Kesavananda Bharati vs. State of Kerala (Part III)

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There is no better safeguard than the character of the citizen, the character of the legislature, the faith of the people in the representatives and the responsibility of the representatives to the nation. No sense of irresponsibility can be ascribed or attributed to the representatives of the people. The exclusion of Article 14 is to evolve new principles of equality in the light of Directive Principles. The exclusion of Article 19 is on the footing that laws which are to give effect to Directive Principles will constitute reasonable restrictions on the individual’s liberty. The exclusion of Article 31(2) is to introduce the consideration of social justice in the matter of acquisition. Directive Principles are not limited to agrarian reforms. Directive Principles are necessary for the uplift and growth of industry in the country.

1080. Article 31(4) and 31(6) speak of certain class of laws not being called in question on the ground of contravention of Article 31(2). Article 31A relates to law of the class mentioned therein not to be void on the ground that it is inconsistent with or takes away or abridges any of the fundamental rights conferred by Articles 14, 19 and 31. Article 15(4) states that nothing in Article 15 or in Article 29(2) shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes.

Article 31(5)(b)(ii) states that nothing in Article 31(2) shall affect the provisions of any law which the State may make for the promotion of public health. Article 33 speaks of law with regard to members of the Armed Forces charged with the maintenance of public order, so as to ensure the proper discharge of their duties and the maintenance of discipline among them and for that purpose the operation of some fundamental right in Part III is modified.

1081. The Solicitor General rightly said that similarly Article 31C creates a legislative field with reference to the object of legislation. It is similar to laws contemplated in Article 15(4), Article 31(5)(b)(ii) and Article 33. Each of these Articles carves out an exception to some Article or Articles conferring fundamental rights. The field carved out by the various Articles are of different dimensions. The entire process of exception of the legislative field from the operation of some of the Articles relating to fundamental rights is the mandate of the Constitution. It is wrong to say that the Constitution delegates power of amendment to Parliament or the States. As a result of the 25th Amendment the existing legislative field is freed from the fetters of some provisions of Part III of our Constitution on the legislative power.

1082. Article 31C substantially operates in the same manner in the industrial sphere as Article 31A operates in the agrarian sphere. The problems are similar in nature though of different magnitude. The Constitutional method adopted to solve the problem is similar.

The Solicitor General is correct in summing up Article 31C as an application of the principles underlying Articles 31(4) and 31(6) and Article 31A to the sphere of industry.

1083. A class of legislation can be identified and the legislative field can be carved out from the operation of fundamental rights or some of those can be excluded by a provision of the Constitution. Articles 31(4) and 31(6) identify the laws with reference to the period during which they were made. Article 31(4) relates to a bill pending at the commencement of the Constitution in the legislature of a State to have been passed by such legislature and to have received the assent of the President to be not called in question on the ground that it contravenes Article 31(2). Article 31(6) relates to law of the State enacted not more than 18 months from the commencement of the Constitution to he submitted to the President for his certification and upon certification by the President not to be called in question on the ground of contravention of Article 31(2).

Articles 31(2) and 31A identify the legislative field with reference to the subject matter of law. Articles 15(4) and 33 and Article 31(5)(b)(ii) identify laws with reference to the objective of the legislature. The exceptions to some part or some Articles of Part III of the Constitution is created by the Constitution and any law which is made pursuant to such power conferred by the Constitution does not amend the operation or application of these Articles in Part III of the Constitution. The crux of the matter is that modification or exception regarding the application of some of the Articles in Part III is achieved by the mandate of the Constitution and not by the law which is to be made by Parliament or State under Article 31C. Therefore, there is no delegation of amending powers. There is no amendment of any Constitutional provision by such law.

1084. The Constitution First Amendment Act 1951 introduced Articles 31A and 31B and Schedule 9 which are to be read together. Article 31A excluded a challenge under the whole of Part III for the laws of the kind mentioned in that Article. Article 31B restrospectively validated laws mentioned in Schedule 9 from challenge under Part III and also on the ground that they violated Section 299 of the Government of India Act, 1935. It may be stated here that Parliament which passed the Constitution First Amendment Act 1951 was the Constituent Assembly functioning as a legislature, till elections were held and a Parliament as provided for under the Constitution could be formed. Articles 31A and 31B carried out the intention of the framers of the Constitution as stated in Articles 31(4) and 31(6) that land legislation or agrarian reform was to be enforced and fundamental rights were not to be allowed to stand in the way of implementing the Directive Principles of State Policy contained in Article 39. The fundamental right conferred under Article 31(2) was subordinated to Article 39(b) and (c) in order to protect laws referred to in Article 31(4) and 31(6). When that object failed and the law was struck down under Article 14, Parliament gave effect to the policy underlying Articles 31(4) and 31(6) by excluding a challenge under every Article in Part III. In the Bihar Land Reforms case this Court said that the purpose behind the Bihar Land Reform Act was to bring about a reform of the land distribution system in Bihar for the general benefit of the community and the legislature was the best judge of what was good for the community and it was not possible for this Court to say that there was no public purpose behind the acquisition contemplated in the statute.

1085. This Court in State of West Bengal v. Bela Banerjee [1953] INSC 81; 1954 S.C.R. 558 held that the word “compensation” means just equivalent or full indemnity for the property expropriated. In Dwarkadas Srinivas v. Sholapur Spg & Wvg. Co. Ltd. [1953] INSC 87; 1954 S.C.R. 674 this Court struck down the law for taking over the management of Sholapur Mills on the ground that it amounted to acquisition and since no compensation was provided for, the law was held to be void. The Constitution Fourth Amendment Act 1955 came to remedy the implementation of essential welfare legislation. One of the measures in the Fourth Amendment Act was the amendment of Article 31 by making adequacy of compensation non-justiciable and the other was to amend Article 31A. The formula which had been used in Articles 31(4) and 31(6) to exclude the contravention of Article 31(2) was adopted with regard to adequacy of compensation. As a result of the amendment of Article 31A new categories were added to the Article and new Acts were added to the Ninth Schedule. The 17th Amendment Act made changes in Article 31A(1) and the proviso and amended Schedule 9 by inserting new Acts therein.

1086. The successive amendments of the Constitution merely carried out the principle embodied in Article 31 Clauses (4) and (6) that legislation designed to secure the public good and to implement the Directives under Article 39(b) and (c) should have priority over individual rights and that therefore fundamental rights were to fee subordinate to Directive or State Policy.

1087. Article 31(2) as it originally stood spoke of compensation for acquisition or requisition of property. The meaning given to compensation by the Court was full market value. There was no scope for giving effect to the word “compensation”. There was no flexibility of social interest in Article 31(2). Every concept of social interest became irrelevant by the scope of Article 13(2). It is this mischief which was sought to be remedied by the 25th Amendment. If Directive Principles are to inter-play with Part III legislation will have to give expression to such law. Parts III and IV of the Constitution touch each other and modify. They are not parallel to each other. Different legislation will bring in different social principles. These will not be permissible without social content operating in a flexible manner. That is why in the 25th Amendment Article 31(2) is amended to eliminate the concept of market value for property which is acquired or requisitioned.

1088. If compensation means an amount determined on principles of social justice there will be general harmony between Part III and Part IV. Secondly, if compensation means market price then the concept of property right in Part III is an absolute right to own and possess property or to receive full price, while the concept of property right in Part IV is conditioned by social interest and social justice. There would be an inherent conflict in working out the Directive Principles of Part IV with the guarantee in Part III. That is why Clauses (4) and (6) of Article 31 illustrate the vital principle that to make effective a legislative effort to bring about changes in accordance with Directive Principles particularly those contained in Article 39(b) and (c) Article 31(2) may have to be abridged. The social interest and justice may vary from time to time and territory to territory and individual rights may have to be limited.

1089. Just as the amount can be fixed on principles of social justice the principles for determining the amount can be specified on the same consideration of social justice.

Amount is fixed or the principles are specified by the norm of social justice in accordance with Directive Principles.

1090. In amending Article 31(2) under the 25th Amendment by substituting the word “amount” for “compensation” the amount fixed is made non-justiciable and the jurisdiction of the Court is excluded because no reasons for fixing such amount would or need appear in the legislation. If any person aggrieved by the amount fixed challenges the Court can neither go into the question of adequacy nor as to how the amount is fixed. If adequacy cannot be questioned any attempt to find out as to why the particular amount is fixed or how that amount has been fixed by law will be examining the adequacy which is forbidden as the Constitutional mandate. If one alleges that the amount is illusory one will meet the insurmountable Constitutional prohibition that the adequacy or the alleged arbitrariness of the amount fixed is not within the area of challenge in courts.

1091. The amount fixed is not justiciable. The adequacy cannot be questioned. The correctness of the amount cannot be challenged. The principles specified are not justiciable.

1092. If on the other hand, the legislature does not fix the amount but specifies the principles for determining the amount, the contention that principles for determining the amount must not be irrelevant loses all force because the result determining the amount by applying the specified principles cannot be challenged on the ground of inadequacy. If principles are specified for determining the amount and as a result of the application of the principles the result is less than the market value it will result in the same question of challenging adequacy.

1093. The relevancy of the principles cannot be impugned. Nor can the reasonableness of the principles be impeached.

1094. Article 14 has the flexibility of classification. Article 19 has the flexibility of reasonable restrictions. Social justice will determine the nature of the individual right and also the restriction on such right. Social justice will require modification or restriction of rights under Part III. The scheme of the Constitution generally discloses that the principles of social justice are placed above individual rights and whenever or wherever it is considered necessary individual rights have been subordinated or cat down to give effect to the principles of social justice. Social justice means various concepts which are evolved in the Directive Principles of the State.

1095. The 25th Amendment has amended Article 31(2) and also introduced Article 31(2B) in order to achieve two objects. The first is to eliminate the concept of market value in the amount fixed for acquisition or requisition of the property. The second is to exclude in Clause (2B) of Article 31 the applicability of Article 19(1)(f). Articles 31A and 31B applied to acquisition and requisition of property. The purpose of Article 31C is to confer by Constitutional mandate power on Parliament and State to make laws for giving effect to Directive Principles. The significance of the total exclusion of Part III from Articles 31A and 31B is that it brings about in unmistakable manner the true relationship between the provisions of Part IV and Part III of the Constitution.

1096. With reference to land legislation subordination of fundamental rights of individual to the common good was clear in Clauses (4) and (6) of Article 31. It was made clearer by the Constitution First Amendment Act which introduced Articles 31A, 31B and Schedule 9. Articles 31A, 31B, Schedule 9 and Article 31C merely removed the restrictions which Part III of the Constitution imposes on legislative power. Article 31A after the Fourth Amendment removed the restrictions on legislative power imposed by Articles 14, 19 and 31. In enacting Clauses (b), (c) and (d) in Article 31A Parliament was giving effect to social control which though less urgent than land reform became in course of time no less vital. Article 31B by the First Amendment retrospectively validated the laws specified in Schedule 9 by retrospectively removing all invalidity from the law because of the transgression of rights in Part III. Again, the seven new Acts added in the Ninth Schedule by the Fourth Amendment Act had nothing to do with agrarian reform, but dealt with subjects of great national importance. The Constitution Fourth Amendment Act was intended to remove the barriers of Articles 14, 19 and 31(2) in respect of land legislation considered essential for public good.

1097. State legislatures cannot remove the fetter. They have no power to amend the Constitution. Parliament cannot remove the fetter by ordinary law. By amendment of the Constitution Parliament can remove the fetter by either deleting one or more fundamental right or rights or by excluding certain laws or certain kinds of laws from the fetter.

1098. The pattern of Articles 31A, 31B, the Ninth Schedule and Article 31C is best understood by the observations of Patanjali Sastri, C.J. in Shankari Prasad case and of Wanchoo, J. in Golak Nath case. Patanjali Sastri, C.J. said in Shankari Prasad case “Articles 31A and 31B really seek to save a certain class of laws and certain specified laws already passed from the combined operation of Article 13 read with other relevant Articles of Part III. The new Articles being thus essentially amendments of the Constitution have the power of enacting them. It was said that Parliament could not validate the law which it has no power to enact. The proposition holds good whether the validity of the impugned provision turns on whether the subject matter, falls within or without the jurisdiction of the legislature which passed it. But to make law, which contravenes the Constitution, Constitutionally valid is a matter of Constitutional amendment and as such it falls within the exclusive power of Parliament”. Wanchoo, J.

said of Article 31B “The laws had already been passed by the State legislature and it was their Constitutional infirmity, if any, which was being cured by the device adopted in Article 31B read with the Ninth Schedule…. Parliament alone could do it under Article 368 and there was no need for any ratification under the proviso for amendment of Part III is not entrenched in the proviso”.

1099. The conclusiveness of declaration introduced by the 25th Amendment in a law under Article 31C is to be appreciated in the entire context of Article 31C. In removing restrictions of Part III in respect of a law under Article 31C there is no delegation of power to any legislature. There is only removal of restriction on legislative power imposed by Articles 14, 19 and 31. Article 31C does not confer any power to amend the Constitution. The exclusion of Article 31 is a necessary corollary to protecting the impugned law from challenge under Articles 14, 19 and 31 because Article 13(2) would but for its exclusion in Article 31C render such laws void. The declaration clause is comparable to Section 6(3) of the Land Acquisition Act “1894 which contains a conclusive evidence clause that declaration shall be conclusive evidence that the land is needed for a public purpose and for a company as the case may be. A conclusive declaration would not be permissible so as to defeat a fundamental right. In Article 31(5) it is provided that nothing in Clause (2) shall effect (a) the provisions of any existing law other than a law to which the provisions of Clause (6) apply and since the Land Acquisition Act 1894 is an existing law the conclusive declaration clause prevails and is not justiciable. See Babu Barkya Thakur v. The State of Bombay and Ors. (1961) 1 S.C.R. 128. The same view was reiterated by this Court in Smt. Somavanti and Ors. v.

The State of Punjab and Ors. (1963) 2 S.C.R. 774 that a declaration under the Land Requisition Act was not only conclusive about the need but was also conclusive for the need was for a public purpose.

1100. Conclusive proof is defined in the Indian Evidence Act. It is, therefore, seen that the legislative power carries with it the power to provide for conclusive proof so as to oust the jurisdiction of a Court. The declaration is for the purpose of excluding the process of evaluation of legislation on a consideration of the virtues and defects with a view to seeing if the laws has led to the result intended. If a question arises as to whether a piece of legislation with such declaration has a nexus with the Directive Principles in Article 39(b) and (c) the Court can go into the question for the purpose of process of identification of the legislative measure on a consideration of the scope and object and pith and substance of the legislation. Therefore, the 25th Amendment is valid.

1101. A contention was advanced on behalf of the petitioner that Article 31B applies to agrarian reforms or in the alternative Article 31B is linked to Article 31A and is to be read as applying to laws in respect of five subject matters mentioned in Article 31A. The 13 Acts mentioned in the Ninth Schedule as enacted by the First Amendment Act, 1951 dealt with estates and agrarian reforms. There is nothing in Article 31B to indicate that it is linked with the same subject matter as Article 31A. In the Bihar Land Reforms case Patanjali Sastri, C.J. said at pp. 914-915 of the report (1952 S.C.R. 889) that the opening words of Article 31B are only intended to make clear that Article 31A should not be restricted in ‘its application by reason of anything contained in Article 31B and are not in any way calculated to restrict the application of the latter Article or of the enactments referred to therein to acquisition of estates.

1102. In Vishweshwar Rao v. State of Madhya Pradesh 1952 S.C.R. 1020 it was urged that Article 31B was merely illustrative of Article 31A and as the latter was limited in is application to estates as defined therein Article 31B was also similarly limited. That contention was rejected and it was said that Article 31B specifically validates certain Acts mentioned in the Schedule despite the provisions of Article 31A and is not illustrative of Article 31A but stands independent of it.

1103. Again, in Jeejibhoy v. Assistant Collector (1965) 1 S.C.R. 616 it was contended that Articles 31A and 31B should be read together and if so read Article 31B would only illustrate the cases that would otherwise fall under. Article 31B, and, therefore, the same construction as put upon Article 31B should apply to Article 31A. This Court did not accept the argument It was said that the words “without prejudice to the generality of the provisions contained in Article 31A” indicate that the Acts and Regulations specified in the Ninth Schedule would have the same immunity even if did not attract Article 31A of the Constitution. If every Act in the Ninth Schedule would be covered by Article 31A, Article 31B would be redundant Some of the Acts mentioned in the Ninth Schedule, namely, items 14 to 20 and many other Acts added to the Ninth Schedule, do not appear to relate to estates as defined in Article 31A(2) of the Constitution. It was, therefore, held in Jeejibhoy case that Article 31B was a Constitutional device to place the specific statute beyond any attack on the ground that they infringe Part III of the Constitution.

1104. The words “without prejudice to the generality of the provisions contained in Article 31A” occurring in Article 31B indicate that Article 31B stands independent of Article 31A. Article 31B and the Schedule are placed beyond any attack on the ground that they infringe Part III of the Constitution. Article 31B need not relate to any particular type of legislation. Article 31B gives a mandate and complete protection from the challenge of fundamental rights to the Scheduled Acts and the Regulations. Article 31A protects laws in respect of five subject matters from the challenge of Articles 14, 19 and 31, but not retrospectively. Article 31B protects Scheduled Acts and the Regulations and none of the Scheduled Acts are deemed to be void or even to have become void on the ground of contravention of any fundamental right.

1105. The validity of the Constitution 29th Amendment Act lies within a narrow compass. Article 31B has been held by this Court to be a valid amendment. Article 31B has also been held by this Court to be an independent provision. Article 31B has no connection with Article 31A. The Bihar Land Reforms case and Jeejibhoy case are well settled authorities for that proposition. It, therefore, follows that Mr. Palkhivala’s contention cannot be accepted that before the Acts can be included in the Ninth Schedule requirements of Article 31A are to be complied with.

1106. For the foregoing reasons these are the conclusions.

1107. First, the power to amend the Constitution is located in Article 368. Second, neither the Constitution nor an amendment of the Constitution can be or is law within the meaning of Article 13. Law in Article 13 means laws enacted by the legislature subject to the provision of the Constitution. Law in Article 13(2) does not mean the Constitution.

The Constitution is the supreme law. Third, an amendment of the Constitution is an exercise of the constituent power. The majority view in Golak Nath case is with respect wrong. Fourth, there are no express limitations to the power of amendment. Fifth, there are no implied and inherent limitations on the power of amendment. Neither the Preamble nor Article 13(2) is at all a limitation on the power of amendment. Sixth, the power to amend is wide and unlimited. The power to amend means the power to add, alter or repeal any provision of the Constitution. There can be or is no distinction between essential and in-essential features of the Constitution to raise any impediment to amendment of alleged essential features. Parliament in exercise of constituent power can amend any provision of this Constitution. Under Article 368 the power to amend can also be increased. The 24th Amendment is valid. The contention of Mr. Palkhivala that unlimited power of amendment would confer power to abrogate the Constitution is rightly answered by the Attorney General and Mr. Seervai that amendment does not mean mere abrogation or wholesale repeal of the Constitution. The Attorney General and Mr.

Seervai emphasised that an amendment would leave an organic mechanism providing the Constitution organisation and system for the State. If the Constitution cannot have a vital growth it needs must wither. That is why it was stressed on behalf of the respondents that orderly and peaceful changes in a Constitutional manner would absorb all amendments to all provisions of the Constitution which in the end would be “an amendment of this Constitution”.

1108. The 25th Amendment is valid. The adequacy of amount fixed or the principles specified cannot be the subject matter of judicial review. The amendment of Article 31(2B) is valid. Article 31(2) is self contained and Articles 31(2) and 19(1)(f) are mutually exclusive. Amendment of fundamental right prior to the amendment was and is now after the 24th Amendment valid. Article 31C does not delegate or confer any power on the State legislature to amend the Constitution. Article 31C merely removes the restrictions of Part III from any legislation giving effect to Directive Principles under Article 39(b) and (c). The power of Parliament and of State legislatures to legislate on the class of legislation covered by Article 31C is rendered immune from Articles 14, 19 and 31.

1109. The inclusion of the Kerala Act 35 of 1969 and the Kerala Act 25 of 1971 by the 29th Amendment in the Ninth Schedule is valid. Article 31B is independent of Article 31A.

1110. In the result the contentions of Mr. Palkhivala fail. Each party will pay and bear its own costs. The petitions will be placed before the Constitution Bench for disposal in accordance with law.

P. Jaganmohan Reddy, J.

1111. The detailed contentions addressed before us for 66 days have been set out in the judgment of My Lord the Chief Justice just pronounced, and I would only refer to such of those as are necessary for dealing with the relevant issues. Though I agree with some of the conclusions arrived at by him, but since the approach in arriving at a conclusion is as important as the conclusion itself, and particularly in matters involving vital Constitutional issues having a far-reaching impact on fundamental freedoms of the people of this country and on the social objectives which the State is enjoined to achieve under the Directive Principles of State Policy, I consider it my duty to express my views in my own way for arriving at those conclusions.

1112. In this case the validity of the Constitution (Twenty-fourth) and (Twenty-fifth) Amendment Acts of 1971 and the Constitution (Twenty-ninth) Amendment Act of 1972 has been challenged as being outside the scope of the power of amendment conferred on Parliament by Article 368 of the Constitution and consequently void.

1113. The validity of the Twenty-fourth Amendment would depend upon the interpretation of two crucial articles, Article 13 and Article 368, and two words, one in each article, namely, `law’ in the former, and ‘amendment’ in the latter. For the purposes of ascertaining the true intent and scope of these articles in I.C. Golaknath and Ors. v.

State of Punjab[1967] INSC 45; , (1967) 2 S.C.R. 762 the basic question which the Court first considered was, where was power to amend the Constitution of India to be found? Subba Rao, C.J., with whom Shah and Sikri, JJ., as they then were, and Shelat and Vaidialingam, JJ., concurred, (hereinafter referred to as the leading majority judgment), held that the power was contained in Articles 245, 246 and 248 read with Entry 97 of List I of Schedule VII, and not in Article 368 which only provided for the procedure to amend the Constitution.

Hidayatullah, J., as he then was, in his concurring judgment held that the procedure of amendment, if it can be called a power at all, is a legislative power, but it is sui generis and outside the three Lists of the Constitution, and that Article 368 outlines a process which, if followed strictly, results in the amendment of the Constitution. He was, therefore, of the view that the Article gives power to no particular person or persons. All the named authorities have to act according to the letter of the Article to achieve the result.

1114. Wanchoo, J. as he then was, for himself and two other Judges, Bachawat and Ramaswami, JJ., found the power in Article 368 itself and not in Articles 245, 246 and 248 read with Entry 97 of List I.

1115. It is, therefore, contended by the learned Advocate-General of Maharashtra, firstly, that the finding in the leading majority judgment that the fundamental rights cannot be amended is based on the decision that the amending power is to be found in the residuary Article 248 read with Entry 97 of List I of Schedule VII. This finding is deprived of its foundation, since six Judges held that the amending power is not to be found in the residuary Article and Entry 97 of List I. Secondly, the conclusion that the fundamental rights cannot be amended was reached by the leading majority judgment on the basis that Article 13(2) was attracted by the opening words of Article 245 and, therefore, a law amending the Constitution under entry 97 of List I was a law referred to in Article 245, and as it was in conflict with Article 13(2) the law was void.

1116. It is again contended that this conclusion loses its validity once its basis is destroyed by five Judges holding that the amending power is not to be found in entry 97 of List I, but in Article 368. In view of the conclusion of Hidayatullah, J., that the power of amendment as well as procedure therefor was contained in Article 368 itself, he submits that there is no ratio binding on this Court unless it be that the power of amendment is not in the residuary article but in Article 368. This argument is of little validity, because the ratio of the decision, where a question is directly raised before the Court for decision, is that which it decides, and in that case wherever the power may have been found, whether in Article 368 or in the residuary entry 97 of List I of Schedule VII, the controversy was whether an amendment made under Article 368 is a ‘law’ within the meaning of Article 13(2), and if it is so, a State cannot make a law taking away or abridging fundamental rights conferred by Part III of the Constitution. That question being answered in the affirmative by the majority, the ratio of Golaknath’s decision is that an amendment under Article 368 is a ‘law’ within the meaning of Article 13(2). What the leading majority judgment in that case did not decide, however, is whether Article 368 itself could be amended under the proviso of that article conferring a power to amend the whole Constitution. At p. 805, Subba Rao, C.J., observed, “In the view we have taken on the scope of Article 368 vis-a-vis the fundamental rights, it is also unnecessary to express our opinion on the question whether the amendment of the fundamental rights is covered by the proviso to Article 368.” While five Judges who were in minority held that each and every article of the Constitution could be amended in exercise of the power under, and by following the procedure in, Article 368, Hidayatullah, J., held that by amending.

Article 368, Parliament could not do indirectly what it could not do directly, namely, amend Article 13(2) or override the provisions thereunder, because as he said, “The whole Constitution is open to amendment. Only two dozen articles are outside the reach of Article 368. That too because the Constitution has made them fundamental.” (See p.

878). There is, therefore, warrant for the submission that Golaknath’s case is not determinative of the question now raised before this Court as to whether the power to amend Article 368 could be exercised to amend the fundamental rights in Part III. At any rate, five of the six Judges who expressed an opinion on this aspect support the proposition that this can be done.

1117. It was also submitted that no question in fact arose for decision in Golaknath’s case that in future Parliament could not amend the fundamental rights, because what that case was concerned with was the past exercise of the power to amend the fundamental rights, and, therefore, the observations in the majority judgments of Subba Rao, C.J., and Hidayatullah, J., as he then was, about the future exercise of that power are clearly obiter.

It may be pointed out that the majority judgment as well as the minority judgment concurred in dismissing the petition, the former on the ground that the First, Fourth and Seventeenth Amendments were not affected either on the basis of the doctrine of prospective overruling or on the basis of acquiescence or on the ground that they were made by virtue of a valid exercise of the amending power under Article 368. On this basis it is submitted that no ratio can be found in that case for the majority declaring that Parliament in future cannot amend fundamental rights which is binding on this Court nor can it amend the amending article to take away or abridge fundamental rights.

1118. Whether the First, Fourth and Seventeenth Amendments have been rightly held to be valid or not, the ratio of the decision as was observed earlier is that under Article 368 as it was before its amendment, Parliament could not amend the Constitution to take away or abridge any of the fundamental rights conferred by Part III of the Constitution, and that question will only assume importance if this Court comes to the conclusion, following Hidayatullah, J.’s, decision, that Parliament cannot amend Article 368 under proviso (e) thereof to take away or abridge any of the fundamental rights or to amend Article 13(2) making it subject to an amendment under Article 368. If such a power exists, the question whether an amendment in Article 368 is a ‘law’ ‘within the meaning of Article 13(2) may not prima facie be of significance. There are, however, two aspects to this problem, firstly, whether ‘law’ in Article 13(2) includes an amendment of the Constitution under Article 368: and secondly, if this Court holds that ‘law’ in Article 13(2) does not include an amendment under Article 368, then the question would be, has the Constitution (Twenty-fourth) Amendment purported to exercise a power in effecting that amendment which was not granted under that Article ? In other words, are there any limitations to the amending power under Article 368 ? If, as was held by Hidayatullah, J., that the power of amendment conferred on Parliament under Article 368 is not a constituent power, and any amendment made thereunder is a legislative power, which is ‘law’ within the meaning of Article 13(2), then Parliament cannot do indirectly what it cannot do directly.

1119. The first question which would arise for decision is what does ‘law’ in Article 13(2) signify, and is there any internal evidence which would indicate that that word has been used to include an amendment under Article 368, and if it does, whether it is subject to any limitations, and if so, what ? It is contended that the word ‘law’ in Article 13(2) not only includes ordinary legislative law, but also Constitutional law.

1120. It may not, in my view, be necessary to examine the submission, that an amendment under Article 368 is not made in exercise of the constituent power but has been made by a constituent body, if on examination of the provisions of Part III, there is intrinsic evidence therein which points to the irresistible conclusion that Article 13(2) was meant only to place an embargo on a law made by a Legislature so-called in contradistinction to an amendment of the Constitution under Article 368 which no doubt is also a law in its generic sense, as indeed was the view taken in Sankari Prasad Singh Deo v. Union of India and State of Bihar [1951] INSC 45; [1952] S.C.R. 89, Sajjan Singh v. State of Rajasthan [1964] INSC 246; [1965] 1 S.C.R. 933 and Golaknath’s case by some of the learned Judges. The framers of the Constitution have defined “law” in Sub-clause (a) of Clause (3) of Article 13 and that this definition would on the first impression appear to apply to only Clause (2) of that Article. But it would also, having regard to the words “unless the context otherwise requires”, apply to Clause (1) thereof. While the expression “laws in force” has been defined in Sub-clause (b) of Clause (3) for the purposes of Clause (1) as including laws passed or made by Legislatures or other competent authorities before the commencement of the Constitution, an Ordinance, a bye-law, rule, regulation, notification, custom or usage having in the territory of India the force of law saved by Article 372 would, by virtue of Sub-clause (a) of Clause (3), equally apply to Clause (1) of Article 13.

1121. Again, though Sub-clause (a) of Clause (3) contains an inclusive definition of the word ‘law’ and does not specifically refer to a law made by Parliament or the Legislatures of States, it cannot be, nor has it been denied, that laws made by them are laws within the meaning of Article 13(2). What is contended, however, is that it also includes an amendment of the Constitution or Constitutional laws. No elaborate reasoning is necessary in support of the proposition that the word “law” in Article 13(2) includes a law made by Parliament or a Legislature of the State. When an Ordinance made either by the President under Article 123 or by a Governor under Article 213, in exercise of his legislative power which under the respective Sub-clause (2) has the same force and effect as an act of Parliament or the Legislature of a State assented to by the President or the Governor, as the case may be, is included in Article 13(3)(a), a law passed by Parliament or a Legislature of a State under Article 245 which specifically empowers Parliament for making laws for the whole or any part of India or any part of a State and the Legislature of a State for the whole or any part of a State, would be equally included within the definition of “law”. Article 246 to 255 deal with the distribution of legislative powers between Parliament and the State Legislatures to make laws under the respective Lists in the Seventh Schedule, and further provides under Article 248(1) and (2) that Parliament has exclusive power to make any law with respect to any matter not enumerated in the Concurrent List or State List including the power of imposing tax not mentioned in either of those Lists.

1122. Whereas Article 13(3)(a) has sepcifically included within the definition of ‘law’, custom or usage having in the territory of India the force of law, and even though it has not specifically mentioned an amendment made under Article 368 or a law made by Parliament or a Legislature it would certainly include a law made by the latter organs by reason of the legislative provisions of the Constitution referred to above. Having regard to the importance of the amending power, whether it is considered as a constituent power or as a constituted power, the omission to include it specifically would, it is contended, indicate that it was not in the contemplation of the framers of the Constitution to extend the embargo in Article 13(2) to an amendment under Article 368. To my mind what is difficult to envisage is that while the framers included minor legislative acts of the State within the definition of ‘law’ in Article 13(3), they did not think of including an amendment of the Constitution therein, even though attempts were made towards that end till the final stages of its passage through the Constituent Assembly. It is contended that the answer to this could be that the framers did not include specifically a law made by the Legislature in that definition, and as such all laws whether legislative or amendments of the Constitution would come within its purview. This argument loses its significance in view of the fact that the enumeration of laws like rule, bye-law, regulation and notification which have their source and existence in the legislative law clearly indicate the inclusion of a law made by Parliament or a Legislature of a State. It is not that the framers did not consider meticulously any objections to or defects in the definitions as I will show when dealing with the various stages of the consideration of the draft article.

1123. It may be necessary first to examine whether in the context of the inclusive definition of ‘law’, and not forgetting that an amendment under Article 368 could also be termed ‘law’, the prohibition that the State cannot take away or abridge the rights conferred under any of the provisions of Part III is confined to those categories of law to which I have specifically referred, namely, to the law made by Parliament or a Legislature of the State and to those indicated in Article 13(3)(a). The law referred to in Article 14, Clauses (3) and (5) of Article 16, Article 17, Clauses (2) to (6) of Article 19, Article 20, Article 21, Clauses (4) and (7) of Article 22, Clause (1) of Article 23, Clause (2) of Article 25, Article 31, Clause (3) of Article 32, Articles 33, 34 and Clause (a) of Article 35, is, in my view, a law which the Parliament or a Legislature of the State or both, as the case may be, is required to make for giving force to the rights or is permitted to make to restrict the rights conferred by Part III. In other words, the permissible limits are indicated therein. Further under Article 15 the words ‘special provision’ and in Clause (4) of Article 16 the making of any provision by the State, and Clause (2) of Article 23 imposing of a compulsory service by the State for public purposes, or preventing the State from doing or permitting it to take certain actions under Article 28, Clause (2) of Article 29 and Clause (2) of Article 30 can either be by an ordinary legislative law or by an order or notification issued by the Government which may or may not be under any law but may be in the exercise of a purely executive power of the Government of India or the Government of a State having the force of law.

1124. Even where reasonable restrictions are permitted as in Clauses (2) to (6) of Article 19 or where restrictions or abrogation of the totality of fundamental rights contained in Part III have been permitted in respect of members of the armed forces or the forces charged with the maintenance of public order under Article 33, or where it is sought to indemnify persons in the service of the Union or a State or any other person, it is the Parliament that has been empowered to make a law in that re-regard. Article 35, it may be noticed, begins with a non obstante clause, “Notwithstanding anything in this Constitution – (a) Parliament shall have, and the Legislature of a State shall not have, power to make laws….” This non obstante clause has the effect of conferring the power of legislation in respect of matters mentioned therein to Parliament exclusively which it would not have otherwise had, because some of the powers were exercisable by the State Legislatures. Hidyatullah, J., however, thought that the opening words in Article 35 were more than the non obstante clause and excluded Article 368 – a conclusion based on comparison of that Article with Article 105-A of the Australian Constitution in respect of which New South Wales v. The Commonwealth 36 C.L.R. 155 had held that it was an exception to Section 128 (See Golaknath’s case at p. 902). Wynes, however, did not agree with this view of the High Court of Australia: See Legislative, Executive and Judicial powers in Australia, pp. 695-698. With this view, Hidayatullah, J., did not agree. In my view it is unsafe to rely on cases which arise under other Constitutions. Apart from this, Article 35 is not in pari materia with Article 105-A of the Australian Constitution which deals with the binding nature of the financial agreement made thereunder. The analogy is, therefore, inapplicable, nor is there anything in the subject-matter of Article 35 to safeguard it from being amended under Article 368. On the other hand, this article empowers Parliament to give effect to fundamental rights and gives no indication to delimit the power of amendment under Article 368.

1125. It is true that the Constitution itself has provided the limitations that can be imposed on the fundamental rights guaranteed in Part III, but those limitations can only be effected by ordinary law as opposed to Constitutional law and nor imposing those limitations an amendment of the Constitution is not needed. Once a right is conferred on the citizen, to what extent the right can be restricted, or where a State is prohibited from acting in any particular manner to what extent it is permitted, is to be regulated only by an ordinary law. If so, the bar against exceeding the permissible limits must prima facie be against the State making such a law. In the circumstances, could it be said that the framers of the Constitution contemplated the inhibition in Article 13(2) to operate on any thing other than ordinary law ? To limit the extent and ambit of the power under Article 368 in which there is no reference to a law, by including within the ambit of the definition of ‘law’ in Article 13(3)(a) for purposes of Article 13(2), an amendment effected under Article 368, is to restrict the power of amendment by a strained construction or to impute to the framers of the Constitution a lack of respect to the amending power by making the bar of Article 13(2) applicable to it by mere implication, when in respect of minor instruments they were careful enough to include them in the definition of ‘law’.

1126. While this is so, a consideration of the conspectus of various rights in Part III when read with Article 13(2) would, in my view, prohibit the taking away or abridging of those rights by a law made by the Legislature namely the Parliament, Legislature of a State, or by executive action. This conclusion of mine will be substantiated if Article 13(2) is read along with each of the Articles in Part III, in so far as any of them contain the word ‘law’ which indeed it can be so read. The object of incorporating Article 13(2) was to avoid its repetition in each of the Articles conferring fundamental rights. Only one instance of this may be given in support of my conclusion. Clauses (2) to (6) of Article 19 which are limitations on the freedoms in Article 19(1)(a) to (g) respectively are couched in similar terms, and if I were to take one of these clauses for illustrating the point, it would amply demonstrate that the framers used the word ‘law’ in both Article 13(2) and Clauses (2) to (6) of Article 19 only in the sense of an ordinary law. Sub-clause (a) of Clause (1) of Article 19 and Clause (2) of that Article, if so read with Article 13(2) of the Constitution as it stood on January 26, 1950, may be redrafted as under:

19(1). All citizens shall have the right- (a) to freedom of speech and expression;

…

(2) The State shall not make any law which takes away or abridges the rights conferred by this article and any law made in contravention of this clause shall, to the extent of the contravention, be void:

Provided that nothing in Sub-clause (a) of Clause (1) shall affect the operation of any existing law in so far as it relates to, or prevent the State from making any law relating to libel, slander, defamation, contempt of court or any matter which offends against decency or morality or which undermines the security of, tends to overthrow, the State.

Clause (2) in the above draft incorporates the entire Clause (2) of Article 79 except that instead of Part III the word ‘article’ has been used, and Clause (2) of Article 19 has been incorporated as a proviso.

1127. In the alternative, if Clauses (2) to (6) of Article 19 are read as a proviso to Article 13(2), they would appear as follows:

The State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void:

Provided nothing in Sub-clause (a) of Clause (1) of Article 19 shall affect the operation of any existing law in so far as it relates to, or prevent the State from making any law relating to, libel, slander, defamation, contempt of court or any matter which offends against the decency or morality or which undermines the security of, tends to overthrow, the State.

In each of the Clauses (3) to (6) of Article 19 the expression ‘any existing law in so far as it imposes or prevents the State from making any law imposing’ has been uniformly used, and if these clauses are read as provisos just in the same way as Clause (2) of Article 19 has been read in either of the manner indicated above, the word ‘law’ in all these clauses as well as in Clause (2) of Article 13 would be the same and must have the same meaning. Similarly, Article 16(3) and (5) and Article 22(3) may also be so read. In reading the above articles or any other article in Part III with Article 13(2) it appears to me that the words `law’, ‘in accordance with law’, or ‘authority of law’ clearly indicate that ‘law’ in Article 13(2) is that which may be made by the ordinary legislative organs. I shall also show, when I examine the various stages through which the corresponding draft article which became Article 13(2), passed through the Drafting Committee and the Constituent Assembly, that the proviso to Article 8 would lead to a similar conclusion.

1128. Though the word ‘State’ has a wider meaning and may include Parliament or Parliament and the State Legislature acting together when to effect an amendment under Article 368, in the context of the restrictions or limitations that may be imposed by law on certain specified grounds mentioned in any of the provisions of Part III, particularly those referred to above, could only be a law made by the Legislature otherwise than by amendment of the Constitution, or to impose any restriction or limitation within the permissible limits on the fundamental rights under any of the provisions of Part III, an amendment of the Constitution is not necessary and hence could not have been so intended. It is also submitted that the definition of the word ‘State’ in Article 12 read with Article 13(2) would prohibit the agencies of the State jointly and separately from effecting an amendment, the same being a law, from abridging or taking away any of the rights conferred by Part III or in amending Article 13(2) itself. In this connection Hidayatullah, J., in Golaknath’s case at p. 865 – read the definition of the word ‘State’ in Article 12 as connoting, “the sum total of all the agencies which are also individually mentioned in Article 12”, and hence, “by the definition all the parts severally are also included in the prohibition”. In other words, he has taken the definition to mean and connote that all the agencies acting together, namely, the Parliament and the Legislatures, and if the two Houses of Parliament under Article 368(1) or the two Houses of Parliament and the Legislatures acting together under the proviso, can effect an amendment that amendment would be a law made by the State within the meaning of Article 13(2). At p. 866 this is what he said: “If the State wields more power than the functionaries there must be a difference between the State and its agencies such as Government, Parliament, the Legislatures of the States and the local and other authorities.

Obviously, the State means more than any of these or all of them put together. By making the State subject to Fundamental Rights it is clearly stated in Article 13(2) that any of the agencies acting alone or all the agencies acting together are not above the Fundamental Rights. Therefore, when the House of the people or the Council of States introduces a Bill for the abridgement of the Fundamental rights, it ignores the injunction against it and even if the two Houses pass the Bill the injunction is next operative against the President since the expression “Government of India” in the General Clauses Act means the President of India. This is equally true of ordinary laws and laws seeking to amend the Constitution”. He drew support from Article 325 of the Constitution of Nicargua in which specifically it was stated that, “That agencies of the Government, jointly or separately, are forbidden to suspend the Constitution or to restrict the rights granted by it, “except in the cases provided therein”. In our Constitution he observed, “the agencies of the State are controlled jointly and separately and the prohibition is against the whole force of the State acting either in its executive or legislative capacity”. With great respect this argument is based on an assumption which is not warranted by the definition of the word ‘State’ in Article 12. Nor is it in my view permissible to draw support from a provision of another Constitution which is differently worded. The assumption that ‘State’ would mean all the agencies of the Government jointly or separately when the agencies of the State have been separately enumerated, is not justified. The prohibition in Article 13(2) would be against each of them acting separately. There is no question of Parliament or the State Legislatures or Parliament or either local authorities or other authorities acting together or any one of these acting in combination. Nor under the Constitution can such combination of authorities acting together make a law. The State as Hidayatullah, J., envisages, because of the inclusive definition, means “more than any of them or all of them put together” which in my view is a State in the political sense and not in a legal sense. Under Article 51 of the Directive Principles, it is enjoined that the State shall endeavour to promote international peace and security; or maintain just and honourable relations between nations, etc., which in the context, can only mean Government or Parliament of India. Item 10 of List I of the Seventh Schedule read with Article 246 vests the power of legislation in respect of “foreign affairs, all matters which bring the Union into relation with the foreign countries” in those agencies. The words ‘unless the context otherwise requires’, in my view, refer to those agencies acting separately. If drawing an inference from other Constitutions is permissible in interpreting a definition, and I have said that it is not, a reference to Article 9 in the Burmese Constitution would show that the definition, of the State is not an inclusive definition, but it defines the State as meaning the several organs referred therein. I do not, therefore, think that reasoning would indicate that Article 13(2) puts an embargo on an amendment made under Article 368, nor does it warrant the making of a distinction between the State and the Government in order to hold that these organs cannot acting together make an amendment affecting rights in Part III.

1129. Another reason for arriving at this conclusion is that if amendment to the Constitution is a ‘law’, the Constitution as such would also be a law. But the framers of the Constitution distinguished the ‘Constitution’ from ‘law’ or ‘laws’, by making evident their intention by using the word ‘law’ in contradistinction to the ‘Constitution’ indicating thereby that the word ‘law’ wherever referred to, means only an ordinary legislative law, while the ‘Constitution’ as something distinct from it. In Article 60 the President, and in Article 159 the Governor, is required to take oath when assuming office, to preserve, protect and defend the Constitution and the law. Under Article 61 the President can only be impeached for the violation of the Constitution. While specifying the extent of the executive power in Sub-clauses (a) and (b) of Clause (1) of Article 73 it is provided by the proviso that the power referred to in Sub-clause (a) shall not, save as expressly provided in this Constitution or in any law made by Parliament, extend in any State to matters with respect to which the Legislature of the State has also power to make laws.

Here the words ‘law’ and ‘laws’ are definitely referable to the law made by Parliament and the Legislature of the State. The oath that a Minister of the Union is to take under Article 75(1) is set out in Schedule III, that he will do right to all manner of people in accordance with the Constitution and the law. Judges of the Supreme Court and the High Court are required to uphold the Constitution and the laws : see Articles 124(6) and 219 each read with Schedule III. It is provided in Article 76(2) that the Attorney-General is required to discharge the function conferred on him by or under this Constitution or any other law for the time being in force. Again in Article 148(5) dealing with the conditions of service of persons serving in the Indian Audit and Accounts Department, etc., they are made subject to the provisions of this Constitution and of any law made by Parliament. Even though the framers referred to the Constitution as by law established in some of the provisions, they have, when dealing distinctly with the Constitution and the law or laws, specified them as referable to the legislative law. The Constitution, however, was not so described except where it is intended to be emphasised that it had the force of law as envisaged by the words ‘as by law established’.

1130. If this view is correct, and I venture to suggest that it is, a question would arise as to whether Article 13(2) is really redundant, and should the Court so construe it as to impute to the framers an intention to incorporate something which has no purpose. The Court, it is well established, should not ordinarily construe any provision as redundant and, therefore, must give effect to every provision of a Statute or law. In support of this line of reasoning it is contended that in so far as Article 13(1) is concerned, ‘a law in force’ has been defined in Article 13(3)(b), but by virtue of Article 372(1) and Explanation I therein the same result would be achieved and any pre-Constitution Constitutional law which acquires the force of law by virtue of that Article is “subject to the other provisions” of the Constitution and consequently to the provisions in Part III.

Similarly any law made after the Constitution came into force would be void to the extent of its repugnancy with any of the provisions of the Constitution including those in Part III because of the doctrine of ultra vires. If so, it is argued, there was no purpose in enacting Article 13(2). On the other hand, the petitioner’s learned advocate submits that Article 13(2) has a purpose, in that among the laws in force there would be saved some laws of a Constitutional nature which were in force in the erstwhile princely States or even under the Government of India Act, 1935 where the Governor-General had made orders of that nature. As it was pointed out to the Constituent Assembly by Sardar Vallabhbhai Patel on the 29th April, 1947 that such may be the position, Article 13(1), it is said, has been incorporated in Part III, and for the same reason in order to protect fundamental rights which were basic human freedoms from being taken away or abridged even by an amendment of the Constitution, that Article has been incorporated. A reference to the latter would show that what Sardar Vallabhbhai Patel said was that they had not sufficient time to examine in detail the effect of Clause (2) of the draft article on the mass of existing legislation and that clause was, therefore, subject to examination of its effect on the existing laws which will be done before the Constitution is finally drafted and the clause finally adopted. There is nothing in the proceedings or debates to indicate that certain Constitutional laws were intended to be saved or that that law was to include an amendment of the Constitution, nor is the contention that Article 13(1) was specially designed to save pre-existing Constitutional laws notwithstanding that the Government of India Act and the Indian Independence Act were repealed by Article 395. If there be in force any Constitutional laws other than those repealed these are by Article 372(1) given the same force as any of the ordinary legislative law subject to the other provisions of the Constitution and such laws continue to be in force only until altered, repealed or amended by a competent legislature or other competent authority. There is no indication whatever that these laws were accorded a status similar to any of the provisions of the Constitution, nor could they co-exist with them in the sense that they can only be dealt with by an amendment under Article 368. Kania, C.J. in A.K. Gopalan’s case had no doubt pointed out that, the inclusion of Article 13(1) & (2) appear to be. “a matter of abundant caution”, and that, “Even in their absence if any of the fundamental rights was “infringed by any legislative enactment, the Court has always the power to declare the enactment to the extent it transgresses the limits, invalid”. Hidayatullah, J., as he then was, in Sajjan Singh’s case at p. 961 – commenting on the above passage of Kania, C.J., pointed out that, The observation is not clear in its meaning. There was undoubtedly a great purpose which this article achieves. It is probable that far from belittling the importance of Article 13 the learned Chief Justice meant rather to emphasise the importance and the commanding position of Fundamental Rights in that even without Article 13 they would have the same effect on other laws. To hold that Article 13 framed merely by way of abundant caution, and serves no additional or intrinsic function of its own, might, by analogy persuade us to say the same of Article 32(1) because this Court would do its duty under Article 32(2) even in the absence of the guarantee. No one can deny that Article 13(2) has a purpose and that purpose, as Hidayatullah, J., pointed out, was meant rather to emphasise the importance and the commanding position of Fundamental Rights, because having regard to the history of the agitation for a Bill of Rights being inscribed in a Constitution, to which I have adverted earlier, and the great hope that was inspired in the people of this country that there are some fundamental basic rights which are guaranteed to them and which cannot be subject to the vagaries of the legislatures, the State was enjoined not to take away or abridge those rights. Rights in Part III were intended to be made self- contained with the right of redress guaranteed to them by Article 32 – unlike in the United States where the judiciary had to invoke and evolve the doctrine of judicial review over the years. Mere general declarations of rights were without enforceability. As experience showed such general rights were found ineffective to check the growing power of the modern State, our framers examined judicial review of fundamental rights in various Constitutions and provided in our Constitution an effective remedy against encroachment of these rights. Article 32(2) provided for a direct approach to the Supreme Court in cases where fundamental rights are infringed, which without that provision would only come before it by way of an appeal under Article 133 or by special leave under Article 136 from a decision of the High Court rendered under Article 226. It is this purpose that Article 13(2) read with Article 12 emphasises. The framers of our Constitution conscious of the pitfalls and difficulties that were confronted by the varying exercise of judicial review in America wanted to ensure that the doctrine of void and relatively void-a typically American concept – should find no place in our Constitution. If as stated in Golaknath’s case by the leading majority judgment and by Hidayatullah, J., that fundamental rights were not to be subject to an amending process, it is inconceivable that our framers who gave such meticulous care in inscribing those rights in the Constitution, as is evident from the proceedings in the Constituent Assembly, should not have specifically entrenched them against chat process. I am aware of the contrary argument that if they wanted that the amending process in Article 368 should not be fettered by Article 13(2) they would have expressly provided for it either in Article 368 or in Article 13(2) as indeed attempts were made to that effect by moving suitable amendments which, later, at the concluding stages of the final Draft Constitution, as we shall presently see, were either withdrawn, not pressed or negatived. But this is neither here nor there, as indeed if the framers took the view that the embargo in Article 13(2) is only against legislative law, they may have felt that there was no need for any words of limitation which will make it inapplicable to Article 368.

1131. Before I refer to the proceedings of the Constiuent Assembly, I must first consider the question whether the Constituent Assembly Debates can be looked into by the Court for construing those provisions. The Advocate-General of Maharashtra says until the decision of this Court in H.H. Maharajadhiraja Madhav Rao Jiwaji Rao Scindia Bahadur and Ors. v. Union of India [1970] INSC 253; (1971) 3 S.C.R. 9-commonly known as Privy Purses case- debates and proceedings were held not to be admissible. Nonetheless counsel on either side made copious reference to them. In dealing with the interpretation of ordinary legislation, the widely held view is that while it is not permissible to refer to the debates as an aid to construction, the various stages through which the draft passed, the amendments proposed to it either to add or or delete any part of it, the purpose for which the attempt was made and the reason for its rejection may throw light on the intention of the framers or draftsmen. The speeches in the legislatures are said to afford no guide because members who speak in favour or against a particular provision or amendment only indicate their understanding of the provision which would not be admissible as an aid for construing the provision. The members speak and express views which differ from one another, and there is no way of ascertaining what views are held by those who do not speak. It is, therefore, difficult to get a resultant of the views in a debate except for the ultimate result that a particular provision or its amendment has been adopted or rejected, and in any case none of these can be looked into as an aid to construction except that the legislative history of the provision can be referred to for finding out the mischief sought to be remedied or the purpose for which it is enacted, if they are relevant. But in Travancore Cochin and Ors. v. Bombay Co. (1952) S.C.R. 113, the Golaknath’s case, the Privy Purses case and Union of India v. H.S. Dhillon (1972) 3 S.C.R. 33 there are dicta it is drafted by people who wanted it to be a national instrument to against referring to the speeches in the Constituent Assembly and in the last mentioned case they were referred to as supporting the conclusion already arrived at. In Golaknath’s case as well as Privy Purses case the speeches were referred to though it was said not for interpreting a provision but for either examining the transcendental character of Fundamental rights or for the circumstances which necessitated the giving of guarantees to the rulers. For whatever purpose speeches in the Constituent Assembly were looked at though it was always claimed that these are not admissible except when the meaning was ambiguous or where the meaning was clear for further support of the conclusion arrived at. In either case they were looked into. Speaking for myself, why should we not look into them boldly for ascertaining what was the intention of our framers and how they translated that intention ? What is the rationale for treating them as forbidden or forbidding material.

The Court in a Constitutional matter, where the intent of the framers of the Constitution as embodied in the written document is to be ascertained, should look into the proceedings, the relevant data including any speech which may throw light on ascertaining it. It can reject them as unhelpful, if they throw no light or throw only dim light in which nothing can be discerned. Unlike a statute, a Constitution is a working instrument of Government, it is drafted by people who wanted it to be a national instrument to subserve successive generations. The Assembly constituted Committees of able men of high calibre, learning and wide experience, and it had an able adviser, Shri B.N. Rau to assist it. A memorandum was prepared by Shri B.N. Rau which was circulated to the public of every shade of opinion, to professonal bodies, to legislators, to public bodies and a host of others and was given the widest publicity. When criticism, comments and suggestions were received, a draft was prepared in the light of these which was submitted to the Constituent Assembly, and introduced with a speech by the sponsor Dr. Ambedkar. The Assembly thereupon constituted three Committees: (1) Union Powers Committee; (2) Provincial Powers Committee; and (3) Committee on the Fundamental Rights and Minorities Committee. The deliberations and the recommendations of these Committees, the proceedings of the Drafting Committee, and the speech of Dr.

Ambedkar introducing the draft so prepared along with the report of these Committees are all valuable material. The objectives of the Assembly, the manner on which they met any criticism, the resultant decisions taken thereon, amendments proposed, speeches in favour or against them and their ultimate adoption or rejection will be helpful in throwing light on the particular matter in issue. In proceedings of a legislature on an ordinary draft bill, as I said earlier, there may be a partisan and heated debate, which often times may not throw any light on the issues which come before the Court but the proceedings in a Constituent Assembly have no such partisan nuances and their only concern is to give the nation a working instrument with its basic structure and human values sufficiently balanced and stable enough to allow an interplay of fortes which will subserve the needs of future generations. The highest Court created under it and charged with the duty of understanding and expounding it, should not, if it has to catch the objectives of the framers, deny itself the benefit of the guidance derivable from the records of the proceedings and the deliberations of the Assembly. Be that as it may, all I intend to do for the present is to examine the stages through which the draft passed and whether and that attempts were made to introduce words or expressions or delete any that were already there and for what purpose. If these proceedings are examined from this point of view, do they throw any light on or support the view taken by me ? 1132. The various stages of the Constituent Assembly proceedings, while considering the draft Articles 8 and 304 corresponding to Articles 13 and 368 respectively, would show that attempts were made to introduce amendments to both these articles to clarify that the embargo in Article 13(2) does not apply to an amendment made under Article 368. First, Shri K. Santhanam, one of the members of the Constituent Assembly moved an amendment on April 29, 1947 to Clause (2) of the draft submitted to the Constituent Assembly along with the Interim Report on Fundamental Rights. This amendment was that for the words “nor shall the Union or any unit make any law taking away or abridging any such right”, the following be substituted:

Nor shall any such right be taken away or abridged except by an amendment of the Constitution.

1133. The sponsor explained “that if the clause stands as it is even by an amendment of the Constitution we shall not be able to change any of these rights if found unsatisfactory.

In some Constitutions they have provided that some Parts of the Constitution may be changed by future Constitutional amendments and other Parts may not be changed. In order to avoid any such doubts, I have moved this amendment and I hope it will be accepted.” This amendment was accepted by Sardar Vallabhbhai Patel and adopted by the Constituent Assembly. Clause (2), after it was so amended, was as follows:

All existing laws, notifications, regulations, customs or usages in force within the territories of the Union inconsistent with the rights guaranteed under this Part of the Constitution shall stand abrogated to the extent of such inconsistency. Nor shall any such right be taken away or abridged except by an amendment of the Constitution.

Even as the clause stood originally in the draft, it was only the ‘Union’ or any ‘unit’ that was prohibited from making a law taking away or abridging any such right. At that stage there was nothing to show that a provision for amendment of the Constitution was either drafted or was before the Constituent Assembly for consideration. But otherwise also, it was not a case of the ‘Union’ or ‘Union’ and `the unit’ being prevented from making a law.

In order to justify the submission that all the organs of the State including the ‘Union’ or the `Union’ and the ‘Unit’ were prevented from effecting an amendment of the Constitution, the only indication is that the law which was prohibited from taking away or abridging fundamental rights was the law of the ‘Union’ or any ‘unit’. The amendment of Shri Santhanam was incorporated by the draftsmen in the Supplementary Report on Fundamental Rights which was presented to the Constituent Assembly on August 25, 1947, but subsequently this amendment of Shri K. Santhanam incorporated in the draft Article was deleted by the Drafting Committee. After the Draft Constitution was submitted to the President of the Constituent Assembly on February 21, 1948, and was given wide circulation, there appears to have been some criticism with respect to what had then become draft Article 8(2), which was in the following terms:

The State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void:

Provided that nothing in this clause shall prevent the State from making any law for the removal of any inequality, disparity, disadvantage or discrimination arising out of any existing law.

The note relating to the addition of the proviso is stated thus:

The proviso has been added in order to enable the State to make laws removing any existing discrimination. Such laws will necessarily be discriminatory in a sense, because they will operate only against those who hitherto enjoyed an undue advantage. It is obvious that laws of this character should not be prohibited.

The Constitutional Adviser’s note to the Drafting Committee showed that a critic had pointed out that “Clause (2) of Article 8 may be held as a bar to the amendment of the provisions of the Constitution relating to the fundamental rights by a law passed under draft Article 304, and it should, therefore, be made clear that there is no restriction on the power of Parliament to amend such provisions under Article 304.” The comment of the Constitutional Adviser to this objection was that “Clause (2) of Article 8 does not “override the provisions of Article 304 of the Constitution. The expression “law” used in the said clause is intended to mean “ordinary legislation”. However, to remove any possible doubt, the following amendment may be made in Article 8:

‘In the proviso to Clause (2) of Article 8, after the words “nothing in this clause shall” the words “affect the provisions of Article 304 of this Constitution or” be inserted’.”

The Drafting Committee does not appear to have accepted this suggestion, because the proviso remained as previously drafted, until it was deleted as a result of Amendment No.

252 which was standing in the name of Mehboob Ali Beg. On November 25, 1948, Pandit Lakshmi Kanta Maitra in moving this Amendment said – “The purpose of this amendment is self-evident, and as I have been strictly enjoined not to make any speech I simply move this amendment.” This amendment was adopted on November 29, 1948, and the proviso was deleted. (See C.A.D. Vol. VII, pp. 611 & 645).

1133. How meticulously this article was considered, can be seen from the proceedings on the objection of Naziruddin Ahmed that the words “custom or usage” in the definition of ‘law’ in Article 8(3)(a) (corresponding to Article 13(3)(a) would apply to Article 8(2), but the State does not make a ‘usage or custom’. Dr. Ambedkar pointed out that that will apply to Article 8(1) which deals with ‘laws in force’, but Naziruddin Ahmed insisted that it does not, and that he was no wiser after the explanation given by Dr. Ambedkar that the definition of law is distributive. Dr. Ambedkar then said that the amendment of Naziruddin Ahmed creates some difficulty which it is necessary to clear up and ultimately to avoid any difficulty he moved an amendment to Clause (3) of Article 8 to read “unless the context otherwise requires” which governed Clauses (a) and (b). This was adopted. (See C.A.D. Vol. VII, p. 644). It was after this that the proviso was deleted.

1134. It would appear from the proviso before it was deleted, if read with Clause (2) of draft Article 8, as also the note showing the pupose for which it was incorporated, that the law referred to therein was a legislative law. It could not by any stretch of the language be construed as including an amendment under draft Article 304, because the proviso was making the restriction in Clause (2) of Article 8 inapplicable to the State from making any law for the removal of any inequality, disparity, disadvantage or discrimination arising out of any existing law. If the ‘State’ and the ‘law’ have to be given a particular meaning in the proviso the same meaning has to be given to them in Clause (2) and since the proviso clearly envisages a legislative law it furnishes the key to the interpretation of the word ‘law’ in Clause (2) of draft Article 8 that it is also a legislative law that is therein referred.

1135. To Article 304 also amendments were moved-one of them, Amendment No. 157 was in the name of Shri K. Santhanam, but he said he was not moving it. (See C.A.D.

Vol. IX, p. 1643). Both the Attorney-General as well as the Advocate-General of Maharashtra said that they were not able to find out what these amendments were. But even assuming that this Amendment was designed to make the embargo under Article 13(2) applicable to Article 368, no inference can be derived therefrom. On the other hand an attempt was made by Dr. Deshmukh to entrench Fundamental Rights. He moved Amendment No. 212 to insert the following Article 304-A after 304:

304-A. Notwithstanding anything contained in this Constitution to the contrary, no amendment which is calculated to infringe or restrict or diminish the scope of any individual right, any rights of a person or persons with respect to property or otherwise shall be permissible under this Constitution and any amendment which is or is likely to have such an effect shall be void and ultra vires of any Legislature.

This amendment after Dr. Ambedkar’s speech regarding the scope of the amendment under Article 304 was, by leave, withdrawn. (See C.A.D. Vol. IX p. 1665).

1136. Earlier when the Drafting Committee was considering the objectives, there was a proposal by Shri K. Santhanam, Mr. Ananthasayanam Ayyangar, Mr. T.T.

Krishnamachari and Shrimati G. Durgabai that parts III, IV, IX and XVI be added in the proviso to Article 304, but it was pointed out by the Constitutional Adviser that that amendment involved a question of policy. The Drafting Committee did not adopt this amendment. If this amendment had been accepted, the amendment of the fundamental rights could be effected by the procedure prescribed for amendment which would be by two-thirds majority of each of the Houses of Parliament as well as by ratification by resolutions of not less than half the State Legislatures. Even this attempt does not give any indication that fundamental rights in Part III could not be amended under Article 368 or that ‘law’ in Article 13(2) is not the ordinary legislative law, but would include an amendment under Article 368. An attempt was made to show that on September 17, 1949, Dr. Ambedkar while speaking on draft Article 304 had said that Part III was not amendable. While adverting to the fact that they had divided the articles into three categories, he pointed out that the first) category was amendable by a bare majority, and as to the second category he had said: “If future Parliament wishes to amend any particular article which is not mentioned in Part III or Article 304, all that was necessary for them is to have two-thirds majority.” The third category for the purposes of amendment he explained required two-thirds majority plus ratification. It is submitted on behalf of the first respondent that what was stated about Part III being excepted from the second category was a mistake and that he must be thinking that, alonfi with Article 304, Part III was also included in the third category. The Advocate-General of Nagaland said Part III was a mistake for third category. Instead of third category, he either said or is reported to have said, Part III. Whether it is a correct reading of his speech or not, it is not relevant, for in interpreting a provision the words used, the context in which it was used, the purpose which it intended to subserve in the scheme of the Constitution, will alone have to be considered. For the same reasoning the fact that none of the members who were also members of the Provisional Parliament ever entertained a doubt as to the non- amendability of Part III when the Constitution (First Amendment) Bill was debated and later enacted as an Act is not relevant.

1137. In the view I take on the construction of Article 13 read with the other provisions of Part III, Article 13(2) does not place an embargo on Article 368 for amending any of the right in Part III, and it is, therefore, not necessary to go into the question whether the leading majority judgment is right in finding the power of amendment in the residuary entry 97 of List I of Schedule VII, nor is it called for, having regard to the majority decision that the power of amendment is to be found in Article 368 itself. Whether the power is implied, what is the width and whether Parliament can enlarge that power may have to be considered, but that Article 368 contains the power and the procedure of amendment can admit of little doubt, as was held by the majority in Golaknath’s case by five judges and Hidayatullah, J., it may, also be noticed that the leading majority judgment did not express any view as to whether under the proviso to Article 368, by amending that article itself, fundamental nights could be amended. (See Subba Rao, C.J., at p. 805).

1138. The question then arises, whether the Twenty-Fourth Amendment is valid, and if it is valid, whether Article 368 as amended is subject to any limitation, and if so, what ? The objects and reasons of the Twenty-Fourth Amendment Bill set out the purpose for which it was enacted and the mischief it sought to remedy. It is stated in Para 2 thereof thus:

The Bill seeks to amend Article 368 suitably for the purpose and makes it clear that Article 368 provides for amendment of the Constitution as well as procedure therefor. The Bill further provides that when a Constitution Amendment Bill passed by both Houses of Parliament is presented to the President for his assent, he should give his assent thereto. The Bill also seeks to amend Article 13 of the Constitution to make it inapplicable to any amendment of the Constitution under Article 368.

1139. What in fact the amendment effected will become clear, if the relevant provisions of Article 368, both before and after the amendment was made, are read in juxtaposition along with a new Sub-clause (4) added to Article 13.

Before the Amendment After the Amendment Procedure 368. An amendment of this Power of 368.(1) Notwithstanding for amendment Constitution may be initiated only Parliament anything in this of the by the introduction of a Bill to amend Constitution Parliament Constitution.

for the purpose in either House the may in exercise of its of Parliament, and when Constitution constituent power amend the Bill is passed in each House and procedure by way of addition, by a majority of the total therefor. variation or repeal any membership of the House provision of this and by a majority of not less Constitution in accordance than two-thirds of the members with the procedure laid of that House present and voting down in this article. it shall be presented to the President for his assent and upon such assent being given to (2) An Amendment of the bill, the Constitution shall this Constitution may be stand amended in accordance initiated only by the with the terms of the Bill. introduction of a Bill for the purpose in Provided that if such amendment either House of Parliament, seeks to make any change in- and when the Bill is passed in each House by a …

majority of the total membership of that House and the amendment shall also require by a majority of not less to be ratified by the Legislatures than two-thirds of the of not less than one-half members of that House of the States by resolutions to present and voting, it that effect passed by those shall be presented to Legislatures before the Bill the President who shall making provision for such give his assent to the amendment is presented to Bill and thereupon the the President for assent. Constitution shall stand amended in accordance with the terms of the Bill : Provided that if such amendment seeks to make any change in- … the amendment shall also require to be ratified by the Legislatures of not less than one-half of the States by resolutions to that effect passed by those Legislatures before the Bill making provision for such amendment is presented to the President for assent. (3) Nothing in Article 13 shall apply to any amendment made under this article. 13(4) Nothing in this article shall apply to any amendment of this Constitution made under Article 368.

1140. The above amendment seeks to provide-(i) that the source of power to amend is in Article 368; (ii) that when Parliament seeks to make a Constitutional amendment it does so “in exercise of its constituent power”; (iii) that the power to amend was by way of addition, variation or repeal; (iv) that the bar in Article 13 against abridging or taking away any of the fundamental rights does not apply to any amendment made under Article 368; (v) that nothing in Article will apply to an amendment of the Constitution under Article 368; (vi) that the words “any provision of the Constitution” were added so that “any” were to mean “every provision”; and (vii) that it is obligatory on the President to give his assent to any Bill duly passed under that Article.

1141. In so far as the contention that Article 13(2) is a bar to Constitutional amendments is concerned, I have already given my reasons why I consider that argument as not available to the petitioner inasmuch as the inhibition contained therein is only against ordinary legislative actions. The question, however, is whether Article 13(2) which bars the taking away or abridging the fundamental rights by Parliament, or Legislatures of the States and other enactments, specified in Article 13(3)(a) is or is not an essential feature.

If it is not, it can be amended under Article 368. Recognising this position the petitioner submits that if the effect of amending Article 368 and Article 13 is to permit the removal of the fetter of Article 13 on the ordinary legislative laws which can thereafter be empowered and left free to abrogate or take away fundamental rights, it would be an essential feature.

1142. The question whether there are any implied limitations on the power to amend under Article 368 or whether an amendment under that Article can damage or destroy the basic features of the Constitution would depend, as I said earlier, on the meaning of the word “amendment” before the Twenty-Fourth Amendment. If that word has a limited meaning, which is the case of the petitioner, it is contended that that power of amendment could not be enlarged by the use of the words “amend by way of addition, variation and repeal”.

1143. It may be mentioned that arguments similar to those which were addressed before us were advanced in Golaknath’s case, namely, (i) that the expression ‘amendment’ in Article 368 has a positive and negative content and that in exercise of that power Parliament cannot destroy the structure of the Constitution, but it can only modify the provisions thereof within the framework of the original instrument for its better effectuation; (ii) that if the fundamentals would be amendable to the ordinary process of amendment with a special majority the institution of the President can be abolished, the Parliamentary executive can be abrogated, the concept of federation can be obliterated and in short, the sovereign democratic republic can be converted into a totalitarian system of Government The leading majority judgment, though it found that there was considerable force in the argument, said that they were relieved of the necessity to express an opinion on this all important question, but so far as the fundamental rights are concerned, the question raised can be answered on a narrow basis. Subba Rao, C.J., observed at p. 805: “This question may arise for consideration only if Parliament seeks to destroy the structure of the Constitution embodied in the provisions other than in Part III of the Constitution. We do not, therefore, propose to express our opinion in that regard”.

1144. Hidayatullah, J., on the other hand, dealing with implied limitations by reference to Article V of the United States Constitution, and the decisions rendered thereunder pointed out that although there is no clear pronouncement of the United States Supreme Court a great controversy exists as to whether questions of substance can ever come before the Court and whether there are any implied limitations upon the amendatory power. After considering the view of text-book writers, particularly that of Orfield, and the position under the English and the French Constitutions (see pp. 870-877), he observed at p. 878 : “It is urged that such approach makes society static and robs the State of its sovereignty. It is submitted that it leaves revolution as the only alternative if change is necessary. The whole Constitution is open to amendment. Only two dozen articles are outside the reach of Article 368. That too because the Constitution has made them fundamental. What is being suggested by the counsel for the State is itself a revolution because as things are that method of amendment is illegal”.

1145. Wanchoo, J., rejected the doctrine of implied limitations though he was doubtful if the Constitution can be abrogated or another new Constitution can be substituted, (see p.

838). At p. 836 he said, “We have given careful consideration to the argument that certain basic features of our Constitution cannot be amended under Article 368 and have come to the conclusion that no limitations can be and should be implied upon the power of amendment under Article 368…. We fail to see why if there was any intention to make any part of the Constitution unamendable, the Constituent Assembly failed to include it expressly in Article 368…on the clear words of Article 368 which provides for amendment of the Constitution which means any provision thereof, we cannot infer any implied limitations on the power of amendment of any provision of the Constitution, be it basic or otherwise.” It was further observed at p. 831: “that the President can refuse to give his assent when a Bill for amendment of the Constitution is presented to him, the result being that the Bill altogether, falls, for there is no specific provision for anything further to be done about the Bill in Article 368 as there is in Article 111”.

