway, the other is a right which, the State must try to give
\nbut  which cannot be enforced.\tThe Constitution  permits  a
\ncurtailment  of\t the  exercise of most\tof  the\t Fundamental
\nRights by stating the limits of that curtailment.  But\tthis
\npower  does  not permit the, State itself, to take  away  or
\nabridge the right beyond the limits set by the Constitution.
\nIt  must  also\tbe  remembered\tthat  the  rights  of\tone%
\nindividual  are\t often\topposed by  the\t rights\t of  another
\nindividual   and   thus\t  also\t become\t  limitative.\t The
\nConstitution in this way” permits the Fundamental Rights  to
\nbe controlled in their exercise but prohibits their erasure.
\nIt  is\targued that such approach makes Society\t static\t and
\nrobs the State of its sovereignty.  It is submitted that  it
\nleaves\trevolution  as\tthe holy alternative  if  change  is
\nnecessary.   This is not  right.  The whole Constitution  is
\nopen  to amendment only two dozen articles are\toutside\t the
\nreach  of Art. 368.  That too because the  Constitution\t has
\nmade  them  fundamental.   What is being  suggested  by\t the
\ncounsel\t or  the State is itself a  revolution,\t because  as
\nthings are that method of,amendment is illegal.\t There is  a
\nlegal method.  Parliament must act in a different way  reach
\nthe Fundamental Rights.\t The State must reproduce the  power
\nwhich  it has chosen to put under a restraint.\tJust as\t the
\nFrench\tor the Japanese,etc. cannot change the\tarticles  of
\ntheir  Constitution which are, made free, from the power  of
\namendment and’ must call a convention or a constituent body,
\nso   also  we’\tIndia  cannot  abridge\tor  take  away\t the
\nFundamental   Rights  by  the  ordinary\t amending   process.
\nParliament   must   amend  Art.\t 369  to   convoke   another
\nConstituent  Assembly pass a law under item 97 of the  First
\nList of Schedule VII to call a Constituent Assembly and then
\nthat  assembly\tmay  be able to abridge\t or  take  away\t the
\nFundamental Rights if desired.\tIt cannot be done otherwise.
\nThe  majority in Sajjan Singh’s case(1)\t suggested  bringing
\nArt.  32  under\t the Proviso to improve\t protection  to\t the
\nFundamental  Rights.  Article 32 does not stand in  need  of
\nthis Protection.  To abridge or take away that article\t(and
\nthe  same  is  true  of\t all  other  Fundamental  Rights)  a
\nconstituent  body  and not a constituted body  is  required.
\nParliament  today  is  a constituted  body  with  powers  of
\nlegislation which include amendments of the Constitution  by
\na  special majority but only so far as Art. 13\t(2)  allows.
\nTo bring into existence a constituent body is not impossible
\nas, I had ventured to suggest during the hearing and which I
\nhave now more fully explained here.It may be said that. this
\nis  not\t necessary  because  Art.  368\tcan  be\t amended  by
\nParliament  to confer on itself constituent powers over\t the
\nFundamental  Rights.  This would he wrong and against-\tArt.
\n13 (2).\t Parliament cannot. increase its
\n(1) [1965] 1 S.C.R. 933.\n<\/p>\n
879<\/span><\/p>\n
powers\tin this way and do indirectly which it\tis  intended
\nnot   to  de.  directly.   The\tState  does  not  lose\t its
\nsovereignty.  but as it has chosen. to create,\tself-imposed
\nrestrictions through one constituent body those restrictions
\ncannot\tbe ignored by a constituted body which\tmakes  laws.
\nLaws  so  made can affect those parts  of  the\tConstitution
\nwhich are outside the restriction in Art. 13 (2) but any’law
\n(legislative  or  mendatory)  passed by\t such  a  body\tmust
\nconform\t to  that article.  To be able to abridge,  or\ttake
\naway  the Fundamental Rights which give so  many  assurances
\nand  guarantees\t a  fresh  Constituent\tAssembly  must\t be,
\nconvoked.   Without  such  action  the\tprotection  of\t the
\nFundamental Rights must remain immutable and any attempt  to
\nabridge or take them away in any other way must be  regarded
\nas revolutionary.\n<\/p>\n
I  shall  now  consider the amendments\tof  the\t Fundamental
\nRights\tmade since the adoption of the Constitution, with  a
\nview to illustrating my meaning.  Part III is divided  under
\ndifferent  headings.   They are (a), General  (b)  Right  to
\nEqility (c) Right to Freedom (d) Right against\texploitation\n<\/p>\n
(e)   Right  to\t Freedom  of  Religion\t(f)   Cultural\t and
\nEducational  Rights  (g)  Right to  Property  (h)  Right  to
\nConstitutional Remedies.  I shall first deal with amendments
\nof topics other than the topic (g)- Right to Property.\t‘The
\narticles  which are amended in the past are Art 15 & and  19
\nby the 1st Amendment (18th June 1951) and Art, 16 by the 7th
\nAmendment (19th October 1956).\tThe 16th Amendment added the
\nwords  “the  sovereignty  and integrity\t of  India  to\tsome
\nclauses.   As  that  does  not\tabridge\t or  take  away\t any
\nFundamental  Right, I shall not refer to the 16th  Amendment
\nhereafter.   That Amendment was valid.\tThe changes so\tmade
\nmay   be  summarized.\tIn  Art.  15,  which   deals   with.
\nprohibition  or\t discrimination on the ground  of  religion,
\nrace,  caste, sex or place of birth, clause (3) allowed\t the
\nState  to make special provision for women and children.   A
\nnew clause was added which reads:\n<\/p>\n
\t      “(4) Nothing in this article or in clause\t (2)
\n\t      of  article  29 shall prevent the\t State\tfrom
\n\t      making   any   special   provision   for\t the
\n\t      advancement of any socially and  educationally
\n\t      backward\tclasses\t of  citizens  or  for\t the
\n\t      Scheduled Castes and the Scheduled Tribes”.\n<\/p><\/blockquote>\n
It  is argued by counsel for the State that by\tlifting\t the
\nban  to\t make  special- provision for  backward\t classes  of
\ncitizens,   there  is  discrimination  against\tthe   higher
\nclasses.   This\t is the view which classes in  a  privileged
\nposition who had discriminated against the backward ,classes
\nfor centuries, might indeed take.  But I cannot accept\tthis
\ncontention.   The Constitution is intended to secure to\t all
\ncitizens  “Justice,  social,  economic\tand  political\t and
\nEquality of status and opportunity” (vide the Preamble)\t and
\nthe Directive Principles include Art. 38 which provides:\n<\/p>\n
880<\/span><\/p>\n
.lm15
\n“38  The  State shall strive to promote the welfare  of\t the
\npeople by securing and protecting as effectively as it may a
\nsocial\t order\tin  which  justice,  social,  economic\t and
\npolitical, shall inform all the institutions of the national
\nlife.”\n<\/p>\n
To   remove  the  effect  of  centuries\t of   discriminatory
\ntreatment  and to raise the down-trodden to an equal  status
\ncannot\tbe regarded ,as discriminatory against any one.\t  It
\nis  no doubt true that in State of Madras  v..\tChampakam(1)
\nthe  reservation  of seats for Backward\t Classes,  Scheduled
\nCastes\tand  Tribes in public educational  institutions\t was
\nconsidered  invalid.   Articles 16(4) and  340\thad  already
\nprovided  for special treatment for these backward  ,classes
\nand Art. 46 had provided that the State shall promote,\twith
\nspecial care their educational and economic interests.\tWith
\nall  ,due  respects the question  of  discrimination  hardly
\narose  because\tin view of these provisions  any  reasonable
\nattempt\t to raise the status of the backward  classes  could
\nhave been upheld on the principle of classification.  In any
\nevent,\tthe  inclusion of this clause to Art.  16  does\t not
\nabridge or take away any one’s Fundamental Rights unless the
\nview be taken that the backward classes for ever must remain
\nbackward.\n<\/p>\n
By  the First Amendment the second and the sixth clauses  of
\nArt.  19  were\talso  amended.\tThe  original  cl.  (2)\t was
\nsubstituted by a new clause and certain words were added  in
\nclause\t(6).   The  changes may be  seen  by  comparing\t the
\nunamended and the amended clauses side by side :
\n\t “19( 1) All citizens shall have the right-\n<\/p>\n
(a)  to freedom of speech and expression;\n<\/p>\n
(2) (Before  Amendment)\t       (After Amendment)
\nNothing\t in  sub-clause (a) of clause (1), Nothing  in\tsub-
\nclause\t(a) of clause (1)shall affect the operation  of\t any
\nexisting  law  in so far as it relates to,  or\tprevent\t the
\nState  from  making  any law  relating\tto  libel,  slander,
\ndefamation,  contempt of Court or any matter  which  offends
\nagainst decency or morality or which undermines the security
\nor tends to overthrow, the State. shall affect the operation
\nof  any existing law, or prevent the State from\t making\t any
\nlaw.  in so far as such law imposes reasonable\trestrictions
\non  the\t exercise of the right conferred by  the  said\tsub-
\nclause\tin  the\t interest of the…\t   security  of\t the
\nState, friendly relations with foreign States, public order,
\ndecency\t or morality, or in relation to contempt  of  court,
\ndefamation or incitement to an offence,
\nThe amendment was necessary because in Romesh Thapar v State
\nof  Madras(2)  it  was\theld  that  disturbances  of  public
\ntranquallity did not come within the expression\t “undermines
\nthe secu-\n<\/p>\n
(1)[1951]S.C.R.525.\n<\/p>\n
(2) [1950] S.C.R. 594.\n<\/p>\n
881<\/span><\/p>\n
rity of the State”.  Later the Supreme Court itself observed
\nin the State of Bihar v. Shailabala Devi<\/a>(1) that this  Court
\ndid  not intend to lay down that an offence  against  public
\norder  could  not in any case come within  that\t expression.
\nThe changes related to (a) “friendly relations with  foreign
\nStates”,  (b)  “public\torder” and  (c)\t “incitement  to  an
\noffence”  and  the words .”undermines the  security  of\t the
\nState  or tends to, overthrow the State”. were\treplaced  by
\nthe  words “in the interests of the security of the  State”.
\nThis change could be made in view of the existing provisions
\nof  the\t clause as the later decision of  this\tCourt  above
\ncited  ‘clearly show that “public order” and “incitement  to
\noffence”  were\talready\t comprehended.\t The  amendment\t was
\nwithin the permissible limits as it did not abridge or\ttake
\naway any Fundamental Right.\n<\/p>\n
The  Amending Act passed by Parliament also included a\tsub-
\nsection which read
\n\t      “(2)  No\tlaw  in force in  the  territory  of
\n\t      India, immediately before the commencement  of
\n\t      the Constitution which is consistent with\t the
\n\t      provisions  of article 19 of the\tConstitution
\n\t      as amended by sub-section (1) of this  section
\n\t      shall  be deemed to be void, or ever  to\thave
\n\t      become  void, on the ground only that being  a
\n\t      law  which  takes away or abridges  the  right
\n\t      conferred by sub-clause (a) of clause ( I ) of
\n\t      the said article, its operation was not  saved
\n\t      by  clause (2) of that article  as  originally
\n\t      enacted.\n<\/p>\n
\t      Explanation.-In\t this\t sub-section,\t the
\n\t      expression “law in force” has the same meaning
\n\t      as  in  clause  (1) of article  1\t 3  of\tthis
\n\t      Constitution”.\n<\/p>\n
This sub-section was not included in the Constitution.\tThat
\ndevice\twas  followed in respect of certain  State  statutes
\ndealing\t with  property rights by including them  in  a\t now
\nSchedule.  It did not then occur to Parliament that the laws
\ncould be placed. under a special umbrella of  constitutional
\nprotection.   Perhaps  it  was\tnot  considered’   necessary
\nbecause\t Art.  19(2) was retrospectively changed,  and\tthe,
\nenactment  of this sub-section was an  ordinary\t legislative
\naction.\t If the amendment had failed, the second  subsection
\nof section 3 would not have availed at all.\n<\/p>\n
Tuming\tnow to clause (6), we may read the original and\t the
\namended clause side by side
\n“19(1) All citizens shall have the right=\n<\/p>\n
(g)  to\t practise  any\tprofession,  or\t to  carry  on\t any
\noccupation, trade or business.\n<\/p>\n
(1) [1952] S.C.R. 654.\n<\/p>\n
882<\/span><\/p>\n
(6)  (Before, Amendment)
\nNothing,  in sub-clause (g) of the said clause shall  affect
\nthe  operation of any existing law in so far as it  imposes,
\nor  prevent the State from making any law imposing,  in\t the
\ninterests of the general public, reasonable restrictions  on
\nthe exercise of the right conferred by the said\t sub-clause,
\nand,  in  particular nothing in the said  sub-clause,  shall
\naffect\tthe  operation of any existing law in so far  as  it
\nprescribes  or\tempowers  any  authority  to  prescribe,  or
\nprevent\t the  State  from  making  any\tlaw  prescribing  or
\nempowering  any authority to prescribe, the professional  or
\ntechnical   qualifications  necessary  for  practising\t any
\nprofession or carrying on any occupation, trade or business.
\n(After Amendment)
\nNothing\t in sub-clause (g) of the said clause  shall  affect
\nthe  operation of any existing law in so far as it  imposes,
\nor  prevent the State from making any law imposing,  in\t the
\ninterests of the general public, reasonable restrictions  on
\nthe exercise of the right conferred by the said\t sub-clause,
\nand,  in particular, nothing in the said  sub-clause,  shall
\naffect\tthe  operation of any existing law in so far  as  it
\nrelates\t to,  or  prevent  the State  from  making  any\t law
\nrelating to,-\n<\/p>\n
(i)the\tprofessional or technical  qualifications  necessary
\nfor practising any profession or carrying on any occupation,
\ntrade or business, or\n<\/p>\n
(ii)the carrying on by the State, or a corporation owned  or
\ncontrolled by the State, of any trade, business, industry or
\nservice,  whether to the exclusion, complete or partial,  of
\ncitizens or otherwise,
\nThe  first  change  is in the verbiage and  is\tnot  one  of
\nsubstance.   It -only removes some unnecessary\twords.\t The
\nnew sub-clause is innocuous except where it provides for the
\nexclusion  of  citizens.   It  enables\tnationalisation\t  of
\nindustries and trade.  Sub-clause (g) (to the generality  of
\nwhich  the  original  clause (6)  created  some\t exceptions)
\nallowed the State to make laws imposing, in the interests of
\nthe general public, reasonable restrictions on the  exercise
\nof  the right conferred by the sub-clause.  A  law  creating
\nrestrictions   can,   of  course,  be\tmade   outside\t the
\nConstitution  or inside it.  If it was considered that\tthis
\nright  in  the state was required in the  interests  of\t the
\ngeneral\t public, then the exercise of the right to  practise
\nprofession  or to carry on an occupation, trade or  business
\ncould  be  suitably  curtailed.\t  It  cannot  be  said\tthat
\nnationalisation\t is  never in the interest  of\tthe  general
\npublic.\t  This amendment was thus within the  provision\t for
\nrestricting the exercise of the Fundamental Right in sub-cl.\n<\/p>\n
(g) and was perfectly in order.\n<\/p>\n
The  Seventh Amendment introduced certain words in  Art.  16
\n(3).  ‘no clauses may be, compared:\n<\/p>\n
” 16.\n<\/p>\n
(3)  (Before Amendment)
\nNothing\t in  this  article shall  prevent   Parliament\tfrom
\nmaking any law prescribing, in regard to a class or  classes
\nof  employment or appointment to an office under  any  State
\nspecified  in  the  First Schedule or  any  local  or  other
\nauthority  within  its\tterritory,  any\t requirement  as  to
\nresidence  within  the ‘State prior to\tsuch  employment  or
\nappointment.\n<\/p>\n
 (After\t Amendment)
\nNothing\t in  this   article shall  prevent  Parliament\tfrom
\nmaking any law prescribing, in regard to a class or  classes
\nof  employment\tor  appointment\t to  an\t office\t under\t the
\nGovernment  of,\t or any local authority within, a  State  or
\nUnion territory, any requirement as to residence within that
\nState  or  Union  territory  prior  to\tsuch  employment  or
\nappointment.”\n<\/p>\n
883<\/span><\/p>\n
The  change,  is necessary to include a reference  to  Union
\nterritory.   It\t has no breaking upon  Fundamental  Rights.,
\nand,  neither abridges nor, takes away any of them.  In\t the
\nresult\tnone  of the, amendments, of the article.  in  parts
\nother  than that dealing with Right to property is,  outside
\nthe  amending  process because Art.  13(2) is  in  no manner
\nbreached.\n<\/p>\n
This  brings me, to the main question in this case,,  It  is
\nwhether\t the  amendments of the part Right  to\tProperty  in
\nPart, III of the Constitution were legally made or not.\t  To
\nunderstand  this  part\tof the case I must  first  begin  by
\ndiscussing  what  property  rights mean and  how  they\twere
\nsafeguarded by the Constitution as it was originally framed.
\n“Right to Property”in Part III was originally the subject of
\none  article,  namely,\tArt.  31.   Today  there  are  three
\narticles 3 1, 3 1 A and 31-B and the Ninth Schedule.   The
\noriginal thirty-first article read:\n<\/p>\n
“31 Compulsory acquisition of property.\n<\/p>\n
(1)  Nov  person shall be deprived of his property  save  by
\nauthority of law.\n<\/p>\n
(2)  ‘No  property,  movable  or  immovable,  including\t any
\ninterest  in  or in any company owning,\t any  commercial  or
\nindustrial  undertaking,  shall be taken  possession  of  or
\nacquired  for public purposes under any law authorising\t the
\ntaking\tof such possession or such acquisition,\t unless\t the
\nlaw  provides  for  compensation  for  the  property   taken
\npossession of or acquired and either fixes the amount of the
\ncompensation,  or specifies the principle on which, and\t the
\nmanner. in which, the compensation is, to be determined\t and
\ngiven.\n<\/p>\n
No  such  law as is referred to in clause. (2) made  by\t the
\nLegislature of the State shall have effect unless such\tlaw,
\nhaving been reserved for the consideration of the President,
\nhas received his assent.\n<\/p>\n
(4)  If\t any  Bill  pending  at\t the  commencement  of\tthis
\nConstitution  in the Legislature of a State has,  ‘after  it
\nhas  been passed by such Legislature, been reserved for\t the
\nconsideration of the President and has received his  assent,
\nthen, notwithstanding anything in this constitution, the law
\nso assented to shall not be Called in question in any, court
\non  the ground that it contravenes the provisions of  clause
\n(2).\n<\/p>\n
\t      (5) Nothing in clause(2) shall affect-\n<\/p>\n
\t      (a)  the provisions of any existing law  other
\n\t      than a  law to which the provisions of  clause
\n\t      (6) apply,.or
\n\t      884<\/span>\n<\/p>\n
\t      (b)   the\t provisions  of any  law  which\t the
\n\t      State may hereafter make-\n<\/p>\n
\t      (i)   for the ,purpose of imposing or  levying
\n\t      any tax or penalty, or\n<\/p>\n
\t      (ii)  for\t the promotion of public  health  or
\n\t      the prevention of danger to life or  property,
\n\t      or\n<\/p>\n
\t      (iii) in\tpursuance of any  agreement  entered
\n\t      into between the Government of the Dominion of
\n\t      India  or\t the  Government of  India  and\t the
\n\t      Government   of  .  any  other   country,\t  or
\n\t      otherwise,  with respect to property  declared
\n\t      by law to be evacuee property.\n<\/p>\n
\t      (6)   Any\t law of the State enacted  not\tmore
\n\t      than  eighteen months before the\tcommencement
\n\t      of  this Constitution may within three  months
\n\t      from  such  commencement be submitted  to\t the
\n\t      President\t   for\t his   certification;\t and
\n\t      thereupon,   if\tthe  President\t by   public
\n\t      notification  so\tcertifies, it shall  not  be
\n\t      called in question in any court on the  ground
\n\t      that  it contravenes the provisions of  clause
\n\t      (2)  of  this article or has  contravened\t the
\n\t      provisions  of sub-section (2) of section\t 299
\n\t      of the Government of India, Act, 1935″.\n<\/p>\n
\t      The provisions of this article are intended to
\n\t      be read with Art. 19(1) (f) which reads
\n\t      “19(1) All citizens shall have the right-\n<\/p>\n
\t      (f)   to\tacquire,  hold\t  and\tdispose\t  of
\n\t      property”.\n<\/p>\n
Article\t 19 1 ) (f ) ‘is subject to clause (6) which I\thave
\nalready\t set  out elsewhere and considered.   Ownership\t and
\nexchange  of  property are thus recognised by  the  article.
\nThe word “property” is is not defined and I shall  presently
\nconsider  what may be included in ‘property’.  Whatever\t the
\nnature of property, it is clear that by the first clause  of
\nArt.  3\t 1  the right to property may be  taken\t away  under
\nauthority  of law.  This was subject to one condition  under
\nthe original Art. 3 1, namely, that the law must either\t fix
\nthe   compensation  for\t the  deprivation  or  specify\t the
\nprinciples on which and the manner in which compensation was
\nto,  be\t determined and given.\tThis was the  heart  of\t the
\ninstitution  ‘of property as understood by  the\t Constituent
\nAssembly.  The rest of the article only gave  constitutional
\nsupport against the second clause, to legislation already on
\nfoot  in  the States.  This created a Fundamental  Right  in
\nproperty.  The question may now be
\n885,
\nasked,:why-  was  it necessary to make\tsuch  a\t Fundamental
\nRight at all ?\n<\/p>\n
There  is no natural right in property and as Burke said  in
\nhis Reflections, Government is not made in virtue of natural
\nrights, which may and do exist in total independence of\t it.
\nNatural\t rights\t embrace  activity  outside  the  status  of
\ncitizen.  Legal rights are required for free existence as  a
\nsocial\tbeing  and  the State undertakes  to  protect  them.
\nFundamental Rights are those rights which the State enforces
\nagainst\t  itself.   Looking  at\t the  matter   briefly\t but
\nhistorically, it may be said that the Greeks were not  aware
\nof  these distinctions for as Gierke(1) points out they\t did
\nnot  distinguish  between  personality\tas  a  citizen\t and
\npersonality  as a human being.\tFor them the Individual\t was
\nmerged\tin the citizen and the citizen in the State.   There
\nwas personal liberty and private law but there was no  sharp
\ndivision  between the different kinds of laws.\t The  Romans
\nevolved this gradually not when the Roman Republic  existed,
\nbut when the notion of a Fiscus developed in the Empire\t And
\nthe  legal personality of the Individual was separated\tfrom
\nhis  membership\t of the State.\tIt was then that  the  State
\nbegan  to  recognize  the rights of the\t Individual  in\t his
\ndealings with the State.  It was Cicero(2) who was the first
\nto declare that the’ primary duty of the Governor of a State
\nwas  to secure to each individual in the possession  of\t his
\nproperty.  Here we may see a recognition of the ownership of
\nproperty as a Fundamental Right.  This idea wasso  engrained
\nin early social philosophy that we find Locke opining in his
\nCivil Government’ (Ch. 7) that “Government has no other\t end
\nbut the preservation of property”.  The concepts of liberty,
\nequality and religious freedom were well-known.\t To them was
\nadded  the  concept  of property  rights.   Later  the\tlist
\nincluded   “equalitas,\t libertas   ius\t  securitatis,\t ius
\ndefensionis and ius puniendi.  The concept of property right
\ngained further support from Bentham and Spencer and Kant and
\nHegel(3).   The\t term  property\t in  its  pristine   meaning
\nembraced  only\tland  but it soon came to  mean\t much  more.
\nAccording to Noyes(4)_
\n\t      “Property is any protected right or bundle  of
\n\t      rights  (interest\t or thing) with\t direct,  or
\n\t      indirect\tregard to any external object  (i.e.
\n\t      other  than  the\tperson\thimself)  which\t  is
\n\t      material\tor quasi material (i.e. a  protected
\n\t      ,process)\t  and  which  the  then\t and   there
\n\t      Organisation  of Society permits to be  either
\n\t      private  or public, which is connoted  by\t the
\n\t      legal  concepts of occupying,  possessing\t or,
\n\t      using”.\n<\/p>\n
(1)  Das Doutscheg Genossenschaftrecht (III, 10).
\n(2)  De Off. (The Offices) It Ch.  XXI (Everyman) p. 105.
\n(3)  W. Friedman:Legal Theory (4th Edn.) see pp. 373-376.
\n(4)  The Institution of Property (1936) p. 436.
\nL3Sup CI\/67-11
\n886<\/span>
\nThe right is enforced by excluding entry or interference  by
\na per. son not legally entitled.  The position of the  State
\nvis a vis the individual is the subject of Arts. 19 and\t 31,
\n31-A and 31-B.\n<\/p>\n
Now in the enjoyment, the ultimate right may be an  interest
\nwhich  is  connected  to  the object  through  a  series  of
\nintermediaries\tin which each ‘holder’ from the last to\t the
\nfirst  ‘holds  of’ ‘the holder’ before him.  Time  was\twhen
\nthere  was  a  lot of ‘free property’  which  was  open\t for
\nappropriation.\t  As   Noyes(‘)\t puts  it,   “all   physical
\nmanifestations\tcapable\t of being  detected,  localised\t and
\nidentified”  can be the objects of property.  One  exception
\nnow made by all civilized nations is that humanbeings are no
\nlonger\tappropriable.\tIf any free property  was  available
\nthen  it could be brought into possession and  ownership  by
\nmere  taking.  It has been very aptly said that all  private
\nproperty  is  a\t system\t of  monopolies\t and  the  right  to
\nmonopolise  lies  at the foundation of\tthe  institution  of
\nproperty.  Pound(-) in classifying right in rem puts private
\nproperty along with personal integrity [right against injury
\nto  life,  body\t and health  (bodily  or  mental),  personal
\nliberty\t (free motion and locomotion)], Society and  control
\nof  one’s  family  and dependents.   An\t extremely  valuable
\ndefinition of ownership is to be found in the Restatement of
\nthe Law of Property where it is said :\n<\/p>\n
“It  is\t the totality of rights as to any  specific  objects
\nwhich  are  accorded by law, at any time  and  place,  after
\ndeducting social reservations”.\n<\/p>\n
This is the core from which some rights may be detached\t but
\nto which they must return when liberated.\n<\/p>\n
The right to property in its primordial meaning involved the
\nacquisition, of ‘a free object by -possession and conversion
\nof this possession into ownership by the protection of State
\nor the ability to exclude interference.\t As the notion of  a
\nState grew, the right of property was strong or we according
\nto  the\t force\tof  political  opinion\tbacking\t it  or\t the
\nlegislative  support of the State.  The\t English  considered
\nthe  right  as the, foundation\tof  society.   Blackstone(&)
\nexplained it on religious; and social ground% claiming
\nuniversality  for it and called it the right of the  English
\npeople.\t  William’   Paley(4),although\t he   thought\t the
\ninstitution paradoxical and unnatural  found   it  full\t  of
\nadvantage and Mackintosh in his famous diatribe against\t the
\nFrench\tRevolution  described  it  as  the   “sheet-anchorof
\nsociety”.   This in”stitution’ appeared in the Magna  Carta,
\nin  the American Declaration of Independence and the  French
\nDeclaration of Rights of Man.  Later we find it in many
\n(1)  The Institution of Property (1936)p. 438.
\n(2)  Readings; p. 420.\n<\/p>\n
3) Commentaries.\n<\/p>\n
(4) Moral Philosophy.\n<\/p>\n
\t\t\t    887<\/span><\/p>\n
Constitutions described as Fundamental, general and  guaran-
\nteed(1).\n<\/p>\n
Our Constitution accepted the theory that Right of  Property
\nis  a fundamental right.  In my opinion it was an  error  to
\nplace it in that category.  Like the original Art. 16 of the
\nDraft  Bill  of the Constitution which\tassured\t freedom  of
\ntrade,\tcommerce  and intercourse within  the  territory  of
\nIndia  as  a fundamental right but was\tlater  removed,\t the
\nright  of  property should have been placed in\ta  different
\nchapter.   Of all the fundamental rights it is the  weakest.