1146. Bachawat, J., noticed the argument on the basic features but did not express any opinion because he said “it is sufficient to say that the fundamental rights are within the reach of the amending power”. Ramaswami, J., on the other hand rejected the thesis of implied limitations, because Article 368 does not expressly say so. He said at p. 933: “If the Constitution-makers considered that there were certain basic features of the Constitution which were permanent it is most unlikely that they should not have expressly said in Article 368 that these basic features were not amendable”.

1147. During the course of the lengthy arguments on behalf of the petitioners and the respondents, we have been taken on a global survey of the Constitutions of the various countries. In support of the rival contentions, there were cited before us innumerable decisions of the Supreme Court and the State Courts of the United States of America, and of the Courts in Canada, Ireland, Australia and of the Privy Council. A large number of treatise on Constitutional law, views of academic lawyers, the applicability of natural law or higher law principles, extracts from Laski’s Grammar of Politics, history of the demand for fundamental rights, and the speeches in the Constituent Assembly and the Provisional Parliament during the deliberations on the Constitution (First Amendment) Bill, were also referred to. The able arguments addressed to us during these long hearings, with great industry and erudition and the alacrity with which the doubts expressed by each of us have been sought to be cleared by the learned Advocates for the petitioner, the learned Attorney-General, the learned Solicitor-General and by the learned Advocates-General of the States and the learned Advocates who intervened in those proceedings, have completely eviscerated the contents of the vital and far reaching issues involved in this case, though sometimes some aspects tended to hover over the terra ferma and sometimes skirted round it, particularly when the views of academic writers who had the utmost freedom to express on hypothetical problems unrelated to concrete issues falling for a decision in any case, were pressed on us. The a priori postulates of some of the scholars are not often easy of meeting the practical needs and limitations of the tenacious aspects of the case precedents which makes our law servicable. There have again been arguments for taking consequences into consideration which really highlighted what would be the dire consequences if the result of the decision being one way or the other but this court ought not to be concerned with these aspects, if otherwise our decision is in accordance with the view of the law it takes. We should free ourselves of any considerations which tend to create pressures on the mind. In our view, it is not the gloom that should influence us, as Milton said, “we cannot leave the real world for a Utopia but instead ordain wisely”, and, if I may add, according to the well-accepted rules of construction and on a true interpretation of the Constitutional provisions.

1148. Lengthy arguments on the rules of construction were addressed, by referring particularly to a Urge number of American cases to show what our approach should be in determining Constitutional matters, having regard to the paramount need to give effect to the will of the people which the Legislatures and the Governments represent and for exercising judicial restraint. I must confess that some of these arguments show that the tendency has been to depend more on the views of Judges from other lands, however eminent when have in this, the Highest Court of the land during the last over two decades, forged an approach of our own and set out the rules applicable to the interpretation of our Constitution. There is no Constitutional matter which is not in some way or the other involved with political, social or economic questions, and if the Constitution-makers have vested in this Court a power of Judicial review, and while so vesting, have given it a prominent place describing it as the heart and soul of the Constitution, we will not be deterred from discharging that duty, merely because the validity or otherwise of the legislation will affect the political or social policy underlying it. The basic approach of this Court has been, and must always be, that the Legislature has the exclusive power to determine the policy and to translate it into law, the Constitutionality of which is to be presumed, unless there are strong and cogent reasons for holding that it conflicts with the Constitutional mandate. In this regard both the Legislature, the executive, as well as the judiciary are bound by the paramount instrument, and, therefore, no court and no Judge will exercise the judicial power de hors that instrument, nor will it function as a supreme legislature above the Constitution. The bona fides of all the three of them has been the basic assumption, and though all of them may be liable to error, it can be corrected in the manner and by the method prescribed under the Constitution and subject to such limitations as may be inherent in the instrument.

1149. This Court is not concerned with any political philosophy, nor has it its own philosophy, nor are Judges entitled to write into their judgments the prejudices or prevalent moral attitudes of the times, except to judge the legislation in the light of the felt needs of the society for which it was enacted and in accordance with the Constitution.

No doubt, political or social policy may dominate the legal system. It is only when as I said, the Legislatures in giving effect to them translate it into law, and the Courts, when such a measure is challenged, are invited to examine those policies to ascertain its validity, it then becomes a legal topic which may tend to dominate sometimes to its detriment.

1150. The citizen whose rights are affected, no doubt, invokes the aid of the judicial power to vindicate them, but in discharging its duty, the Courts have nothing to do with the wisdom or the policy of the Legislature. When the Courts declare a law, they do not mortgage the future with intent to bind the interest of the unborn generations to come.

There is no everlasting effect in those judgments, nor do they have force till eternity as it were. The concept, on the other hand, is that the law declared in the past was in accord with the settled judgment of the society, the social and economic conditions then existing, and that if those judgments are not likely to subserve the subsequent generations or the requirements and needs of the society as it may be then conditioned, they will have to be changed by the process known to law, either by legislative action or judicial re-review where that is possible. The Courts, therefore, have a duty, and have indeed the power, to re-examine and re-state the law within the limits of its interpretative function in the fulness of the experience during which it was in force so that it conforms with the socio- economic changes and the jurisprudential outlook of that generation. The words of the law may be like coats of Biblical Joseph, of diverse colours and in the context in which they are used they will have to be interpreted and wherever possible they are made to subserve the felt-needs of the society. This purpose can hardly be achieved without an amount of resilience and play in the interpretative process.

1151. On the desirability of drawing heavily or relying on the provisions of the Constitutions of other countries or on the decisions rendered therein, a word of caution will be necessary. It cannot be denied that the provisions of the Constitutions of other countries are designed for the political, social and economic outlook of the people of those countries for whom they have been framed. The seed of the Constitution is sown in a particular soil and it is the nature and the quality of the soil and the climatic conditions prevalent there which will, ensure its growth and determine the benefits which it confers on its people. We cannot plant the same seed in a different climate and in a different soil and expect the same growth and the same benefit therefrom. Law varies according to the requirements of time and place. Justice thus becomes a relative concept varying from society to society according to the social milieu and economic conditions prevailing therein. The difficulty, to my mind, which foreign cases or even cases decided within the Commonwealth where the Common Law forms the basis of the legal structure of that unit, just as it is to a large extent the basis in this country, is that they are more often than not concerned with expounding and interpreting provisions of law which are not in pari materia with those we are called upon to consider. The problems which confront those Courts in the background of the State of the society, the social and economic set-up, the requirements of a people with a totally different ethics, philosophy, temperament and outlook differentiate them from the problems and outlook which confront the courts in this country. It is not a case of shutting out light where that could profitably enlighten and benefit us. The concern is rather to safeguard against the possibility of being blinded by it. At the very inception of a Constitutional democracy with a Federal structure innovated under the Government of India Act, 1935, a note of caution was struck by the Chief Justice of India against following even cases decided on the Constitutions of the Commonwealth units, which observations apply with equal force, if not greater, to cases decided under the American Constitution. Gwyer, C.J., in In Re : The Central Provinces and Berar Act No. XIV of 1938, (1939) F.C.R. 18 which was the very first case under the 1935 Act, observed at p. 38: “But there are few subjects on which the decisions of other Courts require to be treated with greater caution than of federal and provincial powers, for in the last analysis the decision must depend upon the words of the Constitution which the Court is interpreting; and since no two Constitutions are in identical terms, it is extremely unsafe to assume that a decision on one of them can be applied without qualification to another.” This observation was approved and adopted by Gajendragadkar, C.J., (speaking for 7 Judges) in Special Reference 1 of 1964. [1964] INSC 209; (1965) 1 S.C.R. 413 at 487.

1152. The American decisions which have been copiously cited before us, were rendered in the context of the history of the struggle against colonialism of the American people, the sovereignty of several States which came together to form a Confederation, the strains and pressures which induced them to frame a Constitution for a Federal Government and the underlying concepts of law and judicial approach over a period of nearly 200 years, cannot be used to persuade this Court to apply their approach in determining the cases arising under our Constitution. For one thing, the decisions of the Supreme Court of the United States though were for the benefit of the people and yet for decades those inconvenient decisions were accepted as law by the Government until the approach of the Court changed. The restraint of the people, the Government and the Court, and the patience with which the inconveniences, if any, have been borne, have all contributed to the growth of the law and during this long period the Constitution of the United States has been only amended 24 times. The amending power under the American Constitution is a difficult process in that it is vitally linked with its ratification by the people through their representatives in the State Legislatures or in the Conventions. These decisions, therefore, are of little practical utility in interpreting our Constitution which has devised altogether different methods of amendments. No doubt, the rules of construction which our Courts apply have been drawn from the English decisions and the decisions of the Privy Council, the latter of which declared the law for the country until its jurisdiction was abolished; and even today the decisions of the Courts in England, the Commonwealth countries, and the United States of America on matters which are pari materia are considered as persuasive.

1153. For the proposition that for ascertaining the meaning of the word ‘amendment’, the object of and the necessity for amendment in a written Constitution must be considered, namely,- (a) it is necessary for changing the Constitution in an orderly manner, as otherwise the Constitution can be wrecked by extra Constitutional method or by a revolution;

(b) as the very object is to make changes in the fundamental or organic law, namely, to change the fundamental or basic principles of the Constitution, the power of amendment cannot be said to be confined to only changing non-essential features.

1154. The Attorney-General has cited from the writings of several authors of whom I may refer to a few passages from the following:

1155. Woodrow Wilson in his book on ‘Constitutional Government’ in the United States, said:

A Constitutional government, being an instrumentality for the maintenance of liberty, is an instrumentality for the maintenance of a right adjustment, and must have a machinery of constant adaptation” (page 4-6).

It is, therefore, peculiarly true of Constitutional government that its atmosphere is opinion, the air from which it takes its breath and vigor. The underlying understandings of a Constitutional system are modified from age to age by changes of life and circumstances and corresponding alterations of opinion. It does not remain fixed in any unchanging form, but grows with the growth and is altered with the change of the nation’s needs and purposes” (page 22).

1156. Roger Sherman Hoar in his book on “Constitutional Conventions-Their Nature, Powers and Limitations”, speaking of the American Constitution as the one based upon popular sovereignty, says:

The Federal Constitution was ordained and established by the people of the United States” (U.S. Constitution, Preamble) and guarantees to each of the several states “a republican form of government” (U.S. Constitution, Article IV). This means, in other words, a representative form. It is founded upon the theory that the people are fit to rule, but that it would be cumbersome for them to govern themselves directly. Accordingly, for the facilitation of business, but for no other purposes the people choose from their own number representatives to represent their point of view and to put into effect the collective will (page 11).

Quoting from Jameson’s “Works of Daniel Webster”, it is again stated at p. 12:

These principles were recognised by our forefathers in framing the various Bills of Rights, which declare in substance that, as all power resides originally in the people, and is derived from them, the several magistrates and officers of government are their substitutes and agents and are at all times accountable to them.

The various agents of the people possess only such power as is expressly or impliedly delegated to them by the Constitution or laws under which they hold office; and do not possess even this, if it happen to be beyond the power of such Constitution or laws to grant.

A question that naturally arises is, are the above postulates basic to our Constitution ? 1157. After referring to these passages, the learned Attorney-General submitted that the people of India have, as expressed in the Preamble, given the power to amend the Constitution to the bodies mentioned in Article 368. These bodies represent the people, and the method to amend any part of the Constitution as provided for in Article 368 must alone be followed. In his submission any other method, for example, Constituent Assembly or Referendum would be extra-Constitutional or revolutionary. Article 368 restricts only the procedure or the manner or form required for amendment, but not the kind or character of the amendment that may be made. There are no implied limitations on the amending power under Article 368. It is the people who have inscribed Article 368 in the Constitution. In the numerous American cases cited before us, there is a constant reference to the people taking part in the amending process through the Conventions or ratification by the Legislatures which the judiciary has been treating as ratification by the people. In that context the word ‘amendment’ has been construed widely because when the sovereign will of the people is expressed in amending the Constitution, it is as if it were they who were expressing the original sovereign will represented in the convention which drafted the Constitution. There has been even a divergence of opinion among the writers in the U.S. as to whether the entrenched provisions for the representation of the States in the Senate which could not be amended without the consent of the State affected can be amended even where all the States except the State concerned have ratified the taking away or abridging that right. With this or the several aspects of the American Constitution we are not called upon to expound nor have we any concern with it except with the claim of the petitioner that the fundamental; rights have been reserved by the people to themselves and the counter-claim by the learned Attorney-General that it is the people who have inscribed Article 368 by investing that Article with the totality of the sovereignty of the people which when exercised in the form and manner prescribed in that Article would amend any provision of the Constitution without any limitations as to the nature or kind of the amendment. The people, the learned Attorney-General submitted, have been eliminated from the amending process because being illiterate and untutored they would not be able to take part in that process with proper understanding or intelligence. This to my mind, appears somewhat incongruous. When they can be trusted to vote in much more complicated issues set out in election manifestos involving economic and political objectives and social benefits which accrue by following them, surely they could be trusted with deciding on direct issues like amending the Constitution. But the whole scheme of the Constitution shows it is insulated against the direct impact from the people’s vote, as can be seen, firstly, by the electoral system under which it may often happen that a minority of voters can elect an overwhelming majority in Parliament and the Legislatures of the States, while the majority vote is represented by a minority of representatives, as is evident from the affidavit filed in respect of the recent elections by the Union of India on March 12, 1973, and secondly, where a President is elected by proportional representation of the members of the Legislatures. This situation could not have been unknown to the framers can be gathered from the speech of Dr.

Ambedkar who said: “Constitutional morality is not a natural sentiment. It has to be cultivated. We must realize that our people have yet to learn it. Democracy in India is only a top-dressing on an Indian soil, which is essentially undemocratic”. (C.A.D., Vol.

VII, p. 38). In any case this aspect need not concern this Court as it deals with what has already been done, but since so much has been said about the people and the amending power in Article 368 as representing the sovereign will of the people, I have ventured to refer to this topic.

1158. There is no doubt some warrant in support of the proposition that people have reserved to themselves the fundamental rights, as observed by Patanjali Sastri, J., in A.K.

Gopalan v. State Madras [1950] INSC 14; (1950) S.C.R. 88 at 100, to which a reference has been made earlier, and, therefore, it is submitted that these rights cannot be taken away or abridged even by an amendment of the Constitution. Neither of these submissions accord with the facts of history though the Preamble which was adopted as a part of the Constitution on October 17, 1949 says so. (See with respect to the adoption of the Preamble as a part of the Constitution, C.A.D., Vol. X, p. 456). To digress somewhat, it appears that the observations in In Re : Berubari Union & Exchange of Enclaves (1960) 3 S.C.R. 250, that the Preamble was not part of the Constitution does not seem to have taken note of the fact that the Constituent Assembly had debated it and adopted the resolution. “That the Preamble stand part of the Constitution”. It appears to me that a comparison with Article V of the U.S. Constitution providing for an amendment of that Constitution, with Article 368 of our Constitution, would show that there is no resemblance between the amending procedure provided in either of them. Such a comparison would, in my view, be misleading, if we were to apply the concepts and dicta of the eminent Judges of the Supreme Court of the U.S. in interpreting our Constitution. If we were to accept the contention of the learned Attorney-General that the sovereignty is vested in Article 368, then one is led to the conclusion on an examination of the history of the Constitution- making that the people of India had never really taken part in the drafting of the Constitution or its adoption, nor have they been given any part in its amendment at any stage except indirectly through representatives elected periodically for conducting the business of the Government of the Union and the States. It cannot be denied that the members of the Constituent Assembly were not elected on adult franchise, nor were the people of the entire territory of India represented therein even on the very limited franchise provided for under the Cabinet Mission Plan of May 16, 1946 which was restricted by the property, the educational and other qualification to approximately 15% of the country’s population comprising of about 40 million electOrs. The people of the erstwhile princely States were not elected to the assembly though the representatives of those States may have been nominated by the rulers. A day before the transfer of power on August 15, 1947, the Indian States were only subject to the paramountcy of the British Crown. On August 15, 1947, all of them, except Hyderabad, Junagadh and Jammu &

Kashmir, had voluntarily acceded to the Dominion of India.

1159. The objectives Resolution which claims power from the people to draft the Constitution was introduced in the Constituent Assembly on December 13, 1946, when the Constituent Assembly met for the first time and at a time when the Muslim League bycotted the session (See C.A.D., Vol. I, p. 59). The 4th clause of that Resolution provided that all power and authority of the Sovereign Independent India, its constituent parts and organs of government are derived from the people. The Resolution also said that in proclaiming India as an Independent Sovereign Republic and in drawing up for her future governance a Constitution there shall be guarantee and secured to all the people of India, justice, social, economic and political; equality of status, of opportunity and before the law; freedom of thought, expression, belief, faith, worship, vocation, association and action, subject to law and public morality; and wherein adequate safeguards shall be provided for minorities, backward and tribal areas, and depressed and other backward classes. This Resolution was adopted on January 22, 1947 with utmost solemnity by all members standing. (See C.A.D., Vol. II. p. 324).

1160. While the claim was so made and at the time when the Resolution was adopted, the legal sovereignty over India remained vested in the British Crown and British Parliament, and when that power was transferred, it was transferred to the Constituent Assembly by the Indian Independence, Act, 1947, Sections 6 and 8 of which conferred on the Constituent Assembly the power to enact a Constitution, as well as the full powers to make laws which were not to be void or inoperative on the ground that they are repugnant to the laws of England, or to the provisions of the Indian Independence Act or any existing or future Act of Parliament of the United Kingdom, or to any order, rule or regulation made under any such Act, and the powers of the Legislature of the Dominion of India shall include the power to repeal or amend any such Act, order, rule or regulation in so far as it is part of the law of the Dominion (See Sub-section (2) of Section (6).

These powers of the Legislature of the Dominion, under Sub-section (1) of Section 8, for the purposes of making a Constitution, were conferred on the Constituent Assembly and reference in the Act to the Legislature of the Dominion was to be construed accordingly.

1161. It was only in November 1949 after the work of the framing of the Constitution was completed that the ruling Princes accepted it on behalf of themselves and the people over whom they ruled. The Constitution was not ratified by the people but it came into force, by virtue of Article 394, on January 26, 1950. Article 395 repealed the Indian Independence Act, 1947 and the Government of India Act, 1935.

1162. Reference may also be made to the fact that during the debates in the Constituent Assembly it was pointed out by many speakers that that Assembly did not represent the people as such, because it was not elected on the basis of adult franchise, that some of them even moved resolutions suggesting that the Constitution should be ratified by the people. Both the claim and the demand were rejected. Dr. Ambedkar explained that, “the Constituent Assembly in making a Constitution has no partisan motive. Beyond securing a good and workable Constitution it has no axe to grind. In considering the articles of the Constitution it has no eye on getting through a particular measure. The future Parliament if it met as a Constituent Assembly, its members will be acting as partisans seeking to carry amendments to the Constitution to facilitate to the passing of party measures which they have failed to get through Parliament by reason of some Article of the Constitution which the Constituent Assembly has none. That is the difference between the Constituent Assembly and the future Parliament. That explains why the Constituent Assembly though elected on limited franchise, can be trusted to pass the Constitution by simple majority and why the Parliament though elected on adult suffrage cannot be trusted with the same power to amend it”. (C.A.D., Vol. VII, pp. 43-44).

1163. At the final stages of the debate on the amending article, Dr. Ambedkar replying to the objection that the Constituent Assembly was not a representative assembly as it has not been elected on an adult franchise, that a large mass of the people are not represented, and consequently in framing the Constitution the Assembly has no right to say that this Constitution should have the finality which Article 304 proposes to give it, said – “Sir, it may be true that this Assembly is not a representative assembly in the sense that Members of this Assembly have not been elected on the basis of adult suffrage. I am prepared to accept that argument, but the further inference which is being drawn that if the Assembly had been elected on the basis of adult suffrage, it was then bound to possess greater wisdom and greater political knowledge is an inference which I utterly repudiate”. (C.A.D., Vol. IX, p. 1663).

1164. The fact that the preamble professed in unambiguous terms that it is the people of India who have adopted, enacted and “given to themselves this Constitution”; that the Constitution is being acted upon unquestioned for the last over twenty-three years and every power and authority is purported to be exercised under the Constitution; and that the vast majority of the people have, acting under the Constitution, elected their representatives to Parliament and the State Legislatures in five general elections, makes the proposition indisputable that the source and the binding force of the Constitution is the sovereign will of the people of India.

1165. On this assumption no state need have unlimited power and indeed in Federal Polities no such doctrine is sustainable. One has only to take the examples of U.S.A., Australia or Canada, and our own where the Central and the State Legislatures are supreme within the respective fields allotted to them. Any conflict between these is determined by the Supreme Court, whose duty is to declare the law. Those brought up in the unitary State find it difficult to recognise such of those limitations as are found in Federal Constitutions. Constitutions have been variously described as rigid or flexible, controlled or uncontrolled, but without going into these concepts it is clear that’ if the State is considered as a society, “to which certain indefinite but not unlimited powers are attributed then there is no difficulty in holding that the exercise of State power can be limited” (A.L. Goodhart, “English Law and the Moral Law”, p. 54). Even in a unitary State like the United Kingdom where it is believed that the Queen in Parliament is supreme, Professor A.L. Goodhart in the book referred to above points out that this is as misleading as the statement that the Queen’s consent is necessary. After referring to Dicey, Coke and Blackstone, that parliamentary government is a type of absolute despotism, he says, “Such a conclusion must be in conflict not only with our sense of what is fitting, but also with our recognition of what happens in fact. The answer is, I believe, that the people as a whole, and Parliament itself, recognise that under the unwritten Constitution there are certain established principles which limit the scope of Parliament. It is true that the Courts cannot enforce these principles as they can under the Federal system in the United States, but this does not mean that these principles are any the less binding and effective. For that matter some of them receive greater protection today in England than they do in the United States. These basic principles are, I believe, four in number”. (A.L. Goodhart, p. 55). Then he narrates what these four principles are :

First, that no man is above the law, the second, that those who govern Great Britain do so in a representative capacity and are subject to change but “an immortal government tends to be an immoral government”; the third, freedom of speech or thought and assembly are essential part of any Constitution which provides that people govern themselves because without them self-government becomes impossible; and the fourth, which is a basic part of the English Constitution is the independence of the judiciary and it is inconceivable that Parliament should regard itself as free to abolish the principle which has been accepted as a cornerstone of freedom ever since the Act of Settlement in 1701. Professor Goodhart then concludes:

It is therefore, I believe, true to say that it is as wrong in theory as it is in fact to suggest that the British Constitution is a form of enlightened despotism. Those who exercise power in the name of the State are bound by the law, and there are certain definite principles which limit the exercise of the power.

1166. Before considering the detailed contentions it is necessary to see what was intended to be achieved by the Twenty-fourth Amendment. I have already set out the changes made in Article 368. These are- (a) In the marginal note, instead of the expression “Procedure for amendment of the Constitution”, it was substituted by “Power of Parliament to amend the Constitution and Procedure therefor”. This was to meet any possible doubt that the marginal note only indicated a procedure and not the power of amendment, though the majority in Golaknath’s case had held that Article 368 contains both power and procedure;

(b) By the addition of Clause (1), three changes were effected namely, (i) a non obstante clause “Notwithstanding anything in this Constitution”, (ii) “Parliament may in exercise of its constituent power”; and (iii) “amend by way of addition, variation or repeal any provision of the Constitution in accordance with the procedure laid down in this article”.

It has already been seen that both in Sankari Prasad’s and Sajjan Singh’s cases, the two Houses of Parliament have been construed as Parliament and not a different body. In Golaknath’s case also all the Judges held that it is only Parliament which makes the amendment. The question Whether the power in Article 368 is a constituent power or a legislative power has of course been debated. The law in its generic terms includes a constituent law, namely, the Constitution itself made by a Constituent Assembly-as indicated by the wards “The Constitution as by law established”, or an amendment made in accordance with the provision contained in the Constitution, as well as an ordinary legislative law made by the legislative organs created by the organic instrument. The quality and the nature of the law has been differently described, but broadly speaking the Constitution or the amendments thereof are termed as law which is made in exercise of its constituent power, though the reach of each may differ. If it is true, as is contended, that both these in the plenitude of power are co-extensive, on any view of the matter, no difficulty is encountered in describing the amending power as the constituent power.

Even otherwise without resort to any great subtlety or distinction between the exercise of power by a constituent body and a constituted body inasmuch as both are concerned in the making of the Constitution or in amending it, they can be considered as a constituent power. The amending power is a facet of the constituent power, but not the whole of it.

The power under Article 368 after the amendment is still described as amending power.

The Twenty-fourth Amendment makes this explicit because it did not want a doubt to linger that because the same body, namely, Parliament makes both the ordinary law in terms of the grant in Articles 245 to 248 and an amendment in terms of Article 368, it should not be considered that both these are legislative laws within the meaning of Article 13(2) which was what the majority in Golaknath’s case had held. In the view I have taken that Article 13(2) was confined only to the ordinary legislative laws and not one made under Article 368, the addition of Clause (1) to Article 368 in so far as it declares that when Parliament exercises the power under that provision if exercises its constituent power and makes explicit what was implicit. In my view, the amendment, therefore, makes no change in the position which prevailed before the amendment.

1167. It has also been seen that the amendment added Clause (3) to Article 368 that “Nothing in Article 13 shall apply to any amendment made under this article”, and has added Clause (4) to Article 13 that “Nothing in this article shall apply to any amendment of this Constitution made under Article 368”. These additions, having regard to the view I have taken that Article 13(2) does not impose any express limitation on Article 368, unless of course, there is a limitation in Article 368 itself on the width of the power which the word ‘amendment’ in the context of that article and the other provisions of the Constitution might indicate, again make explicit what was implicit therein.

1168. The outstanding question then is, what is the meaning of the word ‘amendment’- whether it has wide or a restricted meaning, whether the word ‘amendment’ includes repeal or revision, and whether having regard to the other provisions of the Constitution or the context of the word ‘amendment’ in Article 368 itself it has a restricted meaning, and consequently does not confer a power to damage or destroy the essential features of the Constitution.

1169. The existence or non-existence of any implied limitations on the amending power in a written Constitution, which does not contain any express limitations on that power has been hotly debated before us for days. I have earlier set out some of these contentions. If the word ‘amendment’ has the restricted meaning, has that power been enlarged by the use of the words “amend by way of addition, variation or repeal” or do they mean the same as amendment? If they are wider than amendment, could Parliament in exercise of its amending power in Article 368 enlarge that power? This aspect has been seriously contested and cannot on a superficial view be brushed aside as not worthy of merit. There can be two ways of looking at it. One approach can be, and it would be the simplest solution to the problem that confronts us, to assume that the amending power is omni-sovereign and thereafter the task will be easy because so much has been written by academic writers that it will not be difficult to find expression of views which support that conclusion. Long years ago, Oliver Wendall Holmes had written, “you can give any conclusion a logical form” and one can only say how true it is. This course, however, should be eschewed, firstly, because of the a priori assumption and the speculation inherent in drawing upon such writings, and secondly, because the interpretation placed by these learned writers on Constitutions which are different will, if drawn upon, in effect allow them to interpret our Constitution, which though derivative it may be, has to be interpreted on the strength of its provisions and the ethos it postulates. It is, therefore, necessary to ascertain from the background of our national aspirations, the objectives adopted by the Constituent Assembly as translated into a working organic instrument which established a sovereign democratic Republic with a Parliamentary system of Government whereunder individual rights of citizens, the duties towards the community which the State was enjoined to discharge; the diffusion of legislative power between Parliament and State Legislatures and the provision for its amendment, etc., are provided for. All these aspects were sought to be well balanced as in a ship built for fair weather as well as for foul. This then will be the proper approach.

1170. The learned Attorney-General contends that the word ‘amendment has a clear, precise, definite and unambiguous legal meaning and has been so used in all the written Constitutions of other countries also ever since written Constitutions have been innovated. The word “amendment” according to him has received a well accepted construction which gives it the widest amplitude unrestricted by any limitations thereon.

While making this submission, however, he has pointed out that though our Constitution has used different expressions at several places, it does not follow that they do not necessarily mean the same thing. The Advocate for the petitioner on the other hand says that this word has no precise and definite or primary and fundamental meaning and hence the cases on construction cited by the respondents that the Court is not concerned with the policy of the Legislature are not applicable. On the contrary, he points out, that since the word is ambiguous, the width of the power has to be ascertained by courts from the general scheme and context of the Constitution in which it appears and other relevant indications and principles. He relies on the observations of Lord Wright in James v.

Commonwealth of Australia, [1936] A.C. 578 at p. 627 (P.C.) cited on behalf of the first respondent that, “A Good draftsman would realise that the mere generality of the word must compel limitation in its interpretation. ‘Free’ in itself is vague and indeterminate. It must be its colour from the context”.

1171. The learned Attorney-General further submits, relying again on the decisions of the American Courts that revision and amendment have been held as synonymous terms and that if you give the power to amend the amending power, the amending power will become very wide. It is also his contention, relying on Strong on “Modern Political Constitutions” that the amending provisions re-create the Constituent Assembly, provide some elements to be ‘unaltered, and since our Constitution-makers who were aware of this position in the United States have used the same words, they must be intended to use that word as giving the widest power, and since there are no express limitations, no restriction on that power can be read into it by implication. A reference to the provision relating to amendment either in the United States or in the States’ Constitutions where people have a vital part in the amending process in my view inapt and inapplicable to the interpretation of our Constitution where the people have been designedly excluded. I say this, because we have been referred to the attempts made in the Constituent Assembly to involve people of this country in the amendment of the Constitution, but such attempts did not succeed. Brajeshwar Prasad had actually proposed an amendment to make the amending provision similar to the one in Australia Constitution and had said, “What is possible in Australia is possible here. If the people in Australia are competent and advanced to adopt this method of amendment, certainly we, who are as competent as the Australians, if not more, are entitled to adopt the same. I do not want to associate the State Legislatures in the process of amending the Consitution.” He also said that, “If you want to abolish landlordism, you cannot afford to look for the consent of the landlords, and similarly, if you want to abolish capitalism, you cannot afford to look for the consent of the capitalists”. (C.A.D., Vol. IX, p. 1646). This amendment, however, was negatived.

(C.A.D., Vol. IX, p. 1665).

1172. A reference was also made in this connection to draft Article 305 as indicating that the word ‘amendment’ would mean repeal or whittling down. Even assuming that that Article had been incorporated in the Constitution, what does the word `amendment’ in that context imply ? First, draft Article 305 starts with the non-obstante clause, “Notwithstanding anything contained in Article 304” (present Article 368), and, secondly, the provisions relating to the reservation of seats for the minorities “shall not be amended during a period of ten years from the commencement of this Constitution and shall cease to have effect on the expiration of that period unless continued in operation by an amendment of the Constitution”. This clause instead of throwing any light on the width of the power of amendment shows that it is completely restricted in that nothing can be done to affect that provision for ten years which limitation with the non-obstante clause excludes Article 304 altogether during that period. If after that period it is to be extended that Article can be amended but this does not mean that it can be repealed, for it is only concerned with either extension of the period or change in the terms or conditions under which the reservation would continue to apply.

1173. It was contended that the word ‘amendment’ in Article 368 must be construed as meaning change for the better, improvement, etc. In Golaknath’s case a similar contention was rejected by some of the learned Judges. Subba Rao, C.J., (speaking for 5 Judges) did not express any view though he said that the argument that Parliament cannot destroy the structure of the Constitution but it can modify the provisions thereof within the framework of the original instrument for its better effectuation, has considerable force, but they were relieved of the necessity to express their opinion as the question raised can be answered on a narrower basis. He observed that : “This question may arise for consideration only if Parliament seeks to destroy the structure of the Constitution embodied in the provisions other than in Part III of the Constitution. We do not, therefore, propose to express our opinion in that regard” (pp. 804-805).

1174. Hidayatullah, J., at p. 862 said:

I do not take the narrow view of the word ‘amendment’ as including only minor changes within the general framework. By an amendment new matter may be added, old matter removed or altered.

Wanchoo, J., (speaking for himself and two other Judges), observed at p. 834:

To say that ‘amendment’ in law only means a change which results in improvement would make amendments impossible, for what is improvement of an existing law is a matter of opinion and what, for example, the legislature may consider an improvement may not be so considered by others. It is, therefore, in our opinion impossible to introduce in the concept of amendment as used in Article 368 any idea of improvement as to details of the Constitution. The word ‘amendment’ used in Article 368 must, therefore, be given its full meaning as used in law and that means that by amendment an existing Constitution or law can be changed, and this change can take the form either of addition to the existing provisions, or alteration of existing provisions and their substitution by others or deletion of certain provisions altogether.

1175. After noting that the word “amend” in the VI Schedule, paragraph 21, where it was preceded by words “by way of addition, variance or repeal” and more or less similar expressions in other Articles of the Constitution, he observed, “it is very difficult to say why this was done. But the fact that no such words appear in Article 368 does not in our mind make any difference, for the meaning of the word ‘amendment’ in a law is clearly as indicated above by us and the presence or absence of explanatory words of the nature indicated above do not in our opinion, make any difference”. Bachawat J., at pp. 915-916, says:

Article 368 indicates that the term ‘amend’ means ‘change’. The proviso is expressed to apply to amendments which seek to make any ‘change’ in certain articles. The main part of Article 368 thus gives the power to amend or to make changes in the Constitution. A change is not necessarily an improvement Normally the change is made with the object of making an improvement, but the experiment may fail to achieve the purpose. Even the plain dictionary meaning of the word ‘amend’ does not support the contention that an amendment must take an improvement, see Oxford English Dictionary, where the word ‘amend’ is defined thus : “4. To make professed improvements (in a measure before Parliament) formally to alter in detail though practically it may be to alter its principle so as to thwart it”. The 1st, 4th, 16th and 17th Amendment Acts made changes in Part III of the Constitution. All the changes are authorised by Article 368″.

Ramaswami, J., has not specifically dealt with the meaning of the word ‘amendment’.

1176. It is obvious from these observations that the attempt to restrict the meaning of the word ‘amendment’ to ‘improvement’ has been rejected by five of the learned Judges in Golaknath’s case.

1177. The learned Attorney-General, however, in the written summary of his arguments, said “The majority of the learned Judges in Golaknath’s case rejected the arguments that the expression amendment of of a Constitution has a narrow meaning. Thus the petitioner seeks to have the majority judgment overruled on this point”. (Page 30, Para 9). This statement does not seem to be accurate, unless he has linked the rejection of the argument regarding the existence of implied limitations as recognising that the word amendment has a wide meaning. That implied limitations and the width of the meaning of word amendment were two different concepts admits of no doubt, because the former flows from the implications of the provisions of the Constitution whether general or specific, while the latter deals with scope and the ambit of the word amendment itself. If the power is wide, even implied limitations can also be abrogated, but it has nothing to do with the existence of the implied limitations. On the other hand, Hidayatullah, J. though he dealt with the narrowness or otherwise of the meaning of the word ‘amendment’ did not deal with the existence or non-existence of implied limitations under our Constitution.

Bachawat, J., at pp. 915 and 916 also did not think it necessary to pronounce on implied limitations and like Wanchoo, J., has separately considered these two concepts (see pages 833-834, 835-836). These instances illustrate what I have said above. Even on this basis there would not be a majority of Judges who have held that there are no implied limitations.

1178. The learned Advocate-General for Maharashtra submits that when a person proposes an amendment and he is asked whether it is intended to be an improvement, the answer will always be ‘Yes’; because he cannot very well say that it was not intended to be an improvement; that the meaning of the word ‘amendment’ in several Dictionaries which relate the word ‘amendment’ with ‘improvement’ is euphemistic. This is the reason why the word ‘amendment’ according to him is used in the earlier sense in common parlance, in public speeches, textbooks or articles by learned writers, which is far from saying that an amendment must be only a change for effecting an improvement.

1179. Bachawat, J., earlier at p. 915 in Golaknath’s case referred to the decision Livermore v. E.C. Waite, (102) Cal. 113-25 L.R.A. 312 in support of the submission that an amendment must be an improvement of the Constitution. The following abservations in Livermore’s case were cited by him:

On the other hand, the significance of the term ‘amendment’ implies such an addition or change within the lines of the original instrument as will effect an improvement, or better carry out the purpose for which it was framed.

With respect to this passage, Bachawat, J., observed:

Now an attack on the eighteenth amendment of the U.S. Constitiution based on this passage was brushed aside by the U.S. Supreme Court in the decision in the National Prohibition case (Rhode Island v. Palmer, [1920] USSC 144; 253 US 350; 64 L. ed. 947, 960, 978). The decision totally negatived the contention that an amendment must be confined in its scope to an alteration or improvement of that which is already contained in the Constitution and cannot change its basic structure, include new grants of power to the Federal Government nor relinquish in the State those which already have been granted to it. (See Cooley on Constitutional Law, Chapter III, Article V, pp. 46 & 47).

1180. I find from the reference to the National Prohibition case and the pages of that report given by Bachawat, J., namely, 64 L. ed. 947, 960 and 978, that no observations to that effect have been made at page 978 by Mr. Justice Van Devanter. In that case the Supreme Court was considering an appeal from a District Court which had rejected the contention that 18th Amendment was not valid on the ground that, “The definition of the word ‘amendment’ include additions as well as corrections of matters already treated and there is nothing in its immediate context (Article V) which suggests that it was used in a restricted sense”. The decree of the Court below was affirmed in the National Prohibition case. (Rhode Island v. Palmer). 64 L. ed. 946 At p. 960 the briefs filed by the Attorney- General of Rhode Island and others did, however, refer to the passage cited by Bachawat, JJ., in Livermore v. Waite. But none of the Judges in the National Prohibition case either referred to the passage in Livermore’s case nor did they deal with the scope of the power of amendment and, therefore, it cannot either be said that the submission was brushed aside, nor can it be said that the National Prohibition case totally negatived that contention. It may be the opinion of Cooley in his Book on “Constitutional Law” that the passage in Livermore’s case cited by Bachawat, J., did not support the proposition therein stated. But all arguments in that case against the amendment could not be taken to be negatived, if they were not necessary for the decision. What arguments were brushed aside, no one can say with any amount of definiteness. If the judgment of the Supreme Court in National Prohibition case is read with the judgment of the District Court whose decree was affirmed, it may be taken to have laid down that the word amendment would include addition of a provision to the Constitution and beyond this nothing more can be inferred from this judgment.

1181. The argument of the learned Advocate-General is that the words “amendment of this Constitution” in sub-para (2) of para 7 and sub-para (2) of para (21) of the respective Schedules refers to the words used in sub-para (1) of sub-para 7 and 21 of the Schedules, and, therefore, the words “amendment of this Constitution” must be read to mean that it is an amendment by way of addition, variation or repeal. It was noticed that in Golaknath’s case while Wanchoo, J., could not fathom the reason why the expression ‘by way of addition, variation or repeal’ was used in Schedule V para 7 and Schedule VI, Para 21, he none the less thought the presence or absence of the explanatory words made no difference to the meaning of the word ‘amendment’. In other words, according to the learned Advocate-General, the word ‘amendment’ in Article 368 is synonymous with the expression ‘amend by way of addition, variation or repeal’ so that the Twenty-Fourth Amendment according to this view, and probably to conform with it, used the clarificatory words and means even after this amendment the same meaning as the word ‘amendment’ had before Article 368 was amended. What an amendment can do has also been stated, by Wanchoo J., namely, that the existing Constitution can be changed and this change can take the form either of addition to the existing provisions or alteration of the existing provisions and their substitution by others or deletion of certain provisions altogether. Though all this can be done, he said, it may be open to doubt whether the power of amendment contained in Article 368 goes to the extent of completely abrogating the present Constitution and substituting it by an entirely new one .

1182. It is also not disputed by the learned Attorney-General, the learned Solicitor- General and the learned Advocate-General for Maharashtra that an amendment of the Constitution dose not extend to abrogation of the Constitution, and on the contention of the learned Advocate-General, abrogation means repeal, both words being synonymous, and that the Constitution cannot be substituted by a new Constitution.

1183. In further explaining his submission the learned Attorney-General said that the amending power in Article 368 as it stood before the Twenty-fourth Amendment and as it stands now has always been, and continues to be, a constituent power, that is to say, the power to deconstitute or re-constitute the Constitution or any part of it. Such power extends to the addition to or variation of any part of the Constitution. But the amending power does not mean that the Constitution at any point of time would be so amended by way of addition, variation or repeal as to leave a vacuum in the governance of the country. According to him that is the whole object and necessity of the amending power in a Constitution so that the Constitution continues, and a constituent power, unless it is expressly limited in the Constitution itself, can by its very nature have no limits, because if any such limit is assumed although not expressed in the Constitution, the whole object and purpose of the amending power will be nullified.

1184. If amendment does not mean abrogation or repeal as submitted in the note of the Advocate-General, dated February 23, 1973 in which he said, “that repeal and abrogation mean the same thing since “repeal” has ‘abrogation’ as one of its meaning and ‘abrogation’ has ‘repeal’ as one of its meanings”, a question arises, where, is the line to be drawn ? 1185. The learned Attorney-General said that Article 368, Clause (e) of the proviso by giving a power to amend the amending power, has conferred a wider power of amendment but that does not imply that the power of amendment had a limited meaning in the unamended article; that the word ‘amendment’ has only one meaning and it is a wide power and in Article 368 there is a recreation of the Constituent Assembly. If this submission is correct, how can it not extend to abrogation of the Constitution or substituting it by another? 1186. To this question the answer of the Attorney-General was that Clause (e) of the proviso was added by way of abundant caution to meet a similar criticism which was directed against Article V of the U.S. Constitution. According to Advocate-General for Maharashtra, Clause (e) of the proviso was inserted to meet the assumption of Chief Justice in the Irish case of The State (Ryan and Ors.) v. Lennon and Ors. (1935) Irish Reports 170 that if amending provision could have been amended, then no limitation can be read. Hon’ble the Chief Justice has dealt with this aspect in full and I do not, therefore, propose to refer to it except to say that the analogy is inapplicable to the interpretation of Article 368.

1187. Apart from the power of amendment not extending to the abrogation of the Constitution, it will appear on the submission of respondents, the Union of India and the State of Kerala, that the office of the President cannot be abolished without the concurrence of at least half the States even though Articles 52 and 53 are not included in the proviso to Article 368. The very fact that Article 54 and Article 55 are included in the proviso, it would, according to the learned Solicitor-General imply that the office of the President cannot be abolished without the concurrence of the States. Wanchoo, J., in Golaknath’s case dealt with a similar contention at p. 844. Though he thought that the supposition was impossible, and I entirely agree with him that it is not likely, yet in such a case, “it would be right to hold that Article 52 could not be altered by Parliament to abolish the office of President…it will require ratification”. Nor do I think having regard to the basic structure of the Constitution is it possible to abolish the office of the President by resort to Article 368 and as assent is necessary, no President true to his oath to protect and defend the Constitution, will efface himself. It would, therefore, appear from this specific instance that an implied limitation is read into Article 368 by reason of the proviso entrenching Article 54. The learned Advocate-General says even Article 53 which vests the executive power of the Union in the President by Sub-clause (2), vests the Supreme Command of the Defence Forces of the Union in the President, would also necessitate an amendment similar to Article 52 by ratification by the states. Yet another instance is, that art implied power to amend is found in Article 368. When the form and manner is complied with, the Constitution stands amended, from which provision as well as the fact that Article 368 is in a separate Part entitled ‘amendment of the Constitution’, the above conclusion was reached. The petitioner’s counsel naturally asks that if The Queen v. Burah (1877-78) J.C. 179 is read as an authority as contended on behalf of Kerala State against the existence of powers which are not conferred by affirmative words and against the existence of limitations, this proposition clearly negatives the respondents’ other submission that the source of the amending power must be impliedly found in Article 368 although such a power is not to be found affirmatively conferred.

1188. Though there are naturally some limitations to be found in every organic instrument, as there are bound to be limitations in any institution or any other set up brought into existence by human agencies, and though my Lord the Chief Justice has gone into this aspect fully, it is in my view not necessary to consider in this case the question of the existence or non-existence of implied or inherent limitations, because if the amending power is wide and plenary, those limitations can be overriden as indeed the non-obstante clause in the amended Clause (1) of Article 368 was intended to subserve that end. What has to be considered is whether the word ‘amendment’ is wide enough to confer a plenitude of power including the power to repeal or abrogate.

1189. The learned Advocate-General has further submitted that there is intrinsic evidence in the Constitution itself that the word ‘amendment’ in Article 368 means ‘amend by way of addition, variation or repeal’, because if that were not so, sub-para (2) of para 7 of Schedule V would not have taken out the law made under sub-para (1) empowering Parliament to “amend by way of addition, variation or repeal” any of the provisions of the Schedule from the operation of Article 368. The same meaning should also be given to para 21 of Schedule VI. The learned Attorney-General has referred to several articles in which the word ‘amendment’ has been used, as also to several others in which that word or its variation has been used in continuation with other words. But these expressions do not show that the word ‘amendment’ is narrow or limited. In every case where an amendment has been made in the Constitution, he says, something has been added, something substituted, something repealed and re-enacted and certain parts omitted. The Constitution (First Amendment) Act is given as an instance of this, nor according to him does anything turn on the fact that Section 291 of the Government of India Act, 1935, was amended just about a few weeks before Article 368 was finalised, and in which the word ‘amendment’ was substituted for the words ‘amend by way of addition, variation or repeal’. According to him what this Court must consider is that since Article 368 arranges to recreate the Constituent Assembly and exercise the same power as the Constituent Assembly, it should be read in a wide sense.

1190. If the power of amendment is limitless and Parliament can do all that the petitioners contend it can do under Article 368, the respondents say it should not be assumed that power will be abused, but on the other hand the presumption is that it will be exercised wisely and reasonably, and the only assurance against any abuse is the restraint exercised by the people on the legislative organs. But the recognition of the truism that power corrupts and absolute power corrupts absolutely has been the wisdom that made practical men of experience in not only drawing up a written Constitution limiting powers of the legislative organs but in securing to all citizens certain basic rights against the State. If the faith in the rulers is so great and the faith in the people to curb excessive exercise of power or abuse of it is so potent, then one needs no elaborate Constitution, because all that is required is to make Parliament omni-potent and omni- sovereign. But this the framers did not do and hence the question will be whether by an amendment under Article 368, can Parliament effect a metamorphosis of power by making itself the supreme sovereign. I do not suppose that the framers were unaware of the examples which must be fresh in their minds that once power is wrested which does not legitimately belong to a limited legislature, the efforts to dislodge it must only be by a painful process of struggle, bloodshed and attrition-what in common parlance would be a revolution. No one suggests this will be done, but no one should be complacent, that this will not be possible, for if there is power it can achieve even a destructive end. It is against abuse of power that a Constitutional structure of power relationship with checks and balances is devised and safeguards provided for whether expressly or by necessary implication. And the question is whether there are any such in our Constitution, and if so, whether they can be damaged or destroyed by an amending power? 1191. The petitioner’s counsel, learned Advocate-General and the learned Attorney- General have furnished us with the extracts from various Dictionaries, and the learned Attorney-General has further referred us to a large number of Constitutions in which the word ‘amendment’ or words used for amending the Constitution have been employed, to show that there is no difference or distinction between these words and the word ‘amendment’. In all these Constitutions, subject to which I said of the inappropriateness of comparing other world Constitutions made for different people with their differing social, political and economic outlook, the words used are either ‘amendment’ or a combination of that word with others or a totally different word. In some of the Constitutions given in the compilations made available to us where the word ‘amendment’ alone is used, the exercise of the power of amendment was inextricably linked with the ratification by the people in whom the sovereignty rests, either by referendum or by convention or by the Legislatures. The Constitutions of other countries which have been referred to specifically by the learned Attorney-General are of Liberia, Trinidad & Tobago, Somalia, Jordan, Kuwait, Lebanon, Vietnam Democratic Republic, Belgium, Costa Rica, Cuba and Nicaragua. I have examined the relevant provisions of these Constitutions regarding the amendatory process. These Constitutions have used different words than the words used in our Constitution. When the word ‘amendment’ or ‘amend’ is used, it has been invariably used with the words ‘alter’, or ‘repeal’, or ‘revise’, or ‘variation, addition or repeal’, or ‘modification’, or ‘suspension’, or ‘addition’, or ‘deleting’, or ‘partially amend’, or ‘general amendment’, or ‘specific, partial or complete’, or ‘wholly or partially amend’, or by a combinetion of one or more of these expressions. In one of the Constitutions, namely, Trinidad & Tabago, the word ‘alteration.’ was defined to include ‘amendment, modification or modification or that provision, the suspension or repeal of that provision and the making of a different provision in lieu of the provision’.

1192. In some of the other Constitutions not referred to by the learned Attorney-General where the amending process is not referable to the voters by referendum or to be ratified in a convention with the word ‘amend’, the words ‘alter’, ‘add’, ‘supplement’, ‘repeal’ or similar words have been used to indicate the plenitude of power of amendment. Section 29(4) of the Ceylon Constitutional Order, 1946, which Was the subject-matter of decisions in Liyanage v. The Queen (1967) 1 A.C. 259 and The Bribery Commissioner v.

Rana Singh [1964] UKPC 1; (1964) 2 W.L.R. 1301 cases, and had been debated in this Court by counsel on either side, provides that in the exercise of its powers under the section “Parliament may amend or repeal any of the provisions of this Order, or of any other Order”. But this sub-section entrenches by Sub-section (2) certain matters from being amended because as the Privy Council observed that “They represented a solemn “balance of rights between the citizens of Ceylon”. In the Constitution of Finland the words used are adoption,, amendment, or abrogation of a fundamental law. The Irish Constitution, 1937, provided by Article 46(1) that any provision of the Constitution may be amended, whether by way of variation, addition, or repeal in the manner provided by the Article, and the Constitution of Malaya has defined the word in Clause (6) of Article 159 that ‘amendment’ includes addition and repeal. Even the Constitution of the Islamic Republic of Pakistan has used the words amended or repealed. The Constitution of the Union of South Africa has used the words repeal or alter and the Constitution of the United States of Brazil has an entrenched provision in Clause (6) of Article 217 that the Bills tending to abolish the Federation and the Republic shall not be admitted to consideration.

1193. These references not only do not show that the word ‘amendment’ has been used by itself to denote the plenitude of power but on the other hand show that these prescribe a procedure in which the people have been associated or a Constituent Assembly has to be called or fresh elections are required to be held to consider the amendments. In some of these Constitutions there was also difference made between total and partial amendments and where the word ‘alteration’ has been used, it has been defined as to what is included therein. No assistance can, therefore, be derived from the Constitutions either referred to by the Attorney-General or by the ones to which I have referred, and if at all, they only show that the word ‘amendment’ has not, as contended, unambiguous, precise or wide connotation.

1194. It is said that the words “amend by way of addition, variation or repeal” by reference to Clause (2) of Para 7 and Para 21 of the Fifth and Sixth Schedule respectively, mean the same as amendment, and consequently Article 368 empowers the repeal of any provision of the Constitution. If the word “repeal” means abrogation, then an amendment under Article 368 can even abrogate any provision of the Constitution, short of abrogating the entire Constitution and substituting a new one. In my view, the phrase “by way of” call it a padding, call it explanatory, is idiomatic and difficult to render into exact pharseology. An idiom is an accepted phrase, construction or expression contrary to the usual pattern of the language or having a meaning different from the literal. As the Words & Phrases-Permanent Edition, Vol. 5, p. 1111, would show that “by way of” may be taken to mean “as for the purpose of”, “in character of”, “as being” and was so intended to be construed in an Act providing that certain companies should pay an annual tax for the use of the State, “by way of” a licence for their corporate franchise. The illustration given should show that in fact the payment of a licence fee is not a tax, but it is so considered to be by way of tax. In my view, therefore, the substitution of the word “amendment” by the expression “amend by way of addition, variation or repeal” makes no difference as it bears the same meaning as the word “amendment”.

1195. In its ordinary meaning the word “amend” as given in Shorter Oxford Dictionary is to make alterations. In some of the Dictionaries it is given as meaning “to alter, modify, rephrase, or add to or subtract from”. Judicial and Statutory Definitions of Words and Phrases, Second Series, Vol. I-the word “amend” has been treated as synonymous with correct, reform and rectify. It is also stated that “amendment” of a statute implies its survival and not destruction. The word “amend” in legal phraseology, does not generally mean the same thing as “repeal”, because there is a distinction between a “repeal” but it does not follow that “amendments of statute may not often be accomplished by repeals of some of its parts” and though “amendment may not directly amount to repeal, it may have such a consequential effect”. Crawford in his book on “The Construction of Statutes”

1940, pp. 170-171 which is quite often referred to and used in this Court, states that “a law is amended when it is in whole or in part permitted to remain and something is added to, or taken from it, or it is in some way changed or altered in order to make it more complete, or perfect or effective. It should be noticed, however, that an amendment is not the same as a repeal, although it may operate as a repeal to a certain degree. A repeal is the abrogation or destruction of a law by a legislative act. Hence we may see that it is the effect of the Legislative act which determines its character”. The first part of this definition may be compared with the meaning indicated by Wanchoo, J. in Golaknath’s case at p. 833 to which a reference has already been made.

1196. Both the learned Advocate for the petitioner and the learned Attorney-General have referred to the decisions of the State Courts of the United States for the meaning of the word ‘amend’ in support of their respective contentions, but these decisions which are rendered in the context of the Constitutions of the respective States in America where ratification by the people is a condition for amending the Constitution do not carry the matter any further. Even in these cases the word ‘Amendment’ has been used in the contradistinction with the word ‘revision’. Words and Phrases, Permanent Edition, Vol. 37 says, “The term ‘repeal’ is synonymous with abolish, rescind and annul. An amendment has been distinguished from alteration or change. It is said that an amendment keeps alive while a ‘repeal’ destroys.” See State ex rel. Strutx v. Baker 299 N.W. 574, 578, N.D. 153.

It is, therefore, apparent from the meaning of the word ‘amendment’ that it does not include ‘repeal’ or ‘abrogation’ nor is it the same as revision. I would now refer to certain provisions of the Constitution where the words “amend” or “repeal” have been used to indicate that the ambit of the power of amendment does not extend to repeal. A repeal of a provision of a law is different from the repeal of the law itself. The Constitution itself has made a distinction between the amendment of the law and repeal of the law. This becomes clear if we refer to Article 372(2) in which power has been given to the President by order to make such adaptations and modifications of any law whether by way of repeal or amendment, as may be necessary or expedient, to bring it in conformity with the provisions of the Constitution. See also Article 372(2)(b). Clause (2) of Article 252 provides that any Act passed by Parliament in respect of two or more States may be amended, or repealed by an act of Parliament. In this clause the word ‘repeal’ is used in contradistinction to ‘amendment’ as clearly implying that amendment does not include repeal of the Act itself. Even in Article 372(1), this distinction is brought out where a law in force immediately before the commencement of the Constitution was to continue in force until “altered or repealed or amended” by a competent authority. Similarly in Article 35(b) also any law in force immediately before the commencement of the Constitution in the territory with respect to any of the matters specified therein and to any adaptations and modifications that may be made therein under Article 372 continue in force until “altered or repealed or amended” by Parliament. See proviso to Clause (2) of Article 254 and Clause (5) of Article 350. It may also be noticed that before the repeal of Article 243, Clause (2) thereof provided that the President may make regulations for the peace and good government of territories in Part D of the First Schedule and any regulation so made may repeal or, amend any law made by Parliament or any existing law. It will, therefore, be observed that even where power has been given to a competent legislature or any other competent authority over a law in force to continue by virtue of the above referred; provisions, the framers have used the word ‘repeal’ of a law in contradistinction to the word ‘amend’ of a law. It may be contended with some force that where the framers intended to give full and plenary powers to competent legislatures to deal with laws in force, they were meticulous enough to use two distinct words. If the word ‘amend’ or ‘amendment’ in its generic connotation meant ‘repeal’ then this word would not have been used in contradistinction with the word amendment or amend in some articles, and only the word ‘amend’ or ‘amendment’ in others. In so far as the laws in force are concerned, it would appear that the intention was not to add to them, though the word ‘alter’ could imply also a variation. Nonetheless it is apparent that the word ‘amendment’ as used in Article 368 does not connote a plenitude of power. This is also clear from Sub-section (2) of Section 6 of the Indian Independence Act, 1947 which, as already seen, even in the context of the power to be possessed by the Constituent Assembly, uses the word ‘repeal’ or ‘amend’ to indicate the plentitude of the power of abrogation and repeal. Sections 32, 37, 74, 82 and 107(2) of the Government of India Act also use the word ‘amendment’ in the sense of change and not repeal of the law. On the other hand, Sections 106(2) of Government of India Act and Article 372(1) use the word ‘repeal’. In the former, power is given to repeal a law, and in the latter it was provided that notwithstanding the repeal of enactments referred to in Article 395 to which included the Indian Independenet Act, etc., all the laws in force and also be replaced in the sense that they could be abrogated. Further in Clauses (3) and (4) of Article 109, the Council of State is empowered to make amendments in money bill which the House of the People may or may not accept and if it does not, it will be passed without any such amendment.

The Council of States, cannot reject the bill altogether but can only make a change therein.

1197. The argument that if wide construction is given to the word ‘amendment’ all fundamental rights can be taken away by the requisite majority, whereas much less significant matters require the concurrence of not less than one-half of the States under the proviso is based on the misconception that unlike in the United States where there is a dual citizenship-one as a citizen of United States and the other as a citizen of the particular State in the Union, we have only one citizenship and that is as a citizen of India and it is Parliament and Parliament alone which can legislate in respect of that right. No State has the legislative power to affect that right, and, therefore, have not been given a power of ratification where the fundamental rights are sought to be amended under Article 368. This aspect is not, however, determinative of the extent of the power of amendment under Article 368. The word ‘amendment’ read with the other provisions indicates that it is used in the sense of empowering a change in contradistinction to destruction which a repeal or abrogation would imply. Article 368 empowers only a change in the Constitution as is evident from the proviso which requires that where the provisions specified in Clauses (a) to (e) have to be amended they have to be ratified by the resolution of not less than one-half of the Legislatures of the States. This proviso furnishes a key to the meaning of the word ‘amendment’, that they can be changed without destroying them just in the same way as the entire Constitution cannot be abrogated and a new Constitution substituted therefor. In this view, I agree with My Lord the Chief Justice, for the reasons given by him, that the amplitude of the power of amendment in Article 368 cannot be enlarged by amending the amending power under proviso (e) to Article 368.

1198. What follows from this conclusion is the next question to be considered. It is submitted that an amendment should not alter the basic structure of the Constitution or be repugnant to the objectives set out in the Preamble and cannot be exercised to make the Constitution unidentifiable by altering its basic concept governing the democratic way of life accepted by the people of this country. If the entire Constitution cannot be abrogated, can all the provisions of the Constitution leaving the Preamble, or one article, or a few articles of the original Constitution be repealed and in their place other provisions replaced, whereby the entire structure of the Constitution, the power relationship inter se three Departments, the federal character of the State and the rights of the citizens vis-a- vis the State, are abrogated and new institutions, power relationships and the fundamental features substituted therefor? In my view, such an attempt would equally amount to abrogation of the Constitution, because any such exercise of the power will merely leave the husk and will amount to the substitution of an entirely new Constitution, which it is not denied, cannot be done under Article 368.

1199. The Preamble to the Constitution which our founding fathers have, after the Constitution was framed, finally settled to conform to the ideals and aspirations of the people embodied in that instrument, have in ringing tone declared the purposes and objectives which the Constitution was intended to subserve. How far the Preamble can be resorted to for interpreting the Constitution has been the subject of debate. It was contended that it is not a part of the Constitution, and as we have been shown, that this concept had found approval of this Court in In Re: Berubari Union & Exchange of Enclaves, but the Court did not appear to have noticed that it was adopted by the Constituent Assembly as part of the Constitution. The observations of Gajendragadkar, C.J., must be understood in the context of his assumption that the Preamble is not a part of the Constitution. After referring to Story that the Preamble is “a key to open the mind of the makers” and a passage from Willoughby that it has never been regarded as source of any substantive power, etc., the learned Chief Justice concluded thus :

What is true about the powers is equally true about the prohibitions and limitations. Besides, it is not easy to accept the assumption that the first part of the preamble postulates a very serious limitation on one of the very important attributes of sovereignty itself. As we will point out later, it is universally recognised that one of the attributes of sovereignty is the power to cede parts of national territory, if necessary. At the highest it may perhaps be arguable that if the terms used in any of the articles in the Constitution are ambiguous or are capable of two meanings, in interpreting them some assistance may be sought in the objectives enshrined in the preamble. Therefore, Mr. Chatterjee is not right in contending that the preamble imports any limitation on the exercise of what is generally regarded as a necessary and essential attribute of sovereignty.

It may be pointed out that the passage from Story and Willoughby cited therein have not been fully extracted. For a proper appreciation of the views of these authors it is necessary to examine the relevant passages in, full. Story says, “It is an admitted maxim…that the preamble of a statute is a key to open the mind of the makers as to the mischiefs, which are to be remedied, and the objects, which are to be accomplished by the provisions of the statute…the will and intention of the legislature is to be regarded and followed. It is properly resorted to, where doubts or ambiguities arise upon the words of the enacting part for if they are clear and unambiguous, there seems little room for interpretation, except in cases leading to an obvious absurdity, or to a direct overthrow of the intention expressed in the preamble. There does not seem any reason why, in a fundamental law or Constitution of government, an equal attention should not be given to the intention of the framers, as stated in the preamble…. The preamble can never be resorted to, to enlarge the powers confided to the general government, or any of its departments. It cannot confer any power per se; it can never amount, by implication, to an enlargement of any power expressly given. It can never be the legitimate source of any implied power, when otherwise withdrawn from the Constitution. Its true office is to expound the nature, and extent, and application of the powers actually conferred by the Constitution, and not substantively to create them…. We have the strongest assurances, that this preamble was not adopted as a mere formulary but as a solemn promulgation of a fundamental fact, vital to the character and operations of the government”. (Story, Constitution of the United States, Vol. I, pp. 443-446).

1200. It is clear from the above views of Story that: (a) the preamble is a key to open the mind of the makers as to the mischiefs, which are to be remedied; (b) that it is properly resorted to, where doubts or ambiguities arise upon the words of the enacting part; (c) even where the words are clear and unambiguous, it can be used to prevent an obvious absurdity or to a direct overthrow of the intention expressed in the preamble, and it would be much more so, if they were ambiguous; (d) there is no reason why, in a fundamental law or Constitution of government, an equal attention should not be given to the intention of the framers, as stated in the preamble; (e) the preamble can never be resorted to, to enlarge the powers expressly given, nor to substantively create any power or to imply a power which is otherwise withdrawn from the Constitution; (f) its true function is to expound the nature, extent, and application of the powers actually conferred by the Constitution.

1201. The passage extracted from Willoughby no doubt shows that the Preamble may not be resorted to as a source of Federal Authority but in dealing with its value and use the learned author has stated thus:

Special significance has at various times been attached to several of the expressions employed in the Preamble to the Constitution. These expressions are:

1. The use of the phrase “We, the People of the United States”, as indicating the legislative source of the Constitution.

2. The denomination of the instrument as a “Constitution”.

2. The description of the federation entered into as “a more perfect Union.

3. The enumeration of “the common defence” and “general welfare” among the objects which the new Government is established to promote” (Willoughby, Vol. I, p. 62).

4. These American authors, therefore, recognise the use of the Preamble to ascertain the essential concepts underlying the Constitution.

1202. The English cases show that the preamble can be resorted to as a means to discover the legislative intent of which one may be cited. In the Attorney-General v. Prince Earnest Augustus of Hanover, (1957) A.C. 436 the House of Lords considered the question whether and to what extent Preamble of a statute can be relied upon to construe the enacting part of the statute. Viscount Simond (with whom Lord Tucker agreed), observed at p. 461 : “For Words, and particularly general words, cannot be read in isolation: their colour and content are derived from their context. So it is that I conceive to be my right and duty to examine every word of a statute in its context, and I use ‘context’ in its widest sense, which I have already indicated as including not only other enacting provisions of the same statute, but its preamble, the existing state or the law, other statutes in Pari muteria, and mischief which I can, by those and other legitimate means, discern the statute was intended to remedy”. Referring to the observations in Powell v. Kempton Park Racecourse Co. Ltd., (1899) A.C. 143 that ‘the preamble cannot be made use of to control the enactments themselves where they are expressed in clear and unambiguous terms’, Viscount Simond said at p. 463: “it is often difficult to say that any terms are clear and unambiguous until they have been studied in their context. That is not to say that the warning is to be disregarded against creating or imagining an ambiguity in order to bring in the aid of the preamble. It only means that the elementary rule must be observed that no one should profess to understand any part of a statute or of any other document before he had read the whole of it Until he has done so he is not entitled to say that it or any part of it is clear and unambiguous…. I would suggest that it is better stated by saying that the context of the preamble is not to influence the meaning otherwise ascribable to the enacting part unless there is a compelling reason for it And I do not propose to define that expression except negatively by saying…that it is not to be found merely in the fact that the enacting words go further than the preamble has indicated. Still less can the preamble affect the meaning of the enacting words when its own meaning is in doubt 1203. On this aspect Lord Normand said at pp. 467468: “when there is a preamble it is generally in its recitals that the mischief to be remedied and the scope of the Act are described. It is therefore clearly permissible to have recourse to it as an aid to construing the enacting provision. The preamble is not, however, of the same weight as an aid to construction of a section of the Act as are other relevant enacting words to be found elsewhere in the Act or even in related Acts…. It is only when it conveys a clear and definite meaning in comparison with relatively obscure or indefinite enacting words that the preamble may legitimately prevail…it is the court’s business in any case of some difficulty, after informing itself of…the legal and factual context including the preamble, to consider in the light of this knowledge whether the enacting words admit of both the rival constructions put forward…. If they admit of only one construction that construction will receive effect even if it is inconsistent with the preamble, but if the enacting words are capable of either of the constructions offered by the parties, the construction which fits the preamble may be preferred.” Lord Somervell said at p. 474, that, “The word ‘unambiguous’ must mean unambiguous in their context”. Lord Thring, one of the great draftsmen of England in his book on “Practical Legislation”, Chapter IV, pp. 92-93, made this pertinent observation as to preambles. He said, “a preamble may also be used to limit the scope of certain expressions in the Act, and sometimes a preamble is inserted for political reasons when the object of an Act is popular, and admits of being stated in a telling sentence or sentences.” In Sajjan Singh’s case at p. 968, Mudholkar, J., while taking note of the contention that it has been said that the preamble is not a part of the Constitution observed: “But, I think, that if upon a comparison of the preamble with the broad features of the Constitution it would appear that the preamble is an epitome of those features or, to put it differently, if these features are an amplification or concretisation of the concepts set out in the preamble it may have to be considered whether the preamble is not a part of the Constitution. While considering this question it would be of relevance to bear in mind that the preamble is not of the common run such as is to be found in an Act of a legislature. It has the stamp of deep deliberation and is marked by precision. Would this not suggest that the framers of the Constitution attached special significance to it?” With great respect, I agree with the view expressed by him.

1204. These observations of the House of Lords, of the learned writers and of the Judges referred to above clearly point to the fact that the preamble will furnish a guide to the construction of the statute where the words are ambiguous, or even where the words are unambiguous to aid a construction which will not lead to an absurdity. Where the preamble conveys a clear and definite meaning, it would prevail over the enacting words which are relatively obscure or indefinite or if the words are capable of more than one construction, the construction which fits the preamble may be preferred.

1205. In In Re: Berubari Union & Exchange of Enclaves case the Court failed to refer to and consider the view of Story that the preamble can be resorted to, to expound the nature, the extent and the application of the powers or that the preamble can be resorted to, to prevent obvious absurdity or to a direct overthrow of the intention expressed therein. It may also be observed that the Court in that case did categorically say that the first part of the preamble is not a serious limitation. If the Court had taken a definite view that the preamble was not a source of limitation, the observation that, “it is not easy to accept the assumption that the first part of the preamble postulates a very serious limitation on one of the very important attributes of sovereignty” (emphasis supplied) was not necessary, because it implies that certain parts of the Preamble can be established to be a source of serious limitation if such exists. In any case though the advisory opinion is entitled to the greatest respect, it is not binding when any concrete issue arise for determination, particularly when the width of the power of amendment had not fallen for consideration in that case, nor was it in fact considered at all.

1206. I will now consider the question which has been streneously contended, namely, that there are no essential features, that every feature in the Constitution is essential, and if this were not so, the amending power under the Constitution will apply only to non- essential features which it would be difficult to envisage was the only purpose of the framers in inscribing Article 368 and that, therefore, there is no warrant for such a concept to be read into the Constitution. The argument at first flush is attractive, but if we were to ask ourselves the question whether the Constitution has any structure or is structureless or is a “jelly fish” to use an epithet of the learned Advocate for the petitioner, the answer would resolve our doubt. If the Constitution is considered as a mechanism, or call it an organism or a piece of Constitutional engineering, whichever it is, it must have a structure, or a composition or a base or foundation. What it is can only be ascertained, if we examine the provisions which the Hon’ble Chief Justice has done in great detail after which he has instanced the features which constitute the basic structure.

I do not intend to cover the same field once again. There is nothing vague or unascertainable in the preamble and if what is stated therein is subject to this criticism it would be equally true of what is stated in Article 39(b) and (c) as these are also objectives fundamental in the governance of the country which the State is enjoined to achieve for the amelieration and happiness of its people. The elements of the basic structure are indicated in the preamble and translated in the various provisions of the Constitution. The edifice of our Constitution is built upon and stands on several props, remove any of them, the Constitution collapses. These are: (1) Sovereign Democratic Republic; (2) Justice, social, economic and political; (3) Liberty of thought, expression, belief, faith and worship; (4) Equality of status and of opportunity. Each one of these is important and collectively they assure a way of life to the people of India which the Constitution guarantees. To withdraw any of the above elements the structure will not survive and it will not be the same Constitution, or this Constitution nor can it maintain its identity, if something quite different is substituted in its place, which the sovereign will of the people alone can do. There can be a Democratic Republic in the sense that people may be given the right to vote for one party or only one candidate either affirmatively or negatively, and are not given the choice to choose another opposed to it or him. Such a republic is not what has been assured to our people and is unthinkable by any one foresworn to uphold, defend, protect, or preserve or work the Constitution. A democratic republic that is envisaged is the one based on a representative system in which people holding opposing view to one another can be candidates and invite the electorate to vote for them. If this is the system which is the foundation of a democratic republic, it is unthinkable that it can exist without elements (2) to (4) above either collectively or separately. What is democracy without social, economic and political justice, or what value will it have, where its citizens have no liberty of thought, belief, faith or worship or where there is no equality of status and of opportunity? What then are the essential features or the basic elements comprising the structure of our Constitution need not be considered in detail as these will fall for consideration in any concrete case where they are said to have been abrogated and made non-existent. The fact that a complete list of these essential elements constituting the basic structure are not enumerated, is no ground for denying that these exist. Are all the elements which make a law void and unConstitutional ever required to be concatenated for the recognition of the validity or invalidity of laws judged on the anvil of the Constitution? A sovereign democratic republic, Parliamentary democracy, the three organs of the State, certainly in my view constitute the basic structure. But do the fundamental rights in Part III and Directive Principles in Part IV constitute the essential element of the basic structure of our Constitution in that the Constitution will be the Constitution without them ? In other words, if Parts III and IV or either of them are totally abrogated, can it be said that the structure of the Constitution as an organic instrument establishing sovereign democratic republic as envisaged in the preamble remains the same? In the sense as I understand the sovereign democratic republic, it cannot: without either fundamental rights or directive principles, what can such a government be if it does not ensure political, economic, or social justice? 1207. The History of the agitation for political freedom, fundamental rights and self- government is well known. As I said earlier, ever since the second half of the 19th century the struggle has been going on and when ultimately India in spite of the partition, achieved its cherished dream of independence and territorial unity from north to south, and east to west, which in millinneum it could not achieve, the fundamental objectives formed the corner stone of the nation. As Granville Austin so aptly puts it in his book “The Indian Constitution” at page 50, “The Indian Constitution is first and foremost a social document. The majority of its provisions are either directly aimed at furthering the goals of the social revolution or attempt to foster this revolution by establishing the conditions necessary for its achievement. Yet despite the permeation of the entire Constitution by the aim of national renascence, the core of the commitment to the social revolution lies in Parts III and IV, in the Fundamental Rights and in the Directive Principle of State Polity. These are the conscience of the Constitution. The Fundamental Rights and Directive Principles had their roots deep in the struggle for independance And they were included in the Constitution in the hope and expectation that one day the tree of true liberty would bloom in India The Rights and Principles thus connect India’s future, present, and past, adding greatly to the significance of their inclusion in the Constitution, and giving strength to the pursuit of the social revolution in India.

1208. The demand for fundamental rights had its inspiration in the Magna Charta and the English Bill of Rights, the French Revolution, the American Bill of Rights incorporated in the Constitution of the United States in 1791. For the first rime, the Indian National Congress which was formed in 1885, made a demand for them in the Constitution of India Bill. 1895 and these demands were reiterated from time to time. Annie Besant’s Commonwealth of India Bill contained a demand for 7 fundamental rights. The Simon Commission rejected these demands for inclusion of fundamental rights, but Moti Lal Nehru Committee drafted a Swaraj Constitution for India incorporating therein the declaration of rights. In respect of these rights, the report said:

It is obvious that our first care should be to have our fundamental rights guaranteed in a manner which will not permit their withdrawal under any circumstances….

The Karachi Resolution of March 1931 on Fundamental Rights on economic and social change added a new dimension to Constitutional rights because till then State’s negative obligations were alone being emphasised. By that Resolution “the demand now equally emphasised the State’s positive obligations to provide its people with the economic and social conditions in which their negative rights would have actual meaning”. (Granville Austin, p. 56). The Sapru Committee also incorporated these fundamental rights and for the first time divided them into justiciable and non-justiciable rights. During the Constituent Assembly Debates, Pt. Jawahar Lal Nehru in dealing with the confusion existing in the minds of the members in respect of the fundamental rights, said: “There is this confusion, this overlapping, and hence I think a great deal of difficulty has been brought into the picture. A fundamental rights should be looked upon not from the point of view of any particular difficulty of the moment, but as something that you want to make permanent in the Constitution. The other matter should be looked upon – however important it might be – not from this permanent and fundamental point of view, but from the more temporary point of view” (emphasis supplied). Dr. Radhakrishnan described the declaration of basic freedoms as a pledge to our own people and a pact with the civilised world”. (Constituent Assembly Debates, Vol. II, p. 273). Dr. Ambedkar speaking on the Objectives Resolution, said that “when one reads that part of the Resolution, it reminds one of the declaration of the Rights of Man which was pronounced by the French Constituent Assembly. I think I am right in suggesting that, after the lapse of practically 450 years, the Declaration of the Rights of Man and the principles which are embodied in it has become part and parcel of our mental makeup, I say they have become not only the part and parcel of the mental makeup of modern man in every civilised part of the world, but also in our own country which is so orthodox, so archaic in its thought and its social structure, hardly anyone can be found to deny its validity. To repeat it now as the Resolution does, is to say the least, pure pedantry. These principles have become the silent immaculate premise of our outlook. It is therefore unnecessary to proclaim as forming a part of our creed. The Resolution suffers from certain other lacuna. I find that this part of the Resolution, although it enunciates certain rights, does not speak of remedies. All of us are aware of the fact that rights are nothing unless remedies are provided whereby people can seek to obtain redress when rights are invaded.” The reference to the remedy that was absent in the Objectives Resolution, was made good by the inclusion of Article 32, with respect to which he said: “an article without which this Constitution would be a nullity…. I could not refer to any other article except this one. It is the very soul of the Constitution and the very heart of it and I am glad that the House has realised its importance…. It is remedy that makes a right real. If there is no remedy there is no right at all…” (emphasis supplied) – Constituent Assembly Debates, Vol. VII, p. 953. Although he said while dealing with appropriateness of the English high prerogative writs as affording an effective remedy that these could be amended he did not say that either the judicial review could be abrogated or taken away by an amendment or the Court itself can be abolished. Nor was any question raised by any one in this regard.

Dr. Ambedkar’s observations cannot be read to suggest that by an amendment of the Constitution, Article 32 could be abrogated, for if it were so, his observations could be in clear conflict with the express language of Clause 4 of Article 32. The guarantee in Clause 4 of Article 32 could be conceived of only against amending power, for no ordinary law can suspend a right given by the Constitution unless permitted by the Constitution itself. When Clause 4 of Article 32 does not even permit suspension of the right under Article 32 except as otherwise provided in the Constitution, that is, by Article 359, it is highly unthinkable that by an amendment this right could be abrogated. This pivotal feature of the Fundamental Rights demonstrates that this basic structure cannot be damaged or destroyed. When a remedy cannot be abrogated, it should follow that the fundamental rights cannot be abrogated for the reason that the existence of a remedy would be meaningless without the rights. There is nothing else in the debates which would suggest that any of the members ever entertained any notion of abrogation of any of the fundamental rights. It was in the light of the makeup of the members and the dedicated way in which they spoke of these rights that these rights were cherished by the people. It could not be imagined that any one would have suggested anything to the contrary. In respect of the Directive Principles, though every one recognised these as of great importance, Shri B.N. Rau made several attempts to persuade the Drafting Committee to make the fundamental rights subordinate to the Directive Principles but he did not succeed. Sir Alladi Krishnaswami Ayyar, an eminent lawyer, had in his note of March 14, 1947, made a distinction between the Directive Principles and fundamental rights and said that it is impossible to equate those though it could not be denied that they were important. There can be no doubt that the object of the fundamental rights is to ensure the ideal of political democracy and prevent authoritarian rule, while the object of the Directive Principles of State policy is to establish a welfare State where there is economic and social freedom without which political democracy has no meaning. What is implicit in the Constitution is that there is a duty on the Courts to interpret the Constitution and the laws to further the Directive Principles which under Article 37, are fundamental in the governance of the country. As My Lord, the Chief Justice has put it, to say that the Directive Principles give a directive to take away fundamental rights, seems a contradiction in terms. There is no rationale in the argument that the Directive Principles can only be given effect to, if fundamental rights are abrogated. If that were the dissiderata then every Government that comes into power and which has to give effect to the Directive Principles of State policy in securing the welfare of its citizens, can say that since it cannot give effect to it so long as fundamental rights subsist, they must be abrogated. I do not think there is any such inherent postulate in the Constitution. Some of these rights, though limited, were subsisting from even the British days under the laws then in force, yet there were others which were repressive like the Bengal Regulation III of 1818, Madras Regulation II of 1819, Bombay Regulation XXV of 1827, the Indian Criminal Law Amendment Act XIV of 1908, etc., which were used to suppress the freedom of the people and detain persons on political grounds when they were found inconvenient to the rulers. The demand for securing fundamental rights since then became an Article of faith, which, as Dr. Ambedkar said, became part and parcel of the mental makeup and the silent immaculate premise of their outlook. The outlook of the framers of the Constitution could not have provided for such a contingency where they can be abrogated, nor in any view, is it a necessary concommitant of the Jeffersonian theory that no one can bind the succeeding generations who by the will of the majority of the people of the country, can bind themselves. One of the views in America since then held and which still persists, was expressed by Justice Hugo Black, one of the eminent Judges of the Supreme Court in these terms: “I cannot consider the Bill of Rights to be an outworn 18th century ‘straight-jacket’. Its provisions may be thought out-dated abstractions by some. And it is true that they are designed to meet ancient evils. But they are the same against all human evils that have emerged from century to century whenever excessive power is sought by the few at the expense of many”. In 1895, famous Jurist Maitland, even where Parliament was Supreme, said of Magna Charta that, “this document becomes and rightly becomes the sacred text, the nearest approach to an irrepealable ‘fundamental statute’ that England has ever had”. [Pollock & Maitland, (1898) Volume I, p. 173] .

1209. In the frame of mind and with the recognition of the dominant ‘mental make up and the silent immaculate premise of our outlook’ which became the outlook of the people, the framers of our Constitution could not have provided for the freedoms inherent as a part of the right of civilised man to be abrogated or destroyed. The interest of the community and of the society will not be jeopardised and can be adjusted without abrogating, damaging, emasculating or destroying these rights in such a way as to amount to abrogation of the fundamental rights. The Advocate-General of Mysore said that even if fundamental rights are totally abrogated, it is not as if the people will be without any rights. They will be subject to ordinary rights under the law. I must repudiate this contention, because then the clock will be put back to the same position as existed when Britain ruled India and against which rule our leaders fought for establishing freedom, dignity and basic rights. In this view, my conclusion is that Article 13(2) inhibits only a law made by the ordinary legislative agency and not an amendment under Article 368;

that Parliament could under Article 368 amend Article 13 and also the fundamental rights, and though the power of amendment under Article 368 is wide, it is not wide enough to totally abrogate or what would amount to an abrogation or emasculating or destroying in a way as would amount to abrogation of any of the fundamental rights or other essential elements of the basic structure of the Constitution and destroy its identity.

Within these limits, Parliament can amend every article. In this view of the scope of the amending power in Article 368, I hold the Twenty-fourth Amendment valid, for it has the same amending power as it existed before the amendment.

1210. The Twenty-fifth Amendment, as the objects and reasons of the Bill showed, was enacted mainly to get over the decision in the case of R.C. Cooper v. Union of India [1970] INSC 18; [1970] 3 S.C.R. 530, (hereinafter referred to as the ‘Bank Nationalisation’ case). The previous decisions of this Court beginning from the State of West Bengal v. Mrs. Bela Banerjee [1953] INSC 81; (1954) S.C.R. 558 on account of which the Constitution (Fourth Amendment) Act, 1955, was enacted and the subsequent cases in P. Vajravelu Mudaliar v. Special Deputy Collector, Madras and Anr. [1964] INSC 214; (1965) 1 S.C.R. 614 Union of India v. The Metal Corporation of India Ltd., and Anr. [1966] INSC 154; (1967) 1 S.C.R. 255 State of Gujarat v. Shantilal Mangaldas and Ors. [1969] INSC 8; (1969) 3 S.C.R. 341 have been examined by my learned brother Hegde, J., in his judgment just pronounced, in the light of the contentions urged by the respondents, as such I do not find it necessary to refer to them or set out the ratio of these decisions again.

1211. It will be observed from the amendment in Clause (2) of Article 31 enacted by Section 2 of the above amendment that: (1) the word ‘amend’ has been substituted for the word ‘compensation’; and (2) that the words “or that the whole or any part of such amount is to be given otherwise than in cash” have been added. The effect of the amendment is that the law now need not provide for giving ‘compensation’ in the sense of equivalent in value or just equivalent of the value of the property acquired and that the whole or part of the amount may be paid otherwise than in cash. The question then arises that if the word ‘amount’ which has no legal concept, and as the amended clause indicates, means only cash, which would be in the currency of the country, can the lowest amount of the current coin be fixed, and if fixed, will it amount to payment in lieu of the property acquired ? 1212. Ever since the Constitution (Fourth Amendment) Act, this Court has consistently held that where what is given in lieu of expropriating property of a citizen is illusory, arbitrary, or cannot be regarded as compensation, and bears no reasonable relation to the property acquired, the Court can go into it, and, secondly, where principles are fixed for determining the compensation, it can examine the question whether they are relevant to the subject-matter of the acquisition. That position has not in any way been affected by the amendment by merely substituting the word ‘amount’ for ‘compensation’, so that if the amount is illusory or arbitrary, and is such that it shocks the conscience of any reasonable man, and bears no reasonable relation to the value of the property acquired, the Court is not precluded from examining it.

1213. It has been contended that Parliament or the Legislature can either fix an amount without setting out any principles for determining the amount or set out the principles for determining the amount. In the former case, the respondents contend that it will not be open to the Court to examine on what principles the amount has been fixed. If the Legislature merely names an amount in the law for acquisition or requisition, it may be an arbitrary amount, or it may have some relationship or relevance to the value of the property acquired or requisitioned. The former cannot be, because it is provided that the acquisition is for an amount which may be fixed. If it is fixed, and as the term denotes, it must necessarily be fixed on some principle or criteria. Otherwise, no question of fixing an amount would arise: it would be merely naming an amount arbitrarily. The learned Advocate-General of Maharashtra was frank enough to admit that if principles are fixed, the amount to be determined thereunder becomes justiciable, but if the amount is fixed without stating any principles it is not justiciable and for this reason even the members of the Legislature, either of the opposition or of the ruling party, need not be told on what basis or principles the amount has been fixed, lest if this was disclosed the Courts would examine them. But how can this be avoided because if principles are fixed, the relevancy can be gone into as has been the consistent view of this Court, and yet it is said that if an amount is fixed without reference to any principles and arbitrarily, the Court cannot examine it. Such a view has no rational or logical basis. The Legislature, even in cases where it fixes an amount for the acquisition or requisition of a property, must be presumed to have fixed it on some basis, or applied some criteria or principles to determine the amount so fixed, and, therefore, where the law is challenged on the ground of arbitrariness, illusoriness or of having been based on irrelevant principles or any other ground that may be open to challenge by an expropriated owner, the State will have to meet the challenge, and the Court will have to go into these questions. This will be so even in respect to the manner of payment. Once it is satisfied that the challenge on the ground that the amount or the manner of its payment is neither arbitrary or illusory or where the principles upon which it was fixed were found to bear reasonable relationship to the value of the property acquired, the Court cannot go into the question of adequacy of the amount so fixed on the basis of such principles.

1214. Clause (2B) makes Sub-clause (f) of Article 19(1) inapplicable to Clause (2) of Article 31. In the Bank Nationalisation case by fa majority of ten to one, this Court held after an exhaustive review of all the cases beginning from A.K. Gopalan’s case that, “If the acquisition is for a public purpose, substantive reasonableness of the restriction which includes deprivation, may unless otherwise established, be presumed, but enquiry into reasonableness of the procedural provisions will not be excluded. For instance, if a tribunal is authorised by an Act to determine compensation for property compulsorily acquired, without hearing the owner of the property, the Act would be liable to be struck down under Article 19(1)(f) .

1215. Thus, it will appear that where the acquisition is for a public purpose, what is sought to be excluded by Clause (2B) is the reasonableness of the procedural provisions by making Article 19(1)(f) inapplicable. Notwithstanding this amendment, it is apparent that the expropriated owner still continues to have the fundamental rights that his property will not be acquired save by the authority of law and for a public purpose. These propositions have been admitted by the learned Solicitor-General. The question whether an acquisition is for a public purpose is justiciable. Only the adequacy of the amount is not. If so, how can the expropriated owner establish that the acquisition is not for public purpose unless there are some procedural requirements to be complied with under the law? A notice will have to be served; he will have to be given an opportunity to contest the acquisition. Clause (2B) provides that “nothing in Sub-clause (f) of Clause (1) of Article 19 shall affect any such law as is referred to in Clause (2)”. Does this mean that the fundamental right to reasonable restriction of procedural nature under Article 19(1)(f) which was available against any law of acquisition or requisition of property as held in the Bank Nationalisation case, is abrogated or destroyed? The answer to this question would depend upon what is the meaning to be given to the word “affect”. Two constructions are possible: one is that Article 19(1)(f) will not be available at all to an expropriated owner under a law of acquisition made under Article 31(2) or to put it in another way, any law made under Article 31(2) for acquisition or requisitioning of any property abrogates Article 19(1)(f). Secondly, Clause (2B) was intended to provide that the law of acquisition or requisition will not be void on the ground that it abridges or affects the right under Article 19(1)(f). In choosing either of these constructions, regard must be had to that construction which would not result in the amendment being held invalid and void. Applying this approach, the second construction is more in consonance with the amendment because what the amendment provides for is that Article 19(1)(f) shall not affect any such law and this would imply that the bar against the application of Article 19(1)(f) to such a law may vary from a slight or partial encroachment to total prohibition or inapplicability. But since an amendment cannot totally abrogate a fundamental right, it can only be read by the adoption of the doctrine of “severability in application” and, accordingly, Clause (2B) must be held to be restricted only to the abridgement of, as distinct from abrogation, destroying or damaging the right under Article 19(1)(f). As I said earlier, the right to a reasonable procedure in respect of a law of acquisition or requisition for the effective exercise of the rights under Article 31(2), for a reasonable notice, a hearing opportunity to produce material and other evidence may be necessary to establish that a particular acquisition is not for a public purpose and for proving the value of the property and other matters that may be involved in a particular principle adopted in fixing the amount or for showing that what is being paid is illusory, arbitrary, etc.

1216. That apart, there is nothing in Clause (2B), to prohibit principles of natural justice which are part of the law of the land wherein the rule of law reigns supreme, from being applicable when the liberty of the individual or his property is affected by a law. I cannot read a sinister design in that amendment requiring the legislative organs to abrogate the rule of law in this country or deny to its citizens the benefit of the maxim ‘audi alteram partem’ that no man shall be condemned unheard, a concept of natural justice, “deeply rooted in our ancient history”, which as Bylas, J., in Cooper v. The Wadsworth Board of Works [1863] EngR 424; 14 C.B. (N.S.) 180, expressed in the picturesque aphorism, “The laws of God and man both give the party an opportunity to make his defence, if he has any”.

1217. There is one other aspect that has been stressed by the learned Advocate for the petitioner, which is more in the nature of the dire consequences that would ensue if the amendment is upheld, namely, that the citizen’s right to property has now been transferred into the State’s right to confiscation, that acquisition under the Land Acquisition Act and under other similar laws can be for the benefit of even Limitied Companies in the private sector, and that religious freedoms guaranteed by Articles 25 to 30 can be virtually stifled by the taking away of the properties held by religious and charitable purposes. If Parliament under the law can do any of the things which are referred, this Court cannot prevent the consequences of a law so made. I have spelt out what can be done. The law made for acquisition under Clause (2) of Article 31 has still to satisfy that it is being taken for a public purpose. The question whether acquisition for a private person or company is for public purpose may be open to challenge and determined by Courts in an appropriate action. As for the principles applicable in the Bill for the acquisition of Bardoli lands for determining the amount payable for acquisition, as admitted by both the learned Solicitor-General for the Union and the Advocate-General of Maharashtra will be applicable, then at any rate that will not be a case of confiscation, because an owner will at any rate get the amount paid by him together with the loss of interest for the years he had it. The plea that religious freedoms will be stifled also is not sustainable, because it has been already held by this Court in Khajamain Wakf Estates etc. v. The State of Madras [1970] INSC 237; (1971) 2 S.C.R. 790, that Article 26(c) and (d) of the Constitution provide that religious denominations shall have the right to own and acquire property and administer them according to law. But that does not mean that the properties owned by them cannot be acquired by the State. In the view I have taken, and for the reasons set out above, I hold Section 2 of the Twenty-fifth Amendment valid.

1218. Section 3 of the Twenty-fifth Amendment has caused me considerable difficulty because on the one hand the amendment is designed to give effect to Article 39(b) and (c) of the Directive Principles of the State policy in the larger interest of the community, and on the other the basic assumption underlying it is that this cannot be done without taking away or abridging any of the rights conferred by Articles 14, 19 and 31, and that such a law, where it contains a declaration that it is to give effect to the above policy, shall not be called in question in any Court on the ground that it does not give effect to such policy. The predominant articulate as well as inarticulate premise is not to hold invalid an amendment made under Article 368, if it conforms to the form and manner prescribed therein and is within the ambit of the amending power, but if the inexorable conclusion on a close scrutiny leads to a different conclusion it has to be so held. Article 31C is as follows:

Notwithstanding anything contained in Article 13, no law giving effect to the policy of the State towards securing the principles specified in Clause (b) or Clause (c) of Article 39 shall be deemed to be void on the ground that it is inconsistent with, or takes away or abridges any of the rights conferred by Article 14, Article 19 or Article 31; and no law containing a declaration that it is for giving effect to such policy shall be called in question in any court on the ground that it does not give effect to such policy;

Provided that where such law is made by the Legislature of a State, the provisions of this article shall not apply thereto unless such law, having been reserved for the consideration of the President has received his assent.

1219. The learned advocate for the petitioner submits that Article 31C subverts seven essential features of the Constitution : (i) it destroys the supremacy of the Constitution by giving a blank charter to Parliament and all the State Legislatures to defy and ignore the Constitution; (ii) it subordinates the Fundamental Rights to Directive Principles of State Policy and thus destroys one of the foundations of the Constitution; (iii) the “manner and form” of amendment laid down in Article 368 is virtually abrogated, inasmuch as while the Fundamental Rights still remain ostensibly on the Statute Book and Article 368 remains unamended, the Fundamental Rights can be effectively silenced by a law passed by a simple majority in the Legislature; (iv) ten Fundamental Rights which are vital for the survival of democracy, the rule of law, and the integrity and unity of the Republic, are in effect abrogated. Seven of these ten Fundamental Rights are unconnected with property; (v) Judicial Review and enforceability of Fundamental Rights another essential feature of the Constitution is destroyed, in that the Court is prohibited from going into the question whether the impugned law does or does not give effect to the Directive Principles; (vi) the State Legislatures which cannot otherwise amend Article 368 are permitted to supersede a whole series of Fundamental Rights with the result that Fundamental Rights may prevail in some States and not in others, depending upon the complexion of the State Government; and (vii) the protection to the minorities and their religious, cultural, linguistic and educational rights can be seriously affected on the ground that the law was intended to give effect to the Directive Principles.

1220. On behalf of the respondent-State of Kerala-the learned Advocate-General of Maharashtra submitted “that Article 31C was introduced because of the reversal of Gujarat v. Shantilal in the Bank Nationalisation case which reverted, in substance, to the concept of full compensation”, and in order to “exclude judicial review where the law provided for securing the principles provided in Clause (b) or (c) of Article 39”. There is, according to him, no delegation of power under Article 31C on the State Legislatures to alter or amend the Constitution, but it merely removes the restrictions on the legislative power of the State Legislatures and Parliament imposed by the fundamental rights contained in Articles 14, 19 and 31 of the Constitution, which rights have been conferred by Part III and the contravention of which would have rendered any law void. In this submission what it amounts to is only a removal of the restriction which can only be effected by making Article 13 inapplicable. Answering the question whether a law containing a declaration as envisaged in Article 31C the major portion of which has no connection with Clause (b) or Clause (c) of Article 39 would protect the law, it was submitted “that on the principle laid down by the Supreme Court in Akadasi Padhan v.

State of Orissa (1963) Supp. 2 S.C.R. 691 the answer must be in the negative”, and that the proper construction to be put on the declaration referred to in Article 31C is that the impugned law must satisfy the condition precedent that it is designed to secure the principles specified in Clause (b) or Clause (c) of Article 39, and if it does not give effect to the principles, Akdasi’s case would justify the Court in reading the provision relating to declaration as not covering a case, where only a few sections are in furtherance of Article 39(b) & (c) while others are unrelated to it. Another way of arriving at the same conclusion, according to him, is that Article 31C postulates that there must be some nexus, however remote, between the law and the directives of State policy embodied in Article 39(b) and (c)”, and that “if no reasonable person could come to the conclusion that the impugned provisions of an Act protected by Article 31C and the declaration made under it had any connection with Article 39(b) and (c), the Court could hold that the Act showed that the legislature had proceeded on a mistaken view of its power, and that, therefore, the Court was not bound to give effect to the erroneous assumptions of the legislature”. The observations of Das Gupta, J., in The Provincial Transport Service v.

State Industrial Court [1962] INSC 234; [1963] 3 S.C.R. 650, were cited. Answering the contention that since the principles in Article 39(b) & (c) are widely expressed and as such there would always be some connection between them and practically any kind of law, the learned Advocate-General of Maharashtra said that the principles in Article 39(b) & (c) were designedly widely expressed but “that is not an objection to a law implementing those directives” because “public interest is a very wide concept and several rights are made subject to public interest,” and that should not be the objection for upholding the validity of a law. This answer appears to be vague and uncertain, for what is conceded in the earlier part is withdrawn in the latter.

1221. The submission of the learned Solicitor-General is, firstly, that Article 31C protects only law and not mere executive action; secondly, the law referred to therein must be made either by Parliament or State Legislature and does not include within itself ordinance, order, rule, regulation, notification, custom or usage in accordance with the procedure prescribed in Article 368; thirdly, the intention of the founding fathers who had enacted Clauses (4) and (6) of Article 31 to give effect to the Directive Principles of State policy set out in Article 39(b) & (c), as the experience shows, could not be given effect to because of the Constitutional hurdles which necessitated the Constitution (First Amendment) Act by which Article 31A and 31B was added under which the operation of Part III as a whole was excluded. According to him, the significance of this total exclusion of Part III is that it brings out in an unmistakable manner the true relationship between the provisions of Part IV and Part III of the Constitution, namely, that the liberty of the individual, valuable as that is, will not operate as unsurmountable barrier in the path of legislative efforts towards the achievement of the goal of a society envisaged in Part IV, and whenever and to whatever extent such a problem arose the amending process would be able to resolve it. He cited the observations of Das, J., in The State of Bihar v.

Maharajadhiraja Sir Kameshwar Singh and Ors. [1952] S.C.R. 889 at 997, that, “a fresh outlook which places the general interest of the community above the interest of the individual pervades our Constitution,” and of Hidayatullah, J., in his dissenting judgment in Sajjan Singh’s case that, “the rights of society are made paramount and they are placed above those of the individual”. These two observations, if I may say so, are torn out of context, particularly those of Hidayatullah, J., where after stressing the fact that Article 19 by Clauses (2) to (6) allows the curtailment of rights in the public interest, which goes to show that Part III is not static and visualises change and progress, but at the same time it preserves the individual rights, he said after citing the observation above referred, that, “This is as it should be” (p. 962). It is further the case of the Union of India that the only laws which will receive the protection of Article 31C must disclose a nexus between the law and the objectives set out in Article 39(b) & (c) which is a condition precedent for the applicability of Article 31C and as such the question is justiciable and the only purpose of the declaration is to remove from the scope of judicial review question of a political nature. As an example the learned Solicitor-General instanced a law dealing with divorce which could not be protected by a declaration nor can a law not attracting Article 31C be protected by a declaration by merely mixing it with other laws really falling within Article 31C with those under that Article. In such a case, therefore, the Court will always be competent to examine “the true nature and character of the legislation in the particular instance under discussion-its design and the primary matter dealt with-its object and scope (1882) 7 A.C. at pp. 838-840”. It was further averred that if a legislation enacted ostensibly under one of the powers conferred by the Constitution, is in truth and fact, really to accomplish an unauthorised purpose, the Court would be entitled to tear the veil and decide according to the real nature of the statute, as in Attorney-General v.

Queen Insurance Co. [1873] 3 A.C. 1090, and that except Articles 14, 19 and 31 the rest of the relevant provisions of the Constitution will apply and the Court is entitled to go into and consider the challenge of infringement of other rights, and that there are only three safeguards against the evil of discrimination, namely, (a) the innate good sense of the community and of the legislature and the administrator; (b) the proviso to Article 31C requiring the President’s assent; (c) the power of judicial review of the Courts to the extent not excluded, and of these, “The first safeguard is the only real safeguard ultimately and there is no real substitute for the character of the citizens”. What is still open to the Court to examine is whether there is any violation of the provisions of Articles 15, 16, 286 and Part XIII (Articles 301, 303 and 304). The exclusion of Article 14, without excluding Articles 15, 16 etc., is only to enable the Legislatures and the Parliament to evolve new principles of equality in the light of the objectives set out in the Directive Principles without discrimination. The exclusion of Article 19 is on the footing that laws which are to give effect to the directives set out in Part IV must constitute reasonable restrictions on the individual’s liberty and the exclusion of Article 31(2) is to introduce the considerations of social justice in the matter of acquisition.

1222. In so far as the question whether Article 31C amounts to delegation of amending power to State Legislature or to Parliament in its ordinary legislative capaciy is concerned, the learned Solicitor-General submits that a class of legislation or a legislative field may be identified or categorised in several ways, for instance, with reference to the period within which the law is passed [Article 31(4) and Article 31(6)] or the topic of the legislation [Article 21(2) and Article 31A]; or the objective or purpose of the legislation [Article 15(4)] for the advancement of the backward class of citizens; Article 31(5)(ii) for promotion of health and Article 33 for proper discipline in the forces etc. Article 31C likewise carves out a legislative field with reference to the object of the legislation and in this respect it is similar to Articles 15(4), 31(b)(ii) and 33. Each of these articles creates a legislative field to achieve a social objective and for this purpose modifies the operation of some fundamental rights contained in Part III. Even assuming that Article 31C involves an element of delegation of the amending power, he contends there is no violation of Article 368 and the absence of non-obstante clause or the label cannot make any difference, and since Article 368 empowers its own amendment, it follows that Article 31C, if there is a partial substitution of an amending machinery and procedure, will operate as a partial modification of Article 368.

1223. It is contended that Article 31C is similar to the legislative device adopted in Articles 31A and 31B, which was added by the Constitution (First Amendment) Act, 1950, the first of which declared that “Notwithstanding anything in the foregoing provisions of this Part (i.e. Part III), no law providing for the acquisition by the State of any estate or of any rights therein or for the extinguishment or modification of any such rights shall be deemed to be void on the ground that it is inconsistent with, or takes away or abridges any of the rights conferred by, any provisions of this Part”, namely, Part III.

Article 31B is also in similar terms and gives complete protection to the Acts specified in the Ninth Schedule from any of the provisions of Part III.

1224. In so far as Article 31A was concerned, it authorised a law for the acquisition of an estate as defined in Clause (2). Article 31B as introduced by the First Amendment protected from challenge, on the ground of infringement of the rights in Part III, certain Acts enacted for agrarian reforms which, after very careful scrutiny that they pertain to agrarian reforms, were added to the Ninth Schedule. Zamindari abolition and agrarian reform had become an article of faith of free India and in respect of which the Bills either were pending at the time when the Constitution was being framed or they had been enacted into law after the commencement of the Constitution. The debates in the Constituent Assembly on Article 31 will disclose that after postponing its consideration for nearly a year, in the end a compromise was arrived at between those who were for the acquisition law to provide for payment of full compensation and those who wanted the right in Article 31 not to extend to the acquisition of land for giving effect to agrarian reforms. This compromise resulted in the inclusion of Clauses (4) and (6) giving protection to laws made thereunder from being questioned in any Court; in the case of the former, to laws dealing with agrarian reforms in respect of which Bills were pending in any of the Legislatures of the States at the commencement of the Constitution and had been reserved for the consideration of the President who subsequently assented to them and to those laws which were passed not more than eighteen months before the commencement of the Constitution, and if submitted within three months after such commencement to the President for his certification had been so certified by him by public notification. It was thought that the jurisdiction of the Courts would be barred in respect of the legislation of the character above mentioned, but the Patna High Court had held Article 14 was applicable and even when the appeals were pending in this Court, the Constitution (First Amendment) Act, 1950, was passed and Article 31A and Article 31B were added by an amendment of the Constitution. At the time only 13 Acts were added to the Ninth Schedule, but when some of the members of the Provisional Parliament wanted to add several other Acts after the Bill had been scrutinised by the Select Committee, the Prime Minister pleaded with them not to do so. He said:

I would beg to them not to press this matter. It is not with any great satisfaction or pleasure that we have produced this long Schedule.

These debates animated as they were, make interesting reading and one gets the impression that what was being done was what the original framers had intended to do but could not give effect to the object because of lacunae in the language of the Article.

The Prime Minister said:

If there is one thing to which we as a party have been committed in the past generation or so it is the agrarian reforms and the abolition of the Zamindari system.

Shri Hussain Imam (Bihar) : “With compensation.

Shri Jawaharlal Nehru : “With adequate proper compensation not too much”.

Shri Hussain Imam : “Adequate is quite enough”.

Shri Shyama Prasad Mukherjee, representing the opposite view, pointed out the dangers inherent in the amendment, not because he was against the agrarian reforms but because of the precedent this would create. He said : “By this amendment to the Constitution you are saying that whatever legislation is passed it is deemed to be the law. Then why have your fundamental rights? Who asked you to have these fundamental rights at all? You might have said : Parliament is supreme and Parliament may from time to time pass any law in any matter it liked and that will be the law binding on the people”. In referring to a few excerpts, I merely want to show what was the object of the amendment and what were the fears entertained in respect thereof.

1225. The First Amendment was challenged in Sankari Prasad’s case, but this Court held it valid. The question, as we have seen earlier, was whether Article 13(2) imposed a bar on Article 368 from amending fundamental rights? It was held that it did not, but no contention was urged or agitated before it that even apart from Article 13(2), the amending power did not extend to the abrogation of fundamental rights. In Sajjan Singh’s case the principal point which was urged was that the impugned Constitution (Seventeenth Amendment) Act was invalid for the reason that before presenting it to the President for his assent the procedure prescribed, by the proviso to Article 368 had not been followed, though the Act was one which fell within the scope of the proviso. It was, however, not disputed before the Court that Article 368 empowered Parliament to amend any provision of the Constitution including the provisions in respect of fundamental rights enshrined in Part III. Hidayatullah and Mudholkar. JJ., did, however, express doubts as to whether it is competent for Parliament to make any amendment at all to Part III of the Constitution (see pp. 961 and 968). Mudholkar, J., further raised the question whether the Parliament could “go to the extent it went when it enacted the First Amendment Act and the Ninth Schedule and has now added 44 agrarian laws to it? Or was Parliament incompetent to go beyond enacting Article 31A in 1950 and now beyond amending the definition of estate”? (p. 969) Even in Golaknath’s case the question raised before us was not conclusively decided. In this state of law to say that since Article 31C is similar to Article 31A and 31B and since the latter were held to be valid in Sankari Prasad’s case, fundamental rights could be abrogated by an amendment, would not be justified. It may be observed that both in Sajjan Singh’s case and Golaknath’s case one of the grounds which was taken into consideration was that if the amendment was held invalid, millions of people will be affected and since in the latter case the majority had held that Parliament could not by amendment under Article 368 affect fundamental rights, the doctrine of prospective overruling or acquiescence was resorted to. But since the crucial question of the extent of the power of amendment has been mooted in this case before the largest Bench constituted so far and has been fully argued, this aspect can be reconsidered. In this regard Gajendragadkar, C.J., while considering the question of stare decisis, observed in Sajjan Singh’s case at pp. 947-948):

It is true that the Constitution does not place any restriction on our powers to review our earlier decisions or even to depart from them and there can be no doubt that in matters relating to the decision of Constitutional points which have a significant impact on the fundamental rights of citizens, we would be prepared to review our earlier decisions in the interest of public good. The doctrine of stare decisis may not strictly apply in this context, and one can dispute the position that the said doctrine should not be permitted to perpetuate erroneous decisions pronounced by this Court to the detriment of general welfare. Even so, the normal principle that judgments pronounced by this Court would be final, cannot be ignored and unless considerations of substantial and compelling character make it necessary to do so, we should be slow to doubt the correctness of previous decisions or to depart from them.

1226. I have already pointed out that two of the learned Judges did doubt the power of Parliament to amend fundamental rights and since then this question has not remained unchallenged either on the ground of Article 13(2) preventing such amendments or on other grounds urged before us. In these circumstances, it is not correct to say that just because the validity of Article 31A and 31C was sustained by this Court, though in Golaknath’s case it may have been on the grounds of expediency, Article 31C must also on that account be sustained. However, an analogy of other Articles like Article 33, Article 15(4) and Article 16(4) is sought to be put forward in support of the contention that a similar device has been adopted in Article 31C. I find that in none of the articles to which the learned Soliciton-General has drawn our attention, is there a total abrogation of any of the rights as sought to be affected by Article 31C. Article 33 for example, restricts or abrogates fundamental rights in Part III only in respect of the discipline of Armed Forces or forces charged with the maintenance of public order and nothing more. It does not extend to discrimination in recruitment to the service nor to any other rights possessed by the citizens in the Armed Forces which are unrelated with the proper discharge of their duties and the maintenance of discipline among these forces. Article 15(4) which was referred to as an example of empowerment based on objective or purpose of legislation, has no analogy with Article 31C. In the first place, Article 15 is an exception to the classification which would have been permissible under Article 14, for instance on the basis of religion, race, caste, sex and place of birth and hence Article 15 prohibits such a classification in the case of citizens, and Article 16 makes a like provision in the case of public employment with the addition of descent. The restriction is only to a limited extent from out of an area which permits the making of wide variety of classification. Clause (4) of Article 15 was added by the Constitution (First Amendment) Act, 1950, to enable a state to make provision for the advancement of any socially and educationally backward classes of citizens or for the scheduled castes and the scheduled tribes. Clause (4) of Article 16 likewise enables the State to make provision for the reservation of appointments or posts in favour of any backard class of citizens which, in the opinion of the State, is not adequately repressented in the services under the State.

The effect of these amendments is to permit the making of classification for favourable treatment on the ground that the persons so favoured were Scheduled Castes, Scheduled tribes, etc., which would otherwise have been permissible under Article 14 to the extent of its reasonable relationship with the objects of the law, had the same not been prohibited by Article 15(1) and Article 16(2). These provisions do not in anyway abrogate the right in Article 14 and I do not think the analogy between these provisions and Article 31C is apt.

1227. The Directives under Article 39(b) & (c) are wide and indeterminate. They affect the whole gamut of human activity vis-a-vis the society. The State is enjoined to ensure that ownership and control of the material resources of the community are so distributed as best to subserve the common good and that the operation of the economic system does not result in the concentration of wealth and means of production to the common detriment. These objectives are ends which may be implemented by a party in power through legislative action by resort to any one of the diverse philosophies, political ideologies and economic theories. The implementation of these obectives is the means.

These theories and ideologies both political, economic and sociological may vary and change from generation to generation and from time to time to suit the social conditions, existing during any particular period of history. We have in the world to-day countries adopting different political systems, according to the historical development of economic thought, the philosophy and ideology which is considered best to subserve the common good of that particular society. There is no standardisation, and what is good for the one country may not be suitable to another. The accelerating technological advance and the exploitation of these development and discoveries indicate the economic thought prevalent in that society. The various theories are, therefore, related to the development and the practical means which are adopted for achieving the ends. In a developing country such as ours, where millions are far below the standard of sustenance and have not the means of having the normal necessities of life, there is further a deeper philosophical question of the kind of society and the quality of life which has to be achieved. It is, therefore, the duty of the State to devise ways and means of achieving the ends. A Government which comes to power with a particular political philosophy and economic theory as having been endorsed by the electorate, has to give effect to that policy in the manner which it considers best to subserve the end. Any legislation to give effect to the principles and policy to achieve these ends is the legislative judgment which is not within the province of Courts to examine as to whether they in fact subserve these ends as “otherwise there would be a conflict between the Judges and Parliament as to whether something was good for the country or not, and the whole machinery of justice was not appropriate for that consideration” (See Liyanage’s case at p. 267). The Government and Parliament or the Government and Legislature of a State have, within the sphere allotted to each other, the undoubted right to embark on legislative action which they think will ensure the common good, namely, the happiness of the greatest number and so they have the right to make mistakes and retrace any steps taken earlier to correct such mistakes when that realisation dawns on them in giving effect to the above objectives. But if the power to commit any mistake through democratic process is taken away as by enabling an authoritarian system, then it will be the negation of parliamentary democracy. The State, therefore, has the full freedom to experiment in implementing its policy for achieving a desired object. Though the Courts, as I said, have no function in the evaluation of these policies or in determining whether they are good or bad for the community, they have, however, in examining legislative action taken by the State in furthering the ends, to ensure that the means adopted do not conflict with the provisions of the Constitution within which the State action has to be confined. It is, therefore, necessary to keep in view, the wide field of Governmental activity enjoined in Article 39(b) & (c) in determining the reach of the means to achieve the ends and the impact of these means on the Fundamental Rights which Article 31C effects.

1228. The impugned Article 31C enables Parliament and the State legislarures to make laws unfettered by Articles 14, 19 and 31 in respect of the wide and undefined field of objectives indicated in Article 39(b) & (c). All these objectives before the amendment had to be achieved by the exercise of the legislative power enumerated in VII Schedule which would ordinarily be exercised within the limitations imposed by the Constitution and the fundamental rights. The amendment removes these limitations, though the law made must still be within the legislative power conferred under the VII Schedule, and enables Parliament and the State legislatures, subject to one tenth quorum of its members present and by a simple majority, to enact laws which contravene the fundamental rights conferred under Articles 14, 19 and 31 and which Parliament by complying with the form and manner provided under Article 368, could alone have effected. Whether one calls this removing restrictions on the legislative organs or of conferring complete sovereignty on them within the wide field inherent in Article 39(b) & (c) is in effect one and the same. It is contended that in conferring this power by Article 31C on Parliament and the State Legislatures, acting under Articles 245 to 248, Parliament has abdicated its function under Article 368 and has permitted amendments being made without complying with the form and manner provided thereunder.

1229. It is not necessary in the view I am taking to consider the question whether Article 31C delegates the power of amendment to the State Legislatures and Parliament or that it does not indicate the subject-matter of legislation as in Article 31A but merely purports to enable the legislative organs to choose the subject-matter from a field which, as I said; is as wide and indeterminate as the term ‘operation of the economic system’ would denote. I would prefer to consider Article 31C as lifting the bar of the articles specified therein, and in so far as the subject-matter of the legislation is concerned, though the field is wide, any of the modes to give effect to the directives can only be a mode permissible within the legislative power conferred on the respective legislative organ under the VII Schedule to the Constitution.

1230. If Parliament by an amendment of the Constitution under Article 368, cannot abrogate, damage or destroy the basic structure of the Constitution or any of the essential elements comprising that basic structure, or run counter to defeat the objectives of the Constitution declared in the Preamble and if each and every fundamental right is an essential feature of the Constitution, the question that may have to be considered is whether the amendment by the addition of Article 31C as a fundamental right in Part III of the Constitution has abrogated, damaged or destroyed any of the fundamental rights.

1231. Article 31C has 4 elements : (i) it permits the legislature to make a law giving effect to Article 39(b) and Article 39(c) inconsistent with any of the rights conferred by Articles 14, 19 and 31; (ii) it permits the legislature to make a law giving effect to Article 39(b) and Article 39(c) taking away any of the rights conferred by Articles 14, 19 and 31;

(iii) it permits the legislature to make a law giving effect to Article 39(b) and (c) abridging any of the rights conferred by Articles 14, 19 and 31; and (iv) it prohibits calling in question in any Court such a law if it contains a declaration that it is for giving effect to the policy of State towards securing the principles specified in Clauses (b) and (c) of Article 39 on the ground that it does not give effect to such a policy of the State.

1232. The first element seems to have been added by way of abundant caution, for it takes in the other two elements, namely, taking away and abridging of the rights conferred by Articles 14, 19 or 31. However, it would be ultra vires the amending power conferred by Article 368, if it comprehends within it the damaging or destruction of these fundamental rights. The second element, namely, taking away of these fundamental rights would be ultra vires the amending power, for taking away of these fundamental rights is synonymous with destroying them. As for the third element, namely, abridging of these rights, the validity will have to be examined and considered separately in respect of each of these fundamental rights, for an abridgement of the fundamental rights is not the same thing as the damaging of those rights. An abridgement ceases to be an abridgement when it tends to effect the basic or essential content of the right and reduces it to a mere right only in name. In such a case it would amount to the damaging and emasculating the right itself and would be ultra vires the power under Article 368. But a right may be hedged in to a certain extent but not so as to affect the basic or essential content of it or emasculate it. In so far as Article 31C authorises or permits abridgement of the rights conferred by Article 19, it Would be intra vires the amending power under Article 368 as thereby the damaging or emasculating of these rights is not authorised. It will, therefore, be necessary to examine what exactly Article 14 and Article 19 guarantee.

1233. The guarantee of equality contained in Article 14 has incorporated the principle of “liberty” and “equality” embodied in the Preamble to the Constitution. The prohibition is not only against the legislatures but also against the executive and the local authorities.

Two concepts are inherent in this guarantee-one of ‘equality before law’, a negative one similar to that under the English Common Law; and the other ‘equal protection of laws’, a positive one under the United States Constitution. The negative aspect is in the prohibition against discrimination and the positive content is the equal protection under the law to all who are situated similarly and are in like circumstances. (See Subba Rao, J., in State of U.P. v. Deoman Upadhyaya [1960] INSC 107; (1961) 1 S.C.R. 14 at p. 34.

1234. The impact of the negative content on the positive aspect has not so far been clearly discerned in the decisions of this Court which has been mostly concerned with the positive aspect Again, Subha Rao, J., in his dissenting judgment in Lachhman Das on behalf of Firm Tilak Ram Ram Bux v. State of Punjab [1962] INSC 160; (1963) 2 S.C.R. 353 while holding that the Patiala Recovery of State Dues Act did not offend Article 14 of the Constitution, said at p. 395:

It shall also be remembered that a citizen is entitled to a fundamental right of equality before the law and that the doctrine of classification is only a subsidiary rule evolved by Courts to give a practical content to the said doctrine. Over emphasis on the doctrine of classification or an anxious and sustained attempt to discover some basis for classification may gradually and imperceptibly deprive the article of its glorious content That process would inevitably and in substituting the doctrine of classification for the doctrine of equality: the fundamental right to equality before the law and equal protection of the laws may be replaced by the doctrine of classification.

In Ram Krishna Dalmia v. Shri Justice S.R. Tendolkar and Ors. [1958] INSC 30; (1959) S.C.R. 279, Das, C.J., summed up the principle enunciated in several cases referred to by him and consistently adopted and applied in subsequent cases, thus:

It is now well established that while Article 14 forbids class legislation, it does not forbid reasonable classification for the purposes of legislation. In order, however, to pass the test of permissible classification two conditions must be fulfilled, namely, (i) that the classification must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group and, (ii) that that differentia must have a rational relation to the object sought to be achieved by the statute in question. The classification may be founded on different bases, namely, geographical, or according to objects or occupations or the like. What is necessary is that there must be a nexus between the basis of classification and the object of the Act tinder consideration. It is also well established by the decisions of this Court that Article 14 condemns discrimination not only by a substantive law but also by a law of procedure.

1235. In subsequent cases a further principle has been recognised by which Article 14 was also not to be violated by two laws dealing with the same subject-matter, if the sources of the two laws are different. (See State of Madhya Pradesh v. G.C. Mandawar [1954] INSC 65; [1955] 1 S.C.R. 599. I am not for the present concerned whether this latter principle is likely to mislead but would refer only to the various aspects of the classification recognised in this Court so far. It may, however, be pointed out that though the categories of classification are never closed, and ft may be that the objectives of Article 39(b) & (c) may form a basis of classification depending on the nature of the law, the purpose for which it was enacted and the impact which it has on the rights of the citizens, the right to equality before the law and equal protection of laws in Article 14 cannot be disembowelled by classification.

1236. The lifting of the embargo of Article 14 on any law made by Parliament or the Legislature of a State under Article 31C, by providing that no law made by these legislative organs to give effect to the policy of the State towards securing the principles specified in Clauses (b) and (c) of Article 39 shall be deemed to be void on the ground that it is inconsistent with or takes away or abridges the right conferred therein, would, in my view, abrogate that right altogether. I have held that Parliament cannot under Article 368 abrogate, damage or destroy any of the fundamental rights though it can abridge to an extent where if does not amount to abrogation, damage or destruction. The question is, whether the words ‘inconsistent with or takes away, or’, if severed, will achieve the purpose of the amendment? In what way can the abridgement of Article 14 be effected without robbing the content of that right? Can a law permitted under Article 31C affect persons similarly situated unequally or would equal protection of laws not be available to persons similarly situated or placed in like circumstances? While Article 39(b) & (c) can provide for a classification, that classification must have a rational relation to the objectives sought to be achieved by the statute in question.

1237. In so far as the abridgement of the right conferred by Article 14 is concerned, it would be ultra vires for the reason that a mere violation of this right amounts to taking away or damaging the right. The protection of the right was denied in Article 31A because the Courts had held invalid under Article 14, the provisions of certain land reform legislations relating to compensation for the acquisition etc., of the estates. The necessity for the exclusion of Article 14 from being applied to laws under Article 31C is not apparent or easy to comprehend. No law under Article 31C could possibly be challenged under Article 14 by the owners or the holders of the property, for the reason that to treat all owners or holders of property equally in matters of compensation would be contrary to the very objects enshrined in Article 39(b) & (c). Any rational principles of classification devised for giving effect to the policies adumberated in Article 39(b) & (c) will not be difficult to pass the test of equal protection of the laws under Article 14. The exclusion of Article 14 in Article 31A was confined to the aspect of acquisition and compensation in respect of land reforms laws, but, however, the laws under Article 31A were not immune from attack under Article 14, if the measures of agrarian reforms were tainted with arbitrariness. Though this question has not been finally decided by this Court in any of the cases under Article 31A, it was raised in Balmadies Plantations Ltd. and Ors. v. State of Tamil Nadu (1972) 2 S.C.R. 133, where the appellants contended that it would not be open to the Government under Section 17 of the Gudalur Janmam Estates (Abolition and Conversion into Ryotwari) Act, 1969, to terminate by notice the right of the lessee as that would be violative of the rights under Articles 14, 19 and 31 of the Constitution. This Court, however, did not find it necessary to deal with this aspect of the matter, because it was admitted that no notice about the termination of the lessee’s rights had been issued under Section 17 of the Act to any of the appellants, and that question can only arise after the Act came into force. It was further observed by one of us, Khanna, J., speaking for the Court:

Even after the Act comes into force, the Government would have to apply its mind to the question as to whether in its opinion it is in public interest to terminate the rights of the plantation lessees. Till such time as such a notice is given, the matter is purely of an academic nature. In case the Government decides not to terminate the lease of the plantation lessees, any discussion in the matter would be an exercise in futility. If, on the contrary, action is taken by the Government under Section 17 in respect of any lease of land for purposes of the cultivation of plantation crop, the aggrieved party can approach the court for appropriate relief.

It may be mentioned that in that case Section 3 of the Act, in so far as it related to the transfer of forests in Janman estates to the Government was concerned, was held to be violative of the Constitution. It cannot, therefore, be said that this aspect of the matter is not res integra. On the other hand, it lends support to the view that the law can be challenged.

1238. The decisions of this Court in Nagpur Improvement Trust v. Vithal Rao(2), and the other two cases following it also do not affect my view that Article 14 is inapplicable to matters dealing with compensation under laws enacted to give effect to policies of Article 39(b) & (c). In the above case it was the State which was given the power to acquire property for the same public purpose under two different statutes, one of them providing for lesser compensation and the other providing for full compensation. My Lord the Chief Justice, delivering the judgment of the Constitution Bench of seven Judges, while holding that these provisions contravened Article 14, observed at p. 506:

It would not be disputed that different principles of compensation cannot be formulated for lands acquired on the basis that the owner is old or young, healthy or ill, tall or short, or whether the owner has inherited the property or built it with his own efforts, or whether the owner is a politician or an advocate. Why is this sort of classification not sustainable? Because the object being to compulsorily acquire for a public purpose, the object is equally achieved whether the land belongs to one type of owner or another type.

There was no question in the above case of either distribution of ownership and control of material resources or the breaking up of concentration of wealth or the means of production which is an object different from that envisaged in Article 31(2). If in two given cases similarly circumstanced, the property of one is taken under Article 31C and that of the other under Article 31(2), then it will amount to discrimination and the Nagpur Improvement Trust case will apply. In a case of this nature, the objection is not so much to Article 14 being applied, but of adopting methods which run counter to Article 39(b) &

(c), because the person who though similarly situated as that of the other is certainly favoured for reasons unconnected with Article 39(b) & (c). It cannot, therefore, be said that Article 14 has been misapplied or was a hindrance to the furtherance of the directive principles in Article 39(b) and (c), which is professed to be the object of implementation in such a case. If no such abuse is to be presumed, then there is no warrant for the apprehension that Article 14 will hinder the achievement of the said Directives.

1239. The sweep of Article 31C is far wider than Article 31A, and Article 14 is excluded in respect of matters where the protection was most needed for the effectuation of a genuine and bona fide desire of the State contained in the directives of Article 39(b) &

(c). For instance, persons equally situated may be unequally treated by depriving some in that class while leaving others to retain their property or in respect of the property allowed to be retained or in distributing the material resources thereby acquired unequally, showing favour to some and discriminating against others. To amplify this aspect more fully, it may be stated that in order to further the directives, persons may be grouped in relation to the property they own or held, or the economic power they possess or in payment of compensation at different rates to differrent classes of persons depending on the extent or the value of the property they own or possess, or in respect of classes of persons to whom the material resources of the country are distributed. The object of Clauses (b) and (c) of Article 39 is the breaking up of concentration of wealth or the distribution of material resources. If full compensation is paid for the property taken in furtherance of the objectives under Article 39(b) & (c), that very objective sought to be implemented would fail, as there would in fact be no breaking up of concentration of wealth or distribution of material resources. It is, therefore, clear that the very nature of the objectives is such that Article 14 is inapplicable, firstly, because in respect of compensation there cannot be a question of equality, and, secondly, the exclusion thereof is not necessary because any law that makes a reasonable classification to further the objectives of Article 39(b) & (c) would undoubtedly fulfil the requirements of Article 14.

The availability of Article 14 will not really assist an expropriated owner or holder because the objectives of Article 39(b) & (c) would be frustrated if he is paid full compensation. On the other hand, he has no manner of interest in respect of equality in the distribution of the property taken from him, because he would have no further rights in the property taken from him. The only purpose which the exclusion of Article 14 will serve would be to facilitate arbitrariness, inequality in distribution or to enable the conferment or patronage etc This right under Article 14 will only be available to the person or class of persons who would be entitled to receive the benefits of distribution under the law. In fact the availability of Article 14 in respect of laws under Article 31C would ensure ‘distributive justice’, or ‘economic justice’, which without it would be thwarted. In this View of Article 31C vis-a-vis Article 14, any analogy between Article 31C and Article 31A which is sought to be drawn is misconceived, because under the latter provision the exclusion of Article 14 was necessary to protect the subject-matter of legislation permissible thereunder in respect of compensation payable to the expropriated owner. There is another reason why there can be no comparison between Article 31A and Article 31C, because in Article 31A the exclusion of Article 14 was confined only to the acquisition etc. of the property and not to the distribution aspect which is not the subject- matter of that Article, whereas, as pointed out already, the exclusion of Article 14 affects distribution which is the subject-matter of Article 39 (b) & (c).

1240. It is not necessary to examine in detail the mischief that the abridgement or taking away of Article 14 will cause, It is not an answer to say that this may not be done and abuse should not be presumed. This may be true, but what I am concerned with is the extent of the power the legislative organs will come to possess. Once the power to do all that which has been referred above is recognised, no abuse can be presumed. But if the power does not extend to destruction, damage or abrogation of the right, the question of abuse, if any, has no relevance. It cannot be presumed that Parliament by exercising its amending power under Article 368, intended to confer a right on Parliament and the Legislatures of the States to discriminate persons similarly situated or deprive them of equal protection of laws. The objectives sought to be achieved under Article 39(b) & (c) can be achieved even if this article is severed.

1265. In respect of the exclusion of Article 19 by Article 31C a question was asked by one of us during the course of arguments addressed by the learned Advocate-General for Maharashtra on January 12, 1973, the thirtyfifth day, as to, what is the social content of the restriction on freedom of speech and freedom of movement which are not already contained in the restrictions to which those rights are subject? The learned Advocate- General said he would consider and make his submissions. On March, 1, 1973, he made his submissions on the understanding that the question was asked in the context of Article 31C which excludes the operation of whole of Article 19 and not only Article 19(1)(f) and Article 19(1)(g). The learned Advocate-General characterised the question as raising a matter of great importance. In my view, what was implied in the question was the core of the issue before us, as to whether there can be any justification for imposing more restrictions on such valuable rights as freedom of movement and freedom of speech than what the framers of the Constitution had already provided for in Article 19(2) to (6).

After referring to the history and objects and reasons for enacting Constitution First, Fourth and Seventeenth Amendments, and after referring to the decisions of this Court, all of which relate to acquisition of property and have nothing to do either with freedom of speech or freedom of movement, he considered and answered the question posed under the following heads as under:

(i) Generally, with reference to reasonable restrictions to which the fundamental rights conferred by Article 19(1)(a) to (g) are subject under Article 19(2) to (6);

(ii) the reasonable restrictions to which the right to freedom of speech and the right to move throughout the territory of India should be made subject under Article 19(2) and (5) respectively.

1241. Under the first head he submitted the proposition that the social content of the restrictions to which the fundamental rights under Article 19(1)(a) to (g) are subject is narrower than all relevant social considerations to which the fundamental rights could be made subject. The reasons given were again the historical ones particularly the fact that the Constituent Assembly had rejected the suggestion made by Shri B.N. Rau that in case of conflict between fundamental rights and the Directives, the directives should prevail, otherwise necessary social legislation might be hampered. This meant that the social content of the Directive Principles was wider than the social content of permissible restrictions on fundamental rights. For, if this were not so, no question of giving primacy to Directive Principles in the case of conflict with fundamental rights could arise as the social content of fundamental rights and the Directive Principles would be the same.

Since the Constitution gave primacy to fundamental rights over the Directives, making fundamental rights enforceable in a Court of law and the directives not so enforceable, the social content of the restrictions on fundamental rights was placed in the framework of the enforcement of rights by citizens or any person. This enforcement of individual fundamental rights naturally disregarded the injury to the public good caused by dilatory litigation which can hold up large schemes of necessary social legislation affecting a large number of people. To prevent this social evil, the First and the Fourth Amendments to the Constitution were enacted.

1242. The social content of restrictions which can be imposed under Article 19(2) to (6) naturally does not take in the injury to the public good by dilatory litigation holding up large schemes of social legislation. The fundamental rights conferred by Article 19(1)(a) to (g) are not mutually exclusive but they overlap. For example, the right to move peaceably and without arms conferred by Article 19(1)(b) may be combined with the right to freedom of speech and expression, if those who assemble peaceably carry placards or deliver speeches through microphones. Again, the right to carry on business under Article 19(1)(g) would overlap the right to hold, acquire and dispose of property, for ordinarily, business cannot be carried on without the use of property. This consideration must be borne in mind in considering the question why Article 31C excluded the challenge to the laws protected by Article 31C under the whole of Article 19, instead of excluding a challenge only under Article 19(1)(f) which relates to property;

and Article 19(1)(g) which relates to business which would ordinarily require the use of property.

1243. Under the second head, he submitted that it is well settled that the right to freedom of speech includes the freedom of the Press, and thereafter referred to ‘Press in a Democracy’-Chapter X of Modern Democracies by Lord Bryce, and long extracts were given from the above chapter, dealing with the change which had come over the Press and the dictatorship of a syndicated Press. The First Amendment of the U.S. Constitution was also referred. He thereafter submitted that our Constitution guarantees a freedom of speech and expression and by judicial construction that freedom has been held to include freedom of the Press. But according to him the freedom of speech as an individual right must be distinguished from the freedom of the Press and since ordinarily people asserting their individual right to the freedom of speech are not carrying on any trade or business and a law of acquisition has no application to individual exercise of the right to the freedom of speech and expression Article 31C can equally have no application to such individual right to the freedom of speech and expression. But different considerations apply when the freedom of speech and expression includes the Press, the running of which is clearly a business.

1244. Article 19(1)(a) is so closely connected with Article 19(1)(g) and (f) that if the last two sub-Articles are excluded by a law relating to the acquisition of property, it is necessary to exclude Article 19(1)(a) to prevent an argument that the rights are so inextricably mixed up that to impair the right to carry on the business of running a Press or owning property necessary for running the Press is to impair the right to freedom of speech. Again, the right to freedom of movement throughout the territory of India has been clubbed together by Article 19(5) with the right to reside and settle in any part of the territory of India, conferred by Article 19(1)(c) and the right to acquire, hold and dispose of property conferred by Article 19(1)(f) for the purpose of imposing reasonable restrictions in the interest of general public or for the protection of the interest of any scheduled Tribe.

1245. After referring to the observations of Patanjali Sastri and Mukherjea, JJ., in Gopalan’s case, the learned Advocate-General submitted that those observations show that if a law of land acquisition was to be protected from challenge under Article 19(1)(f), it was necessary to protect it from challenge under Article 19(1)(d) and (e) to foreclose any argument that the rights under Article 19(1)(d), (e) and (f) are so closely connected that to take away the right under Article 19(1)(f) is to drain the rights under Article 19(1)(d) and (e) of their practical content. For these reasons, Parliament in enacting the First, Fourth and Seventeenth Amendments rightly excluded the challenge under the whole of Article 19 to the laws protected by those amendments and not merely a challenge under Article 19(1)(f) and (g). In the result, it was submitted that Article 31C only contemplates the process of giving primacy to the Directive Principles of State policy over fundamental rights, first recognised in Article 31(4) and (6) and then extended by Articles 31A and 31B and Schedule IX as first enacted and as subsequently amplified by the Fourth and the Seventeenth Amendments all of which have been held to be valid. Directive Principles are also fundamental and the amending power is designed to enable future Parliament and State Legislatures to provide for the changes in priorities which take place after the Constitution was framed and the amending power is extended to enacting Article 31C.

1246. I have set out in detail what according to the learned Advocate-General is the basis and the raison d’etre for excluding Article 19 by Article 31C. This able analysis surfaces the hidden implications of Article 31G in excluding Article 19. On those submissions the entire fundamental rights guaranteed to the citizens are in effect abrogated. Article 14 is taken away; Article 19(1)(a) to (g) is excluded on the ground that each of them have their impact on one or the other of the rights in Part III and since these rights are not mutually exclusive and any property and trade or business affected by legislation under Article 31C which necessarily must deal with property, if the directives in Article 39(b) and (c) are to be given effect, will in turn, according to the learned Advocate-General, come into conflict not only with Article 19(1)(f) & (g), but with the other Sub-clauses (a) to (e) of Clause (1) of that article.

1247. As far as I can see, no law, so far enacted under Article 31A and challenged before this Court has attempted to affect any of the rights in Article 19(1)(a) to (e), except Article 19(1)(f) & (g) and, therefore, this question did not fall for consideration of this Court. But that apart, I cannot understand by what logic the freedom to assemble peaceably and without arms, or for a citizen to move freely throughout India or to reside and settle in any part of the territory of India, has anything to do with the right to acquire and dispose of property or to practice any profession or to carry on any occupation, trade or business. Are persons whose trade and business is taken away, or are deprived of their property not entitled to the guaranteed rights to move freely throughout India or settle in any part of India or to practise any profession or occupation? What else can they do after they are deprived of their property but to find ways and means of seeking other employment or occupation and in that endeavour to move throughout India or settle in any part of India? If they are prohibited from exercising these basic rights, they will be reduced to mere serfs for having owned property which the State in furtherance of its policy expropriates. If the law made under the directives has nothing to do with property, how does the duty to prevent the operation of the economic system from resulting in concentration of wealth and means of production, has any relevance or nexus with the movement of the citizens throughout India or to settle in any part of India ? Are those to whom property is distributed in furtherance of the directive principles, ought not to be secured against infringement of those rights in property so distributed by laws made under Article 31C? It would seem that those for whose benefit legislation deprives others in whom wealth is concentrated themselves may not be protected by Article 19 and Article 14, if Article 31C can take away or destroy those rights. Without such a protection they will not have a stake in the survival of democracy, nor can they be assured that economic justice would be meted out to them. Nor am I able to understand why where an industry or undertaking is taken over, is it necessary Co take away the right of the workers in that industry or undertaking to form associations or unions. The industry taken away from the owners has nothing to do with the workers working therein, and merely because they work there they will also be deprived of their rights. I have mentioned a few aspects of the unrelated rights which are abridged by Article 31C. No doubt, the recognition of the freedom of Press in the guarantee of freedom of speech and expression under Article 19(1)(a) was highlighted by the learned Advocate-General of Maharashtra. Does this mean that if a monopoly of the Press is prohibited or where it is sought to be broken up under Article 39(b) and (c) and the Printing Presses and undertakings of such a Press are acquired under a law, should the citizens be deprived of their right to start another Press, and exercise their freedom of speech and expression? If these rights are taken away, what will happen to the freedom of speech and expression of the citizens in the country, which is a concomitant of Parliamentary democracy? In the State of Bombay and Anr. v. F.N. Balsara [1951] INSC 38; (1951) S.C.R. 682, it was held under the unamended Clause (2) of Article 19 that Section 23(a) and Section 24(1)(a) which prohibited “commending” or advertising intoxicants to public were in conflict with the right guaranteed in Article 19(1)(a) as none of the conditions in Clause (2) of that Article applied. But the first Amendment has added ‘incitement to an offence’ as a reasonable restriction which the State can provide by law. In any case, the absence of such a law making power is no ground to abrogate the entire right of free speech and expression of the citizens.

1248. Article 15 merely confines the right to those who are not women socially and educationally backward classes of citizens, scheduled castes or scheduled tribes all of whom were afforded protective discrimination. Article 16 is again similarly conditioned.

Articles 17, 18, 23 and 24 are prohibitions which the State is enjoined to give affect to.

Articles 25 to 28 which guarantee religious freedom, can be affected by Article 31C in furtherance of directive principles because these denominations own properties, schools, institutions, etc., all of which would be meaningless without the right to hold property.

Likewise, Articles 29 and 30 would become hollow when Articles 19 and 14 are totally abrogated. The only rights left are those in Articles 20, 21 and 22, of which Article 22 has abridged by reason of Clauses (4) to (7) by providing for preventive detention, which no doubt, is in the larger interest of the security, tranquillity and safety of the citizens and the States. I have pointed out the implications of the contentions on behalf of the respondents to show that if these are accepted, this country under a Constitution and a Preamble proclaiming the securing of fundamental rights to its citizens, will be without them. The individual rights which ensure political rights of the citizens in a democracy may have to be subordinated to some extent to the Directive Principles for achieving social objectives but they are not to be enslaved and driven out of existence. Such could not have been contemplated as being within the scope of the amending power.

1249. Although Article 31A protected the laws coming within its purview from the rights conferred by Article 19, such a protection could only be against the rights conferred by Clauses (f) and (g) of Article 19(1), as its subjected-matter was expressly stated to be the acquisition of or extinguishment or modification of rights in any estate as defined in Clause (2) thereof, and the taking over or amalgamation or termination etc., of rights of management and certain leasehold interests. Article 31C protects laws giving effect to the policies in Article 39(b) & (c). For achieving these twin objects the rights of the persons that have to be abridged could only be those rights in Article 19 which relate to property and trade, business, profession or occupation. Though the expression ‘economic system’ is used in Article 39(c), that article has not the object of changing the economic system generally, but is confined to only preventing concentration of wealth and means of production to the common detriment. What this Clause envisages is that the State should secure the operation of the economic system in such a way as not to result in the concentration of wealth and means of production to the common detriment Where there is already concentration of wealth and means of production which is to the common detriment, the law under Article 39(c) would be only to break up or regulate as may be necessary the concentration of wealth and means of production. All other rights are outside the purview of Article 31C and in this respect Article 31A and Article 31C can be said to be similar in scope and no different. In my view, therefore, the learned Solicitor- General has rightly submitted that the law under Article 31C will only operate on “material resources”, “concentration of wealth”, and “means of production”, and if this is so, the rights in Article 19(1)(a) to (e) would have no relevance and are inapplicable.

1250. With respect to the exclusion of Article 31 by Article 31C, Clause (1) of Article 31 is not in fact affected by Article 31C, because under the latter any rights affected must be by law only. Even if Article 31C was enacted for making laws in the furtherance of the directive principles in Article 39(b) and (c) affecting property, those laws have to conform to Article 31(1) for they would be laws depriving persons of their property.

Article 31C also contemplates the making of a law to give effect to the Directives in Article 39(b) and (c). In so far as Article 31(2) is concerned, Section 2 of the Twenty- fifth Amendment has already abridged the right contained in Article 31(2) and a further abridgement of this right authorised by Article 31C may amount in a given case to the destruction or abrogation of that right and it may then have to be considered in each case whether a particular law provides for such an amount for the acquisition or requisitioning of the property in question as would constitute an abrogation or the emasculation of the right under Article 31(2) as it stood before the Constitution (Twenty-fifth) Amendment.