\nEven  in the most democratic of Constitutions, (namely,\t the
\nWest German Constitution of 1949) there was a provision that
\nlands, minerals and means of production might be  socialised
\nor  subjected  to  control.  Art.  31,\tif  it\tcontemplated
\nsocialization  in  the\tsame way in India  should  not\thave
\ninsisted  so plainly upon payment of compensation.   Several
\nspeakers warned Pandit Nehru and others of the danger of the
\nsecond clause of Art. 31, but it seems that the\t Constituent
\nAssembly was quite content that under it the Judiciary would
\nhave no say in the matter of compensation.  Perhaps the dead
\nhand of s. 299 of the Constitution Act of 1935 was upon\t the
\nConstituent  Assembly.\tIgnored were the resolutions  passed
\nby  the National Planning Committee of the  Congress  (1941)
\nwhich\thad   advocated\t the  co-operative   principle\t for
\nexploitation of land, the Resolution of 1947 that land\twith
\nits  mineral resources and all other means of production  as
\nwell  as  distribution and exchange must belong\t to  and  be
\nregulated  by  the  Community, and the\twarning\t of  Mahatma
\nGandhi that if compensation had to be paid we would have  to
\nrob  Peter to pay Paul(2) In the Constituent  Assembly,\t the
\nCongress (Which wielded the majority then, as it does today)
\nwas  satisfied\twith  the Reprt\t of  the  Congress  Agrarian
\nReforms\t Committee 1949 which declared itself in  favour  of
\nthe elimination of all intermediaries between the State\t and
\nthe tiller and imposition of prohibition against subletting.
\nThe  Abolition Bills were the result.  Obviously the  Sardar
\nPatel Committee on Fundamental Rights was not prepared to go
\nfar.   In  the debates that followed,  many  amendments\t and
\nsuggestions to alter the draft article protecting  property,
\nfailed.\t  The  attitude was summed up by Sardar\t Patel.\t  He
\nconceded that land would be required for public purposes but
\nhopefully  added : “not only land but so many  other  things
\nmay  have to be acquired.  And the State will  acquire\tthem
\nafter paying compensation and not expropriate thenm”. (3)
\n(1)  Under the Constitution of Norway the rights (Odels\t and
\nAsaete rights) cannot be abolished but if the State requires
\nthe owner must surrender the property and he is compensated.
\n(2)  Gandhi  :\tConstituent Assembly Debates  Vol.   IX\t pp.
\n1204-06.\n<\/p>\n
(3)  Patel : Constituent Assembly Debates Vol.\tI p. 517.\n<\/p>\n
888<\/span><\/p>\n
What  was then the theory about Right- to Property  accepted
\nby  the Constituent Assembly ? Again I can only describe  it
\nhistorically.  Grotius(1) had treated the right as  acquired
\nright  (ius  quaesitum) and ownership (dominium)  as  either
\nserving\t individual  interests (vulgare) or for\t the  public
\ngood (eminens).\t According to him, the acquired right had to
\ngive  way to eminent domain (ex vi auper-eminentis  dominii)
\nbut  there must be public interest (publicautilitas) and  if
\npossible  compensation.\t  In– the  social  contract  theory
\nalso  .\t the contract included protection of  property\twith
\nrecognition  of the power of the ruler to act in the  public
\ninterest  and emergency.  Our constitutional theory  treated
\nproperty rights as inviolable except through law for  public
\ngood  and on payment of compensation.  Our Constitution\t saw
\nthe  matter  in\t the  way  of  Grotius\tbut  overlooked\t the
\npossibility that just compensation may. not be possible.  It
\nfollows\t almost\t literally the German jurist  Ulrich  Zasius
\n(except\t in one respect) : Princeps non potest auferee\tmihi
\nrem mean sive iure gentium, sive civile sit facta mea.
\nAll  would,  have  been well if\t the  Courts  had  construed
\nArticle 31 differently.\t However, the decisions of the\tHigh
\nCourts\tand the Supreme Court, interpreting  and  expounding
\nthis  philosophy took a different view of  compensation.   I
\nshall  refer  only to some of them., First  the\t Patna\tHigh
\nCourt  in.  Kameshwar v. Bihar(2) applied Art. 14 to  strike
\ndown   the   Reforms  Act  in  Bihar  holding\tit   to\t  be
\ndiscriminatory.\t This need not have occasioned an  amendment
\nbecause\t the  matter could have been righted, as  indeed  it
\nwag,  by,an appeal to the Supreme Court [see State of  Bihar
\nv.  Kameshwar(3)].The Constitution  (First  Amendment)\tAct,
\n1951  followed.\t It left Art. 31 intact but added two  fresh
\narticles, Arts.\t 31-A and 31-B which are respectively headed
\n“saving\t of laws providing for acquisition of estates  etc.”
\nand “Validation of certain Acts and Regulations” and added a
\nschedule  (Ninth) to be read with Art 31-B  naming  thirteen
\nActs  of  the State Legislatures.  Article 31-A\t was  deemed
\nalways\tto  have  been\tinserted and  Art.  31-B  wiped\t out
\nretrospectively\t all  decisions\t of the\t courts\t which\thad.
\ndeclared any of the scheduled Acts to be invalid.  The texts
\nof these new articles may now be seen:\n<\/p>\n
\t      “31A.    Saving\tof   laws   providing\t for
\n\t      acquisition of estates, etc.-\n<\/p>\n
\t      (1)  Notwithstanding  anything  in   foregoing
\n\t      provisions of this Part, no law providing\t for
\n\t      the acquisition by the State of any estate  or
\n\t      of any rights therein or for
\n\t      (1) Grotius : De jure Belli ac Pacis. 11 c.  2
\n\t      2 (5)6. 1 c. I  6 and II c.\n<\/p>\n
\t      14    7 and 8.\n\t      (2)   A.L.R. 1951 Patna 91.\n\t      (3)   [1952] S.C.R. 889.\n\t      889<\/span>\n<\/pre>\n
\t      the extinguishment or modification of any such
\n\t      rights  shall  be deemed to be  void  on\tthe:\n<\/p>\n
\t      ground  that it is consistent with,  or  takes
\n\t      away  or abridges any of the rights  conferred
\n\t      by, any provisions of this Part
\n\t      Provided that where such law is a law made  by
\n\t      the Legislature of a State, the provisions  of
\n\t      this  article shall not apply  thereto  unless
\n\t      such   law,  having  been\t reserved  for\t the
\n\t      consideration  of the President, has  received
\n\t      his assent.\n<\/p>\n
\t      (2)   In this article,\n<\/p>\n
\t      (a)   the\t  expression  “estate”\t shall,\t  in
\n\t      relation\tto  any local area,  have  the\tsame
\n\t      meaning  as  that\t expression  or\t its   local
\n\t      equivalent has in the existing law relating to
\n\t      land tenures in force in that area, and  shall
\n\t      also include any jagir, inam or muafi or other
\n\t      similar grant;\n<\/p>\n
\t      (b)   the expression “right” in relation to an
\n\t      estate shall include ‘any rights vesting in  a
\n\t      proprietor,  sub-proprietor, tenure-holder  or
\n\t      other   intermediary   and   any\t rights\t  or
\n\t      privileges in respect of land revenue.”\n<\/p>\n
\t      “31-B.\tValidation  of\tcertain\t  Acts\t and
\n\t      Regulations.\n<\/p>\n
\t      Without  prejudice  to the generality  of\t the
\n\t      provisions  contained in article 31A, none  of
\n\t      the  Acts\t and Regulations  specified  in\t the
\n\t      Ninth  Schedule  nor  any\t of  the  provisions
\n\t      thereof shall be deemed to be void, or ever to
\n\t      have become void, on the ground that such Act,
\n\t      Regulation or provision is inconsistent  with,
\n\t      or  takes away or abridges any of\t the  rights
\n\t      conferred by, any provision of this Part,\t and
\n\t      notwithstanding any judgment, decree or  order
\n\t      of  any  court or tribunal to  the,  contrary,
\n\t      each  of the said Acts and Regulations  shall,
\n\t      subject\tto-the\t power\tof   any   competent
\n\t      Legislature to repeat or amend it, continue in
\n\t      force’.”\n<\/p>\n
Article 31-A has been a Protean article.  It has changed its
\nface  many times.  Article 31-B has remained the  same\ttill
\ntoday  but the Ninth Schedule has grown..  The\tConstitution
\n(Fourth\t Amendment)  Act,  1955,  took\tthe  number  of\t the
\nScheduled  statutes to 20 and the Constitution\t(Seventeenth
\nAmendment) Act, 1964 to 64 and a so-called explanation which
\nsaved the application of the Proviso in Art. 31-A, was\talso
\nadded.\tThe  device [approved by Sankari  Prasad’s  case(1)]
\nwas,found so
\n(1)  [1952] 1 S.C.R. 89.\n<\/p>\n
890<\/span><\/p>\n
attractive  that many more Acts were sought to\tbe  included
\nbut  were dropped on second thoughts.  Even so, one  wonders
\nhow the Railway Companies (Emergency Provisions) Act,  1951,
\nThe  West Bengal Land Development and Planning Act and\tsome
\nothers\tcould have been thought of in this  connection.\t  By
\nthis device, which can be extended easily to other  spheres,
\nthe  Fundamental Rights can be completely emasculated  by  a
\n2\/3  majority,\teven though they cannot be  touched  in\t the
\nordinary  way  by a unanimousvote of the same body  of\tmen!
\nThe  State Legislatures may drive a coach and  pair  through
\nthe  Fundamental Rights and the Parliament by  2\/3  majority
\nwill  then put them outside the jurisdiction of the  courts.
\nWas  it\t really intended that the  restriction\tagainst\t the
\nState  in Arts. 13(2) might be overcome by the two  agencies
\nacting hand in hand ?\n<\/p>\n
 Article  3 1 A dealt with the acquisition by the  State  of
\nan  .estate’ or of any rights therein or the  extinguishment
\nor  modification  of any such rights.  A law  of  the  State
\ncould do these with the President’s assent, although,it took
\naway  or  abridged  any\t of  the  rights  conferred  by\t any
\nprovisions  of Part Ill.  The words ‘estate’ and ‘rights  in
\nrelation  to  an estate’ were defined.\t The  constitutional
\namendment  was\tchallenged in Sankari  Prasad’s\t case(1)  on
\nvarious\t grounds  but was upheld mainly on  two\t grounds  to
\nwhich I objected in Sajjan Singh’s case(2).  I have shown in
\nthis judgment, for reasons which I need not repeat and which
\nmust  be  read\tin addition to what I said  on\tthe  earlier
\noccasion, that I disagree respectfully but strongly with the
\nview  of  the Court in those two cases.\t  This\ttouches\t the
\nfirst part of the amendment which created Art.31-A. I do not
\nand  cannot  question  Art.31-A\t because  (a)  it  was\t not
\nconsidered at the hearing of this case, and (b) it has stood
\nfor  a\tlong  time as part of  the  Constitution  under\t the
\ndecision  of  this Court and has been acquiesced in  by\t the
\npeople.\t  If I was free I should say that the amendment\t was
\nnot  legal and certainly not justified by the reasons  given
\nin the earlier cases of this Court.  Under the original Art.
\n31,  compensation  had\tto be paid for\tacquisition  by\t the
\nState.\tThis was the minimum requirement of Art. 31 (1)\t and
\n(2)  and  no  amendment\t could\tbe  made  by  a\t constituted
\nparliament   to\t avoid\tcompensation.\tA  law\tmade  by   a
\nconstituted Parliament had to conform to Art. 13(2) and Art.
\n31 could not be ignored.\n<\/p>\n
In 1954 the Supreme Court in a series of cases drew the dis-
\ntinction between Art. 19(1)(f) and Art. 31, particularly  in
\nWest  Bengal  v.  Subodh  Gopal<\/a>(3),  Dwarkadas\tSrinivas  v.
\nSholapur  Spinning  Co.<\/a> (4).  In State of I West  Bengal  v.
\nMrs.  Bela  Banerjee  and  Others<\/a>(5),  this  Court  held   a
\ncompensation in Art. 31(2) meant
\n(1) [1952] S.C.R. 89.\t (2) [1965] 1 S.C.R. 933.
\n(3)[1954] S.CR. 587.\t(4) [1954] S.CR. 558.
\n(5)  [1954] S.C.R. 678.\n<\/p>\n
891<\/span><\/p>\n
just  equivalent, i.e. full and fair money equivalent’\tthus
\nmaking the adequacy of compensation justiciable.
\nThe  Constitution (Fourth Amendment) Act, 1955 then  amended
\nboth  Art.  31 and Art. 31-A.  Clause (2) of  Art..  31\t was
\nsubstituted by-\n<\/p>\n
\t      “(2)   No\t property  shall   be\tcompulsorily
\n\t      acquired\tor requisitioned save for  a  public
\n\t      purpose  and save by authority of a law  which
\n\t      provides for compensation for the property  so
\n\t      acquired or requisitioned and other fixes\t the
\n\t      amount  of the compensation or  specifies\t the
\n\t      principles on which, and the manner in  which,
\n\t      the  compensation\t is  to\t be  determined\t and
\n\t      given;  and  no such law shall  be  called  in
\n\t      question\tin any court on the ground that\t the
\n\t      compensation  provided  by  that\tlaw  is\t not
\n\t      adequate”.\n<\/p><\/blockquote>\n
The opening words of the former second clause were  modified
\nto  make them more effective but the muzzling of  courts  in
\nthe matter of adequacy of the compensation was the important
\nmove.  As Basu says :\n<\/p>\n
\t      “It  is  evident that the\t 1955  amendment  of
\n\t      clause (2) eats\tinto  the  vitals   of\t the
\n\t      constitutional mandate to pay Compensation and
\n\t      demonstrate  a drift from the meetings of\t the
\n\t      American\tconcept\t of  private  Property\t and
\n\t      judicial review to which our Constitution\t was
\n\t      hitherto tied, to that of socialism.”(1)
\nIt  is\tappropriate  to recall here  that  as  expounded  by
\nProfessor  Beard  (2) (whose views offended Holmes  and\t the
\nTimes  of New York but which are now being recognised  after
\nhis  further explanation(3) the Constitution of\t the  United
\nStates\tis  an economic document prepared by  men  who\twere
\nwealthy or allied with property rights, that it is based  on
\nthe  concept  that the fundamental rights  of  property\t are
\nanterior  to  Government and morally beyond  the,  reach  of
\npopular majorities and that the Supreme Court of the  United
\nStates preserved the property rights till the New Deal\tera.\n<\/p><\/blockquote>\n
The,  threat at that time was to enlarge the  Supreme  Court
\nbut  not  to amend the Constitution.  It  appears  that\t the
\nIndian Socialists charged with the idea of Marx, the  Webbs,
\nGreen,\tLaski  and  others  viewed  property  rights  in   a
\ndifferent  way.\t  Pandit  Nehru once said  that\t he  had  no
\nproperty  sense,meaning\t that he did not value\tproperty  at
\nall.   The Constitution seems to have changed  its  property
\nsignificantly.\tIn addition to avoiding
\n(1)  Basu  : commentaries on the Constitution of India\t(5th
\nEdn.) Vol. 2 p. 230.\n<\/p>\n
(2)  An\t  Economic  Interpretation  of\tthe  United   States
\nConstitution-\n<\/p>\n
(3)  See   Laski   :  The  American  democracy;\t  Weaver   :
\nConstitutional\t Law,\tBrown:\t Charles   Beard   and\t the
\nconstitution; will is constitutional Law.\n<\/p>\n
892<\/span><\/p>\n
the concept of just compensation, the amendment added a\t new
\nclause (2A) as follows :-\n<\/p>\n
\t      “(2A)  Where  a law does not provide  for\t the
\n\t      transfer\t of  the  ownership  or\t  right\t  to
\n\t      possession of, any property to the State or to
\n\t      a\t corporation  owned or control\tled  by\t the
\n\t      State,  it shall not be deemed to provide\t for
\n\t      the  compulsory acquisition or  requisitioning
\n\t      of property, notwithstanding that’ it deprives
\n\t      any person of his property.”\n<\/p><\/blockquote>\n
This  narrowed the field in which compensation was  payable.
\nIn addition to this, clause (1) of Art. 31-A was substituted
\nand  was  deemed to be always substituted by  a\t new  clause
\nwhich provided:\n<\/p>\n
\t      “(1)  Notwithstanding  anything  contained  in
\n\t      article 13, no law providing for-<\/p><\/blockquote>\n
\t      (a)  the\tacquisition  by the  State  -of\t any
\n\t      estate  or  of  any  rights  therein  or\t the
\n\t      extinguishment  or  modification of  any\tsuch
\n\t      rights, or\n<\/p>\n
\t      (b)  the taking over of the management of\t any
\n\t      property\tby  the State for a  limited  period
\n\t      either in the public interest ‘or in order  to
\n\t      secure the proper management of the  property,
\n\t      or\n<\/p>\n
\t      (c)  amalgamation of two or more\tcorporations
\n\t      either  in the public interest or in order  to
\n\t      secure  the  proper management of any  of\t the
\n\t      corporation, or\n<\/p>\n
\t      (d)  the extinguishment or modification of any
\n\t      rights  of  ‘managing agents  secretaries\t and
\n\t      treasurers,  managing directors, directors  or
\n\t      managers\tof  corporations, or of\t any  voting
\n\t      rights of shareholders thereof, or\n<\/p>\n
\t      (e)  the extinguishment or modification of any
\n\t      rights  accruing by virtue of  any  agreement,
\n\t      lease or licence for the purpose of  searching
\n\t      for,  or winning, any mineral or mineral\toil,
\n\t      or  the premature termination or\tcancellation
\n\t      of any such agreement, lease or licence,
\nshall  be  deemed  to  be void on  the\tground\tthat  it  is
\ninconsistent  with,  or takes away or abridges\tany  of\t the
\nrights conferred by Art. 14, article 19 or article 31
\nProvided  that\twhere  such  law  is  a\t law  made  by\t the
\nLegislature of a State, the provisions of this article shall
\nnot apply thereto unless such law, having been reserved
\n\t\t\t    893<\/span>
\nfor  the  consideration\t of  the  President,  has   received
\nassent.”\n<\/p>\n
In  clause (2)(a) after the word ‘grant’, the words “and  in
\nany State of Madras and Travancore Cochin any, Janmam right”
\nwere  inserted ‘and deemed always to have been inserted\t and
\nin clause (2) (b) after the words ‘tenure-holder’ the  words
\n“raiyat,  under raiyat” were inserted and deemed always\t to-
\nhave  been  inserted.\tOnce again the reach  of  the  State
\ntowards\t private  property  was made  longer  and  curiously
\nenough\tit  was done retrospectively from the  time  of\t the
\nConstituent  Assembly and so to speak, in its name.   As  to
\nthe   retrospective  operation\tof   these,   Constitutional
\namendment.  I entertain considerable doubt… A\t Constituent
\nAssembly makes a new Constitution for itself.  Parliament is
\nnot even a Constituent Assembly and to. abridge\t fundamental
\nrights\tin  the\t name of the  Constituent  Assembly  appears
\nanomalous.   I am reminded of the conversation between\tapo-
\nleon  and Abe . Sieyes, the, great jurist whose\t ability  to
\ndraw  up one Constitution after another has been  recognised
\nand  none of whose efforts lasted for long.   When  Napoleon
\nasked him “what has survived ?” Abe Sieyes answered “I\thave
\nsurvived”.   I\twonder if the Constituent Assembly  will  be
\nable  to  say the same thing  What it had  written  or\tthe,
\nsubject of property rights, appears to have been written  on
\nwater.\t The  Fourth Amendment served to do  away  with\t the
\ndistinction  made by this Court between Arts. 19 and 31\t and
\nthe  theory of just compensation.  The Fourth Amendment\t has
\nnot been challenged before us.\tNor was it challenged at any
\ntime  before.  For the reasons for which I have declined  to
\nconsider the First Amendment I\trefrain from considering the
\nvalidity  of  the  Fourth Amendment.  It  may,\thowever,  be
\nstated here that if I was free to consider it,, I would have
\nfound great difficulty in accepting that the  constitutional
\nguarantee could be abridged in this way.\n<\/p>\n
I may say here that the method I have followed in not recon-
\n, sidering an amendment which has stood for a long time, was
\nalso invoked by the Supreme Court of United: States in Leser
\nv.   Garnett(1).  A  constitution  works  only\tbecause\t  of
\nuniversal  recognition.\t This recognition may. be  voluntary
\nor forced where people have lost liberty of speech.  But the
\nacquiescence  of the people is necessary for the working  of
\nthe  Constitution.   The  examples  of\tour  neighbours,  of
\nGermany, of Rhodesia and others illustrates the\t recognition
\nof Constitutions by acquiescence.. It is obvious that it  is
\ngood  sense and sound policy for the ‘Courts to\t decline  to
\ntake ‘up an amendment for consideration after a considerable
\nlapse  of  time when it was not challenged  before,  or\t was
\nsustained on an earlier occasion after challenge.
\n(1)  (1922) 258 U.S. 130.\n<\/p>\n
894<\/span><\/p>\n
It  is\tnecessary to pause here and see\t what  the  property
\nrights\thave  become under the\trepeated  and  retrospective
\namendments  of the Constitution.  I have already  said\tthat
\nthe Constitution started with the concept of which,  Grotius
\nmay’  be  said to be the author, although his  name  is\t not
\nparticularly  famous  for  theories  of\t constitutional\t  or
\nmunicipal  laws.   The\tsocialistic  tendencies\t which\t the
\namendments  now manifest take into consideration some  later
\ntheories  about\t the  institution of  property.\t  When\tthe-
\noriginal  Art. 31 was moved by Pandit Jawaharlal  Nehru,  he
\nhad described it as a compromise between various  approaches
\nto  the question and said that it did justice  and  equality
\nnot  only  to the individual but also to the  community’  He
\naccepted  the principle of compensation but compensation  as
\ndetermined  by the Legislature and not the  Judiciary.\t His
\nwords were
\n\t      “The  law should do it.  Parliament should  do
\n\t      it.   There  is no reference in  this  to\t any
\n\t      judiciary\t coming\t into  the  picture.\tMuch
\n\t      thought  has  been given to it and  there\t has
\n\t      been  much  debate as to where  the  judiciary
\n\t      comes  in.  Eminent lawyers have told us\tthat
\n\t      on  a  proper  construction  of  this  clause,
\n\t      normally\tspeaking  the judiciary\t should\t not
\n\t      come   in.    Parliament\tfixes\teither\t the
\n\t      compensation itself or the principle governing
\n\t      that  compensation  and  they  should  not  be
\n\t      challenged except for one reason, where it  is
\n\t      thought  that there has been a gross abuse  of
\n\t      the  law,\t where, in fact, there\thas  been  a
\n\t      fraud  on\t the  Constitution.   Naturally\t the
\n\t      judiciary comes in to see if there has been  a
\n\t      fraud on the Constitution or not.”(1)
\nHe  traced  the\t evolution of  property\t and  observed\tthat
\nproperty  was becoming a question of credit, of\t monopolies,
\nthat  there  were  two\tapproaches,  the  approach  of\t the
\nIndividual and the approach of the community.  He  expressed
\nfor  the for protection of the indi vidual’s rights.(2)\t The
\nattitude changed at the time of the First Amendment.  Pandit
\nNehru  propheised that the basic problem would\tcome  before
\nthe  House  from time to, time.\t That it has,  there  is  no
\ndoubt,\tjust  as  there\t is no\tdoubt  that  each  time\t the
\nindividual’s rights have suffered.\n<\/p>\n
Of  course,  the growth of collectivist theories  have\tmade
\nelsewhere  considerable inroads into the right of  property.
\nIn Russia there is no private ownership of. land and even in
\nthe Federal Capital Territory of Australia, the ownership of
\nland  is  with\tthe  Crown and\tthe  individual\t can  get  a
\nleasehold  right only.\tJustification for this is  found  in
\nthe fact that the State must benefit from
\n(1)  Constituent Assemembly Debates Vol.  IX pp. 1193-1195.
\n(2)  Constituent Assembly Debates Vol.\tIX p. 1135.\n<\/p>\n
895<\/span><\/p>\n
the  rise in the value of land.\t The paucity of land and  of
\ndwelling houses have led to the control of urban  properties
\nand  creation  of  statutory tenancies.\t In  our  country  a
\nceiling\t is put on agricultural land held by an\t individual.
\nThe Supreme Court, in spite of this, has not frustrated\t any
\ngenuine legislation for agrarian reform.  It has upheld\t the
\nlaws   by  which  the  lands  from  latifundia\t have\tbeen
\ndistributed  among  the\t landless.  It\tseems  that  as\t the
\nConstitutions of Peru, Brazil, Poland, Latvia, Lethuania and
\nMexico\tcontain provisions for such reforms, mainly  without
\npayment\t of compensation, our Parliament has taken the\tsame
\nroad.\tOf course, the modem theory regards the\t institution
\nof proper on a functional basis(1) which means that property
\nto  be\tproductive must be property  distributed.   As\tmany
\nwriters\t have said property is now a duty more than a  right
\nand  ownership\tof  property entails  a\t social\t obligation.
\nAlthough Duguit(2), who is ahead of others, thinks that\t the
\ninstitution  of\t property has undergone\t a  revolution,\t the
\nrights\tof the Individual are not quite gone,  except  where
\nCommunism  is firmly entrenched.  The rights  are  qualified
\nbut  property belongs still to the owner.   The\t Seventeenth
\nAmendment,  however,  seems to take us far away,  from\teven
\nthis  qualified concept, at least in so far as “estates”  as
\ndefined by Art. 31-A.  This is the culmination of a process.
\nPrevious to the Constitution (Seventeenth Amendment) Act the
\nConstitution  (Seventh Amendment) Act, 1956 had given  power
\nindirectly  by\taltering  entry No. 42\tin  List  III.\t The
\nentries may be read side by side :\n<\/p>\n
“42.\t   (Before Amendment) (After Amendment)
\nPrinciples   on\t which\tcompensation  for  Acquisition\t and
\nrequisitioning,\t  of   pro\t    property   acquired\t  or
\nrequisitioned  for perty. the purposes of the Union or of  a
\nState  or for any other public purpose is to be\t determined,
\nand the form and the manner in which such compensation is to
\nbe given.”\n<\/p>\n
This  removed the last reference to compensation in  respect
\nof acquisition and requisition.\t What this amendment  began,
\nthe Constitution (Seventeenth Amendment) Act, 1964  achieved
\nin   full.    The  Fourth  Amendment  had   added   to\t the
\ncomprehensive definition of ‘right in relation to an estate,
\nthe  rights  of raiyats and under-raiyats.   This  time\t the
\nexpression ‘estate’ in Art. 31 A was amended retrospectively
\nby a new definition which reads:\n<\/p>\n
\t      “the expression “estate” shall, in relation to
\n\t      any local area, have the same meaning as\tthat
\n\t      expression or its local equivalent has in\t the
\n\t      existing law relating to
\n\t      (1)   See\t  G.W.\t Paton\t:   Text   Book\t  of
\n\t      Jurisprudence (1964) pp. 484-485.