1251. On the fourth element, I agree with the reasoning and conclusion of my learned brother Khanna, J., whose judgment I have had the advantage of perusing, in so far as it relates only to the severance of the part relating to the declaration, and with great respect I also adopt the reasoning on that aspect alone as an additional reason for supporting my conclusions on the first three elements also.

1252. If the first part of Article 31C is read in this manner, then it may be held to be intra vires the amending power only if those portions of the Article which make it ultra vires the amending power are severed from the rest of it. The portions that may have to be severed are the words, “is inconsistent with or takes away, or” and the words “Article 14”

and the part dealing with the declaration by reason of which judicial review is excluded.

The severability of these portions is permissible in view of the decision of the Privy Council in Punjab Province v. Daulat Singh and Ors. (1946) 73 Indian Appeals 59 and the principles laid down by this Court in B.M.D. Chamarbdugwalla v. The Union of India [1957] INSC 32; (1957) S.C.R. 930.

1253. The doctrine that the general words in a statute ought to be construed with reference to the powers of the Legislature which enacts it, and that the general presumption is that the Legislature does not intend to exceed its jurisdiction, is well established. In in Re. The Hindu Women’s Rights to Property Act, [1941] F.C.R. 12 and in Daulat Singh’s case it has been held that on the general presumption the Legislature does not intend to exceed its jurisdiction, and that the Court could sever that part of the provision in excess of the power if what remained could be given effect to. In the former case, the Act being a remedial Act seeking to remove or to mitigate what the Legislature presumably regarded as a mischief, was given the beneficial interpretation. (See the observations of Gwyer, C.J. at p. 31). In the latter case, the provisions of Section 13A of the Punjab Alienation of Land Act, 1900, which were added by Section 5 of the Punjab Alienation of Land (Second Amendment) Act No. X of 1933, providing for the avoidcnce of banami transactions as therein specified which were entered into either before or after the commencement of the Act of 1938, and for recovery of possession by the alienor would have been ultra vires the Provincial Legislature as contravening Sub-section (1) of Section 281 of the Government of India Act, 1935, in that in some cases Section 13A would operate as a prohibition on the ground of descent alone, but it was authorised and protected from invalidity as regards future transactions by Sub-section 2(a) of Section 298 of the Act of 1935 as amended by Section 4 of the India & Burma (Temporary and Miscellaneous Provisions) Act, 1942. As the provisions of Section 13A would have been ultra vires and void in so far as they purported to operate retrospectively, the Privy Council severed the retrospective element by the deletion of the words “either before or”

in the section and the rest of the section was left to operate validly. Lord Thankerton, delivering the opinion of the Privy Council, observed at pp. 19-20:

It follows, in the opinion of their Lordships, that the impugned Act, so far as retrospective, was beyond the legislative powers of the Provincial Legislature and, if the retrospective element were not severable from the rest of the provisions, it is established beyond controversy that the whole Act would have to be declared ultra vires and void. But, happily, the retrospective element in the impugned Act is easily severable, and by the the deletion of the words, “either before or” from Section 5 of the impugned Act, the rest of the provisions of the impugned Act, may be left to operate validly.

1254. In Chamarbaugwalla’s case, Venkatarama Aiyer, J., after referring to the various cases including F.N. Balsara’s case accepted the principle that when a statute is in part void, it will be enforced as regards the rest, if that is severable from what is invalid. It is immaterial for the purpose of this rule whether the invalidity of the statute arises by reason of its subject-matter being outside the competence of the legislature or by, reason of its provisions contravening Constitutional prohibitions. He enunciated seven rules of separability. In F.N. Balsara’s case, apart from Section 23(a) and (b) and Section 24(1)(a) relating to commendation and incitement from the definition of the word ‘liquor’ in Section 2(24)(a) the words “all liquids consisting of or containing alcohol” were severed as these would include medicinal preparations. It will be seen that neither the whole Sub- clause (a) was deleted nor the whole of Clause (24) was separated. It is only the above words that were severed and held to make the remaining part of the definition valid.

1255. In Corporation of Calcutta v. Calcutta Tramways Co. Ltd. [1963] INSC 200; (1964) 5 S.C.R. 25 the question was whether Section 437(1)(b) of the Calcutta Municipal Act, 1851, was invalid under Article 19(1)(g) in so far as is made the opinion of the Corporation conclusive and non-challengeable in any court. The Sub-clause (b) of Section 437(1) reads as follows:

any purpose which is, in the opinion of the Corporation (which opinion shall be conclusive and shall not be challenged in any court) dangerous to life, health or property, or likely to create a nuisance;

This Court held the portion in the parenthesis as violative of Article 19(1)(g). It was contended that the above portion in the sub-clause was inextricably mixed up with the rest and hence cannot be separated. The Court held that the third proposition in the Chamarbaugwalla’s case, namely, that even when the provisions which are valid are distinct and separate from those which are invalid, if they all form part of a single scheme which is intended to be operative as a whole, then also the invalidity of a part will result in the failure of the whole, was inapplicable. Wanchoo, J., expressed the view that the parenthetical clause consisting of the words “which opinion shall be conclusive and shall not be challenged in any court” is severable from the rest of the clause referred to above.

1256. In the case of Kameshwar Prasad v. State of Bihar (1962) Supp. 3 S.C.R. 369 Rule 4-A of the Bihar Government Servants Conduct Rules, 1956, had provided that “No Government servant shall participate in any demonstration or resort to any form of strike in connection with any matter pertaining to his conditions of service”. The Court held the rule violative of Article 19(1)(a) and (b) in so far as it prohibited any form of demonstration, innocent or otherwise, and as it was not possible to so read it as to separate the legal from the unConstitutional portion of the provision, the entire rule relating to participation in any demonstration must be declared as ultra vires. The Court, however, did not strike down the entire Rule 4-A, but severed only that portion which elated to demonstration from the rest of it, and the portion dealing with the strike which was upheld continued to exist after severing the above, portion. However, in State of Madhya Pradesh v. Ranojirao Shinde and Anr. [1968] INSC 73; (1968) 3 S.C.R. 489 the doctrine of severability was not applied. In that case the term ‘grant’ was defined in Section 2(1) of the Madhya Pradesh Abolition of Cash Grants Act, 1963, in a language which was wide without making a distinction between various types of cash grants. This Court did not find any basis for severing some out of the several grants included therein and hence expressed the view that it is impermissible to rewrite that clause and confine the definition to such of the cash grants which the Legislature might be competent to abolish.

The case is, therefore, distinguishable as the rule is inapplicable to such instances.

1257. I have considered the validity of Article 31C by applying the doctrine of severability although neither side dealt with this aspect in relation to Article 31C, because both had taken an extreme position, which if accepted, will either result in the total invalidation or in upholding its validity in entirety. If as the petitioner had contended that by an amendment any of the fundamental rights cannot be damaged or destroyed, the next logical step of the argument on his behalf should have been to establish that the entire Article 31C is bad on that account, and if not, to what extent it would have been sustained by applying the doctrine of severability particularly when the severability of the declaration’ part of Article 31C was very much in the forefront during the arguments.

Likewise the respondents knowing what the petitioner’s case is, should have examined and submitted to what extent Article 31C is invalid on the petitioner’s argument. When a question was asked on February 19, 1973 that “if once it is conceded that a Constitution cannot be abrogated, then what one has to find out is to what extent an amendment goes to abrogation” and the answer was that “the whole of the Constitution cannot be amended”, and also when a question was raised that on the language of Article 31C it appears to be ineffective, neither side advanced any argument on this aspect. Nor when the question of severability of the declaration portion was mooted on several occasions during the arguments was any submission made by either party as to whether such a severance is, or is not, possible. In the circumstances, the Court is left to itself to examine and consider what is the correct position in the midst of these two extremes in a case of Constitutional amendment which has been enacted after following the form and manner prescribed in Article 368, as I said earlier, it should not be held invalid, if it could be upheld even by severing the objectionable part, where the valid part can stand on its own.

It is not always in public interest to confine the consideration of the validity of a Constitutional amendment to the arguments, the parties may choose to advance, otherwise we will be constrained to interpret a Constitution only in the light of what is urged before us, not what was understand it to be is the true nature of the impugned amendment Happily, even if I am alone in this view, the portions indicated by me are severable, leaving the unsevered portion operative and effective so as to enable laws made under Article 31C to further the directives of State Policy enshrined in Article 39(b) and (c). In the view I have entertained, the words “inconsistant with, or takes away or”

and the words “Article 14” as also the portion “and no law containing a declaration that it is for giving effect to such policy shall be called in question in any court on the ground that it does not give effect to such policy” being severable, be deleted from Article 31C.

In the result, on the construction of Article 31C after severing the portions indicated above, I hold Section 3 of the Twenty-fifth Amendment valid.

1258. On the validity of the Constitution (Twenty-ninth) Amendment, my Lord the Chief Justice has come to the conclusion that notwithstanding this amendment the Constitution Bench will decide whether the impugned Acts take away fundamental rights or only abridge them and whether they effect reasonable abridgements in publiic interest, and if they take away, they will have to be struck down. My learned brothers Hegde and Mukherjea, JJ., have in effect come to the same conclusion, when they hold that this amendemnt is valid, but whether the Acts which were brought into the IXth Schedule by that Amendment or any provision in any of them abrogate any of the basic elements or essential features of the Constitution will have to be examined when the validity of those Acts is gone into. With respect, I agree in effect with these conclusions which are consistent with the view I have expressed in respect of Articles 31A and 31B. I also agree that the contention of the learned Advocate for the petitioner that Article 31B is intimately connected with Article 31A is unacceptable and must be rejected for the reasons given in these judgments. The question whether fundamental rights are abrogated or emasculated by any of the Acts or provisions of these Acts included by the impugned Amendment, will be open for examination when the validity of these Acts is gone into, and subject to this reservation, I hold the Constitution (Twenty-ninth) Amendment valid.

1259. I now state my conclusions which are as follows:

(1) On the construction placed on Articles 12, 13 and other provisions of Part III and Article 368, Article 13(2) does not place an embargo on Article 368, for amending any of the rights in Part III, and on this view it is unnecessary to decide whether the leading majority judgment in Golaknath’s case is right in finding the power of amendment in the residuary entry 97 of List I of Schedule VII, nor is it called for, having regard to the majority decision therein that the power of amendment is to be found in Article 368 itself.

(2) Twenty-fourth Amendment:

1260. The word ‘amendment’ in Article 368 does not include repeal. Parliament could amend Article 368 and Article 13 and also all the fundamental rights and though the power of amendment is wide, it is not wide enough to totally abrogate or emasculate or damage any of the fundamental rights or the essential elements in the basic structure of the Constitution or of destroying the identity of the Constitution. Within these limits, Parliament can amend every article of the Constitution. Parliament cannot under Article 368 expand its power of amendment so as to confer on itself the power to repeal, abrogate the Constitution or damage, emasculate or destroy any of the fundamental rights or essential elements of the basic structure of the Constitution or of destroying the identity of the Constitution, and on the construction placed by me, the Twenty-fourth Amendment is valid, for it has not changed the nature and scope of the amending power as it existed before the Amendment.

Twenty-fifth Amendment:

(i) SECTION 2 (a) Clause (2) to Article 31 at substituted.-Clause (2) of Article 31 has the same meaning and purpose as that placed by this Court in the several decisions referred to except that the word ‘amount’ has been substituted for the word ‘compensation’, after which the principle of equivalent in value or just equivalent of the value of the property acquired no longer applies. The word ‘amount’ which has no legal concept and, as the amended clause indicates, it means only cash which would be in the currency of the country, and has to be fixed on some principle. Once the Court is satisfied that the challenge on the ground that the amount or the manner of its payment is neither arbitrary or illusory or where the principles upon which it is fixed are found to bear reasonable relationship to the value of the property acquired, the Court cannot go into the question of the adequacy of the amount so fixed or determined on the basis of such principles.

(b) Clause (2B) as added.-On the applicability of Article 19(1)(f) to Clause (2) of Article 31, the word ‘affect’ makes two constructions possible, firstly, that Article 19(1)(f) will not be available at all to an expropriated owner, and this, in other words, means that it totally abrogates the right in such cases, and secondly, Clause (2B) was intended to provide that the law of acquisition or requisition will not be void on the ground that it abridges or affects the right under Article 19(1)(f). The second construction which makes the amendment valid is to be preferred, and that Clause (2B) by the adoption of the doctrine of severability in application is restricted to abridgement and not abrogation, destroying or damaging the right of reasonable procedure in respect of a law of acquisition or requisition for the effective exercise of the right under Article 31(2); for, a reasonable notice, a hearing opportunity to produce material and other evidence, may be necessary to establish that a particular acquisition is not for public purpose and for providing the value of the property and other matters that may be involved in a particular principle adopted in fixing the amount or for showing chat what is being paid is illusory, arbitrary etc. Therefore, in the view taken, and for the reasons set out in this judgment, Section 2 of the Twenty-fifth Amendment is valid.

(ii) SECTION 3 OF THE TWENTY-FIFTH AMENDMENT 1261. New Article 31C is only valid if the words “inconsistent with or takes away or”, the words “Article 14” and the declaration portion “and no law containing a declaration that it is for giving effect to such policy shall be called in question in any court on the ground that it does not give effect to such policy”, are severed, as in my view they are severable.

What remains after severing can be operative and effective on the interpretation given by me as to the applicability of Articles 19 and 31, so as to enable laws made under Article 31C to further the directives enshrined in Article 39(b) & (c). In the result on the construction of Article 31C, after severing the portions indicated above, I hold Section 3 of the Twenty-fifth Amendment valid.

(4) Twentyninth Amendment:

1262. The contention that Articles 31A and 31B are inter-connected is unacceptable and is rejected. The Constitution (Twenty-ninth) Amendment is valid, but whether any of the Acts included thereby in Schedule IX abrogate, emasculate, damage or destroy any of the fundamental rights in Part III or the basic elements or essential features of the Constitution will have to be examined when the validity of those Acts is challenged.

1263. The petitions will now be posted for hearing before the Constitution Bench for disposal in accordance with the above findings. In the circumstances the parties will bear their own costs.

D.G. Palekar, J.

1264. The facts leading to this petition have been stated in judgment delivered by my lord the Chief Justice and it is not therefore necessary to recount the same.

1265. In this petition the Constitutional validity of the Kerala Land Reforms (Amendment) Act, 1969 and the Kerala Land Reforms (Amendment) Act, 1971 has been challenged. As the petitioner apprehended that he would not succeed in the challenge in view of the recently passed Constitution Amendment Acts, he has also challenged the validity of these Acts. They are:

(1) The Constitution 24th Amendment Act, 1971;

(2) The Constitution 26th Amendment Act, 1971 and (3) The Constitution 29th Amendment Act, 1972.

1266. The crucial point involved is whether the Constitution is liable to be amended by the Parliament so as to abridge or take away fundamental rights conferred by Part III of the Constitution.

1267. By the 24th Amendment, some changes have been made in Articles 13 and 368 with the object of bringing them in conformity with the views expressed by a majority of Judges of this Court with regard to the scope and ambit of Articles 13 and 368. In Sankari Prasad Singh v. Union of India [1951] INSC 45; [1952] S.C.R. 89 the Constitutional Bench of five Judges of this Court unanimously held that fundamental rights could be abridged or taken away by ah amendment of the Constitution under Article 368. In the next case of Sajjan Singh v. State of Rajasthan [1964] INSC 246; [1965] (1) S.C.R. 933 a majority of three Judges expressed the view that Sankari Prasad’s case was correctly decided. Two Judges expressed doubts about that view but considered that it was not necessary to dissent from the decision as the point was not squarely before the court In the third case namely Golak Nath v. State of Punjab [1967] INSC 45; [1967] (2) S.C.R. 762 the, view taken in the earlier cases by eight Judges was overruled by a majority of six Judges to five. The majority held that Parliament had no power to amend the Constitution under Article 368 so as to abridge or take away the fundamental rights, one of them (Hidayatullah, J), who delivered a separate judgment, expressing the view that this could not be done even by amending Article 368 with the object of clothing the Parliament with the necessary powers. In this state of affairs the Union Government was obliged to take a definite stand. It would appear that the Union Government and the Parliament agreed with the view taken in Sankari Prasad’s case by the majority in Sajjan Singh’s case and the substantial minority of Judges in Golak Nath’s case. They were out of sympathy with the view adopted by the majority in Golak Nath’s case. Hence the 24th Amendment. That amendment principally sought to clarify what was held to be implicit in Articles 13 and 368 by a majority of Judges of this Court over the years, namely, (1) that nothing in Article 13 applied to an amendment to the Constitution made under Article 368; (2) that Article 368 did not merely lay down the procedure for a Constitutional amendment but also contained the power to amend the Constitution; (3) that the Parliament’s power under Article 368 was a constituent power as distinct from legislative power; (4) that this power to amend included the power to amend by way of addition, variation or repeal of any provision of the Constitution.

1268. After passing the 24th Amendment the other two amendments were passed in accordance with the Constitution as amended by the 24th Amendment.

1269. In his argument before us Mr. Palkhivala, appearing on behalf of the petitioner, supported the majority decision in Golak Nath with supplemental arguments. In any event, he further contended, the power of Parliament to amend the Constitution under Article 368 did not extend to the damaging or destroying what he called the essential features and basic principles of the Constitution and since fundamental rights came in that category, any amendment which damaged or destroyed the core of these rights was impermissible. The argument on behalf of the State of Kerala and the Union of India was that an amendment of the Constitution abridging or taking away fundamental rights was not only permissible after the clarificatory 24th Amendment but also under the unamended Articles 13 and 368, notwithstanding the refinement in the arguments of Mr.

Palkhivak with regard to essential features and basic principles of the Constitution. We are, therefore, obliged to go back to the position before the 24th Amendment and consider whether the majority view in Golak Nath was not correct. A fuller bench of 13 Judges was, therefore, constituted and it will be our task to deal with the crucial question involved. This course cannot be avoided, it is submitted; because if the fundamental rights were unamendable by the Parliament so as to abridge or take them away, Parliament could not increase its power to do so by the device of amending Articles 13 and 368 whether one calls that amendment clarificatory or otherwise. The real question is whether the Constitution had granted Parliament the power to amend the Constitution in that respect, because, if it did not, no amendment of Articles 13 and 368 would invest the Parliament with that power. We have, therefore, to deal with the Constitution as it obtained before the 24th Amendment.

1270. Since fundamental questions with regard to the Constitution have been raised, it will be necessary to make a few prefatory remarks with regard to the Constitution. The Constitution is not an indigenous product. Those who framed it were, as recognised by this Court in The Automobile Transport (Rajasthan) Ltd. v. The State of Rajasthan and Ors. [1963] 1 S.C.R. 491 at p. 539, 540 thoroughly acquainted with the Constitutions and Constitutional problems of the more important countries in the world, especially, the English speaking countries. They knew the Unitary and Federal types of Constitutions and the Parliamentary and Presidential systems of Government. They knew what Constitutions were regarded as “Flexible” Constitutions and what Constitutions were regarded as “rigid” Constitutions. They further knew that in all modern written Constitutions special provision is made for the amendment of the Constitution. Besides, after the Government of India Act, 1935 this country had become better acquainted at first hand, both with the Parliamentary system of Government and the frame of a Federal Constitution with distribution of powers between the centre and in the State. All this knowledge and experience went into the making of our Constitution which is broadly speaking a quasi – Federal Constitution which adopted the Parliamentary System of Government based on adult franchise both at the centre and in the States.

1271. The two words mentioned above ‘flexible’ and ‘rigid’ were first coined by Lord Bryce to describe the English Constitution and the American Constitution respectively.

The words were made popular by Dicey in his Law of the Constitution first published in 1885. Many generations of lawyers, thereafter, who looked upon Dicey as one of the greatest expositors of the law of the Constitution became familar with these words. A ‘flexible’ Constitution is one under which every law of every description (including one relating to the Constitution) can legally be changed with the same ease and in same manner by one and the same body. A ‘rigid’ Constitution is one under which certain laws generally known as Constitutional or fundamental laws cannot be changed in the same manner (as ordinary laws). See ‘Dicey’s Law of the Constitution 10th edition, 1964 p.

127. It will be noted that the emphasis is on the word ‘change’ in denoting the distinction between the two types Constitutions. Lord Birkanhead in delivering the judgment of the judcial Committee of the Privy Council in McCawley v. The King [1920] A.C. 691 used the words ‘uncontrolled’ and ‘controlled’ for the words ‘flexible’ and ‘rigid’ respectively which were current then. He had to examine the type of Constitution Queensland possessed, whether it was a ‘flexible’ Constitution or a ‘rigid’ one in order to decide the point in controversy. He observed at page 703 The first point which requires consideration depends upon the distinction between Constitutions the terms of which may be modified or repealed with no other formality than is necessary in the case of other legislation, and Constitutions which can only be altered with some special formality and in some cases by a specially convened assembly.’ He had to do that because the distinction between the two types of Constitutions was vital to the decision of the controversy before the privy Council. At page 704 he further said ‘Many different terms have been employed in the text-books to distinguish these two contrasted forms of Constitution. Their special qualities may perhaps be exhibited as clearly by oiling the one a ‘controlled’ and the other an ‘uncontrolled’ Constitution as by any other nomenclature’.

Perhaps this was an apology for not using the words ‘rigid’ and ‘flexible’ which were current when he delivered the judgment. In fact, sic John Simon in the course of his argument in that case had used the words ‘rigid’ and ‘flexible’ and he had specifically referred to ‘Dicey’s Law of the Constitution’ Strong in his text-book on Modern Political Constitution, Seventh revised edition, 1968 reprinted in 1970 says at p. 153 “The sole criterion of a rigid Constitution is whether the Constituent Assembly which drew up the Constitution left any special directions as to how it was to be changed. If in the Constitution there are no such directions, or if the directions, explicitly leave the Legislature a free hand, then the Constitution is ‘flexible’.

1272. The above short disquisition into the nature of Constitutions was necessary in order to show that when our Constitution was framed in 1949 the framers of the Constitution knew that there were two constrasted types of democratic Constitutions in vogue in the world-one the ‘flexible’ type which could be amended by the ordinary procedure governing the making of a law and the other the ‘rigid’ type which cannot be so amended but required a special procedure for its amendment. Which one of these did our framers adopt the ‘flexible’ or the ‘rigid’? On an answer to the above question some important consequences will follow which are relevant to our enquiry.

1273. Our Constitution provides for a Legislature at the Centre and in the States. At the centre it is the Parliament consisting of the Lok Sabha and the Rajya Sabha. In the States the Legislature consists of the State Assembly and, in some of them, of an Upper Chamber known as the Legislative Council. Legislative power is distributed between the centre and the States, Parliament having the power to make laws with regard to subject matters contained in List I of the Seventh Schedule and the State Legislatures with regard to those in List II. There is also List III enumerating matters in respect of which both the Parliament and the State Legislatures have concurrent powers to make laws. This power to make laws is given to these bodies by Articles 245 to 248 and the law making procedure for the Parliament is contained in Articles 107 to 122 and for the State Legislatures in Articles 196 to 213. The three Lists in the Seventh Schedule no where mention the ‘Amendment of the Constitution’ as one of the subject matters of legislation for either the Parliament or the State Legislatures. On the other hand, after dealing with all important matters of permanent interest to the Constitution in the first XIX parts covering 367 Articles, the Constitution makes special provision for the ‘Amendment of the Constitution’ in Part XX in one single Article, namely, Article 368. A special procedure is provided for amendment which is not the same as the one provided for making ordinary laws under Articles 245 to 248. The principle features of the legislative procedure at the Centre are that the law must be passed by both Houses of Parliament by a majority of the members present and voting in the House, and in case of an impasee between the two Houses of Parliament, by a majority vote at a joint sitting. All that is necessary is that there should be a coram which we understand is 10% of the strength of the House and if such a coram is available the two houses separately or at a joint meeting, as the case may be, may make the law in accordance with its legislative procedure laid down in Articles 107 to 122. The point to be specially noted is that all ordinary laws which the Parliament makes in accordance with Articles 245 to 248 must be made in accordance with this legislative procedure and no other. Under Articles 368 however, a different and special procedure is provided for amending the Constitution. A Bill has to be introduced in either House of Parliament and must be passed by each House separately by a special majority. It should be passed not only by 2/3rd majority of the members present and voting but also by a majority of the total strength of the House. No joint sitting of the two Houses is permissible. In the case of certain provisions of the Constitution which directly or indirectly affect interstate relations, the proposed amendment is required to be ratified by the Legislatures which is not a legislative process of not less than one half of the States before the Bill proposing the amendment is presented to the President for his assent. The procedure is special in the sense that it is different and more exacting or restrictive than the one by which ordinary laws are made by Parliament. Secondly in certain matters the State Legislatures are involved in the process of making the amendment. Such partnership between the Parliament and the State Legislatures in making their own laws by the ordinary procedure is not recognised by the Constitution. It follows from the special provision made in Article 368 for the amendment of the Constitution that our Constitution is a ‘rigid’ or ‘controlled’ Constitution because the Constituent Assembly has “left a special direction as to how the Constitution is to be changed.” In view of Article 368, when the special procedure is successfully followed, the proposed amendment automatically becomes a part of the Constitution or, in other words, it writes itself into the Constitution.

1274. The above discussion will show that the two separate procedures one for law making and the other for amending the Constitution were not just an accident of drafting.

The two procedures have been delibarately provided to conform with well-know Constitutional practices which make such separate provisions to highlight the different procedures one commonly known as the legislative procedure and the other the constituent procedure. The word ‘constituent’ is so well-known in modern Political Constitutions that it is defined in the dictionaries as ‘able to frame or alter a Constitution.’ And the power to frame or alter the Constitution is known as constituent power. See The Concise Oxford Dictionary.

1275. Where then in our Constitution lie the legislative power and the constituent power? The legislative power is given specifically by Articles 245 to 248, subject to the Constitution, and these Articles are found under the heading ‘Distribution of legislative powers’. That alone is enough to show that these articles do not deal with the constituent power. The point is important because the leading majority judgment in Golak Nath’s case proceeds on the footing that the power lies in Article 248 read with the residuary entry 97 in List I of the Seventh Schedule. That finding was basic to the decision because unless an amendment of the Constitution is equated with a law made by Parliament under one or the other of the entries in List I of the Seventh Schedule it was not easy to invoke the bar of Article 13(2). Mr. Palkhivala says that he is indifferent as to whether the power is found in Article 248 or elsewhere. But that does not conclude the question because if we agree with the view that it falls in Article 248 the decision that an amendment abridging or taking away fundamental rights, being a law under Article 248, would be barred by Article 13(2) would be unassailable.

1276. In Golak Nath’s case Subha Rao, C.J. who spoke for himself and his four learned colleagues held that the power to amend the Constitution was not found in Article 368 but in Article 248 read with the residuancy entry 97 of List I of the Seventh Schedule.

The five learned Judges who were in a minority held that the power is in Article 368, Hidayatullah, J. on the other hand, held that Article 368 did not give the power to any particular person or persons and that if the named authorities acted according to the law of Article, the result of amendment was achieved. And if the procedure could be deemed to be a power at all it was a legislative power, sui generis, to be found outside the three lists in Schedule Seven of the Constitution. In other words, six learned Judges did not find the power in the residuary entry 97 of List I, while five found it there. We have, therefore, to see whether the view of Subba Rao, C.J. and his four colleagues who held that the power lay in Article 248 read with the residuary entry 97 is correct. In my view, with respect, it is not.

1277. Article 368 is one single article in Part XX entitled. The amendment of the Constitution.’ It is a special topic dealt with by that Part. In other articles like Articles 4,169, para 7 of Schedule V and para 31 of Schedule VI a power is granted to the Parliament to amend specific provisions ‘by law’ i.e., by adopting the ordinary procedure of legislation, though it altered certain provisions of the Constitution. The alterations are ‘a law’ made by the Parliament and, therefore, liable to be struck down, unless specifically saved, in case of inconsistency with the provisions of the Constitution. Secondly in every such case a provision is deliberately added explaining that the amendment so made by law is not to be deemed an amendment of the Constitution for the purpose of Article 368.

The warning was necessary to emphasise that an amendment of the Constitution in accordance with the procedure laid down in Article 368 was of a special quality-a quality different from amendments made ‘by law’ by the Parliament. The special quality flowed from the fact that the Parliament and the States which were to participate in the process performed not their ordinary legislative function but a special function known in all Federal or quasi-federal or controlled Constitutions as a ‘constituent’ function. The difference between the ordinary function of making law and the function of amending the Constitution loses its significance in the case of a sovereign body like the British Parliament or a Parliament like that of Newzealand which has a written Constitution of the Unitary type. These bodies can amend a Constitutional law with the same ease with which they can make an ordinary law. The reason is that their Constitutions are ‘flexible’ Constitutions. But in countries which have a written Constitution which is a ‘rigid’ or ‘controlled’ Constitution the Constitution is liable to be amended only by the special procedure, and the body or bodies which are entrusted with the amendment of the Constitution are regarded as exercising constituent power to distinguish it from the power they exercise in making ordinary legislation under the Constitution. So far as we are concerned, our Constitution gives specific powers of ordinary legislation to the Parliament and the State legislatures in respect of well demarcated subjects. But when it comes to the amendment of the Constitution, a special procedure has been prescribed in Article 368. Since the result of following the special procedure under the Article is the amendment of the Constitution the process which brings about the result is known as the exercise of constituent power by the bodies associated in the task of amending the Constitution. It is, therefore, obvious, that when the Parliament and the State Legislatures function in accordance with Article 368 with a view to amend the Constitution, they exercise constituent power as distinct from their ordinary legislative power under Articles 245 to 248. Article 368 is not entirely procedural. Undoubtedly part of it is procedural.

But there is a clear mandate that on the procedure being followed the ‘proposed amendment shall become part of the Constitution, which is the substantive part of Article 368. Therefore, the peculiar or special power to amend the Constitution is to be sought in Article 368 only and not elsewhere.

1278. Then again if the constituent assembly had regarded the power to amend the Constitution as no better than ordinary legislative power the framers of the Constitution who were well-aware of the necessity to provide for the power to amend the Constitution would not have failed to add a specific entry to that effect in one or the other of the lists in the Seventh Schedule instead of leaving it to be found in a residuary entry. The very fact that the framers omitted to include it specifically in the list but provided for it in a special setting in Part XX of the Constitution is eloquent of the fact that the power was not to be sought in the residuary entry or the residuary Article 248. In this connection it may be recalled that in the Draft Constitution Article 304 had a separate provision in Clause 2. Clause 1 of that article fairly corresponds with our present Article 368. In Clause 2 power was given to the States to propose amendments in certain matters and Parliament had to ratify such amendments. There was thus a reverse process of amendment. There was no residuary power in the States and the amendment of the Constitution was not a specific subject of legislative power in draft List II. This goes to show that in the Draft Constitution, in all but two matters, the proposal for amendment was to be made by the Parliament and in two specified matters by the State Legislatures.

If the power for the latter two subjects was to be found in Clause 2 of Article 304 of the Draft Constitution it is only reasonable to hold that the power of Parliament to amend the rest of the Constitution was to be found in Article 304(1) which corresponds to the present Article 368.

1279. Moreover the actual wording of Article 245 which along with Articles 246 to 248 comes under the topic “Distribution of legislative powers” is important. Article 245 provides that Parliament may make laws for the whole or any part of India and the legislature of a State may make laws for the whole or any part of the State. Thus Article 245 confers the power to make laws on Parliament and the Legislatures of the State for and within the territory allocated to them. Having conferred the power, Articles 246 to 248 distribute the subject matters of legislation in respect of which the Parliament and the State Legislatures have power to make the laws referred to in Article 245. But there is an important limitation on this power in the governing words with which Article 245 commences. It is that the power was subject to the provisions of the Constitution thereby lifting the Constitution above the ‘laws’. That would mean that the Parliament and the State Legislatures may, indeed make laws in respect of the areas and subject matters indicated, but the exercise must be “subject to the provisions of the Constitution” which means that the power to make laws does not extend to making a law which contravenes or is inconsistent with any provision of the Constitution which is the supreme law of the land. A law is inconsistent with the provision of the Constitution when, being given effect to, it impairs or nullifies the provision of the Constitution. Now no simpler way of impairing or nullifying the Constitution can be conceived than by amending the text of the provision of the Constitution. Therefore, since a law amending the text of a Constitutional provision would necessarily entail impairing or nullifying the Constitutional provision it would contravene or be inconsistent with the provision of the Constitution and hence would be impermissible and invalid under the governing words “subject to the provisions of the Constitution” in Article 245. It follows that a law amending the Constitution if made on the assumption that it falls within the residuary powers of the Parliament under Article 248 read with entry 97 of List I would always be invalid. Then again a law made under Articles 245 to 248 must, in its making, conform with the ordinary legislative procedure for making it laid down for the Parliament in Part V, Chapter II and for the State Legislature in Part VI, Chapter III of the Constitution and, no other. To say that the power to make law lies in Article 245 and the procedure to make it in Article 368 is to ignore not only this compulsion, but also the fundamental Constitutional practice followed in our Constitution, as in most modern controlled Constitutions, prescribing special procedure for the amendment of the Constitution which is different from the procedure laid down for making ordinary laws. The conclusion, therefore, is that the power of amendment cannot be discovered in Article 248 read with the residuary entry. The argument that Article 368 does not speak of the power to amend but only of the procedure to amend in pursuance of the power found elsewhere is clearly untenable. The true position is that the alchemy of the special procedure prescribed in Article 368 produces the constituent power which transports the proposed amendment into the Constitution and gives it equal status with the other parts of the Constitution.

1280. Moreover, if an amendment of the Constitution is a law made under Article 248 read with entry 97 List I strange results will follow. If the view taken in Golak Nath’s case is correct, such ‘a law being repugnant to Article 13(2) will be expressly invalidated so far as Part III of the Constitution is concerned. And such a law amending any other article of the Constitution will also be invalid by reason of the governing words “subject to the provisions of the Constitution” by which Article 245 commences. In that event no article of the Constitution can be amended. On the other hand, if the law amending an article of the Constitution is deemed to be not repugnant to the article which is amended, then every article can be amended including those embodying the fundamental rights without attracting the bar of Article 13(2) which can only come in on a repugnancy. On the argument, therefore, that an amendment is a law made under Article 248 the whole of the Constitution becomes unamendable, and on the argument that such a law never becomes repugnant to the article amended the whole of the Constitution becomes amendable, in which case, we are unable to give any determinate value to Article 13(2).

Instead of following this complicated way of tracing the power in Article 248 read with the residuary entry 97 of List I it would be correct to find it in Article 368 because that is a special article designed for the purposes of the amendment of the Constitution which is also the subject heading of Part XX. In my opinion, therefore, the power and the procedure to amend the Constitution are in Article 368.

1281. The next question which requires to be examined is the nature of this constituent power, specially, in the case of ‘controlled’ or ‘rigid’ Constitutions. A student of Modern Political Constitutions will find that the methods of modern Constitutional amendment are (1) by the ordinary legislature but under certain restrictions; (2) by the people through a referendum; (3) by a majority of all the unions of a Federal State; (4) by special convention; and (5) by a combination of two or more of the above methods which are mentioned in order of increasing rigidity as to the method. Where the power of amending the Constitution is given to the legislature by the Constituent Assembly the Legislature working under restrictions assumes a special position. Strong in the book, already referred to, observes at page 152 “The constituent assembly, knowing that it will disperse and leave the actual business of legislation to another body, attempts to bring into the Constitution that it promulgates as many guides to future action as possible. If it wishes, as it generally does, to take out of the hands of the ordinary legislature the power to alter the Constitution by its own act, and since it cannot possibly foresee all eventualities, it must arrange for some method of amendment. In short, it attempts to arrange for the recreation of a constituent assembly whenever such matters are in future to be considered, even though that assembly be nothing more than the ordinary legislature acting under certain restrictions.

(emphasis supplied) 1282. Authorities are not wanting who declare that such amending power is sovereign constituent power. Orfield in his book, the Amending of the Federal Constitution (1942) page 155 (1971 Edn.) says that in America the amending body is sovereign in law and in fact Herman Finer in his book The Theory and Practice of Modern Government, fourth edition 1961 reprinted in 1965, pages 156/157 says “Supremacy is shown and maintained chiefly in the amending process…. Too difficult a process, in short, ruins the ultimate purpose of the amending clause…. The amending clause is so fundamental to a Constitution that I am tempted to call it the Constitution itself.” Geoffery Marshall in his Constitutional Theory (1971) p. 36 says “there will in most Constitutional systems, be an amending process and some “collection” of persons, possibly complex, in whom sovereign authority to alter any legal rule inheres….Constitutions unamendable in all or some respects are non-standard cases and a sovereign entity whether (as in Britain) a simple legislative majority, or a complex specially convened majority can be discovered and labelled “sovereign” in almost all systems.” Wade in his Introduction to Dicey’s Law of the Constitution, 10th edition says as follows at page 36 “Federal government is a system of government which embodies a division of powers between a central and a number of regional authorities. Each of these “in its own sphere is co-ordinate with the others and independent of them.” This involves a division of plenary powers and such a division is a negation of sovereignty. Yet somewhere lies the power to change this division. Wherever that power rests, there is to be found legal sovereignty.” Having regard to this view of the jurists, it was not surprising that in Sankari Prasad’s case Patanjali Shastri, J., speaking for the court, described the power to amend under Article 368 as “soverign constitutent power” (p. 106). By describing the power as “sovereign”

constituent power it is not the intention here to declare, if somebody is allergic to the idea, that legal sovereignty lies in this body or that. It is not necessary to do so for our immediate purpose. The word ‘sovereign’ is used as a convenient qualitative description of the power to highlight its superiority over other powers conferred under the Constitution. For example, legislative power is subject to the Constitution but the power to amend is not. Legislative activity can operate only under the Constitution but the power of amendment operates over the Constitution. The word ‘sovereign’, therefore, may, for our purpose, simply stand as a description of a power which is superior to every one of the other powers granted to its instrumentalities by the Constitution.

1283. The amplitude and effectiveness of the constituent power is not impaired because it is exercised by this or that representative body or by the people in a referendum. One cannot say that the power is less when exercised by the ordinary legislature as required by the Constitution or more when it is exercised-say by a special convention. This point is relevant because it was contended that our Parliament is a constituted body-“a creature of the Constitution” and cannot exercise the power of amending the Constitution to the same extent that a constituent assembly specially convened for the purpose may do. It was urged that the sovereignty still continues with the people and while it is open to the people through a convention or a constituent assembly to make any amendments to the Constitution in any manner it liked, there were limitations on the power of an ordinary Parliament-‘a constituted body’, which precluded it from making the amendments which damaged or destroyed the essential features and elements of the Constitution. We shall deal with the latter argument in its proper place. But for the present we are concerned to see whether the power to amend becomes more or less in content according to the nature of the body which makes the amendment. In my view it does not. Because as explained by Strong in the passage already quoted “In short it (i.e. the constituent assembly which framed the Constitution) attempts to arrange for the recreation of a constituent assembly whenever such matters are in future to be considered even though that assembly be nothing more than the ordinary legislature acting under certain restrictions.” Only the methods of making amendments are less rigid or more rigid according to the historical or political background of the country for which the Constitution is framed. For example Article V of the American Constitution divides the procedure for formal amendment into two parts-proposal and ratification. Amendments may be proposed in two ways; (1) by two-thirds vote of both Houses of Congress; (2) by national Constitutional conventions called by Congress upon application of two-thirds of the State Legislatures. Amendments may be ratified by two methods, (1) by the legislatures of three-fourths of the States; (2) by special conventions in three-fourths of the States. Congress has the sole power to determine which method of ratification is to be used. It may direct that the ratification may be by the state legislatures or by special conventions.

1284. One thing which stands out so far as Article V is concerned is that referendum as a process of Constitutional amendment has been wholly excluded. In fact it was held by the Supreme Court of America in Dodge v. Woolsey (1855) 18 How 331 at 348 “the Constitution is supreme over the people of the United States, aggregately and in their separate sovereignties, because they have excluded themselves from any direct or immediate agency in making amendments to it, and have directed that amendments should be made representatively for them.” In other words, the people, having entrusted the power to amend the Constitution to the bodies mentioned in Article V, had completely withdrawn themselves from the amending process. Out of the two combinations of the bodies referred to in Article V-one is a combination of the Congress and the State Legislatures and between them, though they are constituted bodies, they can qualitatively amend the Constitution to the same extent as if the proposal made by the Congress was to be ratified by convention by 3/4th number of States. As a matter of fact on the proposal made by the Congress all the amendments of the U.S. Constitution, with the exception of the twenty first which repealed the 18th amendment, have been ratified by State legislatures. Such an amendment accomplished by the participation of the Congress and the State Legislatures has not been held by the U.S. Supreme Court as being any less effective because the Congress had not obtained the ratification from a convention of the States. The question arose in United States v. Sprague. [1931] USSC 53; 282 U.S. 716 That case was on the 28th (Prohibition) Amendment. The amendment became part of the Constitution on a proposal by the Congress and ratification by the State legislatures.

Objection was raised to the validity of the amendment on the ground that since the amendment affected the personal liberty of the subject and under Article X the people had still retained rights which had not been surrendered to the Federal Constitution, the ratification ought to have been by the representatives of the people at a special convention and not by the State legislatures. That objection was rejected on the ground that the Congress alone had the choice as to whether the State legislatures or the conventions had to ratify the amendment. Conversely, in Hawke v, Smith [1920] USSC 127; 253 U.S. 221 which also related to the 18th amendment it was held that the State of Ohio could not provide for the ratification of the 18th amendment by popular referendum since such a procedure altered the plain language of Article V which provides for ratification by State legislatures rather than by direct action of the people. It will be seen from this case that the State legislature for Ohio, instead of deciding on the ratification itself as it was bound to do under Article V, decided to obtain the opinion of the people by a referendum but such a procedure was held to be illegal because it did not find a place in Article V. This establishes that an amendment of the Constitution must be made strictly in accordance with the method laid down in the Constitution and any departure from it even for the purpose of ascertaining the true wishes of the people on the question would be inadmissible. An amendment of the Constitution must be made only in accordance with the procedure laid down in the Constitution and whatever individuals and bodies may think that it had better be made by a representative constituent assembly or a convention or the like is of really no relevance.

1285. Under Article 368 the Parliament is the Principal body for amending the Constitution except in cases referred to in the proviso. Parliament need not be associated with the State legislatures in making an amendment of the Constitution in cases excepted from the proviso. It cannot be lost sight of that Parliament in a very large way represents the will of the people. Parliament consists of two Houses-the Lok Sabha and the Rajya Sabha. The Lok Sabha is elected for five years on the basis of adult franchise. The Rajya Sabha is a permanent body-members of which retire by rotation. The Rajya Sabha consists of members elected by the State legislatures who are themselves elected to those legislatures on the basis of adult franchise. Then again there is a striking difference between the position occupied by the Congress in relation to the President in United States and the position of the Executive in relation to the Parliament and the State legislatures in India. In America the President is directly elected by the people for a term and is the Executive head of the Federal Government. The Congress may make laws but the President is not responsible to the Congress. In India, however, in our Parliamentary system of democracy, as in Great Britain, the Executive is entirely responsible to the legislature. The Congress in U.S.A. will not be held responsible by the people for what the President had done in his Executive capacity. The same is true in respect of State legislatures in America. In India people will hold the Parliament responsible for any executive action taken by the Cabinet. While in the context of a Constitutional amendment it is facile to decry the position of Parliament as a constituent body, we cannot ignore the fact that in both Great Britain and New-Zealand-one with an unwritten Constitution and the other with a written Constitution-governed by Parliamentary democracy, the Constitution could be changed by an ordinary majority.

1286. Why the power to amend the Constitution was given in the main to Parliament is not fully clear. But two things are clear. One is that as in America the people who gave us the Constitution completely withdrew themselves from the process of amendment.

Secondly, we have the word of Dr. Ambedkar-one of the principal framers of our Constitution that the alternative methods of referendum or convention had been considered and definitely rejected. See Constituent Assembly Debates, Vol. VII page 43.

They decided to give the power to Parliament, and Dr. Ambedkar has gone on record as saying that the amendment of the Constitution was deliberately made as easy as was reasonably possible by prescribing the method of Article 368. The Constituent Assembly Debates show that the chief controversy was as to the degree of flexibility which should be introduced into the Constitution. There may have been several historical reasons for the constituent assembly’s preference for Parliament. Our country is a vast continent with a very large population. The level of literacy is low and the people are divided by language, castes and communities not all pulling in the same direction. On account of wide-spread illiteracy, the capacity to understand political issues and to rise above local and parochial interests is limited. A national perspective had yet to be assiduously fostered. It was, therefore, inevitable that a body which represented All-India leadership at the centre should be the choice. Whatever the reasons, the Constituent Assembly entrusted the power of amendment to the Parliament and whatever others may think about a possible better way, that was not the way which the constituent assembly commanded. The people themselves having withdrawn from the process of amendment and entrusted the task to the Parliament instead of to any other representative body, it is obvious that the power of the authorities designated by the Constitution for amending the Constitution must be co-extensive with the power of a convention or a constituent assembly, had that course been permitted by the Constitution.

1287. We have already shown that constituent power is qualitatively superior to legislative power. Speaking about the legislative competence of the Canadian Parliament, Viscount Sankey L.C. speaking for the Judicial Committee of the Privy Council observed in British Coal Corporation v. The King [1935] A.C. 500 at p. 518 “Indeed, in interpreting a constituent or organic statute such as the Act (British North America Act) that construction most beneficial to the widest possible amplitude of its powers must be adopted. This principle has been again clearly laid down by the Judicial Committee in Edwards v. Attorney-General for Canada [1929] UKPC 86; [1930] A.C. 124, 136. “Their Lordships do not conceive it to be the duty of this Board – it is certainly not their desire – to cut down the provisions of the Act by a narrow and technical construction, but rather to give it a large and liberal interpretation so that the Dominion to a great extent, but within certain fixed limits, may be mistress in her own house, as the Provinces to a great extent, but within certain fixed limits, are mistresses in theirs”. If that is the measure of legislative power the amplitude of the power to amend a Constitution cannot be less.

1288. The width of the amending power can be determined from still another point of view. The Attorney-General has given to us extracts from nearly seventy one modem Constitutions of the world and more than fifty of them show that those Constitutions have provided for their amendment. They have used the word ‘amend’, ‘revise’, or ‘alter’, as the case may be, and some of them have also used other variations of those words by showing that the Constitutional provisions may be changed in accordance with some special procedures laid down. Some have made the whole of the Constitution amendable some others have made some provisions unamendable; and two Constitutions – that of Somalia and West Germany have made provisions relating to Human Rights unamendable. In some of the Constitutions a few provisions are made partially amendable and other provisions only under special restrictions. But all have given what is commonly known as the ‘Amending power’ to be exercised in circumstances of more or less rigidity. The methods or processes may be more rigid or less rigid-but the power is the same, namely, the amending power.

1289. The raison d’etre for making provisions for the amendment of the Constitution is the need for orderly change. Indeed no Constitution is safe against violent extra- Constitutional upheavals. But the object of making such a provision in a Constitution is to discourage such upheavals and provide for orderly change in accordance with the Constitution. On this all the text-books and authorities are unanimous. Those who frame a Constitution naturally want it to endure but, however gifted they may be, they may not be able to project into the future, when, owing to internal or external pressures or the social, economic and political changes in the country, alterations would be necessary in the Constitutional instrument responding all the time to the will of the people in changed conditions. Only thus an orderly change is ensured. If such a change of Constitution is not made possible, there is great danger of the Constitution being overtaken by forces which could not be controlled by the instruments of power created under the Constitution.

Wide-spread popular revolt directed against the extreme rigidity of a Constitution is triggered not by minor issues but by major issues. People revolt not because the so-called ‘unessential’ parts of a Constitution are not changed but because the ‘essential’ parts are not changed. The essential parts are regarded as a stumbling block in their progress to reform. It is, therefore, evident that if for any reason, whether it is the extreme rigidity of a Constitution or the disinclination of those who are in power to introduce change by amendment, the essential parts looked upon with distrust by the people are not amended, the Constitution has hardly a chance to survive against the will of the people. If the Constitution is to endure it must necessarily respond to the will of the people by incorporating changes sought by the people. The survival of the American Constitution is generally attributed not so much to the amending Article V of the Constitution but to its vagueness which was exploited by the great judges of the Supreme Court of America who by their rulings adapted the Constitution to the changing conditions. Legislative enactments, custom and usage also played a part. If the Constitution were to merely depend upon Constitutional amendments there are many who believe that the Constitution would not have survived. The reason was the extreme rigidity of the process of amendment. But framers of modern Constitutions as of India learning from experience of other countries have endeavoured to make their Constitution as precise and as detailed as possible so that one need not depend upon judicial interpretation to make it survive.

Correspondingly they have made it more flexible so that it is amenable to amendment whenever a change in the Constitution is necessary.

1290. A good deal of unnecessary dust was raised over the question whether the amendment of the Constitution would extend to the repeal of the Constitution. That is an interesting subject for speculation by purists and theoretical jurists, but politicians who frame a Constitution for the practical purposes of government do not generally concern themselves with such speculations. The pre-eminent object in framing a Constitution is orderly government. Knowing that no Constitution, however, good it may seem to be when it was framed, would be able to bear the strain of unforeseen developments, the framers wisely provide for the alteration of the Constitution in the interest of orderly change. Between these two co-ordinates, namely, the need for orderly government and the demands for orderly change, both in accordance with the Constitution, the makers of the Constitution provide for its amendment to the widest possible limit. If any provision requires amendment by way of addition, alteration or repeal, the change would be entirely permissible. If one were to ask the makers of the Constitution the rhetorical question whether they contemplated the repeal of the Constitution, the answer would be, in all probability, in the negative. They did not toil on the Constitution for years in order that it may be repealed by the agencies to whom the amendment of the Constitution is entrusted. They wished it to be permanent, if not eternal, knowing that as time moved, it may continue in utility incorporating all required changes made in an orderly manner.

Declaring their faith in the Constitution they will express their confidence that the Constitution which they had framed with the knowledge of their own people and their history would be able to weather all storms when it is exposed to orderly changes by the process of amendment To them the whole-sale repeal would be unthinkable; but not necessary changes in response to the demands of time and circumstance which, in the opinion of the then amending authorities, the current Constitutional instrument would be able to absorb. This is sufficient for the courts to go on as it was sufficient for the framers of the Constitution. Quibbling on the meaning of the word ‘amendment’ as to whether it also involved repeal of the whole Constitution is an irrelevant and unprofitable exercise.

Luckily for us besides the word ‘amendment’ in Article 368 we have also the uncomplicated word ‘change’ in that article and thus the intention of the framers of the Constitution is sufficiently known. Then again the expression ‘amendment of the Constitution’ is not a coinage of the framers of our Constitution. That is an expression well-known in modern Constitutions and it is commonly accepted as standing for the alteration, variation or change in its provisions.

1291. Whichever way one looks at the amending power in a Constitution there can be hardly any doubt that the exercise of that power must correspond with the amplitude of the power unless there are express or necessarily implied limitations on the exercise of that power. We shall deal with the question of express and implied limitations a little later. But having regard to the generality of the principle already discussed the meaning of the word ‘amendment of the Constitution’ cannot be less than ‘amendment by way of addition, variation or repeal of any provision of the Constitution” which is the clarification of that expression accepted by the Constitutional 24th Amendment.

1292. We shall now see if there are express or implied limitations in Article 368 itself.

Article 368 is found in Part XX of the Constitution which deals with only one subject, namely, the Amendment of the Constitution. The article provides that when the special procedure directed by it is successfully followed the Constitution stands amended in terms of the proposal for amendment made in the Bill. Whatever provision of the Constitution may be sought to be amended, the amendment is an Amendment of the Constitution. The range is the whole of this Constitution which means all the provisions of the Constitution. No part of the Constitution is expressly excepted from amendment.

Part XX and Article 368 stand in supreme isolation, after the permanent provisions of the Constitution are exhausted in the previous XIX parts. The power to amend is not made expressly subject to any other provision of the Constitution. There are no governing words like “subject to the Constitution” or this or that part of the Constitution. If the framers of the Constitution had thought it necessary to exclude any part or provision of the Constitution from amendment, they would have done so in this part only as was done in the American Constitution. Article V of that Constitution, which was undoubtedly consulted before drafting Article 368, made two specific exceptions. The language structure of Article V has a close resemblance to the language structure of our Article 368. Therefore, if any part of the Constitution was intended to be excluded from the operation of the power to amend it would have normally found a place in or below Article 368. As a matter of fact, in the draft Constitution below Article 304, which corresponds to the present Article 368, there was Article 305 which excluded certain provisions from amendment, but later on Article 305 itself was deleted. Even Article 368 itself was not safe from amendment because the proviso to Article 368 shows that the provisions of the article could be changed. Then again we find that when the people through the constituent assembly granted the power to amend, they made no reservations in favour of the people. The people completely withdrew from the process of amendment.

In other words, the grant of power was without reservation. Another thing which is to be noted is that when the Constituent Assembly directed that amendments of the Constitution must be made by a prescribed method, they necessarily excluded every other method of amending the Constitution. As long as the article stood in its present form the Parliament could not possibly introduce its own procedure to amend the Constitution by calling a constituent assembly, a convention or the like. Altogether, it will be seen that the grant of power under Article 368 is plenary, unqualified and without any limitations, except as to the special procedure to be followed.

1293. The character of an amendment which can be made in a Constitution does not depend on the flexibility or rigidity of a Constitution. Once the rigidity of the restrictive procedure is overcome, the Constitution can be amended to the same degree as a flexible Constitution. So far as a flexible Constitution like that of Great Britain is concerned, we know there are no limits to what the Parliament can do by way of amendment. It can, as pointed out by Dicey, repeal the Act of Union of Scotland by appropriate provisions even in a Dentist’s Act. (Law of the Constitution page 145). We know that by the statute of Westminster the British Parliament removed most of the Imperial fetters from the self governing colonies and by the Independence of India Act, 1947 surrendered its Indian Empire. Recently the British Parliament invited inroads on its sovereignty by joining the Common Market. Similarly, as we have seen in McCawley’s case, referred to earlier, the legislature of queensland, whose Constitution was a flexible Constitution, was held competent to amend its Constitutional provisions with regard to the tenure of office of the Judges of the Supreme Court by a subsequent Act passed in 1916 on the subject of Industrial Arbitration. To the objection that so important a provision of the Constitution was not permissible to be amended indirectly by a law which dealt with Industrial arbitration, Lord Birkenhead made the reply at page 713. “Still less is the Board prepared to assent to the argument, at one time pressed upon it, that distinctions may be drawn between different matters dealt with by the Act, so that it becomes legitimate to say of one section: “This section is fundamental or organic; it can only be altered in such and such a manner”; and of another: “This section is not of such a kind; it may consequently be altered with as little ceremony as any other statutory provision.” Their Lordships therefore fully concur in the reasonableness of the observations made by Isaacs and Rich JJ that, in the absence of any indication to the contrary, no such character can be attributed to one section of the Act which is not conceded to all; and that if Sections 15 and 16 (relating to the tenure of office of the Judges) are to be construed as the respondents desire, the same character must be conceded to Section 56, which provides that in proceedings for printing any extract from a paper it may be shown that such extract was bona fide made”. This only emphasizes that all provisions in a Constitution must be conceded the same character and it is not possible to say that one is more important and the other less important. When a legislature has the necessary power to amend, it can amend an important Constitutional provision as unceremoniously as it can amend an unimportant provision of the Constitution. Dicey observes in his Law of the Constitution, 10th edition p. 127: “The “flexibility” of our Constitution in the right of the Crown and the two Houses to modify or repeal any law whatever; they can alter the succession to the Crown or repeal the Acts of Union in the same manner in which they can pass an Act enabling a company to make a new railway from Oxford to London.

1294. As already pointed out what distinguishes a ‘rigid’ Constitution from a ‘flexible’ Constitution is that it requries a special procedure for its amendment. It cannot be legally changed with the same case and in the same manner as ordinary laws. But if the rigid procedure is successfully followed, the power to amend operates equally on all provisions of the Constitution without distincition. Indeed, rigid Constitutions may safeguard certain provisions from amendment even by the special procedure. But where no such provision is protected the power of amendment is as wide as that of a Parliament with a flexible Constitution. Rigidity of procedure in the matter of amendment is the only point of primary distinction between a ‘rigid’ and ‘flexible’ Constitution and when this rigidity is overcome by following the special procedure, the power of amendment is not inhibited by the fact that a Constitutional provisions is either important or unimportant. The amending power operates on all provisions as effectively as it does in a flexible Constitution. If the nature of the provision is so important that the Constitution itself provides against its amendment the amending power will have to inspect the provision.

But if it is not so protected, every provision, important or otherwise, can be amended by the special procedure provided. In that respect the fact that the Constitution is a ‘rigid’ Constitution does not place any additional restraint.

1295. We have already referred to the principle underlying the Amending provision in a written Constitution. In some Constitutions, the special procedure is very ‘rigid’ as in the American Constitution. In others, especially in more modern Constitutions, having regard to the disadvantages of providing too rigid and restrictive procedures, amending procedures have been made more and more flexible. Our Constitution which learnt from the experience of other similar Constitutions made the amending procedure as flexible as was reasonably possible. There are several articles in the Constitution which permit the Parliament to make laws which are of a Constitutional character. There are some other articles which permit amendments to certain other specified provisions of the Constitution by the ordinary legislative procedure. For the rest there is Article 368 which provides a much more flexible procedure than does the American Constitution. The following passages from the book ‘Political Science and Comparative Constitutional Law, Vol. I’ written by the great jurist John W. Burgess will show both the rationale for including an amendment clause in a Constitution and the need of making the amending procedure as less rigid as possible. At page 137 he says “A complete Constitution may be said to consist of three fundamental parts. The first is the organisation of the state for the accomplishment of future changes in the Constitution. This is usually called the amending clause, and the power which it describes and regulates is called the amending power. This is the most important part of a Constitution. Upon its existence and truthfulness, i.e. its correspondence with real and natural conditions, depends the question as to whether the state shall develop with peaceable continuity or shall suffer alterations of stagnation, retrogression and revolution. A Constitution, which may be imperfect and erroneous is its other parts, can be easily supplemented and corrected, if only the state be truthfully organised in the Constitution; but if this be not accomplished, error will accumulate until nothing short of revolution can save the life of the state”. Than at pages 150/151 commenting on the disadvantages of the amending procedure of the American Constitution he remarks “When I reflect that, while our natural conditions and relations have been requiring a gradual strengthening and extension of the powers of the Central Government, not a single step has been taken in this direction through the process of amendment prescribed in that article, except as the result of civil war, I am bound to conclude that the organization of the sovereign power within the Constitution has failed to accomplish the purpose for which it was constructed…. But I do say this that when a state must have recourse to war to solve the internal questions of its own politics, this is indisputable evidence that the law of its organization within the Constitution is imperfect;

and when a state cannot so modify and amend its Constitution from time to time as to express itself truthfully therein, but must writhe under the bonds of its Constitution until it perishes or breaks them asunder, this is again indisputable evidence that the law of its organization within the Constitution is imperfect and false. To my mind the error lies in the artificially excessive majorities required in the production of Constitutional changes.”

These passages express the deep anguish of the jurist and his disappointment with the current process of amendment prescribed in the U.S. Constitution. He gives the amending provision supreme importance in the Constitution and wants it to be very much less rigid than what it is, so that the Constitution can correspond with the truth of contemporary, social and political changes. The whole object of providing for amendment is to make the Constitution as responsive to contemporary conditions as possible because, if it is not the danger of popular revolt, civil war or even revolution in a rapidly changing world may soon overtake the people. That being the political philosophy behind the amending provision it is obvious that the provision must serve the same purpose as in a Parliamentary democracy with a flexible Constitution. The latter can adjust itself more readily with changing conditions and thus discourage violent revolts. If the object of a Constitution is the same, namely, orderly government and orderly change in accordance with the law, it must be conceded that all Constitutions whether flexible or rigid must have the power to amend the Constitution to the same degree; and if flexible Constitutions have the power to make necessary changes in their most cherished Constitutional principles, this power cannot be denied to a Constitution merely because it is a rigid Constitution. The amending power in such a Constitution may therefore, reach all provisions whether important or unimportant, essential or unessential.

1296. The above proposition is supported by several decisions of the Supreme Court of America and the Supreme Courts of the American States, the Constitutions of which are all ‘rigid’. In Edwards v. Lesueur South Western Reporter Vol. 33, 1130 it was held that if a State Constitution provides that General Assembly may at any time propose such amendments to that instrument as a majority of the members elected to each house deem expedient the substance and extent of amendment are left entirely to the discretion of the General Assembly. In Livermore v. Waite 102 Cal. 118 only one of the judges, Judge Harrison, held the view that the word ‘amendment’ in the State Constitution implied such an addition or change within the lines of the original instrument as will effect an improvement or better carrying out of the purpose for which it was framed. But that view is not shared by others. In the State Constitution of California the word ‘amendment’ was used in addition to the word ‘revision’ and that may have influenced the judge to give the word ‘amendment’ a special meaning. The actual decision was dissented from in Edwards v. Lesueur referred to above, decided about 10 years later, and the opinion of Judge Harrison with regard to the meaning of the word ‘amendment’ was dissented from in Ex- parte Dillon. 262 Federal Reporter 563 decided in 1920 This case went to the Supreme Court of America in Dillon v. Gloss 65 Law edn. 994 and the decision was affirmed. The challenge was to the Prohibition Amendment (18th) and the court observed at p. 996 “An examination of Article V discloses that it is intended to invest Congress with a wide range of power in proposing amendments. Passing a provision long since expired (that provision expired in 1808) it subjects this power to only two restrictions: one that the proposal shall have the approval of two thirds of both Houses, and the other excluding any amendment which will deprive any state, without its consent, of its equal suffrage in the Senate. A further mode of proposal-as yet never invoked-is provided, which is, that on application of the two thirds of the states Congress shall call a convention for the purpose. When proposed in either mode, amendments, to be effective, must be ratified by the legislatures, or by conventions, in three fourths of the states, “as the one or the other mode of ratification may be proposed by the Congress.” Thus the people of the United States, by whom the Constitution was ordained and established, have made it a condition to amending that instrument that the amendment be submitted to representative assemblies in the several states and be ratified in three fourths of them. The plain meaning of this is (1) that all amendments must have the sanction of the people of the United States, the original fountain of power, acting through representative assemblies, and (b) that ratification by these assemblies in three fourths of the states shall be taken as a decisive expression of the people’s will and be binding on all”. The above passage is important from two points of view. One is that Article V subjects the amending power to no restrictions except the two expressly referred to in the article itself, and the second point which is relevant for our purpose is that the people’s ratification may be obtained in one of two ways, namely, by the State legislatures or by State conventions. It was for the Congress to choose between these two ways of ratification. But whichever method was chosen, the ratification whether by the State legislatures or by special conventions, was the ratification on behalf of the people because they were representative assemblies who could give a decisive expression of the people’s will. As a matter of fact although several amendments have been made to the Constitution under Article V there has been only one, namely, the 21st Amendment which had been referred to state conventions. All other amendments were proposed by the Congress and ratified by the State legislatures-the ratification being regarded as by people’s representatives who could decisively express the people’s will. If the State legislatures in America which have no responsibility for the executive government of the State are deemed to reflect the will of the people there is greater reason to hold that our Parliament and State legislatures are no less representative of the will of the people when they participate in the process of amendment of the Constitution.

1297. But reverting to the consideration of the character of “an amendment of the Constitution”, we find from decided American cases that there are no limits except those expressly laid down by the Constitution. In Ex-parte Mrs. D.C. Kerby 103 Or. 612 decided by the Oregon Supreme Court in 1922 which concerned an amendment restoring the death penalty which had been abolished by a previous amendment to the Bill of Rights of the State Constitution, the following observations in State v. Cox 8 Ark. 436 were quoted with approval. “The Constitution, in prescribing the mode of amending that instrument, does not limit the power conferred to any particular portion of it, and except other provisions by declaring them not to be amendable. The general assembly, in amending the Constitution, does not act in the exercise of its ordinary legislative authority of its general powers; but it possesses and acts in the character and capacity of a convention, and is, quoad hoc, a convention expressing the supreme will of the sovereign people and is unlimited in its powers save by the Constitution of the United States.

Therefore, every change in the fundamental law, demanded by the public will for the public good, may be made, subject to the limitation above named.

1298. In Downs v. City of Birmingham 198 Southern Reporter, 231 the Supreme Court of Alabama held that an amendment to state Constitution may extend to a change in form of the state’s government, which may be in any respect except that the government must continue to be a republican form of government as required by the U.S. federal Constitution, which was inviolable, and that rights acquired under the Constitution are subject to Constitutional provisions permitting amendments to the Constitution, and no right can be acquired under the State consitution which cannot be abridged by an amendment of the Constitution and such a rule extends to contract and property rights.

1299. In Schneiderman v. United States of America 87 Law. ed. 1796 which was a denaturalization case on the ground of non-allegiance to the “principles” of the American Constitution, Murphy J. delivering the opinion of the court said, pp. 1808-1809: “The Constitutional fathers, fresh from a revolution, did not forge a political strait-jacket for the generations to come. Instead they wrote Article V and the First Amendment, guaranteeing freedom of thought, soon followed. Article V contains procedural provisions for Constitutional change by amendment without any present limitation whatsoever except that no State may be deprived of equal representation in the Senate without its consent. Cf. National Prohibition Cases (Rhode Island v. Palmer) 65 Law. ed.

946. This provision and the many important and far-reaching changes made in the Constitution since 1787 refute the idea that attachment to any particular provision or provisions is essential, or that one who advocates radical changes is necessarily not attached to the Constitution.

1300. In Ullmann v. United States 100 Law. ed. 511 Frankfurter, J. delivering the opinion of the Supreme Court on the privilege against self-incrimination (Vth amendment) which, by the way, is recognized by our Constitution as a fundamental right, quoted with approval Chief Judge Macgruder who said “if it be thought that the privilege is out- moded in the conditions of this modern age then the thing to do is to take it out of the Constitution, not to whittle it down by the subtle encroachments of judicial opinion.

1301. Recently in Whitehill v. Elkins, 19 Law. ed. 2d. 228 Douglas, J. delivering the opinion of the court, observed at p. 231 “If the Federal Constitution is our guide, a person who might wish to “alter” our form of Government may not be cast into the outer darkness. For the Constitution prescribes the method of “alteration” by the amending process in Article V; and while the procedure for amending it is restricted, there is no restraint on the kind of amendment that may be offered.

1302. It is unnecessary to multiply cases to appreciate the width of the amending power in a ‘rigid’ Constitution. Even the dictionaries bring out the same sense. The word ‘amend’ may have different nuances of meaning in different contexts, like “amend once conduct”, “amend a letter or a document”, “amend a pleading”, “amend a law” or “amend a Constitution”. We are concerned with the last one, namely, what an amendment means in the context of a Constitution which contains an amending clause. In the Oxford English Dictionary, Vol. I the word ‘amend’ is stated to mean “To make professed improvements in (a measure before Parliament); formally, to alter in detail, though practically it may be to alter its principle so as to thwart it.

1303. Sutherland in his Statutes and Statutory Construction, third edition, Vol. I, p. 325 has explained an “amendatory act”, as any change of the scope or effect of an existing statute, whether by addition, omission, or substitution of provisions, which does not wholly terminate its existence, whether by an act purporting to amend, repeal, revise, or supplement, or by an act independent and original in form.

1304. In Words and Phrases, Permanent edition Vol. 3, p. 447 it is generally stated that the word ‘amendment’ involves an alteration or change, as by addition, taking away or modification. It is further explained that the words ‘amend’, ‘alter’, and ‘modify’ are in general use and their meaning is not uncertain. Each means to change. A broad definition of the word ‘amendment’ would include any alteration or change. Further on (458) it is explained in the context of a Constitution that an ‘amendment’ of a Constitution, repeals or changes some provision in, or adds something to, the instrument amended. Then citing Downs v. City of Birmingham, already referred to, it is stated that every proposal which effects a change in a Constitution or adds to or takes away from it is an ‘amendment’, and the proposal need not be germane to any other feature of the Constitution, nor to the feature which is amended.

1305. Similarly citing State v. Fulton 124 N.E. 172 it is explained that the word ‘amendment’, when used in connection with the Constitution, may refer to the addition of a provision on a new and independent subject, complete in itself and wholly disconnected from other provisions, or to some particular article, or section, and is then used to indicate an addition to, the striking out, or some change in that particular section.

1306. In Standard Dictionary of Funk and Wagnalls ‘amendment’ is defined as an act of changing a fundamental law as of a political Constitution or any change made in it according to a prescribed mode of procedure; as to alter the law by amendment, an amendment of the Constitution.

1307. In a Dictionary of the Social Sciences edited by Julius Gould and William L. Kolb compiled under the auspices of the Unesco p. 23, the word ‘amendment’ has been explained. “The term ‘amendment’, whenever used, has the core denotation of alteration or change. Historically the change or alteration denoted was for the sake of correction or improvement. In the realities and controversies of politics, however, the nature of correction or improvement becomes uncertain, so that alteration or change remains the only indisputable meaning as the term is applied. Probably the most fundamental type of formal amendment is that which is constituted by the alteration of the formal language of written Constitutions. The importance of the amending procedure in a time of serious social change has been stated by C.J. Friedrich. ‘A well drawn Constitution will provide for its own amendment in such a way as to forestall as far as is humanly possible revolutionary upheavals. That being the case the provisions for amendment form a ‘vital part of most modern Constitutions.’ (Constitutional Government and Democracy-Boston 1941 p. 135).” It will be thus seen that having regard to the object of providing an amendment clause in a modern Constitution, amendment must stand for alteration and change in its provisions.