\n\t      (2) Transformations du droit prive.\n<\/p><\/blockquote>\n
\t      896<\/span><\/p>\n
\t      land tenures in force in that area, and  shall
\n\t      also include-\n<\/p><\/blockquote>\n
\t      (i)   any\t jagir,\t inam  or  muafi  or   other
\n\t      similar grant and in the States of Madras\t and
\n\t      Kerala, any janmam right;\n<\/p><\/blockquote>\n
\t      (ii)  any land held under ryotwari settlement;\n<\/p><\/blockquote>\n
\t      (iii) any\t land  held or let for\tpurposes  of
\n\t      agriculture or for purposes ancillary thereto,
\n\t      including\t waste land, forest land,  land\t for
\n\t      pasture  or  sites  of  buildings\t and   other
\n\t      structures  occupied by cultivators  of  land,
\n\t      agricultural labourers and village artisans,”
\n\t      The  only saving of compensation is now to  be
\n\t      found  in the second proviso added  to  clause
\n\t      (1) of the article which reads
\n\t      “Provided\t further that, where any  law  makes
\n\t      any provision for the acquisition by the State
\n\t      of  any estate. and where any  land  comprised
\n\t      therein  is  held\t by a per-,  son  under\t his
\n\t      personal\tcultivation, it shall not be  lawful
\n\t      for  the State to acquire any portion of\tsuch
\n\t      land as is within the ceiling limit applicable
\n\t      to  him under any law for. the time  being  in
\n\t      force  or any building or\t structure  standing
\n\t      thereon or appurtenant thereto, unless the law
\n\t      relating\tto  the acquisition  of\t such  land,
\n\t      building or structure, provides for payment of
\n\t      compensation at a rate which shall not be less
\n\t      than the market value thereof.”\n<\/p><\/blockquote>\n
There  is  also the provision  for  compensation  introduced
\nindirectly  in\tan  Explanation\t at the\t end  of  the  Ninth
\nSchedule, in respect of the Rajasthan Tenancy Act, 1955.  By
\nthis  explanation  the\tprovisions of this  Tenancy  Act  in
\nconflict\t with\t     the\tproviso\t\tlast
\nlast quoted are declared to be void.\n<\/p>\n
The  sum  total of this amendment is that  except  for\tland
\nwithin\tthe  ceiling,all other land can be  acquired  ed  or
\nrights therein extinguished or modified without compensation
\nand no. challenge to the law can be made under Arts. 14,  19
\nor  31\tof the Constitution.  The same is also true  of\t the
\ntaking over: of ‘the management of any property by the State
\nfor  a\tlimited period either in the public interest  or  in
\norder  to secure the proper management of the  property,  or
\nthe   amalgamation  of\ttwo  or\t more  companies,   or\t the
\nextinguishment\tor  modification of any rights\tof  managing
\nagents,,   secretaries,\t treasurers,   managing\t  directors,
\ndirectors  or  managers, of corporations or  of\t any  voting
\nright, of shareholders thereof any rights by virtue of\tan),
\nagreement,  lease, or licence for the purpose  of  searching
\nfor,  or  winning,  any mineral or mineral oil,\t or  of\t the
\npremature
\n897<\/span>
\ntermination.  or cancellation of any such agreement,-  lease
\nor licence.\n<\/p>\n
It  will be noticed further that deprivation of property  of
\nany  person  is\t not  to  be  regarded\tas  acquisition\t  or
\nrequisition  unless  the  benefit of  the  transfer  of\t the
\nownership or right to possession goes to the State–or to  a
\ncorporation  owned or controlled by the State.\t Acquisition
\nor requisition in this limited sense alone requires that  it
\nshould\tbe  for public purpose and under  authority  of\t law
\nwhich fixes the compensation or lays down the principles  on
\nwhich and. the manner in which compensation is to be  deter-
\nmined.\tand  given,  and the adequacy  of  the\tcompensation
\ncannot\tbe any ground of attack.  Further still\t acquisition
\nof  estates  and of rights therein and the  taking  over  of
\nproperty,  amalgamation of corporations,  extinguishment  or
\nmodification  of rights in companies and mines may  be\tmade
\nregardless  of\tArts. 14, 19 and 31.  In addition  64  State
\nActs are given special protection from the courts regardless
\nof  therein  contents which ‘may be  in\t derogation  of\t the
\nFundamental Rights.\n<\/p>\n
This  is  the  kind of amendment which has  been  upheld  in
\nSajjan\tSingh(1)  case on the theory of the  omnipotence  of
\nArt. 368.  The State had bound itself not to’ enact any\t law
\nin  derogation\tof Fundamental Rights.\tIs  the\t Seventeenth
\nAmendment a law ? To this question my answer is a  categoric
\nyes.  It is no answer to gay that this is an amendment\tand;
\ntherefore;  not\t a law, or that it is passed  by  a  special
\npower  of  voting.  It is the action of the  State  all\t the
\nsame.  The State had put restraints on itself in law  making
\nwhether\t  the  laws  were  made\t without  Dr.\twithin\t the
\nConstitution.. it is also’ no answer to say that this  Court
\nin a Bench of five Judges on one, occasion and by a majority
\nof 3 to 2 on another, has said the,same thing.\tIn a. matter
\nof   the  interpretation  of  the-Constitution\tthis   Court
\nmust,look at the functioning of the Constitution as a whole.
\nThe rules of res indicate and stare decisis are not,  always
\nappropriate  in\t interpreting a\t Constitution,\tparticularly
\nwhen  Art.  13(2)  itself declares a law to  be\t void.\t The
\nsanctity  of  a\t former\t judgment is  for  the\tmatter\tthen
\ndecided-.   In\tPlessy v. Fergusson(2),\t Harlan,  J.  alone,
\ndissented against the “separate but equal doctrine  uttering
\nthe  memorable\twords that there was no caste and  that\t the
\nConstitution  of the United States was ‘colour blind.\tThis
\ndissent\t made some Southern Senators to oppose his  grandson
\n(Mr.  Justice John Marshall Harlan) in 1954.  It took fifty-
\neight years for the words of Harlan, J.’s lone dissent (8 to\n<\/p>\n
1)  to\tbecome,\t the law of the united states  at  least  in
\nrespect\t of segregation in the public schools [See Brown  v.
\nBoard of Education(3)].\t As Mark Twain
\n(1) (1965] 1 S. C. R. 933.\n<\/p>\n
(2)163 U. S. 537.\n<\/p>\n
(3) (1954) 347 U. S. 483.\n<\/p>\n
898<\/span><\/p>\n
said  very truly-“Loyality to a petrified opinion never\t yet
\nbroke a chain or freed a human soul”\n<\/p>\n
I am apprehensive that the erosion of the right to  property
\nmay  be\t practised against other Fundamental Rights.   If  a
\nhalt  is  to  be  called,  we  must  declare  the  right  of
\nParliament  to\tabridge\t or take  away\tFundamental  Rights.
\nSmall inroads lead to larger inroads and become as  habitual
\nas before our freedom won The history of freedom is not only
\nhow  freedom is achieved but how it is preserved.  I  am  of
\nopinion that an attempt to abridge or take away\t Fundamental
\nRights by a constituted Parliament even through an amendment
\nof  the Constitution can be declared void.  This  Court\t has
\nthe  power  and\t jurisdiction to make  the  declaration.   I
\ndissent\t  from\tthe  opposite  view  expressed\t in   Sajjan
\nSingh’s(1) case and I overrule that decision.
\nIt remains to consider what is the extent of  contravention.
\nHere  I must make it clear that since the First, Fourth\t and
\nSeventh\t Amendments  are  not  before me  and  I  have\tnot,
\ntherefore, questioned them, I must start with the provisions
\nof Arts. 31, 31-A, 31-B, List III and the Ninth Schedule  as
\nthey  were immediately preceding the Seventeenth  Amendment.
\nI  have elsewhere given a summary of the inroads  made\tinto
\nproperty  rights  of individuals and Corporations  by  these
\nearlier\t amendments.   By this amendment the  definition  of
\n‘estate’ was repeated for the most part but was extended  to
\ninclude:\n<\/p>\n
\t      “(ii) any land held under ryotwari settlement;\n<\/p><\/blockquote>\n
\t      (iii) any\t land  held  or\t let  for   purposes
\n\t      ancillary\t  thereto,  including  waste   land,
\n\t      forest  land,  land for pasture  or  sites  of
\n\t      buildings\t and  other structures\toccupied  by
\n\t      cultivators  of land,  agricultural  labourers
\n\t      and village artisans.”\n<\/p><\/blockquote>\n
Further reach of acquisition or requisition without adequate
\ncompensation and without a challenge under Arts. 14, 19\t and
\n31  has\t now  been  made possible.   There  is\tno  kind  of
\nagricultural estate or land which cannot be acquired by\t the
\nState  even  though it pays an illusory\t compensation.\t The
\nonly  exception is the second proviso added to Art.  31-A(1)
\nby which, lands within the ceiling limit applicable for\t the
\ntime being to a person personally cultivating his land,\t may
\nbe  acquired  only on paying compensation at  a\t rate  which
\nshall not be less than the-market value.  This may prove: to
\nbe  an illusory protection.  The ceiling may be\t lowered  by
\nlegislation.   The  State may leave the person an  owner  in
\nname and acquire all his. other rights.\t The latter question
\ndid come before this Court in two cases-Ajit Singh v.  State
\nof Punjab (2)
\n(1) (1965] 1 & C. R. 933
\n(2) [1967] 2 S. C. R. 143.\n<\/p>\n
899<\/span><\/p>\n
and  Bhagat  Ram and Ors. v. State of Punjab, and  Ors.\t (1)
\ndecided\t on  December  2, 1966.\t My brother  Shelat  and,  I
\ndescribed the device as a fraud upon this proviso but it  is
\nobvious\t that a law lowering the ceiling to  almost  nothing
\ncannot\tbe declared a fraud on the Constitution.   In  other
\nwords, the agricultural landholders hold land as tenants-at-
\nwill.\tTo achieve this a large number of Acts of the  State
\nLegislatures have been added to the Ninth Schedule to  bring
\nthem under the umbrella of Art. 31-B.  This list may grow.
\nIn my opinion the extension of the definition of ‘estate’ to
\ninclude\t ryotwari and agricultural lands is an\tinroad\tinto
\nthe  Fundamental Rights but it cannot be questioned in\tview
\nof  the\t existence of Art. 31-A(1) (a) as  already  amended.
\nThe  constitutional  amendment\tis a law  and  Art.  31\t (I)
\npermits\t the  deprivation of property by authority  of\tlaw.
\nThe  law may be made outside the Constitution or within\t it.
\nThe word ‘law’ in this clause includes both ordinary law  or
\nan  amendment of the Constitution.  Since “no law  providing
\nfor  the  acquisition by the State of any estate or  of\t any
\nrights therein or the extinguishment or modification of\t any
\nsuch rights shall be deemed to be void on the ground that it
\nis  inconsistent with, or takes away or abridges any of\t the
\nrights\tconferred  by  Art. 14, Art. 19\t or  Art.  31”,\t the
\nSeventeenth Amendment when it gives a new definition of\t the
\nword   ‘estate\tcannot\tbe  questioned\tby  reason  of\t the
\nConstitution  as  it exists.  The new definition  of  estate
\nintroduced  by\tthe  amendment is beyond the  reach  of\t the
\ncourts not because it is not law but because it is “law” and
\nfalls within that word in Art. 31 (1) (2) (2-A) and Art. 31-
\nA(1).  1, therefore, sustain the new definition, not on\t the
\nerroneous  reasoning in Sajjan Singh’s case (2 ) but on\t the
\ntrue construction of the word ‘law’ as used in Arts.  13(2),
\n31(1)(2-A) and 31-A(1).\t The above reason applies a fortiori
\nto  the\t inclusion of the proviso which preserves  (for\t the
\ntime being) the notion of compensation for deprivation of  a
\ncultural  property.  The proviso at least  saves  something.
\nIt  prevents the, agricultural lands below the ceiling\tfrom
\nbeing appropriated without payment of pro-per  compensation.
\nIt  is\tclear,that the proviso at least cannot\tbe  held  to
\nabridge\t or take away fundamental rights.  In the  result  I
\nuphold\tthe second section of the Constitution\t(Seventeenth
\nAmendment) Act, 1964.\n<\/p>\n
This  brings me to the third section of the Act.  That\tdoes
\nno  more than add 44 State Acts to the Ninth Schedule.\t The
\nobject\tof  Art.  31-B, when it was  enacted,  was  to\tsave
\ncertain State Acts notwithstanding judicial decision to\t the
\ncontrary.   These  Acts were already protected by  Art.\t 31.
\nOne  can with difficulty understand such a  provision.\t Now
\nthe Schedule is being used to
\n(1) 11967] 2 S. C. R. 165.\n<\/p>\n
(2) (1965) 1 S. C. R. 933.\n<\/p>\n
900<\/span><\/p>\n
give advance protection to legislation which is known appre-
\nhended to derogate from the Fundamental Rights.\t The power
\nunder  Art. 368, whatever it may be, was given to amend\t the
\nConstitution.\tGiving.\t protection  to\t statutes  of  State
\nLegislatures  which  offend  the Constitution  in  its\tmost
\nfundamental part, can hardly merit the description amendment
\nof the Constitution in fact in so cases it is not even known
\nwhether\t the statues in question stand in need of such\taid.
\nThe  intent  is to silence the courts and not to  amend\t the
\nConstitution.\tIf  these Acts were’, not  included  in\t the
\nSchedule they would have to face the Fundamental Rights\t and
\nrely  on  Arts. 31 and 31-A to save them.   By\tthis  device
\nprotection  far in excess of ‘these articles is afforded  to
\nthem.  This in my judgment is not a matter of amendment at
\nall.   The power which is given is for the specific  purpose
\nof  amending the Constitution and not to confer validity  on
\nState  Acts  against the rest of the Constitution.   If\t the
\nPresident’s  assent  did  not do this, no  more\t would\tthis
\nsection.  I consider s.. 3 of the Act., to be invalid as  an
\nillegitimate  exercise of the powers . of amendment  however
\ngenerous.  Ours is the only Constitution in the world  which
\ncarries\t a  long  list of ordinary laws\t which\tit  protects
\nagainst\t itself,.  In the result I declare s. 3 to be  ultra
\nvires the amending process.\n<\/p>\n
As stated by me in Sajjan Singh’s case(1) Art. 368  outlines
\nprocess, which if followed strictly results in the amendment
\nof  the\t Constitution.\t The  article  gives  power  to\t  no
\nparticular  person  or persons.\t All the  named\t authorities
\nhave to act according to the letter\t  of the article  to
\nachieve the result.  The procedure of, amendment, if it\t can
\nbe  called a ‘power at all is a legislative power but it  is
\nsui generi and outside the three lists in Schedule 7 of\t the
\nConstitution.\t‘It  does  ‘not’ have to  depend.  upon\t any
\nentry,in the lusts.\n<\/p>\n
Ordinarily  there would-be no limit to the extent of  the  ,
\namendatory  legislation but. the Constitution  itself  makes
\ndistinctions.\tIt states three methods and  places  certain
\nbars.\t For  some  amendments\tan  ordinary,  majority\t  fs
\nsufficient;  for  some\tothers ‘a  2\/3rd  majority  of\tthe,
\nmembers\t present  and voting with a majority  of  the  total
\nmembers, in each House is necessary: and for some others  in
\naddition to the second requirement, ratification by at least
\none,half of the legislatures of the States must be forthcom-
\ning.   Besides these methods, Art. 13(2) puts an embargo  on
\nthe legislative power of the State and consequently upon the
\nagencies  of  the  State.  By its means\t the  boundaries  of
\nlegislative action of any of including legislation to  amend
\nthe Constitution have been marked out.\n<\/p>\n
(1)  [1965]1 S.C.R 933.\n<\/p>\n
901<\/span><\/p>\n
I have\t  attempted to show hem that under our Constitution
\nrevolution     is  not\tthe only alternative  to  change  of
\nConstitution under Art.\t    368.  A  Constitution  can.\t  be
\nchanged by consent or, revolution  Rodee,    Anderson\t and
\nChristol  (1)  have shown the sovereignty of the  People  is
\neither\telectoral or constituent.  When the People elect the
\nParliament   and  the  Legislatures  they   exercise   their
\nelectoral   sovereignty.   I  includes\t  some\t constituent
\nsovereignty  also  but\tonly in so  far\t as  conceded.\t The
\nremaining constituent sovereignty which is contained in\t the
\nPreamble  and  Part III is in abeyance because of  the\tcurb
\nplaced\tby the People on the state under Art. 13(2).  It  is
\nthis  power which can be reproduced.  I have  indicated\t the
\nmethod.\t Watson(2) quoting Ames- On Amendments p. 1 note  2)
\npoints\tout that the idea that provision should be  made  in
\nthe  instrument of Government itself for the method  of\t its
\namendment   is\tpeculiarly  American.\tBut  even   in\t the
\nConstitution  of the United States of America  some  matters
\nwere kept away from the amendatory process Other temporarily
\nor  permanently.  Our Constitution has done the same  .\t Our
\nConstitution  provides for minorities,\treligions,  socially
\nand  educationally  backward peoples, for  ameliorating\t the
\ncondition   of\t depressed  classes,  for   removing   class
\ndistinctions,  titles,\tetc.  This reservation was  made  so
\nthat in the words of Madison(3), men of factious tempers, of
\nlocal  prejudices, or sinister designs may not by  intrigue,
\nby  corruption, or other means , first obtain the  suffrages
\nand then betray the interests of the people.  It was to plug
\nthe  loophole  such  as\t existed in  s.\t 48  of\t the  Weimar
\nConstitution(  4) that Art. 13 (2) was. adopted. of  course,
\nas.  Story(”) says, an amendment process is a safety  valve
\nto,  let off all temporary effervescence and excitement,  as
\nan effective instrument to control and adjust the  Movements
\nof  the machinery when out of order or in danger  of  self-d
\ntion  but is not an open valve to let, out’ even that  which
\nwas intended to be retained.  In the words of Wheare(6)\t the
\npeople or a Constituent Assembly acting on their behalf, has
\nauthority  to enact a Constitution and by the same  token  a
\nportion\t of-the Constitution placed  outside  the-amenditory
\nprocess\t by  one  Constituent body can only  be\t amended  by
\nanother Constituent body.  In the Commonwealth of, Australia
\nAct  the provisions of the last Paragraph of   s.  128\thave
\nbeen  regarded\tas,  mandatory,\t and-  held  to\t  be   clear
\nlimitations  of\t the power of amendment.  Dr.  Jethro  Brown
\nconsidered that the amendment of the paragraph was logically
\nimpossible even by a two step amendment.  Similarly, s. 105-
\nA has been judicially
\n(1)  Introduction to Political Science, p. 32 et seq.
\n(2)  Constitution” Its History, Application and Construction
\nVol.II (1910) p. 1301.\n<\/p>\n
(3)  Federalist No. 10.\n<\/p>\n
(4)  See Louis L. Snyder: The Weimar Constitution, p. 42  et
\nseq.\n<\/p>\n
(5)  Commentaries  on the Constitution of the United  States
\n(I 833) Vol.  II.\n<\/p>\n
(6)  K. C. Wheare: Modern Constitutions, p. 78.
\nsup Cl\/67-12
\n902<\/span>
\nconsidered  in the Garnishee case(-‘) to be an exception  to
\nthe power of amendment in s. 128 although Wynes(2) does\t not
\nagree.\t I prefer the judicial view to that of\tWynes.\t The
\nsame  position\tobtains under our Constitution\tin  Art.  35
\nwhere  the  opening  words, are\t more  than  a\tnon-obstante
\nclause.\t  They exclude Art. 368 and even amendment  of\tthat
\narticle under the proviso.  It is, therefore, a grave  error
\nto think of Art. 368 as a code ;Dr as omnicompetent.  It  is
\nthe  duty  of  this  Court to  find  the  limits  which\t the
\nConstitution has set on the amendatory power and to  enforce
\nthose  limits.\tThis is what I have attempted to do in\tthis
\njudgment.\n<\/p>\n
\t      My conclusions are\n<\/p>\n
\t      (i)   that the Fundamental Rights are  outside
\n\t      the amendatory process if the amendment  seeks
\n\t      to abridge or take away any of the rights;\n<\/p>\n
\t      (ii)  that  Sankari Prasad’s case (and  Sajjan
\n\t      Singh’s  case which followed it) conceded\t the
\n\t      power  of\t amendment  over  Part\tIII  of\t the
\n\t      Constitution  on\tan erroneous view  of  Arts.
\n\t      13(2) and 368;\n<\/p>\n
\t      (iii) that  the  First,  Fourth  and   Seventh
\n\t      Amendments  being part of the Constitution  by
\n\t      acquiescence  for a long time, cannot  now  be
\n\t      challenged and they contain authority for\t the
\n\t      Seventeenth Amendment;\n<\/p>\n
\t      (iv)  that  this\tCourt having now  laid\tdown
\n\t      that Fundamental Rights cannot be abridged  or
\n\t      taken  away  by  the  exercise  of  amendatory
\n\t      process  in Art. 368, any further inroad\tinto
\n\t      these  rights  as\t they exist  today  will  be
\n\t      illegal\tand   unconstitutional\t unless\t  it
\n\t      complies\twith  Part III in general  and\tArt.\n<\/p>\n
\t      13(2) in particular,\n<\/p>\n
\t      (v)   that   for\tabridging  or  taking\taway
\n\t      Fundamental  Rights, a Constituent  body\twill
\n\t      have to be, convoked; and\n<\/p>\n
\t      (vi)  that the two impugned Acts, namely,\t the
\n\t      Punjab  Security of Land Tenures Act, 1953  (X
\n\t      of 1953) and the Mysore Land Reforms Act, 1961
\n\t      (X of 1962) as amended by act XIV of 1965\t are
\n\t      valid under the Constitution not because\tthey
\n\t      are included in schedule 9 of the Constitution
\n\t      but  because the, are protected by Art.  31-A,
\n\t      and the President’s assent.\n<\/p>\n
(1)  46 C. L. R. 155.\n<\/p>\n
(2)  Legislative, Executive and Judicial Powers in Australia
\npp. 695-698.\n<\/p>\n
903<\/span><\/p>\n
In  view  of  my decision the several  petit  ions  will  be
\ndismissed, but without costs.  The State Acts Nos. 21-64  in
\nthe Ninth Schedule will have to be tested under Part HI with
\nsuch protection as Arts. 31 and 31 A give to them.
\nBefore\tparting\t with  this  case  I  only  hope  that\t the
\nFundamental Rights will be able to withstand the pressure of
\ntextual\t readings  by  “the depth  and\ttoughness  of  their
\nroots”.\n<\/p>\n
Bachawat, J The constitutionality of the Constitution First,
\nFourth and Seventeenth Amendment Acts is challenged on the .
\nground that the fundamental rights conferred by Part HI\t are
\ninviolable and immune from amendment.  It is said that\tart.
\n368 does not give any power of amendment and, in any  event,
\nthe  amending power is limited expressly by art.  13(2)\t and
\nimpliedly by the language of art. 368 and other articles  as
\nalso  the  preamble.   It is then said\tthat  the  power  of
\namendment  is abused and should be subject to  restrictions.
\nThe  Acts  are attacked also on the ground  that  they\tmade
\nchanges\t in arts. 226 and 245 and such changes could not  be
\nmade  without  complying  with\tthe  proviso  to  art.\t368.
\nArticle\t 31-B  is  subjected  to  attack  on  several  other
\ngrounds.\n<\/p>\n
The  constitutionality of the First Amendment was upheld  in
\nSri Sankari Prasad Singh Deo v. Union, of India and State of
\nBihar(1),  and that of the Seventeenth amendment, in  Sajjan
\nSingh is that these cases were
\nPart  XX of the Constitution specifically provides  for\t its
\namendment.   It consists of a single article-.\tPart XX-  is
\nas follows
\n“PART XX.\n<\/p>\n
Amendment of the Constitution
\nProcedure for amendment of the Constitution\n<\/p>\n
368.\t  An amendment of this Constitution may be initiated
\nonly by the introduction of a Bill for the purpose in either
\nHouse  of  Parliament, and when the Bill is passed  in\teach
\nHouse  by a majority of the total membership of\t that  House
\nand by a majority of not less than two-thirds of the members
\nof  that House present and voting, it shall be presented  to
\nthe  President\tfor his assent and upon\t such  assent  being
\ngiven  to the Bill the Constitution shall stand\t amended  in
\naccordance with the terms of the Bill :\n<\/p>\n
Provided that if such amendment seeks to make any change in\n<\/p>\n
 (a) article 54. article 55, article 73, article 162 or
\n(1)  [1952] S.C.R. 89.\n<\/p>\n
(2) [1965] 1 S.C.R. 933.\n<\/p>\n
1196712 S.C.IL
\n 904<\/span>\n<\/p>\n
\t      (b)  Chapter  IV of Part V, Chapter V of\tPart
\n\t      VI, or Chapter 1 of Part XI, or\n<\/p>\n
\t      (c)  any of the Lists in the Seventh Schedule,
\n\t      or\n<\/p>\n
\t      (d)  the\t  representation   of\tStates\t  in
\n\t      Parliament, or\n<\/p>\n
\t      (e)  the provisions of this article,
\n\t      the   amendment  shall  also  require  to\t  be
\n\t      ratified by the Legislatures of not less\tthan
\n\t      one-half of the States by resolutions to\tthat
\n\t      effect passed by those Legislatures before the
\n\t      Bill  making provision for such  amendment  is
\n\t      presented to the President for assent.”\n<\/p>\n
The   contention  that\tarticle\t 368  prescribes  only\t the
\nprocedure of amendment cannot be accepted.  The article\t not
\nonly  prescribes the procedure but also gives the  power  of
\namendment.   If\t the procedure of art.368 is  followed,\t the
\nConstitution  “shall stand amended” in accordance  with\t the
\nterms  of  the bill.  It is because the power  to  amend  is
\ngiven  by the article that the Constitution stands  amended.
\nThe  proviso is enacted on the assumption that\tthe  several
\narticles  mentioned in it are amendable.  The object of\t the
\nproviso is to lay down a stricter procedure for amendment of
\nthe articles which would otherwise have been amendable under
\nthe  easier procedure of the main part.\t There is  no  other
\nprovision in the Constitution under which these articles can
\nbe amended.\n<\/p>\n
Articles  4, 169, Fifth Schedule Part D, and Sixth  Schedule
\nPara  21 empower the Parliament to. pass laws  amending\t the
\nprovisions  of the First, Fourth, Fifth and Sixth  Schedules
\nand  making amendments of the Constitution consequential  on
\nthe  abolition\tor creation of the legislative\tcouncils  in
\nStates, and by express provision no such law is deemed to be
\nan  amendment of the Constitution for the purposes  of\tart.\n<\/p>\n
368.   All  other  provisions of  the  Constitution  can  be
\namended\t by  recourse to art. 368 only.\t  No  other  article
\nconfers the power of amending the Constitution.
\nSome  articles are expressed to continue until provision  is
\nmade  by law [see articles 59(3), 65(3), 73(2),\t 97,  98(3),
\n106, 135, 142(1), 148(3), 149, 171(2), 186, 187(3),  189(3),
\n194(3), 195, 221(2), 283(1) and (2), 285, 313, 345,  372(1),
\n373].\tSome  articles\tcontinue unless\t provision  is\tmade
\notherwise  by law [see articles 120(2), 133(3),\t 210(2)\t and
\nsome  continue\tsave  as  otherwise  provided  by  law\t[see
\narticles  239(1),  287].  Some articles are subject  to\t the
\nprovisions of any law to be made [see articles 137,  146(2),
\n225,  229(2), 241(3), 300(1), 309], and some  are  expressed
\nnot to derogate from the power of making laws [see  articles
\n5  to  11, 289(2)].  All these articles\t are  transitory  in
\nnature and cease to operate when provision is made by law on
\nthe subject.  None of them can be regarded as conferring
\n905<\/span>
\nthe  power  of\t‘amendment of  the  Constitution.   Most  of
\narticles continue until provision is made by law made by the
\nParliament.   But  some\t of them continue  until  or  unless
\nprovision is made by the State Legislature (see articles 189
\n(3),  194 (3), 195, 210(2), 229(2), 300(1), 345) or  by\t the
\nappropriate  legislature (see articles 225,  241(3));  these
\narticles  do not confer a power of amendment, for the  State
\nlegislature  cannot  amend the Constitution.   Many  of\t the
\nabove-mentioned\t articles  and\talso  other  articles\t(see
\narticles 22(7), 32(3), 33 to 35, 139,140, 239A, 241, 245  to
\n250,  252, 253, 258(2), 286(2), 302, 307, 315(2),  327,\t 369
\ndelegate powers of making laws to the legislature.  None  of
\nthese articles gives the power of amending the Constitution.