1308. That this was intended is clear from the wording of Article 368. The main part of the Article speaks only of “an amendment of this Constitution.” It shows how a proposal for amendment becomes part of the Constitution. The language structure of Article 368 recalls the language structure of Article V of the American Constitution. There also the words used are “amendment of this Constitution”, and nothingmore. No such supplementary words like “by addition, alteration or repeal” are used. Yet we have seen that so far as Article V is concerned an amendment under Article V involves alteration and change in the Constitution. Article 368 has a proviso which begins with these words “provided that if such amendment seeks to make any change in-(a) Article 54, Article 55, Article 73, Article 162 or Article 241, or (b) Chapter IV of Part V, Chapter V of Part VI, or Chapter I of Part XI, or (c) any of the Lists in the Seventh Schedule, or (d) the representation of States in Parliament, or (e) the provisions of this article, the amendment shall also require to be ratified by the legislatures etc. etc.” The proviso, therefore, clearly implies that an amendment under Article 368 seeks to make a change in the provisions of the Constitution. If the amendment seeks to make a change in the provisions referred to in Sub-clause (a) to (e) then only the amendment which makes such a change in these provisions requires ratification by the State legislatures. Otherwise, the amendment making a change in other provisions does not require ratification. We have already observed that the, meaning of the word ‘change’ is uncomplicated and can be easily felt and understood. The noun ‘change’ according to the Shorter Oxford English Dictionary means “substitution or succession of one thing in place of another; substitution of other conditions; variety.” It also means “alteration in the state or quality of anything; variation, mutation.” There can be no doubt, therefore, that, having regard to the importance of the amending clause in our Constitution, an amendment contemplates changes in the provisions of the Constitution which are capable of being effected by adding, altering or repealing them, as found necessary, from time to time. As a matter of fact it is impossible to conceive of even the simplest form of amendment without adding, altering or repealing. If you add some words to a provision of the Constitution you thereby alter the provision. If you substitute a few words, you alter and repeal. Mr. Palkhivala admitted that he had no objection whatsoever to an amendment improving the Constitution so that it can serve the people better. He said that it was open to the Parliament to improve the content of the Constitution by making necessary changes. All that would necessarily imply amendment by way of addition, variation or repeal of a provision of the Constitution which is just what the 24th amendment seeks to do. As a matter of fact any amendment to the Constitution which the representatives of the people want to make is professedly an improvement. No proposer of an amendment of a Constitution, whatever his opponents may say to the contrary, will ever agree that his proposal is retrogressive. Therefore, improvement or non-improvement cannot be the true test of an amendment. Alteration and change in the provisions is the only simple meaning, which the people for whom the Constitution is made, will understand.

1309. Having seen the importance of the amending clause in a Constitution, the philosophy underlying it and the amplitude of its power, it will be improper to try to cut down the meaning of the word ‘amendment’ in the expression ‘amendment of the Constitution’ by comparing it with the same word used in other provisions of the Constitution or other statutes in a different context. Not that such a comparison will in any way serve the object with which it is made, but it will amount to comparing, in effect, two words-one operating on a higher plane and the other on a lower. The word amendment in the expression “amendment of the Constitution” operates on a higher plane and is substantially different in connotation from the same word used on a lower plane in some other provision of the Constitution or any other statute in an entirely different context. To say that the word ‘amendment’ in ‘amendment of the Constitution’ is used in a low key because padding words like amendment “by way of addition, variation or repeal”

are used elsewhere in the Constitution would be to ignore the status of the word ‘amendment’ when used in the context of amending the Constitution. Indeed the expression “amendment by way of addition, variation or repeal” would also amount to ‘amendment’. But it is more appropriately used when some distinct provisions of a statute are under consideration and even the extreme limit of a repeal of such provisions is contemplated. In the case of an amendment of the Constitution this extreme limit of the repeal of the Constitution is not, as already pointed out, ordinarily contemplated. In the present case the comparison was principally made with “amend by way of addition, variation or repeal in sub-paragraphs (1) of para 7 and 21 in the Fifth and Sixth Schedules respectively. In both these cases, Parliament is authorized from time to time, by law, to make the amendment in any of the provisions of the two schedules. The authority is not only to add to the provision or vary the provision but even repeal the provision. Having provided that way in sub-paragraph 1 the framers of the Constitution added sub-para (2) in each case, but for which, what was done in accordance with sub-para (1) was likely to be misunderstood as an amendment of the Constitution as described in Article 368.

Textually the provisions in the Schedules would stand amended. But this amendment is carried out ‘by law’. On the other hand, if even a word in any provision of the Constitution is changed in accordance with Article 368, it is not described as an amendment of the provision but an Amendment of the Constitution with all its wide connotations.

1310. In Articles 4 and 169 (2) we have just the word ‘amendment’ for amending certain provisions of the Constitution by law, and both of them show in their context, without even the use of the padding words, that such an amendment would be really by way of addition, alteration and repeal. Then again such amendments are expressly taken out of the class of “amendment of the Constitution for the purposes of Article 368” but for which they would have amounted textually to an amendment.

1311. Reference was also made to the amendment made by the constituent assembly in Section 291 of the Government of India Act, 1935 where similar padding words were used along with the word ‘amend’. Here again it will be seen that the amendment was not an amendment of the Constitution but an authorization of the Governor General to amend, by Order, certain provisions relating to the Provincial Legislatures which were liable even to be repealed. No implications can be drawn with regard to the power under Article 368 by a reference to another statute where a particular phraseology is adopted in its own context. On the other hand this may be contrasted with the wording of Section 308 (later repealed) which provided for ‘the amendment of the Act and the Orders in Council’ on the proposals made by the Federal and State legislatures. The Act referred to is the Government of India Act, 1935. No padding words are used in the section although the context shows that amendment would inevitably involve adding, altering or repealing certain provisions of the Government of India Act or Orders in Council.

1312. The structure of Article 368 is now changed by the 24th amendment and the expanded expression “amendment by way of addition, variation or repeal, any provision of this Constitution” is adopted. The language structure of the original Article 368 was, however, different and there was no reference to “the provisions” of the Constitution therein. The article commenced with the words “An amendment of this Constitution”

without reference to any provisions. Reference to “provisions of the Constitution” having been eschewed, to pad the expression “amendment of the Constitution” by the words “by way of addition, variation or repeal” would have been inappropriate; because such padding was likely to give the impression that the intention was to amend by addition to and, alteration and repeal of, the Constitution, considered as a whole. Neither the alteration nor the repeal of the Constitution, as a whole, could have been intended and hence the padding words would not have commended themselves to the Draftsmen. And because that was not the intention, we have to take the first step of legally construing “this Constitution” as “every provision of the Constitution” and then import the padding words with reference to the provision. Such a construction is perfectly permissible having regard to the general meaning of the word ‘amendment’. Since doubts were expressed in the leading majority judgment of five judges in opposition to the view of the other six judges, who agreed that the word ‘amendment’ was wide in its application, the 24th amendment had to clarify the position.

1313. Article V of the American Constitution used only the words ‘amendment to the Constitution’ without any padding like “by way of addition, variation or repeal” and yet no body questions the fact that after 1789, when the Constitution was framed, there have been several additions, alterations and repeals. Actually the 18th amendment was repealed by the 21st.

1314. We thus come to the conclusion that so far as the wording of Article 368 itself is concerned, there is nothing in it which limits the power of amendment expressly or by necessary implication. Admittedly it is a large power. Whether one likes it or not, it is not the function of the court to invent limitations where there are none. Consequences of wreckless use of the power are political in character with which we are not concerned.

Consequences may well be considered in fixing the scope and ambit of a power, where the text of the statute creating the power is unclear or ambiguous. Where it is clear and unambiguous, courts have to implement the same without regard to consequences good or bad, just or unjust. In Vacher’s [1912] UKHL 3; [1913] A.C. 107 case Lord Shaw observed at page 126 “Were they (words) ambiguous, other sections or sub-sections might have to be invoked to clear up their meaning; but being unambiguous, such a reference might distort that meaning and so produce error. And of course this is a fortiori the case, if a reference is suggested, not to something within, but to considerations extraneous to, the Act itself. If, for instance, it be argued that the mind of Parliament “looking before and after,” having in view the past history of a question and the future consequences of its language, must have meant something different from what is said, then it must be answered that all this essay in psychological dexterity may be interesting, may help to whittle language down or even to vaporize it, but is a most dangerous exercise for any interpreter like a Court of law, whose duty is loyally to accept and plainly to expound the simple words employed.

1315. We have to see next whether there are express limitations on the amending power elsewhere in the Constitution. The only provision to which our attention is drawn in Article 13(2). The article, before its amendment by the 24th amendment, was as follows:

13. (1) All laws in force in the territory of India immediately before the commencement of this Constitution, in so far as they are inconsistent with the provisions of this Part, shall, to the extent of such inconsistency, be void.

(2) The State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention be void.

(3) In this article, unless the context otherwise requires,- (a) “law” includes any Ordinance, order, bye-law, rule, regulation, notification, custom or usage having in the territory of India the force of law;

(b) “laws in force” includes laws passed or made by a Legislature or otherwise competent authority in the territory of India before the commencement of this Constitution and not previously repealed, notwithstanding that any such law or any part thereof may not be then in operation either at all or in particular areas.

It is obvious from Articles 13(1) and (2) that the intention was to make the fundamental rights paramount and invalidate all laws which were inconsistent with the fundamental rights. On the commencement of the Constitution of India there could not possibly be a vacuum with regard to laws and, therefore, by Article 372(1) all the laws in force in the territory of India immediately before the commencement of the Constitution were continued in force until altered or repealed or amended by a competent legislature or other competent authority. Such laws which were in force before the commencement of the Constitution and were continued under Article 372(1) were, in the first instance, declared void to the extent of their inconsistency with the provisions of Part III containing the fundamental rights. As to future laws provision was made under Clause (2) which commanded that the State shall not make a law which takes away or abridges the rights conferred by Part III and further added that any law made in contravention of the clause would be void to the extent of the contravention.

1316. It was contended before us that an amendment of the Constitution under Article 368 was a law made by the State and, therefore, to the extent that it contravened Clause (2) it would be void. The submission was similar to the one made in Golak Nath’s case which was upheld by the majority of six judges. In the leading majority judgment it was held that it was a law which was made under Article 248 read with the residuary entry 97 of List I of the Seventh Schedule and, therefore, would be void if it took away or abridged any of the fundamental rights. Hidayatullah, J. who agreed with the conclusion did not agree that the power to amend was traceable to the residuary article referred to above. Nevertheless he held “it was indistinguishable from the other laws of the land for the purpose of Article 13(2).” The other five judges who were in the minority agreed substantially with the view taken in Sankari Prasad’s case and by the majority in Sajjan Singh’s case that this was not a law within the meaning of Article 13(2) because, in their opinion, an amendment of the Constitution under Article 368 was an act in exercise of the constituent power and was, therefore, outside the control of Article 13(2).

1317. Mr. Palkhivala submitted that he was not interested in disputing where the power to amend actually lay. Even assuming, he contended, the power to amend was to be found in Article 368, the worst that could be said against him was that the amendment was a Constitutional law and in his submission even such a law would be taken in by Article 13(2). In this connection he argued that there were certain laws made in the Indian States or even other laws which could be properly described as Constitutional laws which continued in force after the commencement of the Constitution and came within the category described in Article 13(1) and, therefore, there was no reason why an amendment of the Constitution which was also a Constitutional law should not come within the prohibition of Article 13(2). The Indian Independence Act, 1947 and the Government of India Act, 1935 which were the two main Constitutional statutes in accordance with which the country had been governed had been specifically repealed by Article 395. No other statute of similar competence and quality survived our Constitution.

It may be that certain statutes of the States and other Constitutional documents may have continued in force as laws under Article 13(1) but it would be wrong to conclude therefrom that an amendment of the Constitution, also being a Constitutional law, would be deemed to have been included in the word ‘law’ in Article 13(2). We must be clear as to what ‘Constitutional law’ means in a written Constitution. Jennings in his The Law and the Constitution (fifth edition), pp. 62-65 points out that there is a fundamental distinction between Constitutional law and the rest of the law and that the term ‘Constitutional law’ is never used in the sense of including the law of the Constitution and the law made under it. In the context of the question in issue, we are concerned with our Constitution which is the supreme fundamental law, on the touch-stone of which the validity of all other laws- those in force or to be made by the State-is to be decided and since an amendment of the supreme law takes an equal place, as already pointed out, with the rest of the provisions of the Constitution we have to see whether an amendment of such quality and superiority is sought to be invalidated by Article 13(2). Other laws in force at the time of the commencement of the Constitution consisting of state treaties or state statutes were not laws of this superior category. In fact Article 372(1) itself shows that if they were to continue in force they were to do so subject to the other provisions of this Constitution and were liable to be altered or repealed or amended by a competent legislature or the other competent authority. All such laws though vaguely described as Constitutional were made absolutely subordinate to the Constitution. In that respect they were no better than any other laws which were continued in force after the commencement of the Constitution and to the extent that they were inconsisent with the fundamental rights, they stood on the same footing as any other laws which continued in force after the commencement of the Constitution. Their status was entirely subordinate to the Constitution. On the other hand, the stature of a Constitutional amendment, as already seen, is the stature of the Constitution itself and, therefore, it would be wrong to equate the amendment of the Constitution with a so-called Constitutional law or document which survived after the commencement of the Constitution under Article 372(1).

1318. An amendment of the Constitution cannot be regarded as a law as understood in the Constitution. The expressions ‘law’, ‘by law’, ‘make a law’, are found scattered throughout the Constitution. Some articles, as shown by Bachawat, J. in Golak Nath’s case at pages 904 and 905, are expressly continued until provision is made by law. Some articles of the Constitution continue unless provision is made otherwise by law; some continue save as otherwise provided by law. Some articles are subject to the provisions of any law to be made and some are expnessed not to derogate from the power of making laws. Articles 4, 169, para 7 of the Fifth Schedule and para 21 of the Sixth Schedule empower the Parliament to amend the provisions of the first, fourth, fifth and sixth schedules by law. A reference to all these articles will show that in all these articles the expression ‘law’ means a law made by the Parliament in accordance with its ordinary legislative procedure. On the other hand, it is a point worthy of note that Article 368 scrupulously avoids the use of the word ‘law’. After the proposal for amendment, introduced in Parliament in the form of a Bill, is passed by the two Houses separately with the requisite majority and is assented to by the President with prior ratification by the requisite number of States in certain cases mentioned in the proviso, the proposed amendment writes itself into the Constitution as a part of it. It is not passed, as already pointed out, as any other law is passed by the ordinary procedure by competent legislatures. The ratification by the State legislatures by a resolution is not a legislative act. The whole procedure shows that the amendment is made by a process different from the one which is compulsory for any other laws made by the Parliament or the State legislatures, and hence advisedly the term ‘law’ seems to have been avoided. In doing this the framers of the Constitution might have been influenced by the view held by many jurists in America that Article V of the American Constitution to which Article 368 conforms to some extent in its language structure don’t regard an amendment of the Constitution as a legislative act. Finer called it, as we have already seen, the Constitution itself. “In proposing a Constitutional amendment, the legislature is not exercising its ordinary legislative function.” Corpus Juris Secundum, Vol. 16 pp. 48, 49. “Under Article V of the American Constitution the proposal by the Congress for amendment and the ratification by the States are not acts of legislation”. Burdick-The Law of the American Constitution, pp. 40-42. “Ratification by the States is not a legislative act”-Weaver Constitutional Law and its Administration, p.

50.

1319. Secondly, we find in several places in our Constitution the two words ‘Constitution’ and the ‘law’ juxtaposed which would have been unnecessary if the word ‘law’ included the Constitution also. For example, in the oath of the President mentioned in Article 60 and of the Governor of a State in Article 159 it would have been sufficient for him to swear that he would “preserve, protect and defend the laws” instead of swearing that he would “preserve, protect and defend the Constitution and the law”. Similarly the Attorney General under Article 76 and the Advocate Generals of the States under Article 165 need have merely sworn that he would “discharge the functions conferred on him by law”

instead of that “he would discharge the functions conferred by and under this Constitution or any other law for the time being in force”. Similar is the case with the oaths prescribed in the IIIrd Schedule for the judges of the Supreme Court and the High Courts and the Comptroller and Auditor General. Indeed it is quite possible to urge that the Constitution has been specially mentioned in order to emphasize its importance. But that is the very point. Its importance lies in its supremacy over all kinds of others laws-a special position which the framers of the Constitution, thoroughly acquainted with federal and quasi- federal Constitutions of the more important countries in the world, must have always known. In any case they knew that the Constitution was distinct from other laws. On that footing it would be only reasonably expected that if an Amendment, not being of the nature of an ordinary law, was intended to be included in word ‘law’ in Article 13(2), it would have been specifically mentioned in the definition of the word ‘law’ given in Clause 3(1) of Article 13. The definition is an inclusive definition. It does not mention enacted law or statute law in the definition, apparently because no-body needs to be told that an act of a legislature is law. But it includes such things like an Ordinance, Order, bye-law, rule, regulation, notification, custom or usage in order to clarify that although the aforesaid are not enactments of a legislature, they were still ‘law’ falling within the definition. An objection seems to have been anticipated that ordinances, orders, bylaws etc., not being the acts of a legislature, are not laws. That apparently was the reason for their specific inclusion. If, therefore, an amendment of the Constitution was intended to be regarded as ‘law’, not being an ordinary statute of the legislature, it had the greatest claim to be included specifically in the definition. Its omission is, therefore, very significant.

1320. The significance lies in the fact that the Constitution or its amendment is neither a law in force within the meaning of Article 13(1) continued under Article 372(1); nor can it be regarded as a law made by the State within the meaning of Article 13(2). The bar under Article 13(2) is not merely against law but a law made by the State. A fundamental right conferred by Part III could not be taken away or abridged by law made by the “State”. To leave no doubt as to what the ‘State’ means, Part III, containing the fundamental rights, opens with the definition of the word “State” in Article 12. According to that definition the State includes the Government and the Parliament of India and the Government and the Legislarure of each of the States and all local or other authorities within the territory of India or under the control of the Government of India. The definition thus includes all governmental organs within the territories of India and these governmental organs are either created under the Constitution or under the laws adopted by the Constitution under Article 372. In other words, they are all organs or agencies operating under the Constitution owing superior obligation to the Constitution. It would be, therefore, wrong to identify ‘state’ in Article 13(2) with anything more than the instruments created or adopted by the Constitution and which are required to work in conformity with the Constitution. Nor can the word ‘state’ be regarded as standing for a Nation or a Conglomeration of all the governmental Agencies. The Nation is an amorphous conception. The bar under Article 13(2) is against concrete instrumentalities of the State, instrumentalities which are capable of making a law in accordance with the Constitution.

1321. By its very definition as discussed earlier, a body or set of bodies exercising, as indicated in the Constitution, sovereign constituent power whether in a ‘flexible’ or a ‘rigid’ Constitution is not a governmental organ owing supreme obligation to the Constitution. The body or bodies operate not under the Constitution but over the Constitution. They do not, therefore, while amending the Constitution, function as governmental organs and, therefore, cannot be regarded as the State for the purposes of Part III of the Constitution.

1322. We thus reach the conclusion that an amendment of the Constitution is not a law made by the State and hence Article 13(2) would not control an amendment of the Constitution.

1323. The same conclusion is arrived at by a slightly different approach. Article 13(2) speaks of a law which becomes void to the extent it takes away or abridges a fundamental right as conferred by certain articles or provisions in Part III of the Constitution. Thus it embodies the doctrine of ultra vires well-known in English law. In other words, it is a law about which one can predicate voidability with reference to the provisions of the Constitution. This is possible only when it is a law made by the organs of the State. When an amendment is made, we have already shown, it becomes part of the Constitution, taking an equal status with the rest of the provisions of the Constitution. Voidability is predicated only with reference to a superior law and not an equal law. There is no superior law with reference to which its voidability can be determined. Indeed, if the amendment cannot entirely fit in with some other provisions of the Constitution the courts might have to reconcile the provisions, as was done in Sri Venktaramana v. The State of Mysore [1957] INSC 99; [1958] S.C.R. 895 in which the fundamental right under Article 26(b) was read subject to Article 25(2)(b) of the Constitution. The point, however, is that courts have no jurisdiction to avoid one provision of the law with reference to another provision of the same law. It becomes merely a matter of construction. It follows, therefore, that an amendment of the Constitution not being liable to be avoided with reference to a superior law is not a law about which you can predicate avoidability and, hence, stands outside the operation of Article 13(2).

1324. If the fundamental rights in Part III were unamendable, nothing would have been easier than to make a specific provision about it in Part XX which dealt specifically with the subject of the amendment of the Constitution. That was the proper place. Article V of the American Constitution clearly indicated the two subjects which were unamend able.

The Draft Constitution shows that, as a matter of fact, there was Article 305 under the subject “amendment of the Constitution” and that article had specifically made some parts of the Constitution unamendable. Later, Article 305 was deleted and the main amending article in the Draft Constitution, namely, Article 304 appeared in the garb of Article 368 of the Constitution with some additional subjects in the proviso.

1325. In adopting the distinction between the ‘Constitution’ and ‘the law’ the framers of the Constitution did not create any new concept of the law being subordinate to the Constitution. That was a concept which was well-recognized in Federal Constitutions specially providing for the amendment of the Constitution by a special procedure.

1326. No body disputes that law in its widest sense includes Constitutional law as it does natural law, customary law or ecclesiastical law. The point is whether in our Constitution ‘law’ includes an “amendment of the Constitution”. As already shown our Constitution has maintained a meticulous distinction between ordinary law made by the legislature by ordinary legislative procedure and an amendment of the Constitution under Article 368.

This is highlighted even when certain provisions of the Constitution are amended by ordinary law. As already shown Articles 4, 169 and paras 7 and 22 of the Fifth and Sixth Schedules respectively permit the Parliament to make ‘by law’ certain amendments in the Constitution, but in every case it is further provided that such an amendment made ‘by law’ shall not be deemed to be an amendment of the Constitution for the purposes of Article 368. When such a distinction is maintained between ‘law’ and ‘an amendment of the Constitution’ the same cannot be impaired by reference to the word ‘law’ used by the Privy Council in a more comprehensive sense in McCawley’s case and Rana Singhe’s [1964] UKPC 1; [1965] A.C. 172 case. In the former the Constitution was a flexible Constitution. In the latter, though it was a controlled Constitution the provision with regard to the amendment of the Constitution namely Section 29(4) of the Ceylon (Constitution) Order in Council was part of Section 29 which specifically dealt with the making of laws and came under the subject heading of Legislative power and procedure. In both cases the legislature was sovereign and as often happens in legislatures, principally modelled after the British Parliament, the distinction between Constitutional law and ordinary law becomes blurred and the use of the word ‘law’ to describe a Constitutional law is indeterminate. We are, however, concerned with our Constitution and cannot ignore the distinction maintained by it in treating ordinary laws as different from the amendment of the Constitution under Article 368. The forms of oath in the IIIrd Schedule referring to “Constitution as by law established” prove nothing to the contrary because as “by law established” merely means Constitution “as legally established.” There is no indication therein of any intended dichotomy between ‘law’ and ‘the Constitution’.

1327. Reference was made to the consitutent assembly debates and to the several drafts of the Constitution to show how the original provision which culminated in Article 13 underwent” changes from time to time. They hardly prove anything. The fact that initially Article 13 was so worded as not to override the amendment of the fundamental rights, but later the Drafting Committee dropped that provision does not prove that the framers of the Constitution were of the view that Article 13(2) should reach an amendment of the Constitution if it abridged fundamental rights. It had been specifically noted in one of the notes accompanying the first draft that Article 13(2) would not control an amendment of the Constitution and, therefore, any clarification by a special provision to the effect that fundamental rights are amendable was not necessary except by way of abundant caution.

(See : Shiva Rao “The Framing of India’s Constitution, Vol. IV, page 26). That was apparently the reason for deleting that part of Article 13 which said that Article 13 should not come in the way of an amendment to the Constitution by which fundamental rights were abridged or taken away. Neither the speeches made by the leaders connected with the drafting of the Constitution nor their speeches (the same constituent assembly had continued as the provisional Parliament) when the first amendment was passed incorporating serious inroads into the fundamental rights conferred by Articles 15, 19 and 31 show that the fundamental rights were intended or understood to be unamendable- rather the contrary.

1328. The further argument that fundamental rights are inalienable natural rights and, therefore, unamendable so as to abridge or take them away does not stand close scrutiny.

Articles 13 and 32 show that they are rights which the people have “conferred” upon themselves. A good many of them are not natural rights at all. Abolition of untouchability (Article 17), abolition of titles (Article 18); protection against double jeopardy (Article 20(2)); protection of children against employment in factories (Article 24); freedom as to attendance at religious instruction or religious worship in certain educational institutions (Article 28) are not natural rights. Nor are all the fundamental rights conceded to all as human beings. The several freedoms in Article 19 are conferred only on citizens and not non-citizens. Even the rights conferred are not in absolute terms. They are hedged in and restricted in the interest of the general public, public order, public morality, security of the State and the like which shows that social and political considerations are more important in our organized society. Personal liberty is cut down by provision for preventive detention which, having regard to the conditions prevailing even in peace time, is permitted. Not a few members of the constituent assembly resented the limitations on freedoms on the ground that what was conferred was merely a husk. Prior to the Constitution no such inherent inalienability was ascribed by law to these rights, because they could be taken away by law.

1329. The so called natural rights which were discovered by philosophers centuries ago as safeguards against contemporary political and social oppression have in course of time, like the principle of laissez faire in the economic sphere, lost their utility as such in the fast changing world and are recognized in modern political Constitutions only to the extent that organized society is able to respect them. That is why the Constitution has speciafically said that the rights are conferred by the people on themselves and are thus, a gift of the Constitution. Even in the most advanced and orderly democratic societies in the world in which political equality is to a large extent achieved, the content of liberty is more and more recognized to be the product of social and economic justice without which all freedoms become meaningless. To claim that there is equal opportunity in a society which encourages or permits great disparties in wealth and other means of social and political advancement is to run in the face of facts of life. Freedoms are not intended only for the fortunate few. They should become a reality for those whose entire time is now consumed in finding means to keep alive. The core philosophy of the Constitution lies in social, economic and political justice-one of the principal objectives of our Constitution as stated in the Preamble and Article 38, and any move on the part of the society or its government made in the direction of such justice would inevitably impinge upon the “sanctity” attached to private property and the fundamental right to hold it. The Directive Principles of State Policy, which our Constitution commands should be fundamental in the governance of the country, require the state to direct its policy towards securing to the citizens adequate means of livelihood. To that end the ownership and control of the material resources of the community may be distributed to serve ‘the common good, and care has to be taken that the operation of the economic system does not result in the concentration of wealth and means of production to the common detriment. See : Articles 37 to 39. This mandate is as important for the State as to maintain individual freedoms and, therefore, in the final analysis it is always a continuous endeavour of a State, having the common good of the people at heart, so to harmonize the Directive Principles and the fundamental rights that, so far as property rights are concerned, the unlimited freedom to hold it would have to undergo an adjustment to the demands of the State policy dictated by the Directive Principles. Deprivation of property in one form or other and even expropriation would, in the eyes of many, stand justified in a democratic organization as long as those who are deprived do not earn it by their own effort or otherwise fail to make adequate return to the society in which they live. The attribute at ‘sacrcdness’ of property vanishes in an egalitarian society. And once this is accepted and deprivation and expropriation are recognized as inevitable in the interest of a better social organization in which the reality of liberty and freedom can be more widely achieved, the claim made on behalf of property that it is an immutable and inalienable natural right loses its force. One cannot lift parts of the Constitution above it by ascribing ultra-Constitutional virtues to them. The Constitution is a legal document and if it says that the whole of it is amendable, we cannot place the fundamental rights out of bounds of the amending power. It is essential to note in the present case that though the plea was generally made on behalf of all fundamental rights, the fundamental right with which we are concerned, principally, is the right to property. It will be sufficient to note here that in modern democracies the tendency is not to recognize right to property as an inalienable natural right. We can do no better than quote here a few passages from W. Friedmann’s Legal Theory, fifth edition, 1967.

The official doctrine of the modern Roman Catholic Church, from Rerum Novarum (1891) onwards, and of most neo-scholastic philosophers, is that the right of private property is a dictate of natural law. But St. Thomas Aquinas and Suarez strongly deny the natural law character of the right of private property and regard it (rightly as I believe) merely as a matter of social utility.

When faced with the solution of concrete legal problems, we find time and again that natural law formulae may disguise but not solve the conflict between values, which is a problem of constant and painful adjustment between competing interest, purposes and policies. How to resolve this conflict is a matter of ethical or political evaluation which finds expression in current legislative policies and to some extent in the impact of changing ideas on judicial interpretations. And, of course, we all have to make up our minds as responsible human beings and citizens what stand we will take, for example, in the tension between state security and individual freedom. The danger is that by giving our faith the halo of natural law we may claim for it an absolute character from which it is only too easy to step to the condemnation or suppression of any different faith”. pp. 357- 358.

The time is past when Western beliefs can be regarded as a measure of all things. Nor will the natural law hypothesis aid much in the solution of the agonising problem of the limits of obedience to positive law. p. 359;

The main forces in the development of modern democratic thought have been the liberal idea of individual rights protecting the individual and the democratic idea proper, proclaiming equality of rights and popular sovereignty. The gradual extension of the idea of equality from the political to the social and economic field has added the problems of social security and economic planning. The implementation and harmonisation of these principles has been and continues to be the main problem of democracy.

But democratic communities have universally, though with varying speed and intensity, accepted the principle of social obligation as limiting individual right.

But modern democracy, by the same process which has led to the increasing modification of individual rights by social duties towards neighbours and community, has every-where had to temper freedom of property with social responsibilities attached to property. The limitations on property are of many different kinds. The State’s right of taxation, its police power and the power of expropriation-subject to fair compensation- are examples of public restrictions on freedom of property which are now universally recognised and used. Another kind of interference touches the freedom of use of property, through the growing number of social obligations attached by law to the use of industrial property, or contracts of employment.

The degree of public control over private property depends largely on the stringency of economic conditions. Increasing prosperity and availability of consumer goods has led to a drastic reduction of economic controls, and a trend away from socialisation in Europe. But in the struggling new democracies such as India, poor in capital and developed resources, and jealous of their newly-won sovereignty, public planning and control over vital resources are regarded as essential. The Constitution of the West German Republic of 1949, which reflects a blend of American British and post-war German ideas on the economic aspects of democracy, lays down that land, minerals and means of production may be socialised or be subjected to other forms of public control by a statute which also regulates compensation. Such compensation must balance the interests of the community and those of the individual and leave recourse to law open to the person affected. This still permits wide divergencies of political and economic philosophy, but in the recognition of social control over property, including socialisation as a, legitimate though not a necessary measure, it reflects the modern evolution of democratic ideas. Between the capitalistic democracy of the United States and the Social democracy of India there are many shades and variations. But modern democracy looks upon the right of property as one conditioned by ‘social responsibility by the needs of society, by the “balancing of interests” which looms so large in modern jurisprudence, and not as preordained and untouchable private right.

1330. Nor is it correct to describe the fundamental rights, including the right to property, as rights “reserved” by the people to themselves. The Constitution does not use the word “reserved”. It says that the rights are “conferred” by the people upon themselves, suggesting thereby that they were a gift of the Constitution. The Constitution had, therefore, a right to take them away. This is indirectly recognised in Golak Nath’s case where the majority has conceded that all the fundamental rights could be taken away by a specially convened constituent assembly. When rights are reserved by the people the normal mode, as in the several states of America, is a referendum, the underlying principles being that ultimately it is the people, who had given the Constitution and the rights therein, that could decide to take them away. In our Constitution the people having entrusted the power to the Parliament to amend the whole of the Constitution have withdrawn themselves from the process of amendment and hence clearly indicated that there was no reservation. What the Constitution conferred was made revocable, if necessary, by the amendatory process. In my view, therefore, Article 13(2) does not control the amendment of the Constitution. On that conclusion, it must follow that the majority decision in Golak Nath’s case is not correct.

1331. No reference was made to any other provision in the Constitution as expressly imposing a limitation on the Amending Power.

1332. It was next contended that there are implied or inherent limitations on the amendatory power in the very structure of the Constitution, the principles it embodies, and in its essential elements and features (described briefly as essential features). They are alleged to be so good and desirable that it could hot have been intended that they were liable to be adversely affected by amendment. Some of the essential features of the Constitution were catalogued as follows:

(1) The supremacy of the Constitution;

(2) The sovereignty of India;

(3) The integrity of the country;

(4) The democratic way of life;

(5) The Republican form of Government;

(6) The guarantee of basic human rights referred to in the Preamble and elaborated as fundamental rights in Part III of the Constitution;

(7) A secular State;

(8) A free and independent judiciary;

(9) The dual structure of the Union and the States;

(10) The balance between the legislature, the executive and the judiciary;

(11) A Parliamentary form of Government as distinct from Presidential form of Government;

(12) The amendability of the Constitution as per the basic scheme of Article 368.

1333. These, according to Mr. Palkhivala, are some of the essential features of the Constitution and they cannot be substantially altered by the amendatory process.

1334. A question of very wide import is raised by the submission. So far as the present case is concerned, the 24th amendment does no more than give effect to Parliament’s acceptance of the view taken in Sankari Prasad’s case, the majority in Sajjan Singh’s case and the minority in Golak Nath’s case with regard to the nature of the amending power in relation to fundamental rights. It is clarificatory of the original Article 368. What was implicit in Article 368 is now made explicit and the essence of Article 368 is retained.

Therefore, there can be no objection to the 24th Amendment on the ground that any essential feature of the Constitution is affected.

1335. The 25th Amendment introduces some abridgement of the fundamental right to property. Right to property has been subject to abridgement right from the Constitution itself (See : Article 31(4) & (6)) and the 25th amendment is a further inroad on the right to property. In Golak Nath’s case, the first, fourth and the seventeenth amendments were held by the majority as having contravened Article 13(2). Nevertheless the amendments were not struck down but permitted to continue as if they were valid. Since I have come to the conclusion that Article 13(2) does not control an amendment of the Constitution, it must be held that all previous amendments to the Constitution, so far made, could not be challenged on the ground of repugnancy to Article 13(2). It follows that any amendment of the Constitution cannot be challenged on that ground, and that would be true not only of the 24th amendment but also the 25th amendment, and the 29th amendment.

1336. The question still survives whether the 25th amendment and the 29th amendment are invalid because, as contended by Mr. Palkhivala, an essential feature of the Constitution has been substantially affected. The argument proceeds on the assumption that in the absence of any express limitation on the power of amendment, all the provisions in the Constitution are liable to be amended. He agrees, on this assumption, that even fundamental rights may be somewhat abridged if that is necessary. In this connection, he referred to the first amendment by which Articles 15 and 19 were amended and in both these cases the amendment did abridge the fundamental rights.

Similarly he conceded that Articles 31A and 31B were amendments whereby the rights in landed estates were extinguished or substantially affected, but that was in the interest of agrarian reform, a fact of supreme importance in the Indian polity which could not have been ignored for long and to which the Ruling party was committed for a long time. Thus although there had been amendments which abridged fundamental rights, these amendments in his submission did not go to the length of damaging or destroying the fundamental rights. According to him they had not reached the ‘core’ of the rights. In other words, his submission is that there are some very good and desirable things in the Constitution. One of them is fundamental rights, and though these fundamental rights could be abridged somewhat, it was not permissible to affect by amendment the core of the fundamental rights, including the core of the right to property. For this argument he relies on the basic scheme of the Constitution as first promulgated and contends that any Amendments made thereafter, including the 24th Amendment, would not affect his argument, because, according to him, every one of them, must be evaluated on the principles and concepts adopted in that basic scheme. His further submission was that if such a core of a fundamental right is damaged or destroyed by an amendment, such an amendment is illegal and, therefore, liable to be struck down by this Court as the guardian of the Constitution. It necessarily follows from the submission that Mr.

Palkhivala wanted this Court to decide whether by any particular amendment the core of an essential feature like a fundamental right has been damaged or destroyed-undoubtedly a terrifying responsibility for this Court to undertake. It may appear as very odd that while the framers of the Constitution did not think it necessary to expressly exclude even one provision of the Constitution from being amended, they still intended that this Court, as the guardian of the Constitution, should make parts of it unamendable by implying limitations on the Amending power. Indeed this Court is a guardian of the Constitution in the sense that will not permit its contravention by any of its instrumentalities, but it cannot constitute itself a guardian against change Constitutionally effected.

1337. Though the argument had a wide sweep, namely, that the several essential features catalogued by Mr. Palkhivala were not liable to be damaged or destroyed, in the ultimate result the case really boils down to whether the core of the fundamental right to property has been damaged or destroyed principally by the 25th amendment, and, if so whether there was any implied or inherent limitation on the amendmg power which prohibited such an amendment. The several essential features listed by Mr. Palkhivala do not come into the picture in the present case. It is not the case that by the recent 25th amendment either the sovereignty of India is affected or the Republican form of Government has been destroyed. One of the several essential fca’tures listed by him is fundamental rights.

Amongst fundamental rights also most are untouched by the amendment. The 25th amendment deals principally with property rights and Articles 14, 19 and 31 in relation to them. By that amendment chiefly two things are sought to be accomplished (1) There shall be no right to receive ‘compensation’, as judicially interpreted, for a State acquisition for a public purpose, but only to receive an ‘amount’, (2) A law made to achieve the aims of equitable distribution of community resources or for the prevention of concentration of wealth and means of production shall not be challenged on the ground of repugnancy to Articles 14, 19 and 31. Since it is not the practice of this Court to decide questions which are not ‘in immediate controversy it would not be proper to pronounce whether this or that particular so-called essential feature can or cannot be damaged or destroyed by amendment. But since it is argued on behalf of the State that there can be no limitations on the amending power except those expressly provided in the Constitution and since that will affect our decision as to the 25th amendment, we shall have to deal briefly with the question of im”plied and inherent limitations with special reference to fundamental rights including property rights.

1338. Whatever one may say about the legitimacy of describing all the Tights conferred in Part III as essential features, one thing is clear. So far as the right to property is concerned, the Constitution, while assuring that no-body shall be deprived of property except under the authority of law and that there shall be a fair return in case of compulsory acquisition (Article 31(1) & (2)), expressly declared its determination, in the interest of the common good, to break up concentration of wealth and means of production in every form and to arrange for redistribution of ownership and control of the material resources of the community. See : Article 39(b) & (c). If anything in the Constitution deserves to be called an essential feature, this determination is one. That is the central issue in the case before us, however dexterously it may have been played down in the course of an argument which painted the gloom resulting by the denial of the fundamental rights under Articles 14, 19 and 31 in the implementation of that determination. The Constitution had not merely stopped at declaring this determination but actually started its implementation from the commencement of the Constitution itself by incorporating Clauses (4) & (6) under Article 31, the first two clauses of which spelt out the fundamental right to property. Apart front what Pandit Jawaharlal Nehru said about the Article in the Constituent Assembly Debates-and what he said was not at all sympathetic to Mr. Palkhivala’s argument before us-the fundamental right to receive compensation under Clause (2), as then framed, was completely nullified by Clauses (4) & (6) in at least one instance of concentration of wealth and material resources viz.

Zamindaris and landed estates. These clauses were deliberately inserted in the original Article 31 leaving no manner of doubt that Zamindaris and Estates were sought to be abolished on payment of even illusory compensation. The various States had already passed laws or were in the process of passing laws on the subject, and specific provision was made in the two clauses, securing such laws from challenge on the ground that they were not acquired by the State for a public purpose or that adequate compensation was not paid. The first case under the Bihar Land Reforms Act, 1950, State of Bihar v.

Kameshwar Singh [1952] S.C.R. 889 shows that the law was highly unjust (from the prevailing point of view of ‘justice’) and the compensation payable was in some cases purely illusory. (See : Mahajan J. p. 936). And yet by virtue of Article 31(4) there could be no challenge to that Act and other similar laws on those grounds. By oversight, challenge to such laws under Articles 14 and 19 had not been expressly excluded, and so when the case was pending in this Court, the first Amendment Act was passed inserting Articles 31A and 31B by which, to take no chances, a challenge based on all fundamental rights in Part III was wholly excluded. The course taken by the Constitution and its first Amendment leaves no doubt that Zamindaris and Estates were intended to be expropriated from the very beginning and no ‘core’ with regard to payment of compensation was sought to be safeguarded. By the time the 4th Amendment was made in 1955, it became apparent that the challenge to any scheme of redistribution or breaking up of concentration of property was confined generally to Articles 14, 19 and 31, and hence Article 31A Was amended. By the amendment all intermediaries, including small absentee landlords, were permitted to be eliminated and challenge to Article 31A was excluded only under Articles 14, 19 and 31. In short, rights in landed agricultural property were extinguished without a thought to the necessity of paying fair compensation. In a real sense concentration of wealth in the form of agricultural lands was broken and community resources were distributed. On the other hand, a protectionist economic system, reinforced by controls, followed in the realm of trade and industry with a view to achieve greater production of goods and services led to other forms of concentration of wealth and means of production in the wake of Independence. So comes the 25th Amendment, the object of which is the same viz implementation of Article 39(b) & (c). It has made clear that owners of property when it is acquired for a public purpose are not entitled to compensation as interpreted by this Court, and any law made with the aforesaid object cannot be challenged on the grounds arising out of Articles 14, 19 and

31. In principle, there is no difference in Article 31A and the new Article 31C inserted by the 25th Amendment. In trying to support his arguments on the core principle of essential features, Mr. Palkhivala tried to play down the role of Article 31(4) & (6) and Article 31A excusing them on the ground that they related to very necessary agrarian reforms to which the majority party in the Constituent Assembly was for years before the Constitution, committed. But that is not a legal argument. Articles 31(4)(6) and Article 31A clearly show that community interests were regarded as supreme and those Articles were only a step in the implementation of the Directive Principles in Article 39(b) & (c).

(Compare the observations of Das J. in 1952 S.C.R. 889 at pages 996 to 999.) The Constitution definitely refused to accept the ‘core’ principle with regard to property rights, if property was required to be expropriated in the common interest in pursuance of the Directive Principles. The mood of the majority party is reflected in the speech of Pandit Govind Vallabh Pant, the then Chief Minister of Uttar Pradesh. Speaking in the Constituent Assembly on Article 31 and after justifying the provision of Article 31(4) &

(6) in relation to laws regarding Zamindaris and agricultural estates (there were 20 lakh Zamindars) according to him, in U.P. alone (he said “I presume that if at any time this legislature chooses to nationalise industry, and take control of it, whether it be all the industries or any particular class of it, such as the textile industry or mines, it will be open to it to pass a law and to frame the Principles for such purpose, and those principles will be invulnerable in any court. They will not be open to question, because the only condition for disputing them, as has been pointed out by Shri Alladi, (Krishnaswamy Iyer) one of the most eminent jurists which our country has ever produced, is this, that it should he a fraud on the Constitution).” (See : Constituent Assembly Debates Vol. IX page 1289). It shows that Article 31(4)(6) were the first step as applied to land legislation, in the direction of implementing the Directive Principles of Article 39(b) &

(c), and it was only a matter of time when the principles would be applied to other types of concentration of wealth and its distribution. As Mahajan, observed in State of Bihar v.

Kameshwar Singh at pages 929-30, our Constitution raised the obligation to pay compensation for compulsory acquisition of property to the status of a fundamental right.

At the same time by specifically inserting Clauses (4) & (6) in Article 31, it made the issues of public purpose and compensation prescribed in Article 31(2) non-justiciable in some specified laws dealing with concentration and distribution of wealth in the form of landed agricultural property. This clearly negatived the idea of protecting concentration of wealth in a few hands as an essential feature of the Constitution. Hidyatullah, J. was saying practically the same thing when he remarked in Golak Nath’s case that it was an error to include property rights in Part III and that they were the weakest of fundamental rights.

1339. I have already discussed the amplitude of power conferred by the amending clause of the Constitution. In countries like America and Australia where express limitations have been imposed in the amending clause itself there is substantial authority for the view that even these express limitations can be removed by following the procedure laid down in the amending clause. According to them this could be done in two steps the first being to amend the amending clause itself. It is not necessary for us to investigate the matter further because Article 368 does not contain any express limitation. On the other hand, the power is wide enough even to amend the provisions of Article 368. See : proviso (e) of that article. In other words, Article 368 contains unqualified and plenary powers to amend the provisions of the Constitution including the Amending clause. Prima facie, therefore, to introduce implied prohibitions to cut down a clear affirmative grant in a Constitution would be contrary to the settled rules of construction. (See the dissenting judgment of Isaacs and Rich JJ in McCawley v. The King 26 C.L.R. 43-68 approved by the Privy Council in 1920 A.C. 691).

1340. When such an Amending clause is amended without affecting the power the amendment will principally involve the Amending procedure. It may make amendment easier or more difficult. The procedure may also differ substantially. Parliament may be eliminated from the process leaving the amendment to the States. The proviso might be dropped, enlarging the role of the Parliament. On the other hand, the Parliament and State Assemblies may be divested of the function by providing for a referendum plebiscite or a special convention. While, thus the power remains the same, the instrumentalities may differ from time to time in accordance with the procedure prescribed. Hidayatullah, J., with respect, was right in pointing out that the power to amend is not entrusted to this or that body. The power is generated when the prescribed procedure is followed by the instrumentalities specified in the Article. Since the instrumentalities are liable to be changed by a proper amendment it will be inaccurate to say that the Constituent Assembly had entrusted the power to any-body. If the authority which is required to follow the procedure is the Parliament for the time being, it may be convenient to describe Parliament as the authority to whom the power is granted or entrusted, but strictly that would be inaccurate, because there is no grant to any body. Whichever may be the instrumentality for the time being, the power remains unqualified.

1341. If the theory of implied limitations is sound-the assumption made being that the same have their origin in the rest of the Constitutional provisions including the Preamble and the fundamental rights-then these limitations must clog the power by whatever Agency it is exercised. The rest of the Constitution does not change merely because the procedure prescribed in Article 368 is changed. Therefore, the implied limitations should continue to clog the power. Logically, if Article 368 is so amended as to provide for a convention or a referendum, the latter will be bound to respect the implied limitations-a conclusion which Mr. Palkhivala is not prepared to accept. He agrees with the jurists who hold that a convention or a referendum will not be bound by any limitations. The reason given is that the people directly take part in a referendum or, through their elected representatives, in a convention. Even in Golak Nath it was accepted that any part of the Constitution including the fundamental rights could be amended out of existence by a Constituent Assembly.

1342. The argument seems to be that a distinction must be made between the power exercised by the people and the power exercised by Parliament. In fact Mr. Palkhivala’s whole thesis is that the Parliament is a creature of the Constitution and the limitation is inherent in its being a constituted authority. We have already examined the question and shown that where the people have withdrawn completely from the process of Amendment, the Constituent body to whom the power is entrusted can exercise the power to the same extent as a Constituent Assembly and that the power does not vary according to the Agency to whom the power is entrusted. Therefore, this reason also viz. that Parliament is a constituted body and, therefore, it suffers from inherent limitations does not hold good.

1343. From the conclusion that the power of Amendment remains unqualified by whomsoever it is exercised, it follows that there can be no implied or inherent limitations on the Amending power. If a special convention admittedly does not suffer from limitations, any other constituent body cannot be subject to it.

1344. The leading majority judgment in Golak Nath’s case had seen some force in this, doctrine of implied limitations (808), but did not find it necessary to decide on the issue.

To remove all doubts on that score the 24th Amendment is now suitably amended. Its first clause says that Parliament may amend any provision of the Constitution notwithstanding anything in it. Therefore, in the matter of amendment Parliament may not, now, be inhibited by the other express provisions of the Constitution, which would mean that it may also ignore all implications arising therefrom.

1345. Where power is granted to amend the Amending power, as in our Constitution, there is no limit to the extent this may be done. It may be curtailed of ‘enlarged’. This is well illustrated in Ryan v. Lennox [1935] Irish Reports, 170. Under the Irish State Constitution Act of 1922, the Parliament (Oireachtas) had been given power to amend the Constitution under Article 50 of the Act. Under that Article, amendments during the first eight years of the Constitution, could be validly made without having recourse to a referendum unless specially demanded by the persons, and in the manner specified in Article 47, but amendments made after that period had to be approved in every case by a referendum and the people. By a Constitutional amendment of 1928 (Amendment NO.

10) the compulsion of Article 47 was got rid of, and by an amendment of 1929 (Amendment No. 16) made within the eight year period already referred to, the period of 8 years was extended to 16 years. The result was that the Constitution now authorized the Parliament to amend by ordinary legislation its Constitution for the period of 16 years from the commencement of the Constitution without being required to have recourse to a referendum. In 1931 by a further Amendment (Amendment No. 17) extensive alterations were made by which inter alia, personal liberty was curtailed, denying trial by Jury or by the regular courts. Ryan who was one of the victims of the new law applied to the High Court for a Writ of Habeas Corpus on the ground that the several amendments were invalid, especially No. 16, by which the period of 8 years had been extended to 16 years.

If Amendment No. 16 was invalid, that would have automatically resulted in Amendment No. 17 being invalid, having been made after the first period of 8 years. The High Court (3 JJ) unanimously held that all the Amendments were valid. In appeal to the Supreme Court that decision was confirmed by a majority, Kennedy, Chief Justice, dissenting. One of the chief contentions directed against Amendment No. 16 was that the Parliament could not have ‘enlarged’ its power from 8 to 16 years to change the Constitution without a referendum by ordinary legislation. This conten tion was rejected by the majority.

Kennedy, C.J. took a different view of the amendment. He held that Article 50 did not provide for the amending of the Amendatory power, conceding that otherwise the power could have been so ‘enlarged’. Since there is no dispute in our case that by reason of Clause (e) of proviso of Article 368 power is given to amend the amendatory power, it was open to Parliament to ‘enlarge’ the power by amendment. If it is assumed-and we have shown there is no ground to make such an assumption-that there was some implied limitation to be derived from other provisions of the Constitution, that limitation, if any, is now removed by the non-obstante clause in Clause 1 of the Amended Article 368.

1346. It is of some interest to note here that in a case which later went to the Privy Council, Moore v. Attorney General for the Irish State [1935] A.C. 484 and in which a Constitutional amendment made by the Irish Parliament in 1933 (Amendment No. 22) was challenged, Mr. Greene (Later Lord Greene) conceded before the Privy Council that Amendment No. 16 of 1929 was valid and their Lordships observed (494) “Mr. Wilfied Greene for the petitioners rightly conceded that Amendment No. 16 was regular and that the validity of these subsequent amendments could not be attacked on the ground that they had not been submitted to the people by referendum.” The question of validity of Amendment No. 16 was so vital to the petitioner’s case that it is impossible to believe that a counsel of the standing of Lord Greene would not have challenged the same and, in the opinion of their Lordships, ‘rightly’. According to Keith the judgment of Kennedy, C.J. in Rayan’s case was wrong. See : Letters on Imperial Relations Indian Reform Constitutional and International Law 1916-1935 page 157.

1347. The importance of Rayan’s case lies in the fact that though Article 50 of the Irish Free State Constitution did not expressly say that Article 50 itself is liable to be amended, no less than five judges of the Irish Courts held it could be amended though the amendment resulted in the ‘enlargement’ of the power of the Irish Parliament to amend the Constitution. How wide the power was further established in Moore’s case which held that Amendment No. 22 was valid, though by this Amendment even the Royal Prerogative regarding appeals to the Privy Council was held to have been abrogated by the combined operation of the, Statute of Westminster and the Constitutional Amendment, in spite of Article 50 having been originally limited by the terms of the Scheduled Treaty of 1922. In our case Article 368 authorizes its own amendment and such an amendment can enlarge the powers of the Parliament, if such was the need.

1348. Apart from reasons already given, we will consider, on first principles, whether the constituent body is bound to respect the so-called ‘essential feature’ of the fundamental rights especially that of right to property. The fact that some people regard them as good and desirable is no adequate reason. The question really is whether the constituent body considers that they require to be amended to meet the challenge of the times. The philosophy of the amending clause is that it is a safety-valve for orderly change and if the good and desirable feature has lost its appeal to the people the constituent body would have undoubtedly the right to change it.

1349. Indeed, if there are some parts of the Constitution which are made expressly unamendable the constituent body would be incompetent to change them, or if there is anything in the provisions of the Constitution embodying those essential features which by necessary implication prohibit their amendment those provisions will also become unamendable. The reason is that in law there is no distinction between an express limitation and a limitation which must be necessarily implied. Secondly, it is an accepted rule of construction that though a provision granting the power does not contain any limitation that may not be conclusive. That limitation may be found in other parts of the statute. But we have to remember that Article 368 permits the amendment of all the provisions of the Constitution expressly. And if that power is to be cut down by something that is said in some other provision of the Constitution the latter must be clear and specific. As far back as 1831 Tindal, C.J. delivering the unanimous opinion of the Judges in the House of Lords in Warburton v. Loveland (1831) II Dow & Clark, 480 observed at page 500 “No rule of construction can require that, when the words of one part of a statute convey a clear meaning…it shall be necessary to introduce another part of the statute which speaks with less perspicuity, and of which the words may be capable of such construction as by possibility to diminish the efficacy of the other provisions of the Act.” To control the true effect of Article 368 “you must have a context even more plain or at least as plain as the words to be controlled”. See : Jessel M.R. in Bentley v.

Rotherham (1876-77) 4 Ch. D. 588 (592). Neither the text nor the context of the articles embodying the fundamental rights shows that they are not exposed to Article 368.

Moreover, when we are concerned with a power under a statute, it is necessary to remember the following observations of Lord Selborne in Reg. v. Burah (1878) 3 App.

CAS. 889 at pp. 904 & 905 “The established Courts of Justice, when a question arises whether the prescribed limits have been exceeded, must of necessity determine that question; and the only way in which they can properly do so, is by looking to the terms of the instrument by which, affirmatively, the legislative powers were created, and by which, negatively, they are restricted. If what has been done is legislation, within the general scope of the affirmative words which give the power, and if it violates no express condition or restriction by which that power is limited it is not for any Court of Justice to inquire further, or to enlarge constructively those conditions and restrictions.” Similarly Earl Loreburn in Attorney-General for the Province of Ontario v. Attorney-General for the Dominion of Canada (1912) App. Cas. 571 observed at page 583 “In the interpretation of a completely self-governing Constitution founded upon a written organic instrument such as the British North America Act, if the text is explicit the text is conclusive, alike in what it directs and what it forbids. When the text is ambiguous, as for example, when the words establishing too mutually exclusive jurisdictions are wide enough to bring a particular power within either, recourse must be had to the context and scheme of the Act.” The only course which is open to courts is to determine the extent of power expressly granted after excluding what is expressly or by necessary implication excluded. That is the view of the Privy Council in Webb v. Outrim [1907] A.C. 81 the effect of which is summarized by Isaacs, J. in The Amalgamated Society of Engineers v.

The Adelaide Steamship Co. Limited and Ors. [1920] HCA 54; 28 C.L.R. 129 at p. 150 as follows:

…we should state explicitly that the doctrine of “implied prohibition”

against the exercise of a power once ascertained in accordance with ordinary rules of construction, was definitely rejected by the Privy Council in Webb v. Outrun.

1350. Having regard to the rules of construction relating to power referred to above, we have to see if either the provisions relating to the fundamental right to property or any related provisions of the Constitution contain words of prohibition or limitation on the amending power. Right to property is sought to be safeguarded under Article 31, and Article 19 deals with freedoms having relation to property, profession, trade and business. We find nothing in these provisions to suggest that rights to property cannot be abridged by an amendment of the Constitution. On the other hand, Article 31(1) suggests that one can be deprived of property under the authority of law. The right to receive compensation under Clause (2) of Article 31, as it stood at the time of the commencement of the Constitution, had been considerably cut down by several provisions contained in the other clauses of that article. Article 31(4) & (6) not only envisaged breaking up of concentration of landed property in the hands of Zamindars and the like but also expropriation without payment of just compensation. That necessarily called for the exclusion of Articles 14, 19 and 31, because no scheme for expropriation or extinguishment of rights in property would succeed without their exclusion. Thereafter there has been a spate of amendments curtailing property rights and none of them seems to have been challenged on the ground that there was something in the provisions themselves (apart from the fact that they affect a ‘transcedental’ fundamental right) suggesting an implied or inherent limitation on the amending power. The last sentence from Lord Loreburn’s judgment quoted about embodies a well-known rule of construction which is useful when the text of a statute is ambiguous. Where the text is clear and unambiguous there can be no recourse to the context or the scheme of the Act;

nor can the context or the scheme be utilised to make ambiguous what is clear and unambiguous. Moreover the rule does not permit in case of ambiguity recourse to the scheme and context which is unhelpful in resolving the ambiguity. It does not authorize investigating the scheme and context with an effect of delimiting the power referred to in the ‘ambiguous’ text, if the scheme and the context do not contain words which expressly or by necessary implication have the effect. All this is important in connection with the construction of the word ‘Amendment in Article 368. We have already shown that the word ‘Amendment’ used in the context of a Constitution is clear and unambiguous.

Therefore, the scheme and the context are irrelevant. The scheme and the context on which reliance is placed before us consist principally of the alleged dominating statuts of the Preamble and the alleged transcedental character of the fundamental rights neither of which helps us in the legal interpretation of the word ‘Amendment’. They are being pressed into service merely to create an ambiguity where there is none. Actually the context and scheme are here used to cut down the ambit and scope of the expression ‘amendment of the Constitution’ by investing them with that effect where neither expressly nor by necessary implication do they contain any prohibition or limitation on the Amending power. Therefore, as a matter of construction no implied limitations can be inferred from the Preamble or the fundamental rights, being as much part of a legal document as any other provision of the Constitution, are subject to equal consideration in the matter of legal construction. To be relevant, the scheme and context must say or reasonably suggest something with regard to Amending power.

1351. Mr. Palkhivala sought to draw support for his doctrine of implied limitations from the preamble. According to him the Preamble sets out the objectives of the Constitution and, therefore, any tampering with these objectives would destroy the identity of the Constitution. And since an amendment of the Constitution, howsoever made, must preserve the identity of the Constitution the objectives of the Preamble should be treated as permanent and unamendable. On that basis he further contended that since the fundamental rights are mostly an elaboration of the objectives of the Preamble, it was implied that the fundamental rights or, at least, the essence of them was not liable to be damaged or destroyed by an amendment.

1352. The submission that the fundamental rights are an elaboration of the preamble is an over-statement and a half truth. According to the Preamble the people of India have given unto themselves the Constitution to secure to all its citizens (a) JUSTICE, social, economic and political; (b) LIBERTY of thought, expression, belief, faith and worship;

(c) EQUALITY of status and of opportunity; and to promote among the citizens (d) FRATERNITY assuring the dignity of the individual and the unity of the Nation. There is no doubt that the Constitution is intended to be a vehicle by which the goals set out in it are hoped to be reached. Indeed, being a part of the Constitution, strictly speaking, it is amendable under Article 368. But we will assume that the people of India will not be rash enough to amend the glorious words of the Preamble; and as long as the Preamble is there the Governments will have to honour the Preamble and the Constitution will have to continue as a vehicle which would lead us to the goals. But to say that the fundamental rights are an elaboration of these goals would be a caricature. Most of the fundamental rights may be traced to the principles of LIBERTY and EQUALITY mentioned in the Preamble. But whereas the concepts of LIBERTY and EQUALITY are mentioned in absolute terms in the Preamble the fundamental rights including the several freedoms are not couched in absolute terms. They reflect the concepts of LIBERTY and EQUALITY in a very attenuated form with several restrictions imposed in the interest of orderly and peaceable Government.

1353. The pre-eminent place in the Preamble is given to JUSTICE-social, economic and political, and it is obvious that without JUSTICE the other concepts of LIBERTY, EQUALITY and FRATERNITY would be illusory. In a democratic country whose institutions are informed by JUSTICE-social, economic and political, the other three concepts of LIBERTY, EQUALITY and FRATERNITY will be automatically fostered.

Social and political Justice takes care of Liberty; and Justice, social and economic, takes care of Equality of status and of opportunity. Therefore, even in the Directive Principles the supreme importance of Justice-social, economic and political-is highlighted in Article 38, in which the State is given a mandate to strive to promote the welfare of the people by securing and protecting a social order in which justice-social, economic and political shall inform all the institutions of the National life. Where genuine and honest efforts are made in the implementation of this mandate the content and ambit of the concepts of Liberty and Equality are bound to increase and expand. As Wade has pointed out in his introduction to Dicey’s Law of the Constitution at page lxxxii “Liberty today involves the ordering of social and economic conditions by governmental authority, even in those countries where political, if not economic equality of its citizens, has been attained.

Without expansion of that authority, which Federal States must find more difficult to achieve than a unitary State like the United Kingdom, there is inevitably a risk that the Constitution may break down before a force which is not limited by considerations of Constitutional niceties.” Again he points out at pages xxiv and xxv that the modern House of Commons is a forum in which both parties put forward incessant demands for the remedying of some social or economic ill of the body politic…and the changing conditions have all been brought about by the action of Parliament. In doing that, Wade says, it could not be denied that legislation has shifted the emphasis on individual liberty to the provision of services for the public good. In the terms of our Constitution especially the Preamble and Article 38, the shift of emphasis is from individual liberty to Justice-social, economic and political.

1354. The absolute concepts of Liberty and Equality are very difficult to achieve as goals in the present day organised society. The fundamental rights have an apparent resemblance to them but are really no more than rules which a civilized government is expected to follow in the governance of the country whether they are described as fundamental rules or not. England developed these rules in its day to day Government under the rule of law and does not make a song and dance about them. British rulers of India tried to introduce these rules in the governance of this country, as proof of which we can point out to the vast mass of statutes enacted during the British period which have been continued, practically without change, under our Constitution. No body can deny that when Imperial interests were in jeopardy, these rules of good government were applied with an unequal hand, and when the agitation for self rule grew in strength these rules were thrown aside by the rulers by resorting to repressive laws. It was then that people in this country clamoured for these elementary human rights. To them their value in our social and political life assumed such importance that when the Constitution was framed we decided that these rules of Civilized government must find a place in the Constitution, so that even our own Governments at the centre and the States should not overlook them. That is the genesis of our fundamental rights. The importance of these rights as conferred in the Constitution lies not in their being something extraordinary but in the bar that the Constitution imposed against laws which contravened these rights and the effective remedy supplied under Article 32. Indeed the framers of the Constitution took good care not to confer the fundamental rights in absolute terms because that was impractical. Knowing human capacity for distorting and misusing all liberties and freedoms, the framers of the Constitution put restrictions on them in the interest of the people and the State thus emphasizing that fundamental rights i.e. rules of civilized government are liable to be altered, if necessary, for the common good and in the public interest.

1355. And yet, as we have seen above, even in U.K. individual Liberty as it was understood a generation or two ago is no longer so sacrosanct, especially, in relation to ownership of property Several statutes in the economic and social field have been passed which while undoubtedly impinging upon the individual liberties of a few have expanded social and economic justice for the many; If U.K. had stood staunchly by its Victorian concept of laissez faire and individual liberty, the progress in social and economic justice which it has achieved during the last half a century would have been difficult. Even so, though very much more advanced than our country, U.K. cannot claim that it has fully achieved social and economic justice for all its citizens. But there is no doubt that the parties which form the Governments there have always this goal in view though their methods may be different. In a country like ours where we have, on the one hand, abject poverty on a very large scale and great concentration of wealth on the other, the advance towards social and economic justice is bound to be retarded if the old concept of individual liberty is to dog our footsteps. In the ultimate analysis, liberty or freedoms which are so much praised by the wealthier sections of the community are the freedom to amass wealth and own property and means of production, which, as we have already seen, our Constitution does not sympathise with. If the normal rule is that all rules of civilized government are subject to public interest and the common weal, those rules will have to undergo new adjustments in the implementation of the Directive Principles. A blind adherence to the concept of freedom to own disproportionate wealth will not take us to the important goals of the Preamble, while a just and sympathetic implementation of the Directive Principles has at least the potentiality to take us to those goals, although, on the way, a few may suffer some dimunition of the unequal freedom they now enjoy. That being the philosophy underlying the Preamble the fundamental rights and the Directive Principles taken together, it will be incorrect to elevate the fundamental rights as essentially an elaboration of the objectives of the Preamble. As a matter of fact a law made for implementing the Directive Principles of Article 39(b) and (c), instead of being contrary to the Preamble, would be in conformity with it because while if may cut down individual liberty of a few, it widens its horizon for the many.

1356. It follows that if in implementing such a law the rights of an individual under Articles 14, 19 and 31 are infringed in the course of securing the success of the scheme of the law, such an infringement will have to be regarded as a necessary consequence and, therefore, secondary. The Preamble read as a whole, therefore, does not contain the implication that in any genuine implementation of the Directive Principles, a fundamental right will not suffer any dimunition. Concentration and control of community resources, wealth and means of production in the hands of a few individuals are, in the eyes of the Constitution, an evil which must be eradicate from the social organization, and hence, any fundamental right, to the extent that it fosters this evil, is liable to be abridged or taken away in the interest of the social structure envisaged, by the Constitution. The scheme of the fundamental rights in Part III itself shows that restrictions on them have been placed to guard against their exercise in an evil way.

1357. Nor is there anything in the Preamble to suggest that the power to amend the fundamental right to property is cut down. Actually there is no reference to the right to property. On the other hand, while declaring the objectives which inspired the framers of the Constitution to give unto themselves the Constitution which, they hoped, would be able to achieve them, they took good care to provide for the amendment of “this Constitution”. It was clearly implied that if the operative parts of the Constitution failed to put us on the road to the objectives, the Constitution was liable to be appropriately amended. Even the Preamble, which, as we know, had been adopted by the constituent assembly as a part of the Constitution. (Constituent Assembly Debates Vol. X p. 456) was liable to be amended. Right to property was, perhaps, deliberately not enthroned in the Preamble because that would have conflicted with the objectives of securing to all its citizens justice, social, economic and political, and equality of opportunity, to achieve which Directive Principles were laid down in Articles 38 to 51. Moreover the Preamble, it is now well settled-can neither increase nor decrease the power granted in plain and clear words in the enacting parts of a statute. See : The Berubari Union and Exchange of Enclaves [1960] 3 S.C.R. 250 at pp. 281 and 282. Further, the legislature may well-intend that the enacting part do extend beyond the apparent ambit of the Preamble. See :

Secretary of State v. Maharajah of Bobbili 43 Madras 529 P.C. at 536. As a matter of fact if the enacting part is clear and unambiguous it does not call for construction. In Sprague’s case the Supreme Court of America had been called upon to construe Article V, the amending clause, so as to cut down the amending power by implications arising out of certain other provisions of the Constitution itself. Replying to the argument the court observed, “the United ‘State asserts that Article V is clear in statement and in meaning contains no ambiguity and calls for no resort to rules of construction. A mere reading demonstrates that this is true.” These observations apply with greater force to our amending clause namely Article 368, for in Article V of the American Constitution there was some room for play of argument on the basis of alternative methods permitted for the ratification of the proposed amendments. On the basis of the alternative methods provided in Article V-one by the State legislature and the other by the State convention-it was argued that, the State convention was the appropriate method Bo the exclusion of the State legislature, because the prohibition amendment (18th amendment) directly affected personal liberty. Where personal liberty was involved, it was submitted, the people alone through their convention could ratify an amendment, especially, as under Article X the people had reserved to themselves the powers which were not expressly conferred on the federal Constitution. This argument was rejected by the Supreme Court on the ground that the language of Article V was clear and unambiguous and though alternative methods were provided for, the ultimate authority as to which alternative method should be adopted was the Congress and if the Congress chose the method of ratification by the State legislature there was an end of the matter. The court observed “In the Constitution words and phrases were used in their normal and ordinary as distinct from technical meaning. When the intention is clear, there is no room for construction and no excuse for interpolation”. By interpolation the court specifically meant an addition in the nature of a proviso to Article V limiting the power of the Congress as to the choice of the body it would make for the purposes of ratification.

1358. Reference was made to certain cases with a view to show that though there were no words suggesting a limitation on a power, implied limitations or prohibitions are noticed by courts. In a recent Australian case of Victoria v. The Commonwealth 45 A.L.I.R. 251 the question arose as to the power of the Commonwealth Parliament under Section 51(ii) of the Constitution to make laws with respect to taxation under the Pay-roll Tax Assessment Act, 1941-1969. It was unanimously held by the court that the Commonwealth Parliament had the power. During the course of arguments, the question arose, which has been troubling the Australian courts for years, whether there were implied limitations on commonwealth Legislative power under the Constitution in view of the fact that the Preamble to the Constitution recited that the people had agreed “to unite in one indissoluble federal commonwealth under the Crown.” In Amalgamated Engineers case, already referred to, which had been regarded for a long time as the final word on the question, the alleged implied prohibition or limitation had been rejected. The question was held to be a question of construction with regard to the extent of power and if the power was ascertained from the express words, there could be no further limitation thereon by implication. But in the case referred to above, while three Judges accepted that view as still good, the other four were of the contrary opinion. Whichever view is correct that really makes no difference to me question before us. We are concerned with the amending power. In the Australian case the Judges were concerned with legistative power and that had to be ascertained within the four corners of the Constitution by which the power had been created and under which it had to be exercised. There was room for construction on the basis of the words and structure of the Constitution, especially, the Preamble which was not liable to be amended by the Commonwealth. On the other hand, since the power to amend the Constitution is a superior power it cannot Be bound by any provision of the Constitution itself, the obvious reason being that even such a provision is amendable under the Constitution. In re The Initiative and Referendum Act, [1919] A.C.

935 it was held by the Privy Council that the British North America Act, 1867, Section 92, head 1, which empowers a Provincial legislature to amend the Constitution of the Province, “excepting as regards the office of Lieutenant-Governor,” excludes the making of a law which abrogates any power which the Crown possesses through the Lieutenant- Governor who directly represents the Crown. By the Initiative and Referendum Act the legislative assembly of Manitoba-a Province in Canada-compelled the Lieutenant- Governor to submit a proposed law to a body of voters totally distinct from the legislature of which he is the Constitutional head, and would render him powerless to prevent it from becoming an actual law if approved by those voters. It was held that this directly affected the office of the Lieutenant-Governor as part of the legislature and since the amendment to the Constitution had the effect of affecting that office which was expressly excepted from the amending power the law was void. It is thus seen that there was no question of an implied limitation. In the other case cited before us namely Don John Francis Douglas Livanage and Ors. v. The Queen [1967] A.C. 259 no question of amending the Constitution arose. There by an ordinary act of the legislature made in 1962 under Section 29(1) of the Ceylon (Constitution and Independence) Orders in Council, 1946-47 an attempt was made to partially vest in the legislature and the executive the judicial powers of the judges which vested in them under a separate Imperial Charter viz. the Charter of Justice, 1833 the effective operation of which was recognized in the Constitution of 1946-47. It was held that the Act was ultra vires the Constitution. Some more cases like Ranasinghe’s [1964] UKPC 1; [1965] A.C. 172 case, Taylor v. Attorney General of Queensland [1917] HCA 45; 23 C.L.R. 457, Mangal Singh v. Union of India [1966] INSC 251; [1967] 2 S.C.R. 109 at 112, were cited to show that Constitutional laws permit implications to be drawn where necessary. No body disputes that proposition. Courts may have to do so where the implication is necessary to be drawn. In Ranasinghe’s case the Privy Council is supposed to have expressed the opinion on a construction of Section 29 of the Ceylon (Constitution) Order in Council, 1946 that Sub-sections 2 and 3 are unamendable under the Constitution. In the first place, the observation is obiter, and it is doubtful if their Lordships intended to convey that even under Section 29(4), they were unamendable. A plain reading of the latter provision shows they were amend able by a special majority.

Secondly, in an earlier portion of the judgment provisions 29(2) & (3) are described as ‘entrenched’, the plain dictionary meaning of which is that they are not to be repealed except under more than stringent conditions. See also Wade’s Introduction to Dicey pages xxxvi to xxxvii. Jennings in his Constitution of Ceylon (1949) points out at page 22 that the limitations of 29(2) & (3) can be altered or abridged by the special procedure under Section 29(4). Similarly we are in Constitutional Structure of the Commonwealth 1960 reprinted in 1963 pages 83-84. In any event, that was a pure matter of construction on a reading of Sub-sections 1 to 4 of Section 29 together. In Taylor’s case the question for consideration was as to the interpretation of the expression ‘Constitution of such legislature’ in Section 5 of the Colonial Laws Validation Act, 1865. At the time in question the legislature consisted of a lower house and an upper house and it was held that the expression ‘Constitution of such legislature” ‘was wide enough to include the conversion of a bicameral legislature into a unicameral one. Issacs, J. also held ‘legislature’ in the particular context meant the houses of legislature and did not include the. Crown. In Mangal Singh’s case it was merely held that if by law made under Article 4 of our Constitution a state was formed, that state must have legislative, executive and judicial organs which are merely the accoutrements of a state as understood under the Constitution. The connotation of a ‘state’ included these three organs. That again was a matter of pure construction. None of the cases sheds any light on the question with which we are concerned viz. whether an unambiguous and plenary power to amend the provisions of the Constitution, which included the Preamble and the fundamental rights, must be frightened by the fact that some superior and transcedental character has been ascribed to them.

1359. On the other hand, in America where implied limitations were sought to be pressed in cases dealing with Constitutional amendments, the same were rejected. In Sprague’s case the Supreme Court rejected the contention of implied limitation supposed to arise from some express provisions in the Constitution itself. Referring to this case Dodd in Cases in Constitutional Law, 5th edition pages 1375-1387 says”This case it is hoped puts an end to the efforts to have the court examine into the subject matter of Constitutional amendment” In The National Prohibition 65 Law, edn. 994 cases decided earlier, the Prohibition Amendment (18th) was challenged, as the briefs show, on a host of alleged implied limitations based on the Constitution, its scheme and its history. The opinion of the court did not accept any of them, in fact, did not even notice them. American jurists are clearly of the opinion that the Supreme Court had rejected the argument of implied limitations. See for example Cooley Constitutional Law, 4th edition, 46-47; Burdick Law of American Constitution pp. 45 to 48.

1360. The argument that essential features (by which Mr. Palkhivala means “essential features, basic elements or fundamental principles”)’ of the Constitution, though capable of amendment to a limited extent are not liable to be damaged or destroyed is only a variation on the argument previously urged before this Court on the basis of the socalled “spirit of the Constitution” which had been rejected as far back as 1952. See : State of Bihar v. Kameshwar Singh [1952] S.C.R. 889. That case arose out of the Bihar Land Reforms Act, 1950 which was pending in the Bihar Legislature at the time of the commencement of the Constitution. After it became law it was reserved for the consideration of the President who gave assent to it. Thus it became one of the laws referred to in Article 31(4) of the Constitution and in virtue of that provision it could not be called in question on the ground that it contravened the provisions of Clause 2 of Article 31. Under that law Zamindari was abolished and the lands vested in the State. The Zamindars received what was described as illusory compensation. As there was danger of challenge under Articles 14, 19 and 31, the Constitution was amended to incorporate Article 31A and Article 31B to take effect from the date of the commencement of the Constitution and this Act along with similar other Acts were included in the Ninth Schedule. In Sankari Prasad’s case Che amendment was held valid and when the case came before this Court the arguments became limited in scope. Mr. P.R. Das who appeared for the Zamindars tried to skirt the bar under Article 31(4) by relying on Entry 36 List II and Entry 42 in List III arguing that the law in so far as it did not acquire the Zamindaris for a public purpose or make provision for adequate compensation was incompetent under those entries. Dr. Ambedkar who appeared for other Zamindars took a different stand. In the words of Patanjali Shastri, C.J. “He maintained that a Constitutional prohibition against compulsory acquisition of property without public necessity and payment of compensation was deducible from what he called the “spirit of the Constitution”, which, according to him was a valid test for judging the Constitutionality of a statute. The Constitution, being avowedly one for establishing liberty, justice and equality and a government of a free people with only limited powers, must be held to contain an implied prohibition against taking private property without just compensation and in the absence of a public purpose. (Emphasis is supplied) He relied on certain American decisions and text-books as supporting the view that a Constitutional prohibition can be derived by implication from the spirit of the Constitution where no express prohibition has been enacted in that behalf. Articles 31-A and 31-B barred only objections based on alleged infringements of the fundamental rights conferred by Part III, but if, from the other provisions thereof, it could be inferred that there must be a public purpose and payment of compensation before private property could be compulsorily acquired by the State, there was nothing in the two articles aforesaid to preclude objection on the ground that the impugned Acts do not satisfy these requirements and are, therefore, unConstitutional.” (Emphasis supplied) This argument was rejected in these words “In the face of the limitations on the State’s power of compulsory acquisition thus incorporated in the body of the Constitution, from which “estates” alone are excluded, it would, in my opinion, be contrary to elementary canons of statutory construction to read, by implication, those very limitations into entry 36 of List II, alone or in conjunction with entry 42 of List III of the Seventh Schedule, or to deduce them from “the spirit of the Constitution”, and that too, in respect of the very properties excluded.” The argument was that having regard to the Preamble and the fundamental rights which established liberty, justice and equality and a government of a free people with only limited powers, taking of private property without just compensation and in the absence of a public purpose was unConstitutional, and this conclusion should be drawn by implied prohibition in spite of Article 31(4), 31A & 31B expressly barring challenge on those very grounds. In other words, an express provision of the Constitution validating a state law was sought to be nullified on the basis of ‘essential features and basic principles’ underlying the Preamble and the fundamental rights, but the attempt was negatived. I sec no distinction between Dr. Ambedkar’s argument in the above case and the case before us, because the plenary power of amendment under Article 368 is sought to be limited by implications supposed to arise from those same ‘essential features and basic principles’.

1361. A legislature functioning under a Constitution is entitled to make a law and it is not disputed that such a law can be amended in any way the legislature likes by addition, alteration or even repeal. This power to amend is implicit in the legislative power to make laws. It can never be suggested that when the legislature amends its own statute either directly or indirectly it is inhibited by any important or essential parts of that statute. It can amend the important, desirable, parts as unceremoniously as it can any other unimportant parts of the statute. That being so, one does not see the reasonableness of refusing this latitude to a body which is specifically granted the unqualified power to amend the Constitution. While the legislature’s power to amend operates on each and every provision of the statute it is difficult to see why the amending clause in a Constitution specifically authorising the amendment of the Constitution should stand inhibited by any of the Constitution. Essential parts and unessential parts of a Constitution should make no difference to the amending power (Compare passage from McCawley’s case already quoted at p. 43-4) That a legislature can repeal an act as a whole and the constituent body does not repeal the Constitution as a whole is not a point of distinction. A legislature repeals an Act when it has outlived its utility. But so far as a Constitution is concerned it is an organic instrument continuously growing in utility and the question of its repeal never arises as long as orderely change is possible. A Constitution is intended to last. Legislative acts do not have that ambition. It is the nature and character of the Constitution as a growing, organic, permanent and sovereign instrument of government which exclude the repeal of the Constitution as a whole and not the nature and character of the Amending power.

1362. Since the ‘essential features and basic principles’ referred to by Mr. Palkhivala are those culled from the provisions of the Constitution it is clear that he wants to divide the Constitution into parts-one of provisions containing the essential features and the other containing non-essential features. According to him the latter can be amended in any way the Parliament likes, but so far as the former provisions are concerned, though they may be amended, they cannot be amended so as to damage or destroy the core of the essential features. Two difficulties arise. Who is to decide what are essential provisions and nonessential provisions ? According to Mr. Palkhivala it is the court which should do it If that is correct, what stable standard will guide the court in deciding which provision is essential and which is not essential? Every provision, in one sense, is an essential provision, because if a law is made by the Parliament or the State legislatures contravening even the most insignificant provision of the Constitution, that law will be void. From that point of view the courts acting under the Constitution will have to look upon its provisions with an equal eye. Secondly, if an essential provision is amended and a new provision is inserted which, in the opinion of the constituent body, should be presumed to be more essential than the one repealed, what is the yardstick the court is expected to employ? It will only mean that whatever necessity the constituent body may feel in introducing a change in the Constitution, whatever change of policy that body may like to introduce in the Constitution, the same is liable to be struck down if the court is not satisfied either about the necessity or the policy. Clearly this is not a function of the courts. The difficulty assumes greater proportion when an amendment is challenged on the ground that the core of an essential feature is either damaged or destroyed. What is the standard? Who will decide where the core lies and when it is reached ? One can understand the argument that particular provisions in the Constitution embodying some essential features are not amendable at all. But the difficulty arises when it is conceded that the provision is liable to be amended, but not so as to touch its ‘core’. Apart from the difficulty in determining where the ‘core’ of an ‘essential feature’ lies, it does not appear to be sufficiently realized what fantastic results may follow in working the Constitution.

Suppose an amendment of a provision is made this year. The mere fact that an amendment is made will not give any body the right to come to this Court to have the amendment nullified on the ground that it affects the core of an essential feature. It is only when a law is made under the amended provision and that law affects some individual’s right, that he may come to this Court. At that time he will first show that the amendment is bad because it affects the core of an essential feature and if he succeeds there, he will automatically succeed and the law made by the Legislature in the confidence that it is protected by the amended Constitution will be rendered void. And such a challenge to the amendment may come several years after the amendment which till then is regarded as a part of the Constitution. In other words, every amendment, however innocuous it may seem when it is made is liable to be struk down several years after the amendment although all the people have arranged their affairs on the strength of the amended Constitution. And in dealing with the challenge to a particular amendment and searching for the core of the essential feature the court will have to do it either with reference to the original Constitution or the Constitution as it stood with all its amendments upto date. The former procedure is clearly absurd because the Constitution has already undergone vital changes by amendments in the meantime. So the challenged amendment will have to be assessed on the basis of the Constitution with all its amendments made prior to the challenged amendment. All such prior amendments will have to be accepted as good because they are not under challenge, and on that basis Judges will have to deal with the challenged amendment. But the other amendments are also not free from challenge in subsequent proceedings, because we have already seen that every amendment can be challenged several years after it is made, if a law made under it affects a private individual. So there will be a continuous state of flux after an amendment is made and at any given moment when the court wants to determine the core of the essential feature, it will have to discard, in order to be able to say where the core lies, every other amendment because these amendments also being unstable will not help in the determination of the core. In other words, the courts will have to go by the original Constitution to decide the core of an essential feature ignoring altogether all the amendments made in the meantime, all the transformations of rights that have taken place after them, all the arrangements people have made on the basis of the validity of the amendments and all the laws made under them without question. An argument which leads to such obnoxious results can hardly be entertained. In this very case if the core argument were to be sustained, several previous amendments will have to be set aside because they have undoubtedly affected the core of one or the other fundamental right.

Prospective overruling will be the order of the day.

1363. The argument of implied limitations in effect invites us to assess the merits and demerits of the several provisions of the Constitution as a whole in the light of social, political and economic concepts embodied therein and determine on such an assessment what is the irreducible minimum of the several features of the Constitution. Any attempt by amendment, it is contended, to go beyond such irreducible minimum-also called the ‘core’ of essential features-should be disallowed as invalid. In other words, we are invited to resort to the substantive due process doctrine of the Supreme Court of America in the interpretation of a Constitutional Amendment. That doctrine was rejected long ago by this Court (Gopalan’s case) even in its application to ordinary legislation. See [1950] INSC 14; 1950 S.C.R. 88 (Kania, C.J. 110) (Das, J. 312). The argument does not have anything to do with the meaning of the expression ‘Amendment of the Constitution’ because it is conceded for the purpose of this argument that ‘amendment of this Constitution’ means amendment of all provisions by way of addition, alteration or repeal’ What is contended, is that by the very implications of the structure, general principles and concepts embodied in the Constitution, an amendment can go only thus far and no further. In other words, the scope of amendment is circumscribed not by what the constituent body thinks, but by what the Judges ultimately think is its proper limits. And these limits, it is obvious, will vary with individual Judges, and as in due process, the limits will be those fixed by a majority of Judges at one time, changed, if necessary, by a bigger majority at another.

Every time an amendment is made of some magnitude as by the Twenty-fifth Amendment we will have, without anything to go on, to consider how, in our opinion, the several provisions of the Constitution react on one another, their relative importance from our point of view, the limits on such imponderable concepts as liberty, equality, justice, we think proper to impose, whether we shall give preponderance to directive principles in one case and fundamental rights in another-in short, determine the ‘spirit of the Constitution’ and decide how far the amendment conforms with that ‘spirit’. We are no longer, than construing the words of the Constitution which is our legitimate province but determining the spirit of the Constitution-a course deprecated by this Court in Gopalan’s case at pages 120-121. When concepts of social or economic justice are offered for our examination in their interaction on provisions relating to right to property-matters traditionally left to legislative policy and wisdom, we are bound to flounder “in labyrinths to the character of which we have no sufficient guides.

1364. It is true that Judges do judicially determine whether certain restrictions imposed in a statute are reasonable or not. We also decide questions involving reasonableness of any particular action. But Judges do this because there are objective guides. The Constitution and the Legislatures specifically leave such determination to the higher courts, not because they will be always right, but because the subject matter itself defies definition and the legislatures would sooner abide by what the judges say. The same is true about limits of delegated legislation or limits of legislative power when it encroaches on the judicial or any other field. Since the determinataon of all these questions is left to the higher judiciary under the Constitution and the law, the judges have to apply themselves to the tasks, however difficult they may be, in order to determine the legality of any particular legislative action. But all this applies to laws made under the Constitution and have no relevance when we have to deal with a Constitutional amendment. The Constitution supplies the guides for the assessment of any statute made under it. It does not supply any guides to its own amendment which is entirely a matter of policy.

1365. The ‘core’ argument and the division into essential and nonessential parts are fraught with the greatest mischief and will lead to such insuperable difficulties that, if permitted, they will open a Pandora’s box of endless litigation creating uncertainty about the provisions of the Constitution which was intended to be clear and certain. Every single provision emobies a concept, a standard, norm or rule which the framers of the Constitution thought was so essential that they included it in the Constitution. Every amendment thereof will be liable to be assailed on the ground that an essential feature or basic principle was seriously affected. Our people have a reputation of being litigious lot.

We shall be only adding to this.

1366. When an amendment is successfully passed, it becomes part of the Constitution having equal status with the rest of the provisions of the Constitution. If such an amendment is liable to be struck down on the ground that it damages or destroys an essential feature, the power so claimed should, a fortiori, operate on the Constitution as it stands. It will be open to the court to weigh every essential feature like a fundamental right and, if that feature is hedged in by limitations, it would be liable to be struck down as damaging an essential feature. Take for example personal liberty, a fundamental right under the Constitution. If the court holds the opinion that the provision with regard to preventive detention in Article 22 damages the core of personal liberty it will be struck down. The same can be said about the freedom in Article 19. If this Court feels that the provision with regard to, say State monopolies damages the fundamental right of trade of a citizen, it can be struck down. In other words, if an amendment which has become part of the Constitution is liable to be struck down because it damages an essential feature it should follow that every restriction originally placed on that feature in the Constitution would necessarily come under the pruning knife of the courts.

1367. In short, if the doctrine of unamendability of the core of essential feature is accepted, it will mean that we add some such proviso below Article 368 : “Nothing in the above Amendment will be deemed to have authorized an Amendment of the Constitution, which has the effect of damaging or destroying the core of the essential features, basic principles and fundamental elements of the Constitution as may be determined by the Courts.” This is quite impermissible.

1368. It is not necessary to refer to the numerous authorities cited before us to show that what are described as some of the essential features are not unamendable. It will be sufficient to refer to only a few. Bryce in his book “The American Commonwealth” New and revised edition, Vol. I says at pages 366-67 with reference to Article V of the American Constitution “But looking at the Constitution simply as a legal document, one finds nothing in it to prevent the adoption of an amendment providing a method for dissolving the existing Federal tie, whereupon such method would be applied so as to form new unions, or permit each State to become an absolutely sovereign and independent commonwealth. The power of the people of the United States appears competent to effect this, should it ever be desired, in a perfectly legal way, just as the British Parliament is legally competent to redivide Great Britain into the sixteen or eighteen independent kingdoms which existed within the island in the eighth century.”

Randall in his revised edition, 1964 The Constitutional Problems under Lincoln, says at page 394 with reference to Article V “Aside from the restriction concerning the “equal suffrage” of the States in the Senate, the Constitution, since 1808, has contained no amendable part, and it designates no field of legislation that may not be reached by the amending power. An Amendment properly made becomes “valid, to all intents and purposes, as part of this Constitution”, having as much “force as any other article. There is no valid distinction between “the Constitution itself” and the amendments. The Constitution at any given time includes all up to the latest amendments, and excludes portions that have not survived the amending process. We should think not of “the Constitution and its amendments,” but of “the Constitution as amended”. This is especially true when we reflect that certain of the amendments supplant or construe portions of the original document.” Colley in his book, The General Principles of Constitutional Law in the United States of America, fourth edition, says at pages 46-47 “Article V of the Constitution prohibits any amendment by which any State “without its consent shall be deprived of its equal suffrage in the Senate”. Beyond this there appears to be no limit to the power of amendment. This, at any rate, is the result of the decision in the so-called National Prohibition Cases…. The amendment was attacked on the grounds that it was legislative in its character, an invasion of natural rights and an encroachment on the fundamental principles of dual sovereignty, hut the contention was overruled. The decision totally negatived the contention that “An amendment must be confined in its scope to an alteration or improvement of that which is already contained in the Constitution and cannot change its basic structure, include new grants of power to the Federal Government, nor relinquish to the State those which already have been granted to it.” Quick and Carran writing in the “Annotated Constitution of the Australian Commonwealth” (1901) observe as follows at p. 989 with regard to the amending clause of the Constitution namely Section 128. “It may be concluded that there is no limit to the power to amend the Constitution, but that it can only be brought into action according to certain modes prescribed. We will consider the modes and conditions of Constitutional reforms further; meanwhile it is essential to grasp the significance and comprehensiveness of the power itself. For example, the Constitution could be amended either in the direction of strengthening or weakening the Federal Government;

strengthening it, by conferring on it new and additional powers; weakening it, by taking away powers. The Constitution could be amended by reforming the structure of the Federal Parliament and modifying the relation of the two Houses; by increasing or diminishing the power of the Senate in reference to Money Bills; by making the Senate subject to dissolution at the same time as the House of Representatives. It is even contended by some daring interpreters that the Constitution could be amended by abolishing the Senate. It could certainly be amended by remodeiling the Executive Department, abolishing what is known as Responsible Government, and introducing a new system, such as that which prevails in Switzerland; according to which the administration of the public departments is placed in the hands of officers elected by the Federal legislature. The Constitution could be amended by altering the tenure of the judges, by removing their appointment from the Executive, and authorizing the election of judges by the Parliament or by the people. The Constitution could be amended in its most vital part, the amending power itself, by providing that alterations may be initiated by the people, according to the plan of the Swiss Popular Initiative; that proposed alterations may be formulated by the Executive and submitted to the people; that proposed alterations may, with certain Constitutional exceptions, become law on being approved of by a majority of the electors voting, dispensing with the necessity of a majority of the States.

1369. On a consideration, therefore, of the nature of the amending power, the unqualified manner in which it is given in Article 368 of the Constitution it is impossible to imply any limitations on the power to amend the fundamental rights. Since there are no limitations express or implied on the amending power, it must be conceded that all the Amendments which are in question here must be deemed to be valid. We cannot question their policy or their wisdom.

1370. Coming to the actual amendments made in the Constitution by the twenty-fifth amendment Act, we find in the first place that the original Clause (2) of Article 31 is recast to some extent by deleting any reference to ‘compensation’ in cases of compulsory acquisition and requisition for a public purpose. The fundamental right now is not to receive ‘compensation’ which this Court construed to mean ‘a just equivalent’ but to receive an “amount” which the legislature itself may fix or which may be determined in accordance with the principles as may be specified by the law. Then again the “amount”

may be given in cash or in such manner as the law may specify. The principal objection to the amendment is that the clause arms the legislature with power to fix any amount which it considers fit and such fixation may be entirely arbitrary having no nexus whatsoever with the property of which a person is actually deprived. In similar cases, it is submitted, the amount fixed may be more in one and very much less in another depending entirely on the whim of the legislature. Conceivably the amount may be illusory having regard to the value of the property. The principles for determining the amount may equally be arbitrary and unrelated to the deprivation. Therefore, it is contended, the amendment is bad. It is difficult to understand how an amendment to the Constitution becomes invalid because the Constitution authorizes the legislatures to fix an “amount” or to specify the principles on which the “amount” is to be determined instead of fixing the “compensation” or specifying the principles for determining “compensation”. Even compensation ultimately is an “amount”. All that the amendment has done is to negative the interpretation put by this Court on the concept of compensation, Clause (2) recognizes the fundamental right to receive an amount in case of compulsory acquisition or requisition and all that it wants to clarify is that the fundamental right is not to receive compensation as interpreted by this Court but a right to receive an amount in lieu of the deprivation which the legislature thinks fit. It is not the case that if a fair amount is fixed for the acquisition or fair principles to determine it are laid down, the amendment would still be invalid. The contention is that it becomes invalid because there is a possibility of the abuse of the power to fix the amount. There is no power which cannot be abused. All Constitutions grant power to legislatures to make laws on a variety of subjects and the mere possibility of the power being used unwisely, injuriously or even abused is not a valid ground to deny legislative power. See : Bank of Toronto v. Lambe 1887, Vol. XII-Appeal Cases 575 at pages 586-587. If that is the position with regard to legislative power, there does not appear to be any good reason why the possibility of abuse of it by the legislature should inhibit an amendment of the Constitution which gives the power. Whether a particular law fixes an amount which is illusory or is otherwise a fraud on power denying the fundamental right to receive an amount specifically conferred by Clause (2) will depend upon the law when made and is tested on the basis of Clause (2). One cannot anticipate any such matters and strike down an amendment which, in all conscience, does not preclude a fair amount being fixed for payment in the circumstances of a particular acquisition or requisition. The possibility of abuse of a power given by an amendment of the Constitution is not determinative of the validity of the amendment.

1371. The new Clause 2B inserted in Article 31 having the consequence of excluding the application of Article 19(1)(f) to a law referred to in Clause (2) of Article 31 is merely a re-statement of the law laid down by this Court after the constiution came into force. The mutual exclusiveness of Article 19(1)(f) and Article 31(2) had been recognized by this Court in a scries of cases. See : Sitabati Debi and Anr. v. State of West Bengal and Anr.

[1967] (2) S.C.R. 949. That principle is now embodied in the new amendment.

1372. The only substantial objection to the twenty-fifth amendment is based on the new Article 31C inserted in the Constitution by Section 3 of the twenty-fifth amendment act.

1373. The new article is as follows:

31C. Notwithstanding anything contained in Article 13, no law giving effect to the policy of the state towards securing the principles specified in Clause (b) or Clause (c) of Article 39 shall be deemed to be void on the ground that it is inconsistent with, or takes away or abridges any of the rights conferred by Article 14, Article 19 or Article 31; and no law containing a declaration chat it is for giving effect to such policy shall be called in question in any court on the ground that it does not give effect to such policy.

Provided that where such law is made by the Legislature of a State, the provisions of this article shall not apply thereto unless such law, having been reserved for the consideration of the President, has received his assent.

1374. Ignoring the proviso for the moment, one finds that the main clause of the article falls into two parts. The first part provides that a law of a particular description shall not be deemed to be void on the ground that it affects injuriously somebody’s fundamental rights under Articles 14, 19 and 31. The second part provides that if such a law contains a particular declaration, courts shall not entertain a particular kind of objection.

1375. In the first place, it should be noted that what is saved by Article 31C is a law i.e. a law made by a competent legislature. Secondly since Article 31C comes under the specific heading ‘Right to property’ in Part III dealing with fundamental rights it is evident that the law must involve right to property. That it must of necessity do so is apparent from the description of the law given in the article. The description is that the law gives effect to the policy of the State towards securing the principles specified in Clauses (b) & (c) of Article 39. That article is one of the several articles in Part IV of the Constitution dealing with Directive Principles of State Policy. Article 37 provides that though the Directive Principles are not enforceable by any court, they are nevertheless fundamental in the governance of the country and it shall be the duty of the State to apply these principles in making laws. It follows from this that the Governments and Legislatures are enjoined to make laws giving effect to the Directive Principles. We are immediately concerned with the Directive Principles contained in Article 39(b) and (c) namely, that the State shall direct its policy towards securing (b) that the ownership and control of the material resources of the community are so distributed as best to subserve the common good; and (c) that the operation of the economic system does not result in the concentration of wealth and means of production to the common detriment. In short Clause (b) contemplates measures to secure what is known as equitable distribution of community resources and Clause (c) contemplates measures for preventing concentration of wealth and means of production in a few private hands. Read along with Article 38 and other principles in this Part, they justify the conclusions of Granville Austin in his Indian Constitution : Cornerstone of a Nation-that our Constitution is informed by social democratic principles. See : pages 41-52 of the book. The final conclusion he came to is expressed in this way:

By establishing these positive obligations of the state, the members of the Constituent Assembly made it the responsibility of future Indian governments to find a middle way between individual liberty and the public good, between preserving the property and the privilege of the few and bestowing benefits on the many in order to liberate the powers of all men equally for contributions to the common good. p. 52.

The philosophy which informs the Constitution looks on concentration of wealth and means of production as a social evil because such concentration, resulting in the concentration of political and economic power in the hands of a few private individuals, not only leads to unequal freedom, on the one hand, but results, on the other, in undermining the same in the case of many. In such conditions it is widely believed that the goals of Equality and Justice, social, economic and political, become unreal, and since the Constitution itself directs that laws may be made to inhibit such conditions it is inevitable that these laws aimed at the reduction of unequal freedoms enjoyed by a few will impair to some extent their fundamental rights under Articles 14, 19 and 31. That would be justified even on the ‘core’ theory of Mr. Palkhivala because he admits the possibility of an abridgement of a fundamental right in similar cases. Therefore, Article 31C provides, even as Article 31A provided many years ago, that such laws should not be called in question on the grounds furnished by Articles 14, 19 and 31. If a law is made with a view to giving effect to the Directive Principles mentioned in Article 39(b) and 39(c) the law is in conformity with the direct mandate of the Constitution and must be deemed to be Constitutional. The effect of the first part of Article 31C is the I same as if, a proviso had been inserted below Article 13(2) or each of the several Articles 14, 19 and 31 excluding its application to the particular type of law mentioned in Article 31C. If the law does not genuinely purport to give effect to the specified Directive Principles it will not be secure against the challenge under Articles 14, 19 and 31. Indeed since the Directive Principles are couched in general terms they may present some difficulty in judging whether any individual law falls within the ambit of the description given in Article 31C but such a difficulty is no reason for denying, the validity of the amendment.

Courts had no difficulty in deciding whether any particular law did fall under Article 31A or not.

1376. The real difficulty is raised by the second part of Article 31C which provides “No law containing a declaration that it is for giving effect to such policy shall be called in question in any court on the ground that it does not give effect to such policy.” The contention is that if any law makes a declaration as stated, that is conclusive of the fact that it is covered by Article 39(b) or (c) and courts will be debarred from entertaining any objection on the ground that it is not so covered. In other words, it is submitted, the declaration when made in a law whether genuinely falling under Article 39(b) or (c) or not will conclude the issue and the courts will be debarred from questioning the declaration. The result is, according to the submission, that the legislatures may with impunity make a law contravening provisions of the Constitution and by the simple device of a declaration insert the law as an exception to Articles 14, 19 and 31-i.e. in other words amend the Constitution which the legislature cannot do. The Constitution, it is pointed out, may be amended only in the way prescribed in Article 368 and no other and, therefore, Article 31C authorising an amendment in a way other than the one laid down in Article 368, which still forms part of the Constitution with full force, is invalid.

1377. On behalf of the Union, however, it is claimed that the new Article 31C does not have the effect, attributed to it on behalf of the petitioners. It is, submitted, that Article 31C does not prevent judicial review as to whether the law referred to therein is of the description it maintains it is. If on a consideration of its true nature and character the court considers that the legislation is not one having a nexus with the principles contained in Article 39(b) or (c), it will not be saved under Article 31C. The sole purpose of the declaration’, according to the submission is to remove from the scope of judicial review a question of a political nature the reason for it being, as explained in Beauharanis v.

Illinois [1952] USSC 75; 343 U.S. 250. “The legislative remedy in practice might not mitigate the evil or might itself give rise to new problems which would only manifest once again the paradox of reform. It is the price to be paid for the trial and error inherent in legislative efforts to deal with obstinate social issues.

1378. It appears to us that the approach suggested on behalf of the Union is the correct approach to the interpretation of Article 31C.

1379. The State’s functional policy is to strive to promote the welfare of the people by securing and protecting as effectively as it may a social order in which justice, social, economic and political shall, inform all the institutions of the national life. (Article 38).

That is the goal of the State poticy. As practical steps, the State is commanded in the next following articles from Articles 39 to 51 to direct its policy towards securing some aims which, being well-known concepts of social democratic theory, are described as ‘principles’. See for example the marginal note of Article 39. Compendiously these are described as Directive Principles of State Policy under the heading of Part IV.

1380. We are concerned with Article 39(b) and (c). The State is commanded, in particular, to direct its policy towards securing two aims, one described in (b) and the other in (c). In directing its policy towards securing the aims, the State will evidently have to make laws. A description of such a law is given in the first part of Article 31C-as a law giving effect to the policy of the State towards securing the principles (aims) specified in Articles 39(b) or (c). If a law truly answers that description it will be secure against a challenge under Articles 14, 19 and 31; otherwise not. When such a challenge is made, it will be the obvious duty of the court to ascertain on an objective consideration of the law whether it falls within the description. What the court will have to consider is whether it is a law which can reasonably be described as a law giving effect to the policy of the State towards securing the aims of Article 39(b) or (c). That is an issue which is distinct from the other issue whether the law doesnot give effect to the policy of the State towards securing the said aims. A law reasonably calculated to serve a particular aim or purpose may not actually serve that aim or purpose; and it is this latter issue which is excluded from judicial review. In doing so the declaration does no more than what the courts themselves have beenalways saying viz. that they are not concerned with the wisdom or policy of the legislation. Prohibition laws-for example in U.S.A. and elsewhere, though made in order to give effect to the policy of the State to secure the eradication of the evil of drink did not have that effect. That may have been so because the law was inadequate or because the law gave rise to problems which were unforeseen.

But that did not impair the genuineness of the law as being reasonably calculated to achieve a certain result. The two questions are different. One involves the process of identification of the type of legislation by considering its scope and object, its pith and substance. The other involves a process of evaluation by considering its merits and defects, the adequacy or otherwise of the steps taken to implement it or their capability of producing the desired result. A law made to give effect to the State’s policy of securing eradication of the drink evil can be properly identified, as such, if such identification is necessary to bemade by a court in order to see the application of a Constitutional provision. But it is an entirely different proposition to say that thelaw does not actually give effect to the State’s policy of securing the eradication of drink. That would require an enquiry which courts cannot venture to undertake owing to lack of adequate means of knowledge and sources of information. An enquiry, like that of a Commission, will lead to debatable questions as to the adequacy of the provisions of the law, its deficiencies, the sufficiency and efficiency of the executive side of the Government to implement it effectively, the problems that arise in the course of implementation of the law and the like, ail of which do not legitimately fall within the ambit of an enquiry by a court. The problems are problems of legislative policy. It is for the legislature to decide what should go into the law to give effect to its policy towards securing its purpose. The legislature will have to consider the divergent views in the matter and make its own choice as to how it can effectuate its policy. The courts are not concerned with that aspect of the matter and even if a Jaw is considered a failure, courts cannot refuse to give effect to the same.

The declaration does no more than forbid such an enquiry by the courts which the courts themselves would not have undertaken. The declaration is only by way of abundant caution.

1381. No other ground is precluded from judicial review under Article 31C. It was rightly conceded on behalf of the Union that the court in deciding whether the law falls within the general description given of it in Article 31C will be competent to examine the true nature and character of the legislation, its design and the primary matter dealt with, its object and scope. See : e.g. Charles Russell v. The Queen [1882] (VII) Appeal Cases 829 (838-840). If the court comes to the conclusion that the above object of the legislation was merely a pretence and the real object was discrimination or something other than the object specified in Article (b) and (c), Article 31C would not be attracted and the validity of the Statute would have to be tested independently of Article 31C. Similarly as observed in Attorney-General v. Queen Insurance Co. [1878] 3 Appeal Cases 1090 “if the legislation ostensibly under one of the powers conferred by the Constitution is in truth and fact really to accomplish an unauthorised purpose the court would be entitled to tear the veil and decide according to the real nature of the statute.

1382. In that view of the true nature of Article 31C it cannot be said that the amendment is invalid.

1383. The twenty-fifth Amendment Act is, therefore, valid.

1384. By the twenty-ninth Amendment, the two Kerala Acts challenged in this petition were included in the Ninth Schedule. Like other Acts included in that Schedule they are immune from challenge by reason of the protection given to the Schedule by Article 31B.

It was sought to be argued that unless the Acts related to agrarian reform, implicit in the words ‘Without prejudice to the generality of the provisions contained in Article 31A’ with which Article 31B opens, the protection was not available. That argument has been rejected previously. See for example N.B. Jeejeebhoy v. Assistant Collector, Thana [1964] INSC 213; [1965] (1) S.C.R. 636. Actually the argument does not amount to a challenge to the validity of the Amendment, hut an attempt to show that in spite of the Amendment, the two laws would not be saved by Article 316. The twenty-ninth Amendment is not different from several similar Amendments made previously by which Statutes were added from time to time to the ninth schedule and whose validity has been upheld by this Court. The twenty-ninth Amendment is, therefore, valid.

1385. My conclusions are:

(1) The power and the procedure for the amendment of the Constitution were contained in the unamended Article 368. An Amendment of the Constitution in accordance with the procedure prescribed in that Article is not a ‘law’ within the meaning of Article 13. An Amendment of the Constitution abridging or taking away a fundamental right conferred by Part III of the Constitution is not void as contravening the provisions of Article 13(2). The majority decision in Golak Nath v. State of Punjab is with respect, not correct.

(2) There were no implied or inherent limitations on the Amending power under the unamended Article 368 in its operation over the fundamental rights. There can be none after its amendment.

(3) The twenty fourth, the twenty-fifth and the twenty-ninth Amendment Acts are valid.

1386. The case will now be posted before the regular bench for disposal in accordance with law.

H.R. Khanna J.

1387. Questions relating to the validity of the Constitution (Twentyfourth Amendment) Act, Constitution (Twentyfifth Amendment) Act and Constitution (Twehtyninth Amendment) Act, as well as the question whether the Parliament acting under Article 368 of the Constitution can amend the provisions of Part III of the Constitution so as to take away or abridge fundamental rights arise for determination in this petition under Article 32 of the Constitution. A number of other important questions, to which reference would be made hereafter, have also been posed during discussion, and they would be dealt with at the appropriate stage. Similar questions arise in a number of other petitions, and the counsel of the parties in those cases have been allowed to intervene.

1388. The necessary facts may now be set out, while the details which have no material bearing for the purpose of this decision can be omitted. Kerala Land Reform’s Act, 1963 (Act 1 of 1964) as originally enacted was inserted as item No. 39 in the Ninth Schedule to the Constitution. The said Act was subsequently amanded by Kerala-Land Reforms (Amendment) Act, 1969 (Act 35 of 1969). The petitioner filed the present writ petition on March 21, 1970 challenging the Constitutional Validity of the Kerala Land Reforms Act,.

1963 (Act 1 of 1964) as amended by the Kerala Land Reforms (Amendment) Act, 1969 (Act 35 of 1969). The aforesaid Act was also challenged in a number of petitions before the Kerala High Court. A Full Bench of the Kerala High Court as per its decision in V.N.

Narayanan Nair v. State of Kerala ILR [1970] (II) Kerala 315 upheld the validity of the said Act, except in respect of certain provisions. Those provisions were declared to be invalid. The State of Kerala came up in appeal to this Court against the judgment of the Kerala High Court in so far as that court had held a number of provisions of the Act to be invalid. This Court dismissed the appeals of the State as per judgment dated April 26, 1972. [1972] INSC 121; (1972) 2 S.C.C. 364. Appeals filed by private parties against the judgment of the Kerala High Court upholding the validity of the other provisions too were dismissed.

Some writ petitions filed in this Court challenging the validity of the above mentioned Act were also disposed of by this Court in accordance with its decision in the appeals filed by the the State of Kerala and the private parties.

1389. The Kerala High Court as per judgment dated October 21, 1970 declared some other provisions of the Kerala Land Reforms Act as amended by Act 35 of 1969 to the invalid and unConstitutional. After the above judgment of the High Court the Kerala Land Reforms Act was amended by Ordinance 4 of 1971 which was promulgated on January 30, 1971. The Kerala Land Reforms (Amendment) Bill, 1971 was thereafter introduced in the Legislative Assembly to replace the ordinance. The Bill was passed by the Legislative Assembly on April 26, 1971 and received the assent of the President on August 7, 1971. It was thereafter published as the Kerala Land Reforms Act, 1971 (Act 25 of 1971) in the Gazette Extraordinary on August 11, 1971. By the Constitution (Twentyninth Amendment) Act, 1972 which was assented to by the President on June 9, 1972 the Kerala Land Reforms (Amendment) Act, 1969 (Act 35 of 1969> and Kerala Land Reforms (Amendment) Act, 1971 (Act 25 of 1971) were included in the Ninth Schedule to the Constitution.

1390. The writ petition was amended twice. The first amendment was made with a view to enable the petitioner to impugn the Constitutional validity of the Kerala Reforms (Amendment) Act (Act 25 of 1971). The second amendment of the petition was made with a view to include the prayer to declare the Twentyfourth, Twentyfifth and Twentyninth Amendments to the Constitution as unConstitutional, ultra vires, null and void.

1391. It may be mentioned that the Twentyfourth Amendment related to the amendment of the Constitution. Section 2 of the Amendment Act added Clause (4) in Article 13 as under:

(4) Nothing in this article shall apply to any amendment of this Constitution made under Article 368.

1392. Section 3 of the Amendment Act read as under:

3. Article 368 of the Constitution shall be renumbered as Clause (2) thereof, and (a) for the marginal heading to that article, the following marginal heading shall be substituted, namely:

Power of Parliament to amend the Constitution and procedure therefor.;

(b) before Clause (2) as so re-numbered, the following clause shall be inserted, namely:

(1) Notwithstanding anything in this Constitution, Parliament may in exercise of its constituent power amend by way of addition, variation or repeal any provisions of this Constitution in accordance with the procedure laid down in this article,;

(c) in Clause (2) as so re-numbered, for the words “it shall be presented to the President for his assent and upon such assent being given to the Bill,”

the words “it shall be presented to the President who shall give his assent to the Bill and thereupon” shall be substituted;

(d) after Clause (2) as so re-numbered, the following clause shall be inserted, namely:

(3) Nothing in Article 13 shall apply to any amendment made under this article.

We may set out Articles 13 and 368 as they existed both before and after amendment made by the Twentyfourth Amendment Act:

Before the Amendment After the Amendment 13. (1) All laws in force in the territory of 13. (1) All laws in force in the territory India immediately before the of India immediately before commencement of this Constitution, the commencement of this Consitution, so far as they are inconsistent in far so as they are inconsistent with the provisions of this part, shall with the provisions of this Part, to the extent of such inconsistency, shall to the extent of such inconssistency be void.

be void. (2) The State shall not make any law (2) The State shall not make any law which takes away or abridges the rights which takes away or abridges the conferred by this Part and any law made rights conferred by this Part and any in contravention of this clause shall, law made in contravention of this to the extent of the contravention, clause shall, to the extent of the be void. contravention, be void. (3) In this article, unless the context (3) In this article, unless the context otherwise requires. otherwise requires, (a) “law” includes any Ordinance, order (a) “law” includes any Ordinance byelaw, rules, regulation, notification, order, byelaw, rule, regulation, custom or usage having in the territory notification, of India the force of law;

custom or usage having in the territory of India the force, of law; (b) “laws inforce” includes laws passed (b) “laws in force” includes laws or made by a Legislature or passed or made by a Legislature or other competent authority in the other competent authority in the territory of India before the commencement territory of India before the commencement of the Constitution and not of this Constitution and previously repealed, notwithstanding not previously repealed, notwithstanding that any such law or any part that any such law or any thereof may not be then in operation part thereof may not be then of either at all or in particular areas. operation either at all or in particular areas (4) Nothing in this article shall apply to any amendment of this Constitution made under Article 368. 368. An amendment of this Constitution 368. (r) Notwithstanding anything may be initiated only by the introdution in this Constitution, Parliament may of a Bill for the purpose in in exercise of its constituent power either House of Parliament, and when amend by way of addition, variation the Bill is passed in each House or repeal any provision of this Constitution by a majority of the total membership in accordance with the procedure of that House and by a majority of not laid down in this article less than twothirds of the members of that House present and voting, it shall (2) An amendment of this Constitution be presented to the President may be initiated only by the introduction for his assent and upon such assent being of a Bill for the purpose in given to the Bill, the Constitution either House of Parliament, and when shall stand amended in accordance with the Bill is passed in each House by a the terms of the Bill : majority of the total membership of that House and by a majority of Provided that if such amendment seeks to not less than two-thirds of the members make any change in- of that House present and voting, it shall be presented to the President who shall give his assent to the Bill and thereupon the Constitution shall Stand amended in accordance with the terms of the Bill : Provided that if such amendment seeks to make any change in- (a) Article 54, Article 55, Article 73, (a) Article 54, Article 55, Article 73, Article 162 or Article 241, or Article 162 or Article 241, or (b) Chapter IV of Part V, Chapter V (b) Chapter IV of Part V, Chapter : V of Part VI, or Chapter I of Part XI or of Part VI, or Chapter I of Part XI or (c) any of the Lists in the Seventh (c) any of the Lists in the Seventh Schedule, or Schedule, or (d) the representation of States in (d) the representration of States in Parliament, or Parliament, or (e) the provisions of this article, (e) the provisions of this article, the amendment shall also require to the amendment shall also require to be ratified by the Legislatures of not be ratified by the Legislatures of less than one-half of the States by not less than one-half of the States by resolutions to that effect passed by resolutions to that effect passed by those Legislatures before the Bill making those Legislatures before the Bill provision for such amendment is presented making provision of or such amendment to the President for assent. is presented to the President for assent. (3) Nothing in Article 13 shall apply to any amendment made under this article.

1393. The Constitution (Twentyfifth Amendment) Act, 1971 amended Article 31 of the Constitution. The scope of the amendment would be clear from Section 2 of the Amendment Act which reads as under:

2. In Article 31 of the Constitution,- (a) for Clause (2), the following clause shall be substituted namely:

(2) No property shall be compulsorily acquired or requisitioned save for a public purpose and save by authority of a law which provides for acquisition or requisitioning of the property for an amount which may be fixed by such law or which may be determined in accordance with such principles and given in such manner as may be specified in such law; and no such law shall be called in question in any court on the ground that the amount so fixed or determined is not adequate or that the whole or any part of such amount is to be given otherwise than in cash:

Provided that in making any law providing for the compulsory acquisition of any property of an educational institution established and administered by a minority, referred to in Clause (1) of Article 30, the State shall ensure that the amount fixed by or determined under such law for the acquisition of such property is such as would not restrict or abrogate the right guaranteed under that clause”;

(b) after Clause (2A), the following clause shall be inserted, namely:

(2B) Nothing in Sub-clause (f) of Clause (1) of Article 19 shall affect any such law as is referred to in Clause (2).

1394. The Constitution (Twentyfifth Amendment) Act also added Article 31C after Article 31B as under:

31C. Notwithstanding anything contained in Article 13, no law giving effect to the policy of the State towards securing the principles specified in Clause (b) or Clause (c) of Article 39, shall be deemed to be void on the ground that it is inconsistent with, or takes away or abridges any of the rights conferred by Article 14, Article 19 or Article 31; and no law containing a declaration that it is for giving effect to such policy shall be called in question in any court on the ground that it does not give effect to such policy.

Provided that where such law is made by the Legislature of a State, the provisions of this article shall not apply thereto unless such law, having been reserved for the consideration of the President, has received his assent.

1395. The Constitution (Twentyninth Amendment) Act, as mentioned earlier, inserted the following as entries No. 65 and 66 respectively in the Ninth Schedule to the Constitution:

(i) The Kerala Land Reforms (Amendment) Act, 1969 (Kerala Act 35 of 1969); and (ii) The Kerala Land Reforms (Amerdment) Act, 1971 (Kerala Act 25 of 1971).

1396. The question as to whether the fundamental rights contained in Part III of the Constitution could be taken away or abridged by amendment was first considered by this Court in the case of Sri Sankari Prasad Singh Deo v. Union of India And Anr. [1951] INSC 45; [1952] S.C.R. 89 In that case the appellant challenged the First Amendment of the Constitution.

The First Amendment made changes in Articles 15 and 19 of the Constitution. In addition, it provided for insertion of two Articles, 31A and 31B, in Part III. Article 31A provided that no law providing for acquisition by the State of any estate or of any such rights therein or the extinguishment or modification of any such right, shall be deemed to be void on the ground that it was inconsistent with or took away or abridged any of the rights conferred by any provision in Part III. The word “estate” was also defined for the purpose of Article 31A. Article 31B provided for validation of certain Acts and Regulations which were specified in the Ninth Schedule to the Constitution. The said Schedule was added for the first time in the Constitution. The Ninth Schedule at that time contained 13 Acts, all relating to estates, passed by various Legislatures off the Provinces or States. It was provided that those Acts and Regulations would not be deemed to be void or ever to have become void on the ground that they were inconsistent with or took away or abridged any of the rights conferred by any provision of Part III. It further provided that notwithstanding any judgment, decree or order of any court or Tribunal to the contrary, all such Acts and Regulations, subject to the power of any competent Legislature to repeal or amend them, would continue in force.

1397. The attack on the validity of the First Amendment was based primarily on three grounds. Firstly, that amendments to the Constitution made under Article 368 were liable to be tested under Article 13(2); secondly, that in any case as Articles 31A and 31B inserted in the Constitution by the First Amendment affected the powers of the High Court under Article 226 and of this Court under Articles 132 and 136, the Amendment required ratification under the proviso to Article 368; and thirdly, that Articles 31A and 31B were invalid on the ground that they related to matters covered by the State List.

This Court rejected all the three contentions. It held that although “law” would ordinarily include Constitutional law, there was a clear demarcation between ordinary law made in the exercise of legislative power and Constitutional law made in the exercise of constituent power. In the context of Article 13, “law” must be taken to mean rules or regulations made in exercise of ordinary legislative power and not amendments to Constitution made in the exercise of constituent power. Article 13(2), as such, was held not to affect amendments made under Article 368. This Court further held that Articles 31A and 31B did not curtail the power, of this Court and of the High Court and as such did not require ratification under the proviso contained in Article 368. Finally, it was held that Articles 31A and 31B were essentially amendments to the Constitution and the Parliament had the power to make such amendments. In consequence, the First Amendment to the Constitution was held to be valid.

1398. The second case in which there arose the question of the power of the Parliament to amend fundamental rights was Sajjan Singh v. State of Rajasthan [1964] INSC 246; [1965] 1 S.C.R. 933. In this case the Seventeenth Amendment made on June 29, 1964 was challenged. By the Seventeenth Amendment changes were made in Article 31A of the Constitution and 44 Acts were included in the Ninth Schedule to the Constitution to give them complete protection from attack under any provision of Part III of the Constitution. One of the contentions advanced in Sajjan Singh’s case was that, as Article 226 was likely to be affected by the Seventeenth Amendment, it required ratification under the proviso to Article 368 and that the decision in Sankari Prasad’s case (supra) which had negatived such a contention required reconsideration. It was also urged that the Seventeenth Amendment was legislation with respect to land and the Parliament had no right to legislate in that respect. It was further argued that as the Seventeenth Amendment provided that Acts put in the Ninth Schedule would be valid in spite of the decision of the courts, it was unConstitutional. This Court by a majority of 3 to 2 upheld the correctness of the decision in Sankari Prasad’s case. This Court further held unanimously that the Seventeenth Amendment did not require ratification under the proviso to Article 368. The Parliament, it was held, in enacting the amendment was not legislating with respect to land and that it was open to Parliament to validate legislation which had been declared invalid by courts. By a majority of 3 to 2 the Court held that the power conferred by Article 368 included the power to take away fundamental rights guaranteed by Part III and that the power to amend was a very wide power which could not be controlled by the literal dictionary meaning of the word “amend”. The word “law” in Article 13(2), it was held, did not include an amendment of the Constitution made in pursuance of Article 368.

The minority, however, doubted the correctness of the view taken in Sankari Prasad’s case to the effect that the word “law” in Article 13(2) did not include amendment to the Constitution made under Article 368.

1399. The correctness of the decision of this Court in Sankari Prasad’s case and of the majority in Sajjan Singh’s case was questioned in the case of I.C. Golak Nath and Ors. v.

State of Punjab and Anr. [1967] INSC 45; [1967] 2 S.C.R. 762. The case was heard by a special bench consisting of 11 judges. This Court in that case was concerned with the validity of the Punjab Security of Land Tenures Act, 1953 and of the Mysore Land Reforms Act. These two Acts had been included in the Ninth Schedule to the Constitution by the Constitution (Seventeenth Amendment) Act, 1964. It was held by Subba Rao C.J., Shah, Sikri, Shelat and Vaidialingam JJ. Hidayatullah J. concurring) that fundamental rights cannot be abridged or taken away by the amending procedure in Ariticle 368 of the Constitution.

An amendment of the Constitution, it was observed, is “law” within the meaning of Article 13(2) and is, therefore, subject to Part III of the Constitution. Subba Rao C.J., who gave the judgment on his own behalf as well as on behalf of Shah, Sikri, Shelat and Vaidialingam JJ. gave his conclusions as under:

(1) The power of the Parliament to amend the Constitution is derived from Articles 245, 246 and 248 of the Constitution and not from Article 368 thereof which only deals with procedure. Amendment is a legislative process.

(2) Amendment is ‘law’ within the meaning of Article 13 of the Constitution and, therefore, if it takes away or abridges the rights conferred by Part III thereof, it is void.

(3) The Constitution (First Amendment) Act, 1951 Constitution (Fourth Amendment) Act, 1955, and the Constitution (Seventeenth Amendment) Act, 1964, abridge the scope of the fundamental rights. But, on the basis of earlier decisions of this Court, they were valid.

(4) On the application of the doctrine of ‘prospective over-ruling’, as explained by us earlier, our decision will have only prospective operation and, therefore, the said amendments will continue to be valid.

(5) We declare that the Parliament will have no power from the date of this decision to amend any of the provisions of Part III of the Constitution so as to take away or abridge the fundamental rights enshrined therein.

(6) As the Constitution (Seventeenth Amendment) Act holds the field, the validity of the two impugned Acts, namely, the Punjab Security of Land Tenures Act X of 1953, and the Mysore Land-Reforms Act X of 1962, as amended by Act XIV of 1965, cannot be questioned on the ground that they offend Articles 13, 14 or 31 of the Constitution.

Hidayatullah J. summed up his conclusions as under:

(i) that the Fundamental Rights are outside the amendatoryprocess if the amendment seeks to abridge or take away any of the rights;

(ii) that Sankari Prasad’s case (and Sajjan Singh’t case which followed it) conceded the power of amendment over Part III of the Constitution on an erroneous view of Articles 13(2) and 368;

(iii) that the Fust, Fourth and Seventh Amendments being part of the Constitution by acquiescence for a long time, cannot now be challenged and they contain authority for the Seventeenth Amendment (iv) that this Court having now laid down that Fundamental Rights cannot be abriged or taken away by the exercise of amendtory process in Article 368, any further inroad into these rights as they exist today will be illegal and unConstitutional unless it complies with Part III in general and Article 13(2) in particular;

(v) that for abridging or taking away Fundamental Rights, a Constituent body will have to be convoked; and (vi) that, the two impugned Acts, namely, the Punjab Security of Land Tenures Act, 1953 (X of 1953) and the Mysore Land Reforms Act, 1961 (X of 1962) as amended by Act XIV of 1965 are valid under the Constitution not because they are included in Schedule 9 of the Constitution but because they are protected by Article 31-A, and the President’s assent.

As against the view taken by the majority, Wanchoo, Bachawat, Ramaswami, Bhargava and Mitter, JJ. gave dissenting judgments. According to them, Article 368 carried the power to amend all parts of the Constitution including the fundamental rights in Part III of the Constitution. An amendment, according to the five learned Judges, was not “law”

for the purpose of Article 13(2) and could not be tested under that article. The learned Judges accordingly reaffirmed the correctness of the decision in the cases of Sankari Prasad and Sajjan Singh. Some of the conclusions arrived at by Wanchoo J., who gave the judgment on his own behalf as well as on behalf of Bhargava and Mitter JJ. may be reproduced as under:

(i) The Constitution provides a separate part headed ‘Amendment of the Constitution’ and Article 368 is the only article in that Part. There can therefore, be no doubt that the power to amend the Constitution must be contained in Article 368.

(ii) There is no express limitation on power of amendment in Article 368 and no limitation can or should be implied therein. If the Constitution makers intended certain basic provisions in the Constitution, and Part III in particular, to be not amendable there is no reason why it was not so stated in Article 368.

(iii) The power conferred by the words of Article 368 being unfettered, inconsistency between that power and the provision in Article 13(2) must be avoided Therefore in keeping with the unfettered power in Article 368 the word “law” in Article 13(2) must be read as meaning law passed under the ordinary legislative power and not a Constitutional amendment.

(iv) Though the period for which Sankari Prasad’s case has stood unchallenged is not long, the effects which have followed on the passing of State laws on the faith of that decision, are so overwhelming that the decision should not be disturbed, otherwise chaos will follow. This is the fittest possible case in which the principle of stare decisis should be applied.

(v) The doctrine of prospective overruling cannot be accepted in this country. The doctrine accepted here is that courts declare law and that a declaration made by a court is the law of the land and takes effect from the date the law came into force. It would be undesirable to give up that doctrine and supersede it with the doctrine of prospective overruling.

The main conclusions of Bachawat J. were as under:

(i) Article 368 not only prescribes the procedure but also gives the power of amendment.

(ii) The power to amend the Constitution cannot be said to reside in Article 248 and List I, item 97 because if amendment could be made by ordinary lagislative process Article 368 would be meaningless.

(iii) The contention that a Constitutional amendment under Article 368 is a law within the meaning of Article 13 must be rejected.

(iv) There is no conflict between Articles 13(2) and 368. The two articles operate in different fields, the former in the field of law, the latter in that of Constitutional amendment.

(v) If the First, Fourth, Sixteenth & Seventeenth Amendment Acts are void they do not legally exist from their inception. They cannot be valid from 1951 to 1957 and invalid thereafter. To say that they were valid in the past and will be invalid in the future is to amend the Constitution. Such a naked power of amendment is not given to the Judges and therefore the doctrine of prospective overruling cannot be adopted.

We may now set out some of the conclusions of Ramswami J. as under:

(i) In a written Constitution the amendment of the Constitution is a substantive constituent act which is made in the exercise of the sovereign power through a predesigned procedure unconnected with ordinary legislation. The amending power in Article 368 is hence sui generis and cannot be compared to the lawmaking power of Parliament pursuant to Article 246 read with Lists I and III. It follows that the expression ‘law’ in Article 13(2) cannot be construed as including an amendment of the Constitution which is achieved by Parliament in exercise of its sovereign constituent power, but must mean law made by Parliament in its legislative capacity under Article 246 read with List I and List III of the 7th Schedule.

(ii) The language of Article 368 is perfectly general and empowers Parliament to amend the Constitution without any exception whatsoever.

The use of the word ‘fundamental’ to describe the rights in Part III and the word ‘gurantecd’ in Article 32 cannot lift the fundamental lights above the Constitution itself.

(iii) There is no room for an implication in the construction of Article 368.

If the Constitution makers wanted certain basic features to be unamendable they would have said so.

(iv) It cannot be assumed that the Constitution makers intended to forge a political strait-jacket for generations to come. Today at a time when absolutes are discredited, it must not be too readily assumed that there are basic features of the Constitution which shackle the amending power and which take precedence over the general welfare of the nation and the need for agrarian and social reform.

(v) If the fundamental rights are unamendable and if Article 368 does not include any such power it follows that the amendment of, say Article 31 by insertions of Articles 31A and 31B can only be made by a voilent revolution. It is doubtful if the proceedings of a new Constitutent Assembly that may be called will have any legal validity for if the Constitution provides its own method of amendment, any other method will be unConstitutional and void.

(vi) It was not necessary to express an opinion on the doctrine of prospective overruling of legislation.

1400. Before dealing with Article 368, we may observe that there are twotypes of Constitutions, viz., rigid and flexible. It is a frequently held but erroneous impression that this is the same as saying nondocumentary or documentary. Now, while it is true that a non-documentary Constitution cannot be other than flexible, it is quite possible for a documentary Constitution not to be rigid. What, then, is that makes a Constitution flexible or rigid? The whole ground of difference here is whether the process of Constitutional law-making is or is not identical with the process of ordinary law-making.

The Constitution which can be altered or amended without any special machinery is a flexible Constitution. The Constitution which requires special procedure for its alteration or amendment is a rigid Constitution (see p. 66-68 of the Modern Political Constitutions by C.F. Strong). Lord Birkenhead L.C. adopted similar test in the Australian (Queensland) case of McCawley v. The King [1920] A.C. 763 though he used the nomenclature controlled and uncontrolled Constitutions in respect of rigid and flexible Constitutions. He observed in this connection:

The difference of view, which has been, the subject of careful analysis by writers upon the subject of Constitutional law, may be traced mainly to the spirit and genius of the nation in which a particular Constitution has its birth. Some communities, and notably Great Britain, have not in the framing of Constitutions felt it necessary, or thought it useful, to shackle the complete independence of their successOrs. They have shrunk from the assumption that a degree of wisdom and foresight has been conceded to their generation which will be, or may be, wanting to their successors, in spite of the fact that those successors will possess more exprience of the circumstances and necessities amid which their lives are lived. Those Constitution framers who have adopted the other view must be supposed to have believed that certainty and stability were in such a matter the supreme desiderata. Giving effect to this belief, they have created obstacles of varying difficulty in the path of those who would lay rash hands upon the ark of the Constitution.

1401. Let us now deal with Article 368 of the Constitution. As amendments in Articles 13 and 368 of the Constitution were made in purported exercise of the powers conferred by Article 368 in the form it existed before the amendment made by the Twentyfourth Amendment, we shall deal with the article as it was before that amendment. It may be mentioned in this context that Article 4, Article 169, Fifth Schedule Para 7 and Sixth Schedule Para 21 empower the Parliament to pass laws amending the provisions of the First, Fourth, Fifth and Sixth Schedules and making amendments of the Constitution consequential on the formation of new States or alteration of areas, boundaries, or names of existing States, as well as on abolition or creation of legislative councils in States.

Fifth Schedule contains provisions as to administration of controlled areas and scheduled tribes while Sixth Schedule contains provisions as to the administration of tribal areas. It is further expressly provided that no such law would be deemed to be an amendment of the Constitution for the purpose of Article 368. There are a number of articles which provide that they would continue to apply till such time as a law is made in variance of them. Some of those articles are:

10, 53(3), 65(3), 73(2), 97, 98(3), 106, 120(2), 135, 137, 142(1), 146(2), 148(3), 149, 171(2), 186, 187(3), 189(3), 194(3), 195, 210(2), 221(2), 225, 229, 239(1), 241(3), 283(1) and (2), 285 (2), 287, 300(1), 313, 345 and 373.

1402. The other provisions of the Constitution can be amended by recourse to Article 368 only.

1403. Article 368 finds its place in Part XX of the Constitution and is the only article in that part. The part is headed “Amendment of the Constitution”. It is not disputed that Article 368 provides for the procedure of amending the Constitution. Question, however, arises as to whether Article 368 also contains the power to amend the Constitution. It may be stated in this connection that all the five Judges who gave the dissenting judgment in the case of Golaknath, namely, Wanchoo, Bachawat, Ramaswamil, Bhargava and Mitter JJ. expressed the view that Article 368 dealt with not only the procedure of amending the Constitution but also contained the power to amend the Constitution. The argument that the power to amend the Constitution was contained in the residuary power of Parliament in Article 248 read with item 97 of List I was rejected. Hidayatullah J. agreed with the view that amendment to the Constitution is not made under power derived from Article 248 read with entry 97 of List I. According to him, the power of amendment was sat generis. As against that, the view taken by Subha Rao C.J., Shah, Sikri, Shelat and Vidialingam JJ. was that Article 368 merely prescribed the various steps in the matter of amendment of the Constitution and that power to amend the Constitution was derived from Articles 245, 246 and 248 read with item 97 of List I. It was said that the residuary power of Parliament can certainly take in the power to amend the Constitution.

1404. Amendment of the Constitution, according to the provisions of Article 368, is initialed by the introduction of a Bill in either House of Parliament The Bill has to be passed in each House by a majority of total membership of that House and by a majority of not less than two-thirds members of the House present and voting. After it has been so passed, the Bill is to be presented to the President for his assent. When the President gives his assent to the Bill, the Constitution, according to Article 368, shall stand amended in accordance with the terms of the Bill. There is a proviso added to Article 368 with respect to amendment of certain articles and other provisions of the Constitution including Article 368. Those provisions can be amended only if the Bill passed by the two Houses of Parliament by necessary majority, as mentioned earlier, is ratified by the Legislatures of not less than one-half of the States by iresolutions to that effect. In such a case, the Bill has to be presented to the President for his assent only after the necessary ratification by the State Legislatures. On the assent being given, the Constitution stands amended in accordance with the terms of the Bill.

1405. The words in Article 368 “the Constiuttion shall stand amended in accordance with the terms of the Bill”, in my opinion, clearly indicate that the said article provides not merely the procedure for amending the Constitution but also contains the power to amend Article 368. The fact that a separate Part was provided with the heading “Amendment of the Constitution” shows that the said part was confined not merely to the procedure for making the amendment but also contained the power to make the amendment. It is no doubt true that Article 248 read with item 97 of List I has a wide scope, but in spite of the width of its scope, it cannot, in my opinion, include the power to amend the Constitution.

The power to legislate contained in Articles 245, 246 or 248 is subject to the provisions of the Constitution. If the argument were to be accepted that the power to amend the Constitution is contained in Article 248 read with item No. 97 List I, it would be difficult to make amendment of the Constitution because the amendment would in most of the cases be inconsistent with the article proposed to be amended. The only amendments which would be permissible in such an event would be, ones like those contemplated by Articles 4 and 169 which expressly provide for a law being made for the purpose in variance of specified provisions of the Constitution. Such law has to be passed by ordinary legislative process. Article 368 would thus become more or less a dead letter.

1406. Article 248 read with entry 97 List I contemplates legislative process. If the amendment of the Constitution were such a legislative process, the provision regarding ratification by the legislatures of not less than one-half of the States in respect of certain amendments of the Constitution would be meaningless because there is no question of ratification of a legislation made by Parliament in exercise of the power conferred by Article 248 read with entry 97 List I. It is noteworthy that ratification is by means of resolutions by State Legislatures. The passing of resolution can plainly be not considered to be a legislative process for making a law. The State Governors also do not come into the picture for the purpose of ratification. The State Legislatures in ratifying, it has been said, exercise a constituent function. Ratifying process, according to Orfield, is equivalent to roll call of the States. Ratification by a State of Constitutional amendment is not an act of legislation within the proper sense of the word. It is but the expression of the assent of the States to the proposed amendment (see The Amending of the Federal Constitution p. 62-63).

1407. The fact that the marginal note of Article 368 contained the words “Procedure for Amendment of the Constitution” would not detract from the above conclusion as the marginal note cannot control the scope of the article itself. As mentioned earlier, the words in the article that “the Constitution shall stand amended in accordance with the terms of the Bill” indicate that the power to amend the Constitution is also contained in Article 368. The existence of such a power which can clearly be discerned in the scheme and language of Article 368 cannot be ruled out or denied by invoking the marginal note of the article.

1408. The various subjects contained in entries in List I, List II and List III of Seventh Schedule to the Constitution were enumerated and specified at great length. Our Constitution in this respect was not written on a tabula rasa. On the contrary, the scheme of distribution of legislative lists in the Government of India Act, 1935 was to a great extent adopted in the Constitution. Referring to the’ said distribution of lists and the residuary provisions in the Government of India Act, Gwyer C.J. observed in the case In re. The Central Provinces and Berar Sales of Motor Spirit and Lubricants Taxation Act, 1938 [1939] F.C.R. 38.

The attempt to avoid a final assignment of residuary powers by an exhaustive enumeration of legislative subjects has made the Indian Constitution Act unique among federal Constitutions in the length and detail of its Legislative Lists.

Our Constitution-makers made list of the legislative entries still more exhaustive and the intention obviously was that the subjects mentioned should be covered by one or other of the specific entries, so that as few subjects as possible and which did not readily strike to the Constitution-makers should be covered by the residuary entry 97 in List 1. The Constitution-makers, in my opinion, could not have failed to make an entry in the lists in the Seventh Schedule for amendment of the Constitution if they had wanted the amendment of Constitution to be dealt with as an ordinary legislative measure under Articles 245, 246 and 248 of the Constitution. The fact that they provided separate Part in the Constitution for amendment of the Constitution shows that they realised the importance of the subject of amendment of the Constitution. It is difficult to hold that despite their awareness of the importance of Constitutional amendment, they left it to be dealt with under and spelt out of entry 97 List I which merely deals with “any other matter not enumerated in List II or List III including any tax not mentioned in either of those lists.

1409. The residuary entry is essential in a federal Constitution and the sole object of the residuary entry is to confer on the federal legislature or the State Legislatures, as the case may be, the power to make ordinary laws under and in accordance with the Constitution in respect of any matter, not enumerated in any other list for legislation. By the very nature of things the power to amend the Constitution cannot be in the residuary entry in a federal Constitution because the power to amend the Constitution would also include the power to alter the distribution of subjects mentioned in different entries. Such a power can obviously be not a legislative power.

1410. It was originally intended that the residuary power of legislation should be vested in the States. This is clear from the Objective Resolution which was moved by Pt. Nehru in the Constituent Assembly before the partition of the country on December 13, 1946 (see Constituent Assembly debates, Vol. I, p. 59). After the partition, the residuauy power of legislation was vested in the Centre and was taken out of the State List. If the intention to vest residuary powers in States had been eventually carried out, no argument could possibly have been advanced that the power to amend the Constitution was possessed by the States and not by the Union. The fact that subsequently the Constitutent Assembly vested the residuary power in the Union Parliament subject to ratification by State Legislatures in certain cases, would not go to show that the residuary clause included the power to amend the Constitution.

1411. I am therefore of the view that Article 368 prescribes not only the procedure for the amendment of the Constitution but also confers power of amending the Constitution.

1412. Irrespective of the source of power, the words in Article 368 that “the Constitution shall stand amended” indicate that the process of making amendment prescribed in Article 368 is a self-executing process. The article shows that once the procedure prescribed in that article has been complied with, the end product is the amendment of the Constitution.

1413. Question then arises as to whether there is any power under Article 368 of amendment of Part III so as to take away or abridge fundamental rights. In this respect we find that Article 368 contains provisions relating to amendment of the Constitution.

No words are to be found in Article 368 as may indicate that a limitation was intended on the power of making amendment of Part III with a view to take away or abridge fundamental rights. On the contrary, the words used in Article 368 are that if the procedure prescribed by that article is complied with, the Constitution shall stand amended. The words “the Constitution shall stand amended” plainly cover the various articles of the Constitution, and I find it difficult in the face of those clear and unambiguous words to exclude from their operation the articles relating to fundamental rights in Part III of the Constitution. It is an elemental rule of construction that while dealing with a Constitution every word is to be expounded in its plain, obvious and commonsense unless the context furnishes some ground to control, qualify or enlarge it and there cannot be imposed upon the words any recondite meaning or any extraordinary gloss (see Story on Constitution of the United States, Vol. I, Para 451). It has not yet been erected into a legal maxim of Constitutional construction that words were meant to conceal thoughts. If framers of the Constitution had intended that provisions relating to fundamental rights in Part III be not amended, it is inconceivable that they would not have inserted a provision to that effect in Article 368 or elsewhere. I cannot persuade myself to believe that the framers of the Constitution deliberately used words which cloaked their real intention when it would have been so simple a matter to make the intention clear beyond any possibility of doubt.