\nIt  is\tsaid  that art. 248 and List 1 item 97\tof  the\t 7th
\nSchedule read with art. 246 give the Parliament the power of
\namending  the  Constitution.  This argument  does  not\tbear
\nscrutiny.   Art.  248 and List I item 97 vest  the  residual
\npower  of legislation in the Parliament.  Like other  powers
\nof legislation, the residual power of the Parliament to make
\nlaws  is by virtue of art. 245 subject to the provisions  of
\nthe Constitution.  No law made under the residual power\t can
\nderogate  from the Constitution or amend it.  If such a\t law
\npurports to amend the Constitution, it will ‘be void.  Under
\nthe  residual  power of legislation, the Parliament  has  no
\npower to make any law with respect to any matter  enumerated
\nin  Lists II and III of the 7th Schedule but under art.\t 368
\neven  Lists  II and III can be amended.\t The  procedure\t for
\nconstitutional\tamendments under art. 368 is different\tfrom
\nthe  legislative  procedure  for  passing  laws\t under\t the
\nresidual   power  of  legislation.   If\t  a   constitutional
\namendment could be made by recourse to the residual power of
\nlegislation and the ordinary legislative procedure, art. 368
\nwould  be  meaningless.\t  The power  of\t amending  the\tCon-
\nstitution is to be found in art. 368 and not in art. 248 and
\nList I item 97.\t Like other Constitutions, our\tConstitution
\nmakes express provisions for amending the Constitution.
\nThe  heading  of art. 368 shows that it is a  provision\t for
\namendment  of the Constitution, the marginal note refers  to
\nthe  procedure for amendment and the body shows that if\t the
\nprocedure is followed, the Constitution shall stand  amended
\nby the power of the article.\n<\/p>\n
Chapter\t VIII of the Australian Constitution consists  of  a
\nsingle section (S. 128).  The heading is “Alteration of\t the
\nConstitution”.\t The marginal note is “Mode of altering\t the
\nConstitution”.\t The  body  lays  down\tthe  procedure\t for
\nalteration.   The  opening words are  :\t “This\tConstitution
\nshall  not  be\taltered except\tin  the\t following  manner”.
\nNobody\thas  doubted  that the section gives  the  power  of
\namending the Constitution.  Wynes in his book on Legislative
\nExecutive and Judicial Powers in Australia, third edition,
\n906<\/span>
\np.   695,  stated  “The\t power,\t of  amendment\textends\t  to
\nalteration  of\tthis  Constitution’ which  includes  S.\t 128
\nitself.\t It is true that S.   128  is negative in form,\t but
\nthe power is impled by the terms of\tthe section.”
\nArticle 5 of the United States Constitution provides that  a
\nproposal  for amendment of the constitution by the  Congress
\non  being ratified by the three-fourth of the states  “shall
\nbe  valid  to  all  intents and purposes  as  part  of\tthis
\nConstitution”.\t The accepted view is that “power  to  amend
\nthe  Constitution  was\treserved  by  article  5”,  Per\t Van
\nDevanter,  J,  in Rhode Island v. Palmer(1): Art  .368\tuses
\nstronger  words.  On the passing of the bill  for  amendment
\nunder  art.  368, “the Constitution shall stand\t amended  in
\naccordance with the terms of the bill”.\n<\/p>\n
Article 368 gives the power of amending “this-Constitution”.
\nThis  Constitution  means  any\tof  the\t provisions  of\t the
\nConstitution.\tNo limitation on the amending power  can  be
\ngathered  from\tthe language of this article.\tUnless\tthis
\npower  is  restricted  by  some\t ,other\t provision  of\t the
\nConstitution, each and every part of the Constitution may be
\namended\t under art. 368.  AR the articles mentioned  in\t the
\nproviso\t are necessarily within this amending  power.\tFrom
\ntime to time major amendments have been made in the articles
\nmentioned  in  the  proviso  (see articles  80\tto  82,\t 124
\n(2A),131,214,217(3),222,(k2)  224A,226(IA)  230,231,241\t and
\nSeventh Schedule) and other articles (see articles 1, 3, 66,
\n71, 85, 153. 158, 170, 174, 239, 239A, 240, 258A, 2,69, 280,
\n286,  290A, 291, 298, 305, 311, 316, 350A, 350B, 371,  371A,
\n372A,\t376,  379  to  391,  the  first\t third\tand   fourth
\nschedules),   and  minor  amendments  have  been   made\t  in
\ninnumerable articles.  No one has doubted so far that  these
\narticles  are  amendable.   Part  III  is  a  part  of\t the
\nConstitution and is equally amendable.\n<\/p>\n
It is argued that a Constitution Amendment Act.is a law\t and
\ntherefore  the\tpower  of amendment given  by  art.  368  is
\nlimited by art. 13(2)., Art. 13(2) is in these terms:–\n<\/p>\n
\t      “13(1)…………………………………
\n\t      (2)   The\t State shall not make any law  which
\n\t      takes away or abridges the tights conferred by
\n\t      this Part and any law\tmade\t\t  in
\n\t      contravention  of\t this clause shall,  to\t the
\n\t      extent of the contravention, be void.”\n<\/p><\/blockquote>\n
Now  art. 3 68 gives, the power of amending each  and  every
\nprovision  of the Constitution Art. 13 (2) is a part of\t the
\nConstitution and is within the reach of the amending  power.
\nIn other words art 13 (2) is subject to the overriding power
\nof  an.\t 368  and  is controlled by it.\t  Art.\t368  is\t not
\ncontrolled by art. 13 (2) and the
\n(1) 253 U.S. 350 : 64 LE.d. 946.\n<\/p>\n
907<\/span><\/p>\n
prohibitory injunction in art. 13(2) is not directed against
\nthe amending power Looked at from this broad angle, art.  13
\n(2) does not forbid the making of a constitutional amendment
\nabridaing or taking away any right confesed by Part III.
\nLet us now view the matter from a narrower angle.  The\tcon-
\ntention is that a constitutional amendment under art. 368 is
\na law within the meaning of art. 13. 1 am inclined to  think
\nthat this narrow contention must also be rejected.
\nIn  art.  13  unless the context  otherwise  provides  ‘law’
\nincludes  any ordinance, order, bye-law,  rule,\t regulation,
\nnotification,  custom  or usage having in the  territory  of
\nIndia  the force of law [article 13(3).(a)].  The  inclusive
\ndefinition  of\tlaw  in art. 13 (3)  (c)  neither  expressly
\nexcludes  nor  expressly  includes  the\t Constitution  or  a
\nconstitutional amendment.\n<\/p>\n
Now  the term law’ in its widest and generic sense  includes
\nthe Constitution and a constitutional amendment.  But in the
\nconstitution this term is employed to designate an  ordinary
\nstatute\t or  legislative  act in  contradistinction  to\t the
\nConstitution\tor   a\t constitutional\t  amendment.\t The
\nConstitution  is  the basic law providing the  framework  of
\ngovernment  and\t creating the organs for the making  of\t the
\nlaws.  The distinction between the Constitution and the laws
\nis so fundamental that the Constitution is not regarded as a
\nlaw  or\t a  legislative act.   The  Constitution  means\t the
\nConstitution  as amended.  An amendment made  in  conformity
\nwith  art.  368\t is  a part of\tthe.   Constitution  and  is
\nlikewise not a law.\n<\/p>\n
The  basic theory of our Constitution is that it  cannot  be
\nchanged by a law or legislative Act.  It is be-cause special
\nprovision is made by articles 4, 169, Fifth Schedule Part  D
\nand   Sixth  Schedule  para  21\t that  some  parts  of\t the
\nConstitution are amendable by ordinary laws.  But by express
\nprovision  no  such  law is deemed to  be  a  constitutional
\namendment.  Save as express.1y provided in articles 4,\t169,
\nFifth Schedule Part D and Sixth Schedule para 21, no law can
\namend  the  Constitution, and a law which purports  to\tmake
\nsuch an amendment is void.\n<\/p>\n
In Marbury v. Madison(1), Marshall, C.J., said:\n<\/p>\n
\t      “It   is\ta  proposition\ttoo  plain   to\t  be
\n\t      contested, that the Constitution controls\t any
\n\t      legislative Act repugnant to it; or, that\t the
\n\t      legislature  may alter the Constitution by  an
\n\t      ordinary Act.\n<\/p><\/blockquote>\n
\t      Between these alternatives there is no  middle
\n\t      ground.  The Constitution is either a superior
\n\t      paramount law, unchangeable by ordinary means,
\n\t      or it is on a level with
\n\t      (1)   [1803]  1 Cranch 137,177:. 2 L. Ed.\t 60,\n<\/p><\/blockquote>\n
\t      73.
\n908<\/span>\n<\/p><\/blockquote>\n
 Ordinary legislative Acts, and, like other Acts, is  alter-
\nable when the legislature shall please to alter it.  If\t the
\nformer\tpart of the alternative be true, then a\t legislative
\nAct contrary to the Constitution is not law; if the,  latter
\npart   be  true,  then\twritten\t constitutions\tare   absurd
\nattempts, on the part of the people, to limit a power in its
\nown nature illimitable.\n<\/p>\n
Certainly  all those who have framed  written  constitutions
\ncontemplate  them as forming the fundamental  and  paramount
\nlaw  of the nation, and, consequently, the theory  of  every
\nsuch  government  must be, that an Act of  the\tLegislature,
\nrepugnant  to  the Constitution, is void.   This  theory  is
\nessentially  attached  to  a written  constitution,  and  is
\nconsequently to be considered, by this court, as one of\t the
\nfundamental principles of our society.”\n<\/p>\n
It  is\tbecause a Constitution Amendment Act can  amend\t the
\nConstitution  and  is  not a law that art.  368\t avoids\t all
\nreference  to  law making by the Parliament.  As soon  as  a
\nbill is passed in conformity with art. 368 the\tConstitution
\nstands amended in accordance with the terms of the bill.
\nThe  power of amending the Constitution is not\tan  ordinary
\nlaw making power.  It is to be found in art. 368 and not  in
\narticles 245, 246 and 248 and the Seventh Schedule.
\nNor  is\t the procedure for amending the\t Constitution  under
\nart.  368  an  ordinary law making  procedure.\t The  common
\nfeature\t of  the  amending process under art,  368  and\t the
\nlegislative procedure is that a bill must be passed by\teach
\nHouse  of Parliament and assented to by the  President.\t  In
\nother  respects the amending process under art. 368 is\tvery
\ndifferent   from   the\tordinary   legislative\t proms.\t   A
\nconstitution  amendment\t Act  must be initiated\t by  a\tbill
\nintroduced  for that purpose in either House of\t Parliament.
\nThe  bill must be passed in each House by not less than\t two
\nthirds\tof  the members present and  voting,  the  requisite
\nquorum\tin  each  House\t being\ta  majority  of\t its   total
\nmembership;  and  in  cases coming under  the  proviso,\t the
\namendment  must be ratified by the legislature of  not\tless
\nthan one half of the States.  Upon the bill so passed  being
\nassented  to  by  the President,  the  Constitution  stands.
\namended\t in  accordance\t with the terms of  the\t bill.\t The
\nordinary  legislative  process\tis  much  easier.   A\tbill
\ninitiating a law may be passed by a majority of the  members
\npresent and voting at a sitting of each House or at a  joint
\nsitting of the Houses, the quorum for the meeting of  either
\nHouse being one tenth of the total number of members of\t the
\nHouse.\t The  bill  so passed on being assented\t to  by\t the
\nPresident  becomes a law.  A bill though passed by  all\t the
\nmembers of both Houses cannot take effect as a
\n\t      909<\/span>
\n\t      Constitution   amendment\tAct  unless  it\t  is
\n\t      initiated for the express purpose of  amending
\n\t      the Constitution.\n<\/p>\n
\t      The essence of ,a written Constitution is that
\n\t      it cannot be changed by an ordinary law.\t But
\n\t      most  written Constitutions Provide for  their
\n\t      organic  growth by constitutional\t amendments.
\n\t      The   main method of constitutional amendments
\n\t      are (1) by the ordinary legislature but  under
\n\t      certain\trestrictions,  (2)  by\tthe   people
\n\t      through  a- referendum, (3) by a\tmajority  of
\n\t      all  the\tunits of a Federal State; (4)  by  a
\n\t      special  convocation,  see C.F.  strong  Modem
\n\t      Political institutions, 5th Edition, pp.\t133-
\n\t      4,146.   Our Constitution hag by\tarticle\t 368
\n\t      chosen  the  first and a\tcombination  of\t the
\n\t      first and the third methods.\n<\/p>\n
\t      The   special  attributes\t of   constitutional
\n\t      amendment\t under art. 368 indicate that it  is
\n\t      not  a law or a legislative act.\tMoreover  it
\n\t      will  be seen presently that the\tConstitution
\n\t      makers  could not have intended that the\tterm
\n\t      “law”  in art. 13 (2) would include a  consti-
\n\t      tutional amendment under art. 368.\n<\/p>\n
\t      If  a constitutional amendment creating a\t new
\n\t      fundamental right and incorporating it in Part
\n\t      III  were a law, it would not be open to\tthe.\n<\/p>\n
\t      parliament  by  a subsequent  constitution  to
\n\t      abrogate the new fundamental right for such an
\n\t      amendment\t would\tbe repugnant to\t Part  ]III.
\n\t      Bit  the\tconclusion is absurd for.  the\tbody
\n\t      which  created  the right can surely  take  it
\n\t      away by the same process.\n<\/p>\n
\t      Shri  A. K. Sen relied upon a decision of\t the
\n\t      Oklahoma\tSupreme Court in Riley v.  Carter(1)
\n\t      where  it was held that for some purposes\t the
\n\t      Constitution of a State was one of the laws of
\n\t      the  State.   But even in\t America,  the\tterm
\n\t      “law’   does   not   ordinary   include\tthe-\n<\/p>\n
\t      Constitution or a constitutional amendment  in
\n\t      this  connection,\t I will read  the  following
\n\t      passage  in  Corpus Juris Secundum,  Vol,\t XVI
\n\t      Title Constitutional Law Art. 1, P. 20:\n<\/p>\n
\t      .lm15
\n\t      “The   term   ‘constitution’   is\t  ordinarily
\n\t      employed\tto  designate  the  organic  law  in
\n\t      contradistinction\t to the term law,  which  is
\n\t      generally\t  used\tto  designate  statutes\t  Or
\n\t      legislative enactments.  Accordingly the\tterm
\n\t      ‘law.’ under this distinction does not include
\n\t      a constitutional amendment.  However, the term
\n\t      “law’  may, in accordance with the context  in
\n\t      which  it is used, comprehend or included
\n\t      the constitution or a constitutional provision
\n\t      or  amendment.  A statute and a  constitution,
\n\t      although of unequal dignity,, are both ‘laws’,
\n\t      and rest on the will of the people.”\n<\/p>\n
(1)  88 A:A.L.R. 1008.\n<\/p>\n
910<\/span><\/p>\n
In  our Constitution, the expression “law” does not  include
\neither the constitution or a constitutional amendment.\t For
\nall  these  reasons  we\t must  hold  that  a  constitutional
\namendment under art. 368 is not a law within the meaning  of
\nart. 13 (2).\n<\/p>\n
I find no conflict between articles 13(2) and 368.  The\t two
\narticles  operate in different fields.\tArt. 13(2)  operates
\non   laws;  it\tmakes  no  express  exception  regarding   a
\nconstitutional amendment, because a constitutional amendment
\nis not a law and is outside its purview.  Art. 368  occupies
\nthe  field  of\tconstitutional\tamendments.   It  does\t not
\nparticularly  refer  to the, articles in Part III  and\tmany
\nother  articles, but on its true construction it  gives\t the
\npower of amending each and every provision of the  Constitu-
\ntion and necessarily takes in Part III.\t Moreover, art.\t 368
\ngives the power of amending itself, and if express power for
\namending  the  provisions of Part III were  needed,  such  a
\npower could be taken by an amendment of the article.
\nIt  is\tsaid that the non-obstante clause in art.  35  shows
\nthat the article is not amendable.  No one has amended\tart.
\n35 and the point does not arise.  Moreover, the non-obstante
\nclause is to be found in articles 258(1), 364, 369, 370\t and
\n371A.\tNo  one has suggested that these  articles  are\t not
\namendable.\n<\/p>\n
The next contention is that there are implied limitations on
\nthe amending power.  It is said that apart from art. 13\t (2)
\nthere  are expressions in Part III which indicate  that\t the
\namending power ,cannot touch Part III.\tPart III is headed ”
\nfundamental  rights”.  The right to move the  Supreme  Court
\nfor  enforcement  of the rights conferred by  this  Part  is
\nguaranteed  by\tart. 32 and cannot be  suspended  except  as
\notherwise provided for by the Constitution (art. 32(4)).  It
\nis  said  that\tthe  terms  “fundamental”  and\t “guarantee”
\nindicate  that\tthe  rights conferred by  Part\tHI  are\t not
\namendable.  The argument overlooks the dynamic character  of
\nthe  Constitution.  While the Constitution is static, it  is
\nthe fundamental law of the country, the rights conferred  by
\nPart  III  are,\t fundamental, the right\t under\tart.  32  is
\nguaranteed, and the principles of State policy enshrined  in
\nPart  IV are fundamental ‘m the governance of  the  country.
\nBut  the Constitution is never at rest; it changes with\t the
\nprogress  of  time.   Art. 368 provides the  means  for\t the
\ndynamic\t changes in the Constitution.  The scale  cf  values
\nembodied in Parts III and IV is not immortal.  Parts III and
\nIV  being  parts  of the Constitution are  not\timmune\tfrom
\namendment under art. 368.\n<\/p>\n
Demands\t for safeguards of the rights embodied in  Part\t III
\nand IV may be traced to the Constitution of India Bill 1895,
\nthe  Congress  Resolutions  between  1917  and\t1919,\tMrs.
\nBeasan’s  Commonwealth of India Bill of 1925, the Report  of
\nthe Nehru Committee set up under the Congress Resolution  in
\n1927, the Congress
\n\t\t\t    911<\/span>
\nResolution of March. 1931 and the Sapru Report of 1945.\t The
\nAmerican bill of rights,the constitutions of other countries
\nthe  declaration of human rights by the United\tNations\t and
\nother declarations and charters gave impetus to the  demand.
\nIn  this  background the Constituent  Assembly\tembodied  in
\npreamble to the Constitution the resolution to secure to all
\ncitizens social, economic and political justice, liberty  of
\nthought, expression, belief, faith and worship, equality  of
\nstatus\tand opportunity and fraternity assuring the  dignity
\nof   the  individual  and  the\tunity  of  the\tnation\t and
\nincorporated safeguards as to some human rights in Parts III
\nand  IV of the Constitution after separating them  into\t two
\nparts  on  the Irish model.  Part III contains\tthe  passive
\nobligations  of the State.  It enshrines the right of  life,
\npersonal liberty, expression, assembly, movement, residence,
\navocation,  property, culture and education,  constitutional
\nremedies, and protection against exploitation and  obnoxious
\npenal  laws.  The State shall not deny these rights save  as
\nprovided  in the Constitution.\tPart IV contains the  active
\nobligations  of the State.  The State shall secure a  social
\norder in which social, economic and political justice  shall
\ninform\tall the institutions of national life.\t Wealth\t and
\nits  source of production shall not be concentrated  in\t the
\nhands of the few but shall be distributed so as to  subserve
\nthe  common  good,  and there shall  be\t adequate  means  of
\nlivelihood for all and equal pay for equal work.  The  State
\nshall  endeavour  to  secure  the  health  and\tstrength  of
\nworkers,  the right to work, to education and to  assistance
\nin  cases  of want, just and humane conditions\tof  work,  a
\nliving\twage  for workers, a uniform civil  code,  free\t and
\ncompulsory  education  for children.  The State\t shall\ttake
\nsteps\tto   organize  village\t panchayats,   promote\t the
\neducational and economic interests of the weaker sections of
\nthe  people,  raise the level of nutrition and\tstandard  of
\nliving,\t improve  public health. organize  agricultural\t and
\nanimal\thusbandry separate the judiciary from executive\t and
\npromote international peace and security.
\nThe  active obligations of the State under Part IV  are\t not
\njusticiable.  If a law made by the State in accordance\twith
\nthe fundamental directives of Part IV comes in conflict with
\nthe  fundamental rights embodied in Part II the law  to\t the
\nextent\tof repugnancy is void.\tSoon after the\tConstitution
\ncame  into force, it became apparent that laws for  agrarian
\nand other reforms for implementing the directives of Part IV
\nwere  liable  to  be  struck  down  as\tthey  infringed\t the
\nprovisions  of Part III.  From time to\ttime  constitutional
\namendments  were  proposed  with  the  professed  object  of
\nvalidating  these laws, superseding certain judicial  inter-
\npretations  of\tthe Constitution and curing defects  in\t the
\noriginal  Constitution.\t  The First, Fourth,  Sixteenth\t and
\nSeventeenth   Amendments  made\timportant  changes  in\t the
\nfundamental rights.  The First amendment introduced cl.\t (4)
\nin art. 15 enabling the State to make special provisions for
\nthe benefit of the socially and
\n912<\/span>
\neducationally  backward\t class\tof  citizens,  the,scheduled
\ncastes and the scheduled tribes in derogation of articles 15
\nand 29,(2) with a view to implement art. 46 and to supersede
\nthe decision in State of Madras v. Champakam<\/a>(1), substituted
\na  new cl. (2) in art. 19 with retrospective effect  chiefly
\nwith  a\t view to be in public order within  the\t permissible
\nrestrictions  and  to  supersede  the  decisions  in  Romesh
\nThappar\t v.  State of Madras<\/a>(‘), Brij Bhushan  v.  State  of
\nDelhi<\/a>(-‘),,  amended cl. (6) of art. 19 with a view to\tfree
\nstate trading monopoly from the test of reasonable ness\t and
\nto supersede the decision in Moti Lal v. Government of State
\nof Uttar Pradesh<\/a>().  Under the stress of the First amendment
\nit  is\tnow  suggested\tthat  Champakam’s  case(‘),   Romesh
\nThappar’s   case(‘)  and  Motilal’s(4)\tcase  were   wrongly
\ndecided,  and the amendments of articles 15 and 19  were  in
\nharmony\t with  the original Constitution and  made  no\treal
\nchange in it.  It is to be, noticed however that before\t the
\nFirst amendment no attempt was made to overrule these cases,
\nand  but for the amendments, these judicial  interpretations
\nof  the Constitution would have continued to be the  law  of
\nthe land.  The Zamindari Abolition Acts were the subject  of
\nbitter\tattack\tby  the zamindars.   The  Bihar\t Act  though
\nprotected by cl. 6 of art. 31 from attack under art. 31\t was
\nstruck down as violative of art. 14 by the Patna High  Court
\n(see  the  State of Bihar v.  Maharajadhiraj  Sri  Kameshwar
\nSingh<\/a>(5),  while the Uttar Pradesh Act (see Raja  Surya\t Pal
\nSingh v. The State. of U.P.) (6) and the Madhya Pradesh\t Act
\n(see  Visweshwar Rao v. State.of Madhya Pradesh<\/a> (7),  though
\nupheld\tby  the\t High Courts were under\t challenge  in\tthis
\nCourt.\t The First amendment therefore introduced art.\t31A,
\n31B and the Ninth Schedule with a view to give effect to the
\npolicy of agrarian reforms, to secure distribution of  large
\nblocks\tof land in the hands of the zamindars in  conformity
\nwith  art. 39, and to immunize specially 13 State Acts\tform
\nattack under Part Ill.\tThe validity of the First  Amendment
\nwas  upheld in Sri Sankari Prasad Singh Deo’s case(8).\t The
\nFourth amendment changed art. 31(2) with a view to supersede
\nthe decision in State of West Bengal v. Bela Banerjee<\/a>(9) and
\nto  provide that the adequacy of compensation  for  property
\ncompulsorily acquired would not be justiciable, inserted Cl.
\n(2A)  in art. 31 with a view to supersede the  decisions  in
\nthe State of West Bengal v. Subodh Gopal Bose<\/a>(“), Dwarka Das
\nShrinivas v. Sholapur Spinning and Weaving Co., Ltd.,<\/a>(“),
\n(1) [1951] S.C.R. 525.\n<\/p>\n
(2) [1950] S.C.R, 605.\n<\/p>\n
(3) [1952] S.C.R. 654.\n<\/p>\n
(4) I.L.R. [1951] 1 All. 269.\n<\/p>\n
(5) [1952] S.C.R. 389 (A.I.R. 1951 Pat. 91).
\n(6) (1952] S.C.R. 1056 (A.I.R. 1961).\n<\/p>\n
(7) [1952] S.C.R. 1020.\t All. 674.)
\n(8) [1952] S.C.R. 89.\t (9) [1954] S.C.R. 558.
\n(10) 11954] S.C.R. 587.(11) [1954] S.C.R. 674.\n<\/p>\n
913<\/span><\/p>\n
Saghir\tAhmad v. The State of Uttar Pradesh,(1) and to\tmake
\nit  clear  that\t clauses (1) and (2) of art.  31  relate  to
\ndifferent  subject’  matters and a deprivation\tof  property
\nshort of transference of ownership or right to possession to
\nthe State should not be treated as compulsory acquisition of
\nproperty.  The Fourth amendment also amended art. 31A with a
\nview to protect certain laws other than agrarian laws and to
\ngive  effect to the policy of fixing ceiling limits on\tland
\nholdings and included seven more Acts in the Ninth Schedule.
\nOne  of the Acts (item 17) though upheld in Jupiter  General
\nInsurance Co. v. Rajgopalan(2) was the subject of  criticism
\nin Dwarka Das’s case (3 ) . The Sixteenth amendment  amended
\nclauses (2), (3) and (4) of art. 19 to enable the imposition
\nof   reasonable\t  restrictions\tin  the\t interest   of\t the
\nsovereignty   and  integrity  of  India.   The\t Seventeenth
\namendment amended the definition of estate in art. 31A\twith
\na view to supersede the decisions in Karimbil Kunhikoman  v.
\nState  of Kerala<\/a> (4 ) and A. P. Krishnaswami Naidu v.  State
\nof Madras(‘) and added a proviso to art. 31A and included 44
\nmore  Acts  in the Ninth Schedule, as some of the  Acts\t had
\nbeen  struck down as unconstitutional.\tThe validity of\t the
\nSeventeenth amendment was upheld in Sajjan Singh’s  case(‘).
\nSince 1951, numerous decisions of this Court have recognised
\nthe   validity\t of  the  First,  Fourth   and\t Seventeenth
\namendments.   If the rights conferred by Part III cannot  be
\nabridged  or  taken away by constitutional  amendments,\t all
\nthese amendments would be invalid.  The Constitution  makers
\ncould  not have intended that the rights conferred  by\tPart
\nTIT could not be altered for giving effect to the policy  of
\nPart TV.  Nor was it intended that defects in Part III could
\nnot   be   cured  or  that  possible  errors   in   judicial
\ninterpretations\t of  Part  III could  not  be  rectified  by
\nconstitutional amendments.\n<\/p>\n
There  are, other indications in the Constitution  that\t the
\nfundamental rights are not intended to be inviolable.\tSome
\nof  the articles make express provision for  abridgement  of
\nsome  of the fundamental rights by law (see articles  16(3),
\n19(1) to (6), 22(3), 23(2), 25(2), 28(2), 31(4) to (6),\t 33,\n<\/p>\n
34).   Articles\t 358  and  359\tenable\tthe  suspension\t  of
\nfundamental  rights  during emergency.\tLikewise,  art.\t 368
\nenables\t amendment  of the Constitution\t including  all\t the
\nprovisions of Part Ill.\n<\/p>\n
It is argued that the preamble secures the liberties grouped
\ntogether in Part III and as the preamble cannot be  amended,
\nPart III is not amendable.  The argument overlooks that\t the
\npreamble  is  mirrored in the entire Constitution.,  If\t the
\nrest of the Constitution is amendable, Part III cannot stand
\non a higher
\n(1)  [1954) S.C.R. 1218.\n<\/p>\n
(3)  [1954] S.C.R. 674,706.\n<\/p>\n
(5)  [1964] 7 S.C.R. 82.\n<\/p>\n
(2)  A.I.R. 1952 Pun. 9.\n<\/p>\n
(4)  [1962] Supp.  I S.C.R. 829.\n<\/p>\n
(6)  [1965] 1 S.C.R. 933.\n<\/p>\n
914<\/span><\/p>\n
control\t the  unambiguous language of the  articles  of\t the
\nConstitution, see’ Wynes, Legislative Executive and Judicial
\nPowers in Australia third edition, pp. 694-5; in Re Berubari
\nUnion & Exchange of Enclaves(“).  The last case decided that
\nthe  Parliament\t can  under art. 368 amend  art.  1  of\t the
\nConstitution  so as to enable the cession of a part  of\t the
\nnational  territory  to a foreign power, The  Court  brushed
\naside  the  argument that “in the transfer of the  areas  of
\nBerubari to Pakistan the fundamental rights of thousands  of
\npersons\t are  involved.” The case is an\t authority  for\t the
\nproposition  that  the Parliament can lawfully make  a\tcon-
\nstitutional amendment under art. 368 authorising cession  of
\na part of the national territory and thereby destroying\t the
\nfundamental   rights  of  the  citizens\t of   the   Effected
\nterritory,  and this power under art. 368 is not limited  by
\nthe preamble.\n<\/p>\n
It  is next argued that the people of India in\texercise  of
\ntheir  sovereign  power have placed the\t fundamental  rights
\nbeyond\tthe reach of the amending power.  Reliance is  place
\non  the\t following  passage in\tthe  judgment  of  Patanjali
\nSastri, J., in A. K. Gopalan V.\t   The State of Madras<\/a>(2):\n<\/p>\n
\t      “There  can  be no doubt\tthat,the  people  of
\n\t      India  have,  in exercise of  their  sovereign
\n\t      will as expressed in the Preamble, adopted the
\n\t      democratic ideal which assures to the  citizen
\n\t      the  dignity  of\tthe,  individual  and  other
\n\t      cherished human values as a means to the\tfull
\n\t      evolution\t and expression of his\tpersonality,
\n\t      and  in  delegating  to  the  Legislature\t the
\n\t      executive\t and the Judiciary their  respective
\n\t      powers   in  the\tConstitution,  reserved\t  to
\n\t      themselves  certain  fundamental\trights,\t so-
\n\t      called,  I apprehend, because they  have\tbeen
\n\t      retained by the people and made, paramount  to
\n\t      the  delegated  powers,  as  in  the
\n\t      American Model.”\n<\/p><\/blockquote>\n
I  find\t nothing  in  the  passage  contrary  to  the\tview
\nunequivocally  expressed  by the same learned Judge  in\t Sri
\nSankari\t Prasad\t Singh Deo’s(3) case  that  the\t fundamental
\nrights\tare amendable.\tThe power to frame the\tConstitution
\nwas  vested in the Constituent Assembly by s. 8 (1 ) of\t the
\nIndian\tIndependence  Act, 1947.  ‘The\tConstitution  though
\nlegal  in  its\torigin was revolutionary  in  character\t and
\naccordingly the Constituent Assembly exercised its powers of
\nframing\t the  Constitution in the name of the  people.\t The
\nobjective  resolution of the Assembly passed on January\t 22,
\n1947<\/span>
\n(1)  [1960] 3 S.C.R. 250,261-2,281
\n(2)[1950] S.C.R. 88, 98.\n<\/p>\n
(3) (1952] S.C.R. 89.\n<\/p>\n
915<\/span><\/p>\n
solemnly declared that all power and authority of  sovereign
\nindependent India, its constituent parts, and organs and the
\nGovernment  were derived from the people.  The\tpreamble  to
\nthe  Constitution declares that the people of India  adopts,
\nenacts\tand gives to themselves the Constitution.   In\tform
\nand in substance the Constitution emanates from the  people.
\nBy the Constitution. the people constituted themselves\tinto
\na republic.  Under the republic all public power is  derived
\nfrom  the  people and is exercised by  functionaries  chosen
\neither\t directly  or  ‘indirectly  by\tthe   people.\t The
\nParliament can exercise only such powers as are delegated to
\nit  under the Constitution.  The people acting\tthrough\t the
\nConstituent Assembly reserved for themselves certain  rights
\nand liberties and ordained that they shall not be  curtailed
\nby  ordinary legislation.  But the people by the  same\tCon-
\nstitution also authorised the Parliament to make  amendments
\nto, the Constitution.  In the exercise of the amending power
\nthe  Parliament has ample authority to abridge or take\taway
\nthe fundamental rights under Part III.\n<\/p>\n
It  is\turged that the word ‘amend’ imposes  the  limitation
\nthat   an   amendment  must  be\t an   improvement   of\t the
\nConstitution.  Reliance is placed on the dictum in Livermore
\nv. E. C. Waite(1): “On, the other hand, the significance  of
\nthe  term  ‘amendment’ implies such an\taddition  or  change
\nwithin\tthe lines of the original instrument as will  effect
\nan improvement, or better carry out the purpose for which it
\nwas  framed.” Now an attack on the eighteenth  amendment  of
\nthe  U.S.  Constitution based on this  passage\twas  brushed
\naside  by  the\tU.S. Supreme Court in the  decision  in\t the
\nNational   Prohibition(2)   case.   The\t  decision   totally
\nnegatived the contention that “an amendment must be confined
\nin its scope to, an alteration or improvement of that  which
\nis  already contained in the Constitution and cannot  change
\nits  basic  structure, include new grants of  power  to\t the
\nFederal Government nor relinquish, in the State those  which
\nalready\t  have\t been  granted\tto  it”,   see\t Cooley\t  on
\nConstitutional\tLaw, Chapter III Art. 5, pp. 46 & 47. 1\t may
\nalso  read a passage from Corpus Juris Secundum\t Vol.\tXVI,
\ntitle ‘Constitutional Law, p. 26 thus : “The term ‘amendment
\na-,  used  in the constitutional article giving\t Congress  a
\npower  of  proposal  includes  additions  to,  as  well\t  as
\ncorrections  of,  matters.  already treated,  and  there  is
\nnothing there which suggests that it is used in a restricted
\nsense.”\n<\/p>\n
Article 368 indicates that the term “amend” means  “change”.
\nThe  proviso is expressed to apply to amendments which\tseek
\nto make any “change” in certain articles.  The main part  of
\nart. 368
\n(1)  102 Cal. 11 3-25 L.R.A. 312.\n<\/p>\n
(2)  Rhode  Island v. Palmer-253 U.S. 350 : 64 L.  ed.\t947,
\n960, 978.\n<\/p>\n
916<\/span><\/p>\n
thus  gives  the power to amend or to make  changes  in\t the
\nConstitution.\tA change is not necessarily an\tunprovement.
\nNormally  the  change is made with the object of  making  an
\nimprovement,  but  the experiment may fail  to\tachieve\t the
\npurpose.   Even\t the plain dictionary meaning  of  the\tword
\n“amend”\t does not support the contention that  an  amendment
\nmust  take  an improvement, see\t Oxford\t English  Dictionary
\nwhere  the  word  “amend”  is defined thus  :  “4.  to\tmake
\nprofessed  improvements\t (in a measure\tbefore\tParliament);
\nformally  to alter ‘in detail, though practically it may  be
\nto  alter its principle so as to thwart it.” The  1st,\t4th,
\n16th  and. 17th Amendment Acts made changes in Part  III  of
\nthe  Constitution.  All the changes are authorized  by\tart.\n<\/p>\n
368.
\nIt  is\targued\tthat under the\tamending  power,  the  basic
\nfeatures  .,of the Constitution cannot be amended.   Counsel
\nsaid that they could not give an exhaustive catalogue of the
\nbasic  features,  but sovereignty, the\trepublican  form  of
\ngovernment the federal structure and the fundamental  rights
\nwere  some of the features.  The Seventeenth  Amendment\t has
\nnot derogated from the sovereignty, ,the republican form  of
\ngovernment  and\t the federal structure,\t and  ‘the  question
\nwhether they can be touched by amendment does not arise\t for
\ndecision.  For the purposes of these cases, it is sufficient
\nto say- that the fundamental rights are within the reach  of
\nthe amending power.\n<\/p>\n
It  is\tsaid that in the course of the last 16\tyears  there
\nhave  been numerous amendments in our  Constitution  whereas
\nthere  have  been  very\t few  amendments  of  the   American
\nConstitution  during ‘the last 175 years.  Our condition  is
\nnot  comparable\t with  the American.  The  dynamics  of\t the
\nsocial\trevolution  in our country may\trequire\t more  rapid
\nchanges.   Moreover every part of our Constitution  is\tmore
\neasily\tamendable than the American.  Alan Gledhill  in\t his
\nbook  “The Republic of India”, 1951 Edition, pp. 74 &  75  ,
\nsaid:\n<\/p>\n
\t      “The   Indian  Founding,\tFathers\t were\tless
\n\t      determined    than   were\t   their    American
\n\t      predecessors  to\timpose\trigidity  on   their
\n\t      Constitution…………………\t The  Indian
\n\t      Constitution  assigns  different\tdegrees\t  of
\n\t      rigidity to its different parts, but any\tpart
\n\t      of  it  can be more easily  amended  than\t the
\n\t      American Constitution.”\n<\/p><\/blockquote>\n
It  is\tsaid  that the Parliament is abusing  its  power  of
\namendment  by  making  too many frequent  changes.   If\t the
\nParliament  ‘has  the  power- to make  the  amendments,\t the
\nchoice\tof making- any particular amendment must be left  to
\nit.  Questions of policy cannot be debated in ‘ this  Court.
\nThe possibility of, abuse of a power  is not the test of its
\nexistence.  In Webb v. Outrim(1) lord
\n(1)  [1907] A.C. 81.\n<\/p>\n
917<\/span><\/p>\n
Hobhouse said, “If they find that on the due construction of
\nthe Act a legislative power falls within s. 92, it would  be
\nquite  wrong of them to deny its existence because  by\tsome
\npossibility  it\t may  be abused, or limit  the\trange  which
\notherwise  would be open to the Dominion Parliament”.\tWith
\nreference to the doctrine of implied prohibition against the
\nexercise  of power ascertained in accordance  with  ordinary
\nrules of construction, Knox C.J., in the Amalgamated Society
\nof  Engineers  v. The Adelaide Steams  Company\tLimited\t and
\nothers(1)  said,  “It  means  the  necessity  of  protection
\nagainst the aggression of some outside and possibly  hostile
\nbody.  :It  is\tbased  on distrust,  lest  powers,  if\tonce
\nconceded  to the least degree, might be abused to the  point
\nof  destruction.  But possible abuse of powers is no  reason
\nin British law for Emiting the natural force of the language
\ncreating them
\nThe  historical\t background in which  the  Constitution\t was
\nframed\tshows that the ideas embodied in Part III  were\t not
\nintended to be immutable.  The Constituent Assembly was corn
\nof  representatives of the provinces elected by,the  members
\nof  the\t lower\thouses of the  provincial  legislatures\t and
\nrepresentatives\t of the Indian States elected  by  electoral
\ncolleges  constituted by the rules.  The draft\tConstitution
\nwas released on February 26, 1948While the Constitution\t was
\non the anvil it was envisaged the, future Parliaments  would
\nbe elected on the basis of adult suffrage.  Such a provision
\nwas later incorporated in art. 326 of the Constitution.\t  In
\na special article written on August 15, 1948, Sir B., N. Rau
\nremarked:\n<\/p>\n
\t      “It seems rather illogical that a constitution
\n\t      should  be settled by a simple majority by  an
\n\t      assembly elected indirectly on a very  limited
\n\t      franchise and that it should not be capable of
\n\t      being amended in the same way by a  Parliament
\n\t      elected-and perhaps for the most Part  elected
\n\t      directly\tby adult suffrage”, (see B. N.\tRau’
\n\t      India’s\tConstitution  in  the  making,\t 2nd
\n\t      Edition p. 394).\n<\/p><\/blockquote>\n
The  conditions\t in  India were\t rapidly  changing  and\t the
\ncountry was in a state of flux politically and economically.
\nSir  B.\t N.  Rau therefore recommended that  the  Parliament
\nshould\tbe  empowered  to  amend  the  Constitution  by\t its
\nordinary  law  making process for at least  the\t first\tfive
\nyears.\t Earlier,  para 8 of the Suggestions of\t the  Indian
\nNational  Congress  of\tMay  12, 1946 and  para\t 15  of\t the
\nProposal  of the Cabinet Mission of May 16, 1946 had  recom-
\nmended\tsimilar powers of revision by the Parliament  during
\nthe  initial years or at stated intervals.  The\t Constituent
\nAssembly   did\tnot-  accept  these   recommendations.\t  On
\nSeptember  17,\t1949  an amendment (No. 304)  moved  by\t Dr.
\nDeshmukh providing
\n(1) 28 C.L.R. 129,151.\n<\/p>\n
Cf\/67-13
\n918<\/span>
\nfor  amendment\tof the Constitution at any time by  a  clear
\nmajority  in  each house of Parliament was  negatived.\t The
\nAssembly  was conscious that future Parliaments, elected  on
\nthe  basis of adult suffrage would be  more  representative,
\nbut they took the view that art. 368 provided a sufficiently
\nflexible   machinery   for  amending  all  part-,   of\t the
\nConstitution.\tThe  Assembly never entertain  the  proposal
\nthat any part of the Constitution including Part III  should
\nbe beyond the reach of the, amending power.  As a matter  of
\nfact, Dr. Deshmukh proposed an amendment (No. 212)  habiting
\nany  amendment\tof the rights with respect  to\tproperty  or
\notherwise  but\ton  September  17,  1949  he  withdrew\tthis
\nproposal  (we Constituent Assembly Debates  Vol.  IV  pp.  1
\n642-43).\n<\/p>\n
The best exposition of the Constitution is that which it has
\nreceived   from\t contemporaneous  judicial   decisions\t and
\nenactments.   We find a rare unanimity of view among  Judges
\nand   legislators   from  the  very  commencement   of\t the
\nConstitution  that  the fundamental rights  are\t within\t the
\nreach  of  the\tamending power.\t No one\t in  the  Parliament
\ndoubted\t  this\tproposition  when  the\tConstitution   First
\nAmendment  Act\tof 1951 was passed.  It is  remarkable\tthat
\nmost of the members of this Parliament were also. members of
\nthe Constituent Assembly.  In, S. Krishnan and Others v. The
\nstate  of Madras(1), a case decided on May 7, 1951 Bose,  J.
\nsaid:\n<\/p>\n
\t      “My   concept  of\t a  fundamental\t  right\t  is
\n\t      something\t which Parliament cannot touch\tsave
\n\t      by an amendment of the Constitution”. ,
\nIn  Sri\t Sankari  Prasad Singh\tDeo’s  case(2),\t decided  on
\nOctober\t  5,  1951,  this  Court  expressly  decided   that-\n<\/p><\/blockquote>\n
fundamental  rights  could be abridged by  a  constitutional
\namendment.   This view was acted upon in all the  subsequent
\ndecisions and was reaffirmed in Sajjan Singh’s case(3).\t Two
\nlearned\t Judges\t then  expressed some doubt  but  even\tthey
\nagreed with the rest of the Court in upholding the  validity
\nof the amendments.\n<\/p>\n
A  static  system of. laws is the worst\t  tyranny  that\t any
\nconstitution  can  impose upon a  country..  An\t unamendable
\nconstitution  means that all. reform and progress are  at  a
\nstandstill.   If  Parliament cannot amend Part\tIII  of\t the
\nConstitution  even by recourse to art. 368, no\tother  power
\ncan  do so.  There is no, provision in the Constitution\t for
\ncalling\t a convention for its revision or for submission  of
\nany proposal for amendment to the referendum.  Even if power
\nto call a convention or to submit a proposal. to the  refere
\nbe  taken  by  amendment of art. 368, Part  III.  would\t sip
\nremain\tunamendable on the assumption that a  constitutional
\namendment is a law.  Not even the unanimous vote of the 500
\n(1)  [1951] S.C.R. 621, 652.\n<\/p>\n
(2) [1952] S. C. R, 89.\n<\/p>\n
(3) [1965] 1 S. C. R. 933.\n<\/p>\n
919<\/span><\/p>\n
million\t citizens  or their representatives,  at  a  special
\nconvocation  could  amend Part III.  The deadlock  could  be
\nresolved  by  revolution only.\tSuch a consequence  was\t not
\nintended   by\tthe  framers  of  the\tConstitution.\t The
\nConstitution is meant to endure.\n<\/p>\n
It  has been suggested that the Parliament may\tprovide\t for
\nanother\t Constituent Assembly by amending  the\tConstitution
\nand  that  Assembly  can amend Part III\t and  take  away  or
\nabridge “the fundamental rights.  Now if this proposition is
\ncorrect,  a  suitable  amendment  of  the  Constitution\t may
\nprovide that the Parliament will be the Constituent Assembly
\nand there upon the Parliament may amend Part III.  If so,  I
\ndo not see why under the Constitution as it stands now,\t the
\nParliament  cannot  be\tregarded  as  a\t recreation  of\t the
\nConstituent  Assembly. for the special purpose of  making  a
\nconstitutional\tamendments  under  art.\t 368,  and  why\t the
\namending  power cannot be regarded a a constituent power  as
\nwas held in Sri Sankari Prasad-Singh Deo’s (1) case.
\nThe  contention that the constitutional amendments  of\tPart
\nIII  had  the effect (I changing articles 226  and  245\t and
\ncould  not be passed without complying with the\t proviso  to
\nart.  368 is not tenable; A constitutional  amendment  which
\ndoes not profess to amend- art. 226 directly or by inserting
\nor  striking words therein cannot be regarded as seeking  to
\nmake,  any  change  in\tit  and\t thus  falling\twithin\t the
\nconstitutional\tinhibition of the proviso.  Art.  226  gives
\npower  to  the\tHigh Court  throughout\tthe  territories  in
\nrelation to which it exercises jurisdiction to issue to\t any
\nperson\tor  authority within those  territories\t directions,
\norders\tand Writs for the enforcement of any of\t the  rights
\nconferred  by Part III and for any purpose- The\t Seventeenth
\nAmendment  made\t no  direct change in  art.  226.   It\tmade
\nchanges\t in  Part In and abridged or took away some  of\t the
\nrights conferred by that Part.\tAs a result of the  changes,
\nsome  of those rights no longer exist and as the High  Court
\ncannot\tissue writs for the enforcement of those rights\t its
\npower  under  art.  226 is affected  incidentally.   But  an
\nalteration  in the area of its territories or in the  number
\nof persons or authorities within those territories or in the
\nnumber of enforceable rights under Part III or other  rights
\nincidentally  affecting\t the Power of the High\tCourt  under
\nart.  226  cannot  be  regarded as  an’\t amendment  of\tthat
\narticle.\n<\/p>\n
Art.  245 empowers the Parliament and  the  Legislatures-of,
\nthe  States  to make laws subject to the provisions  of\t the
\nConstitution.\tThis  power to make laws is subject  to\t the
\nlimitations imposed by Part M. The abridgement of the rights
\nconferred   by\tPart  III  by  the   Seventeenth   Amendment
\nnecessarily  enlarged the scope of the legislate power,\t and
\nthus  affected\tart. 245 indirectly.   But  the\t Seventeenth
\namendment  made\t no direct change in art. 145  and  did\t not
\namend it.\n<\/p>\n
(1)  [1952] S.C.R. 89.\n<\/p>\n
920<\/span><\/p>\n
 Art  3 1B retrospectively validated the Acts  mentioned  in
\nthe  Ninth Schedule notwithstanding any judgment  decree  or
\norder  of  any court though they take away  or\tabridge\t the
\nrights conferred by Part Ill.  It is said that the Acts\t are
\nstill-bom and cannot be validated.  But by force of Art. 31B
\nthe  Acts are deemed never to have become void and  must  be
\nregarded as valid from their inception.\t The power to  amend
\nthe  Constitution  carries  with  it the  power\t to  make  a
\nretrospective  amendment.  It is Said that art. 3 1B  amends
\nart. 141 as it alters the law declared by this Court on\t the
\nvalidity  of the Acts.\tThis argument is baseless.   As\t the
\nConstitution  is  amended retrospectively,  the\t basis\tupon
\nwhich the judgments of this Court were pronounced no  longer
\nexists,\t and  the  law declared by this Court  can  have  no
\napplication.   It  is  said that art. 3 1B  is\ta  law\twith
\nrespect\t to land and other matters within the competence  of
\nthe  State Legislature, and the Parliament has no  power  to
\nenact such a law.  The argument is based on a misconception.
\nThe  Parliament has not passed any of the Acts mentioned  in
\nthe  Ninth Schedule.  Art. 3 IB removed\t the  constitutional
\nbar  on the making of the Acts.\t Only the  Parliament  could
\nremove\tthe bar by the Constitution amendment.\tIt has\tdone
\nso by art. 3 1 B. The Parliament could amend each article in
\nPart  III  separately  and provide that the  Acts  would  be
\nprotected from attack under each article.  Instead of amend-
\ning each article separately, the Parliament has by art. 3  1
\nB  made\t a comprehensive amendment of all  the\tarticles  by
\nproviding  that the Acts shall not be deemed to be  void  on
\nthe ground that they are inconsistent with any of them.\t The
\nActs  as  they\tstood  on  the\tdate  of  the\tConstitution
\nAmendments are validated.  By the last part of Art. 31B\t the
\ncompetent legislatures will continue to\t the power to repeal
\nor  amend the Acts.  The subsequent repeals  and  amendments
\nare  not validated.  If in future the competent\t legislature
\npasses\ta  repealing or amending Act which  is\tinconsistent
\nwith Part III it will be void.\n<\/p>\n
I  have, therefore, coma to the conclusion that\t the  First,
\nFourth,\t   Sixteenth   and   Seventeenth   Amendments\t are
\nconstitutional and am not void.\t If so, it is common  ground
\nthat these petitions must be
\nFor  the  last\t16  years  the\tvalidity  of  constitutional
\namendments of fundamental rights have been recognized by the
\npeople\tand all the organs of the government ‘including\t the
\nlegislature,\tthe    judiciary    and\t   the\t  executive.
\nRevolutionary, social and economic changes have taken  place
\non  the\t strength  of  the  First,  Fourth  and\t Seventeenth
\nAmendments.  Even if two views were possible on the question
\nof,  the  validity  of the amendments,\twe  should  not\t now
\nreverse\t our  previous decisions and pronounce\tthem  to  be
\ninvalid.   Having heard lengthy arguments on the question  I
\nhave
\n921<\/span>
\ncome   to   the\t conclusion  that  the\t validity   of\t the
\nconstitutional amendments was rightly upheld in Sri  Sankari
\nPrasad Singh Deo’s(1) and Sajjan Singh’s(2) cases and I find
\nno reason for over-ruling them.\n<\/p>\n
The  First, Fourth and Seventeenth amendment Acts  are\tsub-
\njected\tto  bitter  attacks  because  they  strike  it\t the
\nentrenched  property  rights.\tBut  the  abolition  of\t the
\nzemindari   was\t a  necessary  reform.\t It  is\t the   First
\nConstitution  Amendment Act that made this reform  possible.
\nNo legal argument can restore the outmoded feudal  zemindari
\nsystem.\t  What has been done cannot be undone.\t The  battle
\nfor  the  past\tis lost.   The\tlegal  argument\t necessarily
\nshifts.\t  The  proposition  now\t is  that  the\tConstitution
\nAmendment  Acts must be recognized to be valid in  the\tpast
\nbut  they must be struck down for the future.  The  argument
\nleans  on  the ready made American doctrine  of\t prospective
\noverruling.\n<\/p>\n
Now  the First, Fourth, Sixteenth and Seventeenth  Amendment
\nActs  take away and abridge the rights conferred by Part  M.
\nIf they are laws they are necessarily rendered void by\tart.
\n13(2).\t If  they are void, they do not legally\t exist\tfrom
\ntheir  very  inception.\t They cannot be valid from  1951  to
\n1967 and invalid thereafter.  To say that they were valid in
\nthe  past and will be invalid in the future is to amend\t the
\nConstitution.\tSuch  a\t naked power  of  amendment  of\t the
\nConstitution  is not given to the Judges.  The argument\t for
\nthe  petitioners  suffers from a double fallacy,  the  first
\nthat the Parliament has no power to amend Part III so as  to
\nabridge or take away the entrenched property rights, and the
\nsecond that the Judges have the power to make such an amend-
\nment.\n<\/p>\n
I  may add that if the First and the Fourth  amendments\t are
\nvalid, the Seventeenth must necessarily be valid.  It is not
\npossible to say that the First and Fourth amendments  though
\noriginally invalid have now been validated by  acquiescence.
\nIf  they  infringed art. 13(2),t they were void\t from  their
\ninception.   Referring\tto the 19th amendment  of  the\tU.S.
\nConstitution, Brandeis, J. said in Leser v. Garnett(3)
\n\t      “This   Amendment\t  is   in   character\t and
\n\t      phraseology  precisely  similar to  the  15th.
\n\t      For  each\t the  same method  of  adoption\t was
\n\t      pursued.\t One cannot be valid and  the  other
\n\t      invalid.\t That  the 15th is  valid,  although
\n\t      rejected\tby six states,\tincluding  Maryland,
\n\t      has been recognized and acted on\t  for half a
\n\t      century………. The suggestion that the\t 15th
\n\t      was incorporated in the Constitution,
\n\t      (1)  [1952] S.C.R. 89.   (2) [1965]  1  S.C.R.\n<\/p>\n
\t      933.
\n\t      (3)   258 US 130 : 66 L.Ed.. 505, 51 1.\n<\/p>\n
\t      922<\/span><\/p>\n
\t      not in accordance with law, but practically as
\n\t      a\t war  measure, which has been  validated  by
\n\t      acquiescence, cannot be entertained.”\n<\/p>\n
Moreover  the Seventeenth amendment has been acted upon\t and
\nits validity has been upheld by this Court in Sajjan Singh’s
\ncase.  If the First and the Fourth Amendments are  validated
\nby acquiescence, the Seventeenth is equally validated.
\nBefore concluding this judgment I must refer to some of\t the
\nspeeches made by the members of the Constituent Assembly  in
\nthe  course  of debates on the\tdraft  Constitution.   These
\nspeeches  cannot  be  used  as\taids  for  interpreting\t the
\nConstitution.  See State of Travancore-Cochin and others  v.
\nThe Bombay Co. Ltd.(‘-). Accordingly, I do not rely on\tthem
\nas aids to construction.  But I propose to refer to them, as
\nShri  A K. Sen relied heavily on the speeches of Dr.  B.  R.
\nAmbedkar.   According to him, the speeches of  Dr.  Ambedkar
\nshow  that  he\tdid not regard\tthe  fundamental  rights  as
\namendable.    This  contention\tis  not\t supported  by\t the
\nspeeches.   Sri Sen relied on the following passage  in\t the
\nspeech of Dr. Ambedkar on September 17, 1949
\n\t      “We  divide the articles of  the\tConstitution
\n\t      under three categories.  The first category is
\n\t      the  one which consists of articles which\t can
\n\t      be, amended by Parliament by a bare  majority.
\n\t      The second set of articles are articles  which
\n\t      require  two-thirds majority.  If\t the  future
\n\t      Parliament  wishes  to  amend  any  particular
\n\t      article  .which is not mentioned in  Part\t III
\n\t      or-  art. 304, all that is necessary for\tthem
\n\t      is  to  have two-thirds  majority.   They\t can
\n\t      amend it.\n<\/p>\n
\t      Mr. President : Of Members present.\n<\/p>\n
\t      Yes.  Now, we have no doubt put articles in  a
\n\t      third  .category\twhere for  the\tpurposes  of
\n\t      amendment the .mechanism is somewhat different
\n\t      or  double.  It requires two  thirds  majority
\n\t      plus ratification by the, States.”(2)
\nI understand this passage to mean that according to Dr.\t Am-
\nbedkar an amendment of the articles mentioned in  Part.\t III
\nand  368 requires two-thirds majority plus  ratification  by
\nthe  States He seems to have assumed (as reported) that\t the
\nprovisions of Part III fall within the. proviso to art. 368.
\nBut  he\t never said that part III was s\t not  amendale.\t  He
\nmaintained consistently that  all   the\t articles   of\t the
\nConstitution are amendable under art. 368    On November  4,
\n1948, be. said :\n<\/p>\n
\t      “The  second means adopted to  avoid  rigidity
\n\t      and  legalism  is the provision  for  facility
\n\t      with which the
\n\t      (1)   (1952] S.C.R. 1112.\n<\/p><\/blockquote>\n
\t      (2)   Constituent\t Assembly Debat Vol.  IX  p.
\n\t      1661.\n<\/p><\/blockquote>\n
\t      923<\/span><\/p>\n
\t      Constitution could be amended.  The provisions
\n\t      of the Constitution relating to the  amendment
\n\t      of the Constitution divide the Articles of the
\n\t      Constitution  into  two groups.\tIn  the\t one
\n\t      group are placed Articles relating to (a)\t the
\n\t      distribution of legislative powers between the
\n\t      Centre and the States, (b) the  representation
\n\t      of  the  States  in Parliament,  and  (c)\t the
\n\t      powers  of I the Courts.\tAll  other  Articles
\n\t      are placed in another group.  Articles  placed
\n\t      in the second group cover a very large part of
\n\t      the   Constitution  and  can  be\tamended\t  by
\n\t      Parliament  by  a double majority,  namely,  a
\n\t      majority\tof not less than two-thirds  of\t the
\n\t      members  of each House present and voting\t and
\n\t      by a majority of the total membership of\teach
\n\t      House.   The amendment of these Articles\tdoes
\n\t      not require ratification by the States.  It is
\n\t      only  in\tthose Articles which are  placed  in
\n\t      group  one  that an  additional  safeguard  of
\n\t      ratification by the States is introduced.\t One
\n\t      can  therefore  safely  sky  that\t the  Indian
\n\t      Federation will not suffer from the faults  of
\n\t      rigidity\tor  legalism.\tIts   distinguishing
\n\t      feature is that it is a flexible Federation.
\n\t      The  provisions relating to amendment  of\t the
\n\t      Constitution  have  come\tin  for\t a  virulent
\n\t      attack  at  the hands of the  critics  of\t the
\n\t      Draft  Constitution.  it\tis  said  that\t the
\n\t      provisions   contained  in  the\tDraft\tmake
\n\t      amendment difficult.  It is proposed that\t the
\n\t      Constitution  should be amendable by a  simple
\n\t      majority\tat  least  for\tsome.  years.\t The
\n\t      argument is subtle and ingenious.\t It is\tsaid
\n\t      that this Constituent Assembly is not  elected
\n\t      on adult suffrage while the future  Parliament
\n\t      will be elected on adult suffrage and yet\t the
\n\t      former  has been given the right to  pass\t the
\n\t      Constitution  by a simple majority while\t‘the
\n\t      latter has been denied the same right.  It  is
\n\t      paraded as one of the absurdities of the Draft
\n\t      Constitution.   I\t must repudiate\t the  charge
\n\t      because it is without foundation.\t To know how
\n\t      simple   are  the\t provisions  of\t the   Draft
\n\t      Constitution   in\t respect  of  amending\t the
\n\t      Constitution   one  has  only  to\t study\t the
\n\t      provisions  for  amendment  contained  in\t the
\n\t      American\t  and\tAustralian    Constitutions.
\n\t      ‘Compared to them those contained in the Draft
\n\t      Constitution will be found to be the simplest.
\n\t      ‘The  Draft Constitution has  eliminated\tthe-
\n\t      elaborate\t and difficult procedures such as  a
\n\t      decision-\t by a convention or  are  ferenduni.
\n\t      The   Powers  of\tamendments  left  with\t the
\n\t      Legislatures  Central and Provincial.   It  is
\n\t      only, for amendment-, or specific\t matters-and
\n\t      they  are only few, that the  ratification  of
\n\t      the State Legislatures is required.\n<\/p><\/blockquote>\n
\t      924<\/span><\/p>\n
\t      All  other  Articles of the  Constitution\t are
\n\t      left  to be amended by Parliament.   The\tonly
\n\t      limitation  is  that  it shall be\t done  by  a
\n\t      majority,\t of not less than two-thirds of\t the
\n\t      members of each House present and voting and a
\n\t      majority\tof  the total  membership   of\teach
\n\t      House.  It is difficult to conceive a  simpler
\n\t      method of amending the Constitution.”(,’)
\n\t      On  December 9, 1948 , Dr. Ambedkar said\twith
\n\t      reference to art. 32:<\/p><\/blockquote>\n
\t      “The  Constitution  has invested\tthe  Supreme
\n\t      Court with these rights and these writs  could
\n\t      not  be  taken  away  unless  and\t until\t the
\n\t      Constitution  itself is amended by means\tleft
\n\t      open to the legislature.”(2)
\nOn  November-  25, 1949, Dr. Ambedkar strongly\trefuted\t the
\nsuggestion  that fundamental rights should’ be absolute\t and
\nunalterable.  He said:\n<\/p>\n
\t      “The condemnation of the Constitution  largely
\n\t      comes  from-two quarters, the Communist  Party
\n\t      and  the Socialist Party………. The  second
\n\t      thing  that  the Socialists want is  that\t the
\n\t      Fundamental    Rights   mentioned\t   in\t the
\n\t      Constitution must be absolute and without\t any
\n\t      limitations so that if their Party comes\tinto
\n\t      power, they would have the unfettered  freedom
\n\t      not merely to criticize, but also to overthrow
\n\t      the  State…………  Jefferson,  the  great
\n\t      American statesman who played so great a\tpart
\n\t      in  the making of the  American  Constitution,
\n\t      has  expressed some- very weighty views  which
\n\t      makers  of  Constitution can never  afford  to
\n\t      ignore.\tIn one place, he has said:- ‘We\t may
\n\t      consider each generation as a distinct nation,
\n\t      with a right, by the will of the majority,  to
\n\t      bind   themselves,  but  none  to\t  bind\t the
\n\t      succeeding    generation,\t  more\t than\t the
\n\t      inhabitants  of another country.\t In  another
\n\t      place,   he   has\t  said:\t  ‘The\t idea\tthat
\n\t      institutions  established for the use  of\t the
\n\t      nation cannot be touched or modified, even  to
\n\t      make them answer their end, because of  rights
\n\t      gratuitously  supposed  in those\temployed  to
\n\t      manage  the min the trust for the public,\t may
\n\t      perhaps  be a Salutary provision\tagainst\t the
\n\t      abuses  of  a  monarch,  but  is\tmost  absurd
\n\t      against  the nation itself.  Yet\tour  lawyers
\n\t      and priests generally inculcate this doctrine,
\n\t      and  suppose that preceding  generations\theld
\n\t      the earth more freely than we do; had a  right
\n\t      to   impose   laws  on  us,   unalterable\t  by
\n\t      ourselves, and
\n\t      (1)   Constituent Assembly Debates Vol. 7, pp.
\n\t      35-6, 43-4.\n<\/p><\/blockquote>\n
\t      (2)   Constituent\t Assembly  Debates  Vol.  7,\n<\/p><\/blockquote>\n
\t      953.
\n\t\t\t\t   925<\/span>
\n\t      that we, in the like manner, can make laws and
\n\t      impose  burdens on future\t generations,  which
\n\t      they  will  have no right to alter;  in  fine,
\n\t      that the earth belongs to the dead and not the
\n\t      living.  I admit that what Jefferson has\tsaid
\n\t      is  not merely true, but is  absolutely  true.
\n\t      There  can be no question about it.   Had\t the
\n\t      Constituent   Assembly  departed\t from\tthis
\n\t      principle\t laid  down by\tJefferson  it  would
\n\t      certainly\t  be  liable  to  blame,   even\t  to
\n\t      condemnation.   But I ask, has it?  Quite\t the
\n\t      contrary.\t   One\thas  only  to  examine\t the
\n\t      provision\t relating  to the amendment  of\t the
\n\t      Constitution.   The  Assembly  has  not\tonly
\n\t      refrained from putting a seal of finality\t and
\n\t      infallibility   upon  this   Constitution\t  by
\n\t      denying  to the people the right to amend\t the
\n\t      Constitution  as\tin Canada or by\t making\t the
\n\t      amendment\t of the Constitution subject to\t the
\n\t      fulfilment   of\textraordinary\tterms\t and
\n\t      conditions as in America of Australia but\t has
\n\t      provided a most facile procedure for  amending
\n\t      the  Constitution.   I challenge\tany  of\t the
\n\t      critics of the Constitution to prove that\t any
\n\t      Constituent  Assembly  anywhere in  the  world
\n\t      has,  in\tthe  circumstances  in\twhich\tthis
\n\t      country  finds itself, provided such a  facile
\n\t      procedure\t for the amendment of the  Constitu-
\n\t      tion.  If those who are dissatisfied with\t the
\n\t      Constitution   have  only\t to  obtain  a\t 2\/3
\n\t      majority and if they cannot obtain even a two-
\n\t      thirds  majority in the parliament elected  on
\n\t      adult   franchise\t in  their   favour,   their
\n\t      dissatisfaction  with the Constitution  cannot
\n\t      be   deemed  to  be  shared  by  the   general
\n\t      public.'(1)
\n\t      On November 11, 1948, Pandit Jawahar Lal Nehru
\n\t      said:\n<\/p><\/blockquote>\n
\t      “And  remember this, that while we  want\tthis
\n\t      Constitution to be as solid and as permanent a
\n\t      structure\t as  we can  make  it,\tnevertheless
\n\t      there  is\t no  permanence\t in   Constitutions.<\/p><\/blockquote>\n
\t      There should be a certain flexibility.  If you
\n\t      make anything rigid and permanent, you stop  a
\n\t      Nation’s\tgrowth, the growth of  living  vital
\n\t      organic  people.\t Therefore  it\thas  to\t  be
\n\t      flexible.”(2)
\nThe  views  of Jefferson echoed by Ambedkar and\t Nehru\twere
\nmore powerful expressed by Thomas Paine in 1791
\n\t      “There never did, there never will, and  there
\n\t      never   can,  exist  a  parliament,   or\t any
\n\t      description of men, or any generation of\tmen,
\n\t      in any country, possessed of the
\n\t      (1)   Constituent Assembly Debates Vol.  I  1,
\n\t      pp. 975-6.\n<\/p>\n
\t      (2)   Constituent Assembly Debates Vol. 7,  p.\n<\/p>\n
\t      322.
\n\t      926<\/span>
\n\t      right or the power of binding and\t controuling
\n\t      posterity\t  to  the  end\tof  time’,   or\t  of
\n\t      commanding  for ever how the world.  shall  be
\n\t      governed,\t  or  who  shall  govern  it-,\t and
\n\t      therefore\t  all\tsuch   clauses,\t  acts\t  or
\n\t      declarations  by\twhich  the  makers  of\tthem
\n\t      attempt to do what they have neither the right
\n\t      nor  the\tpower  to  do,\tnor  take  power  to
\n\t      execute,\tare  in themselves  null  and  void.\n<\/p>\n
\t      Every  age and generation must be as  free  to
\n\t      act  for itself in all cases as the  ages\t and
\n\t      generations which preceded it.  The vanity and
\n\t      presumption  of governing beyond the grave  is
\n\t      the  most\t ridiculous  and  insolent  of\t all
\n\t      tyrannies.   Man\thas  no\t property  in\tman;\n<\/p>\n
\t      neither  has any generation a property in\t the
\n\t      generations which are to follow.\tThe  parlia-
\n\t      ment  of\tthe people of 1688 or of  any  other
\n\t      period,  had no more right to dispose  of\t the
\n\t      people  of the present day, or to bind  or  to
\n\t      controul them in any shape whatever, than\t the
\n\t      parliament  or the people of the\tpresent\t day
\n\t      have to dispose of, bind or controul those who
\n\t      are  to  live a hundred or  a  thousand  years
\n\t      hence.   Every  Generation is,  and  must\t be,
\n\t      competent\t to  all  the  purposes\t which\t its
\n\t      occasions require.  It is the living, and\t not
\n\t      the  dead, that are to be accommodated.\tWhen
\n\t      man  ceases  to be, his power  and  his  wants
\n\t      cease  with  him;\t and having  no\t longer\t any
\n\t      participation  in the concerns of this  World,
\n\t      he  has no longer any authority  in  directing
\n\t      who  shall  be  its  governors,  or  how\t its
\n\t      government   shall   be  organized,   or\t how
\n\t      administered.” (See ‘Rights of Man’ by  Thomas
\n\t      Paine, unabridged edition by H. B. Bonner, pp.
\n\t      3 & 4).\n<\/p>\n
For  the reasons given above, I agree with Wanchoo, J.\tthat
\nthe writ petitions must be dismissed.\n<\/p>\n
In  the\t result, the writ petitions  are  dismissed  without
\ncosts.\n<\/p>\n
Ramaswami,  J.\tI have perused the judgment  of\t my  learned
\nBrother Wanchoo, J. and I agree with his conclusion that the
\nConstitution  (Seventeenth Amendment) Act, 1964\t is  legally
\nvalid,\tbut in view of the importance.of the  constitutional
\nissues\traised in this case I would prefer to state, my\t own
\nreasons in a separate judgment.\n<\/p>\n
In  these petitions which have been filed under Art.  32  of
\nthe    Constitution,   a   common   question   arises\t for
\ndetermination, viz.,. whether the Constitution\t(Seventeenth
\nAmendment) Act, 1964 which amends Art. 31 A and 3 1 B of the
\nConstitution is ultra vires- and unconstitutional, .\n<\/p>\n
927<\/span><\/p>\n
The  petitioners are affected either by the Punjab  Security
\nof Land Tenures Act, 1954. (Act X of 1953) or by the  Mysore
\nLand  Reforms Act (Act 10 of 1962) as amended by Act 1\t1965
\nwhich were added to the 9th Schedule of the Constitution  by
\nthe impugned Act and, their contention is that the  impugned
\nAct being unconstitutional and invalid , the validity of the
\ntwo Acts by which they are affected cannot be saved.
\nThe  impugned  Act consists of three  sections.\t  The  first
\nsection.  gives\t its  short title.  Section  2\t(i)  adds  a
\nproviso\t to  Cl.. ( 1 ) of Art.. 3 I-A\tafter  the  existing
\nproviso.  This proviso reads, thus:\n<\/p>\n
\t      “Provided further that where any law makes any
\n\t      provision for the acquisition by the State  of
\n\t      any  estate  and\twhere  any  land   comprised
\n\t      therein is held by a person under his personal
\n\t      cultivation,  it shall not be lawful  for\t the
\n\t      State  to acquire any portion of such land  as
\n\t      is within the ceiling limit applicable to\t him
\n\t      under  any law for the time being in force  or
\n\t      any building or structure standing thereon  or
\n\t      appurtenant  thereto, unless the law  relating
\n\t      to  the acquisition of such land, building  or
\n\t      structure,    provides\tfor    payment\t  of
\n\t      compensation at a rate which shall not be less
\n\t      than the market value thereof.”\n<\/p><\/blockquote>\n
\t      Section  2(ii) substitutes the following\tsub-
\n\t      clause for sub-cl. (a) of cl. (2) of Art. 31-A
\n\t      “(a)   the  expression  ‘estate’\t shall,\t  in
\n\t      relation\tto  any local area,  have  the\tsame
\n\t      meaning  as  that\t expression  or\t its   local
\n\t      equivalent-has  in the existing  law  relating
\n\t      force in that area and all to land tenures  in
\n\t      also include-\n<\/p><\/blockquote>\n
\t      (i)   any\t jagir,\t inam  or  muafi  or   other
\n\t      similar grant and in the States-of Madras\t and
\n\t      Kerala, any ianmam right;\n<\/p><\/blockquote>\n
\t      (ii)  any land held under ryotwari settlement;\n<\/p><\/blockquote>\n
\t      (iii) any\t land  held or let for\tpurposes  of
\n\t      agriculture  or for purposes  ancillary  there
\n\t      to, including wast land, forest land, land for
\n\t      posture\tor  ones  of  buildings\t and   other
\n\t      structures  occupied by cultivators  of  land,
\n\t      agricultural labourers and village artisans;”\n<\/p><\/blockquote>\n
Section\t 3 amends the 9th Schedule by adding 44\t entries  to
\nit.\n<\/p>\n
In  dealing with the question about the validity of the\t im-
\npugned Act, it is necessary to consider the scope and effect
\nof the provisions contained in-Art. 368 of the Constitution,
\nbecause\t the  main controversy in the  present\tapplications
\nturns upon:the-\n<\/p>\n
928<\/span><\/p>\n
decision  of the question as to what is the construction  of
\nthat Article.  Article 368 reads as follows:\n<\/p>\n
\t      “An  amendment  of this  Constitution  may  be
\n\t      initiated\t only by the introduction of a\tBill
\n\t      for the-purpose in either House of Parliament,
\n\t      and when the Bill is passed in each House by a
\n\t      majority of the total membership of that House
\n\t      and by a majority of not less than  two-thirds
\n\t      of  the  members\tof that\t House\tpresent\t and
\n\t      voting, it shall be presented to the President
\n\t      for  his\tassent and upon\t such  assent  being
\n\t      given  to\t the Bill,  the\t Constitution  shall
\n\t      stand amended in accordance with the terms  of
\n\t      the Bill .\n<\/p><\/blockquote>\n
\t      Provided that if such amendment seeks to\tmake
\n\t      any change\n<\/p><\/blockquote>\n
\t      (a)   Article  5,\t article  55,  article,\t 73,
\n\t      article 162 or
\n\t      article\t 241, or\n<\/p><\/blockquote>\n
\t      (b)   Chapter IV of Part V, Chapter V of\tPart
\n\t      VI, or Chapter I of Part XI, or\n<\/p><\/blockquote>\n
\t      (c) any of the Lists in the Seventh  Schedule,
\n\t      or\n<\/p><\/blockquote>\n
\t      (d)   the\t  representation   of\tStates\t  in
\n\t      Parliament, or\n<\/p><\/blockquote>\n
\t      (e)   the provisions of this article,
\n\t      the   amendment  shall  also  require  to\t  be
\n\t      ratified by the Legislatures of not less\tthan
\n\t      one-half of the States by resolutions to\tthat
\n\t      effect  passed by those.\tLegislatures  before
\n\t      the  Bill making provision for such  amendment
\n\t      is presented to the President for assent.”\n<\/p><\/blockquote>\n
It is necessary at this stage to set out briefly the history
\nof Arts. ..31-A and 31-B.  These Articles were added to\t the
\nConstitution  with  retrospective  effect by  s.  4  of\t the
\nConstitution  (First Amendment) Act, 1951.  Soon  after\t the
\npromulgation  of  the Constitution, the political  party  in
\npower,\tcommanding  as\tit did a majority of  votes  in\t the
\nseveral State legislatures as well as in Parliament, carried
\nout  radical  measures of agrarian reform in Bihar,  may  be
\nreferred to as Zamindari Abolition Acts.  Certain zamindars,
\nfeeling themselves aggrieved, attacked the validity of those
\nActs  in courts of law on the ground that  they\t contravened
\nthe ‘fundamental rights conferred on them by Part III of the
\nConstitution.\tThe  High Court of Patna held that  the\t Act
\npassed iii Bihar was unconstitutional while the High  Courts
\nof   Allahabad\tand  Nagpur  upheld  the  validity  of\t the
\ncorresponding  legislation  in\tUttar  Pradesh\tand   Madhya
\nPradesh respectively (See Kameshwar Uttar Pradesh and Madhya
\nPradesh by enacting   legislation which
\n929<\/span>
\nv.   State of Bihar(1) and Surya Pal v. U.P.  Government(1).
\nThe   parties  aggrieved by these respective  decisions\t had
\nfiled appeals by special leave before this Court.At the same
\ntime  petitions had also been preferred before\tthis   Court
\nunder  Art.  32\t by certain  other  Zamindars,\tseeking\t the
\ndetermination of the same issues It was atstage that  the
\nUnion Government, with a view to put an endall\t      this
\nlitigation and to remedy what they considered to be  certain
\ndefects\t brought to light in the work of  the  Constitution,
\nbrought\t forward a bill to amend the  Constitution,  which,.
\nafter  undergoing  amendments in  various  particulars,\t was
\npassed\tby the require majority as the\tConstitution  (First
\nAmendment) Act, 1951 by which Arts. 31-A and 31-B were added
\nto  the\t Constitution.\t That was the first  step  taken  by
\nParliament  to\tassist the process of legislation  to  bring
\nabout agrarian reform, by introducing Articles 31-A and\t 31-
\nB.   The  second  step in the same direction  was  taken  by
\nParliament in 1955 by amending Art. 31-A by the Constitution
\n(Fourth Amendment) Act, 1955.. The object of this  amendment
\nwas  to widen the scope of agrarian reform and to confer  on
\nthe  legislative  measures adopted in that  behalf  immunity
\nfrom   a   possible  attack  that  they\t  contravened’\t the
\nfundamental  rights  of\t citizens.   In\t other\twords,\t the
\namendment  Protected the legislative measures in respect  of
\ncertain\t  other\t items\tof  agrarian  and   social   welfare
\nlegislation,  which  affected  the  proprietary\t rights\t  of
\ncertain citizens.  At the time when the first amendment\t was
\nmade,  Art. 31-B expressly provided that none, of the,\tActs
\nand  Regulations specified in the 9th Schedule, nor  any  of
\nthe  provisions thereof, shall be deemed to be void or\tever
\nto   have  become  void\t on  the  ground  that\t they\twere
\ninconsistent  with  or\ttook: away or abridged\tany  of\t the
\nrights\t conferred   by\t Part  III,  and   it\tadded\tthat
\nnotwithstanding\t any judgment, decree or order of any  Court
\nor  tribunal  to  the contrary, each of the  said  Acts\t and
\nRegulations  shall  subject to the power  of  any  competent
\nlegislature to repeal or amend, continue in force.  At\tthis
\ntime, 19 Acts were listed in Schedule 9, and they were\tthus
\neffectively validated.\tOne more Act was added to this\tlist
\nby  the\t Amendment Act of 1955, so that as a result  of\t the
\nsecond amendment, the Schedule contained 20 Acts which\twere
\nvalidated.\n<\/p>\n
It  appears that notwithstanding these\tamendments,  certain
\nother  legislative measures adopted by different States\t for
\nthe  purpose of giving effect to the agrarian policy of\t the
\nparty in power, were effectively challenged.  For  instance,
\nthe Karimbil Kunhikoman v. State of Kerala<\/a>(3), the  validity
\nof  the\t Kerala\t Agrarian Relations Act\t (IV  of  1961)\t was
\nchallenged  by writ petitions filed under Art. 32, and as  a
\nresult of the majority decision of this Court, the whole Act
\nwas struck down. The decision of this
\n(1) A-I-R. 1951 Pat.  91  (2) A.I.R. 1951 All. 674.
\n(3)[1962] Supp.\t 1 S.CR. 829..\n<\/p>\n
930<\/span><\/p>\n
Court was pronounced on December 5, 1961.  In A. P. Krishna-
\nswami Naidu v. The State of Madras(1) the  constitutionality
\nof the Madras Land Reforms (Fixation of Ceiling on Land) Act
\n(146.  58 of 1961) was the subject matter of debate, and  by
\nthe decision of this Court pronounced, on March 9, 1964,  it
\nwas  declared  that the whole Act was invalid.\t It  appears
\nthat  the  Rajas  than\tTenancy Act  III  of  1955  and\t the
\nMaharashtra Agricultural Lands (Ceiling and Holdings) Act 27
\nof  1961  had  been  similarly\tdeclared  invalid,  and\t  in
\nconsequence,  Parliament  thought  it necessary\t to  make  a
\nfurther amendment in Art: 31-B so as to gave the validity of
\nthese  Acts which had been struck down and of other  similar
\nActs  which were likely to be challenged.  With that  object
\nin view, the impugned Act has enacted S. 3 by which 44\tActs
\nhave  been added to Schedule 9. It is therefore\t clear\tthat
\nthe  object  of\t the  First,  Fourth  and  the\t Seventeenth
\nAmendments  of\tthe  Constitution  was\tto  help  the  State
\nLegislatures  to give effect to measures of agrarian  reform
\nin  a  broad and comprehensive sense in the interests  of  a
\nvery  large  section of Indian ,citizens  whose\t social\t and
\neconomic   welfare  closely  depends  on  the\tpersuit\t  of
\nprogressive agrarian policy.\n<\/p>\n
The first question presented for determination in this\tcase
\nis  whether  the impugned Act, in so far as it\tpurports  to
\ntake away or abridge any of the fundamental rights conferred
\nby   Part   III\t .or  the  Constitution,falls\twithin\t the
\nprohibition  of Art. 13 (2) which provides that “the  State,
\n‘shall,\t not make any law which takes away or  abridges\t the
\nrights\t conferred  by\tthis  Part  and\t any  law  made\t  in
\ncontravention  of  this clause shall to the  extent  of\t the
\nContravention,\tbe void”.  In other words, the argument,  of
\nthe  petitioners  was  that  the law  to  which\t Art,  13(2)
\napplies, would include a law passed by Parliament by  virtue
\nof its constituent power to amend the Constitution, and\t so,
\nits  validity will have. to be tested by Art. 13(2)  itself.
\nIt was contended that the State” includes Parliament  within
\nArt. 12 and “law” must include, a constitutional  amendment.
\nIt  was\t said that it was the deliberate  intention  of\t the
\nframers\t of the Constitution, who realised the\tsanctity  of
\nthe  fundamental rights conferred by Part III, to make\tthem
\nimmune from interference not only by ordinary laws passed by
\nthe legislatures in the country but also from constitutional
\namendments.   In my opinion, there is no substance  in\tthis
\nargument.-   Although\t“law”\tmust   ordinarily    include
\nconstitutional law, there is ‘a juristic distinction between
\nordinary  law  made  in exercise of  legislative  power\t and
\nconstitutional law which is Made in exercise of\t constituent
\npower.\tIn a written federal form of Constitution there is a
\nclear  and  well-known distinction between the\tlaw  of\t the
\nConstitution and ordinary law made by the legislature on the
\nbasis of separation of powers and
\n(1)[1964]7 S.C.R.82.\n<\/p>\n
\t\t\t    931<\/span><\/p>\n
pursuant to the power of law-making conferred by the Consti-
\ntution\t(See Dicey on ‘Law of the Constitution, Tenth:\tEdn.
\np. 110, Jennings, ‘Law and the Constitution’ pp. 62-64,\t and
\n‘American  Jurisprudence’, 2nd Edn.  Vol. 16, p.  181).\t  In
\nsuch   a   written  Constitution,  the\tamendment   of\t the
\nConstitution  is  .a substantive, constituent act  which  is
\nmade  in the exercise, of the sovereign power which  created
\nthe  Constitution and which is effected by a special  means,
\nnamely,\t by a predesigned fundamental procedure\t unconnected
\nwith  ordinary legislation.  The amending power\t under\tArt.
\n368 is hence sui generis and cannot be, compared to the law-
\nmaking\tpower of Parliament pursuant to Art. 246  read\twith
\nList  I\t and 111.  It follows that the expresSion  “law”  in
\nArt.  13(2)  of\t the Constitution  cannot  be  construed  as
\nincluding  an  amendment  of the Constitution  which  is  by
\nParliament in exercise of, its sovereign constituent  power,
\nbut  must  mean law made by Parliament\tin  its\t legislative
\ncapacity :pursuant to the powers of law-making given by\t the
\nConstitution itself  under Art. 246 read with Lists I and In
\nof the 7th Schedule.  It is also clear, on the same line  of
\nreasoning,  that ‘law’ in Art. 13(2) cannot be construed  so
\nas  to include ‘law’ made by Parliament under Arts. 4,\t169,
\n392,  5th  Schedule Part D and 6th Schedule para  2  1.\t The
\namending power of Parliament exercised under these  Articles
\nstands\ton  the same as the  constitutional  amendment\tmade
\nunder  Art.  U8 so far as Art. 13(2) is concerned  and\tdoes
\nnot fall within the definition of law within the meaning  of
\nthis last article.\n<\/p>\n
It is necessary to add that the definition of ‘law’ in\tArt.
\n13(3) does not include in terms a constitutional  amendments
\nthough\tit includes “any Ordinance,, order,  bye-law,  rule,
\nregulation,  notification, custom or usage “. It  should  be
\nnoticed\t that  The  language. of Art. 3\t 6  8  is  perfectly
\ngeneral\t and empowers Parliament to amend  the\tConstitution
\nwithout\t any exception Whatsoever.  H I ad it been  intended
\nby  the\t Constitution-makers  that  the\t fundamental  rights
\nguaranteed  under Part III should be completely outside\t the
\nscope  of  Art. 368, it is reasonable to  assume  that\tthey
\nwould  have made an express  provision to that\teffect.\t  It
\nwas  stressed by the petitioners during the course ‘of\tthe,
\nargument that Part III is headed as ‘Fundamental Rights” and
\nthat  Art.  32 “guarantee’s’ the right to move\tthe  Supreme
\nCourt  by appropriate proceedings for enforcement of  rights
\nconferred by Part M. But the expression “fundamental” in the
\nphrase\t“Fundamental  Rights”  means that  such\t rights\t are
\nfundamental  vis-a-vis the laws of the legislatures and\t the
\nacts of the executive authorities mentioned in Art. 12.\t  It
\ncannot be suggested, that the expression “fundamental” lifts
\nthe  fundamental  rights  above\t the  Constitution   itself.
\nSimilarly,  the\t expression “guaranteed’ in Art.  32(1)\t and
\n32(4)  means  that the right to move the Supreme  Court\t for
\nenforcement of fundamental rights without
\n932<\/span>
\nexhausting  the, normal channels through the High Courts  or
\nthe  lower courts is guaranteed.  This expression also\tdoes
\nnot place the fundamental rights above the Constitution.
\nI  proceed  to consider the next question  arising  in\tthis
\ncase, the scope of the amending power under Art. 368 of\t the
\nConstitution.  It is contended on behalf of the\t petitioners
\nthat  Art. 368 merely lays down the procedure for  amendment
\nand  does not vest the amending power as such in any  agency
\nconstituted under that article.\t I am unable to accept\tthis
\nargument  as  correct  Part XX\tof  the\t Constitution  which
\ncontains  only Art. 368 is described as a Part dealing\twith
\nthe  Amendment\tof  the\t Constitution  and  Art.  368  which
\nprescribes the procedure for amendment of the  Constitution,
\nbegins by saying that an amendment of this Constitution\t may
\nbe  initiated  in  the\tmanner\ttherein\t indicated.   In  MY
\nOpinion,  the expression “amendment of the Constitution”  in
\nArt.  368 plainly and unambiguously means amendment  of\t all
\nthe  provisions of the Constitution.  It is unreasonable  to
\nsuggest that what Art. 368 provides is only the mechanics of
\nthe  procedure to be followed in amending  the\tConstitution
\nwithout indicating which provisions of the Constitution\t can
\nbe   amended   and  which  cannot.    Such   a\t restrictive
\nconstruction  of the substantive part of Art. 368  would  be
\nclearly\t untenable.  The significant fact , that a  separate
\nPart has been devoted in the Constitution for “amendment  of
\nthe Constitution and there is only one Article in that\tPart
\nshows  that  both the power to amend and  the  procedure  to
\namend  are  enacted  in Art. 368.   Again,  the\t words\t“the
\nConstitution  shall  stand amended in  accordance  with\t the
\nterms  of  the\tBill” in Art. 368  clearly  contemplate\t and
\nprovide for the power to amend after the requisite procedure
\nhas  been followed.  Besides, the words used in the  proviso
\nunambiguously  indicate\t that the substantive  part  of\t the
\narticle\t applied to all the provisions of the  Constitution.
\nIt is on that basic assumption that the proviso prescribes a
\nspecific  procedure  in\t respect of the\t amendment  of\t,the
\narticles mentioned in cls. (a) to (e) thereof.\tTherefore it
\nmust  be held that when Art. 368 confers on  Parliament\t the
\nright to amend the Constitution the power in question can be
\nexercised over all the provisions of the Constitution.\t How
\nthe  power  should  be exercised, has to  be  determined  by
\nreference  to  the  question  as  to  whether  the  proposed
\namendment  falls under the substantive part of Art. 368,  or
\nwhether it attracts the procedure contained in the proviso.
\nIt  was\t suggested  for the petitioners that  the  power  of
\namendment  is  to  be  found in Arts. 246  and\t248  of\t the
\nconstitution  read   with  item\t 97 of List  I\tof  the\t 7th
\nSchedule.  I do not think that it is possible to accept this
\nargument.  Article 246 stats that
\n933<\/span>
\nParliament has exclusive power to make laws with respect  to
\nmatters\t enumerated in List I in the Seventh  Schedule,\t and
\nArt. 248, similarly, confers power on Parliament to make any
\nlaw  with  respect  to\tany matter  not\t enumerated  in\t the
\nConcurrent List or State List.\tBut the power of  law-making
\nin  Arts. 246 and 248 is “subject to the provisions of\tthis
\nConstitution”.\t  It   is  apparent  that   the\t  power\t  of
\nconstitutional amendment cannot fall within these  Articles,
\nbecause it is illogical and a contradiction in terms to\t say
\nthat  the  amending power can be exercised and at  the\tsame
\ntime it is “subject to the provisions of, the Constitution”.
\nIt was then submitted on behalf of the petitioners that\t the
\namending power under Art. 368 is subject to the doctrine  of
\nimplied limitations.  In other words, it was contended\tthat
\neven if Art. 368 confers the power of. amendment, it was not
\na  general  but\t restricted  power  confined  only  to\t the
\namendable  provisions of the Constitution, the\tamendability
\nof  such  provision  being  determined\tby  the\t nature\t and
\ncharacter  of the respective provision.\t It was argued,\t for
\ninstance, that the amending power cannot be used to  abolish
\nthe  compact  of  the Union or\tto  destroy  the  democratic
\ncharacter of the Constitution teeing individual and minority
\nrights.\t  It was said that the Constitution was a  permanent
\ncompact\t of  the States, that the federal character  of\t the
\nStates was individual, and that the existence of any. of the
\nStates\tas part of the federal Compact Cannot4be put an\t end
\nto  by\tthe power of amendment.\t It was also said  that\t the
\nchapter of fundamental rights of the Constitution cannot  be
\nthe subject-matter of any amendment under Art. 368.  It\t was
\ncontended  that the preamble to the  Constitution  declaring
\nthat  India was a sovereign democratic republic\t was  beyond
\nthe  scope  of the amending Power. it,\twas  suggested\tthat
\nother basic, features of the Constitution were the  Articles
\nrelating   to.\tdistribution  of  legislative  powers,\t the
\nParliamentary  form of Government and the  establishment  of
\nSupreme Court and the High, Courts in the various States.  .
\nI  am  unable to accept this argument as  correct.   If\t the
\nConstitution-makers considered that there were certain basic
\nfeatures  of  the Constitution which were permanent  it.  is
\nmust  unlikely that they should not have expressly  said  in
\nArt  368 that these basic features were. not amendable.\t  On
\nthe   contrary,\t the  Constitution-makers   have   expressly
\nprovided.  that Art. 368 itself should be amendable  by\t the
\nprocess indicated in the proviso to that Article.  This cir-
\ncumstance is significant and suggests. that all the articles
\nof  the Constitution are amendable either under the  proviso
\nto  Art. 368 or under the main part of that Article.  In  MY
\nopinion,  there\t is  no\t room for  an.\timplication  in\t the
\nconstruction  of Art. 368.  So far as the federal  character
\nof the Constitution is concerned, it was held by this  Court
\nin State of West Bengal v. Union of
\nCl\/67-14<\/a>
\n934<\/span>
\nIndia(1) that the federal structure is not an essential\t pan
\nof  our\t Constitution and there is no  compact\tbetween\t the
\nStates\tand  them is no dual citizenship in  India.  It\t was
\npointed\t out in that case that there was  no  constitutional
\nguarantee  against   the  alteration of\t boundaries  of\t the
\nStates.\t  By  An. 3 the Parliament is by law  authorised  to
\nform  a new State by redistribution of the territory  of  a.
\nState or by uniting two or more States or parts of States or
\nby uniting any territory to a part of any State, to increase
\nthe area of any State, to diminish the area of any State  to
\nalter the boundaries of any State, and to alter the name  of
\nany  State.   In In Re The Berubari Union  and\tExchange  of
\nEnclaves (2) it was argued that the Indo-Pakistan  agreement
\nwith  regard  to Berubari could not be implemented  even  by
\nlegislation under Art. 368 because of the limitation imposed
\nby  the\t preamble  to  the Constitution\t and  that  such  an
\nagreement  could  not be implemented by a  referendum.\t The
\nargument was rejected by this Court and it was held that the
\npreamble  could\t not,  ‘in i any way,  limit  the  power  of
\nParliament  to\tcede parts of the  national  territory.\t  On
\nbehalf\tof  the\t petitioners the argument  was\ts  that\t the
\nchapter on fundamental rights was the basic feature, of\t the
\nConstitution and cannot be the\t   subject  of the  amending
\npower under Art 368.  It was  argued  that the\tfreedoms  of
\ndemocratic life are secured by the chapter   on\t fundamental
\nrig its and dignity of the individual cannot be preserved if
\nany of the fundamental rights is altered or diminished.\t  It
\nis  not\t possible to accept this argument as  correct.\t The
\nconcepts  of liberty and equality are changing\tand  dynamic
\nand hence the notion of permanency or immutability cannot be
\nattached  to any of the fundamental rights.   The  Directive
\nPrinciples   of\t  Part\tIV  are\t as   fundamental   as\t the
\nconstitutional\trights\tembodied  in Part III  and  Art.  37
\nimposes a constitutional duty upon the States to apply these
\nprinciples  in making laws.  Reference should in  particular
\nbe made to Art. 39(b) which enjoins upon the State to direct
\nits  policy towards securing that the ownership and  control
\nof   the  material  resources  of  the\tcommunity   are\t  so
\ndistributed  as best to subserve the common good.  Art. 3  8
\nimposes a duty upon, the State to promote the welfare of the
\npeople by securing and protecting as effectively as it\tmay,
\na  social  order  in which  justice,  social,  economic\t and
\npolitical, shall inform all the institutions of the national
\nlife.  I have already said that the language of Art. 368  is
\nclear and unambiguous in support of, the view that there  is
\nno  implied limitation on the amending power.  In  Principle
\nalso   it   aPPears  unreasonable  to\tsuggest\t  that\t the
\nConstitution-makers  wanted to provide that the\t fundamental
\nrights\tguaranteed  by\tthe  Constitution  should  never  be
\ntouched by way of, amendment.  In modern democratic  thought
\nI there are two main trends– the liberal idea of individual
\n‘rights
\n(1) [1964] 1 S.C.R. 371 p 405.\t  (2) [1960] 3 S.C.R. 250.\n<\/p>\n
\t\t\t    935<\/span><\/p>\n
protecting the individual and the democratic idea proper pro
\nclaiming  the equality of rights and popular  sovereignty  .
\nThe gradual extension of the idea of equality from political
\nto economic and social fields in the modern State has led to
\nthe  problems of social security,  economic\t    planning
\nand industrial welfare legislation.  The implementation\t and
\nharmonisation of these. somewhat conflicting principles is a
\ndynamic\t  task.\t   The\tadjustment   between   freedom\t and
\ncompulsion, between the rights of individuals and the social
\ninterest  and  welfare\tmust necessarily  be  a\t matter\t for
\nchanging  needs\t and  conditions.  The\tproper\tapproach  is
\ntherefore  to  look  upon  the\tfundamental  rights  of\t the
\nindividual  as conditioned by the social responsibility,  by
\nthe  necessities  of  the  Society,  by\t the  balancing\t  of
\ninterests  and not as pre-ordained and\tuntouchable  private
\nrights.\n<\/p>\n
As pointed out forcefully by Laski:\n<\/p>\n
\t      “The   struggle\tfor   freedom\tis   largely
\n\t      transferred  from\t the plane of  political  to
\n\t      that  of\teconomic rights.   Men\tbecome\tless
\n\t      interested in the abstract fragment of politi-
\n\t      cal power an individual can secure than in the
\n\t      use of massed pressure of the groups to  which
\n\t      they  belong to secure an increasing share  of
\n\t      the  social Product.  Individualism gives\t way
\n\t      before  socialism.  The roots of\tliberty\t are
\n\t      held to be in the ownership and control of the
\n\t      instruments  of production by the\t state,\t the
\n\t      latter  using  its  power\t to  distribute\t the
\n\t      results  of  its\tregulation  with  increasing
\n\t      approximation to equality.  So long, as  there
\n\t      is  inequality, it is argued, there cannot  be
\n\t      liberty.\n<\/p><\/blockquote>\n
\t      The  historic inevitability of this  evolution
\n\t      was seen a century ago by de tocqueville.\t  It
\n\t      is interesting to compare his insistence\tthat
\n\t      the  democratization of political power  meant
\n\t      equality\t and  that  its\t absence  would\t  be
\n\t      regarded by the masses as oppression with\t the
\n\t      argument\tof  Lord  Action  that\tliberty\t and
\n\t      equality\t are  antitheses.   To\tthe   latter
\n\t      liberty  was essentially an autocratic  ideal;<\/p><\/blockquote>\n
\t      democracy\t destroyed individuality, which\t was
\n\t      the very pith of liberty, by seeking  identity
\n\t      of  conditions.  The modem emphasis is  rather
\n\t      toward the principle that material equality is
\n\t      growing  inescapable and that the\t affirmation
\n\t      of  personality  must  be\t effective  upon  an
\n\t      immaterial  plane. it is found that  doing  as
\n\t      one  likes,  subject only to  the\t demands  of
\n\t      peace,\tis    incompatible    with    either
\n\t      international  or municipal  necessities.\t  We
\n\t\t\t    pass  from\tcontract  to relation  as
\n we  have
\n\t      passed  from status to contract.\tMen  are  so
\n\t      involved\tin intricate networks  of  relations
\n\t      that the place for their
\n\t      936<\/span>
\n\t      liberty  is in a sphere where their  behaviour
\n\t      does not impinge upon that self-affirmation of
\n\t      others which is liberty.”\n<\/p>\n
 (Encyclopaedia of the Social Sciences, Vol.  IX, 445.).
\nIt must :not be forgotten that the fundamental right guaran-
\nteed- by Art. 31, for. instance. is not absolute.  It should
\nbe  not that cl. (4) of that Article, provides an  exception
\nto  the\t requirements of cl. (2).  ‘Clause (4)\trelates\t ‘to
\nBills- of a State Legislature relating to public acquisition
\nwhich were pending at the-commencement of fhe  Co’stitution.
\nIf  such  a  Bill has been passed and  assented\t to  by\t the
\nPresident, the Courts shall have no jurisdiction to question
\nthe validity of such law on the of contravention of cl. (2),
\nie.,   on  the\tground\tthat  it  does\tnot-   provide\t for
\ncompensation  or that it has been enacted without  a  public
\npurpose.  Clause (6) of the, Article is another exception to
\ncl.  (2)  and  provides for ouster of  jurisdiction  of\t the
\nCourts.\t While cl. (4) relates to Bills pending in the State
\nLegislature  at the encement of the Consistitution, cl.\t (6)
\nrelates\t to  Bills enacted by the State within IS  I  months
\nbefore commencement of the Constitution i.e., Acts providing
\nfor  public acquisition which were enacted not earlier\tthan
\nJuly  26,  1948.  If the President certifies’ ‘such  an\t Act
\nwithin\t3 months from the commencement of the  Constitution,
\nthe Courts shall have no jurisdiction to invalidate that Act
\non  the ground of contravention of cl. (2) of  that  Article
\nSimilarly,   the  scheme  of  Art  19  indicates  that\t the
\nfundamental  rights guaranted by sub-cls. (a) to (g) of\t cl,
\n(1) can be validly regulated in the light of the  provisions
\ncontained  in cls. (2) to (6) of Art. 19.  In  other  words,
\nthe scheme of Art.19 is two-fold; the fundamental rights  of
\nthe citizens are of paramount importance, but even the\tsaid
\nfundamental  rights can be regulated to serve the  interests
\nof   the   general  public  or\t other\t objects   mentioned
\nrespectively in cls. (2) to (6) of Art. 19.  It is right  to
\nstate that the purposes for which fundamental rights can  be
\nregulated  which are s specified in cls. (2) to\t (6),  could
\nnot  have  been\t assumed by the\t Constitution-makers  to  be
\nstatic\tand  incapable of expansion.  It cannot\t be  assumed
\nthat  the Constitution-makers intended to forge a  political
\nstrait\tjacket for generations to come.\t  The  Constitution-
\nmakers\t,  must\t have  anticipated  that  in  dealing  with,
\nsocioeconomic  problems which the 1egislatures may  have  to
\nface from time to time, the concepts of public interest\t and
\nother  important considerations which are the basis of\tcls.
\n(2)  to (6), may change and may even expand.  As Holmes’  J.\n<\/p>\n
has    said   in   Abrams   v.\t  United   States   (1)\t   :\n<\/p>\n
“the  .,Constitution  is an experiMent, as all life  is-  an
\nexperiment”.  It is therefore legitimate to assume that\t the
\nConstitution-makers
\n(1)  250 U.S. 616, 630.\n<\/p>\n
937<\/span><\/p>\n
intended that Parliament should be competent to make  amend-
\nments  in  these rights so as to meet the challenge  of\t the
\nproblems  which\t may arise in the  course  of  socioeconomic
\nprogress  and  development  of\tthe  country.\tI  find\t  it
\ntherefore   difficult\tto  accept  the\t argument   of\t the
\npetitioners  thal the Constitution-makers contemplated\tthat
\nfundamental  rights enshrined in Part III were\tfinally\t and
\nimmutably settled and determined once and for all and  these
\nrights are beyond the ambit of any future amendment.   Today
\nat  a time when absolutes are discredited, it must  riot  be
\ntoo  readily  assumed that there are basic features  of\t the
\nConstitution which shackle the amending power and which take
\nprecedence  over the general welfare of the nation  and\t the
\nneed for agrarian and social reform.\n<\/p>\n
In construing Art. 368 it is moreover essential to  remember
\nthe  nature  and  subject-matter  of  that  Article  and  to
\ninterpret it subjectae materies.  The power of amendment  is
\nin  point  of quality an adjunct of sovereignty.  It  is  in
\ntruth  the exercise of the highest sovereign :power  in\t the
\nState.\t If the amending power is an adjunct of\t sovereignty
\nit  does  not  Admit  of  any  limitations.   This  view  is
\nexpressed by Dicey in “Law of the Constitution”, 10th  Edn.,
\nat page 148 as follows
\n\t      “Hence the power of amending the\tconstitution
\n\t      has  been\t placed, so to\tspeak,\toutside\t the
\n\t      constitution,  and that the legal\t sovereignty
\n\t      of  the United States resides in\tthe  States’
\n\t      governments  as  forming\tone  aggregate\tbody
\n\t      represented  by three-fourths of\tthe  several
\n\t      States at any time. belonging to the Union.”
\nA  similar view is stated by Lord Bryce in”  “The”  American
\nCommonwealth”,\tVol.  1,  ch.\tXXXII,\tpage  366.    Lester
\nBernhardt Orfield states,as follows in his book he  Amending
\nof the Federal Constitution”\n<\/p>\n
\t      “In  the last analysis, one is brought to\t the
\n\t      conclusion  that\tsovereignty  in\t the  United
\n\t      States, if it can be said to exist at all,  is
\n\t      located  in the amending body.   The  amending
\n\t      body  has\t often\tbeep  referred\tto  as\t the
\n\t      sovereign,  because it meets the fest  of\t the
\n\t      location\tof sovereignty.\t As  Willoughby\t has
\n\t      said:\n<\/p><\/blockquote>\n
\t      ‘In  all\tthose cases in which, owing  to\t the
\n\t      distribution  of\tgoverning  power,  there  is
\n\t      doubt  as to the political body in  which\t the
\n\t      Sovereignty  rests, the test to be applied  is
\n\t      the  determination of which authority has,  in
\n\t      the   last  instance,  the  legal\t  power\t  to
\n\t      determine\t its own competence as well as\tthat
\n\t      of others’.\n<\/p><\/blockquote>\n
\t      938<\/span><\/p>\n
\t      Applying\tthe  criteria of  sovereignty  which
\n\t      were  laid  down\tat  the\t beginning  of\tthis
\n\t      chapter, the amending, body is sovereign as  a
\n\t      matter  of  both law and fact.   Article\tFive
\n\t      expressly creates the amending body.  Yet in a
\n\t      certain  manner of speaking the amending\tbody
\n\t      may be said to exist as a matter of fact since
\n\t      it could proceed to alter Article Five or\t any
\n\t      other  part of the Constitution.\tWhile it  is
\n\t      true  that the sovereign cannot act  otherwise
\n\t      than  in\tcompliance with law, it\t is  equally
\n\t      true  that  it creates the law  in  accordance
\n\t      with which it is to act.”\n<\/p><\/blockquote>\n
In his book “Constitutional Law of the United States”,\tHugh
\nEvander Willis says that the doctrine of amendability of the
\nConstitution is based on the doctrine of the sovereignty  of
\nthe  people ,and that-it has no such implied limitations  as
\nthat  an amendment shall not contain a new grant of ,  power
\nnor be in the form of legislation, nor change “our dual form
\nof  government\tnor  change the protection of  the  Bill  of
\nRights,\t nor  make any other change  in\t the  Constitution.”
\nJames G. Randall also enunciates the proposition that when a
\nconstitutional\tamendment is adopted “it is done not by\t the
\n‘general  government, but by the supreme sovereign power  of
\nthe  nation  i.e., the people, acting through  State  Legis-
\nlatures\t or State conventions” and that “the amending  power
\nis ‘equivalent to the Constitution-makin power and is wholly
\nabove\t‘the   authority   of\tthe   Federal\tGovernment”-
\n(‘Constitutional  Pro Under Lincoln’, p. 395). ,  The  legal
\nposition  is  summarised  ‘by  Burdick at  page\t 48  of\t his
\ntreaties “The Law of the American Constitution as follows :\n<\/p>\n
\t      “The result of the National Prohibition  Cases
\n\t      (253  U.S. 350) seems to be that there  is  no
\n\t      limit to the power to amend the  Constitution,
\n\t      except  that  a  State  may  not\twithout\t its
\n\t      consent  be deprived of its equal suffrage  in
\n\t      the  Senate.  To out the case most  extremely,
\n\t      this  means  that by action of  two-third,  of
\n\t      both   Houses   of  Congress   and   of\tthe,
\n\t      legislatures in three-fourths , of the  states
\n\t      all of the powers of the national-  government
\n\t      could be surrendered to the States, or all  of
\n\t      the  reserved  powers of the States  could  be
\n\t      transferred to the federal government.  It  is
\n\t      only public opinion acting upon these agencies
\n\t      which  places  any  check\t upon  the  amending
\n\t      power.   But  the alternative to\tthis  result
\n\t      would  be\t to  recognize-\t the  power  of\t the
\n\t      Supreme  Court to veto the will of the  people
\n\t      expressed\t  in  a\t  constitutional   amendment
\n\t      without any possibility of the reversal of the
\n\t      court’s action except through revolution.”\n<\/p><\/blockquote>\n
939<\/span><\/p>\n
The matter has been clearly put by George Vedel in Manuel
\nElementaire De Droit Constitutionnel (Recueil Sirey) at page
\n117 as follows :\n<\/p>\n
“Truly\tspeaking  no  constitution prohibits  for  ever\t its
\namendment or its amendment in all its aspects.
\nBut  it can prohibit for example, the  amendment  (revision)
\nduring\ta certain time (the Constitution of 1791) or it\t can
\nprohibit the amendment (revision) on this or that point\t (as
\nin  the Constitution of 1875) which prohibits  amendment  of
\nthe   republican   form\t of  Government\t and   the   present
\nConstitution follows the same rule.\n<\/p>\n
But  this prohibition has only a political but no  juridical
\nvalue.\tIn truth from the juridical viewpoint a\t declaration
\nof   absolute  ,  constitutional  immutability\t cannot\t  be
\nimagined.  The Constituent power being the supreme power  in
\nthe   state  cannot  be\t fettered,  even  by  itself.\t For
\nexample,article\t 95  of our  constitution  stipulates,\t“The
\nrepublican  form  of Government cannot be the subject  of  a
\nproposal for amendment.\n<\/p>\n
But  juridically the obstacle which this provision  puts  in
\nthe way of an amendment of the republican form of government
\ncan be lifted as follows.\n<\/p>\n
It is enough to abrogate, by way of amendment (revision) the
\narticle\t 95  cited, above.  After this, the  obstacle  being
\nremoved,  a  second amendment can deal with  the  republican
\nform of Government.\n<\/p>\n
In   practice,\tthis  corresponds  to  the  idea  that\t the
\nconstituent  assembly  of today cannot bind  the  nation  of
\ntomorrow.”\n<\/p>\n
the argument of implied limitation was advanced by Mr. N. C.
\nChatterji and it was contended that item No. 3 of the  Indo-
\nPakistan  Agreement  providing for a  division\tof  Berubari
\nUnion  between India and Pakistan was outside the  power  of
\nconstitutional\tamendment  and\tthat the  preamble  to\tthe,
\nConstitution  did not permit the dismemberment of India\t but
\npreserved  the\tintegrity of the territory  of\tIndia.\t The
\nargument  was  rejected by this Court and it was  held\tthat
\nParliament  acting  under Art. 368 can make a  law  to\tgive
\neffect to and implement the Agreement in question or to pass
\na law amending Art. 3 so as to cover cases of cession of the
\nterritory  of  India  and thereafter make a  law  under\t the
\namended Art. 3 to implement the Agreement.
\n(1)  [1960] 3 S.C.R. 250.\n<\/p>\n
940<\/span><\/p>\n
There is also another aspect of the matter to be taken\tinto
\naccount.   If the fundamental rights are unamendable and  if
\nArt. 368 does not include any such power it follows that the
\namendment  of, say, Art. 31 by insertion of Arts.  31-A\t and
\n31-B  can  only\t be made by a violent  revolution.   It\t was
\nsuggested   for\t the  petitioners  that\t an  alteration\t  of
\nfundamental   rights  could  be\t made  by  convening   a-new
\nConstituent  Assembly outside the frame-work of the  present
\nConstitution, but it is doubtful if the proceeding,., of the
\nnew Constituent Assembly will have, ‘any legal validity, for
\nthe  reason  is that if the Constitution  provides  its\t own
\nmethod\tof amendment, any other method of amendment  of\t the
\nConstitution   will  be\t unconstitutional  and\tvoid.\t For
\ninstance,  in  George  S.  Hawke  v.  Harvey  C.  Smith,  as
\nSecretairy  of State of Ohio(1) it was held by\tthe  Supreme
\nCourt  of  the U.S.A. that Referendum provisions.  of  State
\nConstitutions’\tand  statutes  cannot  be  applied  in\t the
\n‘ratification  or  rejection of amendments  to\tthe  Federal
\nConstitution without violating the requirements of Article 5
\nof such Constitution and that such ratification shall be  by
\nthe  legislatures of the-several states, or  by\t conventions
\ntherein, as Congress shall decide.  It was held in that case
\nthat the injunction was properly issued against the  calling
\nof a referendum election on the act of the legislature of  a
\nState  ratifying an amendment to the  Federal  Constitution.
\nIf, therefore, the petitioners are right in their contention
\nthat  Art. 31 is not amendable within the frame-work of\t the
\npresent Constitution, the only other recourse for making the
\namendment  would, as I have already said, be  by  revolution
\nand  not  through, peaceful means, It cannot  be  reasonably
\nsupposed.  that the Constitution-makers contem- plated\tthat
\nArt. 31 or any other article on fundamental rights should be
\naltered by a-violent revolution and not by peaceful  change.
\nIt was observed in Feigenspan v. Bodine (2)
\n\t      “If  the plaintiff is right in its  contention
\n\t      of  lack\tof power to  insert  the  Eighteenth
\n\t      Amendment into the United States\tConstitution
\n\t      because of its subject matter. it follows that
\n\t      there  is no way to incorporate it and  others
\n\t      of  like character into the  national  organic
\n\t      law,  except, through revolution.\t  This,\t the
\n\t      plaintiff\t  concedes,   is   the\t  inevitable
\n\t      conclusion  of  its contention.\tThis  is  so
\n\t      starting a proposition that the judicial\tmind
\n\t      may  be pardoned for not readily\tacceding  to
\n\t      it,  and\tfor  insisting that  only  the\tmost
\n\t      convincing    reasons   will   justify\t‘its
\n\t      acceptance.”\n<\/p>\n
I  am,\ttherefore, of the opinion that the  petitioners\t Are
\nunable\tto make good their argument on this aspect  of:\t the
\ncase.\n<\/p>\n
It  was then contended for the petitioners,that there  would
\nbe
\nanomalies  if  Art. 368 is interpreted to  have\t no  implied
\nlimita-\n<\/p>\n
(1) 64 L. Ed. 871.  (2)264 Fed. 186.\n<\/p>\n
941<\/span><\/p>\n
tions.\tIt was said that the more important articles of\t the
\nConstitution  can be amended by the procedure  mentioned  in
\nthe  substantive  part of Art. 368 but\tthe  less  important
\narticles  would require ratification by the legislatures  of
\nnot  less than half of the States under the proviso to\tthat
\nArticle.  It was argued that the fundamental rights and also
\nArt.  32 could be amended by the majority of  two-thirds  of
\nthe  members  of Parliament but Art. 226 cannot\t be  amended
\nunless\tthere  was ratification of the legislatures  of\t not
\nless than half- of the States, It was pointed out that Arts.
\n54  and\t 55 were more difficult to amend but  not  Art.\t 52.
\nSimilarly, Art.’ 162 required ratification of the States but
\nnot  Art. 163 which related to the ‘Council of Ministers  to
\naid  and  advise  the  Governor\t in  the  exercise  of\t his
\nfunctions.   In\t my  opinion  the  argument  proceeds  on  a
\nmisconception.\tThe scheme of Art. 368 is not to divide\t the
\nArticles  of  the Constitution into  two  categories,  viz.,
\nimportant and not so important Article.\t It was contemplated
\nby  the Constitution-makers that the amending power  in\t the
\nmain  part  of\tArt. 368 should extend\tto  each  and  every
\narticle of the Constitution but in the case of such articles
\nwhich  related to the federal principles or the relation  of
\nthe   States  with  the\t Union,\t the  ratification  of\t the
\nlegislatures of at least half the States should be  obtained
\nfor  any amendment.  It was also contended that if Art.\t 368
\nwas  construed without any implied limitation  the  amending
\npower  under that Article could be used for  subverting\t the
\nConstitution.\tBoth  Mr.  Asoke,  Sen\tand  Mr.   Palkiwala
\nresorted to the method of reduction ad absurdem ‘MI pointing
\nout the abuses that might occur if there were no limitations
\non  the\t power to amend.  It was suggested  that  Parliament
\nmay,   by   a\tconstitutional\t amendment,   abolish\t the
\nparliamentary system of government or repeal the chapter  of
\nfundamental rights or divide India into. two States, or even
\nreintroduce  the rule of a monarch.  It..  is  inconceivable
\nthat  ‘Parliament  should  utilise the\tamending  power\t for
\nbringing about any of these contingencies.  It is,  however,
\nnot  permissible,  in the first place, to assume that  in  a
\nmatter\tof constitutional amendment there will be  abuse  of
\npower  and  then utilise it as a test for  finding  out\t the
\nscope  of  the\tamending power.\t  This\tCourt  has  declared
\nrepeatedly  that the possibility of abuse is not to be\tused
\nas  a test of the existence or extent of a legal power\t[See
\nfor  example, State of West Bengal v. Union of India<\/a>(1),  at
\npage  407].   In the second place, the amending power  is  a
\npower,\tof  an altogether different kind from  the  ordinary
\ngovernmental power and if an abuse occurs,, it occurs at the
\nhands of Parliament and the State Legislatures\trepresenting
\nan  extraordinary  majority of the people, so that  for\t all
\npractical  purposes it may be said to be the people,  or  at
\nleast.\tthe highest agent of the people, and one  exercising
\nsovereign powers.  It is therefore
\n(1)  [1964]1 S.C.R. 371.\n<\/p>\n
942<\/span><\/p>\n
anomalous   to\tspeak  of  ‘abuse’  of\ta  power   of\tthis
\ndescription.  In the last analysis, political machinery\t and
\nartificial  limitations\t will not protect  the\tpeople\tfrom
\nthemselves.   The perpetuity of our democratic\tinstitutions
\nwill depend not upon special mechanisms or devices, nor even
\nupon  any  particular  legislation,  but  rather  upon\t the
\ncharacter  and intelligence and the good conscience  of\t our
\npeople\tthemselves.   As  observed  by\tFrankfurter,  1.  in
\nAmerican Federation of Labour v. American Sash & Door Co.(1)
\n\t      “But  a democracy need rely on the  courts  to
\n\t      save  it\tfrom  its own unwisdom.\t  If  it  is
\n\t      alert-and\t without  alertness  by\t the  people
\n\t      there  can be no enduring democracy unwise  or
\n\t      unfair legislation can readily be removed from
\n\t      the  statute books.  It is by  such  vigilance
\n\t      over its representatives that democracy proves
\n\t      itself”\n<\/p>\n
I pass on to consider the next objection of the\t petitioners
\nthat the true purpose and object of the impugned Act was  to
\nlegislate in respect of land and that legislation 1n respect
\nof land falls within the jurisdiction of State\tlegislatures
\nunder Entry 18 of List 11, and the argument was. that  since
\nthe  State  Legislatures alone can make laws in\t respect  of
\nland, Parliament had no right to pass the impugned Act.\t The
\nargument  was based on the assumption that the impugned\t Act
\npurports to be, and in fact is, a piece of land legislation.
\nIt  was urged. that the scheme of Arts. 245 and 246  of\t the
\nConstitution ‘clearly showS that Parliament has no right  to
\nmake a law in respect of land, and since the impugned Act is
\na  legislative measure in relation to land, it is in  Valid.
\nIn  my opinion, the argument is based upon a  misconception.
\nWhet the impugned Act purports to do is not to make any land
\nlegislation  but  to protect and  validate  the\t legislative
\nmeasures  in  respect  of agrarian  reforms  passed  by\t the
\ndifferent State Legislatures in the country by granting them
\nimmunity from attack based on the plea that they  contravene
\nfundamental   rights.\tThe  impugned  Act  was\t passed\t  by
\nParliament  in exercise of the amending power  conferred  by
\nArt.  368 and it is impossible to accept the  argument\tthat
\nthe  constitutional  power of amendment can be\tfettered  by
\nArts.  245  and\t 246 or by the legislative  Lists.   It\t was
\nargued for, the petitioners that Parliament cannot  validate
\na law Which it has no Power to enact.  The proposition holds
\ngood where the validity on impugned Act turns on whether the
\nsubject-matter\tfalls within or without the jurisdiction  of
\nthe  legislature which passed it.  But to make a  law  which
\ncontravenes  the  Constitution constitutionally valid  is  a
\nmatter\tof  constitutional amendment, and as such  it  falls
\nwithin\tthe  exclusive power of Parliament  and\t within\t the
\namending  power conferred by Art. 368.\tI am accordingly  of
\nthe opinion that the petitioners are unable to
\n(1)  335 U.S. 538,556.\n<\/p>\n
943<\/span><\/p>\n
substantiate  their argument on this aspect of the case.   I
\nshould like to add that in Lesser v. Garnett(1), in National
\nProhibition Cases(2 ) and in United States v. Sprague(3),  a
\nsimilar\t  argument  Was\t advanced  to  the  effect  that   a
\nconstitutional amendment was not valid if it was in the form
\nof  legislation.   But\tthe argument  was  rejected  by\t the
\nSupreme Court of the U.S.A. in all the three cases.
\nIt  remains  to deal with the objection of  the\t petitioners
\nthat  the  newly  inserted articles 31-A  and  31-B  require
\nratification of the State legislatures under the proviso  to
\nArt. 368 of the Constitution because these articles  deprive
\nthe  High  Courts of the power to  issue  appropriate  writs
\nunder  Art. 226 of the Constitution.  I do not “think  there
\nis  any substance in this argument.  The impugned  Act\tdoes
\nnot  purport  to change the provisions of Art.\t226  and  it
\ncannot be, said even to have that effect directly or in\t any
\nsubstantial measure.  It is manifest that the newly inserted
\narticles do I not either in terms or in effect seek to\tmake
\nany  change in Art. 226 of the Constitution.   Article\t31-A
\naims   ‘at   saving  laws  providing  for   the\t  compulsory
\nacquisition by the State of a certain kind-of property\tfrom
\nthe  operation\tof  article 1 3\t read  with  other  relevant
\narticles  in  Part  III,  while\t article  31-b\tpurports  to
\nvalidate  certain  specified  Acts  g  Regulations,  already
\npassed,\t which, but for such a; provision , would be  liable
\nto be impugned under Art. 13 It is therefore’ not correct to
\nsay that the powers of High Courts to issue writs is, in’any
\nway, affected. The jurisdiaction ‘of the High Courts remains
\njust the same as it Was before.\t Only’a certain\t category-of
\ncases has been excluded from the purview of Part III and the
\nHigh  Courts  can  no longer intervene,\t not  because  their
\nJurisdiction or powers have been curtailed in any manner  or
\nto. any but because there would be no occasion hereafter for
\nthe  exercise  of  their power in such\tcases.\t As  I\thave
\nalready\t said,\tthe  effect  of\t the  impugned\tAct  on\t the
\njurisdiction of the High Courts under Art. 226 of the, Con-
\nstitution is not direct but only incidental in character and
\ntherefore the contention ” of the petitioners on this  point
\nagainst the validity of the impugned Act must be rejected.
\nIt  is\twell-settled  that  in\texamining  a  constitutional
\nquestion  of  this character, it is legitimate\tto  consider
\nwhether\t the impugned legislation is a legislation  directly
\nin  respect of the subject-matter covered by any  particular
\narticle\t of  the Constitution or whether  touches  the\tsaid
\narticles only incidentally or indirectly.  In A. K.  Gopalan
\nv.  The State of Madras<\/a> (4), kania , C.J., had\toccasion  to
\nconsider  the validity of the argument that, the  Preventive
\ndetention  order resulted in the detention of the  applicant
\nin  a  cell, and so, it contravened his\t fundamental  rights
\nguaranteed by
\n(1)  258 U. S. 130.\n<\/p>\n
(2)253 U.S. 350.\n<\/p>\n
(3)  282 U.S. 716.\n<\/p>\n
(4)  [1950] S.C.R 88- 101.\n<\/p>\n
944<\/span><\/p>\n
Art.  19(1)(a), (b), (c), (d), (e) and (g)., Rejecting\tthis
\nargument,  the learned Chief Justice observed that the\ttrue
\napproach  in  dealing  with  such a  question  was  only  to
\nconsider the directness of the legislation and not what will
\nbe the result of the detention otherwise valid, on the\tmode
\nof the detenu’s life.  On that ground alone, he was inclined
\nto    reject\tthe   contention   that\t  the\t order\t  of
\ndetention.contravened  the fundamental rights guaranteed  to
\nthe petitioner under Art. 19(1).  At page 100 of the report,
\nKania, C.J., stated as follows :\n<\/p>\n
\t      “As the preventive detention order results  in
\n\t      the  detention of the applicant in a  cell  it
\n\t      was  contended on his behalf that\t the  rights
\n\t      specified in Article 19(1) (a), (b), (c), (d),\n<\/p><\/blockquote>\n
\t      (e)  and\t(g)  have been\tinfringed.   It\t was
\n\t      argued that because of his detention he cannot
\n\t      have  a free right to speech as and  where  he
\n\t      desired  and  the same argument was  urged  in
\n\t      respect of the rest of the rights mentioned in
\n\t      sub-clauses   (b),  (c),\t(d)  (e)  and\t(g).<\/p><\/blockquote>\n
\t      Although\tthis argument is advanced in a\tcase
\n\t      which  deals  with  preventive  detention,  if
\n\t      correct,\tit should be applicable in the\tcase
\n\t      of   punitive  detention\talso  to   any\t one
\n\t      sentenced to a term of imprisonment under\t the
\n\t      relevant section of the Indian Penal Code.  So
\n\t      considered,  the\targument  must\tclearly\t  be
\n\t      rejected.\t In spite of the saving clauses\t (2)
\n\t      to  (6), permitting abridgement of the  rights
\n\t      connected\t  with\t each  of   them,   punitive
\n\t      detention under several sections of the  Penal
\n\t      Code,  i.e., for theft, cheating, forgery\t and
\n\t      even ordinary assault, will be illegaL  Unless
\n\t      such  conclusion necessarily follows from\t the
\n\t      article, it is obvious that such\tconstruction
\n\t\t\t    should be avoided.\tIn my opinion, suc
\nh  result
\n\t      is.   clearly   not   the\t  outcome   of\t the
\n\t      Constitution.   The  article has\tto  be\tread
\n\t      without  any pre-conceived notions.  So  read,
\n\t      it  clearly means that the legislation  to  be
\n\t      examined must be directly in respect of one of
\n\t      the  rights mentioned in the sub-clauses.\t  If
\n\t      there is a legislation directly attempting  to
\n\t      control  a citizen’s freedom of speech or\t ex-
\n\t      pression,\t or his right to assemble  peaceably
\n\t      and  without arms, etc., the question  whether
\n\t      that  legislation\t is saved  by  the  relevant
\n\t      saving  clause of article 19 will arise.\t If,
\n\t      however,\tthe legislation is not\tdirectly  in
\n\t      respect  of  any of these subjects but  as  a,
\n\t      result of the operation of other\tlegislation,
\n\t      for  instance,  for  punitive  or\t  preventive
\n\t      detention,  his right under any of these\tsub-
\n\t      clauses  is  abridged,  the  question  of\t the
\n\t      application of article 19 does not arise.\t ‘Me
\n\t      true approach is only to consider the  direct-
\n\t      ness  of the legislation and not what will  be
\n\t      the  result of the detention otherwise  valid,
\n\t      on the mode of the detenu’s
\n\t      945<\/span>
\n\t      life.  On that , short ground, in my  opinion,
\n\t      this  argument about the infringement  of\t the
\n\t      rights  mentioned in article  19(1)  generally
\n\t      must fail.  Arty other construction put on the
\n\t      article, it seems to me , will be unreason-\n<\/p>\n
It is true that the opinion thus expressed by Kania, C.J. in
\nthe case of A. K. Gopalan v. The State of Madras<\/a>(-) did\t not
\nreceive,  the  concurrence of the other learned\t Judges\t who
\nheard the said case.  Subsequently, however, in Ram Singh  &
\nOthers v. The State of Delhi & Anr.(2) the said observations
\nwere  cited  with  approval by the Full\t Court.\t  The  same.
\nprinciple  was accepted by this Court in Express  Newspapers
\n(Pvt.)\tLtd.  v.  The Union of\tIndia<\/a>(‘),  in  the  majority
\njudgment in Atiabari Tea Co. Ltd. v. The State of Assam<\/a> (4 )
\nand   in   Naresh  Shridhar  Mirajkar  v.   The\t  State\t  of
\nMaharashtra<\/a>(“),.  Applying the same principle to the present
\ncase,\tconsider that the effect of the impugned Act on\t the
\npowers\tof  the High Court under Art. 226  is  indirect\t and
\nincidental  and\t not direct.  I hold that the  impugned\t Act
\nfalls  under  the substantive part of Art. 368\tbecause\t the
\nobject of the impugned Act is to amend the relevant Articles
\nin Part III which confer fundamental rights on citizens\t and
\nnot -to change the power of the High Courts under Art. 226.
\nIn this connection I should like to refer to another  aspect
\nof  the\t matter.   The question about the  validity  of\t the
\nConstitution  (First Amendment) Act has been considered\t by,
\nthis Court in Sri Sankari Prasad Singh Deo v. Union of India
\nand  State of Bihar(6).\t In that case, the validity  of\t the
\nsaid  Amendment Act was challenged, firstly, on\t the  ground
\nthat the newly inserted Arts. 31 -A and 31-B sought  to make
\nchanges\t in Arts. 132 and 136 in Ch.  IV of Part V and\tArt.
\n226  in Ch.  V of Part VI.  The second ground was  that\t the
\namendment  was invalid because it related to legislation  in
\nrespect\t of  land.  It was also urged, in the  third  place,
\nthat  though  it  may be open to  Parliament  to  amend\t the
\nprovisions  in\trespect of fundamental rights  contained  in
\nPart ITT, the amendment made in that behalf would have to be
\ntested\tin  the\t light of provisions of Art.  13(2)  of\t the
\nConstitution.  The  argument was that the law to which\tArt.
\n13(2)  applied would include a law passed by  Parliament  by
\nvirtue\tof its constituent power to amend the  Constitution,
\nand  so, its validity will have to be tested by\t Art.  13(2)
\nitself.\t All these arguments were rejected by this Court and
\nit  was\t held  in that case  that  the\tConstitution  (First
\nAmendment)  Act was legally valid.  The same question  arose
\nfor consideration in Sajjan Singh v. State of Rajasthan\t (7)
\nwith regard to the validity of the Constitution (Seventeenth
\nAmendment)  Act,  1964.\t In that case,\tthe  petitioners  in
\ntheir
\n(1)   [1950 S.C.R. 88.\n<\/p>\n
(2) [1951] S.C.R. 451,456.\n<\/p>\n
(3)  [1959] S.C.R. 12,129-30.\n<\/p>\n
(4)  [1961] 1 S.C.R. 809, 864.\n<\/p>\n
(5) [1966] 3 S.C.R. 744.\t    (6)\t [1995]\t 1    S.C.R.\n<\/p>\n
89.
\n(7)  [1963] 1 S.C. R. 933.\n<\/p>\n
\t      946<\/span><\/p>\n
\t      Writ  Petitions in this Court  contended\tthat
\n\t      the Constitution (Seventeenth Amendment)’\t Act
\n\t      was constitutionally invalid since the  powers
\n\t      Prescribed  by  Art. 226 which is in  Ch.\t  V,
\n\t      Part VI of the Constitution Were likely to  be
\n\t      affected\tby  the Seventeenth  Amendment,\t and
\n\t      therefore\t the  special  procedure  laid\tdown
\n\t      under Art. 368 should have been followed.\t  It
\n\t      was  further contended in that case  that\t the
\n\t      decision\tof this court in Sankari  Prasads(1)
\n\t      case   should  be\t reconsidered.\t ‘Both\t the
\n\t      contentions  were re-, rejected by this  Court
\n\t      by’  a majority Judgment and it was held\tthat
\n\t      the  Constitution (Seventeenth Amendment)\t Act
\n\t      amended the fundamental rights solely with the
\n\t      object of assisting the State Legislatures  to
\n\t      give effect to the socioeconomic policy of the
\n\t      party  inpower and its effect on Art. 226\t was
\n\t      incident\tand insignificant and  the  impugned
\n\t      Act therefore fell under the substantive\tpart
\n\t      of Art. 368 and did not attract the proviso to
\n\t      that  article.  It was further held.  by\tthis
\n\t      Court that there Was no justification for\t re-
\n\t      considering  Sankari  Prasad’s(1)\t case.\t  On
\n\t      behalf of the respondents it was submitted  by
\n\t      the  Additional Solicitor- Generat  that\tthis
\n\t      was a very strong\t    case    for\t    the
\n\t      application of the principle of stare decisis. In
\n\t      my  opinion, this contention must be  accepted
\n\t      as  correct.If  the  arguments  urged  by\t the
\n\t      petitioners are to prevail it would leadto the
\n\t      inevitable  consequence  that  the  amendments
\n\t      made  to the Constitution both in 1951 and  in
\n\t      1955  would be rendered invalid and.  a  large
\n\t      number of decisions dealing with the  validity
\n\t      of the Acts included in the 9th Schedule which
\n\t      were pronounced by this Court ever since,\t the
\n\t      decision in Sankari Prasad’s(1) case was\tdec-
\n\t      lared,  would also-have to be  overruled.\t  It
\n\t      was  also\t pointed out  that  Parliament,\t the
\n\t      Government  and the people have acted on\tthe,
\n\t      faith of the decision of this Court in Sankari
\n\t      Prasad’s(1)  case and titles to property\thave
\n\t      been   transferred,  obligations\t have\tbeen
\n\t      incurred\tand rights have been acquird in\t the
\n\t      implementation of the legislation included  in
\n\t      the 9th Schedule.\n<\/p>\n
\t      The,  effect  of land reform  legislation\t has
\n\t      been clearly summarised in ch.  VIII of  Draft
\n\t      Outline on Fourth Plan as follows
\n\t      “Fifteen\tyears  ago when the First  Plan\t was
\n\t      being  formulated, intermediary  tenures\tlike
\n\t      zamindaris, jagirs and inams covered more than
\n\t      40  per  cent of the area.  There\t were  large
\n\t      disparities  in  the ownership  of  land\theld
\n\t      under ryotwari tenurer which covered the other
\n\t      60  per cent area; and’ a substantial  portion
\n\t      of the land was cultivated through tenants at-
\n\t      will  and\t share-croppers-who paid  about\t one
\n\t      half the produce as rent.\t Most holdings\twere
\n\t      small  and  fragmented. Besides, there  was  a
\n\t      large  population\t of  landless\tagricultural
\n\t      labourers.    In\t these\t conditions,\tthe,
\n\t      principal.  measures recommended for  securing
\n\t      the objec-\n<\/p>\n
\t      (1)[1952] S.C.R. 89.-\n<\/p>\n
\t      947<\/span><\/p>\n
\t      tives of the land policy were the abolition of
\n\t      intermediary  tenures, reform of\tthe  tenancy
\n\t      system,  including  fixation of fair  rent  at
\n\t      one-fifth\t to one-fourth of the  grossproduce,
\n\t      security of I tenure for the tenant,  bringing
\n\t      tenants  into  direct  relationship  with\t the
\n\t      State and investing in them ownership of land.
\n\t      A ceiling on land holding was also  recmmended
\n\t      so  that\tsome  surplus  land,  may  be\tmade
\n\t      available\t for redistribution to the  landless
\n\t      agricultural workers.  Another important\tpart
\n\t      of,  the\tprogamme     was  consolidation\t  of
\n\t      agricultural holdings and increse in the size-
\n\t      of  the operational unit to an economic  scale
\n\t      through cooperative methods.\n<\/p>\n
\t      Aboiition\t of Intermediaries.-During the\tpast
\n\t      15  years, progress has been made\t in  several
\n\t      directions.  Theprogramme for the abolition of
\n\t      intermediaries\thas   been    carried\t out
\n\t      practically  all over, the country.  About  20
\n\t      million tenants of former intermediaries\tcame
\n\t      into  direct relationship with the  State\t and
\n\t      became   owners  of  their  holdings.    State
\n\t      Governments are now engaged in the  assessment
\n\t      and payment of compensation.  There were\tsome
\n\t      initial delays but a considerable progress hag
\n\t      been  made in this direction in  recent  years
\n\t      and it is hoped that the issue of compensatory
\n\t      bonds will be completed in another two years.
\n\t      Tenancy  Reform.-TO deal with the\t problem  of
\n\t      tenants-at-will  in the ryotwari areas and  of
\n\t      ‘sub’-tenants  in the zamindari areas, a\tgood
\n\t      deal  of\tlegislation  has  been\tenacted.   .\n<\/p>\n
\t      Provisions   for\tsecurity  of   tenure,\t for
\n\t      bringing\tthem into direct relation  with\t the
\n\t      State   and   converting\tthem   into   owners
\n\t      have’been\t made  in  several  States.   As   a
\n\t      result,  about  3 million tenants\t and  share-
\n\t      croppers have acquired ownership of ‘More than
\n\t      7 million acres.\n<\/p>\n
\t      Ceiling on Holdings.  Laws imposing ceiling on
\n\t      agri,cultural  holdings bave been\t enacted  in
\n\t      all-  the\t States.In the former  Punjab  area,
\n\t      however the State Government has the power  to
\n\t      settle  tenants  on  land\t in  excess  of\t the
\n\t      permissible  limit although it has not  set  a
\n\t      ceiling on  ownership.  According to available
\n\t      reports over 2 million acres of surplus  areas
\n\t      in  excess  of the ceiling limits\t have,\tbeen
\n\t      declared\t  or   taken   possession   of\t  by
\n\t      Government.”\n<\/p>\n
It  is\ttrue  that the principle of stare  decisis  may\t not
\nstrictly  apply\t to, a decision on a  constitutional  point.
\nThere  is  no restriction in the Constitution  itself  which
\nprevents this Court from reviewing its earlier decisions  or
\neven to depart from them in the interest of public good.  It
\nis  true  that\tthe  problem  of  construing  constitutional
\nprovisions cannot be adequately solved by merely adopting
\n948<\/span>
\nthe  literal construction of the words used in, the  various
\narticles.  The Constitution is an organic document and it is
\nintended  to  serve as a guide to the solution\tof  changing
\nproblems  which\t the Court’ may have to face  from  time  to
\ntime.\tIt  is manifest that in a  progressive\tand  dynamic
\nsociety\t the character of these problems is bound to  change
\nwith the inevitable consequence that the relevant words used
\nin  the\t Constitution  may also\t change\t their\tmeaning\t and
\nsignificance.\tEven so., the Court is reluctant  to  accede
\nto,  the  suggestion that its earlier  decisions  should  be
\nfrequently  reviewed or departed from.\tIn such a  case\t the
\ntest should be : what is the nature of the error alleged  in
\nthe earlier decision, what is its impact on the public\tgood
\nand  what is the compelling character of the  considerations
\nurged  in  support  of\tthe contrary view.   It\t is  also  a
\nrelevant factor that the earlier decision has been  followed
\nin,  a large number of cases, that titles to  property\thave
\npassed\tand  multitude of rights and obligations  have\tbeen
\ncreated\t in  consequence of the earlier\t decision.   I\thave
\nalready\t dealt\twith  the merits of the\t contention  of\t the
\npetitioners with regard to the validity of the impugned\t Act
\nand  I have given reasons for holding that the impugned\t Act
\nis  constitutionally  valid  and  the  contentions  ,of\t the
\npetitioners are unsound.  Even on the assumption that it  is
\npossible  to  take  a different view and to  hold  that\t the
\nimpugned  Act is unconstitutional I am of opinion  that\t the
\nprinciple  of state decisis must be applied to\tthe  present
\ncase   and   the   plea\t made  by   the,   petitioners\t for
\nreconsideration\t of Sankari Prasad(1) case and the  decision
\nin   Sajjan  Singh  v.\tState  of  Rajasohan(2)\t is   wholly
\nunjustified and must be rejected.\n<\/p>\n
In  Writ Petition No. 202 of 1966, it was contended  by\t Mr.
\nNambyar\t  that\tthe  continuance  of  the  Proclamation\t  of
\nEmergency   under Art. 352 of the Constitution was  a  gross
\nviolation  of  power  because the emergency  had  ceased  to
\nexist.\t It was also contended\tthat Art. 358 should  be  so
\nconstrued  as to confine its operation on to legislative  or
\nexecutive action relevant to the Proclamation of  Emergency.
\nIt was submitted that the Mysore State was rot a border area
\nand  the  land\treform\tlegislation of\tthat  State  had  no
\nrelevant-connection  with the Proclamation of Emergency\t and
\nthe  fundamental  rights  conferred by\tArt.  19  cannot  be
\nsuspended  so far as the petitions are concerned.  I do\t not
\nthink  that it is necessary to express any opinion on  these
\npoints\tbecause\t the Writ Petition must fail  on  the  other
\ngrounds\t which I have already discussed above.\tIt  is\talso
\nnot  necessary for me to express an opinion on the  doctrine
\nof prospective overruling of legislation.
\nFor  the  reasons already expressed I hold  that  all  these
\npetitions fail and should be dismissed, but there will be no
\norder as to
\nPetitions dismissed.\n<\/p>\n
Costs.\n<\/p>\n
G.C.\n<\/p>\n
(1)  [1952] S.C.R. 89.\n<\/p>\n
(2)  [1965] S.C.R. 933.\n<\/p>\n
949<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India I. C. Golaknath & Ors vs State Of Punjab & Anrs.(With … on 27 February, 1967 Equivalent citations: 1967 AIR 1643, 1967 SCR (2) 762 Author: K S Rao Bench: Rao, K. Subba Wanchoo, K.N., Hidayatullah, M. & Shah, J.C., Sikri, S.M. & Bachawat, R.S., Ramaswami, V. & Shelat, J.M., Bhargava, […]<\/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-84860","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nI. C. 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