1414. In the case of The Queen v. Burah [1878] 3 A.C. 889 at p. 904-5 Lord Selborne observed:

The established courts of justice, when a question arises whether the prescribed limits have been exceeded, must of necessity determine that question; and the only way in which they can properly do so, is by looking to the terms of the instrument by which, affirmatively, the legislative powers were created, and by which, negatively, they are restricted. If what has been done is legislation, within the general scope of the affirmative words which give the power, and if it violates no express condition or restriction by which that power is limited,…it is not for any court of justice to inquire further, or to enlarge constructively those conditions or restrictions.

Although the above observations were made in the context of the legislative power, they have equal, if not greater, relevance in the context of the power of amendment of the Constitution.:

1415. It also cannot be said that even though the framers of the Constitution intended that Part III of the Constitutilon relating to fundamental rights should not be amended, by inadvertent omission they failed to make an express provision for the purpose. Reference to the proceedings dated September 17, 1949 of the Constituent Assembly shows that an amendment to that effect was moved by Dr. P.S. Deshmukh. This amendment which related to insertion of Article 304A after Article 304 (which corresponded to present Article 368) was in the following words:

Notwithstanding anything contained in this Constitution to the contrary, no amendment which is calculated to infringe or restrict or diminish the scope of any individual rights, any rights of a person or persons with respect to property or otherwise, shall be permissible under this Constitution and any amendment which is or is likely to have such an effect shall be void and ultra vires of any Legislature.

The above amendment, which was subsequently withdrawn, must have been incorporated in the Constitution if the framers of the Constitution had intended that no amendment of the Constitution should take away or abridge the fundamental rights in Part III of the Constitution.

1416. Before the Constitution was framed, Mr. B.N. Rau, Constitutional Adviser, sent a questionnaire along with a covering letter on March 17, 1947 to the members of the Central and Provincial Legislatures. Question 27 was to the effect as to what provision should be made regarding the amendment of the Constitution. The attention of the members of the Central and Provincial Legislatures was invited in this context to the provisions for amendment in the British, Canadian, Australian, South African, US, Swiss and Irish Constitutions. Some of those Constitutions placed limitations on the power of amendment and contained express provisions in respect of those limitations. For instance, Article 5 of the United States contained a proviso “that no amendment which may be made prior to the year one thousand eight hundred and eight shall in any manner affect the first and fourth clauses in the ninth section of the first article and that no State, without its consent, shall be deprived of its equal suffrage in the Senate”. It is inconceivable that, despite the awareness of the fact that in the Constitutions of other countries where restriction was sought to be placed on the power of amendment an express provision to that effect had been inserted, the framers of our Constitution would omit to insert such a provision in Article 368 or in some other article if, in fact, they wanted a limitation to be placed on the power of amendment in respect of articles relating to fundamental right. On the contrary, there is clear indication that the Drafting Committee was conscious of the need of having an express provision regarding limitation on the power of amendment in case such a limitation was desired. This is clear from Article 305 of the Draft Constitution which immediately followed Article 304 corresponding to Article 368 of the Constitution as finally adopted. Article 305 of the Draft Constitution, which was subsequently dropped, was in the following terms:

305. Notwithstanding anything contained in Article 304 of this Constitution, the provisions of this Constitution relating to the reservation of seats for the Muslims, the Scheduled Castes, the Scheduled Tribes or the Indian Christians either in Parliament or in the Legislature of any State for the time being specified in Part I of the First Schedule shall not be amended during a period of ten years from the commencement of this Constitution and shall cease to have effect on the expiration of that period unless continued in operation by an amendment of the Constitution.

Article 305 of the Draft Constitution reproduced above makes it manifest that the Drafting Committee made express provision for limitation on the power of, amendment in case such a limitation was desired. The fact that in the Constitution as ultimately adopted, there was no provision either in Article 368 or in any other article containing a limitation on the power of amendment shows that no such limitation was intended.

1417. The speech of Dr. Ambedkar made on September 17, 1949 while dealing with the provision relating to amendment of the Constitution also makes it clear that he divided the various articles of the Constitution into three categories. In one category were placed certain articles which would be open to amendment by Parliament by simple majority. To that category belonged Articles 2 and 3 of the Draft Constitution relating to the creation and reConstitution of the existing States as well as some other articles like those dealing with upper chambers of the State Legislatures. The second category of articles were those which could be amended by two-thirds majority of members present and voting in each House of Parliament. The third category dealt with articles which not only required two- thirds majority of each House of Parliament but also the ratification of not less than half of the Legislatures of the States. There was nothing in the speech of Dr. Ambedkar that apart from the three categories of articles, there was a fourth category of articles contained in Part III which was not amendable and as such, could not be the subject of amendment.

1418. It may be mentioned that according to the report of the Constituent Assembly debates, the speech of Dr. Ambedkar delivered on September 17, 1949 contains the following sentence:

If the future Parliament wishes to amend any particular article which is not mentioned in Part III or Article 304, all that is necessary for them is to have two-thirds majority. (Vol IX. P. 1661) The words “Part III” in the above sentence plainly have reference to the third category of articles mentioned in the proviso to draft Article 304 (present Article 368) which required two-thirds majority and ratification by at least half of the State Legislatures. These words do not refer to Part III of the Constitution, for if that were so the sentence reproduced above would appear incongruous in the context of the entire speech and strike a discordant note against the rest of the speech. Indeed, the entire tenor of the above speech, as also of the other speeches delivered by Dr. Ambedkar in the Constituent Assembly, was that all the articles of the Constitution were subject to the amendatory process.

1419. Another fact which is worthy of note is that the Constitution (First Amendment) Act, 1951 was passed by the Provisional Parliament which had also acted as the Constituent Assembly for the drafting of the Constitution. By the First Amendment, certain fundamental eights contained in Article 19 were abridged and amended. Speeches in support of the First Amendment were made by Pt. Nehru and Dr. Ambedkar. It was taken for granted that the Parliament had by adhering to the procedure prescribed in Article 368 the right to amend the Constitution, including Part III relating to fundamental rights. Dr. Shyama Prasad Mukherjee who opposed the First Amendment expressly conceded that Parliament had the power to make the aforesaid amendment. If it had ever been the intention of the framers of the Constitution that the provisions relating to fundamental rights contained in Part III of the Constitution could not be amended, it is difficult to believe that Pt. Nehru and Dr. Ambedkar who played such an important role in the drafting of the Constitution would have supported the amendment of the Constitution or in any case would have failed to take note of the fact in their speeches that Part III was not intended to be amended so as to take away or abridge fundamental rights. Pt. Nehru in the course of his speech in support of the First Amendment after referring to the need of making the Constitution adaptable to changing social and economic conditions and changing ideas observed:

It is of the utmost importance that people should realise that this great Constitution of ours, over which we laboured for so long, is not a final and rigid thing, which must either be accepted or broken. A Constitution which is responsive to the people’s will which is responsive to their ideas, in that it can be varied here and there, they will respect it all the more and they will not fight against, when we want to change it. Otherwise, if you make them feel that it is unchangeable and cannot be touched, the only thing to be done by those who wish to change it is to try to break it. That is a dangerous thing and a bad thing. Therefore, it is a desirable and a good thing for people to realise that this very fine Constitution that we have fashioned after years of labour is good in so far as it goes but as society changes, as conditions change we amend it in the proper way. It is not like the unalterable law of the Medes and the Persians that it cannot be changed, although the world around may change.

1420. The First Amendment is contemporaneous practical exposition of the power of amendment under Article 368. Although as observed elsewhere, the provisions of Article 368 in my view are plain and unambiguous and contain no restrictions so far as amendment of Part III is concerned, even if it may be assumed that the matter is not free from doubt the First Amendment provides clear evidence of how the provisions of Article 368 were construed and what they were intended and assumed to convey by those who framed the Constitution and how they acted upon the basis of the said intention and assumption soon after the framing of the Constitution. The contemporaneous practical exposition furnishes considerable aid in resolving the said doubt and construing the provisions of the article. It would be pertinent to reproduce in this context the observations of Chief Justice Puller while speaking for the US Supreme Court in the case of William McPherson v. Robert R. Blacker : [1892] USSC 198; 146 U.S. 1.

The framers of the Constitution employed words in their natural sense;

and where they are plain and clear, resort to collateral aids to interpretation is unnecessary and cannot be indulged in to narrow of enlarge the text; but where there is ambiguity or doubt, or where two views may well be entertained contemporaneous and subsequent practical construction are entitled to the greatest weight. Certainly, plaintiffs in error cannot reasonably assert that the clause of the Constitution under consideration soplainly sustains their position as to entitle them to object that contemporaneous history and practical construction are not to be allowed their legitimate force, and, conceding that their argument inspires a doubt sufficient to justify resort to the aids of interpretation thus afforded, we are of opinion that such doubt is thereby resolved against them, the contemporaneous practical exposition of the Constitution being too strong and obstinate to be shaken or controlled.

I may also reproduce in this context the following passage from pages 49- 50 of Willoughby’s Constitution of the United States, Vol. I:

In Lithographic Co. v. Sarony [1884] USSC 105; 111 U.S. 53 the court declared : The construction placed upon the Constitution by the first act of 1790 and the act of 1802 by the men who were contemporary with its formation, many of whom were members of the Convention who framed it, is of itself enttitled to very great weight, and when it is remembered that the rights thus established have not been disputed during a period of nearly a century, it is almost conclusive.

1421. So far as the question is concerned as to whether the speeches made in the Constituent Assembly can be taken into consideration, this Court has in three cases, namely, I.C. Golak Nath and Ors. v. State of Punjab and Anr. (supra), H.H.

Maharajadhiraja Madhav Rao Jiwaji Rao Scindia Bahadur and Ors. v. Union of India [1970] INSC 253; [1971] 3 S.C.R. 9 and Union of India v. H.S. Dhillon [1971] INSC 292; [1972] 2 S.C.R. 33 taken the view that such speeches can be taken into account. In Golak Nath’s case Subba Rao C.J. who spoke for the majority referred to the speeches of Pt. Jawaharlal Nehru and Dr. Ambedkar on page 791. Reference was also made to the speech of Dr. Ambedkar by Bachawat J. in that case on page 924. In the case of Madhav Rao, Shah J. who gave the leading majority judgment relied upon the speech of Sardar Patel, who was Minister for Home Affairs, in the Constituent Assembly (see page 83). Reference was also made to the speeches in the Constituent Assembly by Mitter J. on pages 121 and 122. More recently in H.S. Dhillon’s case relating to the validity of amendment in Wealth Tax Act, both the majority judgment as well as the minority judgment referred to the speeches made in the Constituent Assembly in support of the conclusion arrived at. It can, therefore, be said that this Court has now accepted the view in its decisions since Golak Nath’s case that speeches made in the Constituent Assembly can be referred to while dealing with the provision of the Constitution.

1422. The speeches in the Constituent Assembly, in my opinion, can be referred to for finding the history of the Constitutional provision and the background against which the said provision was drafted. The speeches can also shed light to show as to what was the mischief which was sought to be remedied and what was the object which was sought to be attained in drafting the provision. The speeches cannot, however, form the basis for construing the provisions of the Constitution. The task of interpreting the provision of the Constitution has to be done independently and the reference to the speeches made in the Constituent Assembly does not absolve the court from performing that task. The draftsmen are supposed to have expressed their intentions in the words’ used by them in the provisions. Those words are final repositories of the intention and it would be ultimately from the words of the provision that the intention of the draftsmen would have to be gathered.

1423. The next question which arises for consideration is whether the word “law” in Article 13(2) includes amendment of the Constitution. According to Article 13(2), the State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void. “State” has been defined in Article 12 to include, unless the context otherwise requires, the Government and Parliament of India and the Government and the Legislature of each of the States and all local or other authorities within the territory of India or under the control of the Government of India. The stand taken on behalf of the petitioners is that amendment of the Constitution constitutes “law” for the purpose of Article 13(2). As such, no amendment of the Constitution can take away or abridge the fundamental rights conferred by Part III of the Constitution. Reference has also been made to Clause (1) of Article 13, according to which all laws in force in the territory of India immediately before the commencement of this Constitution in so far as they are inconsistent with the provisions of this Part, shall, to the extent of such inconsistency, be void. It is urged that word “law” in Article 13(2) should have the same meaning as that word in Article 13(1) and if law in Article 13(1) includes Constitutional law, the same should be its meaning for the purpose of Article 13(2). Our attention has also been invited to Article 372(1) of the Constitution which provides that notwithstanding the repeal by this Constitution of the enactment referred to in Article 395 but subject to the other provisions of the Constitution, all the law in force in the territory of India immediately before the commencement of this Constitution shall continue in force therein until altered or repealed or amended by a competent Legislature or other competent authority. According to Explanation I to Article 372, the expression “law in force” shall include a law passed or made by a Legislature or other competent authority in the territory of India before the commencement of this Constitution and not previously repealed notwithstanding that it or parts of it may not be then in operation either at all or in particular areas. The same is the definition of “law in force” in Article 13(3).

1424. I find it difficult to accept the contention that an amendment of Constitution made in accordance with Article 368 constitutes law for the purpose of Article 13(2). The word “law” although referred to in a large number of other articles of the Constitution finds no mention in Article 368. According to that article, the Constitution shall stand amended in accordance with the terms of the Bill after it has been passed in compliance with the provisions of that article. Article 368 thus contains an indication that what follows as a result of the compliance with Article 368 is an amendment of the Constitution and not law in the sense of being ordinary legislation. In a generic sense. “law” would include Constitutional laws, including amendment of the Constitution, but that does not seem to be the connotation of the word “law” as used in Article 13(2) of the Constitution. There is a clear distinction between statutory law made in exercise of the legislative power and Constitutional law which is made in exercise of the constituent power and the distinction should not be lost sight of A Constitution is the fundamental and basic law and provides the authority under which ordinary law is made. The Constitution of West Germany, it may be stated, is called the basic law of the Federal Republic of Germany. A Constitution derives its authority generally from the people acting in their sovereign capacity and speaking through their representatives in a Constituent Assembly or Convention. It relates to the structure of the government, the extent and distribution of its powers and the modes and principles of its operation, preceding ordinary laws in the point of time and embracing the settled policy of the nation. A statute on the other hand is law made by the representatives of the people acting in their legislative capacity, subject to the superior authority, which is the Constitution. Statutes are enactments or rules for the government of civil conduct or for the administration or for the defence of the government. They relate to law and order, criminal offences, civil disputes, fiscal matters and other subjects on which it may become necessary to have law. Statutes are quite often tentative, occasional, and in the nature of temporary expedients (see Constitutional Law and Its Administration by S.P. Weaver, p. 3), Article 13(2) has reference to ordinary piece of legislation. It would also, in view of the definition given in Clause (a) of Article 13(3), include any ordinance, order, bye-law, rule, regulation, notification, custom or usage having in the territory of India the force of law. The Constitution has thus made it clear in matters in which there could be some doubt as to what would constitute “law”. If it had been the intention of the framers of the Constitution that the “law” in Article 13 would also include Constitutional law including laws relating to the amendment of Constitution, it is not explained as to why they did not expressly so state in Clause (a) of Article 13(3).

The Constitution itself contains indications of the distinction between the Constitution and the laws framed under the Constitution. Article 60 provides for the oath or affirmation to be made and subscribed by the President before entering upon office. The language in which that oath and affirmation have been couched, though not crucial, has some bearing. The form of the oath or affirmation is as under:

swear in the name of God I, A.B., do _________________________ solemnly affirm that I will faithfully execute the office of President (or discharge the functions of the President) of India and will to the best of my ability preserve, protect and defend the Constitution and the law and that I will devote myself to the service and well-being of the people of India.

The facts that both the words “the Constitution and the law” have been used in the above form tends to show that for the purpose of the Constitution the law and the Constitution are not the same.

1425. It may be mentioned that Articles 56(1)(b) and 61(1) which deal with impeachment of the President refer only to “violation of the Constitution”. There is no reference in those articles to violation of law. Article 69 which prescribes the oath for the Vice- President refers to “allegiance to the Constitution as by law established”. The words “as by law established” indicate the legal origin of the Constitution. Article 143, to which our attention has been invited, gives power to the President to refer to the Supreme Court a question of law or fact of such importance that it is expedient to obtain the opinion of this Court. It is pointed out that question of law in that article would include a question relating to Constitutional law. This no doubt is so but this is due to the fact that words “questions of law or fact” constitute a well known phrase in legal terminology and have acquired a particular significance. From the use of those words in Article 143 it cannot be inferred that the framers of the Constitution did not make a distinction between the Constitution and the law.

1426. Articles 245, 246 and 248 deal with the making of laws. The words “shall not make any law” in Article 13(2) seem to echo the words used in Articles 245, 246 and 248 of the Constitution which deal with the making of laws. The words “make any law” in Article 13 as well as the above three articles should carry, in my opinion, the same meaning, namely, law made in exercise of legislative power. In addition to that, the law in Article 13 in view of the definition in Article 13(3) shall also include special provisions mentioned in Clause (3).

1427. It has already been mentioned above that there is no question in the case of a law made by the Parliament of its ratification by the resolutions passed by the State Legislatures. The fact that in case of some of the amendments made under Article 368 such ratification is necessary shows that an amendment of the Constitution is not law as contemplated by Article 13(2) or Articles 245, 246 and 248.

1428. Article 395 of the Constitution repealed the Indian Independence Act, 1947 and the Government of India, Act, 1935, together with all enactments amending or supplementing the latter Act, but not including the Abolition of Privy Council Jurisdiction Act, 1949. The law in force mentioned in Article 372(1) has reference not to any Constitutional law in the sense of being a law relating to the Constitution of either the territory of erstwhile British India or the territory comprised in the Indian States. So far as the territory of British India was concerned, the law before January 26, 1950 relating to the Constitution was contained in the Government of India Act, 1935 and the Indian Independence Act, 1947. Both these Acts were repealed by Article 395 when the Constitution of India came into force. As regards the territory comprised in Indian States, the law relating to their Constitutions in so far as it was inconsistent with the provisions of the Constitution of India also came to an end before January 26, 1950 when the said Constitution came into force. The only Constitution which was in force since that date was the Constitution of India and it applied to the whole of India, including the erstwhile Indian States and the British India. The various notifications which were issued before January 26, 1950 mentioned that with effect from that date “the Constitution of India shortly to be adopted by the Constituent Assembly of India shall be the Constitution for the States as for other parts of India and shall be enforced as such” (see White Paper on Indian States, pages 365 to 371). It would thus appear that hardly any law containing the Constitutions of territory of erstwhile Indian States remained in force after the coming into force of the Constitution of India with all its exhaustive provisions. If the law in force contemplated by Article 372(1) must be such as was continued after January 26, 1950, it would follow that Article 372 does not relate to the Constitutional law in the sense of being law relating to the Constitution of a territory.

1429. Although the law in force referred to in Article 372(1) would not include law relating to the Constitutions of the territory of erstwhile British India or the Indian States, it did include law relating to subjects dealt with by the Constitutions in force in those territories. Such a law which partakes of the nature of either a statutory law or an Order made under the organic provisions of those Constitutions, continued in force under Article 372(1). A statutory law or Order is obviously of an inferior character and cannot have the same status as that of a Constitution. Article 372(1) in the very nature of things deals with laws made under the provisions of Constitutions which were in force either in the erstwhile British India or the territory comprised in Indian States. The opening words of Article 372(1) “notwithstanding the repeal by this Constitution of the enactments referred to in Article 395” indicate that the laws in force contemplated by Article 372 are those laws which were framed under the repealed Indian Independence Act, 1947 and the Government of India Act, 1935 or similar other legislative enactments or orders made under the provisions of Constitutions of erstwhile Indian States. Such legislative enactments or Orders were inferior in status to a Constitution. I am, therefore, of the view that the word “law” in Article 372 has reference to law made under a Constitution and not to the provisions of a Constitution itself.

1430. Article 372(1) is similar to the provisions of Section 292 of the Government of India Act, 1935. As observed by Gwyer C.J. in the case of The United Provinces v. Mst.

Atiqa Begum and Ors. [1940] 2 F.C.R. 110 such a provision is usually inserted by draftsmen to negative the possibility of any existing law being held to be no longer in force by reason of the repeal of the law which authorized its enactment. The question with which we are concerned is whether law in Article 13 or Article 372 could relate to the provisions of the Constitution or provisions relating to its amendment. So far as that question is concerned, I am of the opinion that the language of Articles 372 and 13 shows that the word “law” used therein did not relate to such provisions. The Constitution of India was plainly not a law in force at the time when the Constitution came into force. An amendment of the Constitution in the very nature of things can be made only after the Constitution comes into force. As such, a law providing for amendment of the Constitution cannot constitute law in force for the purpose of Article 13(1) or Article 372(1).

1431. The language of Article 13(2) shows that it was not intended to cover amendments of the Constitution made in accordance with Article 368. It is difficult to accede to the contention that even though the framers of the Constitution put no express limitations in Article 368 on the power to make amendment, they curtailed that power by implication under Article 13(2). In order to find the true scope of Article 13(2) in the context of its possible impact on the power of amendment, we should read it not in isolation but along with Article 368. The rule of construction, to use the words of Lord Wright M.R. in James v. Commonwealth of Australia [1936] A.C. 578 is to read the actual words used “not in vacuo but as occurring in a single complex instrument in which one part may throw light on another”. A combined reading of Article 13(2) and Article 368, in my view, clearly points to the conclusion that extinguishment or abridgement of fundamental rights contained in Part III of the Constitution is not beyond the amendatory power conferred by Article 368. The alleged conflict between Article 13(2) and Article 368 is apparent and not real because the two provisions operate in different fields and deal with different objects.

1432. The Constitution itself treats the subject of ordinary legislation as something distinct and different from that of amendment of the Constitution. Articles 245 to 248 read with Seventh Schedule deal with ordinary legislation, while amendment of Constitution is the subject matter of Article 368 in a separate Part. Article 368 is independent and self-contained. Article 368 does not contain the words “subject to the provisions of this Constitution” as are to be found at the beginning of Article 245. The absence of those words in Article 368 thus shows that an amendment of the Constitution made under that article has a status higher than that of legislative law and the two are of unequal dignity. If there is any limitation on power of amendment, it must be found in Article 368 itself which is the sole fountain-head of power to amend, and not in other provisions dealing with ordinary legislation. As stated on pages 24-26 in the Amending of Federal Constitution by Orfield, ‘limitation on the scope of amendment should be found written in the amending clause and the other articles of the Constitution should not be viewed as limitations’. The very fact that the power of amendment is put in a separate Part (Part XX) and has not been put in the Part and Chapter (Part XI Chapter I) dealing with legislative powers shows that the two powers are different in character and operate in separate fields. There is also a vital difference in the procedure for passing ordinary legislation and that for bringing about a Constitutional amendment under Article 368.

The fact that an amendment Bill is passed by each House of Parliament and those two Houses also pass ordinary legislation does not obliterate the difference between the constituent power and the legislative power nor does it warrant the conclusion that constituent power is a species of legislative power.

1433. Our attention has been invited on behalf of the petitioners to the proceedings of the Constituent Assembly on April 29, 1947. Sardar Patel on that day made a move in the Constituent Assembly that Clause (2) be accepted. Clause (2) which provided the basis for Clauses (1) and (2) of Article 13 as finally adopted was in the following words:

All existing laws, notifications, regulations, customs or usages in force within the territories of the Union inconsistent with the rights guaranteed under this part of the Constitution shall stand abrogated to the extent of such inconsistency, nor shall the Union or any unit make any law taking away or abridging any such right.

Mr. K. Santhanam then moved an amendment for substituting the concluding words of Clause (2) by the following words:

Nor shall any such right be taken away or abridged except by an amendment of the Constitution.

The above amendment was accepted by Sardar Patel. Motion was thereafter adopted accepting the amended clause which was in the following words:

All existing laws, notifications, regulations, customs or usages in force within the territories of the Union inconsistent with the rights guaranteed under that part of the Constitution shall stand abrogated to the extent of such inconsistency, nor shall any such right be taken away or abridged except by an amendment of the Constitution.

1434. In October 1947 the Constitutional Adviser prepared the Draft Constitution, Sub- clause (2) of Clause 9 of which was as under:

(2) Nothing in this Constitution shall be taken to empower the State to make any law which curtails or takes away any of the rights conferred by Chapter II of this Part except by way of amendment of this Constitution under Section 232 and any law made in contravention of this sub-section shall, to the extent of the contravention, be void.

Minutes of the Drafting Committee of October 13, 1947 show that it was decided to revise Clause 9. Revised Clause 9 was put in the appendix as follows:

9. (1) All laws in force immediately before the commencement of this Constitution in the territory of India, in so far as they are inconsistent with any of the provisions of this Part, shall, to the extent of such inconsistency, be void.

(2) The State shall not make law which takes away or abridges the rights conferred by this Part and any law made in contravention of this sub- section shall, to the extent of the contravention be void.

(3) In this section, the expression ‘law’ includes any ordinance, order, bye- law, rule, regulation, notification, custom or usage having the force of law in the territory of India or any part thereof.

On February 21, 1948 Dr. Ambedkar forwarded the Draft Constitution of India to the President of the Constituent Assembly along with a covering letter. Clause 9 in this Draft Constitution was numbered as Clause 8. Sub-clause (2) of Clause 9 was retained as Sub- clause (2) of Clause 8. A proviso was also added to that sub-clause, but that is not material for the purpose of the present discussion. The Constitution was thereafter finally adopted and it contained Article 13, the provisions of which have been reproduced earlier.

1434. It has been argued on behalf of the petitioners that the members of the Drafting Committee who were eminent lawyers of India, deliberately revised Clause 9 of the Draft Constitution prepared by the Constitutional Adviser with a view to undo the effect of the amendment moved by Mr. Santhanam which had been accepted by the Constituent Assembly, because the members of the Drafting Committee wanted that the fundamental rights should not be abridged or taken away by the amendment of the Constitution.

1435. I find it difficult to accept the above argument. It is inconceivable that the members of the Drafting Committee would reverse the decision which had been taken by the Constituent Assembly when it accepted the amendment moved by Mr. Santhanam and adopted the motion for the passing of clause containing that amendment. It would appear from the speech of Mr. Santhanam that he had moved the amendment in order to remove doubt. Although there is nothing in the minutes to show as to why the members of the Drafting Committee did not specifically incorporate Mr. Santhanam’s amendment in the revised clause, it seems that they did so because they took the view that it was unnecessary. In his letter dated February 21, 1948 Dr. Ambedkar, Chairman of the Drafting Committee wrote to the President of the Constituent Assembly;

In preparing the Draft the Drafting Committee was of course expected to follow the decisions taken by the Constituent Assembly or by the various Committees appointed by the Constituent Assembly. This the Drafting Committee has endeavoured to do as far as possible. There were however some matters in respect of which the Drafting Committee felt it necessary to suggest certain changes. All such changes have been indicated in the draft by underlining or side-lining the relevant portions. Care has also been taken by the Drafting Committee to insert a footnote explaining the reason for every such change.

It is, therefore, plain that if it had been decided to make a material change in the draft article with a view to depart from the decision of the Constituent Assembly, the change would have been indicated by underlining or sidelining the relevant provision and also by inserting a footnote explaining reasons for the change. In the absence of any underlining, sidelining or footnote, it can be presumed that members of the Drafting Committee did not intend to make a change. A very material fact which should not be lost sight of in this context is the note which was put in October 1948 under the draft Article 8. It was stated in the Note:

Clause (2) of Article 8 does not override the provisions of Article 304 of the Constitution. The expression “law” used in the said clause is intended to mean “ordinary legislation”. However, to remove any possible doubt, the following amendment may be made in Article 8:

In the proviso to Clause (2) of Article 8, after the words “nothing in this clause shall” the words “affect the provisions of Article 304 of this Constitution or be inserted.” (see page 26 Shiva Rao’s “The Framing of India’s Constitution” Vol. IV).

The above note and other such notes were made by the Constitutional Adviser and reproduced fully the views of the Drafting Committee and/or of the Special Committee (see page 4 Shiva Rao’s “The Framing of India’s Constitution” Vol. I). It would thus appear that there is no indication that the members of the Drafting Committee wanted to deviate from the decision of the Constituent Assembly by making the provisions relating to fundamental rights unamendable. On the contrary, the note shows that they accepted the view embodied in the decision of the Constituent Assembly.

1436. Apart from that I am of the view that if the preservation of the fundamental rights was so vital an important a desideratum, it would seem logical that a proviso would have been added in Article 368 expressly guaranteeing the continued existence of fundamental rights in an unabridged form. This was, however, not done.

1437. The next question which should now engage our attention is about the necessity of amending the Constitution and the reasons which weighed with the framers of the Constitution for making provision for amendment of the Constitution. A Constitution provides the broad outlines of the administration of a country and concerns itself with the problems of the Government. This is so whether the Government originates in a forcible seizure of power or comes into being as the result of a legal transfer of power. At the time of the framing of the Constitution many views including those emanating from conflicting extremes are presented. In most cases the Constitution is the result of a compromise between conflicting views. Those who frame a Constitution cannot be oblivious of the fact that in the working of a Constitution many difficulties would have to be encountered and that it is beyond the wisdom of one generation to hit upon a permanently workable solution for all problems which may be faced by the State in its onward march towards further progress. Sometimes a judicial interpretation may make a Constitution broad-based and put life into the dry bones of a Constitution so as to make it a vehicle of a nation’s progress. Occasions may also arise where judicial interpretation might rob some provision of a Constitution of a part of its efficacy as was contemplated by the framers of the Constitution. If no provision were made for the amendment of the Constitution, the people would be left with no remedy or means for adapting it to the changing need of times and would per force have recourse to extra-Constitutional methods of changing the Constitution. The extra-Constitutional methods may sometimes be bloodless but more often they extract a heavy toll of the lives of the citizen and leave a trail of smouldering bitterness. A State without the means of some change, as was said by Burke in his Reflections on Revolution, is without the means of its conservation. Without such means it might even risk the loss of that part of the Constitution which it wished the most religiously to preserve. According to Dicey, twelve unchangeable Constitutions of France have each lasted on an average for less than ten years, and have frequently perished by violence. Louis Phillipe’s monarchy was destroyed within seven years of the time when Tocqueville pointed out that no power existed legally capable of altering the articles of the Charter. On one notorious instance at least-and other examples of the same phenomenon might be produced from the annals of revolutionary France-the immutability of the Constitution was the ground or excuse for its voilent subversion. To quote the words of Dicey:

Nor ought the perils in which France was involved by the immutability with which the statement of 1848 invested the Constitution to be looked upon as exceptional; they arose from a defect which is inherent in every rigid Constitution. The endeavour to create laws which cannot be changed is an attempt to hamper the exercise of sovereign power; it therefore tends to bring the letter of the law into conflict with the will of the really supreme power in the State. The majority of the French electors were under the Constitution the true sovereign of France; but the rule which prevented the legal re-election of the President in effect brought the law of the land into conflict with the will of the majority of the electors, and produced, therefore, as a rigid Constitution has a natural tendency to produce, an opposition between the letter of the law and the wishes of the sovereign. If the inflexibility of French Constitutions has provoked revolution, the flexibility of English Constitutions has, once at least, saved them from violent overthrow.

The above observations were amplified by Dicey in the following words:

To a student, who at this distance of time calmly studies the history of the first Reform Bill, it is apparent, that in 1832 the supreme legislative authority of Parliament enabled the nation to carry through a political revolution under the guise of a legal reform.

The rigidity in short, of a Constitution tends to check gradual innovation;

but, just because it impedes change, may, under unfavourable circumstances occasion or provoke revolution.

According to Finer, the amending clause is so fundamental to a Constitution that it may be called the Constitution itself (see The Theory and Practice of Modern Government, p.

156-157). The amending clause, it has been said, is the most important part of a Constitution. Upon its existence and truthfulness, i.e. its correspondence with real and natural conditions, depends the question as to whether the state shall develop with peaceable continuity or shall suffer alterations of stagnation, retrogression, and revolution. A Constitution, which may be imperfect and erroneous in its other parts, can be easily supplemented and corrected, if only the state be truthfully organized in the Constitution; but if this be not accomplished, error will accumulate until nothing short of revolution can save the life of the state (see Political Science and Comparative Constitutional Law, Vol. I by Burgess, p. 137). Burgess further expressed himself in the following words:

It is equally true that development is as much a law of state life as existence. Prohibit the former, and the latter is the existence of the body after the spirit has departed. When, in a democratic political society, the well-matured, long and deliberately formed will of the undoubted majority can be persistently and successfully thwarted, in the amendment of its organic law, by the will of the minority, there is just as much danger to the state from revolution and voilence as there is from the caprice of the majority, where the sovereignty of the bare majority is acknowledged. The safeguards against too radical change must not be exaggerated to the point of dethroning the real sovereign. (ibid p. 152) Justfying the amendment of the Constitution to meet the present conditions, relations and requirements, Burgess said we must not, as Mirabeau finely expressed it, lose the grande morale in the petite morale.

1438. According to John Stuart Mill, no Constitution can expect to be permanent unless it guarantees progress as well as order. Human societies grow and develop with the lapse of time, and unless provision is made for such Constitutional readjustments as their internal development requires, they must stagnate or retrogress (see Political Science and Government by J.W. Garner p. 536, 537).

1439. Willis in his book on the Constitutional Law of the United States has dealt with the question of amendment of the Constitution in the following words:

Why should change and growth in Constitutional law stop with the present? We have always had change and growth, We have needed change and growth in the past because there have been changes and growth in our economic and social life. There will probably continue to be changes in our economic and social life and there should be changes in our Constitutional law in the future to meet such changes just as much as there was need of change in the past. The Fathers in the Constitutional Convention expected changes in the future : otherwise they would not have provided for amendment. They wanted permanency or our Constitution and there was no other way to obtain it. The people of 1789 had no more sovereign authority than do the people of the present.

1440. Pleading for provision for amendment of a Constitution and at the same time uttering a note of caution against a too easy method of amendment, Willis wrote:

If no provision for amendment were provided, there would be a constant danger of revolution. If the method of amendment were made too easy, there would be the danger of too hasty action all of the time. In either case there would be a danger of the overthrow of our political institutions.

Hence the purpose of providing for amendment of the Constitution is to make it possible gradually to change the Constitution in an orderly fashion as the changes in social conditions make it necessary to change the fundamental law to correspond with such social change.

1441. We may also recall in this connection the words of Harold Laski in his tribute to Justice Holmes and the latter’s approach to the provision of the US Constitution. Said Laski:

The American Constitution was not made to compel the twentieth-century American to move in the swaddling clothes of his ancestors’ ideas. The American Constitution must be moulded by reason to fit new needs and new necessities…. The law must recognize change and growth even where the lawyer dislikes their implications. He may be skeptical of their implications; he has not the right to substitute his own pattern of Utopia for what they seek to accomplish.

1442. According to Ivor Jennings, flexibility is regarded as a merit and rigidity a defect because it is impossible for the framers of a Constitution to foresee the conditions in which it would apply and the problems which will arise. They have not the gift of prophecy. A Constitution has to work not only in the environments it was drafted, but also centuries later (see Some Characteristics of Indian Constitution, p. 14-15). It has consequently been observed by Jennings:

The real difficulty is that the problems of life and society are infinitely variable. A draftsman thinks of the problems that he can foresee, but he sees through a glass, darkly. He cannot know what problems will arise in ten, twenty, fifty or a hundred years. Any restriction on legislative power may do harm, because the effect of that restriction in new conditions cannot be foreseen.

1443. The machinery of amendment, it has been said, should be like a safety valve, so devised as neither to operate the machine with too great facility nor to require, in order to set it in motion, an accumulation of force sufficient to explode it. In arranging it, due consideration should be given on the one hand to the requisities of growth and on the other hand to those of conservatism. The letter of the Constitution must neither be idolized as a sacred instrument with that mistaken conservatism which ding to its own worn out garments until the body is ready to perish from cold, nor yet ought it to be made a plaything of politicians, to be tampered with and degraded to the level of an ordinary statute (see Political Science and Government by J.W. Garner, p. 538).

1444. The framers of our Constitution were conscious of the desirability of reconciling the urge for change with the need of continuity. They were not oblivious of the phenomenon writ large in human history that change without continuity can be anarchy;

change with continuity can mean progress; and continuity without change can mean no progress. The Constitution-makers have, therefore, kept the balance between the danger of having a non-amendable Constitution and a Constitution which is too easily amendable. It has accordingly been provided that except for some not very vital amendments which can be brought about by simple majority, other amendments can be secured only if they are passed in each House of Parliament by a majority of the total membership of that House and by a majority of not less than two-thirds of the members of each House present and voting. Provision is further made that in respect of certain matters which affect the interest of the States the amendment must also be ratified by the legislatures of not less than one half of the States by resolution to that effect. It can, therefore, be said that while a provision has been made for amendment of the Constitution, the procedure for the bringing about of amendment is not so easy as may make it a plaything of politicians to be tampered with and degraded to the level of ordinary statute. The fact that during the first two decades after the coming into force of the Constitution the amending Bills have been passed wihout much difficulty with requisite majority is a sheer accident of history and is due to the fact that one party has happened to be in absolute majority at the Centre and many of the States. This circumstance cannot obliterate the fact that in normal circumstances when there are well balanced parties in power and in opposition the method of amending the Constitution is not so easy.

1445. Another circumstance which must not be lost sight of is that no generation has monopoly of wisdom nor has any generation a right to place fetters on future generations to mould the machinery of government and the laws according to their requirements.

Although guidelines for the organization and functioning of the future government may be laid down and although norms may also be prescribed for the legislative activity, neither the guidelines should be so rigid nor the norms so inflexible and unalterable as should render them to be incapable of change, alteration and replacement even though the future generations want to change, alter or replace them. The guidelines and norms would in such an event be looked upon as fetters and shackles upon the free exercise of the sovereign will of the people in times to come and would be done away with by methods other than Constitutional. It would be nothing short of a presumptous and vain act and a myopic obsession with its own wisdom for one generation to distrust the wisdom and good sense of the future generation and to treat them in a way as if the generations to come would not be sui juris. The grant of power of amendment is based upon the assumption that as in other human affairs, so in Constitutions, there are no absolutes and that the human mind can never reconcile itself to fetters in its quest for a better order of things. Any fetter resulting from the concept of absolute and ultimate inevitably gives birth to the urge to revolt. Santayana once said : “Why is there sometimes a right to revolution? Why is there sometimes a duty to loyalty? Because the whole transcendal philosophy, if made ultimate, is false, and nothing but a selfish perspective hypostasized, because the will is absolute neither in the individual nor in the humanity…” (see German Philosophy and Politics (1915) 645-649 quoted by Frankfurter J. in “Mr. Justice Holmes”

931 Ed. page 117). What is true of transcendal philosophy is equally true in the mundane sphere of a Constitutional provision. An unamendable Constitution, according to Mulford, is the worst tyranny of time, or rather the very tyranny of time. It makes an earthly providence of a convention which was adjourned without day. It places the sceptre over a free people in the hands of dead men, and the only office left to the people is to build thrones out of the stones of their sepulchres (see Political Science and Government by J.W. Garner pages 537, 538).

1446. According to Woodrow Wilson, political liberty is the right of those who are governed to adjust government to their own needs and interest. Woodrow Wilson in this context quoted Burke who had said that every generation sets before itself some favourite object which it pursues as the very substance of liberty and happiness. The ideals of liberty cannot be fixed from generation to generation; only its conception can be, the large image of what it is. Liberty fixed in unalterable law would be no liberty at all.

Government is a part of life, and, with life, it must change, alike in its objects and in its practices; only this principle must remain unaltered, this principle of liberty, that there must be the freest right and opportunity of adjustment. Political liberty consists in the best practicable adjustment between the power of the government and the privilege of the individual; and the freedom to alter the adjustment is as important as the adjustment itself for the ease and progress of affairs and the contentment of the citizen (see Constitutional Government in the United States by Woodrow Wilson, p. 4-6).

1447. Each generation, according to Jefferson, should be considered as a distinct nation, with a right by the will of the majority to bind themselves but none to bind the succeeding generations, more than the inhabitant of another country. The earth belongs in usufruct to the living, the dead have neither the power nor the right over it. Jefferson even pleaded for revision or opportunity for revision of Constitution every nineteen years. Said the great American statesman:

The idea that institutions established for the use of the nation cannot be touched or modified, even to make them answer their and, because of rights gratuitously supposed in those employed to manage them in the trust for the public, may perhaps be a salutary provision against the abuses of a monarch, but is most absurd against the nation itself. Yet our lawyers and priests generally inculcate this doctrine and suppose that preceding generations held the earth more freely than we do, had a right to impose laws on us, unalterable by ourselves, and that we, in the like manner, can make laws and impose burdens on future generations, which they will have no right to alter; in fine that the earth belongs to the dead and not the living.

The above words were quoted during the course of the debate in the Constituent Assembly (see Vol. XI Constituent Assembly debates, p. 975) 1448. Thomas Paine gave expression to the same view in the following words:

There never did, there never will, and there never can, exist a parliament, or any description of men, or any generation of men, in any country, possessed of the right or the power of binding and controlling posterity to the ‘end of time’, or of commanding for ever how the world shall be governed, or who shall govern it; and therefore all such clauses, acts or declarations by which the makers of them attempt to do what they have neither the right not the power to do, nor take power to execute, are in themselves null and void. Every age and generation must be as free to act for itself in all cases as the ages and generations which preceded it The vanity and presumption of governing beyond the grave is the most ridiculous and insolent of all tyrannies. Man has no property in man;

neither has any generation a property in the generations which are to follow.

We may also reproduce the words of Pt. Nehru in His speech to the Constituent Assembly on November 11, 1948:

And remember this that while we want this Constitution to be as solid and as permanent a structure as we can make it, nevertheless there is no permanence in Constitutions. Their should be a certain flexibility. If you make anything rigid and permanent you stop a Nation’s growth, the growth of living vital organic people. Therefore it has to be flexible.

1449. If it is not permissible under Article 368 to so amend the Constitution as to take away or abridge the fundamental rights in Part III, as has been argued on behalf of the petitioners, the conclusion would follow that the only way to take away or abridge fundamental rights, even if the overwhelming majority of people, e.g. 90 per cent of them want such an amendment, is by resort to extra-Constitutional methods like revolution.

Although, in my opinion, the language of Article 368 is clear and, contains no limitation on the power to make amendment so as to take away or abridge fundamental rights, even if two interpretations were possible, one according to which the abridgement or extinguishment of fundamental rights is permissible in accordance with the procedure prescribed by Article 368 and the other according to which the only way of bringing about such a result is an extra-Constitutional method like revolution, the court, in my opinion, should lean in favour of the first interpretation. It hardly needs much argument to show that between peaceful amendment through means provided by the Constitution and the extra-Constitutional method with all its dangerous potentialities the former method is to be preferred. The contrast between the two methods is so glaring that there can hardly be any difficulty in making our choice between the two alternatives.

1450. The aforesaid discussion would also reveal that the consequences which would follow from the acceptance of the view that there is no power under Article 368 to abridge or take away fundamental rights would be chaotic because of the resort to extra- Constitutional methods. As against that the acceptance of the opposite view would not result in such consequences. Judged even in this light, I find it difficult to accede to the contention advanced on behalf of the petitioner.

1451. I may at this stage deal with the question, adverted to by the learned Counsel for the petitioners as to how far the consequences have to be taken into account in construing the provisions of the Constitution. In this connection, I may observe that it is one of the well-settled rules of construction that if the words of a statute are in themselves precise and unambiguous, no more is necessary than to expound those words in their natural and ordinary sense, the words themselves in such case best declaring the intention of the legislature. It is equally well-settled that where alternative constructions are equally open that alternative is to be chosen which will be consistent with the smooth working of the system which the statute purports to be regulating; and that alternative is to be rejected which will introduce uncertainty, friction, or confusion into the working of the system (see Collector of Customs, Baroda v. Digvijaysinhji Spinning & Weaving Mills Ltd.

[1961] INSC 153; [1962] 1 S.C.R. 896 (on p. 899)). These principles of construction apply with greater force when we are dealing with the provisions of a Constitution.

1452. I have kept the above principles in view and am of the opinion that as the language of Article 368 is plain and unambiguous, it is not possible to read therein a limitation on the power of Parliament to amend the provisions of Part III of the Constitution so as to abridge or take away fundamental rights; Apart from that, I am of the view that if two constructions were possible, the construction which I have, accepted would, as mentioned above, avoid chaotic consequences and would also prevent the introduction of uncertainty, friction or confusion into the working of our Constitution.

1453. It is also, in my opinion, not permissible in the face of the plain language of Article 368 to ascertain by any process akin to speculation the supposed intention of the Constitution-makers. We must act on the principle that if the word’s are plain and free from any ambiguity the Constitution-makers should be taken to have incorporated their intention in those words.

1454. It seems inconceivable that the framers of the Constitution in spite of the precedents of the earlier French Constitutions which perished in violence because of their non-amendability, inserted in the Constitution a Part dealing with fundamental rights which even by the unanmious vote of the people could not be abridged or taken away and which left with people no choice except extra-Constitutional methods to achieve that object. The mechanics of the amendment of the Constitution, including those relating to extinguishment or abridgement of fundamental rights, in my opinion, are contained in the Constitution itself and it is not necessary to have recourse to a revolution or other extra- Constitutional methods to achieve that object.

1455. Confronted with the situation that if the stand of the petitioners was to be accepted about the inability of the Parliament to amend Part III of the Constitution except by means of a revolution or other extra-Constitutional methods, the learned Counsel for the petitioners has argued that such an amendment is possible by making law for convening a Constituent Assembly or for holding a referendum. It is urged that there would be an element of participation of the people in the conventing of such a Constituent Assembly or the holding of a referendum and it is through such means that Part III of the Constitution can be amended so as to take away or abridge fundamental rights. The above argument, in my opinion, is untenable and fallacious. If Parliament by a two-thirds majority in each House and by following the procedure laid down in Article 368 cannot amend Part III of the Constitution so as to take away or abridge fundamental rights, it is not understood as to how the same Parliament can by law create a body which can make the requisite amendment. If it is not within the power of Parliament to take away or abridge fundamental rights even by a vote of two-thirds majority in each House, would it be permissible for the same Parliament to enact legislation under entry 97 List I of Seventh Schedule by simple majority for creating a Constituent Assembly in order to take away or abridge fundamental rights ? Would not such a Constituent Assembly be a creature of statute made by parliament even though such a body has the high-sounding name of Constituent Assembly ? The nomenclature of the said Assembly cannot conceal its real nature as being one created under a statute made by the Parliament. A body created by the Parliament cannot have powers greater than those vested in the Parliament.

It is not possible to accept the contention that what the Parliament itself could not legally do, it could get done through a body created by it. If something is impermissible, it would continue to be so even though two steps are taken instead of one for bringing about the result which is not permitted. Apart from the above if we were to hold that the Parliament was entitled under entry 97 List I to make a law for convening a Constituent Assembly for taking away or abridging fundamental rights, some startling results are bound to follow. A law made under entry 97 List I would need a simple majority in each House of the Parliament for being brought on statute book, while an amendment of the Constitution would require a two-thirds majority of the members of each House present and voting. It would certainly be anamolous that what Parliament could not do by two-thirds majority, it can bring about by simple majority. This apart, there are many articles of the Constitution, for the amendment of which ratification by not less than half of the State Legislatures is required. The provision regarding ratification in such an event would be set at naught. There would be also nothing to prevent Parliament while making a law for convening a Constituent Assembly to exclude effective representation or voice of State Legislatures in the covening of Constituent Assembly.

1456. The argument that provision should be made for referendum is equally facile. Our Constitution-makers rejected the method of referendum. In a country where there are religious and linguistic minorities, it was not considered a proper method of deciding vital issues. The leaders of the minority communities entertained apprehension regarding this method. It is obvious that when passions are roused, the opinion of the minority in a popular referendum is bound to get submerged and lose effectiveness.

1457. It also cannot be said that the method of bringing about amendment through referendum is a more difficult method. It is true that in Australia over 30 amendments were submitted to referendum, out of which only four were adopted and two of them were of trivial nature. As against that we find that the method of referendum for amending the Constitution has hardly provided much difficulty in Switzerland. Out of 64 amendments proposed for amending the federal Constitution, 49 were adopted in a popular referendum. So far as the method of amendment of the Constitution by two-third majority in either House of the Central Legislature and the ratification by the State Legislatures is concerned, we find that during first 140 years since the adoption of the United States Constitution, 3,113 proposals of amendment were made and out of them, only 24 so appealed to the Congress as to secure the approval of the Congress and only 19 made sufficient appeal to the State legislatures to secure ratification (see Constitutional Law of United States by Willis, p. 128). It, therefore, cannot be said that the method of referendum provides a more effective check on the power of amendment compared to the method of bringing it about by prescribed majority in each house of the Parliament.

1458. Apart from that I am of the view that it is not permissible to resort to the method of referendum unless there be a Constitutional provision for such a course in the amendment provision. In the case of George S. Hawkes v. Harvey C. Smith as Secretary of State of Ohio 64 Lawyers Ed. 871 the US Supreme Court was referred in the context of ratification by the States of the Eighteenth Amendment to the Constitution of the Ohio State which contained provision for referendum. It was urged that in the case of such a State ratification should be by the method of referendum. Repelling this contention, the court held:

Referendum provisions of State Constitutions and statutes cannot be applied in the ratification or objection of amendments to the Federal Constitution without violating the requirement of Article 5 of such Constitution, that such ratification shall be by the legislatures of the several states, or by conventions therein, as Congress shall decide.

The same view was reiterated by the US Supreme Court in State of Rhode Island v. A.

Mitchell Palmer Secretary of State and other connected cases better known as National Prohibition Cases 253 S.C.R. 350 64 Lawyers Edition 946.

1459. Argument has been advanced on behalf of the petitioner that there is greater width of power for an amendment of the Constitution if the amendment is brought about by a referendum compared to the power of amendment vested in the two Houses of Parliament or Federal Legislature even though it is required to be passed by a prescribed majority and has to be ratified by the State Legislatures. In this respect we find that different Constitutions have devised different methods of bringing about amendment. The main methods of modern Constitutional amendment are:

(1) by the ordinary legislature, but under certain restrictions;

(2) by the people through a referendum;

(3) by a majority of all the units of a federal state;

(4) by a special convention.

In some cases the system of amendment is a combination of two or more of these methods.

1460. There are three ways in which the legislature may be allowed to amend the Constitution, apart from the case where it may do so in the ordinary course of legislation.

The simplest restriction is that which requires a fixed quorum of members for the consideration of proposed amendments and a special majority for their passage. The latter condition operated in the now defunct Constitution of Rumania. According to Article 146 of the Constitution of USSR the Constitution may be amended only by a decision of Supreme Soviet of USSR adopted by a majority of not less than two-thirds of the votes in each of its chambers. A second sort of restriction is that which requires a dissolution and a general election on the particular issue, so that the new legislature, being returned with a mandate for the proposal, is in essence, a constituent assembly so far as that proposal is concerned. This additional check is applied in Belgium, Holland, Denmark and Norway (in all of which, however, also a two-thirds parliamentary majority is required to carry the amendment after the election) and in Sweden. A third method of Constitutional change by the legislature is that which requires a majority of the two Houses in joint session, that is to say, sitting together as one House, as is the case, for example, in South Africa.

1461. The second method is that which demands a popular vote or referedum or plebiscite. This device was employed in France during the Revolution and again by Louis Napoleon, and in Germany by Hitler. This system prevails in Switzerland, Australia, Eire, May, France (with certain Presidential provisios in the Fifth Republic) and in Denmark.

1462. The third method is peculiar to federations. The voting on the proposed measure may be either popular or by the legislatures of the states concerned. In Switzerland and Australia the referendum is in use; in the United States any proposed amendment requires ratification by the legislatures, or special conventions of three fourth of the several states.

1463. The last method is one in which a special body is created ad hoc for the purpose of Constitutional revision. In some of the states of the United States, for example, this method is in use in connection with the Constitution of the states concerned. Such a method is also allowed if the Federal Congress proposes this method for amendment of the United States Constitutions. This method is prevalent in some of the states in Latin America also (see Modern Political Constitutions by C.F. Strong, p. 153-154).

1464. The decision as to which method of amending the Constitution should be chosen has necessarily to be that of the Constituent Assembly. This decision is arrived at after taking into account the national requirements, the historical background, conditions prevailing in the country and other factors or circumstances of special significance for the nation. Once a method of amendment has been adopted in a Constitution, that method has to be adhered to for bringing about the amendment. The selection of the method of amendment having been made by the Constituent Assembly it is not for the court to express preference for another method of amendment. Amendment brought about by one method prescribed by the Constitution is as effective as it would have been if the Constitution had prescribed another method of bringing about amendment unless there be something in the Constitution itself which restricts the power of amendment. Article 138 of the Italian Constitution makes provision for referendum to bring about amendment of the Constitution. It has however, been expressly provided in the article that referendum does not take place if a law has been approved in its second vote by a majority of two- thirds of the members of each chamber. The Italian Constitution thus makes a vote of majority of two-thirds of the members of each chamber at the second voting as effective as a referendum. Article 89 of the Constitution of the French Fifth Republic like-wise makes provision for referendum for amendment of Constitution. It is, however, provided in that article that the proposed amendment is not submitted to a referendum when the President of the Republic decides to submit it to Parliament convened in Congress; in that case the proposed amendment is approved only if it is accepted by three-fifth majority of the votes cast.

1465. We may at this stage advert to Article 5 of the United States Constitution which reads as under:

The Congress, whenever two-thirds of both Houses shall deem it necessary, shall propose amendments to this Constitution, or, on the application of the legislature of two-thirds of the several States, shall call a convention for proposing amendments, which in either case, shall be valid to all intents and purposes, as part of this Constitution when ratified by the legislatures of three fourths of the several States, or by conventions in three fourth thereof, as the one or the other mode of ratification may be proposed by the Congress; Provided that no amendment which may be made prior to the year one thousand eight hundred and eight shall in any manner affect the first and fourth clauses in the ninth section of the first article; and that no State, without its consent, shall be deprived of its equal suffrage in the Senate.

The above article makes it clear that there are two methods of framing and proposing amendments.

(A) Congress may itself, by a two-thirds vote in each house, prepare and propose amendments.

(B) The legislatures of two-thirds of the States may require Congress to summon a Constitutional Convention. Congress shall thereupon dc so, having no option to refuse;

and the Convention when called shall draft and submit amendments. No provision is made as to the election and composition of the Convention, matters which would therefore appear to be left to the discretion of Congress.

1466. There are the following two methods of enacting amendments framed and proposed in either of the foregoing ways. It is left to Congress to prescribe one or other method as Congress may think fit.

(X) The legislatures of three-fourths of the States may ratify any amendments submitted to them.

(Y) Conventions may be called in the several States, and three-fourths of these conventions may ratify.

1467. Except for Twentyfirst Amendment, on all the occasions on which the amending power has been exercised, method A has been employed and method X for ratifying-i.e., no drafting conventions of the whole Union or ratifying conventions in the several States have ever been summoned. The consent of the President is not required to a Constitutional amendment (see American Commonwealth by James Bryce, pp. 365-366).

1468. There is one provision of the Constitution which cannot be changed by this process. It is that which secures to each and every State equal representation in one branch of the legislature because according to proviso to Article V, no State without its consent shall be deprived of its equal suffrage in the Senate.

1469. The question as to whether the width of power of amendment is greater in case the amendment is passed by a people’s convention compared to the width of the power if it is passed by the prescribed majority in the legislatures arose in the case of United States v.

Sprague [1931] USSC 53; 282 U.S. 716 decided by the Supreme Court of the United States. In that case the Constitutional validity of the Eighteenth Amendment was assailed on the ground that it should have been ratified by the Conventions because it took away the powers of the States and conferred new direct powers over individuals. The trial court rejected all these views and yet held the Eighteenth Amendment unConstitutional on theories of “political science,” the “political thought” of the times, and a “scientific approach to the problem of government.” The United States Supreme Court on appeal upheld the Eighteenth Amendment. After referring to the provisions of Article 5 Roberts J., who gave the opinion of the court, observed:

The choice, therefore, of the mode of ratification, lies in the sole discretion of Congress. Appellees, however, pointed out that amendments may be of different kinds, as e.g., mere changes in the character of federal means or machinery, on the one hand, and matters affecting the liberty of the citizen on the other. They say that the framers of the Constitution expected the former sort might be ratified by legislatures, since the States as entities would be wholly competent to agree to such alterations, whereas they intended that the latter must be referred to the people because not only of lack of power in the legislatures to ratify, but also because of doubt as to their truly representing the people.

Repelling the contention on behalf of the appellees, the court observed:

If the framers of the instrument had any thought that amendments differing in purpose should be ratified in different ways, nothing would have been simpler than so to phrase Article 5 as to exclude implication or speculation, The fact that an instrument drawn with such meticulous care and by men who so well understood how to make language fit their thought does not contain any such limiting phrase affecting the exercise of discretion by the Congress in choosing one or the other alternative mode of ratification is persuasive evidence that no qualification was intended.

The court referred to the Tenth Amendment which provided that “the powers not delegated to the United States by the Constitution nor prohibited by it to the States, are reserved to the States respectively or to the people.” The argument that the language of the Tenth Amendment demonstrates that the people reserved to themselevs powers over their personal liberty, that the legislatures were not competent to enlarge the powers of the Federal Government in that behalf and that the people never delegated to the Congress the unrestricted power of choosing the mode of ratification of a proposed amendment was described by the Court to be complete non sequitur. The fifth Article, it was observed, does not purport to delegate any governmental power to the United States, nor to withhold any from it. On the contrary, that article is a grant of authority by the people to Congress, and not to the United States. The court further observed:

They (the people) deliberately made the grant of power to Congress in respect to the choice of the mode of ratification of amendments. Unless and until that Article be changed by amendment, Congress must function as the delegated agent of the people in the choice of the method of ratification.

1470. I am, therefore, of the view that there is no warrant for the proposition that as the amendments under Article 368 are brought about by the prescribed majority of the two Houses of Parliament and in certain cases are ratified by the State Legislatures and the amendments are not brought about through referendum or passed in a Convention, the power of amendment under Article 368 is on that account subject to limitations.

1471. Argument has then been advanced that if power be held to be vested in Parliament under Article 368 to take away or abridge fundamental rights, the power would be, or in any case could be, so used as would result in repeal of all provisions containing fundamental rights. India, it is urged, in such an event would be reduced to a police state wherein all cherished values like freedom and liberty would be non-existent. This argument, in my opinion, is essentially an argument of fear and distrust in the majority of representatives of the people. It is also based upon the belief that the power under Article 368 by two-thirds of the members present and voting in each House of Parliament would be abused or used extravagently. I find it difficult to deny to the Parliament the power to amend the Constitution so as to take away or abridge fundamental rights by complying with the procedure of Article 368 because of any such supposed fear or possibility of the abuse of power. I may in this context refer to the observations of Marshall C.J. regarding the possibility of the abuse of power of legislation and of taxation in the case of The Providence Bank v. Alpheus Billings. [1830] USSC 42; 29 U.S. 514 This vital power may be abused; but the Constitution of the United States was not intended to furnish the corrective for every abuse of power which may be committed by the State governments. The interest, wisdom, and justice of the representative body, and its relations with its constituents furnish the only security where there is no express contract against unjust and excessive taxation, as well as against unwise legislation generally.

1472. That power may be abused furnishes no ground for denial of its existence if government is to be maintained at all, is a proposition, now too well established (fee the unanimous opinion of US Supreme Court in Exparte John L. Rapier 15 U.S. 93). Same view was expressed by the Judicial Committee in the case of Bank of Toronto and Lambe 12, A.C. 575 while dealing with the provisions of Section 92 of the British North America Act relating to the power of Quebec legislature.

1473. Apart from the fact that the possibility of abuse of power is no ground for the denial of power if it is found to have been legally vested, I find that the power of amendment under Article 368 has been vested not in one individual but in the majority of the representatives of the people in Parliament. For this purpose, the majority has to be of not less than two-thirds of the members present and voting in each House. In addition to that, it is required that the amendment Bill should be passed in each House by a majority of the total membership of that House. It is, therefore, not possible to pass an amendment Bill by a snap vote in a House wherein a small number of members are present to satisfy the requirement of the rule of quorum. The condition about the passing of the Bill by each House, including the Rajya Sabha, by the prescribed majority ensures that it is not permissible to get the Bill passed in a joint sitting of the two Houses (as in the case of ordinary legislation) wherein the members of the Rajya Sabha can be outvoted by the members of the Lok Sabha because of the latter’s greater numerical strength. The effective voice of the Rajya Sabha in the passing of the amendment Bill further ensures that unless the prescribed majority of the representatives of the states agree the Bill cannot be passed. The Rajya Sabha under our Constitution is a perpetual body; its members are elected by the members of the State Assemblies and one-third of them retire every two years. We have besides that the provision for the ratification of the amendment by not less than one-half of the State Legislature in case the amendment relates to certain provisions which impinge upon the rights of the States. The fact that a prescribed majority of the people’s representatives is required for bringing about the amendment is normally itself a guarantee that the power would not be abused. The best safeguard against the abuse or extravagant use of power is public opinion and not a letter on the right of people’s representatives to change the Constitution by following the procedure laid down in the Constitution itself. It would not be a correct approach to start with a distrust in the people’s representatives in the Parliament and to assume that majority of them would have ah aversion for the liberties of the people and would act against the public interest. To quote the words of Justice Holmes in Missouri Kansas & Texas Ry. v.

May [1904] USSC 114; 194 U.S. 267 (on p. 270).

Great Constitutional provisions must be administered with caution. Some play must be allowed for the joints of the machine and it must be remembered that legislatures are ultimate guardians of the liberties and welfare of the people in quite as great a degree as the courts.

1474. L.B. Orfield has dealt with the question of the abuse of power in his book “The Amending of Federal Constitution”, in the following words on page 123:

‘Abuse’ of the amending power is an anomalous term. The proponents of implied limitations resort to the method of reductio ad absurdum in pointing out the abuses which might occur if there were no limitations on the power to amend…. The amending power is a power of an altogether different kind from the ordinary governmental powers. If abuse occurs, it occurs at the hands of a special organization of the nation and of the states representing an extraordinary majority of the people, so that for all practical purposes it may be said to be the people, or at least the highest agent of the people, and one exercising soverign powers. Thus the people merely take the consequences of their own acts :

It has already been mentioned above that the best safeguard against the abuse of power is public opinion. Assuming that under the sway of some overwhelming impulse, a climate is created wherein cherished values like liberty and freedom lose their significance in the eyes of the people and their representatives and they choose to do away with all fundamental rights by amendment of the Constitution, a restricted interpretation of Article 368 would not be of much avail. The people in such an event would forfeit the claim to have fundamental rights and in any case fundamental rights would not in such an event save the people from political enslavement, social stagnation or mental servitude. I may in this context refer to the words of Learned Hand in his eloquent address on the Spirit of Liberty:

I often wonder whether we do not rest our hopes too much upon Constitutions, upon laws and upon courts. These are false hopes; believe me, these are false hopes. Liberty lies in the hearts of men and women;

when it dies there, no Constitution, no law no court can save it; no Constitution, no law, no court can even do much to help it. While it lies there it needs no Constitution, no law, no court to save it. And what is this liberty which must lie in the hearts of men and women? It is not the ruthless, the unbridled will; it is not freedom to do as one likes. That is the denial of liberty, and leads straight to its overthrow. A society in which men recognize no check upon their freedom soon becomes a society where freedom is the possession of only a savage few; as we have learned to our sorrow. (see pages 189-190 Spirit of Liberty edited by Irving Dilliard).

Similar idea was expressed in another celebrated passage by Learned Hand in the Contribution of an Independent Judiciary to Civilization:

You may ask what then will become of the fundamental principles of equity and fair play which our Constitutions enshrine; and whether I seriously believe that unsupported they will serve merely as counsels of moderation. I do not think that anyone can say what will be left of those principles; I do not know whether they will serve only as counsels; but this much I think I do know that a society so riven that the spirit of moderation is gone, no court can save; that a society where that spirit flourishes, no court need save; that in a society which evades its responsibility by thrusting upon the courts the nurture of that spirit, that spirit in the end will perish. (see p. 164 supra).

1475. It is axiomatic that the involvement of a nation in war by a declaration of war against another country can change the entire course of history of the nation. A wrong decision in this respect can cause untold suffering, result in national humiliation, take toll of thousands of lives and cripple the economy of the nation for decades to come. If the Government and the Parliament can be entrusted with power of such far reaching magnitude on the assumption that such a power would not be abused but would be exercised reasonably in the national interest, it would seem rather anomalous to have an approach of distrust in those very organs of the state and to deny to the Parliament the power of amendment of fundamental rights because of the supposed possibility of the abuse of such power.

1476. There is one other aspect of the matter which may be not lost sight of. Part III deals with a number of fundamental rights. Assuming that one relating to property, out-of the many fundamental rights, is found to be an obstacle in pushing forward certain ameliorative measures and it is proposed to abridge that fundamental right and it is also decided not to abridge or take away any other fundamental right, the present position, according to the stand taken on behalf of the petitioners, is that there is no power under Article 368 to abridge the obstructive fundamental right. The result is that even though reference is made on behalf of the petitioners to those fundamental rights as enshrine within themselves the valued concept of liberty of person and freedom of expression, the protection which is, in fact, sought is for the fundamental right to property which causes obstruction to pushing forward ameliorative measures for national weal. It is not, in my opinion, a correct approach to assume that if Parliament is held entitled to amend Part III of the Constitution so as to take away or abridge fundamental rights, it would automatically or necessarily result in the abrogation of all fundamental rights. I may mention in this context that for seventeen years, from 1950 till 1967 Golak Nath case (supra) was decided, the accepted position was that the Parliament had the power to amend Part III of the Constitution so as to take away or abridge fundamental rights.

Despite the possession of that power by the Parliament, no attempt was made by it to take away or abridge fundamental rights relating to cherished values like liberty of person and freedom of expression. If it was not done in the past, why should we assume that the majority of members of the Parliament in future would acquire sudden aversion and dislike for these values and show an anxiety to remove them from the Constitution. There is a vital distinction, in my opinion, between the vesting of a power, the exercise of the power and the manner of its exercise. What we are concerned with is as to whether on the true construction of Article 368, the Parliament has or has not the power to amend the Constitution so as to take away or abridge fundamental rights. So far as this question is concerned, the answer, in my opinion, should be in the affirmative, as long as the basic structure of the Constitution is retained.

1476. In the context of abuse of power of the amendment, reference has been made on behalf of the petitioners to the Constitution of Weimar Republic and it is urged that unless there are restrictions on the power of amendment in so far as fundamental rights are concerned, the danger is that the Indian Constitution may also meet the same fate as did the Weimar Constitution at the hands of Hitler. This argument, in my opinion, is wholly misconceived and is not based upon correct appreciation of historical facts.

Following military reversals when Kaiser fled to Holland in 1918 his mutinous subjects proclaimed a republic in Germany. There was thus a break in the continuity of the authority and the Weimar Republic had to face staggering political problems. It had to bear the burden of concluding a humilitating peace. It was later falsely blamed for the defeat itself by some of the politicians who were themselves responsible for the collapse and capitulation of 1918. The Republic had to wrestle, within a decade and a half, with two economic crises of catastrophic proportions which ruined and made desperate the ordinarily stable elements of society. The chaos with political party divisions in the country was reflected in Reichstag where no party obtained a clear majority. There were 21 cabinets in 14 years. It was in those conditions that Hitler emerged on the scene. He made use of Article 48 of the Weimar Constitution which dealt with emergency powers.

Under Article 48 of the Constitution, the President was empowered to issue decrees suspending the rights guaranteed by the basic law and to make direct use of the army and navy should emergency conditions so require. The purpose of the provisions was, of course, to provide the executive with means to act in the event of some grave national emergency where the immediate and concentrated use of the power of the state might become suddenly necessary. But what happened was that almost from its beginning the government found itself in one emergency after another, so that rule by executive decrees issued under the authority provided for by Article 48 supplanted the normal functioning of the legislative branch of government. The increasing division among the political parties, the staggering economic problem and the apparent failure of the parliamentary government to function, were accompanied by the steady growth in power of the National Socialist under Hitler. In less than two years, the Weimar Republic was transformed into a totalitarian dictatorship. The Enabling Act of March 23, 1933, pushed through the Reichstag by a narrow Nazi majority, provided government by decree without regard to Constitutional guarantees. The Act empowered the Government to enact the statutes without the sanction of the Parliament. Hitler made a show of following the Constitution, but the acts of his party in and out of the government in practice violated the basic law.

The few limitations imposed upon the government were ignored, and Hitler’s Third Reich was launched (see Modern Constitutions by R.F. Moore, p. 86-87 and The Constitutions of Europe by E.A. Goerner, p. 99-100). It would thus appear that it was not by use of the power of amending the Constitution but by acting under the cover of Article 48 of the Constitution dealing with emergency powers that Hitler brought about the Nazi dictatorship. He thus became what has been described as “…the supreme political leader of the people, supreme tender and highest superior of the administration, supreme judge of the people, supreme commander of the armed forces and the source of all law.

1477. Apart from the fact that the best guarantee against the abuse of power of amendment is good sense of the majority of the members of Parliament and not the unamendability of Part III of the Constitution, there is one other aspect of the matter.

Even if Part III may be left intact, a mockery of the entire parliamentary system can be made by amending Articles 85 and 172, which are not in Part III and according to which the life of the Lok Sabha and Vidhan Sabhas of the States, unless sooner dissolved, would be five years, and by providing that the life of existing Lok Sabha and Vidhan Sabhas shall be fifty years. This would be a flagrant abuse of the power of amendment and I refuse to believe that public opinion in our country would reach such abysmal depths and the standards of political and Constitutional morality would sink so low that such an amendment would ever be passed. I need express no opinion for the purpose of this case as to whether this Court would also not quash such an amendment In any case such an amendment would be an open invitation for and be a precursor of revolution.

1478. Even without amending any article, the emergency provisions of the Constitution contained in Article 358 and 359 can theoretically be used in such a manner as may make a farce of the democratic set up by prolonging the rule of the party in power beyond the period of five years since the last general election after the party in power has lost public support. A Proclamation of Emergency under Article 352 can be issued by the President if he is satisfied that a grave emergency exists whereby the security of India or of any part of the territory thereof is threatened, whether by war or external aggression or even by internal disturbance. Such a Proclamation has to be laid before each House of Parliament. Resolution approving the Proclamation has thereafter to be passed by the Houses of Parliament. According to Article 83, the House of the People, unless sooner dissolved, shall continue for five years from the date appointed for its first meeting and no longer and the expiration of the said period of five years shall operate as a dissolution of the House provided that the said period may, while a Proclamation of Emergency is in operation, be extended by Parliament by law for a period not exceeding one year at a time and not extending in any case beyond a period of six months after the Proclamation has ceased to operate. As the Government and Parliament play a vital part in the Proclamation and continuation of emergency, the emergency provisions can theoretically be used for avoiding the election and continuing a party in power even though it has lost popular support by extending the life of House of the People in accordance with Article 83(2). The effective check against such unabashed abuse of power is the sense of political responsibility, the pressure of public opinion and the fear of popular uprising. We need not go into the question as to whether the court would also intervene in such an event. It is, in my opinion, inconceivable that a party would dare to so abuse the powers granted by the emergency provisions. The grant of the above power under Article 83 (2) is necessarily on the assumption that such a power would not be abused.

1479. Argument has then been advanced on behalf of the petitioners that the power of amendment might well be used in such a manner as might result in doing away with the power of amendment under Article 368 or in any case so amending that articles as might make it impossible to amend the Constitution. It is, in my opinion, difficult to think that majority of members of future Parliament would attempt at any time to do away with the power of amendment in spite of the knowledge as to what was the fate of unamendable Constitutions in other countries like France. Assuming that at any time such an amendment to abolish all amendments of Constitution is passed and made a part of the Constitution, it would be nothing short of laying the seeds of a future revolution or other extra-Constitutional methods to do away with unamendable Constitution. It is not necessary for the purpose of this case to go into the question of the Constitutional validity of such an amendment.

1480. We may now deal with the question as to what is the scope of the power of amendment under Article 368. This would depend upon the connotation of the word “amendment”. Question has been posed during arguments as to whether the power to amend under the above article includes the power to completely abrogate the Constitution and replace it by an entirely new Constitution. The answer to the above question, in my opinion, should be in the negative. I am further of the opinion that amendment of the Constitution necessarily contemplates that the Constitution has not to be abrogated but only changes have to be made in it. The word “amendment” postulates that the old Constitution survives without loss of its identity despite the change and continues even though it has been subjected to alterations. As a result of the amendment, the old Constitution cannot be destroyed and done away with; it is retained though in the amended form. What then is meant by the retention of the old Constitution? It means the retention of the basic structure or framework of the old Constitution. A mere retention of some provisions of the old Constitution even though the basic structure or framework of the Constitution has been destroyed would not amount to the retention of the old Constitution. Although it is permissible under the power of amendment to effect changes, “howsoever important, and to adapt the system to the requirements of changing conditions, it is not permissible to touch the foundation or to alter the basic institutional pattern. The words “amendment of the Constitution” with all their wide sweep and amplitude cannot have the effect of destroying or abrogating the basic structure or framework of the Constitution. It would not be competent under the garb of amendment, for instance, to change the democratic government into dictatorship or hereditary monarchy nor would it be permissible to abolish the Lok Sabha and the Rajya Sabha. The secular character of the state according to which the state shall not discriminate against any citizen on the ground of religion only cannot likewise be done away with. Provision regarding the amendment of the Constitution does not furnish a pretence for subverting the structure of the Constitution nor can Article 368 be so construed as to embody the death wish of the Constitution or provide sanction for what may perhaps be called its lawful harakiri. Such subversion or destruction cannot be described to be amendment of the Constitution as contemplated by Article 368.

1481. The words “amendment of this Constitution” and “the Constitution shall stand amended” in Article 368 show that what is amended is the existing Constitution and what emerges as a result of amendment is not a new and different Constitution but the existing Constitution though in an amended form. The language of Article 368 thus lends support to the conclusion that one cannot, while acting under that article, repeal the existing Constitution and replace it by a new Constitution.

1482. The connotation of the amendment of the Constitution was brought out clearly by Pt. Nehru in the course of his speech in support of the First Amendment wherein he said that “a Constitution which is responsive to the people’s will, which is responsive to their ideas, in that it can be varied here and there, they will respect it all the more and they will not fight against, when we want to change it.” It is, therefore, plain that what Pt. Nehru contemplated by amendment was the varying of the Constitution “here and there” and not the elimination of its basic structure for that would necessarily result in the Constitution losing its identity.

1483. Reference to some authorities in the United States so far as the question is concerned as to whether the power to amend under Article 5 of US Constitution would include within itself the power to alter the basic structure of the Constitution are not helpful because there has been no amendment of such a character in the United States. No doubt the Constitution of the United States had in reality, though not in form, changed a good deal since the beginning of last century; but the change had been effected far less by formally enacted Constitutional amendments than by the growth of customs or institutions which have modified the working without altering the articles of the Constitution (see The Law of the Constitution by A.V. Dicey Tenth Ed. p. 129).

1484. It has not been disputed during the course of arguments that the power of amendment under Article 368 does not carry within itself the power to repeal the entire Constitution and replace it by a new Constitution. If the power of amendment does not comprehend the doing away of the entire Constitution but postulates retention or continuity of the existing Constitution, though in an amended form, question arises as to what is the minimum of the existing Constitution which should be left intact in order to hold that the existing Constitution has been retained in an amended form and not done away with. In my opinion, the minimum required is that which relates to the basic structure or framework of the Constitution. If the basic structure is retained, the old Constitution would be considered to continue even though other provisions have undergone change. On the contrary, if the basic structure is changed, mere retention of some articles of the existing Constitution would not warrant a conclusion that the existing Constitution continues and survives.

1485. Although there are some observations in “Limitations of Amendment Procedure and the Constituent Power” by Conrad to which it is not possible to subscribe, the following observations, in my opinion, represent the position in a substantially correct manner:

Any amending body organized within the statutory scheme, howsoever verbally unlimited its power, cannot by its very structure change the fundamental pillars supporting its Constitutional authority.

It has further been observed:

The amending procedure is concerned with the statutory framework of which it forms part itself. It may effect changes in detail, remould the legal expression of underlying principles, adapt the system to the needs of changing conditions, be in the words of Calhoun ‘the medicatrix of the system’, but should not touch its foundations.

A similar idea has been brought out in the, following passage by Carl J. Friedrich page 272 of “Man and His Government” (1963):

A Constitution is a living system. But just as in a living, organic system, such as the human body, various organs develop and decay yet the basic structure or pattern remains the same with each of the organs having its proper function, so also in a Constitutional system the basic institutional pattern remains even though the different component parts may undergo significant alterations. For it is the characteristic of a system that it perishes when one of its essential component parts is destroyed. The United States may retain some kind of Constitutional government, without, say, the Congress or the federal division of powers, but it would not be the Constitutional system now prevailing. This view is uncontested even by many who do not work with the precise concept of a Constitution here insisted upon.

1486. According to “The Construction of Statutes” by Crawford, a law is amended when it is in whole or in part permitted to remain and something is added to or taken from it or in some way changed or altered in order to make it more complete or perfect or effective.

It should be noticed, however, that an amendment is not the same as repeal, although it may operate as a repeal to a certain degree. Sutherland in this context states that any change of the scope or effect of an existing statute whether by addition, omission or substitution of provisions which does not wholly terminate its existence whether by an Act purporting to amend, repeal, revise or supplement or by an Act independent and original in form, is treated as amendatory.

1487. It is, no doubt, true that the effect of the above conclusion at which I have arrived is that there would be no provision in the Constitution giving authority for drafting a new and radically different Constitution with different basic structure or framework. This fact, in my opinion, would not show that our Constitution has a lacuna and is not a perfect or a complete organic instrument, for it is not necessary that a Constitution must contain a provision for its abrogation and replacement by an entirely new and different Constitution. The people in the final analysis are the ultimate sovereign and if they decide to have an entirely new Constitution, they would not need the authority of the existing Constitution for this purpose.

1488. Subject to the retention of the basic structure or framework of the Constitution, I have no doubt that the power of amendment is plenary and would include within itself the power to add, alter or repeal the various articles including those relating to fundamental rights. During the course of years after the Constitution comes into force, difficulties can be experienced in the working of the Constitution. It is to overcome those difficulties that the Constitution is amended. The amendment can take different forms. It may sometimes be necessary to repeal a particular provision of the Constitution without substituting another provision in its place. It may in respect of a different article become necessary to replace it by a new provision. Necessity may also be felt in respect of a third article to add some further clauses in it. The addition of the new clauses can be either after repealing some of the earlier clauses or by adding new clauses without repealing any of the existing clauses. Experience of the working of the Constitution may also make it necessary to insert some new and additional articles in the Constitution. Likewise, experience might reveal the necessity of deleting some existing articles. All these measures, in my opinion, would lie within the ambit of the power of amendment. The denial of such a broad and comprehensive power would introduce a rigidity in the Constitution as might break the Constitution. Such a rigidity is open to serious objection in the same way as an unamendable Constitution.

1489. The word “amendment” in Article 368 must carry the same meaning whether the amendment relates to taking away or abridging fundamental rights in Part III of the Constitution or whether it pertains to some other provision outside Part III of the Constitution. No serious objection is taken to repeal, addition or alteration of provisions of the Constitution other than those in Part III under the power of amendment conferred by Article 368. The same approach, in my opinion, should hold good when we deal with amendment relating to fundamental rights contained in Part III of the Constitution. It would be impermissible to differentiate between scope and width of power of amendment when it deals with fundamental right and the scope and width of chat power when it deals with provisions not concerned with fundamental rights.

1490. We have been referred to the dictionary meaning of the word “amend”, according to which to amend is to “free from faults, correct, rectify, reform, make alteration, to repair, to better and surpass”. The dictionary meaning of the word “amend” or “amendment”, according to which power of amendment should be for purpose of bringing about an improvement, would not, in my opinion, justify a restricted construction to be placed upon those words. The sponsors of every amendment of the Constitution would necessarily take the position that the proposed amendment is to bring about an improvement on the existing Constitution. There is indeed an element of euphemism in every amendment because it proceeds upon the assumption on the part of the proposer that the amendment is an improvement. In the realities and controversies of politics, question of improvement becomes uncertain with the result that in legal parlance the word amendment when used in reference to a Constitution signifies change or alteration. Whether the amendment is, in fact, an improvement or not, in my opinion, is not a justiciable matter, and in judging the validity of an amendment the courts would not go into the question as to whether the amendment has in effect brought about an improvement. It is for the special majority in each House of Parliament to decide as to whether it constitutes an improvement; the courts would not be substituting their own opinion for that of the Parliament in this respect. Whatever may be the personal view of a judge regarding the wisdom behind or the improving quality of an amendment, he would be only concerned with the legality of the amendment and this, in its turn, would depend upon the question as to whether the formalities prescribed in Article 368 have been complied with.

1491. The approach while determining the validity of an amendment of the Constitution, in my opinion, has necessarily to be different from the approach to the question relating to the legality of amendment of pleadings. A Constitution is essentially different from pleading filed in court by litigating parties. Pleadings contain claim and counter-claim of private parties engaged in litigation, while a Constitution provides for the framework of the different organs of the State, viz., the executive, the legislature and the judiciary. A Constitution also reflects the hopes and aspirations of a people. Besides laying down the norms for the functioning of different organs a Constitution encompasses within itself the broad indications as to how the nation is to march forward in times to come. A Constitution cannot be regarded as a mere legal document to be read as a will or an agreement nor is Constitution like a plaint or a written statement filed in a suit between two litigants. A Constitution must of necessity be the vehicle of the life of a nation. It has also to be borne in mind that a Constitution is not a gate but a road. Beneath the drafting of a Constitution is the awareness that things do not stand still but move on, that life of a progressive nation, as of an individual is not static and stagnant but dynamic and dashful.

A Constitution must therefore contain ample provision for experiment and trial in the task of administration. A Constitution, it needs to be emphasised, is not a document for fastidious dialectics but the means of ordering the life of a people. It had its roots in the past, its continuity is reflected in the present and it is intended for the unknown future.

The words of Holmes while dealing with the US Constitution have equal relevance for our Constitution. Said the great Judge:

…the provisions of the Constitution are not mathematical formulas having their essence in their form; they are organic living institutions transplanted from English soil. Their significance is vital not formal; it is to be gathered not simply by taking the words and a dictionary, but by considering their origin and the line of their growth. (See Gompers v. United States [1914] USSC 151; 233 U.S. 604, 610(1914).

It is necessary to keep in view Marshall’s great premises that “it is a Constitution we are expounding”. To quote the words of Felix Frankfurter in his tribute to Holmes:

Whether the Constitution is treated primarily as a text for interpretation or as an instrument of government may make all the difference in the world.

The fate of cases, and thereby of legislation, will turn on whether the meaning of the document is derived from itself or from one’s conception of the country, its development, its needs, its place in a civilized society:

(See “Mr. Justice Holmes” edited by Felix Frankfurter, p. 58).

The principles which should guide the court in construing a Constitution have been aptly laid down in the following passage by Kania C.J. in the case of A.K. Gopalan v. The State of Madras [1950] INSC 14; (1950) S.C.R. 88 (at p. 119-121):

In respect of the construction of a Constitution Lord Wright in James v.

The Commonwealth of Australia (1936) A.C. 578 (at 614) observed that ‘a Constitution most not be construed in any narrow or pedantic sense’. Mr.

Justice Higgins in Attorney-General of New South Wales v. Brewery Employees Union [1908] 6 Com. L.R. 469 (at 611-12) observed :

“Although we are to interpret words of the Constitution on the same principles of interpretation as we apply to any ordinary law, these very principles of interpretation compel us to take into account the nature and scope of the Act that we are interpreting-to remember that it is a Constitution, a mechanism under which laws are to be made and not a mere Act which declares what the law is to be.” In In re The Central Provinces and Berar Act XIV of 1938 [1939] F.C.R. 18 (at 37), Sir Maurice Gwyer C.J. after adopting these observations said : “Especially is this true of a Federal Constitution with its nice balance of jurisdictions. I conceive that a broad and liberal spirit should inspire those whose duty it is to interpret it; but I do not imply by this that they are free to stretch or pervert to language of the enactment in the interest of any legal or Constitutional theory or even for the purpose of supplying omissions or of correcting supposed errOrs.” There is considerable authority for the statement that the Courts are not at liberty to declare an Act void because in their opinion it is opposed to a spirit supposed to pervade the Constitution but not expressed in words. Where the fundamental law has not limited, either in terms or by necessary implication, the general powers conferred upon the Legislature we cannot declare a limitation under the notion of having discovered something in the spirit of the Constitution which is not even mentioned in the instrument. It is difficult upon any general principles to limit the omnipotence of the sovereign legislative power by judicial interposition, except so far as the express words of a written Constitution give that authority. It is also stated, if the words be positive and without ambiguity, there is no authority for a Court to vacate or repeal a Statute on that ground alone. But it is only in express Constitutional provisions limiting legislative power and controlling the temporary will of a majority by a permanent and paramount law settled by the deliberate wisdom of the nation that one can find a safe and solid ground for the authority of Courts of justice to declare void any legislative enactment. Any assumption of authority beyond this would be to place in the hands of the judiciary powers too great and too indefinite either for its own security or the protection of private rights.

1492. Reference has been made on behalf of the petitioners to para 7 of the Fifth Schedule to the Constitution which empowers the Parliament to amend by way of addition, variation or repeal any of the provisions of that Schedule dealing with the administration and control of scheduled areas and scheduled tribes. Likewise, para 21 of the Sixth Schedule gives similar power to the Parliament to amend by way of addition, variation or repeal any of the provisions of the Sixth Schedule relating to the adminisitration of tribal areas. It is urged that while Article 368 contains the word “amendment” simpliciter, the above two paragraphs confer the power to amend by way of addition, variation or repeal and thus enlarge the scope of the power of amend merit. This contention, in my opinion, is not well founded. The words “by way of addition, variation or repeal” merely amplify the meaning of the word “amend” and clarify what was already implicit in that word. It, however, cannot be said that if the words “by way of addition, variation or repeal” had not been there, the power of amendment would not have also included the power to add, vary or repeal. These observations would also hold good in respect of amended Section 291 of the Government of India Act, 1935 which gave power to the Governor-General at any time by Order to make such amendments as he considered necessary whether by way of addition, modification or repeal, in the provisions of that Act or of any Order made thereunder in relation to any Provincial Legislature with respect to the matters specified in that section. A clarification by way of abundant caution would not go to show that in the absence of the clarification, the power which inheres and is implicit would be nonexistent. Apart from that, I am of the view that sub-paragraph (2) of paragraph 7 of the Fifth Schedule indicates that the word “amendment” has been used in the sense so as to cover amendment by way of addition, variation or repeal. According to that paragraph, no law mentioned in sub-paragraph (1) shall be deemed to be an amendment of the Constitution for purpose of Article 368. As sub-paragraph (1) deals with amendment by way of addition, variation or repeal, the amendment of Constitution for purpose of Article 368 referred to in sub-paragraph (2) should be construed to be co-extensive and comprehensive enough to embrace within itself amendment by way of addition, variation or repeal. The same reasoning would also apply to sub-paragraph (2) of paragraph 21 of the Sixth Schedule.

1493. The Judicial Committee in the case of British Coal Corporation v. The King [1935] A.C. 500 laid down the following rule:

In interpreting a constituent or organic statute such as the Act, that construction most beneficial to the widest possible amplitude of its powers must be adopted.

The Judicial Committee also quoted with approval the following passage from Clement’s Canadian Constitution relating to provision of British North America Act:

But these are statutes and statutes, and the strict construction deemed proper in the case, for example of a penal or taxing statute, or one passed to regulate the affairs of an English parish, would be often subversive of Parliament’s real intent if applied to an Act passed to ensure the peace, order and good government….

Orfield, while dealing with the amendment of the Constitution has observed that the amendment of a Constitution should always be construed more liberally. To quote from his book “The Amending of the Federal Constitution:

Is there a restriction that an amendment cannot add but only alter? An argument very much like the foregoing is that an amendment may alter but may not add. This contention is largely a quibble on the definition of the word ‘amendment’. It is asserted that by amending the Constitution is meant the changing of something that is already in the Constitution, and not the addition of something new and unrelated. Cases prescribing the very limited meaning of amendments in the law of pleading are cited as authoritative. It would seem improper however, to accept such a definition, as amendments to Constitutions have always been construed more liberally and on altogether different principles from those Applied to amendments of pleadings.

1494. It may also be mentioned that Article 5 of the US Constitution confers powers of amendment. The word used in that article is amendment simpliciter and not amendment by way of addition, alteration or repeal. In pursuance of the power conferred by Article 5, Article 18 was added to the American Constitution by the Eighteenth Amendment.

Subsequently that article (Article 18) was repealed by the Twenty-first Amendment.

Section 1 of Article 21 was in the following words:

The Eighteenth article of amendment to the Constitution of the United States is hereby repealed.

The addition of the eighteenth article, though challenged, was upheld by the Supreme Court. No one has questioned the repeal of the eighteenth article on the ground that the power of amendment would not include the power to repeal.

1495. I cannot subscribe to the view that an amendment of the Constitution must keep alive the provision sought to be amended and that it must be consistent with that provision. Amendment of Constitution has a wide and broad connotation and would embrace within itself the total repeal of some articles or their substitution by new articles which may not be consistent with or in conformity with earlier articles. Amendment in Article 368 has been used to denote change. This is clear from the opening words of the proviso to Article 368 according to which ratification by not less than half of State Legislatures would be necessary if amendment seeks to make a change in the provisions of the Constitution mentioned in the proviso. The word change has a wide amplitude and would necessarily cover cases of repeal and replacement of earlier provisions by new provisions of different nature. Change can be for the better as well as for the worse.

Every amendment would always appear to be a change for the worse in the eyes of those who oppose the amendment. As against that, those who sponsor an amendment would take the stand that it is a change for the better. The court in judging the validity of an amendment would not enter into the arena of this controversy but would concern itself with the question as to whether the Constitutional requirements for making the amendment have been satisfied. An amendment of the Constitution in compliance with the procedure prescribed by Article 368 cannot be struck down by the court on the ground that it is a change for the worse. If the court were to strike down the amendment on that ground, it would be tantamount to the court substituting its own opinion for that of the Parliament, reinforced in certain cases by that of not less than half of State Legislatures, regarding the wisdom of making the impugned Constitutional amendment.

Such a course, which has the effect of empowering the court to sit in appeal over the wisdom of the Parliament in making Constitutional amendment, on the supposed assumption that the court has superior wisdom and better capacity to decide as to what is for the good of the nation is not permissible. It would, indeed, be an unwarranted incursion into a domain which essentially belongs to the representatives of the people in the two Houses of Parliament, subject to ratification in certain cases by the State Legislatures. We may in this context recall the words of Holmes J. in Lochner v. New York [1905] USSC 100; (1904) 198 U.S. 45.

This case is decided upon an economic theory which a large part of the country does not entertain. If it were a question whether I agreed with that theory, I should desire to study it further and long before making up my mind. But I do not conceive that to be my duty, because I strongly believe that my agreement or disagreement has nothing to do with the right of a majority to embody their opinions in law.

The above observations were contained in the dissent of Holmes J. The above dissent has subsequently been accepted by the US Supreme Court to lay down the correct law (see Ferguson v. Skrupa [1963] USSC 73; (1963) 372 U.S. 726 wherein it has been observed by the court:

In the face of our abandonment of the use of the ‘vague contours’ of the Due Process Clause to nullify laws which a majority of the Court believed to be economically unwise, reliance on Adams v. Tanner is as mistaken as would be adherence to Adkins v. Children’s Hospital, overruled by West Coast Hotel Co. v. Parrish AIR 1330 (1937)…. We refuse to sit as a ‘superlegislature to weigh the wisdom of legislation’, and we emphatically refuse to go back to the time when courts used the Due Process Clause to strike down state laws, regulatory of business and industrial conditions, because they may be unwise, improvident, or out of harmony with a particular school of thought’.

1496. It has also been urged on behalf of the petitioners that the framers of the Constitution could not have intended that even though for the amendment of articles referred to in the proviso to Article 368, ratification of not less than one half of the State Legislatures would be necessary, in the case of an amendment which deals with such a vital matter as the taking away or abridgement of fundamental rights, the amendment could be brought about without such a ratification. This argument, in my opinion, is untenable. The underlying fallacy of this argument is that it assumes that ratification by the State Legislatures is necessary under the proviso in respect of Constitutional amendments of great importance, while no such ratification is necessary in the case of comparatively less important amendments. Plain reading of Article 368, however, shows that ratification by the State Legislatures has been made imperative in the case of those Constitutional amendments which relate to or affect the rights of the States. In other cases no such ratification is necessary. The scheme of Article 368 is not to divide the articles of the Constitution into two categories, viz., important and not so important articles. What Article 368 contemplates is that the amending power contained in it should cover all the articles, leaving aside those provisions which can be amended by Parliament by bare majority. In the case, however, of such of the articles as relate to the federal principle or the relations of the States with the Union, the framers of the Constitution put them in the proviso and made it imperative to obtain ratification by not less than half of the State Legislatures in addition to the two-thirds majority of the members present and voting-in each House of the Parliament for bringing about the amendment. It is plain that for the purpose of ratification by the State Legislatures, the framers of the Constitution attached greater importance to the federal structure than to the individual rights. Such an approach is generally adopted in the case of a provision for amendment of the federal Constitution.

K.C. Wheare in his book on the Federal Government has observed on page 55:

It is essential in a federal government that if there be a power of amending the Constitution, that power, so far at least as concerns those provisions of the Constitution which regulate the status and power of the general and regional governments, should not be confided exclusively either to the general governments or to the regional governments.

We may in this context refer to the speech of Dr. Ambedkar who while dealing with the category of articles for the amendment of which ratification by the States was required, observed:

Now, we have no doubt put certain articles in a third category where for the purposes of amendment the mechanism is somewhat different or double. It requires two-thirds majority plus ratification by the States. I shall explain why we think that in the case of certain articles it is desirable to adopt this procedure. If Members of the House who are interested in this matter are to examine the articles that have been put under the proviso, they will find that they refer not merely to the Centre but to the relations between the Centre and the Provinces. We cannot forget the fact that while we have in a large number of cases invaded provincial autonomy, we still intend and have as a matter of fact seen to it that the federal structure of the Constitution remains fundamentally unaltered. We have by our laws given certain rights to provinces, and reserved certain rights to the Centre. We have distributed legislative authority; we have distributed executive authority and we have distributed administrative authority. Obviously to fay that even those articles of the Constitution which pertain to the administrative, legislative, financial and other powers, such as the executive powers of the provinces should be made liable to alteration by the Central Parliament by two-thirds majority, without permitting the provinces or States to have any voice, is in my judgment altogether nullifying the fundamentals of the Constitution.

1497. learned Counsel for the petitioners has addressed us at some length on the point that even if there are no express limitations on the power of amendment, the same is subject to implied limitations, also described as inherent limitations. So far as the concept of implied limitations is concerned, it has two facets. Under the first facet, they are limitations which flow by necessary implication from express provisions of the Constitution. The second facet postulates limitations which must be read in the Constitution irrespective of the fact whether they flow from express provisions or not because they are stated to be based upon certain higher values which are very dear to the human heart and are generally considered essential traits of civilized existence. It is also stated that those higher values constitute the spirit and provide the scheme of the Constitution. This aspect of implied limitations is linked with the existence of natural rights and it is stated that such rights being of paramount character, no amendment of Constitution can result in their erosion.

1498. I may at this stage clarify that there are certain limitations which inhere and are implicit in the word “amendment”. These are limitations which flow from the use of the word “amendment” and relate to the meaning or construction of the word “amendment”

This aspect has been dealt with elsewhere while construing the word “amendment”.

Subject to this clarification, we may now advert to the two facets of the concept of implied limitations referred to above.

1499. So far as the first facet is concerned regarding a limitation which flows by necessary implication from an express provision of the Constitution, the concept derives its force and is founded upon a principle of interpretation of statutes. In the absence of any compelling reason, it may be said that a Constitutional provision is not exempt from the operation of such a principle. I have applied this principle to Article 368 and despite that, I have not been able to discern in the language of that article or other relevant articles any implied limitation on the power to make amendment contained in the said article.

1500. We may now deal with the second aspect of the question which pertains to limitation on the power of making amendment because such a limitation, though not flowing from an express provision, is stated to be based upon higher values which are very dear to the human heart and are considered essential traits of civilized existence. So far as this aspect is concerned, one obvious objection which must strike every one is that the Constitution of India is one of the lengthiest Constitutions, if not the lengthiest, of the world. The framers of the Constitution dealt with different Constitutional matters at considerable length and made detailed and exhaustive provisions about them. Is it then conceivable that after having dealt with the matter so exhaustively and at such great length in express words, they would leave things in the realm of implication in respect of such an important article as that relating to the amendment of the Constitution. If it was intended that limitations should be read on the power of making amendment, question would necessarily arise as to why the framers of the Constitution refrained from expressly incorporating such limitations on the power of amendment in the Constitution itself. The theory of implied limitations on the power of making amendment may have some fascination and attraction for political theorists, but a deeper reflection would reveal that such a theory is based upon a doctrinaire approach and not what is so essential for the purpose of construing and working a Constitution, viz., a pragmatic and practical approach. This circumstance perhaps accounts for the fact that the above theory of implied limitations has not been accepted by the highest court in any country.

1501 As the concept of implied limitations on the power of amendment under the second aspect is not based upon some express provision of the Constitution, it must be regarded as essentially nebulous. The concept has no definite contours and its acceptance would necessarily introduce elements of uncertainty and vagueness in a matter of so vital an importance as that pertaining to the amendment of the Constitution. Whatever might be the justification for invoking the concept of implied limitations in a short Constitution, so far as the Constitution of India with all its detailed provisions is concerned, there is hardly any scope or justification for invoking the above concept. What was intended by the framers of the Constitution was put in express words and, in the absence of any words which may expressly or by necessary implication point to the existence of limitations on the power of amendment, it is, in my opinion, not permissible to read such limitations in the Constitution and place them on the power of amendment. I find it difficult to accede to the submission that the framers of the Constitution after having made such detailed provisions for different subjects left something to be decided by implication, that in addition to what was said there were things which were not said but which were intended to be as effective as things said. The quest for things not said, but which were to be as effective as things said, would take us to the realm of speculation and theorising and must bring in its wake the uncertainty which inevitably is there in all such speculation and theorising. All the efforts of the framers of the Constitution to make its provisions to be definite and precise would thus be undone. We shall be in doing so, not merely ignoring but setting at naught what must be regarded as a cardinal principle that a Constitution is not a subject of fastidious and abstract dialectics but has to be worked on a practical plane so that it may become a real and effective vehicle of the nation’s progress. As observed by Story in para 451 of the Constitution of the United States, Volume I Constitutions are not designed for metaphysical or logical subtleties, for niceties of expression, for critical propriety, for elaborate shades of meaning, or for the exercise of philosophical acuteness, or judicial research. They are instruments of practical nature, founded on the common business of human life, adapted to common wants, designed for common use, and fitted for common understandings.

1502. In the National Prohibition Cases (supra) the petitioners challenged before the US Supreme Court the validity of the Eighteenth Amendment relating to prohibition. It was urged that the aforesaid amendment had resulted in encroachment upon the police power of the States. There was implied limitation on the power to make such an amendment, according to the petitioners in those cases under Article 5 of the US Constitution.

Although the Supreme (Joint gave no reasons in support of its conclusion, it upheld the validity of the Eighteenth Amendment. Argument about the implied limitations on the power of amendment was thus tacitly rejected.

1503. Eminent authors like Rottschaefer and Willis have taken the view that the theory of implied limitations should be taken to have been rejected in the National Prohibition Cases (supra) by the US Supreme Court. Rottschaefer in Handbook of American Constitutional Law has observed on pages 8 to 10:

The only assumption on which the exercise of the amending power would be inadequate to accomplish those results would be the existence of express or implied limits on the subject matter of amendments. It has been several times contended that the power of amending the federal Constitution was thus limited, but the Supreme Court has thus far rejected every such claim, although at least one state court has subjected the power of amending the state Constitution to an implied limit in this respect. The former position is clearly the more reasonable, since the latter implies that the ultimately sovereign people have inferentially deprived themselves of that portion of their sovereign power, once possessed by them, of determining the content of their own fundamental law.

1504. Question of implied limitation on the powers to make amendment also arose the case of Jeremish Ryan and Ors. v. Captain Michael Lennon [1935] Irish Reports p. 170 Article 50 of the Constitution of the Irish Free State which came into force on December 6, 1922, as originally enacted, provided as follows:

Amendments of this Constitution within the terms of the Scheduled Treaty may be made by the Oireachtas, but no such amendment, passed by both Houses of the Oireachtas, after the expiration of a period of eight years from the date of the coming into operation of this Constitution, shall become law, unless the same shall, after it has been passed or deemed to have been passed by the said two Houses of the Oireachtas, have been submitted to a Referendum of the people, and unless a majority of the votes on the register shall have recorded their votes on such Referendum, and either the votes of a majority of the voters in the register, or two-thirds of the votes recorded, shall have been cast in favour of such amendment.

Any such amendment may be made within the said period of eight years by way of ordinary legislation and as such shall be subject to the provisions of Article 47 hereof.

1505. By the Constitution (Amendment No. 10) Act, 1928, passed within the said period of eight years, the Constitution was amended by, inter alia, the deletion of Article 47 (dealing with referendum) and the deletion from Article 50 of the words “and as such shall be subject to the provisions of Article 47 thereof”. By the Constitution (Amendment No. 15) Act, 1929, also passed within the said period of eight years, Article 50 was amended by the substitution of the words “sixteen years” for the words “eight years”

therein. By the Constitution (Amendment No. 17) Act, 1931 the Constitution was amended by inserting therein a provision relating to the establishment of a Tribunal consisting of officers of Defence Forces to try a number of offences. Power of detention on suspicion in certain cases was also conferred. It was in the context of the validity of the establishment of such Tribunals that the question arose as to whether there was an implied limitation on the power to make amendment. It was held by the Supreme Court (FitzGibbon and Murnaghan JJ. and Kennedy C.J. dissenting), while dealing with the first two amendments, that these enactments were within the power of amendment conferred on the Oireachtas by Article 50 and were valid amendments of the Constitution; and that, consequently, an amendment of the Constitution; enacted after the expiry of the original period of eight years was not invalid by reason of not having been submitted to a referendum of the people under Article 50 or Article 47 as originally enacted. Dealing with the Constitution (Amendment No. 17) Act, 1931 it was held by the same majority that it was a valid amendment and was not ultra vires by reason of involving a partial repeal of the Constitution or by reason of conflicting with specific articles of the Constitution such as Article 6 relating to the liberty of the person, Article 64 relating to the exercise of judicial power or Article 72 relating to the trial by jury or by reason of infringing or abrogating other articles of the Constitution or principles underlying the various articles of the Constitution which were claimed to be fundamental and immutable. Kennedy C.J., after referring to the different articles of the Constitution, held that there was not, either expressly or by necessary implication, any power to amend the power of amendment itself. He observed in this connection:

No doubt the Constituent Assembly could, if it had so intended, have given a power of amendment of the power to amend the Constitution, but in that case it would seem far more likely that it would rather have conferred on the Oireachtas a general open and free power of amendment of the Constitution, unlimited in scope and without limiting and restraining requirements for its exercise, than have done the same thing indirectly by giving a strictly limited power with power to remove the limitations. The Constituent Assembly clearly, to my mind, did not so intend. In my opinion on the true interpretation of the power before us, upon a consideration of the express prohibition, limitations and requirements of the clause containing it, the absence of any express authority, the donation of the effective act in the exercise of the power to the people as a whole, the relevant surrounding circumstances to which I have already referred, and the documents and their tenor in their entirety, there is not here, either expressly or by necessary implication, any power to amend the power of amendment itself.

FitzGibbon J. dealt with this question in these words:

Unless, therefore, these rights appear plainly from the express provisions of our Constitution to be inalienable, and incapable of being modified or taken away by any legislative act, I cannot accede to the argument that the Oireachtas cannot alter, modify, or repeal them. The framers of our Constitution may have intended ‘to bind man down from mischief by the chains of the Constitution’, but if they did, they defeated their object by handing him the key of the padlock in Article 50.

Murnagham J. observed:

The terms in which Article 50 is framed does authorise the amendment made and there is not in the Article any express limitation which excludes Article 50 itself from the power of amendment. I cannot, therefore, find any ground upon which the suggested limitation can be properly based.

1506. The theory of implied limitations on the power of amendment was thus rejected by the majority of the Judges of the Irish Supreme Court. It would further appear that the crucial question which arose for determination in that case was whether there was any power to amend the article relating to amendment of the Constitution or whether there was any restriction in this respect. No such question arises under our Constitution because there is an express provision in Clause (e) of the proviso to Article 368 permitting such amendment. Apart from that I find that in the case of Moore and Ors. v.

The Attorney-General for the Irish Free State and Ors. [1935] A.C. 484 the counsel for the appellant did not challenge the Constitutional validity of the 1929 Amendment. The counsel conceded that the said Amendment was regular and that the validity of the subsequent amendments could not be attacked on the ground that they had not been submitted to the people in a referendum. Dealing with the above concession, the Judicial Committee observed that the counsel had rightly conceded that point. The Judicial Committee thus expressed its concurrence with the conclusion of the majority of the Irish Supreme Court relating to the Constitutional validity of the Amendment Act of 1929.

1507. A.B. Keith has also supported the view of the majority and has observed that the view of the Chief Justice in this respect was wrong (see Letters on Imperal Relations Indian Reform Constitutional & International Law 1916-1935, p. 157). Keith observed in this connection:

But that the Chief Justice was wrong on this head can hardly be denied.

Article 50 of the Constitution, which gave the power for eight years to effect changes by simple Act, did not prevent alteration of that Article itself, and, when the Constitution was enacted, it was part of the Constitutional law of the Empire that a power of change granted by a Constitution applies to authorize change of the power itself, unless it is safeguarded, as it normally is, by forbidding change of the section giving the power. The omission of this precaution in the Free State Constitution must have been intentional, and therefore, it was natural that the Dail, at Mr. Consgrave’s suggestion, and with the full approval of Mr. de Valera, then in opposition should extend the period for change without a referendum.

1508. Dealing with the doctrine of implied limitations on the power of amendment, Orfield observes:

Today at a time when absolutes are discredited, it must not be too readily assumed that there are fundamental purposes in the Constitution which shackle the amending power and which take precedence over the general welfare and needs of the people of today and of the future. (see The Amending of the Federal Constitution (1942), p. 107).

If has been further observed:

An argument of tremendous practical importance is the fact that it would be exceedingly dangerous to lay down any limitations beyond those expressed. The critics of an unlimited power to amend have too often neglected to give due consideration to the fact that alteration of the federal Constitution is not by a simple majority or by a somewhat preponderate majority, but by a three-fourths majority of all the states. Undoubtedly, where a simple majority is required, it is not an especially serious matter for the court to supervise closely the amending process both as to procedure and as to substance. But when so large a majority as three- fourths has finally expressed its will in the highest possible form outside of revolution, it becomes perilous for the judiciary to intervene.” (see ibid.

p. 120).

Orfield in this context quoted the following passage from a judicial decision:

Impressive words of counsel remind us of our duty to maintain the integrity of Constitutional government by adhering to the limitations laid by the sovereign people upon the expression of its will…. Not less imperative, however, is our duty to refuse to magnify their scope by resort to subtle implication…. Repeated decisions have informed us that only when conflict with the Constitution is clear and indisputable will a statute be condemned as void. Still more obvious is the duty of caution and moderation when the act to be reviewed is not an act of ordinary legislation, but an act of the great constituent power which has made Constitutions and hereafter may unmake them. Narrow at such times are the bounds of legitimate implications.” (see ibid. p. 121).

H.E. Willis has rejected the theory of implied limitations in his book “Constitutional Law of the United States” in the following words:

But it has been contended that there are all sorts of implied limitations upon the amending power. Thus it has been suggested that no amendment is valid unless it is germane to something else in the Constitution, or if it is a grant of a new power, or if it is legislative in form, or if it destroys the powers of the states under the dual form of government, or if it changes the protection to personal liberty. The United States Supreme Court has brushed away all of these arguments….

1509. We may now deal with the concept of natural rights. Such rights are stated to be linked with cherished values like liberty, equality and democracy. It is urged that such rights are inalienable and cannot be affected by an amendment of the Constitution. I agree with the learned Counsel for the petitioners that some of the natural rights embody within themselves cherished values and represent certain ideals for which men have striven through the ages. The natural rights have, however, been treated to be not of absolute character but such as are subject to certain limitations. Man being a social being, the exercise of his rights has been governed by his obligations to the fellow beings and the society, and as such the rights of the individual have been subordinated to the general weal. No one has been allowed to so exercise his rights as to impinge upon the rights of others. Although different streams of thought still persist, the later writers have generally taken the view that natural rights have no proper place outside the Constitution and the laws of the state. It is up to the state to incorporate natural rights, or such of them as are deemed essential, and subject to such limitations as are considered appropriate, in the Constitution or the laws made by it. But independently of the Constitution and the laws of the state, natural rights can have no legal sanction and cannot be enforced. The courts look to the provisions of the Constitution and the statutory law to determine the rights of individuals. The binding force of Constitutional and statutory provisions cannot be taken away nor can their amplitude and width be restricted by invoking the concept of natural rights. Further, as natural rights have no place in order to be legally enforceable outside the provisions of the Constitution and the statute, and have to be granted by the Constitutional or statutory provisions, and to the extent and subject to such limitations as are contained in those provisions, those rights, having been once incorporated in the Constitution or the statute, can be abridged or taken away by amendment of the Constitution or the statute. The rights, as such, cannot be deemed to be supreme or of superior validity to the enactments made by the state, and not subject to the amendatory process.

1510. It may be emphasised in the above context that those who refuse to subscribe to the theory of enforceability of natural rights do not deny that there are certain essential values in Me, nor do they deny that there are certain requirements necessary for a civilized existence. It is also not denied by them that there are certain ideals which have inspired mankind through the corridor of centuries and that there are certain objectives and desiderata for which men have struggled and made sacrifices. They are also conscious of the noble impulses yearning for a better order of things, of longings natural in most human hearts, to attain a state free from imperfections where higher values prevail and are accepted. Those who do not subscribe to the said theory regarding natural rights, however, do maintain that rights in order to be justiciable and enforceable must form part of the law or the Constitution, that rights to be effective must receive their sanction and sustenance from the law of the land and that rights which have not been codified or otherwise made a part of the law, cannot be enforced in courts of law nor can those rights override or restrict the scope of the plain language of the statute or the Constitution.

1511. Willoughby while dealing with the concept of natural rights has observed in Vol. I of Constitution of the United States:

The so-called ‘natural’ or unwritten laws defining the natural, inalienable, inherent rights of the citizen, which, it is sometimes claimed, spring from the very nature of free government, have no force either to restrict or to extend the written provisions of the Constitution. The utmost that can be said for them is that where the language of the Constitution admits of doubt, it is to be presumed that authority is not given for the violation of acknowledged principles of justice and liberty.

1512. It would be pertinent while dealing with the natural rights to reproduce the following passage from Salmond on Jurisprudence, Twelfth Edition:

Rights, like wrongs and duties, are either moral or legal. A moral or natural right is an interest recognized and protected by a rule of morality- an interest the violation of which would be a moral wrong, and respect for which is a moral duty. A legal right, on the other hand, is an interest recognized and protected by a rule of law-an interest the violation of which would be a legal wrong done to him whose interest it is, and respect for which is a legal duty.

Bentham set the fashion still followed by many of denying that there are any such things as natural rights at all. All rights are legal rights and the creation of the law. ‘Natural law, natural rights’, he says, ‘are two kinds of fictions or metaphors, which play so great a part in books of legislation, that they deserve to be examined by themselves…. Rights properly so called are the creatures of law properly so called; real laws give rise to real rights. Natural rights are the creatures of natural law; they are a metaphor which derives its origin from another metaphor.’ Yet the claim that men have natural rights need not involve us in a theory of natural law. In so far as we accept rules and principles of morality prescribing how men ought to behave, we may speak of there being moral or natural rights; and in so far as these rules lay down that men have certain rights, we may speak of moral or natural rights. The fact that such natural or moral rights and duties are not prescribed in black and white like their legal counterparts points to a distinction between law and morals; it does not entail the complete non-existence of moral rights and duties. (see p. 218-219).

1513. The observations on page 61 of P.W. Peterson’s “Natural Law and Natural Rights”

show that the theory of natural rights which was made so popular by John Locke has since ceased to receive general acceptance. Locke had propounded the theory that the community perpetually retains a supreme power of saving themselves from the attempts and designs of anybody, even of their legislators whenever they shall be so foolish or so wicked as to lay and carry on designs against the liberties and properties of the subject (see Principles of Civil Government Book 2 S 149).

1514. While dealing with natural rights, Roscoe Pound states on page 500 of Vol. I of his Jurisprudence:

Perhaps nothing contributed so much to create and foster hostility to courts and law and Constitutions as this conception of the courts as guardians of individual natural rights against the state and against society;

this conceiving of the law as a final and absolute body of doctrine declaring these individual natural rights; this theory of Constitutions as declaratory of common-law principles, which are also natural-law principles, anterior to the state and of superior validity to enactments by the authority of the state; this theory of Constitutions as having for their purpose to guarantee and maintain the natural rights of individuals against the government and all its agencies. In effect, it set up the received traditional social, political, and economic ideals of the legal profession as a super-Constitution, beyond the reach of any agency but judicial decision.

1515. I may also in this connection refer to a passage on the inherent and inalienable rights in A History of American Political Theories by C. Marriam:

By the later thinkers the idea that men possess inherent and inalienable rights of a political or quasi-political character which are independent of the state, has been generally given up. It is held that these natural rights can have no other than an ethical value, and have no proper place in politics. There never was, and there never can be,’ says Burgess, ‘any liberty upon this earth and among human beings, outside of state organization’. In speaking of natural rights, therefore, it is essential to remember that these alleged rights have no political force whatever, unless recognized and enforced by the state. It is asserted by Willoughby that ‘natural rights’ could not have even a moral value in the supposed ‘state of nature’; they would really be equivalent to force and hence have no ethical significance. (see p. 310).

1516. It is then argued on behalf of the petitioners that essential features of the Constitution cannot be changed as a result of amendment. So far as the expression “essential features” means the basic structure or framework or the Constitution, I have already dealt with the question as to whether the power to amend the Constitution would include within itself the power to change the basic structure or framework of the Constitution. Apart from that, all provisions of the Constitution are subject to amendatory process and cannot claim exemption from that process by being described essential features.

1517. Distinction has been made on behalf of the petitioners between a fundamental right and the essence, also described as core, of that fundamental right. It is urged that even though the Parliament in compliance with Article 368 has the right to amend the fundamental right to property, it has no right to abridge or take away the essence of that right. In my opinion, this differentiation between fundamental right and the essence or core of that fundamental right is an over-refinement which is not permissible and cannot stand judicial scrutiny. If there is a power to abridge or take away a fundamental right, the said power cannot be curtailed by invoking the theory that though a fundamental;

right can be abridged or taken away, the essence or core of that fundamental right cannot be abridged or taken away. The essence or core of a fundamental right must in the nature of things be its integral part and cannot claim a status or protection different from and higher than of the fundamental right of which it is supposed to be the essence or core.

There is also no objective standard to determine as to what is the core of a fundamental right and what distinguishes it from the periphery. The absence of such a standard is bound to introduce uncertainty in a matter of so vital an importance as the amendment of the Constitution. I am, therefore, unable to accept the argument, that even if a fundamental right be held to be amendable, the core or essence of that right should be held to be immune from the amendatory process.

1518. The enforcement of due process clause in Fourteenth Amendment of US Constitution, it is submitted on the petitioners’ behalf, has not caused much difficulty and has not prevented the US courts from identifying the area wherein that clause operates.

This fact, according to the submission, warrants the conclusion that the concept of implied limitation on the power of amendment would also not cause much difficulty in actual working. I find considerable difficulty to accede to the above submission. The scope of due process clause in Fourteenth Amendment and of power of amendment of Constitution in Article 368 is different; the two provisions operate in different areas, they are meant to deal with different subjects and there is no similarity in the object of Fourteenth Amendment and that of Article 368. Any attempt to draw analogy between the two, in my opinion, is far fetched.

1519. It may be mentioned that the Draft Report of the Sub-Committee on Fundamental Rights initially contained Clause 11, according to which “no person shall be deprived of his life, liberty or property without due process of law”. It was then pointed out that a vast volume of case law had gathered around the words “due process of law” which were mentioned in the Fifth and the Fourteenth Amendment of the US Constitution. At first those words were regarded only as a limitation on procedure and not on the substance of legislation. Subsequently those words were held to apply to matters of substantive law as well. It was further stated that “in fact, the phrase ‘without due process of law’ appears to have become synonymous with ‘without just cause’ the court being the judge of what is ‘just cause’; and since the object of most legislation is to promote the public welfare by restraining and regulating individual rights of liberty and property the court can be invited, under this clause, to review almost any law”. View was also expressed that Clause 11 as worded might hamper social legislation. Although the members of the Committee felt that there was no case for giving a carte blanche to the Government to arrest, except in a grave emergency, any person without ‘due process of law’, there was considerable support for the view that due process clause might hamper legislation dealing with property and tenancy. A compromise formula was then suggested by Mr.

Panikkar and with the support of Mr. Munshi, Dr. Ambedkar and Mr. Rajagopalachari the suggestion was adopted that the word “property” should be omitted from the clause.

In the meanwhile, Mr. B.N. Rau during his visit to America had discussion with Justice Frankfurter of the US Supreme Court who expressed the opinion that the power of review implied in the “due process” clause was not only undemocratic (because it gave a few judges the power of vetoing legislation enacted by the representatives of the nation) but also threw an unfair burden on the judiciary. This view was communicated to the Drafting Committee which replaced the expression “without due process of law” by the expression “except according to procedure established by law”. The newly inserted words were borrowed from Article 31 of the Japanese Constitution (see pages 232-235 of the Framing of India’s Constitution A Study by Shiva Rao). Reference to the proceedings of the Drafting Committee shows that a major factor which weighed for the elimination of the expression “due process of law” was that it had no definite contours. In case the view is now accepted that there are implied limitations on the power of making amendment, the effect would necessarily be to introduce an element of vagueness and indefiniteness in our Constitution which our Constitution-makers were so keen to avoid.

1520. Our attention has been invited to the declaration of human rights in the Charter of the United Nations. It is pointed out that there is similarity between the fundamental rights mentioned in Part II of the Constitution and the human rights in the Charter.

According to Article 56 of the Charter, all members pledge themselves to take joint and separate action in co-operation with the Organization for the achievement of the purposes set forth in Article 55. Article 55, inter alia, provides that the United Nations shall promote universal respect for, and observance of human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion. It is submitted on behalf of the petitioners that if the power of amendment of the Constitution under Article 368 were to include the power to abridge or take away fundamental rights, the amendment might well have the effect of curtailing or doing away with some of the human rights mentioned in the United Nations Charter. In this respect I am of the view that the width and scope of the power of amendment of the Constitution would depend upon the provisions of the Constitution. If the provisions of the Constitution are clear and unambiguous and contain no limitations on the power of amendment, the court would not be justified in grafting limitations on the power of amendment because of an apprehension that the amendment might impinge upon human rights contained in the United Nations Charter. It is only in cases of doubt or ambiguity that the courts would interpret a statute as not to make it inconsistent with the comity of nations or established rules of international law, but if the language of the statute is clear, it must be followed notwithstanding the conflict between municipal law and international law which results (see Maxwell on The Interpretation of Statutes, Twelfth Edition, p. 183). It has been observed on page 185:

But if a statute is clearly inconsistent with international law or the comity of nations, it must be so construed, whatever the effect of such a construction may be. There is, for instance, no doubt that a right conferred on an individual by a treaty made with the Crown may be taken from him by act of the legislature.

The above observations apply with greater force to a Constitutional provision as such provisions are of a paramount nature. It has already been mentioned above that the provisions of our Constitution regarding the power of making amendment are clear and unambiguous and contain no limitation on that power. I, therefore, am not prepared to accede to the contention that a limitation on the power of amendment should be read because of the declaration of Human Rights in the UN Charter.

1521. I may mention in the above context that it is always open to a State to incorporate in its laws the provisions of an international treaty, agreement or convention. In India the provisions of the Geneva Conventions have been incorporated in the Geneva Conventions Act, 1960 (Act 6 of 1960). According to the Treaties of European Communities, a State on becoming a member of the European Economic Communities (EEC) has to give primacy to the Community laws over the national laws. The principle of primacy of Community law was accepted in six countries of the European communities. Three of them, namely, Netherlands, Luxembourg and Belgium specifically amended their written Constitutions to secure, as far as possible, the principle of the primacy of the Community law. The other three, namely, France, Germany and Italy have also Constitutional provisions under which it would be possible for the courts in those countries to concede primacy to the Treaties of European Communities, and thus through them secure the primacy of the Community law. Ireland which became a new member of EEC with effect from January 1, 1973 has amended its Constitution by the Third Amendment of the Constitution Bill, 1971. This Bill has been approved in a referendum. The relevant part of the Amendment reads as under:

No provision of this Constitution invalidates laws enacted, acts done or measures adopted by the State necessitated by the obligations of membership of the Communities or prevents laws enacted, acts done or measures adopted by the Communities, or institutions thereof, from having the force of law in the State.

In Britain also, primacy of the European Community law over the domestic law has been recognized by Section 2 of the European Communities Act, 1972. Question is now engaging the attention of Constitutional experts as to whether it has become necessary to place limitations on the legislative powers of the British Parliament and whether it is on that account essential to have a written Constitution for the United Kingdom (see July 1972 Modern Law Review, p. 375 onwards on the subject of Parliamentary Sovereignty and the Primacy of European Community Law).

1522. I am also of the view that the power to amend the provisions of the Constitution relating to the fundamental rights cannot be denied by describing the fundamental rights as natural rights or human rights. The basic dignity of man does not depend upon the codification of the fundamental rights nor is such codification a prerequisite for a dignified way of living. There was no Constitutional provision for fundamental rights before January 26, 1950 and yet can it be said that there did not exist conditions for dignified way of living for Indians during the period between August 15, 1947 and January 26,. 1950. The plea that provisions of the Constitution, including those of Part III, should be given restrospective effect has been rejected by this Court. Article 19 which makes provision for fundamental rights, is not applicable to persons who are not citizens of India. Can it, in view of that, be said that the non-citizens cannot while staying in India lead a dignified life ? It would, in my opinion, be not a correct approach to say that amendment of the Constitution relating to abridgement or taking away of the fundamental rights would have the effect of denuding human beings of basic dignity and would result in the extinguishment of essential values of life.

1523. It may be mentioned that the provisions of Article 19 show that the framers of the Constitution never intended to treat fundamental rights to be absolute. The fact that reasonable restrictions were carved in those rights clearly negatives the concept of absolute nature of those rights. There is also no absolute standard to determine as to what constitutes a fundamental right. The basis of classification varies from country to country.

What is fundamental right in some countries is not so in other countries. On account of the difference between the fundamental rights adopted in one country and those adopted in another country, difficulty was experienced by our Constitution-makers in selecting provisions for inclusion in the chapter on fundamental rights (see in this connection Constitutional Precedents III Series on Fundamental Rights p. 25 published by the Constituent Assembly of India).

1524. Reference has been made on behalf of the petitioners to the Preamble to the Constitution and it is submitted that the Preamble would control the power of amendment. Submission has also been made in the above context that there is no power to amend the Preamble because, according to the submission, Preamble is not a part of the Constitution but “walks before the Constitution”. I am unable to accept the contention that the Preamble is not a part of the Constitution. Reference to the debates of the Constituent Assembly shows that there was considerable discussion in the said Assembly on the provisions of the Preamble. A number of amendments were moved and were rejected. A motion was thereafter adopted by the Constituent Assembly that “the Preamble stands part of the Constitution” (see Constituent Assembly debates, Vol. X, p.

429-456). There is, therefore, positive evidence to establish that the Preamble is a part of the Indian Constitution. In view of the aforesaid positive evidence, no help can be derived from the observations made in respect of other Constitutions on the point as to whether preamble is or is not a part of the Constitution. Apart from that, I find that the observations on p. 200-201 in Craise on Statute Law Sixth Edition show that the earlier view that preamble of a statute is not part thereof has been discarded and that preamble is as much a part of a statute as its other provisions.

1525. Article 394 of the Constitution shows that the said article as well as Article 5, 6, 7, 8, 9, 60, 324, 366, 367, 379, 380, 388, 391, 392 and 393 came into force at once, i.e. on 26th day of November 1949 when the Constitution was adopted and enacted and the remaining provisions of the Constitution would come into force on the 26th day of January, 1950 “which day is referred to in this Constitution as the commencement of this Constitution”. Article 394 would thus show that except for sixteen articles which were mentioned in that article, the remaining provisions of the Constitution came into force on the 26th day of January, 1950. The words “the remaining provisions”, in my opinion, would include the Preamble as well as Part III and Part IV of the Constitution. It may also be mentioned that a proposal was made in the Constituent Assembly by Mr. Santhanam that Preamble should come into force on November 26, 1949 but the said proposal was rejected.

1526. As Preamble is a part of the Constitution, its provisions other than those relating to basic structure or framework, it may well be argued, are as much subject to the amendatory process contained in Article 368 as other parts of the Constitution. Further, if Preamble itself is amendable, its provisions other than those relating to basic structure cannot impose any implied limitations on the power of amendment. The argument that Preamble creates implied limitations on the power of amendment cannot be accepted unless it is shown that the Parliament in compliance with the provisions of Article 368 is debarred from amending the Preamble in so far as it relates to matters other than basic structure and removing the supposed limitations which are said to be created by the Preamble. It is not necessary to further dilate upon this aspect because I am of the view that the principle of construction is that reference can be made to Preamble for purpose of construing when the words of a statute or Constitution are ambiguous and admit of two alternative constructions. The preamble can also be used to shed light on and clarify obscurity in the language of a statutory or Constitutional provision. When, however, the language of a section or article is plain and suffers from no ambiguity or obscurity, no loss can be put on the words of the section or article by invoking the Preamble. As observed by Story on Constitution, the preamble can never be resorted to, to enlarge the powers confided to the general government, or any of its departments. It cannot confer any power per se; it can never amount, by implication, to an enlargement of any power expressly given. It can never be the legitimate source of any implied power, when otherwise withdrawn from the Constitution. Its true office is to expound the nature, and extent, and application of the powers actually conferred by the Constitution, and not substantively to create them (see para 462). The office of the Preamble has been stated by the House of Lords in Att.-Gen. v. H.R.H. Prince Ernest Augustus of. Hanover. [1957] A.C. 436 In that case, Lord Normand said:

When there is a preamble it is generally in its recitals that the mischief to be remedied and the scope of the Act are described. It is therefore clearly permissible to have recourse to it as an aid to construing the enacting provisions. The preamble is not, however, of the same weight as an aid to construction of a section of the Act as are other relevant enacting words to be found elsewhere in the Act or even in related Acts. There may be no exact correspondence between preamble and enactment, and the enactment may go beyond, or it may fall short of the indications that may be gathered from the preamble. Again, the preamble cannot be of much or any assistance in construing provisions which embody qualifications or exceptions from the operation of the general purpose of the Act. It is only when it conveys a clear and definite meaning in comparison with relatively obscure or indefinite enacting words that the preamble may legitimately prevail…. If they (the enacting words) admit of only one construction, that construction will receive effect even if it is inconsistent with the preamble, but if the enacting words are capable of either of the constructions offered by the parties, the construction which fits the preamble may be preferred.

1527. In the President’s reference In Re : The Berubari Union and Exchange of Enclaves, [1963] S.C.R. 250 the matter related to the implementation of the agreement between the Prime Ministers of India and Pakistan regarding the division of Berubari Union and for exchange of Cooch-Bihar Enclaves in Pakistan and Pakistan enclaves in India. The contention which was advanced on behalf of the petitioner in that case was that the agreement was void as it ceded part of India’s territory, and in this connection, reference was made to the Preamble to the Constitution. Rejecting the contention this Court after referring to the words of Story that preamble to the Constitution is “a key to open the minds of the makers” which may show the general purposes for which they made the several provisions, relied upon the following observations of Willoughby about the Preamble to the American Constitution:

It has never been regarded as the source of any substantive power conferred on the Government of the United States, or on any of its departments. Such power embrace only those expressly granted in the body of the Constitution and such as may be implied from those so granted.

To the above observations this Court added:

What is true about the powers is equally true about the prohibitions and limitations.

1528. Apart from what has been stated above about the effect of Preamble on the power of amendment, let us deal with the provisions of the Preamble itself. After referring to the solemn resolution of the people of India to constitute India into a sovereign democratic republic, the Preamble makes mention of the different objectives which were to be secured to all its citizens. These objectives are:

JUSTICE, social, economic and political;

LIBERTY of thought, expression, belief, faith and worship;

EQUALITY of status and of opportunity;

and to promote among them all FRATERNITY assuring the dignity of the individual and the unity of the Nation.

It would be seen from the above that the first of the objectives mentioned in the Preamble is to secure to all citizens of India justice, social, economic and political. Article 38 in Part IV relating to the Directive Principles or State Policy recites that the State shall strive to promote the welfare of the people by securing and protecting as effectively as it may a social order in which justice, social, economic and political, shall inform all the institutions of the national life.

1529. Since the later half of the eighteenth century when the idea of political equality of individuals gathered force and led to the formation of democratic governments, there has been a great deal of extension of the idea of equality from political to economic and social fields. Wide disparities in the standard of living of the upper strata and the lower strata as also huge concentration of wealth in the midst of abject poverty are an index of social maladjustment and if continued for long, they give rise to mass discontent and a desire on the part of those belonging to the lower strata to radically alter and, if necessary, blow up the social order. As those belonging to the lower strata constitute the bulk of the population, the disparities provide a fertile soil for violent upheavals. The prevention of such upheavals is not merely necessary for the peaceful evolution of society, it is also in the interest of those who belong to the upper strata to ensure that the potential causes for violent upheaval are eliminated. Various remedies have been suggested in this connection and the stress has been laid mainly upon having what is called a welfare state. The modern states have consequently to take steps with a view to ameliorate the conditions of the poor and to narrow the chasm which divides them from the affluent sections of the population. For this purpose the state has to deal with the problems of social security, economic planning and industrial and agrarian welfare. Quite often in the implementation of these policies, the state is faced with the problem of conflict between the individual rights and interests on the one side and rights and welfare of vast sections of the population on the other. The approach which is now generally advocated for the resolving of the above conflict is to look upon the rights of the individuals as conditioned by social responsibility. Harold Laski while dealing with this matter has observed in Encyclopaedia of the Social Sciences:

The struggle for freedom is largely transferred from the plane of political to that of economic rights. Men become less interested in the abstract fragment of political power an individual can secure than in the use of massed pressure of the groups to which they belong to secure an increasing share of the social product…. So long as there is inequality, it is argued, there cannot be liberty. The historic inevitability of this evolution was seen a century ago by dc Tocqueville. It is interesting to compare this insistence that the democratization of political power mean equality and that its absence would be regarded by the masses as oppression with the argument of Lord Acton that liberty and equality are antitheses. To the latter liberty was essentially an autocratic ideal; democracy destroyed individuality, which was the very pith of liberty, by seeking identity of conditions. The modern emphasis is rather toward the principle that material equality is growing inescapable and that the affirmation of personality must be effective upon an immaterial plane. (see Vol. IX, p.

445).

1530. I may also refer to another passage on page 99 of Grammar of Politics by Harold Laski:

The State, therefore, which seeks to survive must continually transform itself to the demands of men who have an equal claim upon that common welfare which is its ideal purpose to promote.

We are concerned here, not with the defence of anarchy, but with the conditions of its avoidance. Men must learn to subordinate their self- interest to the common welfare. The privileges of some must give way before the rights of all. Indeed, it may be urged that the interest of the few is in fact the attainment of those rights, since in no other environment is stability to be assured.

1531. A modern state has to usher in and deal with large schemes having social and economic content. It has to undertake the challenging task of what has been called social engineering, the essential aim of which is the eradication of the poverty, uplift of the downtrodden, the raising of the standards of the vast mass of people and the narrowing of the gulf between the rich and the poor. As occasions arise quite often when the individual rights clash with the larger interests of the society, the state acquires the power to subordinate the individual rights to the larger interests of society as a step towards social justice. As observed by Roscoe Pound on page 434 of Volume I of Jurisprudence under the heading “Limitations on the Use of Property”:

Today the law is imposing social limitations-limitations regarded as involved in social life. It is endeavouring to delimit the individual interest better with respect to social interests and to confine the legal right or liberty or privilege to the bounds of the interest so delimited.

To quote the words of Friedmann in Legal Theory:

But modern democracy looks upon the right to property as one conditioned by social responsibility by the needs of society, by the ‘balancing of interests’ which looms so large in modern jurisprudence, and not as preordained and untouchable private right. (Fifth Edition, p. 406).

1532. With a view to bring about economic regeneration, the state devises various methods and puts into operation certain socio-economic measures. Some of the methods devised and measures put into operation may impinge upon the property rights of individuals. The courts may sometimes be sceptical about the wisdom behind those methods and measures, but that would be an altogether extraneous consideration in determining the validity of those methods and measures. We need not dilate further upon this aspect because we are only concerned with the impact of the Preamble. In this respect I find that although it gives a prominent place to securing the objective of social, economic and political justice to the citizens, there is nothing in it which gives primacy to claims of individual right to property over the claims of social, economic and political justice. There is, as a matter of fact, no clause or indication in the Preamble which stands in the way of abridgement of right to property for securing social, economic and political justice. Indeed, the dignity of the individual upon which also the Preamble has laid stress, can only be assured by securing the objective of social, economic and political justice.

1533. Reference has been made on behalf of the petitioners to the Nehru Report in order to show that in the pre-independence days, it was one of the objectives of nationalist leaders to have some kind of charter of human rights. This circumstance, in my opinion has not much material bearing on the point of controversy before us. Our Constitution- makers did incorporate in Part III of the Constitution certain-rights and designated them as fundamental rights. In addition to that, the Constitution-makers put in Part IV of the Constitution certain Directive Principles. Although those Directive Principles were not to be enforceable by any court, Article 37 declared that those principles were nevertheless fundamental in the governance of the country and it should be the duty of the State to apply those principles in making laws. The Directive Principles embody a commitment which was imposed by the Constitution-makers on the State to bring about economic and social regeneration of the teeming millions who are steeped in poverty, ignorance and social backwardness. They incorporate a pledge to the coming generations of what the State would strive to usher in. No occasion has arisen for the amendment of the Directive Principles. Attempt have, however, been made from time to time to amend the fundamental rights in Part III. The question with which we are concerned is whether there is power of amendment under Article 368 so as to take away or abridge the fundamental rights. This question would necessarily have to depend upon the language of Article 368 as well as upon the width and scope of the power of amendment under Article 368 and the consideration of the Nehru Report in this context would be not helpful. If the language of Article 368 warrants a wide power of amendment as may include the power to take away or abridge fundamental rights, the said power cannot be held to be non- existent nor can its ambit be restricted by reference to Nehru Report. The extent to which historical material can be called in aid has been laid down in Maxwell on Interpretation of Statutes on page 47-48 as under:

In the interpretation of statutes, the interpreter may call to his aid all those external or historical facts which are necessary for comprehension of the subject-matter, and may also consider whether a statute was intended to alter the law or to leave it exactly where it stood before. But although we can have in mind the circumstances when the Act was passed and the mischief which then existed so far as these are common knowledge…we can only use these matters as an aid to the construction of the words which Parliament has used. We cannot encroach on its legislative function by reading in some limitation which we may think was probably intended but which cannot be inferred from the words of the Act.

The above observations hold equally good when we are construing the provisions of a Constitution. Keeping them in view we can get no material assistance in support of the petitioners contention from the Nehru Report.

1534. Apart from what has been stated above, we find that both before the dawn of independence as well as during the course of debates of the Constituent Assembly stress was laid by the leaders of the nation upon the necessity of bringing about economic regeneration and thus ensuring social and economic justice. The Congress Resolution of 1929 on social and economic changes stated that “the great poverty and misery of the Indian people are due, not only to foreign exploitation in India but also to the economic structure of society, which the alien rulers support so that their exploitation may continue.

In order therefore to remove this poverty and misery and to ameliorate the condition of the Indian masses, it is essential to make revolutionary changes in the present economic and social structure of society and to remove the gross inequalities”. The resolution passed by the Congress in 1931 recited that in order to end the exploitation of the masses, political freedom must include real economic freedom of the starving millions. The Objectives Resolution which was moved by Pt. Nehru in the Constituent Assembly on December 13, 1946 and was subsequently passed by the Constituent Assembly mentioned that there would be guaranteed to all the people of India, “justice, social, economic, and political; equality of status, of opportunity and before the law; freedom of thought, expression, belief, faith, worship, vocation, association and action subject to law and public morality”. It would, therefore, appear that even in the Objectives Resolution the first position was given to justice, social, economic and political. Pt. Nehru in the course of one of his speeches, said:

The service of India means the service of the millions who suffer. It means the ending of poverty and ignorance and disease and inequality of opportunity. The ambition of the greatest man of our generation has been to wipe every tear from every eye. That may be beyond us, but as long as there are tears and suffering, so long our work will not be over.

Granville Austin in his book “Extracts from the Indian Constitution : Cornerstone of a Nation” after quoting the above words of Pt. Nehru has stated:

Two revolutions, the national and the social, had been running parallel in India since the end of the First World War. With independence, the national revolution would be completed, but the social revolution must go on. Freedom was not an end in itself, only ‘a means to an end’, Nehru had said, ‘that end being the raising of the people…to higher levels and hence the general advancement of humanity’.

The first task of this Assembly (Nehru told the members) is to free India through a new Constitution, to feed the starving people, and to clothe the naked masses, and to give every Indian the fullest opportunity to develop himself according to his capacity.

K. Santhanam, a prominent southern member of the Assembly and editor of a major newspaper, described the situation in terms of three revolutions.

The political revolution would end, he wrote, with independence. The social revolution meant ‘to get (India) out of the medievalism based on birth, religion, custom, and community and reconstruct her social structure on modern foundations of law, individual merit, and secular education’.

The third revolution was an economic one : The transition from primitive rural economy to scientific and planned agriculture and industry’.

Radhakrishnan (now President of India) believed India must have a ‘socio- economic revolution’ designed not only to bring about ‘the real satisfaction of the fundamental needs of the common man’, but to go much deeper and bring about ‘a fundamental change in the structure of Indian society’.

On the achievement of this great social change depended India’s survival.

‘If we cannot solve this problem soon, ‘Nehru warned the Assembly, ‘all our paper Constitutions will become useless and purposeless….

* * * * * ‘The choice for India, ‘wrote Santhanam,’…is between rapid evolution and violent revolution…because the Indian masses cannot and will not wait for a long time to obtain the satisfaction of their minimum needs.’ * * * * * What was of greatest importance to most Assembly members, however, was not that socialism be embodied in the Constitution, but that a democratic Constitution and with a socialist bias be framed so as to allow the nation in the future to become as socialist as its citizens desired or its needs demanded. Being, in general, imbued with the goals, the humanitarian bases, and some of the techniques of social democratic thought, such was the type of Constitution that Constituent Assembly members created.

1535. Dealing with the Directive Principles, Granville Austin writes: