Kesavananda Bharati v/s State of Kerala |B&B Associates LLP

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In the Directive Principles, however, one finds an even clearer statement of the social revolution. They aim at making the Indian masses free in the positive sense, free from the passivity engendered by centuries of coercion by society and by nature, free from the abject physical conditions that had prevented them from fulfilling their best selves.

* * * * * 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’.

* * * * * The Directive Principles were a declaration of economic independence, a declaration that the privilege of the colonial era had ended, that the Indian people (through the democratic institutions of the Constitution) had assumed economic as well as political control of the country, and that Indian capitalists should not inherit the empire of British colonialists.

1536. Pt. Nehru, in the course of his speech in support of the Constitution (First Amendment) Bill, said:

And as I said on the last occasion the real difficulty we have to face is a conflict between the dynamic ideas contained in the Directive Principles of Policy and the static position of certain things that are called ‘fundamental’ whether they relate to property or whether they relate to something else. Both are important undoubtedly. How are you to get over them ? A Constitution which is unchanging and static, it does not matter how good it is, how perfect it is, is a Constitution that has past its use.

1537. Again in the course of his speech in support of the Constitution (Fourth Amendment) Bill, Pt. Nehru said:

But, I say, that if that is correct, there is an inherent contradiction in the Constitution between the fundamental rights and the Directive Principles of State Policy. Therefore, again, it is up to this Parliament to remove that contradiction and make the fundamental rights subserve the Directive Principles of State Policy.

1538. It cannot, therefore, be said that the stress in the impugned amendments to the Constitution upon changing the economic structure by narrowing the gap between the rich and the poor is a recent phenomenon. On the contrary, the above material shows that this has been the objective of the national leaders since before the dawn of independence, and was one of the underlying reasons for the First and Fourth Amendments of the Constitution. The material further indicates that the approach adopted was that there should be no reluctance to abridge or regulate the fundamental right to property if it was felt necessary to do so for changing the economic structure and to attain the objectives contained in the Directive Principles.

1539. So far as the question is concerned as to whether the right to property can be said to pertain to basic structure or framework of the Constitution, the answer, in my opinion, should plainly be in the negative. Basic structure or framework indicates the broad outlines of the Constitution, while the right to property is a matter of detail. It is apparent from what has been discussed above that the approach of the framers of the Constitution was to subordinate the individual right to property to the social good. Property right has also been changing from time to time. As observed by Harold Laski in Grammar of Politics, the historical argument is fallacious if it regards the regime of private property as a simple and unchanging thing. The history of private property is, above all, the record of the most varied limitations upon the use of the powers it implies. Property in slaves was valid in Greece and Rome; it is no longer valid today. Laski in this context has quoted the following words of John Stuart Mill:

The idea of property is not some one thing identical throughout history and incapable of alteration…at any given time it is a brief expression denoting the rights over things conferred by the law or custom of some given society at that time; but neither on this point, nor on any other, has the law and custom of a given time and place, a claim to be stereotyped for ever. A proposed reform in laws or customs is not necessarily objectionable because its adoption would imply, not the adaptation of all human affairs to the existing idea of property, to the growth and improvement of human affairs.

1540. The argument that Parliament cannot by amendment enlarge its own powers is untenable. Amendment of the Constitution, in the very nature of things, can result in the conferment of powers on or the enlargement of powers of one of the organs of the state.

Likewise, it can result in the taking away or abridgement of the powers which were previously vested in an organ of the state. Indeed nearly every expansion of powers and functions granted to the Union Government would involve consequential contraction of powers and functions in the Government of the States. The same is true of the converse position. There is nothing in the Constitution which prohibits or in any other way prevents the enlargement of powers of Parliament as a result of Constitutional amendment and, in my opinion, such an amendment cannot be held to be impermissible or beyond the purview of Article 368. Indeed, a precedent is afforded by the Irish case of Jeremish Ryan (supra) wherein amendment made by the Oirechtas as a result of which it enlarged its powers inasmuch as its power of amending the Constitution without a referendum was increased from eight years to 16 years was held to be valid. Even Kennedy C.J. who gave a dissenting judgment did not question the validity of the amendment on the ground that Oirechtas had thereby increased its power. He struck it down on the ground that there was no power to amend the amending clause. No such difficulty arises under our Constitution because of the existence of an express provision. I am also unable to accede to the contention that an amendment of the Constitution as a result of which the President is bound to give his assent to an amendment of the Constitution passed in accordance with the provisions of Article 368 is not valid. Article 368 itself gives, inter alia, the power to amend Article 368 and an amendment of Article 368 which has been brought about in the manner prescribed by that article would not suffer from any Constitutional or legal infirmity. I may mention in this context that an amendment of the US Constitution in accordance with Article 5 of the US Constitution does not require the assent of the President. The change made by the Twentyfourth Amendment in the Constitution of India, to which our attention has been invited, has not done away with the assent of the President but has made it obligatory for him to give his assent to the Constitution Amendment Bill after it has been passed in accordance with Article 368. As it is not now open to the President to withhold his assent to a Bill in regard to a Constitutional amendment after it has been duly passed, the element of personal discretion of the President disappears altogether. Even apart from that, under our Constitution the position of the President is that of a Constitutional head and the scope for his acting in exercise of his personal discretion is rather small and limited.

1541. Reference was made during the course of arguments to the provisions of Section 6 of the Indian Independence Act, 1947. According to Sub-section (1) of that section, the Legislature of each of the new Dominions shall have full power to make laws for that Dominion, including laws having extra-territorial opeartion. Sub-section (6) of the section provided that the power referred to in Sub-section (1) of this section extends to the making of laws limiting for the future the powers of the Legislature of the Dominion.

No help, in my opinion, can be derived from the above provisions because the Constituent Assembly framed and adopted the Constitution not on the basis of any power derived from Section 6 of the Indian Independence Act. On the contrary, the members of the Constituent Assembly framed and adopted the Constitution as the representatives of the people and on behalf of the people of India. This is clear from the opening and concluding words of the Preamble to the Constitution. There is, indeed, no reference to the Indian Independence Act in the Constitution except about its repeal in Article 395 of the Constitution.

1542. Apart from the above, I find that all that Sub-section (6) of Section 6 of the Indian Independence Act provided for was that the power referred to in Sub-section (1) would extend to the making of laws limiting for the future the powers of the Legislature of the Dominion. The Provisional Parliament acting as the Constituent Assembly actually framed the Constitution which placed limitations on the ordinary legislative power of the future Parliaments by providing that the legislative laws would not contravene the provisions of the Constitution. At the same time, the Constituent Assembly inserted Article 368 in the Constitution which gave power to the two Houses of future Parliaments to amend the Constitution in compliance with the procedure laid down in that article.

There is nothing in Section 6 of the Indian Independence Act which stood in the way of the Constituent Assembly against the insertion of an article in the Constitution conferring wide power of amendment, and I find it difficult to restrict the scope of Article 368 because of anything said in Section 6 of the Indian Independence Act.

1543. Argument on behalf of the petitioners that our Constitution represents a compact on the basis of which people joined the Indian Union and accepted the Constitution is wholly misconceived. The part of India other than that comprised in erstwhile Indian States was already one territory on August 15, 1947 when India became free. So far as the erstwhile Indian States were concerned, they acceded to the Indian Union long before the Constitution came into force on January 26, 1950 or was adopted on November 26, 1949.

There thus arose no question of any part of India comprising the territory of India joining the Indian Union on the faith of any assurance furnished by the provisions of the Constitution. Some assurances were given to the minorities and in view of that they gave up certain demands. The rights of minorities are now protected in Articles 25 to 30. Apart from the articles relating to protection to the minorities, the various articles contained in Part III of the Constitution are applicable to all citizens. There is nothing to show that the people belonging to different regions would have or indeed could have declined to either join the Indian Union or to remain in the Indian Union but for the incorporation of articles relating to fundamental rights in the Constitution. The Constitution containing fundamental rights was framed by the people of India as a whole speaking through their representative and if the people of India as a whole acting again through their representatives decide to abridge or take away some fundamental right like one relating to property, no question of breach of faith or violation of any alleged compact can, in my opinion, arise.

1544. This apart, compact means a bargain or agreement mutually entered into, which necessarily connotes a choice and volition for the party to the compact. Whatever may be the relevance or significance of the concept of compact in the context of the US Constitution where different States joined together to bring into existence the United States of America and where further each one of the States ratified the Constitution after it had been prepared by the Philadelphia Convention, the above concept has plainly no relevance in the context of the Indian Constitution. The whole of India was, as already mentioned, one country long before the Constitution was adopted. There was also no occasion here for the ratification of the Constitution by each State after it had been adopted by the Constituent Assembly.

1545. Reference has been made on behalf of the petitioners to the case of Mangal Singh and Anr. v. Union of India [1966] INSC 251; [1967] 2 S.C.R. 109 which related to the Punjab Reorganization Act, 1966. This Court while upholding the validity of the Act dealt with Article 4, according to which any law referred to in Article 2 or Article 3 shall contain such provisions for the amendment of the First Schedule and the Fourth Schedule as may be necessary to give effect to the provisions of the law and may also contain such supplemental, incidental and consequential provisions (including provisions as to representation in Parliament and in the Legislature or Legislatures of the State or States affected by such law) as Parliament may deem necessary, and observed:

Power with which the Parliament is invested by Articles 2 and 3, is power to admit, establish, or form new States which conform to the democratic pattern envisaged by the Constitution; and the power which the Parliament may exercise by law is supplemental, incidental or consequential to the admission, establishment or formation of a State as contemplated by the Constitution, and is not power to override the Constitutional scheme. No State can therefore be formed, admitted or set up by few under Article 4 by the Parliament which has not effective legislative, executive and judicial organs.

1546. The above passage, in my opinion, does not warrant an inference of an implied limitation on the power of amendment as contended on behalf of the petitioners. This Court dealt in the above passage with the import of the words “supplemental, incidental and consequential provisions” and held that these provisions did not enable the Parliament to override the Constitutional scheme. The words “Constitutional scheme”

had plainly reference to the provisions of the Constitution which dealt with a State, its legislature, judiciary and other matters in Part VI. Once the State of Haryana came into being, it was to have the attributes of a State contemplated by the different articles of Part VI in the same way as did the other States. No question arose in that case about limitation on the power of amendment under Article 368 and as such, that case cannot be of any avail to the petitioners.

1547. learned Counsel for the petitioner has invited our attention to the Constitutional position specially in the context of civil liberties in Canada. In this respect we find that the opening words of the Preamble to the British North America Act, 1867 read as under:

Whereas the provisions of Canada, Nova Scotia, and New Brunswick have expressed their desire to be federally united into one dominion under the Crown of the United Kingdom of Great Britain and Ireland, with a Constitution similar in principle to that of the United Kingdom;

Section 91 of the above mentioned Act deals with the legislative authority of Parliament of Canada. The opening words of Section 91 are as under:

It shall be lawful for the Queen, by and with the advice and consent of the Senate and House of Commons, to make laws for the peace, order, and good government of Canada, in relation to all matters not coming within the classes of subjects by this Act assigned exclusively to the Legislatures of the provinces; and for greater certainty, but not so as to restrict the generality of the foregoing terms of the section, it is hereby declared that (notwithstanding anything in this Act) the exclusive legislative authority of the Parliament of Canada extends to all matters coming within the classes of subjects next hereinafter enumerated; that is to say, ___.

There follows a list of different subjects. The first amongst the subjects, which was inserted by British North America Act 1949, is : “The amendment from time to time of the Constitution of Canada, except as regards matters coming within the classes of subjects by this Act assigned exclusively to the Legislatures of the provinces, or….” It is not necessary to give the details of other limitations on the power of amendment. Section 92 of the British North America Act enumerates the subjects of exclusive provincial legislation. According to this section, in each province the Legislature may exclusively make laws in relation to matters coming within the classes of subjects next hereinafter enumerated. There then follows a list of subjects, the first amongst which is “The amendment from time to time, notwithstanding anything in this Act, of the Constitution of the province, except as regards the office of the Lieutenant Governor”. In view of the fact that amendment of the Constitution is among the subjects of legislation, the only distinction in Canada, it has been said, between ordinary legislation by Parliament and Constitutional law is that the former concerns all matters not specially stated as within the ambit of provincial legislation while the latter concerns any fundamental change in the division of rights. Further, although because of the federal character of the State, the Canadian Constitution cannot be called flexible, it is probably the least rigid of any in the modern federal states (see Modern Political Constitutions by C.F. Strong).

1548. It appears that at least six different views have been propounded in Canada about the Constitutional position of basic liberties. To date, the Supreme Court of Canada has not given Judicial approval to any of these views. Different members of the Court have voiced various opinions on the matter, but all of these fall far short of settling the issue. It should also be noted that the fundamental problem is not whether Parliament or the legislature may give to the people basic freedom, but rather which one may interfere with them or take them away (see Civil Liberties in Canada by D.A. Schmeiser P. 13).

1549. An important case which had bearing on the question of civil liberties was the Alberta Press case [1938] S.C.R. 100 (Canada). That case related to the validity of an Act which had placed limitations on the freedom of the Press and the Supreme Court of Canada held that the Act was ultra vires, since it was ancillary to and dependent upon the Alberta Social Credit Act, which itself was ultra vires. Three or judges, including Duff C.J., went further than this, and dealt with the freedom of speech and freedom of Press. It was observed that curtailment of the exercise of the right of the public discussion would interfere with the working of parliamentary institutions of Canada. Opinion of Duff C.J.

was based not on the criminal law power but on the necessity for maintaining democratic society as contemplated by the Constitution. A later decision dealing with free speech was Switzmand v. Elbing and Attorney-General of Quebec [1957] S.C.R. 285 (Canada).

In that case the Supreme Court declared invalid the Quebec Communistic Propaganda Act. All the judges but one were agreed that the statute did hot fall within provincial competence under property and Civil rights or matters of a merely local or private nature in the province. Abbott J. held that the Parliament itself could not abrogate the right of discussion and, debate.

1550. An article by Dale Gibson in Volume 12-1966-67 in McGill Law Journal shows that though the proposition enunciated by Duff C.J. has commanded the allegiance of an impressive number of judges and has not been decisively rejected, it has never been accepted by a majority of the members of the Supreme Court of Canada or of any other court. Some judges have assumed that basic freedoms may properly be the subject matter of legislation separate and apart from any other-subject matter. Others have taken the view that unlimited jurisdiction falls within Dominion control under its general power to make laws “for the peace, order and good government of Canada”. A third view which has been taken is mat the creation of a Parliament and reference in the Preamble to “a Constitution similar in principle to that of the United Kingdom” postulates that legislative body would be elected and function in an atmosphere of free speech. It is not necessary to give the other views or dialate upon different views. Bora Laskin while dealing with the dictum of Abbott J. has observed in Canadian Constitutional Law:

Apart from the dictum by Abbott J. in the Switzman case, supra, there is no high authority which places civil liberties beyond the legislative reach of both Parliament and the provincial Legislatures. There are no explicit guarantees of civil liberties in the B.N.A. Act nothing comparable to the Bill of Rights (the 1st ten amendments) in the Constitution of the United States, which, within limits and on conditions prescribed by the Supreme Court as ultimate expounder of the meaning and range of the Constitution, prohibits both federal and state action infringing, inter alia, freedom of religion, of speech, of the press and of assembly. (see p. 970).

1551. It would appear from the above that the different views which have been expressed in Canada are in the context of the preamble and section of the British North America Act, the provisions of which are materially different from our Constitution. Even in the context of the British. North America Act, the observations of Abbott J. relied upon on behalf of the petitioners have not been accepted by the majority of the judges of the Canadian Supreme Court, and in my opinion, they afford a fragile basis for building a theory of implied limitations.

1552. It may be mentioned that in August 1960 the Parliament of Canada passed the Canadian Bill of Rights. Section 1 of the Bill declared certain human rights and fundamental freedoms and reads as under:

1. It is hereby recognized and declared that in Canada there have existed and shall continue to exist without discrimination by reason of race, national origin, colour, religion or sex, the following human rights and fundamental freedoms, namely, (a) the right of the individual to life, liberty, security of the person and enjoyment of property, and the right not to be deprived thereof except by due process of law;

(b) the right of the individual to equality before the law and the protection of the law;

(d) freedom of speech;

(e) freedom of assembly and association; and (f) freedom of the press.

According to Section 2 of the Bill, every law of Canada shall, unless it is expressly declared by an Act of the Parliament of Canada that it shall operate notwithstanding the Canadian Bill of Rights, be so construed and applied as not to abrogate, abridge or infringe or to authorise the abrogation, abridgement or infringement of any of the rights or freedoms therein recognized and declared. The relevant part of Section 2 reads as under:

Every law of Canada shall, unless it is expressly declared by an Act of the Parliament of Canada that it shall operate notwithstanding the Canadian Bill of Rights, be so construed and applied as not to abrogate, abridge or infringe or to authorize the abrogation, abridgement or infringement of any of the rights or freedoms herein recognized and declared, and in particular, no law of Canada shall be construed or applied so as to…

(underlining supplied).

Plain reading of Section 2 reproduced above makes it manifest that the human rights and fundamental freedoms mentioned in Section 1 of the Bill are not absolute but are subject to abrogation or abridgement if an express declaration to that effect be made in a law of Canada. Section 2 of the Bill shows that if an express declaration to that effect be made an Act of the Parliament can override the provisions of the Bill of Rights. Section 2 is thus inconsistent with the theory of implied limitations based on human rights on the power of the Canadian Parliament.

1553. Another case from Canada which has been referred to on behalf of the petitioners and which in my opinion is equally of no avail to them is The Attorney General of Nova Scotia and The Attorney General of Canada [1950] S.C.R. 31 (Canada) decided by the Supreme Court of Canada. It was held in that case that an Act respecting the delegation of jurisdiction from the Parliament of Canada to the Legislature of Nova Scotia and vice versa, if enacted, would not be Constitutionally valid since it contemplated delegation by Parliament of powers, exclusively vested in it by Section 91 of the British North America Act, to the Legislature of Nova Scotia; and delegation by that Legislature of powers, exclusively vested in Provincial Legislature under Section 92 of the Act, to Parliament.

The Parliament of Canada and each Provincial Legislature, according to the Supreme Court of Canada, was sovereign body within its sphere, possessed of exclusive jurisdiction to legislate with regard to the subject matters assigned to it under Section 91 or Section 92, as the case may be. Neither was capable therefore of delegating to the other the powers with which it had been vested nor of receiving from the other the powers with which the other had been vested. It is plain that that case related to the delegation of powers which under the British North America Act had been assigned exclusively to Parliament or to the Provincial Legislatures. Such a delegation was held to be not permissible. No such question arises in the present case.

1554. We may now deal with some of the other cases which have been referred to on behalf of the petitioner. Two of those cases are from Ceylon. The Constitutional position there was that Section 29 of the Ceylon (Constitution) Order in Council, 1946 gave the power to make laws as well as the power to amend the Constitution though the procedure prescribed for the two was different. Section 29 reads as under:

29 (1) Subject to the provisions of this Order, Parliament shall have power to make laws for the peace, order and good government of the Island.

(2) No such law shall- (a) prohibit or restrict the free exercise of any religion; or (b) make persons of any community or religion liable to disabilities or restrictions to which persons of other communities or religions are not made liable; or (c) confer on persons of any community or religion any privilege or advantage which is not conferred on persons of other communities or religions; or (d) alter the Constitution of any religious body except with the consent of the governing authority of that body, so, however, that in any case where a religious body is incorporated by law, no such alteration shall be made except at the request of the governing authority of that body:

1555. Provided, however, that the preceding provisions of this, subsection shall not apply to any law making provision for, relating to, or connected with, the election of Members of the House of Representatives, to represent persons registered as citizens of Ceylon under the Indian and Pakistani Residents (Citizenship) Act.

1556. This proviso shall cease to have effect on a date to be fixed by the Governor- General by Proclamation published in the Gazette.

(3) Any law made in contravention of Sub-section (2) of this section shall, to the extent of such contravention, be void.

(4) In the exercise of its powers under this section, Parliament may amend or repeal any of the provisions of this Order or of any other Order of Her Majesty in Council in its application to the Island:

1557. Provided that no Bill for the amendment or repeal of any of the provisions of this Order shall be presented for the Royal Assent unless it has endorsed on it a certificate under the hand of the Speaker that the number of votes cast in favour thereof in the House of Representatives amounted to not less than two-thirds of the whole number of Members of the House (including those not present).

1558. Every certificate of the Speaker under this sub-section shall be conclusive for all purposes and shall not be questioned in any court of law.

1559. In Liyanage and Ors. v. The Queen [1965] UKPC 1; [1966] All E.R. 650 the appellants had been charged with offences arising out of an abortive coup d’etat on January 27, 1962. The story of the coup d’ etat was set out in a White Paper issued by the Ceylon Government.

On March 16, 1962 the Criminal Law (Special Provisions) Act was passed and it was given restrospective effect from January 1, 1962. The Act was limited in operation to those who were accused of offences against the State in or about January 27, 1962. The Act legalised the imprisonment of the appellants while they were awaiting trial, and modified a section of the Penal Code so as to enact ex post facto a new offence to meet the circumstances of the abortive coup. The Act empowered the Minister of Justice to nominate the three judges to try the appellants without a jury. The validity of the Act was challenged as well as the nomination which had been made by the Minister of Justice of the three judges. The Ceylon Supreme Court upheld the objection about the vires of some of the provisions of the Act as well as the nomination of the judges. Subsequently the Act was amended and the power of nomination of the judges was conferred on the Chief Justice. The appellants having been convicted at the trial before a court of three judges nominated under the amended Act, went up in appeal before the Judicial Committee. The conviction of the appellants was challenged on three grounds but the Judicial Committee dealt with only two grounds. The first ground was that the Ceylon Parliament was limited by an inability to pass legislation which was contrary to fundamental principles of justice.

The two Acts of 1962, it was stated, were contrary to such principles in that they were not only directed against individuals but also ex post facto created crimes and for which those individuals would otherwise be protected. The second contention was that the Acts of 1962 offended against the Constitution in that they amounted to a direction to convict the appellants or to a legislative plan to secure the conviction and severe punishment of the appellants and thus constituted an unjustifiable assumption of judicial power by the legislature, or an interference with judicial power, which was outside the legislature’s competence and was inconsistent with the severance of power between legislature, executive, and judiciary which the Constitution ordained. Dealing with the first contention, the Judicial Committee referred to the provisions of the Ceylon (Constitution) Order in Council, 1946 and the Ceylon Independence Act, 1947 and observed that the joint effect of the said Order and Act was intended to and resulted in giving the Ceylon Parliament the full legislative powers of an independent sovereign state. The legislative power of the Ceylon Parliament, it was held, was not limited by inability to pass laws which offended fundamental principles of justice. On the second ground, the Judicial Committee held the Acts of 1962 to be invalid as they involved a usurpation and infringement by the legislature of judicial powers inconsistent with the written Constitution of Ceylon, which, while not in terms vesting judicial functions in the judiciary, manifested an intention to secure in the judiciary a freedom from a political, legislative and executive control.

1560. It would thus appear that the decision is based upon the ground of severance of powers between legislature, judiciary and executive under the Ceylon Constitution and furnishes no support for the theory of implied limitations on the power of Parliament. On the contrary, the Judicial Committee while dealing with the first contention rejected the theory of limitations on the power of Parliament to make a law in violation of the fundamental principles of justice. The Judicial Committee, it is also noteworthy, expressly pointed out that there had been no amendment of the Constitution in accordance with Section 29(4) of the Constitution by two-thirds majority and as such they had not to deal with that situation.

1561. Another case to which reference was made on behalf of the petitioners was The Bribery Commissioner v. Pedrik Ranasinghe [1964] UKPC 1; [1965] A.C. 172. In that case it was found that the members of the Bribery Tribunal had been appointed by the Governor-General on the advice of the Minister of Justice in accordance with Bribery Amendment Act but in contravention of Section 55 of the Ceylon Constitution. [Ceylon (Constitution) Order in Council, 1946] according to which the appointment of judicial officers was vested in the Judicial Service Commission. It was held that a legislature has no power to ignore the conditions of law-making that are imposed by the instrument which itself regulates its power to make law. This restriction exists independently of the question whether the legislature is sovereign, as is that of Ceylon.

1562. It would appear from the above that the point of controversy which arose for determination in that case was different from that which arises in the present case because we are not in this case concerned with any law made by a legislature in contravention of the Constitutional provisions Reference has been made on behalf of the petitioners to a passage in the judgment wherein while dealing with Sub-section (2) of Section 29 of the Ceylon Constitution, the provisions of which have been reproduced earlier, the Judicial Committee observed that the various clauses of Sub-section (2) set out entrenched religious and racial matters which shall not be the subject of legislation. It was further observed that those provisions represented the solemn balance of rights between the citizens of Ceylon, the fundamental conditions on which inter se they accepted the Constitution and these are therefore unalterable under the Constitution. It is contended that those observations show that the rights mentioned in Section 29(2) of the Ceylon Constitution which were similar to the fundamental rights in Part III of the Indian Constitution, were held by the Judicial Committee to be unalterable under the Constitution. There was, it is further submitted, similarity between the provisions of Section 29(3) of the Ceylon Constitution and Article 13(2) of the Indian Constitution because it was provided in Section 29(3) that any law made in contravention of Section 29(2) shall to the extent of such contravention be void.

1563. I find it difficult to accede to the contention that the Judicial Committee laid down in the above case that Sections 29(2) and 29(3) placed a restriction on the power of amendment of the Constitution under Section 29(4) of the Constitution. The question with which the Judicial Committee was concerned was regarding the validity of the appointment of the members of the Bribery Tribunal. Such appointment though made in compliance with the provisions of the Bribery Amendment Act, was in contravention of the requirements of Section 55 of the Ceylon Constitution. No question arose in that case relating to the validity of a Constitutional amendment brought about in compliance with Section 29(4) of the Constitution. Reference to the argument of the counsel for the respondent on the top of page 187 of that case shows that it was conceded on his behalf that “there is no limitation at the moment on the right of amendment or repeal except the requirement of the requisite majority”. The Judicial Committee nowhere stated that they did not agree with the above stand of the counsel for the respondent. Perusal of the judgment shows that the Judicial Committee dealt with Sections 18 and 29 together and pointed out the difference between a legislative law, which was required to be passed by a bare majority of votes under Section 18 of the Constitution, and a law relating to a Constitutional amendment which was required to be passed by a two-thirds majority under Section 29(4). Dealing with the question of sovereignty, the Judicial Committee observed:

A Parliament does not cease to be sovereign whenever its component members fail to produce among themselves a requisite majority, e.g., when in the case of ordinary legislation the voting is evenly divided or when in the case of legislation to amend the Constitution there is only a bare majority if the Constitution requires something more. The minority are entitled under the Constitution of Ceylon to have no amendment of it which is not passed by a two-thirds majority. The limitation thus imposed on some lesser majority of members does not limit the sovereign power of Parliament itself which can always, whenever it chooses, pass the amendment with the requisite majority.

It has been submitted on behalf of the respondents that the above passage indicates that the Judicial Committee took the view that the amendment of all the provisions of the Ceylon Constitution including those contained in Sub-sections (2) and (3) of Section 29 could be passed by a two-thirds majority. It is also stated that the restrictions imposed by Sub-section (2) of Section 29 of the Ceylon Constitution are on the power of ordinary legislation by simple majority and not on the power of making Constitutional amendment by two-thirds majority in compliance with Section 29(4) of the Constitution. It was in that sense that the Judicial Committee, according to the submission, used the word “entrenched”. Our attention has also been invited to the observations on pages 83 and 84 of the Constitutional structure by K.C. Wheare 1963 Reprint that “these safeguards (contained in Section 29) of the rights of communities and religions could be repealed or amended by the Parliament of Ceylon provided it followed the prescribed procedure for amendment of the Constitution”. These submissions may not be bereft of force, but it is, in my opinion, not necessary to dilate further upon this matter and discuss the provisions of the Ceylon Constitution at greater length. The point of controversy before us would have to be decided in the light essentially of the provisions of our own Constitution.

Suffice it to say that Ranasinghe’s case does not furnish any material assistance to the stand taken on behalf of the petitioners.

1564. We may now advert to the case of McCawley v. The King [1920] A.C. 691 The said case related to the Constitution of Queensland in Australia. Queensland was granted a Constitution in 1859 by an Order in Council made on June 6. The Order in Council set up a Legislature in the territory consisting of the Queen, a Legislative Council and a Legislative Assembly and the law making power was vested in the Queen acting with the advice and consent of the Council and Assembly. Any law could be made for the “peace, welfare and good government of the colony”, the phrase generally employed to denote the plenitude of sovereign legislative power even though that power be confined to certain subjects or within certain reservations. The Legislature passed a Constitution Act in 1867. By Section 2 of that Act the legislative body was declared to have power to make laws for the peace, welfare and good government of the colony in all cases whatsoever. The only express restriction on this comprehensive power was in Section 9 which required a two-thirds majority of the Council and of the Assembly as a condition precedent to the validity of legislation altering the Constitution of the Council. In 1916 the Industrial Arbitration Act was passed. The said Act authorised the Governor in Council to appoint the President or a judge of the Court of Industrial Arbitration to be a judge of the Supreme Court of Queensland. It was also provided that the judge so appointed shall have the jurisdiction of both offices, and shall hold office as a judge of the Supreme Court during good behaviour. The Governor in Council, by a commission, appointed the appellant who was the President of the Court of Industrial Arbitration to be a judge of the Supreme Court during good behaviour. The Supreme Court of Queensland held that the appellant was not entitled to have the oath of office administered to him or to take his seat as a member of the Supreme Court. Subsequently, the Supreme Court of Queensland gave a judgment in ouster against the appellant. The provisions of Section 6 of the Industrial Arbitration Act of 1916 under which the appellant had been appointed a judge of the Supreme Court were held to be inconsistent with the provisions of the Constitution Act and as such void. On appeal four out of the seven judges of the High Court of Australia agreed with the Supreme Court of Queensland, while the three other judges took the opposite view and expressed the opinion that the appeal should be allowed. The matter was then taken up in appeal to the Privy Council. Lord Birkenhead giving the opinion of the Judicial Committee held (1) that the Legislature of Queensland had power, both under the Colonial Laws Validity Act, 1865, and apart therefrom, to authorise the appointment of a judge of the Supreme Court for a limited period; and (2) that Section 6 of the Industrial Arbitration Act authorised an appointment as a judge of the Supreme Court only for the period during which the person appointed was a judge of the Court of Industrial Arbitration. The appellant was further held to have been validly appointed. The above case though containing observations that a legislature has no power to ignore the conditions of law-making that are imposed by the instrument which itself regulates its power to make law, laid down the proposition that in the absence of a restriction, it is not possible to impose a restriction upon the legislative power. It was observed:

The Legislature of Queensland is the master of its own household, except in so far as its powers have in special cases been restricted. No such restriction has been established, and none in fact exists, in such a case as is raised in the issues now under appeal.

1565. It was also observed:

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 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.’ The decision in the above cited case can hardly afford any assistance to the petitioners.

On the contrary, there are passages in the judgment which go against the stand taken on behalf of the petitioners.

1566. Section 5 of the Colonial Laws Validity Act, 1865 to which there was a reference in the McCawley’s case reads as under:

Every colonial legislature shall have, and be deemed at all times to have had, full power within its jurisdiction to establish courts of judicature, and to abolish and reconstitute the same, and to alter the Constitution thereof, and to make provision for the administration of justice therein; and every representative legislature shall, in respect to the colony under its jurisdiction have, and be deemed at all times to have had, full power to make laws respecting the Constitution, powers, and procedure of such legislature; provided that such laws shall have been passed in such manner and form as may from time to time be required by any Act of Parliament, letters patent, Order in Council or colonial law for the time being in force in the said colony.

Reference has been made during arguments to the decision of the Privy Council in the case of Attorney-General for New South Wales v. Trethowan [1932] UKPC 1; [1932] A.C. 526. The said case related to a Bill passed by the New South Wales Parliament for repeal of a section providing for referendum as well as to another Bill for abolition of the Legislative Council. The Privy Council affirmed the decision of the Australian High Court which had held by majority that the Bills had not been passed in the “manner and form” within the meaning of Section 5 of the Colonial Laws Validity Act, and as such could not be presented for Royal assent. The Privy Council based its decision upon the language of the above section and the meaning of the word “passed” in that section. We are not concerned in the present case with the aforesaid provisions. There is also nothing in the conclusions at which I have arrived which runs counter to the principles laid down in the Trethowan’s case.

1567. Another Australian case to which reference has been made during the course of arguments is The State of Victoria v. The Commonwealth. 45 Australian Law Journal Reports 251 It has been laid down by the High Court of Australia in that case that the Commonwealth Parliament in exercise of its powers under Section 51(ii) of the Constitution may include the Crown in right of a State in the operation of a law imposing a tax or providing for the assessment of a tax. The inclusion of the Crown in right of a State, according to the court, in the definition of “employer” in the Pay-roll Tax Assessment Act, thus making the Crown in right of a State liable to pay the tax in respect of wages paid to employees, including employees of departments engaged in strictly governmental functions, is a valid exercise of the power of the Commonwealth under the above provisions of the Constitution. There was discussion in the course of the judgment on the subject of implied limitation on the Commonwealth legislative power under the Constitution arising from the federal nature of the Constitution and different views were expressed. Three of the Judges, including Barwick C.J. took the view that there was no such limitation. As against that, four Judges were of the opinion that there was an implied limitation on Commonwealth legislative power under the Constitution but the impugned Act did not offend such limitation. Opinion was expressed that the Commonwealth Parliament while acting under the legislative entry of taxation could hot so use the power of taxation as to destroy the States in a federal structure. The question as to what is the scope of the power of amendment was not considered in that case. The above case as such cannot be of much assistance for determining as to whether there are any implied limitations on the power to make Constitutional amendment.

1568. I am, therefore, of the opinion that the majority view in the Golak Nath’s case that Parliament did not have the power to amend any of the provisions of Part III of the Constitution so as to take away or abridge the fundamental rights cannot be accepted to be correct. Fundamental rights contained in Part III of our Constitution can, in my opinion, be abridged or taken away in compliance with the procedure prescribed by Article 368, as long the basic structure of the Constitution remains unaffected.

1569. We may now deal with the Twentyfourth Amendment. It has sought to make clear matters regarding which doubt had arisen and conflicting views had been expressed by this Court. We may in this context set forth the Statement of Objects and Reasons of the Constitution (Twentyfourth Amendment) Bill. The Statement of Objects and Reasons reads as under:

STATEMENT OF OBJECTS AND REASONS The Supreme Court in the well-known Golak Nath’s case [1967] INSC 45; 1967 (2 SCR 762) reversed, by a narrow majority, its own earlier decisions upholding the power of Parliament to amend all parts of the Constitution including Part III relating to fundamental rights. The result of the judgment is that Parliament is considered to have no power to take away or curtail any of the fundamental rights guaranteed by Part III of the Constitution even if it becomes necessary to Jo so for giving effect to the Directive Principles of State Policy and for the attainment of the objectives set out in the Preamble to the Constitution. It is, therefore, considered necessary to provide expressly that Parliament has power to amend any provision of the Constitution so as to include the provisions of Part III within the scope of the amending power.

1570. 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 has 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.

1571. Section 2 of the Bill which was ultimately passed as the Constitution (Twentyfourth Amendment) Act has added a clause in Article 13 that nothing in that article would apply to any amendment of the Constitution made under Article 368. As a result of Section 3 of the Amendment Act, Article 368 has been re-numbered as Clause (2) thereof and the marginal heading now reads “Power of Parliament to amend the Constitution and procedure therefor”. Non-obstante Clause (1) has been inserted in the article to emphasise the fact that the power exercised under that article is constituent power, not subject to the other provisions of the Constitution, and embraces within itself addition, variation and repeal of any provision of the Constitution. Amendment has also been made so as to make it obligatory for the President to give his assent to the Amendment Bill after it has been passed in accordance with the article. Clause (3) has further been added in Article 368 to the effect that nothing in Article 13 would apply to an amendment made under Article 368. Although considerable arguments have been addressed before us on the point as to whether the power of amendment under Article 368 includes the power to amend Part III so as to take away or abridge fundamental rights, it has not been disputed before us that the Constitution (Twentyfourth Amendment) Act was passed in accordance With the procedure laid down in Article 368 of the Constitution as it existed before the passing of the said Act. In view of what has been discussed above at length. I find no infirmity in the Constitution (Twentyfourth Amendment) Act. 1, therefore, uphold the validity of the said Act.

1572. We may now deal with the Constitution (Twentyfifth Amendment) Act, 1971. The Twentyfifth Amendment has made three material changes:

(i) It has amended Article 31(2) in two respects.

(a) It substitutes the word “amount” for the word “compensation” for property acquired or requisitioned.

(b) It has provided that the law for the purpose of acquisition or requisition shall not be called in question on the ground that the whole or any part of the “amount” is to be given otherwise than in cash.

(ii) It has provided that the fundamental right to acquire, hold and dispose of property under Article 19(1)(f) cannot be invoked in respect of any such law as is referred to in Article 31(2).

(iii) It has inserted Article 31C as an overriding article which makes the fundamental rights conferred by Articles 14, 19 and 31 inapplicable to certain categories of laws passed by the Parliament or by any State Legislature.

So far as the substitution of the word “amount” for the word “compensation” for property acquired or requisitioned in Article 31(2) is concerned, we find that this Court held in Mrs. Bela Bose [1953] INSC 81; [1954] S.C.R. 558 case that by the guarantee of the right to compensation for compulsory acquisition under Article 31(2), before it was amended by the Constitution (Fourth Amendment) Act, the owner was entitled to receive a “just equivalent” or “full indemnification”. In P. Vajravelu Mudaliar’s [1964] INSC 214; [1965] 1 S.C.R. 614 case this Court held that notwithstanding the amendment of Article 31(2) by the Constitution (Fourth Amendment) Act and even after the addition of the words “and no such law shall be called in question in any Court on the ground that the compensation provided by that law is not adequate”, the expression “compensation continued to have the same meaning as it had in Article 31(2) before it was amended, viz., just equivalent or full indemnification. Somewhat different view was taken by this Court thereafter, in the case of Shantilal Mangaldas [1969] INSC 8; [1969] 3 S.C.R. 341. In the case of P. Vajravelu Mudaliar (supra) it was observed that the Constitutional guarantee was satisfied only if a just equivalent of the property was given to the owner. In the case of Shantilal Mangaldas (supra) it was held that “compensation” being itself incapable of any precise determination, no definite connotation could be attached thereto by calling it “just equivalent” or “full indemnification”, and under Acts enacted after the amendment of Article 31(2) it is not open to the Court to call in question the law providing for compensation on the ground that it is inadequate, whether the amount of compensation is fixed by the law or is to be determined according to principles specified therein (see observations of Shah J. on page 596 in the case of R.C. Cooper v. Union [1970] 3 S.C.R.

530. After further discussion of the views expressed in those two cases, Shah J. speaking for the majority, observed:

Both the lines of thought which converge in the ultimate result, support the view that the principle specified by the law for determination of compensation is beyond the pale of challenge if it is relevant to the determination of compensation and is a recognized principle applicable in the determination of compensation for property compulsorily acquired and the principle is appropriate in determining the value of the class of property sought to be acquired. On the application of the view expressed in P. Vajravelu Mudaliar’s case (supra) or in Shantilal Mangaldas’s case (supra) the Act, in our judgment, is liable to be struck down as it fails to provide to the expropriated banks compensation determined according to relevant principles.

1573. The amendment in Article 31(2) made by the Twentyfifth Amendment by substituting the word “amount” for the word “compensation” is necessarily intended to get over the difficulty caused by the use of the word “compensation”. As the said word was held by this Court to have a particular connotation and was construed to mean just equivalent or full indemnification the amendment has replaced that word by the word “amount”. In substituting the word “amount” for “compensation” the Amendment has sought to ensure that the amount determined for acquisition or requisition of property need not be just equivalent or full indemnification and may be, if the legislature so chooses, plainly inadequate. It is not necessary to further dilate upon this aspect because whatever may be the connotation of the word “amount”, it would not affect the validity of the amendment made in Article 31(2).

1574. Another change made in Article 31(2) is that the law for the purpose of acquisition or requisition shall not be called in question on the ground that the whole or any part of the “amount” fixed or determined for the acquisition or requisition of the property is to be given otherwise than in cash. I have not been able to find any infirmity in the above changes made in Article 31(2).

1575. According to Clause (2B) which has been added as a result of the Twentyfifth Amendment in Article 31, nothing in Sub-clause (f) of Clause (1) of Article 19 shall affect any such law as is referred to in Clause (2). In this connection we find that this Court held in some cases that Articles 19(1)(f) and 31(2) were exclusive. In A.K.

Gopalan v. The State of Madras [1950] INSC 14; [1950] S.C.R. 88 a person detained pursuant to an order made in exercise of the power conferred by the Preventive Detention Act applied to this Court for a writ of habeas corpus claiming that the Act contravened the guarantee under Articles 19, 21 and 22 of the Constitution. The majority of this Court (Kania C.J., and Patanjali Sastri, Mahajan, Mukherjea and Das JJ.) held that Article 22 being a complete code relating to preventive detention, the validity of an order of detention must be determined strictly according to the terms and “within the four corners of that Article”.

They held that a person detained may not claim that the freedom guaranteed under Article 19(1)(c) was infringed by his detention, and that validity of the law providing for making orders of detention will not be tested in the light of the reasonableness of the restrictions imposed thereby on the freedom of movement, nor on the ground that his right to personal liberty is infringed otherwise than according to the procedure established by law. Fazl Ali, J. expressed a contrary view. This case formed the nucleus of the theory that the protection of the guarantee of a fundamental freedom must be adjudged in the light of the object of State action in relation to the individual’s right and not upon its effect upon the guarantee of the fundamental freedom, and as a corollary thereto, that the freedoms under Articles 19, 21, 22 and 31 are exclusive-each article enacting a code relating to protection of distinct rights (see p. 571 in the case of R.C. Cooper, (supra).

The view expressed in Gopalan’s case (supra) was reaffirmed in Ram Singh and Ors. v.

The State of Delhi [1951] INSC 24; [1951] S.C.R. 451. The principle underlying the judgment of the majority was extended to the protection of the right to property and it was held that Article 19(1)(f) and Article 31(2) were mutually exclusive in their operation. In the case of State of Bombay v. Bhanji Munji and Anr. [1955] 1 S.C.R. 777 this Court held that Article 19(1)(f) read with Clause (5) postulates the existence of property which can be enjoyed and over which rights can be exercised because otherwise the reasonable restrictions contemplated by Clause (5) could not be brought into play. If there is no property which can be acquired, held or disposed of, no restriction can be placed on the exercise of the right to acquire, hold or dispose it of. In Kavalappara Kottarathil Kochuni’s [1960] 3 S.C.R. 887 case, Subba Rao J. delivering the judgment of the majority of the Court, observed that Clause (2) of Article 31 alone deals with compulsory acquisition of property by the State for a public purpose, and not Article 31(1) and he proceeded to hold that the expression “authority of law” means authority of a valid law, and on that account validity of the law seeking to deprive a person of his property is open to challenge on the ground that it infringes other fundamental rights, e.g., under Article 19(1)(f). It was also observed that after the Constitution (Fourth Amendment) Act, 1955 Bhanji Munji’s case (supra) “no longer holds the field”. After the decision in K.K.

Kochuni’s case (supra) there arose two divergent lines of authority. According to one view, “authority of law” in Article 31(1) was liable to be tested on the ground that it violated other fundamental rights and freedoms, including the right to hold property guaranteed by Article 19(1)(f). The other view was that “authority of a law” within the meaning of Article 31(2) was not liable to be tested on the ground that it impaired the guarantee of Article 19(1)(f) in so far as it imposed substantive restrictions-though it may be tested on the ground of impairment of other guarantees. In the case of R.C. Cooper (supra), Shah J. speaking for the majority held that in determining the impact of State action upon Constitutional guarantees which are fundamental, the extent of protection against impairment of a fundamental right is determined not by the object of the Legislature nor by the form of the action, but by its direct operation upon the individual’s rights. It was further observed:

We are therefore unable to hold that the challenge to the validity of the provision for acquisition is liable to be tested only on the ground of non- compliance with Article 31(2). Article 31(2) requires that property must be acquired for a public purpose and that it must be acquired under a law with characteristics set out in that Article. Formal compliance with the conditions under Article 31(2) is not sufficient to negative the protection of the guarantee of the right to property. Acquisition must be under the authority of a law and the expression “law” means a law which is within the competence of the Legislature, and does not impair the guarantee of the rights in Part III. We are unable, therefore, to agree that Article 19(1)(f) and 31(2) are mutually exclusive.

1576. The Twentyfifth Amendment seeks to overcome the effect of the above decision in R.C. Cooper’s case. It has sought to resolve the earlier conflict of views noticeable in this respect in the judgments of this Court. Provision has accordingly been made that the fundamental right to acquire, hold or dispose of property under Article 19(1)(f) cannot be invoked in respect of any such law as is referred to in Article 31(2). In view of what has been discussed earlier while dealing with the Twentyfourth Amendment, the change made by addition of Clause (2B) in Article 31(2) is permissible under Article 368 and cannot be held to be invalid.

1577. We may now deal with Article 31C, introduced as a result of the Twentyfifth Amendment. Perusal of this article which has been reproduced in the earlier part of this judgment shows that the article consists of two parts. The first part states that 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. According to the second part of this article, 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. There then follows the proviso, according to which where such law is made by the Legislature of a State, the provisions of the article shall not apply thereto unless such law, having been reserved for the consideration of the President, has received his assent.

1578. The first part of Article 31C is similar to Article 31A except in respect of the subject matter. Article 31A was inserted by the Constitution (First Amendment) Act, 1951. Clause (1) of Article 31A as then inserted was in the following words:

(1) Notwithstanding anything in the foregoing provisions of this Part, 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:

Provided that where such law is a law 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.

Subsequently, Clause (1) of Article 31A was amended by the Constitution (Fourth Amendment) Act, 1955. New Clause (1) was in the following words:

(1) Notwithstanding anything contained in Article 13, no law providing for- (a) the acquisition by the State of any estate or of any rights therein or the extinguishment or modification of any such rights, or (b) the taking over of the management of any property by the State for a limited period either in the public interest or in order to secure the proper management of the property, or (c) the amalgamation of two or more corporations either in the public interest or in order to secure the proper management of any of the corporations, or (d) the extinguishment or modification of any rights of managing agents, secretaries and treasurers, managing directors, directors or managers of corporations, or of any voting rights of shareholders thereof, or (e) the extinguishment or modification of any rights accruing by virtue of any agreement, lease or licence for the purpose of searching for, or winning, any mineral or mineral oil, or the premature termination or cancellation of any such agreement, lease or licence, 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:

Clause (b) and (c) of Article 39 referred to in Article 31C read as under:

39. The State shall, in particular, 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;

(c) that the operation of the economic system does not result in the concentration of wealth and means of production to the common detriment;

…

1579. It would appear from the above that while Article 31A dealt with a law providing for the acquisition by the State of any estate or of any rights therein or the extinguishment or modification of such rights or other matters mentioned in Clauses (b) to (e) of that article, Article 31C relates to the securing of the objective that the ownership and control of the material resources of the community are so distributed as best to subserve the common good and that operation of the economic system does not result in the concentration of wealth and means of production to the common detriment. But for the difference in subjects, the language of the first clause of Article 31A and that of the first part of Article 31C is identical. Both Articles 31A and 31C deal with right to property.

Article 31A deals with certain kinds of property and its effect is, broadly speaking, to take those kinds of property from the persons who have rights in the said property. The objective of Article 31C is to prevent concentration of wealth and means of production and to ensure the distribution of ownership and control of the material resources of the community for the common good. Article 31C is thus essentially an extension of the principle which was accepted in Article 31A. The fact that the provisions of Article 31C are more comprehensive and have greater width compared to those of Article 31A would not make any material difference. Likewise, the fact that Article 31A deals with law providing for certain subjects, while Article 31C deals with law giving effect to the policy towards securing the principles specified in Clause (b) or Clause (c) of Article 39, would not detract from the conclusion that Article 31C is an extension of the principle which was accepted in Article 31A. Indeed, the legislature in making a law giving effect to the policy of the State towards securing the principles specified in Clause (b) or Clause (c) of Article 39 acts upon the mandate contained in Article 37, according to which the Directive Principles are fundamental in the governance of the country and it shall be the duty of the State to apply those principles in making laws. If the amendment of the Constitution by which Article 31A was inserted was valid, I can see no ground as to how the Twentyfifth Amendment relating to the insertion of the first part of Article 31C can be held to be invalid. The validity of the First Amendment which introduced Article 31A was upheld by this Court as long ago as 1952 in the case of Sankari Prasad v. Union of India (supra). Article 31A having been held to be valid during all these years, its validity cannot now be questioned on account of the doctrine of stare decisis. Though the period for which Sankari Prasad’s case stood unchallenged was not very long, the effects which have followed in the passing of the State laws on the faith of that decision, as observed by Wanchoo J. in Golak Nath’s case, are so overwhelming that we should not disturb the decision in that case upholding the validity of the First Amendment. It cannot be disputed that millions of acres of land have changed hands and millions of new titles in agricultural lands which have been created and the State laws dealing with agricultural land which have been passed in the course of the years after the decision in Sankari Prasad’s case have brought about an agrarian revolution. Agricultural population constitutes a vast mapority of the population in this country. In these circumstances, it would in my opinion be wrong to hold now that the decision upholding the First Amendment was not correct, and thus disturb all that has been done during these years and create chaos into the lives of millions of our countrymen who have benefited by these laws relating to agrarian reforms. I would, therefore, hold that this is one of the fittest cases in which the principle of stare decisis should be applied. The ground which sustained the validity of Clause (1) of Article 31A, would equally sustain the validity of the first part of Article 31C. I may in this context refer to the observations of Brandeis J.

in Lesses v. Garnet (258) U.S. 130 while upholding the validity of the 19th Amendment, according to which the right of citizens of the United States to vote shall not be denied or abridged by the United States or by States on account of sex. This case negatived the contention that a vast addition to the electorate destroyed the social compact and the residuary rights of the States. Justice Brandeis observed:

This amendment is in character and phraseology precisely similar to the 15th. For each the same method of adoption was pursued. One cannot be valid and the other invalid. That the 15th is valid…has been recognized and acted upon for half a century…. The suggestion that the 15th was incorporated in the Constitution not in accordance with law, but practically as a war measure which has been validated by acquiesence cannot be entertained.

1580. We may now deal with the second part of Article 31C, according to which no law containing a declaration that it is for giving effect to the policy of State towards securing the principles specified in Clause (b) or Clause (c) of Article 39 shall be called in question in any court on the ground that it does not give effect to such policy. The effect of the second part is that once the declaration contemplated by that article is made, the validity of such a law cannot be called in question in any court on the ground that it is inconsistent with or takes away or abridges any of the rights conferred by Articles 14, 19 or 31 of the Constitution. The declaration thus gives a complete protection to the provisions of law containing the declaration from being assailed on the ground of being violative of Articles 14, 19 or 31. However tenuous the connection of a law with the objective mentioned in Clause (b) and Clause (c) of Article 39 may be and however violative it may be of the provisions of Articles 14, 19 and 31 of the Constitution, it cannot be assailed in a court of law on the said ground because of the insertion of the declaration in question in the law. The result is that if an Act contains 100 sections and 95 of them relate to matters not connected with the objectives mentioned in Clauses (b) and (c) of Article 39 but the remaining five sections have some nexus with those objectives and a declaration is granted by the Legislature in respect of the entire Act, the 95 sections which have nothing to do with the objectives of Clauses (b) and (c) of Article 39, would also get protection. It is well-known that State Legislatures are quite often swayed by local and regional considerations. It is not difficult to conceive of laws being made by a State Legislature which are directed against citizens of India who hail from other States on the ground that the residents of the State in question are economically backward. For example, a law might be made that as the old residents in the State are economically backward and those who have not resided in the State for more than three generations have an affluent business in the State or have acquired property in the State, they shall be deprived of their business and property with a view to vest the same in the old residents of the State. Such a law if it contains the requisite declaration, would be protected and it would not be permissible to assail it on the ground of being violative of Articles 14, 19 and 31 of the Constitution even though such a law strikes at the integrity and unity of the country. Such a law might also provoke the Legislatures of other States to make laws which may discriminate in the economic sphere against the persons hailing from the State which was the first to enact such discriminate law. There would thus be a chain reaction of laws which discriminate between the people belonging to different States and which in the very nature of things would have a divisive tendency from a national point of view.

The second part of Article 31C would thus provide the cover for the making of laws with a regional or local bias even though such laws imperil the oneness of the nation and contain the dangerous seeds of national disintegration. The classic words of Justice Holmes have a direct application to a situation like this. Said the great Judge:

I do not think the United States would come to an end if we lost our power to declare an Act of Congress void. I do think the Union would be imperiled if we could not make that declaration as to the laws of the several States.” (Holmes, Collected Legal Papers (1920) 295-96).

The fact that the assent of the President would have to be obtained for such a law might not provide an effective safeguard because occasions can well be visualized when the State concerned might pressurise the Centre and thus secure the assent of the President.

Such occasions would be much more frequent when the party in power at the Centre has to depend upon the political support of a regional party which is responsible for the law in question passed by the State Legislature.

1581. It seems that while incorporating the part relating to declaration in Article 31C, the sinister implications of this part were not taken into account and its repercussions on the unity of the country were not realised. In deciding the question relating to the validity of this part of Article 31C, we should not, in my opinion, take too legalistic a view. A legalistic judgment would indeed be a poor consolation if it affects the unity of the country. It would be apposite in this context to reproduce a passage from Story’s Commentaries on the Constitution of the United States wherein he adopted the admonition of Burke with a slight variation as under:

The remark of Mr. Burke may, with a very slight change of phrase be addressed as an admonition to all those, who are called upon to frame, or to interpret a Constitution. Government is a practical thing made for the happiness of mankind, and not to furnish out a spectacle of uniformity to gratify the schemes of visionary politicians. The business of those, who are called to administer it, is to rule, and not to wrangle. It would “be a poor compensation, that one had triumphed in a dispute, whilst we had lost an empire; that we had frittered down a power, and at the same time had destroyed the republic (para 456).

1582. The evil consequences which would flow from the second part of Article 31C would not, however, be determinative of the matter. I would therefore examine the matter from a legal angle. In this respect I find that there can be three types of Constitutional amendments which may be conceived to give protection to legislative measures and make them immune from judicial scrutiny or attack in court of law.

1583. According to the first type, after a statute has already been enacted by the Legislature a Constitutional amendment is made in accordance with Article 368 and the said statute is inserted in the Ninth Schedule under Article 31B. Such a statute or any of the provisions thereof cannot be struck down in a court of law and cannot be deemed to be void or ever to have become void on the ground that the statute or any provisions thereof is inconsistent with or takes away or abridges any of the rights conferred by any provision of Part III. In such a case, the provisions of the entire statute are placed before each House of Parliament. It is open to not less than one-half of the members of each House and not less than two-thirds of the members of each House voting and present after applying their mind to either place the statute in the Ninth Schedule in its entirety or a part thereof or not to do so. It is only if not less than one-half of the total members of each House of Parliament and not less than two-thirds of the members present and voting in each House decide that the provisions of a particular statute should be protected under Article 31B either in their entirety or partly that the said provisions are inserted in the Ninth Schedule. A Constitutional amendment of this type relates to an existing statute of which the provisions can be examined by the two Houses of Parliament and gives protection to the statute from being struck down on the ground of being violative of any provision of Part III of the Constitution. Such an amendment was introduced by the Constitution (First Amendment) Act, 1951 and its validity was upheld in Sankari Prasad’s case (supra).

1584. The second type of Constitutional amendment in that where the Constitutional amendment specifies the subject in respect of which a law may be made by the Legislature and the amendment also provides that no law made in respect of that subject 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 Part III of the Constitution. In such a case the law is protected even though it violates the provisions of Part III of the Constitution. It is, however, open in such a case to the court, on being moved by an aggrieved party, to see whether the law has been made for the purpose for which there is Constitutional protection. The law is thus subject to judicial review and can be struck down if it is not for the purpose for which protection has been afforded by the Constitutional amendment.

To this category belong the laws made under Article 31A of the Constitution which has specified the subjects for which laws might be made, and gives protection to those taws.

It is always open to a party to assail the validity of such a law on the ground that it does not relate to any of the subjects mentioned in Article 31A. It is only if the court finds that the impugned law relates to a subject mentioned in Article 31A that rite protection contemplated by that article would be afforded to the impugned law and not otherwise.

Article 31A was introduced by the Constitution (First Amendment) Act, 1951 and as mentioned earlier, the validity of the First Amendment was upheld in Sankari Prasad’s case (supra).

1585. The third type of Constitutional amendment is one, according to which a law made for a specified object is protected from attack even though it violates Articles 14, 19 and

31. The Constitutional amendment further provides that the question as to whether the law is made for the specified object is not justiciable and a declaration for the purpose made by the legislature is sufficient and would preclude the court from going into the question as to whether the law is made for the object prescribed by the Constitutional amendment. To such category belongs that part of Twentyfifth Amendment which inserted Article 31C when taken along with its second part. The law made under Article 31C is not examined and approved for the purpose of protection by not less than one-half of the members of each House of Parliament and not less than two-thirds of the members present and voting in each House, as is necessary in the case of laws inserted in the Ninth Schedule of the Constitution. Nor can the law made under Article 31C be subject to judicial review with a view to find out whether the law has, in fact, been made for an object mentioned in Article 31C. Article 31C thus departs from the scheme of Article 31A, because while a judicial review is permissible under Article 31A to find out as to whether a law has been made for any of the objects mentioned in Article 31A, such a judicial review has been expressly prohibited under Article 31C. The result is that even if a law made under Article 31C can be shown in court of law to have been enacted not for the purpose mentioned in Article 31C but for another purpose, the law would still be protected and cannot be assailed on the ground of being violative of Articles 14, 19 and 31 of the Constitution because of the declaration made by the legislature as contemplated by second part of Article 31C. It may also be mentioned in this context that such a law can be passed by a bare majority in a legislature even though only the minimum number of members required by the quorum, which is generally one-tenth of the total membership of the legislature, are present at the time the law is passed.

1586. The effect of the above amendment is that even though a law is in substance not in furtherance of the objects mentioned in Articles 39(b) and (c) and has only a slender connection with those objects, the declaration made by the Legislature would stand in the way of a party challenging it on the ground that it is not for the furtherance of those objects. A power is thus being conferred upon the Central and State Legislatures as a result of this provision to make a declaration in respect of any law made by them in violation of the provisions of Articles 14, 19 and 31 and thus give it protection from being assailed on that ground in a court of law. The result is that even though for the purpose of making an amendment of the Constitution an elaborate procedure is provided in Article 368, power is now given to a simple majority in a State or Central Legislature, in which only the minimum number of members are present to satisfy the requirement of quorum, to make any law in contravention of the provisions of Articles 14, 19 and 31 and make it immune from attack by inserting a declaration in that law. It is natural for those who pass a law to entertain a desire that it may not be struck down. There would, therefore, be an inclination to make an Act immune from attack by inserting such a declaration even though only one or two provisions of the Act have a connection with the objects mentioned in Article 39(b) and (c). Articles 14, 19 and 31 can thus be reduced to a dead letter, an ineffective purposeless showpiece in the Constitution.

1587. The power of making an amendment is one of the most important powers which can be conferred under the Constitution. As mentioned earlier, according to Finer, the amending clause is so fundamental to a Constitution that it may be called the Constitution itself while according to Burgess, the amending clause is the most important part of a Constitution. This circumstance accounts for the fact that an elaborate procedure is prescribed for the amending of the Constitution. The power of amendment being of such vital importance can neither be delegated nor can those vested with the authority to amend abdicate that power in favour of another body. Further, once such a power is granted, either directly or in effect, by a Constitutional amendment to the State Legislatures, it would be difficult to take away that power, because it can be done only by means of a Constitutional amendment and the States would be most reluctant, having got such a power, to part with it. In empowering a State Legislature to make laws violative of Articles 14, 19 and 31 of the Constitution and in further empowering the State Legislature to make laws immune from attack on the ground of being violative of Articles 14, 19 and 31 by inserting the requisite declaration, the authority vested with the power to make amendment under Article 368 (viz., the prescribed majority in each House of Parliament) has, in effect, delegated or granted the power of making amendment in important respects to a State Legislature. Although the objects for which such laws may be made have been specified, the effect of the latter part of Article 31C relating to the declaration is that the law in question may relate even to objects which have not been specified. Article 31C taken along with the second part relating to the declaration departs from the scheme of Article 31A because while the protection afforded by Article 31A is to laws made for specified subjects, the immunity granted under Article 31C can be availed of even by laws which have not been made for the specified objects. The law thus made by the State Legislatures would have the effect of pro-tanto amendment of the Constitution. Such a power, as pointed out earlier, can be exercised by the State Legislature by a simple majority in a House wherein the minimum number of members required by the rule of quorum are present.

1588. In Re Initiative and Referendum Act [1919] A.C. 935 the Judicial Committee after referring to a previous decision wherein the Legislature of Ontario was held entitled to entrust to a Board of Commissioners authority to enact regulations relating to Taverns observed on page 945:

But it does not follow that it can create and endow with its own capacity a new legislative power not created by the Act to which it owes its own existence. Their Lordships do no more than draw attention to the gravity of the Constitutional questions which thus arise.

If it is impermissible for a legislature to create and endow with its own capacity a legislative power not created by the Act to which it owes its own existence, it should, in my opinion, be equally impermissible in the face of Article 368 in its present form under our Constitution, for the amending authority to vest its amending power in another authority like a State Legislature. It has to be emphasised in this context that according to Article 368, an amendment of this Constitution may be initiated only by the introduction of a Bill for the purpose in either House of Parliament. The word “only” has a significance and shows that as long as Article 368 exists in its present form, the other methods of amendment are ruled out.

1589. It may be mentioned that apart from the question of legislative competence, the articles for the violation of which statutes have been quashed in overwhelming majority of cases are Articles 14, 19 and 31. The question as to whether the impugned statute is beyond legislative competence can be agitated despite the protection of Article 31C in the same way as that question can be agitated despite the protection of Article 31A, but in other respects, as would appear from what has been stated above, Article 31C goes much beyond the scope of Articles 31A and 31B.

1590. In a federal system where the spheres of legislative powers are distributed between the Central Legislature and the State Legislatures, there has to be provided a machinery to decide in case of a dispute as to whether the law made by the State Legislatures encroaches upon the field earmarked for the Central Legislature as also a dispute whether a law made by the Central Legislature deals with a subject which can be exclusively dealt with by the State Legislatures. This is true not only of a federal system but also in a Constitutional set up like ours wherein the Constitution-makers, though not strictly adopting the federal system, have imbibed the features of a federal system by distributing and setting apart the spheres of legislation between the Central Legislature and the State Legislatures. The machinery for the resolving of disputes as to whether the Central Legislature has trespassed upon the legislative field of the State Legislatures or whether the State Legislatures have encroached upon the legislative domain of the Central Legislature is furnished by the courts and they are vested with the powers of judicial review to determine the validity of the Acts passed by the legislatures. The power of judicial review is, however, confined not merely to deciding whether in making the impugned laws the Central or State Legislatures have acted within the four comers of the legislative lists earmarked for them; the courts also deal with the question as to whether the laws are made in conformity with and not – in violation of the other provisions of the Constitution. Our Constitution-makers have provided for fundamental rights in Part III and made them justiciable. As long as some fundamental rights exist and are a part of the Constitution, the power of judicial review has also to be exercised with a view to see that the guarantees afforded by those rights are not contravened. Dealing with draft Article 25 (corresponding to present Article 32 of the Constitution) by which a right is given to move the Supreme Court for enforcement of the fundamental rights, Dr. Ambedkar speaking in the Constituent Assembly on December 9, 1948 observed:

If I was asked to name any particular article in this Constitution as the most important-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. (CAD debates, Vol. VII, p. 953).

Judicial review has thus become an integral part of our Constitutional system and a power has been vested in the High Courts and the Supreme Court to decide about the Constitutional validity of provisions of statutes. If the provisions of the statute are found to be violative of any article of the Constitution, which is the touchstone for the validity of all laws, the Supreme Court and the High Courts are empowered to strike down the said provisions. The one sphere where there is no judicial review for finding out whether there has been infraction of the provisions of Part III and there is no power of striking down an Act, regulation or provision even though it may be inconsistent with or takes away or abridges any of the rights conferred by Part III of the Constitution is that incorporated in Article 31B taken along with the Ninth Schedule. Article 31B was inserted, as mentioned earlier, by the Constitution (First Amendment) Act. According to Article 31B, none of the Acts and regulations specified in the Ninth Schedule nor any of the provisions thereof shall be deemed to be void or ever to have become void on the ground that such Act, regulation or provision is inconsistent with or takes away or abridges any of the rights conferred by any provision of Part III of the Constitution. The one thing significant to be noted in this connection, however, is that the power under Article 31B of exclusion of judicial review, which might be undertaken for the purpose of finding whether there has been contravention of any provision of Part III, is exercised not by the legislature enacting the impugned law but by the authority which makes the Constitutional amendment under Article 368, viz., the prescribed majority in each House of Parliament. Such a power is exercised in respect of an existing statute of which the provisions can be scrutinized before it is placed in the Ninth Schedule. It is for the prescribed majority in each House to decide whether the particular statute should be placed in the Ninth Schedule, and if so, whether it should be placed there in its entirety or partly. As against that, the position under Article 31C is that though judicial review has been excluded by the authority making the Constitutional amendment, the law in respect of which the judicial review has been excluded is one yet to be passed by the legislatures.

Although the object for which such a law can be enacted has been specified in Article 31C, the power to decide as to whether the law enacted is for the attainment of that object has been vested not in the courts but in the very legislature which passes the law. The vice of Article 31C is that even if the law enacted is not for the object mentioned in Article 31C, the declaration made by the legislature precludes a party from showing that the law is not for that object and prevents a court from going into the question as to whether the law enacted is really for that object. The kind of limited judicial review which is permissible under Article 31A for the purpose of finding as to whether the law enacted is for the purpose mentioned in Article 31A has also been done away with under Article 31C. The effect of the declaration mentioned in Article 31C is to grant protection to the law enacted by a legislature from being challenged on grounds of contravention of Articles 14, 19 and 31 even though such a law can be shown in the court to have not been enacted for the objects mentioned in Article 31C. Our Constitution postulates Rule of Law in the sense of supremacy of the Constitution and the laws as opposed to arbitrariness. The vesting of power of exclusion of judicial review in a legislature, including State legislature, contemplated by Article 31C, in my opinion strikes at the basis structure of the Constitution. The second part of Article 31C thus goes beyond the permissible limit of what constitutes amendment under Article 368.

1591. It has been argued on behalf of the respondents that the declaration referred to in Article 31C would not preclude the court from finding whether a law is for giving effect to the policy of the State towards securing the principles specified in Clauses (b) and (c) of Article 39 and that if an enactment is found by the court to be not for securing the aforesaid objectives, the protection of Article 31C would not be available for such legislation.

1592. I find it difficult to accede to this contention in view of the language of Article 31C pertaining to the declaration. The above contention would have certainly carried weight if the second part of the article relating to the declaration were not there. In the absence of the declaration in question, it would be open to, and indeed necessary, for the court to find whether the impugned law is for giving effect to the policy of the State towards securing the principles specified in Clauses (b) or (c) of Article 39 before it can uphold the validity of the impugned law under Article 31C. Once, however, a law contains such a declaration, the declaration would stand as bar and it would not be permissible for the court to find whether the impugned law is for giving effect to the policy mentioned in Article 31C. Article 31C protects the law giving effect to the policy of the State towards securing the principles specified in Clauses (b) or (c) of Article 39 and at the same time provides that 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. It is, therefore, manifest that once a law contains the requisite declaration, the court would be precluded from going into the question that the law does not give effect to the policy of the State towards securing the principles specified in Clauses (b) or (c) of Article 39. In view of the conclusive nature of the declaration, it would, in my opinion, be straining the language of Article 31C to hold that a court can despite the requisite declaration go into the question that it does not give effect to the policy of the State towards securing the principles specified in Clauses (b) or (c) of Article 39. The result is that if a law contains the declaration contemplated by Article 31C, it would have complete protection from being challenged on the ground of being violative of Articles 14, 19 and 31 of the Constitution, irrespective of the fact whether the law is or is not for giving effect to the policy of the State towards securing the principles specified in Clauses (b) or (c) of Article 39. To put it in other words, even those laws which do not give effect to the policy of the State towards securing the principles specified in Clauses (b) or (c) of Article 39 would also have the protection if they contain the declaration mentioned in Article 31C.

1593. I am also of the view that the validity of the latter part of Article 31C relating to declaration cannot be decided on the basis of any concession made during the course of arguments on behalf of the respondents. Such a concession if not warranted by the language of the impugned provision, cannot be of much avail. Matters relating to construction of an article of the Constitution or the Constitutional validity of an impugned provision have to be decided in the light of the relevant provisions and a concession made by the State counsel or the opposite counsel would not absolve the court from determining the matter independently of the concession. A counsel may sometimes make a concession in order to secure favourable verdict on an other important point, such a concession would, however, not be binding upon another counsel. It is well-settled that admission or concession made on a point of law by the counsel is not binding upon the party represented by the counsel, far less would such admission or concession preclude other parties from showing that the concession was erroneous and not justified in law. It may, therefore, be laid down as a broad proposition that Constitutional matters cannot be disposed of in terms of agreement or compromise between the parties, nor can the decision in such disputes in order to be binding upon others be based upon a concession even though the concession emanates from the State counsel. The concession has to be made good and justified in the light of the relevant provisions.

1594. The position as it emerges is that it is open to the authority amending the Constitution to exclude judicial review regarding the validity of an existing statute. It is likewise open to the said authority to exclude judicial review regarding the validity of a staute which might be enacted by the legislature in future in respect of a specified subject.

In such an event, judicial review is not excluded for finding whether the statute has been enacted in respect of the spcified subject Both the above types of Constitutional amendments are permissible under Article 368. What is not permissible, however, is a third type of Constitutional amendment, according to which the amending authority not merely excludes judicial review regarding the validity of a statute which might be enacted by the legislature in future in respect of a specified subject but also excludes judicial review for finding whether the statute enacted by the legislature is in respect of the subject for which judicial review has been excluded.

1595. In exercising the power of judicial review, it may be mentioned that the courts do not and cannot go into the question of wisdom behind a legislative measure. The policy decisions have essential to be those of the legislatures. It is for the legislatures to decide as to what laws they should enact and bring on the statute book. The task of the courts is to interpret the laws and to adjudicate about their validity, they neither approve nor disapprove legislative policy. The office of the courts is to ascertain and declare whether the impugned legislation is in consonance with or in violation of the provisions of the Constitution. Once the courts have done that, their duty ends. The courts do not act as super legislature to suppress what they deem to be unwise legislation for if they were to do so the courts will divert criticism from the legislative door where it belongs and will thus dilute the responsibility of the elected representatives of the people. As was observed by Shri Alladi Krishnaswamy Iyer in speech in the Constituent Assembly on September 12, 1949 “The Legislature may act wisely or unwisely. The principles formulated by the Legislature may commend themselves to a Court or they may not. The province of the Court is normally to administer the law as enacted by the Legislature within the limits of its power”.

1596. In exercising the power of judicial review, the courts cannot be oblivious of the practical needs of the government. The door has to be left open for trial and error.

Constitutional law like other mortal contrivances has to take some chances. Opportunity must be allowed for vindicating reasonable belief by experience. Judicial review is not intended to create what is sometimes called Judicial Oligarchy, the the Aristrocracy of the Robe, Covert Legislation, or Judge-made law. The proper forum to fight for the wise use of the legislative authority is that of public opinion and legislative assemblies. Such contest cannot be transferred to the judicial arena. That all Constitutional interpretations have political consequences should not obliterate the fact that the decision has to be arrived at in the calm and dispassionate atmosphere of the court room, that judges in order to give legitimacy to their decision have to keep aloof from the din and controversy of politics and that the fluctuating fortunes of rival political parties can have for them only academic interest. Their primary duty is to uphold the Constitution and the laws without fear or favour and in doing so, they cannot allow any political ideology or economic theory, which may have caught their fancy, to colour the decision. The sobering reflection has always to be there that the Constitution is meant not merely for people of their way of thinking but for people of fundamentally differing views. As observed by Justice Holmes while dealing with the Fourteenth Amendment to the US Constitution:

The Fourteenth Amendment does not enact Mr. Herbert Spencer’s Social Statics…. Some of these laws embody convictions or prejudices which judges are likely to share. Some may not But a Constitution is not intended to embody a particular economic theory, whether of paternalism and the organic relation of the citizen to the State or of laissez faire. It is made for people of fundamentally differing views, and the accident of our finding certain opinions natural and familiar or novel and even shocking ought not to conclude our judgment upon the question whether statutes embodying them conflict with the Constitution of the United States. (see Mr. Justice Holmes, p. 82-83 (1931 Edition).

It would also be pertinent in this context to reproduce the words of Patanjali Sastri C.J. in the case of State of Madras v. V.G. Row [1952] INSC 19; [1952] S.C.R. 597 while dealing with reasonable restrictions:

In evaluating such elusive factors and forming their own conception of what is reasonable, in all the circumstances of a given case, it is inevitable that the social philosophy and the scale of values of the judges participating in the decision should play an important part, and the limit to their interference with legislative judgment in such cases can only be dictated by their sense of responsibility and self-restraint and the sobering reflection that the Constitution is meant not only for people of their way of thinking but for all, and that the majority of the elected representatives of the people have, in authorising the imposition of the restrictions, considered them to be reasonable.

1597. In my opinion, the second part of Article 31C is liable to be quashed on the following grounds:

(1) It gives a carte blanche to the Legislature to make any law violative of Articles 14, 19 and 31 and make it immune from attack by inserting the requisite declaration. Article 31C taken along with its second part gives in effect the power to the Legislature, including a State Legislature, to amend the Constitution.

(2) The legislature has been made the final authority to decide as to whether the law made by it is for the objects mentioned in Article 31C.

The vice of second part of Article 31C lies in the fact that even if the law enacted is not for the object mentioned in Article 31C, the declaration made by the Legislature precludes a party from showing that the law is not for that object and prevents a court from going into the question as to whether the law enacted is really for that object. The exclusion by the Legislature, including a State Legislature, of even that limited judicial review strikes at the basic structure of the Constitution. The second part of Article 31C goes beyond the permissible limit of what constitutes amendment under Article 368.

The second part of Article 31C can be severed from the remaining part of Article 31C and its invalidity would not affect the validity of the remaining part. I would, therefore, strike down the following words in Article 31C:

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.

1598. We may now deal with the Constitution (Twentyninth Amendment) Act. This Act, as mentioned earlier, inserted the Kerala Act 35 of 1969 and the Kerala Act 25 of 1971 as entries No. 65 and 66 in the Ninth Schedule to the Constitution. I have been able to find no infirmity in the Constitution (Twentyninth Amendment) Act. It may be mentioned that an argument was advanced before us that Articles 31B and 31A are linked together and that only those enactments can be placed in the Ninth Schedule as fall within the ambit of Article 31A. Such a contention was advanced in the case of N.B. Jeejeebhoy v. Assistant Collector, Thana Prant, Thana [1964] INSC 213; [1965] 1 S.C.R. 636. Repelling the contention Subba Rao J. (as he then was) speaking for the Constitution Bench of this Court observed:

The learned Attorney-General contended that Articles 31-A and Article 31-B should be read together and that if so read Article 31-B would only illustrate cases that would otherwise fall under Article 31-A and, therefore, the same construction as put upon Article 31-B should also apply to Article 31-A of the Constitution. This construction was sought to be based upon the opening words of Article 31-B, namely, ‘without prejudice to the generality of the provisions contained in Article 31-A. We find it difficult to accept this argument. The words ‘without prejudice to the generality of the provisions’, indicate that the Acts and regulations specified in the Ninth Schedule would have the immunity even if they did not attract Article 31-A of the Constitution. If every Act in the Ninth Schedule would be covered by Article 31-A, this article would become redundant. Indeed, some of the Acts mentioned therein, 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 31-A(2) of the Constitution. We, therefore, hold that Article 31-B is not governed by Article 31-A and that Article 31-B is a Constitutional device to place the specified statutes beyond any attack on the ground that they infringe Part III of the Constitution.

I see no cogent ground to take a different view. In the result I uphold the validity of the Constitution (Twentyninth Amendment) Act.

1599. I may now sum up my conclusions relating to power of amendment under Article 368 of the Constitution as it existed before the amendment made by the Constitution (Twentyfourth Amendment) Act as well as about the validity of the Constitution (Twentyfourth Amendment) Act, the Constitution (Twentyfifth Amendment) Act and the Constitution (Twentyninth Amendment) Act:

(i) Article 368 contains not only the procedure for the amendment of the Constitution but also confers the power of amending the Constitution.

(ii) Entry 97 in List I of the Seventh Schedule of the Constitution does not cover the subject of amendment of the Constitution.

(iii) The word “law” in Article 13(2) does not include amendment of the Constitution. It has reference to ordinary piece of legislation. It would also in view of the definition contained in Clause (a) of Article 13(3) include an ordinance, order, bye-law, rule, regulation, notification, custom or usage having in the territory of India the force of law.

(iv) Provision for amendment of the Constitution is made with a view to overcome the difficulties which may be encountered in future in the working of the Constitution. No generation has a monopoly of wisdom nor has it a right to place fetters on future generations to mould the machinery of governments. If no provision were made for amendment of the Constitution, the people would have recourse to extra-Constitutional method like revolution to change the Constitution.

(v) Argument that Parliament can enact legislation under entry 97 List I of Seventh Schedule for convening a Constituent Assembly or holding a referendum for the purpose of amendment of Part III of the Constitution so as to take away or abridge fundamental rights is untenable. There is no warrant for the proposition that as the amendments under Article 368 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.

(vi) The possibility that power of amendment may be abused furnishes no ground for denial of its existence. The best safeguard against abuse of power is public opinion and the good sense of the majority of the members of Parliament, It is also not correct to assume that if Parliament is held entitled to amend Part III of the Constitution, it would automatically and necessarily result in abrogation of all fundamental rights.

(vii) The power of amendment under Article 368 does not include power to abrogate the Constitution nor does it include the power to alter the basic structure or framework of the Constitution. Subject to the retention of the basic structure or framework of the Constitution, the power of amendment is plenary and includes within itself the power to amend the various articles of the Constitution, including those relating to fundamental rights as well as those which may be said to relate to essential features. No part of a fundamental right can claim immuniy from amendatory process by being described as the essence or core of that right. The power of amendment would also include within itself the power to add, alter or repeal the various articles.

(viii) Right to property does not pertain to basic structure or framework of the Constitution.

(ix) There are no implied or inherent limitations on the power of amendment apart from those which inhere and are implicit in the word “amendment”. The said power can also be not restricted by reference to natural or human rights. Such rights in order to be enforceable in a court of law must become a part of the statute or the Constitution.

(x) Apart from the part of the Preamble which relates to the basic structure or framework of the Constitution, the Preamble does not restrict the power of amendment.

(xi) The Constitution (Twentyfourth Amendment) Act does not suffer from any infirmity and as such is valid.

(xii) The amendment made in Article 31 by the Constitution (Twentyfifth Amendment) Act is valid.

(xiii) The first part of Article 31C introduced by the Constitution (Twentyfifth Amendment) Act is valid. The said part is as under.

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

(xiv) The second part of Article 31C contains the seed of national disintegration and is invalid on the following two grounds:

(2) The legislature has been made the final authority to decide as to whether the law made by it is for objects mentioned in Article 31C. The vice of second part of Article 31C lies in the fact that even if the law enacted is not for the object mentioned in Article 31C, the declaration made by the Legislature precludes a party from showing that the law is not for that object and prevents a court from going into the question as to whether the law enacted is really for that object. The exclusion by Legislature, including a State Legislature, of even that limited judicial review strikes at the basic structure of the Constitution. The second part of Article 31C goes beyond the permissible limit of what constitutes amendment under Article 368.

The second part of Article 31C can be severed from the remaining part of Article 31C and its invalidity would not affect the validity of remaining part 1 would, therefore, strike down the following words in Article 31C:

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.

(xv) The Constitution (Twentyninth Amendment) Act does not suffer from any infirmity and as such is valid.

1600. The petition shall now be posted for hearing before the Constitution Bench for disposal in the light of our findings.

K.K. Mathew, J.

1601. In the cases before us, the Constitution of our country, in its most vital parts has to be considered and an opinion expressed which may essentially influence the destiny of the country. It is difficult to approach the question without a deep sense of its importance and of the awesome responsibility involved in its resolution.

1602. I entertain little doubt that in important cases it is desirable for the future development of the law that there should be plurality of opinions even if the conclusion reached is the same. There are dangers in there being only one opinion. “Then the statements in it have tended to be treated as definitions and it is not the function of a Court to frame definitions. Some latitude should be left for future developments. The true ratio of a decision generally appears more clearly from a comparison of two or more statements in different words which are intended to supplement each other” see Lord Reid in Gallie v. Lee, [1970] 3 W.L.R. 1078. In Cassell and Co. Ltd. v. Brome and Anr.

[1972] UKHL 3; [1972] 1 All E.R. 801, 821, Lord Chancellor Lord Hailsham said that Lord Devlin’s statement of the law in Rookes v. Barnard [1964] UKHL 1; [1964] 1 All E.R. 367 has been misunderstood particulary by his critics and that the view of the House of Lords has suffered to some extent from the fact that its reasons were given in a single speech and that whatever might be the advantages of a judgment delivered by one voice, the result may be an unduly fundamentalist approach to the actual language employed. In Graves v. New York [1939] USSC 60; 306 U.S. 466. Frankfurter, J. in his concurring judgment, characterised the expression of individual opinions by the justices as a healthy practice rendered impossible only by the increasing volume of the business of the Court.

1603. As the arguments were addressed mainly in Writ Petition No. 135/1970, I will deal with it now. In this writ petition the petitioner challenged the validity of the Kerala Land Reforms Amendment Act, 1969, and the Kerala Land Reforms Amendment Act, 1971, for the reason that some of the provisions thereof violated Article 14, 19(1)(f), 25, 26 and 31 of the Constitution.

1604. During the pendency of the Writ Petition, the Amending Body under the Constitution passed three Constitutional amendments, namely, the Constitution 24th, 25th and 29th Amendment Acts.

1605. The 24th Amendment made certain changes in Article 368 to make it clear that the Parliament, in the exercise of its constituent power, has competence to amend by way of addition, variation or repeal, any of the provisions of the Constitution in accordance with the procedure laid down in the article and that Article 13(2) would not be a bar to any such amendment. By the 25th Amendment, the word ‘amount’ was substituted for the word ‘compensation’ in Clause (2) of Article 31. That was done in order to make it clear that the law for acquisition or requisition of the property need only fix an amount or lay down the principles for determining the amount and not the just equivalent in money of the market value of the property acquired or requisitioned. The Amendment also makes it clear that no such law shall be called in question in any Court on the ground that the whole or any part of such amount is to be given otherwise than in cash. The 29th Amendment put the two Acts in question, viz., the Kerala Land Reforms (Amendment) Act, 1969, and the Kerala Land Reforms (Amendment) Act, 1971, in the Ninth Schedule with a view to make the provisions thereof immune from attack on the ground that the Acts or the provisions thereof violate any of the Fundamental Rights.

1606. The petitioner challenges the validity of these Amendments.

1607. As the validity of the 25th and the 29th Amendments essentially depends upon the validity of the 24th Amendment, it is necessary to consider and decide that question first.

I, therefore, torn to the circumstances which necessitated the Constitutional 24th Amendment Act.

1608. The Constitution (First Amendment) Act, 1951, was passed by Parliament on June 18, 1951. Sections 2, 3 and 4 of the Act made amendments in some of the articles in Part III of the Constitution. The validity of the Amendment was challenged before this Court in Sankari Prasad v. The Union of India [1951] INSC 45; [1952] S.C.R. 89, and one of the questions which fell for decision was whether, in view of Clause 2 of Article 13, Parliament had power to amend the Fundamental Rights in such a way as to take away or abridge them. And the argument was that the word “State” in Clause 2 of Article 13 includes Parliament and the word ‘law’ would take in an amendment of the Constitution and, therefore, Parliament had no power to pass a law amending the Constitution in such a way as to take away or abridge the Fundamental Rights. Patanjali Sastri, J. who delivered the judgment of the Court said that although the word ‘law’ would ordinarily include Constitutional law, there is a distinction between ordinary law made in the exercise of legislative power and Constitutional law made in the exercise of constituent power and that in the context of Clause 2 of Article 13, the word ‘law’ would not include an amendment of the Constitution.

1609. This decision was followed in Sajjan Singh v. State of Rajasthan [1965] 1 S.C.R.

933. There, Gajendragadkar, C.J., speaking for himself and two of his colleagues, substantially agreed with the reasoning of Patanjali Sastri, J. in Sankari Prasad v. The Union of India [1951] INSC 45; [1952] S.C.R. 89. Hidayatullah and Mudholkar, JJ. expressed certain doubts as to whether Fundamental Rights could be abridged or taken away by amendment of the Constitution under Article 368.

1610. The question again came up before this Court in Golaknath v. State of Punjab [1967] INSC 45; [1967] 2 S.C.R. 762, hereinafter called ‘Golaknath Case’ where the validity of the 17th Amendment was challenged on much the same grounds. The majority constituting the Bench decided that Parliament has no power to amend the Fundamental Rights in such a way as to take away or abridge them, but that the 1st, 4th and 17th Amendments were valid for all time on the basis of the doctrine of prospective overruling and that the Acts impugned in the case were protected by the Amendments.

1611. The reasoning of the leading majority (Subba Rao, C.J., and the colleagues who concurred in the judgment pronounced by him) was that Article 368, as it stood then, did not confer the substantive power to amend the provisions of the Constitution but only prescribed the procedure for the same that the substantive power to amend is in Articles 245, 246 and 248 read with entry 97 of List I of the Seventh Schedule, that there is no distinction between a law amending the Constitution and an ordinary law passed in the exercise of the legislative power of Parliament and that the word law’ in Clause 2 of Article 13 would include an amendment of the Constitution.

1612. Hidayatullah, J. who wrote a separate judgment concurring with the conclusion of the leading majority, however, took the view that Article 368 conferred the substantive power to amend the Constitution but that Fundamental Rights cannot be amended under the article so as to take away or abridge them. He said that there is no distinction between Constitutional law and ordinary law, that both are laws that the Constitution limited the powers of the Government but not the sovereignty of the State, that the State can, in the exercise of its supremacy, put a limit on its supremacy, echoing in effect the view that there could be ‘auto-limitation’ by a sovereign of his own supreme power and that, by Clause 2 of Article 13, the State and all its agencies, including the Amending Body, were prohibited from making any law, including a law amending the Constitution, in such a way as to take away or abridge the Fundamental Rights.

1613. Let me first take up the question whether Article 368 as it stood before the 24th Amendment gave power to Parliament to amend the rights conferred by Part III in such a way as to take away or abridge them.

1614. In Golaknath Case [1967] INSC 45; [1967] 2 S.C.R. 762, Hidayatullah, J. said that it is difficult to take a narrow view of the word ‘amendment’ as including only minor changes within the general framework, that by an amendment, new matter may be added, old matter removed or altered, and that except two dozen articles in Part III, all the provisions of the Constitution could be amended. Wanchoo, J. speaking for the leading minority in that case was of the view that the word ‘amendment’ in its setting in the article was of the widest amplitude and that any provision of the Constitution could be amended. Bachawat, J. was also inclined to give the widest meaning to the word. Ramswami, J. did not specifically advert to the point, but it seems clear from the tenor of his judgment that he was also of the same view.

1615. Mr. Palkhivala for the petitioner contended that the word ‘amendment’ in the article could only mean a change with a view to make improvement; that in the context, the term connoted only power to make such changes as were consistent with the nature and purpose of the Constitution, that the basic structure and essential features of the Constitution cannot be changed by amendment, and that the assumption made by these judges that the word ‘amendment’ in the article was wide enough to make any change by way of alteration, addition or repeal of any of the provisions of the Constitution was unwarranted. He said that the article was silent as regards the subject matter in respect of which amendments could be made or the extent and the width thereof, that it was set in a low key as it did not contain the words “amend by way of addition, variation or repeal”, that these circumstances should make one pause before ascribing to the word ‘amendment’ its widest meaning and that, in the context, the word has only a limited meaning.

1616. I do not think that there is any substance in this contention.

1617. In the Oxford English Dictionary, the meanings of the word ‘amend’ are given as:

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.

According to “Standard Dictionary”, Funk and Wagnalls (1894), the meanings of ‘amendment’ are:

The act of changing a fundamental law, as of 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.

1618. The proviso to Article 368 used the expression ‘change’ and that could indicate that the term ‘amend’ really means ‘change’. The main part of Article 368 thus gave power to amend or to make changes in the Constitution. Normally, a change is made with the object of making an improvement; at any rate, that is the professed object with which an amendment is sought to be made. The fact that the object may not be achieved is beside the point. Amendment contains in it an element of euphemism of conceit in the proposer, an assumption that the proposal is an improvement. Beyond this euphemistic things, amendment as applied to alteration of laws according to dictionaries means ‘alter’ or ‘change’ see McGovney, “Is the Eighteenth Amendment Void Because of its Contents?”

Columbia Law Review, Vol. 20.

1619. In the National Prohibition Cases Rhode Island v. Palmer [1920] USSC 144; 253 U.S. 350, it was argued before the United States Supreme Court that an amendment under Article V of the United States Constitution 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 features but this argument was overruled.

1620. In Rvan’s Case The State (At the Prosecution of Jeremiah Ryan and Ors. v. Captain Michael Lennon and Ors. (1935) Irish Reports 173 the Supreme Court of Ireland held by a majority that the word ‘amendment’ occurring in Article 50 of the Irish Constitution was of the widest amplitude. Fitz Gibbon, J. observed after reading the various meanings of the word ‘amendment’ that the word as it occurred in a Constitution Act must be given its widest meaning. Murnaghan, J. observed that although complete abolition of the Constitution without any substituted provisions might not properly be called in law an ‘amendment’, the word is wide enough to allow of the repeal of any number of articles of the Constitution, however important they might be. Kennedy, C.J. did not specifically deal with the meaning of the word.

1621. In this context it is relevant to keep in mind the general rules of construction for interpreting a word like ‘amendment’ occurring in a constituent Act like the Constitution of India.

1622. In In Re the Central Provinces and Berar Sales of Motor Spirit and Lubricants Taxation Act, 1938, etc (1939) F.C.R. 18. Sir Maurice Gwyer said that a broad and liberal spirit should inspire those whose duty it is to interpret a Constitution, that a Court should avoid a narrow and pedantic approach and that when a power is granted without any restriction, it can be qualified only by some express provision or by scheme of the instrument.

1623. The basic principles of construction were definitively enunciated by the Privy Council in The Queen v. Burah (1878) 3 A.C. 889, 904-905 and those principles were accepted and applied by Earl Loreburn in Attorney General for Ontario v. Attorney General for Canada (1912) A.C. 572 at 583 Lord Selborne said in the former case that the question whether the prescribed limits of a power have been exceeded has to be decided by looking to the terms of the instrument by which, affirmatively, the power was created, and by which, negatively, it is restricted and that if what has been done is within the general scope of the affirmative words which give the power, and if it violates no express condition of 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. In other words, in interpreting a Constitution, as Lord Loreburn said in the latter case, if the text is explicit, the text is conclusive alike in what it directs and what it prohibits.

1624. I should think that in such matters everything turns upon the spirit in which a judge approaches the question before him. The words must construe are, generally speaking, mere vessels in which he can pour nearly anything he will. “Men do not gather figs of thistles, nor supply institutions from judges whose outlook is limited by parish or class.

They must be aware that there are before them more than Verbal problems; more than final solutions cast in generalisations in every society which make it an organism; which demand new schemata of adaptation; which will disrupt it, if rigidly confined” See the passage of Learned Hand quoted in “Cases and Materials on the Legal Process” by F.K.H. Maher and Ors., 2nd ed., p. 498. An this is why President Roosevelt said that the judges of the Supreme Court must be not only great justices, but they must be great constructive :statesmen See the passage quoted by Frederic R. Coudert in 13 Yale Law Journal, p. 338.

1625. Therefore, although the word ‘amendment’ has a variety of meanings, we have to ascribe to it in the article a meaning which is appropriate to the function to be played by it in an instrument apparently intended to endure for ages to come and to meet the various crises to which the body politic will be subject. The nature of that instrument demands awareness of certain presupposition. The Constitution has no doubt its roots in the past but was designed primarily for the unknown future. The reach of this consideration was indicated by Justice Holmes in language that remains fresh no matter how often repeated : Missouri v. Holland [1920] USSC 87; 252 U.S. 416, 433 …when we are dealing with words that also are a constituent act, like the Constitution of the United States, we must realize that they have called into life a being the development of which could not have been foreseen completely by the most gifted of its begetters….

1626. Every well drawn Constitution will therefore provide for its own amendment in such a way as to forestall as is humanly possible, all revolutionary upheavals See Carl J.

Friedrich, “Constitutional Government and Democracy”, p. 135. That the Constitution is a framework of great governmental power to be exercised for great public ends in the future, is not a pale intellectual concept but a dynamic idea which must dominate in any consideration of the width of the amending power. No existing Constitution has reached its final form and shape and become, as it were a fixed thing incapable of further growth.

Human societies keep changing; needs emerge, first vaguely felt and unexpressed, imperceptibly gathering strength, steadily becoming more and more exigent, generating a force which, if left unheeded and denied response so as to satisfy the impulse behind it, may burst forth with an intensity that exacts more than reasonable satisfaction See Felik Frankfurter, “Of Law and Men”, p. 35. As Wilson said, a living Constitution must be Darwinian in structure and practice See Constitutional Government in the United States, p. 25. The Constitution of a nation is the outward and visible manifestation of the life of the people and it must respond to the deep pulsation for change within. “A Constitution is an experiment as all life is an experiment.” See Justice Holmes in Abrams v. United States [1919] USSC 206; 250 U.S. 616. If the experiment fails, there must be provision for making another.

Jefferson said that there is nothing sanctimonious about a Constitution and that nobody should regard it as the ark of the covenant, too sacred to be touched. Nor need we ascribe to men of preceding age, a wisdom more than human and suppose that what they did should be beyond amendment. A Constitution is not end in itself, rather a means for ordering the life of a nation. The generation of yesterday might not know the needs of today, and, ‘if yesterday is not to paralyse today’, it seems best to permit each generation to take care of itself. The sentiment expressed by Jefferson in this behalf was echoed by Dr. Ambedkar Constitution Assembly Debates, Vol. X, pp. 296-297. If there is one sure conclusion which I can draw from this speech of Dr. Ambedkar, it is this : He could not have conceived of any limitation upon the amending power. How could he have said that what Jefferson said is “not merely true, but absolutely true”, unless he subscribed to the view of Jefferson that “each generation 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 inhabitants of another country”, and its corrollary which follows as ‘the night the day’ that each generation should have the power to determine the structure of the Constitution under which they live. And how could this be done unless the power of amendment is plenary, for it would be absurd to think that Dr. Ambedkar contemplated a revolution in every generation for changing the Constitution to suit its needs and aspirations. I should have thought that if there is any implied limitation upon any power, that limitation is that the amending body should not limit power of amendment of the future generation by exercising its power to amend the amending power. Mr. Palkhivala said that if the power of amendment of the amending power is plenary, one generation can, by exercising that power, take away the power of amendment of the Constitution from the future generations and foreclose them from ever exercising it. I think the argument is too speculative to be countenanced. It is just like the argument that if men and women are given the freedom to choose their vocations in life, they would all jump into a monastery or a nunnery, as the case may be, and prevent the birth of a new generation; or the argument of some political thinkers that if freedom of speech is allowed to those who do not believe in it, they would themselves deny it to others when they get power and, therefore, they should be denied that freedom today, in order that they might not deny it to others tomorrow.

1627. Seeing, therefore, that it is a “Constitution that we are expounding” and that the Constitution-makers had before them several Constitutions where the word ‘amendment’ or ‘alteration’ is used to denote plenary power to change the fundamentals of the Constitution, I cannot approach the construction of the word ‘amendment’ in Article 368 in niggardly or petty fogging spirit and give it a narrow meaning; but “being a familiar expression, it was used in its familiar legal sense” See Justice Holmes in Henry v. United States 251 U.S. 293, 295.

1628. However, Mr. Palkhivala contended that there are provisions in the Constitution which would militate against giving the word ‘amendment’ a wide meaning in the article and he referred to the wording in Schedule V, para 7(1) and Schedule VI, para 21(1).

These paragraphs use along with the word ‘amend’, the expression “by way of addition, variation or repeal”. Counsel said that these words were chosen to indicate the plenitude of the power of amendment and that this is in sharp contrast with the wording of Article 368 where only the word ‘amendment’ was used. But Schedule V, para 7(2) and Schedule VI, para 21(2) themselves indicate that, but for these provisions, an amendment of the schedule by way of addition, variation or repeal would be an amendment of the Constitution under Article 368. In other words, the sub-paragraphs show clearly that the expression “amend by way of addition, variation or repeal” in para 7(1) of Schedule V and para 21(1) of Schedule VI has the same content as the word ‘amendment’ in Article 368.

1629. Reliance was also placed by counsel on Section 291 of the Government of India Act, 1935, as amended by the Third Amendment Act 1949, which provided that “such amendments as he considers necessary whether by way of addition, modification or repeal in the Act”. No inference can be drawn from the use of these words as to the meaning to be assigned to the word ‘amendment’ in Article 368 or its width as it is well known that draftsmen use different words to indicate the same idea for the purpose of elegance or what is called “the graces of style” or their wish to avoid the same word, or sometimes by the circumstance that the Act has been compiled from different sources and sometimes by alteration and addition from various hands which the Acts undergo in their progress in Parliament See Maxwell on the Interpretation of Statutes, 12th ed., p. 286.

1630. It was submitted that if the word ‘amendment’ is given an unlimited amplitude, the entire Constitution could be abrogated or repealed and that certainly could not have been the intention of the makers of the Constitution. The question whether the power of amendment contained in Article 368 as it stood before the amendment went to the extent of completely abrogating the Constitution and substituting it by an entirely new one in its place is not beyond doubt I think that the power to amend under that article included the power to add any provision to the Constitution, to alter any provision, substitute any other provision in its place and to delete any provision. But when the article said that, on the bill for the amendment of the Constitution receiving the President’s assent, “the Constitution shall stand amended”, it seems to be fairly clear that a simple repeal or abrogation of the Constitution without substituting anything in the place of the repealed Constitution would be beyond the scope of the amending power, for, if a Constitution were simply repealed, it would not stand amended. An amendment which brings about a radical change in the Constitution like introducing presidential system of government for cabinet system, or, a monachy for a republic, would not be an abrogation or repeal of the Constitution. However radical the change might be, after the amendment, there must exist a system by which the State is constituted or organised. As already stated, a simple repeal or abrogation without more, would be contrary to the terms of Article 368 because it would violate the Constitutional provision that “the Constitution shall stand amended”.

1631. Even if the word ‘amendment’ in Article 368 as it stood originally was wide enough to empower the amending body to amend any of the provisions of the Constitution, it was submitted by the petitioner, that Article 13(2) was a bar to the amendment of the Fundamental Rights by Parliament in such a way as to take away or abridge them:

13(2) The State snail 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.

In this context it is necessary to understand the basic distinction between a flexible and a rigid Constitution to appreciate the argument that an amendment of the Constitution is ‘law’ within the purview of the sub-article.

1632. The outstanding characteristic of a flexible Constitution like the British Constitution as contrasted with a rigid one like ours is the unlimited authority of the Parliament to which it applies, to pass any law without any restriction. In rigid Constitution, there is a limitation upon the power of the legislature by something outside itself. There is a greater law than the law of the ordinary legislature and that is the law of the Constitution which is of superior obligation unknown to a flexible Constitution. It does not follow that because a Constitution is written, it is therefore rigid. There can be a written Constitution which is flexible. “The stole criterion of a rigid Constitution is whether the constituent assembly which drew up the Constitution left any special direction as to how it was to be changed See generally C.F. Strong, Modern Political Constitutions (1963). pp. 152-153”. If a special procedure is prescribed by the Constitution for amending it, different from the procedure for passing ordinary law, then the Constitution is rigid.

1633. It is said that Articles 4 and 169, paragraph 7 of the Fifth Schedule and paragraph 21 of the Sixth Schedule show that amendment of the Constitution can be made by the ordinary law-making procedure. These provisions themselves show that the amendment so effected shall not be deemed to be amendment for the purpose of Article 368. This is because the procedure prescribed by them is different from the procedure laid down in Article 368.

1634. Mr. Palkhivala did not contend that the power to amend is located in Articles 245, 246 and 248 read with entry 97 of List I of the Seventh Schedule. He only submitted that it is immaterial whether the power is located in Articles 245, 246 and 248 read with entry 97 of List I of the Seventh Schedule or in Article 368, I do not think that there could be any doubt that Article 368 as it stood before the 24th Amendment contained not only the procedure but also the substantive power of amendment. As the article laid down a procedure different from the procedure for passing ordinary laws, our Constitution is a rigid one and the power to amend a constituent power.

1635. The vital distinction between Constitutional law and ordinary law in a rigid Constitution lies in the criterion of the validity of the ordinary law. An ordinary law, when questioned, must be justified by reference to the higher law embodied in the Constitution; but in the case of a Constitution, its validity is, generally speaking, inherent and lies within itself. Kelsen has said, the basic norm (the Constitution) is not created in a legal procedure by a law-creating organ. It is not-as a positive legal norm is-valid because it is created in a certain way by a legal act, but it is valid because it is presupposed to be valid; and it is presupposed to be valid because, without this presupposition, no human act could be interpreted legal, especially as a norm-creating act. In other words, the validity of the Constitution generally lies in the social fact of its being accepted by the community and for the reason that its norms have become efficacious. Its validity is meta-legal See Hans Kelsen, “General Theory of Law and State”, p. 116.

1636. Whether the observations of Kelsen would apply to our Constitution would depend upon the answer to the question whether the legal source of the Constitution should be traced to the Indian Independence Act, 1947, or, whether the Constitution was the result of the exercise of the revolutionary constituent power of the people.

1637. It does not follow from what has been said that there are no basic rules in a flexible Constitution like that of Great Britain. The principle of the English Constitution, namely, that the Court will enforce Acts of Parliament is not derived from any principle of common law, but is itself an ultimate principle of English Constitutional Law See H.W.R. Wade, “The Basis of Legal Sovereignty”, (1955) (Cam-bridge Law, Journal, 172.

1638. Once it is realised that a Constitution differs from law in that a Constitution is always valid whereas a law is valid only if it is in conformity with the Constitution and that the body which makes the Constitution is a sovereign body and generally needs no legal authority whereas a body which makes the ordinary law is rot sovereign, but derives its power from the Constitution, an amendment to the Constitution has the same validity as the Constitution itself, although the question whether the amendment has been made in the manner and form and within the power conferred by the Constitution is always justiciable. Just as an ordinary law derives its validity from its conformity with the Constitution, so also, an amendment of the Constitution derives its validity from the Constitution. An amendment of the Constitution can be ultra vires just as an ordinary law can be.

1639. When a legislative body is also the sovereign Constitution-making body, naturally the distinction between Constitution and an ordinary law becomes conceptual and, in fact, disappears as that body has both the constituent power of the sovereign as well as legislative power. The British Constitution under which the distinction between the sovereign and the ordinary legislature is eclipsed due to the theory of the sovereignty of the British Parliament, is certainly not the ideal Constitution to choose for appreciating the distinction between Constitutional law and ordinary law under our polity. Sir Ivor Jennings said that there is no clear distinction between Constitutional law and ordinary law in England and that the only fundamental law there is that parliament is supreme See Jennings, “The Law and the Constitution” (1933). p. 614. Strictly speaking, therefore, there is no Constitutional law at all in Britain; there is only arbitrary power of parliament.

1640. It is said that The Bill of Rights (1689), Act of Settlement (1701), etc., partake the character of Constitutional law and there is no reason to exclude that type of law from the ambit of the word ‘law’ in Clause (2) of Article 13.

1641. In a flexible Constitution like the British Constitution the only dividing line between Constitutional law and ordinary law is that Constitutional law deals with a particular subject matter, namely, the distribution of the sovereign power among the various organs of the State and other allied matters; but in India, as I have said, that distribution may not be quite relevant. For our purpose, the only relevant factor to be looked into is whether a provision is embodied in the Constitution of India. Any provision, whether it relates strictly to the distribution of sovereign power among the various organs of the State or not, if it is validly embodied in the document known as “The Constitution of India”, would be a law relating to the Constitution. In other words, irrespective of the subject matter, the moment a provision becomes validly embodied in the Constitution, it acquires a validity of its own which is beyond challenge and the question whether it relates to Constitutional law with, reference to the subject matter is wholly irrelevant. “Where a written Constitution exists, it is approximately true to say that the Constitution itself provides such a supreme norm…even so, the Constitution may not be altogether identified with the supreme norm; for there may be rules for its interpretation which judges accept as binding but which are not prescribed in the Constitution. Effectively, therefore, it is the traditional judicial interpretation of the Constitution that is the supreme norm” See Stanley I. Benn, “The Use of Sovereignty”, in the book “In Defence of Sovereignty”, edited by W.J. Stankiewicz, 67, 70. For, as Bishop Hoadley said in his sermon “Whoever hath absolute authority to interpret any written or spoken laws, it is he who is the law-giver to all indents and purposes and not the person who first wrote or spoke them” See Gry, Nature and Sources of the Law, 102, 125, 172 (2nd ed.) (1921).

1642. As I said, for the purpose of Article 13(2), the only relevant question is whether an amendment of the Constitution is ‘law’. Since both an amendment of the Constitution and an ordinary law derive their validity from the Constitution, the criterion that an ordinary law can be tested for its validity on the touchstone of the Constitution must equally apply to an amendment of the Constitution. Therefore, by and large, the only distinction between a law amending the Constitution and an ordinary law in a rigid Constitution is that an amendment of the Constitution has always to be made in the manner and form specially prescribed by the Constitution.

1643. Mr. Palkhivala contended that when Article 13(1) and 372 speak of “laws in force”

in the territory of India immediately before the commencement of the Constitution, the expression would take in also all Constitutional law existing in the territory of India immediately before the coming into force of the Constitution, and therefore, the word ‘law’ in Clause (2) of Article 13 must also include Constitutional law. Assuming that the expression “laws in force” in Article 13(1) and 372 is wide enough to include Constitutional law, the question is, what is the type of Constitutional law that would be included? So far as British India was concerned, Article 395 repealed the Indian Independence Act, 1947, and the Government of India Act, 1935, together with all enactments amending and supplementing the latter Act. I am not sure whether there were any Orders passed under the Government of India Act which could be called Constitutional law. That apart, I doubt whether the Government of India Act, 1935, and the Indian Independence Act, 1947, were Constitutional laws in the sense of their being the supreme law of the land like the Constitution of India, for, both of them could have been repealed by the legal sovereign, namely, the British Parliament. And the reason why their provisions could not have been challenged in a Court of Law was not that they were the supreme law of the land but because they were laws in conformity with the supreme law, namely, the will of the British Parliament. As regards the native States, the fact that the Courts therein could not have challenged the validity of the provisions of a Constitution promulgated by an absolute monarch would not show that those provisions could be equated with the provisions of the Constitution of India. A Constitution established by an absolute monarch will be enforced by the Court of the State, not because the Constitution is the supreme law of the State but because it is a law in conformity with the supreme law, namely, the supreme will of the monarch which alone is the supreme law, unless, as Alf Ross said, the Constitution was granted by the monarch with the intention that it should not be revocable Alf Ross, “On Law and Justice”, p. 82.

Therefore, those Constitutional laws cannot be characterised as Constitutional laws in the sense in which we speak of the Constitution of India, for, such of the provisions of those Constitutions in the native States existing before the commencement of the Constitution of India which contravened the provisions of Part III became void (Article 13(1)) and others which continued, continued subject to the provisions of the Constitution (Article 372). In other words, for the purpose of Article 13(2), what is relevant is whether the word ‘law’ there, is comprehensive enough to take in Constitutional law in the sense of a law embodied in a Constitution which is the supreme law of the land and from which all other laws derive their validity. The Constitutional laws in force in the territory of India immediately before the commencement of the Constitution did not have the status of Constitutional law in the sense of a law which is supreme. Were it otherwise, none of them would have been void under Article 13(1) and none of them subject to the provisions of the Constitution under Article 372.

1644. It seems to me to he clear that the word ‘law’ in Article 13(2), in the context, could only mean an ordinary law. When Article 13 (2) said that the State shall not make any ‘law’ the meaning of the expression ‘law’ has to be gathered from the context. Though, analytically, it might be possible to say that the word ‘law’ would include an amendment of the Constitution also, from the context it would be clear that it only meant ordinary law. A word by itself is not crystal clear. It is the context that gives it the colour. In the setting of Article 13(2), what was prohibited that the Parliament shall not pass a law in pursuance of its powers under Chapter I of Part XI or any other provisions enabling it to pass laws, which were legislative in character. The Constitution-makers only wanted to provide against the more common invasion of Fundamental Rights by ordinary legislation.

1645. If the power to amend was to be found within Article 368 and not under Article 248 read with entry 97 of List I of the Seventh Schedule, it stands to reason to hold that constituent power for amend ment of the Constitution is distinct from legislative power.

The leading majority in the Golaknath Case [1967] INSC 45; [1967] 2 S.C.R. 762 took pains to locate the power to amend in Article 248 read with entry 97 of List I of the Seventh Schedule to show that the Constitution can be amended by an ordinary law and that such a law would be within the purview of Article 13(2). But if the power to amend the Constitution is a legislative power and is located in the residuary entry (97 of List I of the Seventh Schedule), then any law amending the Constitution by virtue of that power, can be passed only “subject to the provisions of the Constitution” as mentioned in Article 245. A power of amendment by ordinary law “subject to the provisions of the Constitution” seems to me a logical contradiction; for, how can you amend the provisions of the Constitution by an ordinary law which can be passed only subject to the provisions of the Constitution? 1646. It would be strange that when a whole chapter has been devoted to the “Amendment of the Constitution” and when the question of amendment loomed large in the mind of the Constitution-makers that, even if the power to amend the Constitution was thought to be legislative in character, it was not put as a specific entry in List I but relegated to the residuary entry ! And, considering the legislative history of the residuary entry, it is impossible to locate the power of amendment in that entry. The legislative power of Parliament under entry 97 of List I of the Seventh Schedule is exclusive and the power to amend cannot be located in that entry because, in respect of the matters covered by the proviso to Article 368, Parliament has no exclusive power to amend the Constitution.

1647. That apart, the power to amend a rigid Constitution, not being an ordinary legislative power but a constituent one, it would be strange that the Constitution-makers put it sub-silentio in the residuary legislative entry.

1648. Article 368 was clear that when the procedure prescribed by the article was followed, what resulted was an amendment of the Constitution. The article prescribed a procedure different from the legislative procedure prescribed in Articles 107 to 111 read with Article 100. Article 100 runs as follows : “Save as otherwise provided in this Constitution all questions at any sitting of either House or joint sitting of the Houses shall be determined by a majority of votes of the members present and voting….” Certain types of amendment, as is clear from Article 368, also require to be ratified. The first part of Article 368 required that a bill must be passed in each House (1) by a majority of the total membership of that House and (2) by a majority of not less than two-thirds of the members of that House present and voting. These provisions rule out a joint sitting of both the Houses under Article 108 to resolve disagreement between the two Houses.

Again, the majority required to pass a bill in each House is not a majority of the members of that House present and voting but a majority of the total membership of each House and a majority of not less than two-thirds of the members of that House present and voting. As regards matters covered by the proviso, there is a radical departure from the legislative procedure prescribed for Parliament by Articles 107 to 111. Whereas in ordinary legislative matters Parliament’s power to enact laws is not dependent on the State legislatures, in matters covered by the proviso to Article 368, even if the two Houses pass a bill by the requisite majorities, the bill cannot be presented to the President for his assent unless she bill has been ratified by resolutions to that effect passed by the legislatures of not less than half the number of States.

1649. Subba Rao, C.J., in his judgment in Golaknath case [1967] INSC 45; (1967) 2 S.C.R. 762 relied on McCawley v. The King (1920) A.C. 691 and The Bribery Commissioner v. Ped-rick Ranasinghe [1964] UKPC 1; (1964) 2 W.L.R. 1301; (1965) A.C. 172 to show that the power to amend the Constitution was a legislative power. In McCawley’s Case, Lord Birkenhead said that it is of the utmost importance to notice that where the Constitution is uncontrolled the consequences of its freedom admit of no qualification whatever and that it would be an elementary common place that in the eye of the law the legislative document or documents which defined it occupied precisely the same position as the Dog Act or any other Act, however humble its subject matter and that the so called Constitutional law (I call them so called because it is Constitutional law only with reference to the subject matter, not with reference to its superior character) will stand amended by the Dog Act, if it is in any way repugnant to the legislative document or documents.

1650. In Ranasinghe’s case, the question for determination before the Privy Council was whether the statutory provision for the appointment of members of the panel of the Bribery Tribunal, otherwise than by the Judicial Service Commission, violated Section 55 of the Constitution Order and, if so, whether that provision was void. Sections 18 and 29 of the Order provide as follows:

Section 18 : Save as otherwise provided in Sub-section (4) of Section 29 any question proposed’ for decision by either Chamber shall be determined by a majority of votes or the Senators or Members, as the case may be, present and voting. The President or Speaker or other person presiding shall not vote in the first instance but shall have and exercise a casting vote in the event of an equality of votes.

Section 29: (1) Subject to the provisions of this Order, Parliament shall have power to make laws for the peace, order and good government of the Island. (2) No such law shall-(a) prohibit or restrict the free exercise of any religion; or (b) make persons of any community or religion liable to disabilities or restrictions to which persons of other communities or religions are not made liable; or (c) confer on persons of any community or religion any privilege or advantage which is not conferred on persons of other communities or religions: or (d) alter the Constitution of any religious body except with the consent of the governing authority of that body : Provided that, in any case where a religious body is incorporated by law, no such alteration shall be made except at the request of the governing authority of that body. (3) Any law made in contravention of Sub-section (2) of this section shall, to the extent of such contravention, be void. (4) In the exercise of its powers under this section, Parliament may amend or repeal any of the provisions of this Order, or of any other Order of His Majesty in Council in its application to the Island : Provided that no Bill for the amendment or repeal of any of the provisions of this Order shall be presented to the Royal Assent unless it has endorsed on it a certificate under the hand of the speaker that the number of votes cast in favour thereof in the House of Representatives amounted to not less than two-thirds of the whole number of members of the House (including those not present). Every certificate of the Speaker under this sub-section shall be conclusive for all purpose and shall not be questioned in any court of law.

The appellant contended that whereas Section 29(3) expressly provided that a law which contravened Section 29(2) was void, there was no such provision for the violation of Section 29(4) which was merely procedural and that as Ceylon was a sovereign State, and had the power to amend the Constitution, any law passed by the legislature was valid even if it contravened the Constitution, and McCawley’s case was cited as supporting this contention. But the Privy Council said that the law impugned in McCawley’s case was not required to be passed by a special procedure, but in the present case the law which contravened Section 55 could only be passed as required by Section 29(4) for the amendment of the Constitution and as it was not so passed, it was ultra vires and void.

It is not possible to draw the inference which Subba Rao, C.J. drew from these two cases.

There is a distinction between a general power to legislate and a power to legislate by special legislative procedure and the results of the exercise of the two powers are different. In McCawley’s case it was observed that if a legislature has full power to make a law which conflicted with the Constitution, the law was valid since it must be treated as a pro-tanto amendment of the Constitution which was neither fundamental in the sense of being beyond change nor so constructed as to require any special legislative process to pass upon the topic dealt with, and an ordinary law in conflict with the Constitution must, in such a case be treated as an implied alteration of the Constitution. In Ranasinghe’s Case, the Privy Council said that where even an express power of a legislature to alter can be exercised only by laws which comply with the “Special legislative procedure laid down in the Constitution”, such a legislature has no general power to legislate for the amendment of the Constitution, and a law passed in the exercise of such general power is void if the law contravenes the Constitution. And, where a legislative power is “subject to the provisions of the Constitution”, any exercise of it in contravention of such provisions renders it invalid and ultra-vires: As already stated, in a controlled Constitution which confers general legislative power subject to the provisions of the Constitution and provides a special procedure for amendment of the Constitution, law passed in the exercise of the general legislative power and conflicting with the Constitution must be void because the Constitution can be amended only by special procedure. In a Constitution which confers general legislative power including a power to amend the Constitution, the Constitution is uncontrolled and is not a fundamental document by which the laws made under it are to be tested, for, any law contrary to the Constitution impliedly alters it. The result is that no law passed under an uncontrolled Constitution is ultra vires See Seervai “Constitutional Law”, Vol. 2, pp. 1102-1103; also Dr. Wynes “Legislative, Executive and Judicial Powers in Australia”, footnote at p. 508.

1651. The Substance of the decision in Ranasinghe’s Case is that though Ceylon Parliament has plenary power of ordinary legislation, in the exercise of its Constitution power it was subject to the special procedure laid down in Section 29(4). The decision, therefore, makes a clear distinction between legislative and constituent powers.

1652. It was contended that the amending power can be a legislative power as in Canada and, therefore, there was nothing wrong in the leading majority in Golaknath Case [1967] INSC 45; [1967] 2 S.C.R. 762, locating the power of amendment in the residuary entry.

1653. Section 91(1) of the British North America Act provides for a restricted power of amendment of the Constitution. This power, undoubtedly, is a legislative power and the Constitution, therefore, to that extent is an uncontrolled or a flexible one. There is no analogy between the power of amendment in Canada which is legislative in character and the power of amendment under Article 368 which is a constituent power. As I indicated, even if there was an entry for amending the Constitution in List I of the Seventh Schedule, that would not have enabled the Parliament to make any amendment of the Constitution because the opening words of Article 245 “subject to the provisions of this Constitution” would have presented an insuperable bar to amend any provision of the Constitution by the exercise of legislative power under the Constitution. Under a controlled Constitution like ours, the power to amend cannot be a legislative power; it can only be a constituent power. Were it otherwise, the Constitution would cease to be a controlled one.

1654. It was submitted that if Fundamental Rights were intended to be amended by the Constitution-makers in such a way as to abridge or take them away, considering the paramount importance of these rights, the procedure required by the proviso to Article 368 would, at any rate, have been made mandatory and that not being so, the intention of the Constitution-makers was that the Fundamental Rights should not be amended in such a way as to abridge or take them away. This argument overlooks the purpose of the proviso. The proviso was mainly intended to safeguard the rights and powers of the States in their juristic character as persons in a federation. The purpose of the proviso was that the rights, powers and privileges of the States or their status as States should not be taken away or impaired without their participation to some extent in the amending process. Fundamental Rights are rights of individuals or minorities, and they are represented in Parliament. The States, as States, are not particularly affected by amendment of Fundamental Rights. As Wheare said, 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 powers of the general and regional governments, should not be confided exclusively either to the general governments or to the regional governments Wheare, “Federal Government”, 4th ed., p. 55.

1655. The Constitution (First Amendment) Act amended the Fundamental Rights under Articles 15 and 19 in such a way as to abridge them. The speech of Pandit Jawaharlal Nehru in moving the amendment and those of others who were responsible for drafting the Constitution make it clear that they never entertained any doubt as to the amendability of the Fundamental Rights in such a way as to abridge them. Strong opponents of the amendments like S.P. Mukherjee, never made even the whisper of a suggestion in their speeches that Fundamental Rights were not amendable in such a way as to abridge them.

Contemporaneous practical exposition is a valuable aid to the meaning of a provision of the Constitution or a statute See McPherson v. Blacker, 146 U.S.I., 27.

1656. Mr. Palkhivala also relied upon the speech of Dr. Ambedkar made on September 17, 1949, in the Constituent Assembly to show that Fundamental Rights could not be taken away or abridged by an amendment of the Constitution.

1657. The question whether speeches made in the Constituent Assembly are admissible to ascertain the purpose behind a provision of the Constitution is not free from doubt. In A.K. Gopalan v. The State of Madras [1950] INSC 14; (1950) S.C.R. 88 Kania, C.J. said that while it is not proper to take into consideration the individual opinions of members of Parliament or Convention to construe the meaning of a particular clause when a question is raised whether a certain phrase or expression was up for consideration at all or not, a reference to the debates may be permitted. In the same case, Patanjali Sastri, J. said that in construing the provisions of an Act, speeches made in the course of the debates on a bill could at best be indicative of the subjective intent of the speaker but they could not reflect the inarticulate mental process lying behind the majority vote which carried the bill.

Mukherjea, J. said that in construing a provision in the Constitution it is better to leave out of account the debates in the Constituent Assembly, but a higher value may be placed on the report of the Drafting Committee. In State of Travancore-Cochin and Ors. v. The Bombay Co. Ltd., etc. [1952] INSC 42; (1952) S.C.R. 1112 Patanjali Sastri, C.J. delivering the judgment of the Court said that speeches made by the members of the Constituent Assembly in the course of the debates on the draft Constitution cannot be used as aids for interpreting the Constitution. In Golaknath Case [1967] INSC 45; [1967] 2 S.C.R. 762, 791 Subba Rao, C.J. referred to the speech of Pandit Jawaharlal Nehru made on April 30, 1947, in proposing the adoption of the interim report on Fundamental Rights and that of Dr. Ambedkar made on September 18, 1949, on the amendment proposed by Mr. Kamath to Article 304 of the draft Constitution (present Article 368) and observed that the speeches were referred to, not for interpreting the provisions of Article 368 but to show the transcendental character of Fundamental Rights. I am not clear whether the speech of Dr. Ambedkar throws any light on the transcendental character of Fundamental Rights. That speech, if it is useful for any purpose, is useful only to show that Fundamental Rights cannot be amended. In the Privy Purse Case Madhav Rao v. Union of India [1971] 3 S.C.R. 983 Shah, J. referred to the speech of Sardar Vallabhbhai Patel for understanding the purpose of Article 291 of the Constitution. Speeches made by members of the Constituent Assembly were quoted in profusion in the Union of India v. Harbhajan Singh Dhillon 2 S.C.C. 779 both in the majority as well as in the minority judgments. In the majority judgment it was said that they were glad to find that the construction placed by them on the scope of entry 91 in the draft Constitution corresponding to the present entry 97 of List I of the Seventh Schedule agreed with the view expressed in the speeches referred to by them. The minority referred to the speeches made by various members to show that their construction was the correct one. Cooley said : “When a question of Federal Constitutional law is involved, the purpose of the Constitution, and the object to be accomplished by any particular grant of power, are often most important guides in reaching the real intent; and the debates in the Constitutional Convention, the discussions in the Federalist, and in the conventions of the States, are often referred to as throwing important light on clauses in the Constitution which seem blind or of ambiguous import” See Cooley on Constitutional Law, 4th ed.

(1931), pp. 195-196. Julius Stone, the Australian jurist, has expressed the opinion that in principle the Court should be free to inform itself concerning the social context of the problems involved from all reliable sources and that it is difficult to see in principle why British courts should exclude rigidly all recourse to the debates attending the legislative process. He asked the question on what basis is it explicable that lawyers can regard with equanimity cases in which judges may pronounce ex-cathedra that so and so clearly could not have been in the legislators’ minds when the parliamentary debates ready at hand might show that that was precisely what was in their minds See Julius Stone, “Legal System and Lawyer’s Reasoning”, p. 351; See also H.C.L. Merillat, “The Sound Proof Room : A Matter of Interpretation” (1967) 9, Journal of the Indian Law Institute, p. 521.

1658. Logically, there is no reason why we should exclude altogether the speeches made in the Constituent Assembly by individual members if they throw any light which will resolve latent ambiguity in a provision of the Constitution. Chief Justice Marshall struck at the core of the matter when he said : United States v. Fisher, [1805] USSC 18; 2 Cranch 358, 386 U.S.

1805 Where the mind labours to discover the design of the legislature, it seizes everything from which aid can be derived.

If the purpose of construction is the ascertainment of meaning, nothing that is logically relevant should, as a matter of theory, be excluded. The rigidity of English Courts in interpreting language merely by reading it, disregards the fact that enactments are, as it were, organisms which exist in their environment. It is, of course, difficult to say that judges who profess to exclude from their consideration all extrinsic sources are confined psychologically as they purport to be legally. A judge who deems himself limited to reading the provisions of the Constitution without an awareness of the history of their adoption in it would be taking a mechanical view of the task of construction See Frankfurter “On reading the statute” in “Of Law and Men”, p. 64.

1659. If the debates in the Constituent Assembly can be looked into to understand the legislative history of a provision of the Constitution including its derivation, that is, the various steps leading up to and attending its enactment, to ascertain the intention of the makers of the Constitution, it is difficult to see why the debates are inadmissible to throw light on the purpose and general intent of the provision. After all, legislative history only tends to reveal the legislative purpose in enacting the provision and thereby sheds light upon legislative intent. It would be drawing an invisible distinction if resort to debates is permitted simply to show the legislative history and the same is not allowed to show the legislative intent in case of latent ambiguity in the provision. Mr. W. Anderson said :

“The nearer men can get to knowing what was intended the better. Indeed the search for intention is justified as a search for the meanings that the framers had in mind for the words used. But it is a search that must be undertaken in humility and with an awareness of its great difficulties” See “The Intention of the Framers” : A Note on the Constitutional Interpretation, American Political Science Review, Vol. XLIX, June, 1955. That awarness must make one scrutinize the solemnity of the occasion on which the speech was made, the purpose for which it was made, the preparation and care with which it was made and the reputation and scholarship of the person who made it. A painstaking detailed speech bearing directly on the immediate question might be given the weight of an “encyclical” and would settle the matter one way or the other; but a loose statement made impromptu in the heat of the debate will not be given a decisive role in decision making process. I should have thought that if there was a definitive pronouncement from a person like Dr. Ambedkar in the Constituent Assembly, that would have thrown considerable light upon the matter in controversy. In the speech relied on by counsel Dr.

Ambedkar is reported to have said Constituent Assembly Debates, Vol. IX, p. 1661:

We divide the articles of the Constitution under three categories. The first category is the one which consists of articles which can be amended by Parliament by a bare majority. The second set of articles are articles which require two-thirds majority. 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. Then they can amend it.

Mr. President : Of Members present.

Yes. 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”.

There is scope for doubt whether the speech has been correctly reported. That apart, from the speech as reported, it would seem that according to Dr. Ambedkar, an amendment of the articles mentioned in Part III and Article 368 requires two-thirds majority plus ratification by the States. He seems to have assumed that the provisions of Part III would also fall within the proviso to Article 368 but he never said that Part III was not amendable. That it was his view that all the articles could be amended is clear from his other speeches in the Constituent Assembly. He said on November 4, 1948 Constituent Assembly Debates, Vol. VII, p. 43:

…It is only for amendments of specific matters-and they are only few, that the ratification of the State legislatures is required. All other articles of the Constitution are left to be amended by Parliament. The only limitation is that it shall be done by a majority of not less than two-thirds of the members of each House present and voting and a majority of the total membership of each House….

Dr. Ambedkar, speaking on draft Article 25 (present Article 32) on December 9, 1948, stressed its importance in the following words Constituent Assembly Debates, Vol. VII, p. 953:

If I was asked to name any particular article in this Constitution as the most important-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 realized its importance.

1660. But having said that, he proceeded:

…The Constitution has invested the Supreme Court with these rights and these writs could not be taken away unless and until the Constitution itself is amended by means left open to the Legislature (emphasis added).

On November 25, 1949, Dr. Ambedkar refuted the suggestion that Fundamental Rights should be absolute and unalterable. He said after referring to the view of the Jefferson already referred to, that the Assembly has not only refrained from putting a seal of finality and infallibility upon the Constitution by denying to the people the right to amend the Constitution as in Canada or by making the amendment of the Constitution subject to the fulfilment of extraordinary terms and conditions as in America or Australia but has provided a most facile procedure for amending the Constitution Constituent Assembly Debates, Vol. XI, pp. 975-976.

1661. It is difficult to understand why the Constitution-makers did not specifically provide for an exception in Article 368 if they wanted that the Fundamental Rights should not be amended in such a way as to take away or abridge them. Article 304 of the draft Constitution corresponds to Article 368 of the Constitution. Article 305 of the draft Constitution provided:

Article 305 : Reservation of seats for minorities to remain in force for only ten years unless continued in operation by amendment of the Constitution Notwithstanding anything contained in Article 304 of the 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.

If it had been the intention of the Drafting Committee to exclude Fundamental Rights from the purview of the constituent power intended to be conferred by Article 304, following the analogy of Article 305, it could have made an appropriate provision in respect of the said rights.

1662. In A.K. Gopalan v. State of Madras [1950] INSC 14; [1950] S.C.R. 88 Kania, C.J. said that Article 13 was inserted by way of abundant caution, that even if the article were absent, the result would have been the same. Mr. Palkhiwala submitted that the view of the learned Chief Justice was wrong, that Article 13 in the context of Article 368 before the 24th Amend ment, had a function to play in the scheme of the Constitution, namely, that it stated the authorities against which the inhibition in Article 13(2) operated, the categories of law to which the inhibition applied and the effect of a violation of the inhibition. Whether the latter part of Article 13(2) was enacted by way of abundant caution or not would depend upon the answer to the question whether the word ‘law’ in that article would include an amendment of the Constitution also. If the word ‘law’ would include amendment of the Constitution, it cannot be said that the latter part of the article was redundant. The dictum of Chief Justice Kania is helpful only to show his reading of the meaning of the word ‘law’ in the article. Had the learned Chief Justice read the word ‘law’ in the article as including an amendment of the Constitution also, he would certainly not have said that the article was redundant. Sir Ivor Jennings has taken the view that it was quite unnecessary to have enacted Article 13(2), as, even otherwise, under the general doctrine of ultra vires, any law which is repugnant to the provisions of the Constitution, would, to the extent of the repugnancy, become void and inoperative See Ivor Jennings, “Some Characteristics of the Indian Constitution”, pp. 38-39.

1663. However, I think that Article 13(2) was necessary for a different purpose, namely, to indicate the extent of the invasion of the fundamental right which would make the impugned law void. The word ‘abridge’ has a special connotation in the American Constitutional jurisprudence; and, it is only fair to assume that when the Constitution- makers who were fully aware of the language of the First Amendment to the United States Constitution, used that expression, they intended to adopt the meaning which that word had acquired there. Every limitation upon a fundamental right would not be an abridgement of it. Whether a specific law operates to abridge a specifically given fundamental right cannot be answered by any dogma, whether of a priori assumption or of mechanical jurisprudence. The Court must arrive at a value judgment as to what it is that is to be protected from abridgement, and then, it must make a further value judgment as to whether the law impugned really amounts to an abridgement of that right. A textual reading might not always be conclusive. A judge confronted with the question whether a particular law abridges a Fundamental Right must, in the exercise of the judicial function, advert, to the moral right embodied in the Fundamental Right and then come to the conclusion whether the law would abridge that right In this process, the Court will have to look to the Directive principles in Part IV to see what exactly is the content of the Fundamental Right and whether the law alleged to be in detraction or abridgement of the right is really so. The Court would generally be more astute to protect personal rights than property rights. In other words, Fundamental Rights relating to personal liberty or freedom would receive greater protection from the hands of the Court than property rights, as those rights come with a momentum lacking in the case of shifting economic arrangements. To put it differently, the type of restriction which would constitute abridgement might be different for personal rights and property rights as illustrated by the doctrine of preferred freedoms. However, it is unnecessary to pursue the matter further for the purpose of this case.

1664. Mr. Palkhivala contended that even if the word ‘amendment’ in Article 368 before it was amended is given its widest meaning and the word ‘law’ in Article 13(2) is assumed not to include an amendment of the Constitution there were and are certain inherent and implied limitations upon the power of amendment flowing from three basic features which must be present in the Constitution of every republic. According to counsel, these limitations flow from the fact that the ultimate legal sovereignty resides in the people;

that Parliament is a creature of the Constitution and not a constituent body and that the power to alter or destroy the essential features of the Constitution belongs only to the people, the ultimate legal sovereign. Counsel submitted that if Parliament has power to alter or destroy the essential features of the Constitution, it would cease to be a creature of the Constitution and would become its master; that no constituted body like the Amending Body can radically change the Constitution in such a way as to damage or destroy the basic Constitutional structure, as the basic structure was decided upon by the people, in the exercise of their constituent revolutionary power. Counsel also argued that it is Constitutionally impermissible for one constituent assembly to create a second perpetual constituent assembly above the nation with power to alter its essential features and that Fundamental Rights constitute an essential feature of the Constitution.

1665. The basic premise of counsel’s argument was that the ultimate legal sovereignty under the Constitution resides in the people. The preamble to the Constitution of India says that “We the people of India…adopt, enact and give unto ourselves this Constitution”. Every one knows that historically this is not a fact. The Constitution was framed by an assembly which was elected indirectly on a limited franchise and the assembly did not represent the vast majority of the people of the country. At best it could represent only 28.5 per cent of the adult population of the provinces, let alone the population of the Native States See Granville Austin, “The Indian Constitution” (1972), p. 10 and Appendix I, pp. 331-332, And who would dare maintain that they alone constituted the “people” of the country at the time of framing the Constitution? As to who are the people in a Country, see the Chapter “The People” in “Modern Democracies” by Bryce, Vol. 1, pp. 161-169 The Constituent Assembly derived its legal competence to frame the Constitution from Section 8(1) of the Indian Independence Act, 1947. The British Parliament, by virtue of its legal sovereignty over India, passed the said enactment and invested the Assembly with power to frame the Constitution. Whatever might be the Constitutional result flowing from the doctrine that sovereignty is inalienable and that the Indian Independence Act itself could have been repealed by Parliament, independence, once granted, cannot be revoked by an erstwhile sovereign; at any rate, such revocation will not be recognised by the Courts of the country to which independence was granted.

What makes a transfer of sovereignty binding is simply the possession on the part of the transferee of power and force sufficient to prevent the transferor from regaining it See V.

Willoughby, “Nature of state” (1896), p. 229; also ‘Dicey’s Law of the Constitution 5th ed, (1897), pp. 65n and 66n. The assertion by some of the makers of the Constitution that the Constitution proceeded from the people can only be taken as a rhetorical flourish, probably to lay its foundation on the more solid basis’ of popular will and to give it an unquestioned supremacy, for, ever since the days of Justinian, it was thought that the ultimate legislative power including the power to frame a Constitution resides in the people, and, therefore, any law or Constitution must mediately or immediately proceed from them. “It is customary nowadays to ascribe the legality as well as the supremacy of the Constitution-the one is, in truth, but the obverse of the other-exclusively to the fact that, in its own phraseology, it was ‘ordained’ by ‘the people of the United States’. Two ideas are thus brought into play. One is the so-called ‘positive’ conception of law as a general expression merely for the particular commands of a human law-giver, as a series of acts of human will; the other is that the highest possible embodiment of human will, is ‘the people’. The same two ideas occur in conjunction in the oft-quoted next of Justinian’s Institutes : “Whatever has pleased the prince has the force of law, since the Roman people by the lex regia enacted concerning his imperium have yielded up to him all their power and authority. The sole difference between the Constitution of the United States and the imperial legislation justified in this famous text is that the former is assumed to have proceeded immediately from the people, while the latter proceeded from a like source only mediately” See Edward Gorwin, ‘The Higher Law’ Background of American Constitutional Law”, pp. 3-4.

1666. It is said that the assertion in the preamble that it was the people who enacted the Constitution raises an incontravertible presumption and a Court is precluded from finding out the truth. There is a similar preamble to the Constitution of the U.S.A. Yet, when Chief Justice Marshall was called upon to decide the question whether that Constitution proceeded from the people, he did not seek shelter under the preamble by asserting that the Court is concluded by the recital therein, but took pains to demonstrate by referring to historical facts that the Constitution was ratified by the people in the State conventions and, therefore, in form and substance, it proceeded from the people themselves See McCulloch v. Maryland, [1819] USSC 5; 4 Wheaton 316 (1819). It does not follow that because the people of India did not frame the Constitution or ratified it the Constitution has no legal validity. The validity of a Constitution is one thing; the source from which it proceeds is a different one. Apart from its legal validity derived from the Indian Independence Act, its norms have become efficacious and a Court which is a creature of the Constitution will not entertain a plea of its invalidity. If the legal source for the validity of the Constitution is not that it was framed by the people, the amending provision has to be construed on its own language, without reference to any extraneous consideration as to whether the people did or did not delegate all their constituent power to the Amending Body or that the people reserved to themselves the Fundamental Rights.

1667. Let me, however, indulge in the legal fiction and assume, as the preamble has done, that it was the people who framed the Constitution. What follows? Could it be said that, after the Constitution was framed, the people still retain and can exercise their sovereign constituent power to amend or modify the basic structure or the essential features of the Constitution by virtue of their legal sovereignty? 1668. According to Austin, a person or body is said to have legal sovereignty, when he or it has unlimited law-making power and that there is no person or body superior to him or it. Perhaps, it would be correct to say that the possession of unlimited law-making power is the criterion of legal sovereignty in a State, for, it is difficult to see how there can be any superior to a person or group that can make laws on all subjects since that person or group would pass a law abolishing the powers of the supposed superior. The location of sovereignty in a quasi-federal Constitution like ours is a most difficult task for any lawyer and I shall not attempt it. Many writers take the view that sovereignty in the Austinian sense does not exist in any State See W.J. Ress, “Theory of Sovereignty Re-stated” in the book “In Defense of Sovereignty” by W.J. Stankiewicz, p. 209 and that, at any rate, in a Federal State, the concept of sovereignty in that sense is incapable of being applied See Salmond’s Jurisprudence, 7th ed., p. 531. This Court has said in State of West Bengal v.

Union of India [1964] 1 S.C.R. 371, 396-398 that the “legal theory on which the Constitution was based was the withdrawal or resumption of all the powers of sovereignty into the people of this country” and that the”…Legal sovereignty of the Indian nation is vested in the people of India, who, as stated by the preamble, have solemnly resolved to constitute India into a Sovereign Democratic Republic….” I am not quite sure of the validity of the assumption implicit in this dictum. The Supreme Court: of U.S.A.

has held that sovereignty vests in the people See Chisholm v. Georgia [1793] USSC 2; (1973) 2 Dallas 419, 470-471. The same view has been taken by writers like Jameson, Willis, Wilson and others, But it is difficult to understand how the unorganised mass of the people can legally be sovereign. In no country, except perhaps in a direct democracy, can the people en masse be called legally sovereign. This is only to put more explicitly what Austin meant when he said that political power must be in a determinate person or body of persons, for, the people at, large, the whole people, as distinct horn particular person or persons, are incapable of concerted action and hence, of exercising political power and therefore of legal supremacy See “From John Austin to John C. Hurd” by Irving B.

Richman in “Harward Law Review, Vol. 14, p. 364. “When the purported sovereign is anyone but a single actual person, the designation of him must include the statement of rules for the ascertainment of his will, and these rules, since their observance is a condition of the validity of his legislation, are Rules of law logically prior to him…. It is not impossible to ascertain the will of an individual without the aid of rules: he may be presumed to mean what he says, and he cannot say more than one thing at a time. But the extraction of a precise expression of will from a multiplicity of human beings is, despite all the realists say, an artificial process and one which cannot be accomplished without arbitrary rules. It is, therefore, an incomplete statement to say that in a state such and such an assembly of human beings is sovereign. It can only be sovereign when acting in a certain way prescribed by law. At least some rudimentary manner and form is demanded of it : the simultaneous incoherent cry of a rabble, small or large, cannot be law, for it is unintelligible” See Latham, “What is an Act of Parliament” (1939) King’s Counsel, p.

152. While it is true that the sovereign cannot act otherwise than in compliance with law, it is equally true that it creates the law in accordance with which it is to act See Orfield, “The Amending of the Federal Constitution”, p. 155. And what is the provision in the Constitution or the law for the people to act as legal sovereign or as regards the manner and form when they act as legal sovereign? 1669. The supremacy enjoyed by the Constitution has led some to think that the document must be regarded as sovereign. They talk about the government of laws and not of men; but sovereignty, by definition, must be vested in a person or body of persons.

The Constitution itself is incapable of action. Willoughby has said that sovereignty of the people, popular sovereignty and national sovereignty cannot accurately be held to mean that, under an established government, the sovereignty remains in the people. It may mean, however, that the Constitutional jurisprudence of the State to which it is applied is predicated upon the principle that no political or individual or organ of the government is to be regarded as the source whence, by delegation, all other public powers are derived, but that, upon the contrary, all legal authority finds its original source in the whole citizen body or in an electorate representing the governed See Willoughby, “Fundamental Concepts of Public Law”, pp. 99-100. Probably, if sovereignty is dropped as a legal term and viewed as a term of political science, the view of the Supreme Court of the U.S.A.

and the writers who maintain that the people are sovereign might be correct. No concept has raised so many conflicting issues involving jurists and political theorists in so desperate a maze as the genuine and proper meaning of sovereignty.

1670. Seeing, however, that the people have no Constitutional or legal power assigned to them under the Constitution and that by virtue of their political supremacy they can unmake the Constitution only by a method not sanctioned by the juridical order, namely, revolution, it is difficult to agree with the proposition of counsel that the legal sovereignty under the Constitution resides in the people, or, that as ultimate legal sovereign the people can Constitutionally change the basic structure of the Constitution even when the Constitution provides for a specific mechanism for its amendment. In the last, analysis, perhape, it is right to say that if sovereignty is said to exist in any sense at all, it must exist in the Amending Body, for, as Willoughby has said : “In all those cases in which owing to the distribution of governing power there is doubt as to the political body in which sovereignty rests, the test to be applied is, the determination of which authority has, in the last instance the legal power to determine its own competence as well as that of Ors. Willoughby, “The Nature of the State” (1928), p. 197. In Germany, the publicists have developed a similar theory known as the “kompetenz kompetenz theory” See Merriam, “History of the Theory of Sovereignty since Rosseau” (1900), 190- 196.

1671. This, however, does not mean that the people have no right to frame the Constitution by which they would be governed. Of the people as well as the body politic, all that one can say is, not that they are sovereign, but that they have the natural right to full autonomy or to self-government. The people exercise this right when they establish a Constitution see Jacques Maritain, “Man and the State”, p. 25. And, under our Constitution, the people have delegated the power to amend the instrument which they created to the Amending Body.

1672. When a person holds a material good, it cannot be owned by another. He cannot give it to another without his losing possession of it and there can only be a question of transfer of ownership or a donation. But, when it is a question of a moral or spiritual quality such as a right or power, one can invest another with a right or power without losing possession of it, if that, man receives it in a vicarious manner, as a vicar of the man who transferred it. The people are possessed of their right to govern themselves in an inherent and permanent manner, their representatives are invested with power which exists in the people, but in a vicarious manner see Jacques Maritain, “Man and the State”, pp. 134-135.

1673. Delegation does not imply a parting with powers of one who grants the delegation but points rather to the conferring of an authority to do things which otherwise that person would have to do himself. It does not mean that the delegating person parts with the power in such a way as to denude himself of his rights See Huth v. Clarke (1890) 25 Q.B.D. 391, 395: also John Willis, “Delegates non potest delegare”, 21 Candian Bar Review, p. 257.

1674. I will assume that the people, by designating their representatives and by transmitting to them the power to amend the Constitution, did not lose or give up possession of their inherent, constituent power. (There was great controversy among the civilians in the Middle Ages whether, after the Roman people had Transferred their authority to legislate to the emperor, they still retained it or could reclaim it See Carlyle, “A History of Medieval Political Theory in the West” Vol. VI, pp. 514-515. There is always a distinction between the possession of a right or power and the exercise of it. It was in the exercise of the constituent power that the people framed the Constitution and invested the Amending Body with the power to amend the very instrument they created with a super-added power to amend that very power. The instrument they created, by necessary implication, limits the further exercise of the power by them, though not the possession of it. The Constitution, when it exists, is supreme over the people and as the people have voluntarily excluded themselves from any direct or immediate participation in the process of making amendment to it, and have directly placed that power in their representatives without reservation, it is difficult to understand how the people can juridically resume the power to continue to exercise it See Dodge v. Woolsey (1856) 18 How. 331, 348. It would be absurd to think that there can be two bodies for doing the same thing under the Constitution. It would be most incongruous to incorporate in the Constitution a provision for its amendment, if the constituent power to amend can also be exercised at the same time by the mass of the people, apart from the machinery provided for the amendment. In other words, the people having delegated the power of amendment, that power cannot be exercised in any way other than that perscribed nor by any instrumentality other than that designated for that purpose by the Constitution. There are many Constitutions which provide for active participation of the people in the mechanism for amendment either by way of initiative or referendum as in Switzerland, Australia and Eire. But, in our Constitution, there is no provision for any such popular device and the power of amendment is vested only in the Amending Body.

1675. It is said that “it is within the power of the people who made the Constitution to un- make it, that it is the creature of their own will and exists only by their will See Cohens v.

Virginia 6 Wheat [1821] USSC 18; (19 U.S.) 264, 381. This dictum has no direct relevancy on the question of the power of the people to amend the Constitution. It only echoes the philosophy of John Locke that people have the political right to revolution in certain circumstances and to frame a Constitution in the exercise of their revolutionary constituent power.

1676. When the French political philosophers said that the nation alone possesses the constituent power, and an authority set up by a Constitution created by the nation has no constituent power apart from a power to amend that instrument within the lines originally adopted by the people, what is meant is that the nation cannot part with the constituent power, but only the power to amend the Constitution within the original scheme of the Constitution in minor details. Some jurists refer to these two powers, namely, the “constituent power” and the “amending power” as distinct. According to Carl J. Friedrich, the constituent power is the power which seeks to establish a Constitution which, in the exact sense, is to be understood the de-jacto residuary power of a not inconsiderable part of the community to change or replace an established order by a new Constitution. The constituent power is the power exercised in establishing a Constitution, that is the fundamental decision on revolutionary measures for the organisation and limitation of a new government. From this constituent power must be distinguished the amending power which changes an existing Constitution in form provided by the Constitution itself, for the amending power is itself a constituted authority. And he further points out that in French Constitutional Law the expression pouvoir constituant is often used to describe the ‘amending authority’ as well as the constituent power, but the expression constituent power used by him is not identical with the pouvoir constituant of the French Constitutional Law See Carl J. Friedrich, “Constitutional Government and Politics”

(1937), pp. 113, 118, 162 & 521. It is, however, unnecessary to enter this arid tract of what Lincoln called ‘pernicious abstraction’ where no green things grow, or resolve the metaphysical niceties, for under our Constitution, there is no scope for the constituent power of amendment being exercised by the people after they have delegated power of amendment to the Amending Body. To what purpose did that instrument give the Amending Body the power to amend the amending power itself, unless it be to confer plenary power upon the Amending Body to amend all or any of the provisions of the Constitution? It is no doubt true that some German thinkers, by way of protest against indiscriminate use of the amending power under the Weimar Constitution of Germany, asserted that the power of amendment is confined to alteration within the Constitutional text and that it cannot be used to change the basic structure of the Constitution. But, as I said, to say that a nation can still exercise unlimited consituent power after having framed a Constitution vesting plenary power of amendment under it in a separate body, is only to say that the people have the political power to change the existing order by means of a revolution. But this doctrine cannot be advanced to place implied limitations upon the amending power provided in a written Constitution.

1677. It is, therefore, only in a revolutionary sense that one can distinguish between constituent power and amending power. It is based on the assumption that the constituent power cannot be brought within the framework of the Constitution. “To be sure, the amending power is set up in the hope of anticipating a revolution by legal change and, therefore, as an additional restraint upon the existing government. But should the amending power fail to work, the constituent power may emerge at the critical point” See Carl J. Friedrich, “Constitutional Government and Democracy” (1950), p. 130. The proposition that an unlimited amending authority cannot make any basic change and that the basic change can be made only by a revolution is something extras legal that no Court can countenance it. In other words, speaking in conventional phraseology, the real sovereign, the hundred per cent sovereign-the people-can frame a Constitution, but that sovereign can come into existence thereafter unless otherwise provided, only by revolution. It exhausts itself by creation of minor and lesser sovereigns who can give any command. And, under the Indian Constitution, the original sovereign-the people-created, by the amending clause of the Constitution, a lesser sovereign, almost coextensive in power with itself. This sovereign, the one established by the revolutionary act of the full or complete sovereign has been called by Max Radin the “pro-sovereign”, the holder of the amending power under the Constitution. The hundred per cent sovereign is established only by revolution and he can come into being again only by another revolution See Max Radin, “Intermittent Sovereign”, 39 Yale Law Journal, 514. As Wheare clearly puts it, once the Constitution is enacted, even when it has been submitted to the people for approval, it binds thereafter, not only the institutions which it establishes, but also the people themselves. They may amend the Constitution, if at all, only by the method which the Constitution itself provides See Wheare, “Modern Constitutions” (1966), p. 62. This is illustrated also in the case of the sovereign power of the people to make laws. When once a Constitution is framed and the power of legislation which appertains to the people is transferred or delegated to an organ constituted under the Constitution, the people cannot thereafter exercise that power. “The legal assumption that sovereignty is ultimately vested in the people affords no legal basis, for the direct exercise by the people of any sovereign power, whose direct exercise by them has not been expressly or impliedly reserved. Thus the people possess the power of legislating directly only if their Constitution so provides” See Rottschaefer on Constitutional Law (1939), p. 8 1678. It is said that although the Constitution does not provide for participation of the people in the process of amendment, there is nothing in the Constitution which prohibits the passing of a law under the residuary entry 97 of List I of the Seventh Schedule for convoking a constituent assembly for ascertaining the will of the people in the matter of amendment of Fundamental Rights. Hoar says; “The whole people in their sovereign capacity, acting through the forms of law at a regular election, may do what they will with their own frame of government, even though that frame of government does not expressly permit such action, and even though the frame of government attempts to prohibit such action” Hoar “Constitutional Convention : Their Nature, Power and Limitations”, p. 115. Again, he says: “Thus we come back to the fact that all coventions are valid if called by the people speaking through the electorate at a regular election. This is true regardless of whether the Constitution attempts to prohibit or authorize them, or is merely silent on the subject Their validity rests not upon Constitutional provisions, nor upon legislative act, but upon the fundamental sovereignty of the people themselves”

Hoar, “Constitutional Convention : Their Nature, Power and Limitations”, p. 52. As to this I think the answer given by Willoughby is sufficient. He said: “The position has been quite consistently taken that Constitutional amendments or new Constitutions adopted in modes not provided for by the existing Constitutions cannot be recognized as legally valid unless they have received the formal approval of the old existing government. Thus, in the case of the State of Rhode Island, the old Constitution of which contained no provision for its own amendment, the President of the United States refused to recognize de jure a government established under a new Constitution which, without the approval of the old government, had been drawn up and adopted by a majority of the adult male citizens of that State. But, when, somewhat later, a new Constitution was adopted in accordance with provisions which the old government laid down and approved, it was, and has since been held a valid instrument both by the people of the State and by the National Government of the United States” Willoughby, “The Fundamental Concepts of Public Law”, p. 96.

1679. I think it might be open to the Amending Body to amend Article 368 itself and provide for referendum or any other method for ascertaining the will of the people in the matter of amendment of Fundamental Rights or any other provision of the Constitution. If the basic and essential features of the Constitution can be changed only by the people, and not by a constituted authority like the Amending Body, was it open to the Amending Body, or, would it be open to the Amending Body today to amend Article 368 in such a way as to invest the people with that power to be exercised by referendum or any other popular device ? If counsel for the petitioner is right in his submission that the power to amend the amending power is limited, this cannot be done, for the Constitution would lose its identity by making such a radical change in the Constitution of the Amending Body, and, therefore, there would be implied limitation upon the power to amend the amending power in such a way as to change the locus of the power to amend from the Amending Body as constituted to any other body including the people. The result is that ex-hypothesi, under Article 368 there was, or is, no power to amend the Fundamental Rights and the other essential or basic features in such a way as to destroy or damage their essence or core. Nor can the article be amended in such a way as to invest the people-the legal sovereign according to counsel for the petitioner-with power to do it.

This seems to me to be an impossible position.

1680. Counsel for the petitioner submitted that the preamble to the Constitution would operate as an implied limitation upon the power of amendment, that the preamble sets out the great objectives of the people in establishing the Constitution, that it envisages a sovereign democratic republic with justice, social, economic and political, liberty of thought, belief and expression, equality of status and opportunity and fraternity as its fulcrums and that no succeeding generation can amend the provisions of the Constitution in such a way as to radically alter or modify the basic features of that form of government or the great objectives of the people in establishing the Constitution. Counsel said that the preamble cannot be amended as preamble is not a part of the Constitution, and so, no amendment can be made in any provision of the Constitution which would destroy or damage the basic form of government or the great objectives. The proceedings in the Constitutent Assembly make it clear that the preamble was put to vote by a motion which stated that the “preamble stands part of the Constitution” and the motion was adopted See the proceedings of the Constituent Assembly dated October 17, 1949, Constituent Assembly Debates, Vol. X, p. 429. Article 394 of the Constitution would show that the preamble, being a part of the provisions of the Constitution, came into operation on the 26th of January, 1950, not having been explicitly stated in the article that it came into force earlier. And there seems to be no valid reason why the preamble, being a part of the Constitution, cannot be amended.

1681. A preamble, as Dr. Wynes said, represents, at the most only an intention which an Act seeks to effect” and it is a recital of a present intention See Wynes, “Legislative, Executive and Judicial Powers in Australia”, (4th ed., p. 506). In the Berubari Case [1960] 3 S.C.R. 250, 281-282 it was argued that the preamble to the Constitution clearly postulates that like the democratic republican form of government, the entire territory of India is beyond the reach of Parliament and cannot be affected either by ordinary legislation or even by Constitutional amendment, but the Court said: “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”. This case directly negatived any limitation of what is generally regarded as a necessary and essential attribute of sovereignty on the basis of the objectives enshrined in the preamble.

1682. Story’s view of the function of the preamble, that it 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 Act or a Constitution is not in dispute. There is also no dispute that a preamble cannot confer any power per se or enlarge the limit of any power expressly given nor can it be the source of implied power. Nor is it necessary to join issue on the proposition that in case of ambiguity of the enacting part, an unambiguous preamble may furnish aid to the interpretation of the enacting part.

1683. The broad concepts of justice, social, economic and political, equality and liberty thrown large upon the canvas of the preamble aseternal verities are mere moral adjurations with only that content which each generation must pour into them a new in the light of its own experience. “An independent judiciary cannot seek to fill them from its own bosom as, if it were to do so, in the end it will cease to be independent. “And its independence will be well lost, for that bosom is not ample enough for the hopes and fears of all sorts and conditions of men, nor will its answers be theirs. It must be content to stand aside from these fateful battles as to what these concepts mean and leave it to the representatives of the people. See Learned Hand, “The Spirit of Liberty”, p. 125.

1684. To Hans Kelsen, justice is an irrational ideal, and regarded from the point of rational cognition, he thinks there are only interests and hence conflict of interest. Their solution, according to him, can be brought about by an Order that satisfies one interest at the expense of the other or seeks to achieve a compromise between opposing interests See Kelsen, “General Theory of Law and State” (1946), p. 13. Allen said that the term “social justice” has no definite content that it means different things to different persons.

Allen, “Aspects of Justice”, p. 31. Of liberty, Abraham Lincoln said, that the world never has had a good definition of it. The concept of equality appears to many to be a myth and they say that if the concept is to have any meaning in social and economic sphere the State must discriminate in order to make men equal who are otherwise unequal. It does not follow that because these concepts have no definite contours. They do not exist, for, it is a perennial fallacy to think that because something cannot be cut and dried or nicely weighed or measured, therefore it does not exist See Lord Reid in Ridge v. Baldwin [1963] UKHL 2; (1964) A.C. 40, 64. But for a country struggling to build up a social order for freeing its teeming millions from the yoke of proverty and destitution, the preamble cannot afford any clue as to the priority value of these concepts inter se. Justice Johnson, with one of his flashes of insight, called the science of government “the science of experiment” See Anderson v. Dunn [1821] USSC 16; 6 Wheat 204, 206 U.S. 1821. And for making the experiment for building up the social order which the dominant opinion of the community desires, these Delphic concepts can offer no solution in respect of their priority value as among themselves. They offer no guide in what proportion should each of them contribute, or which of them should suffer subordination or enjoy dominance in that social order. How then can one of them operate as implied limitation upon the power of amendment when the object of the amendment is to give priority value to the other or others? 1685. Mr. Palkhivala in elaborating his submission on implied limitations said that in a Constitution like ours there are other essential features besides the Fundamental Rights, namely, the sovereignty and integrity of India, the people’s right to vote and elect their representatives to Parliament or State legislatures, the republican form of government, the secular State, free and independent judiciary, dual structure of the Union, separation of the executive, legislative and judicial powers, and so on, and for changing these essential features, the Parliament being a constituted authority, has no power.

1686. Whenever the question of implied limitation upon the power of amendment was raised in the U.S.A. the Supreme Court has not countenanced the contention, 1687. In Leser v. Garnett [1922] USSC 28; 258 U.S. 130 the U.S. Supreme Court upheld the validity of the 19th Amendment, rejecting the contention that the power of amendment conferred by the federal Constitution did not extend to that amendment because of its character Emphasis added as so great an addition to the electorate, if made without the State’s consent, destroys its autonomy as a political body Emphasis added. In U.S. v. Sprague 282 U.S.

716, the Supreme Court rejected the contention that an amendment, conferring on the United States, power over individuals, should be ratified in conventions instead of by State Legislatures. The argument before the Court was that although Congress has absolute discretion to choose the one or the other mode of ratification, there was an implied limitation upon that discretion when rights of individuals would be directly affected and that in such a case the amendment must be ratified by convention. The Court said that there was no limitation upon the absolute discretion of the Congress to have the amendment ratified either by conventions or State legislatures. In, the National Prohibition Cases See Rhode Island v. Palmer [1920] USSC 144; 253 U.S. 350 which upheld the validity of the 18th Amendment to the United States Constitution, the Supreme Court brushed aside the argument that there are implied limitations upon the power of amendment. Although the majority judgment gave no reasons for its conclusion, it is permissible to look at the elaborate briefs filed by counsel in the several cases and oral arguments in order to understand what was argued and what was decided See U.S. v. Sprague [1931] USSC 53; 282, U.S. 716, 733 The arguments advanced in National Prohibition Cafes before the Supreme Court were that an amendment is an alteration or improvement of that which is already contained in the Constitution, that the Amendment was really in the nature of a legislation acting directly upon the rights of individual, that since the Constitution contemplated an indestructible Union of States, any attempt to change the fundamental basis of the Union was beyond the power delegated to the amending body by Article V and that the Amendment invaded the police power which inheres in the State for protection of health, safety and morals of their inhabitants. The only inference to be drawn from the Court upholding the validity of the Amendment is that the Court did not countenance any of the arguments advanced in the case.

1688. The result of the National Prohibition Cases See Rhode Island v. Palmer 253 U.S.

350 seems to be that there is no limit to the power to amend the Constitution except that a State may not be deprived of its equal suffrage in the Senate. This means that by action of two-third of both Houses of Congress and of the legislatures in three-fourth of the States, all the powers of the national, government could be surrendered to the State and all the reserved powers of the States could be transferred to the Federal Government See Burdick, “The Law of the American Constitution”, pp. 44-49.

1689. Dodd, speaking about the effect of the decision of the Supreme Court in National Prohibition Cases See Rhode Island v. Palmer [1920] USSC 144; 253 U.S. 350 said that the Court has necessarily rejected substantially all of the arguments presented in favour of the implied limitations upon the amending power, although this statement does not necessarily go to the extent of denying all limitation other than those clearly expressed in the Constitutional language itself See 30 Yale Law Journal 329.

Article Five of 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” See Thomas M. Colley, “The General Principles of Constitutional Law in the U.S.A.”, 4th ed., pp. 46-47.

1690. In Schneiderman v. U.S. [1943] USSC 144; 320 U.S. 118, 137-145 Justice Murphy, after referring to National Prohibition Cases said that Article V contains procedural provisions for Constitutional change by amendment without any present limitation whatsoever except that relating to equal suffrage in the Senate.

1691. In U.S. v. Dennis 183 Federal Reporter 2d., 201 Learned Hand was of the opinion that any amendment to Constitution passed in conformity with the provision in Constitution relating to amendments is as valid as though the amendment had been originally incorporated in it, subject to the exception that no State shall be denied its equal suffrage in the Senate.

1692. The latest authority is the obiter dictum or Douglas, J. for the majority of the Supreme Court in Whitehill v. Elkins [1967] USSC 229; (1967) 389 U.S. 54, 57:

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.

1693. Perceptive writers on the Constitution of the U.S.A. have also taken the view that there are no implied limitations whatever upon the power of amendment, that an amendment can change the dual form of government or the Bill of Rights and that the framers of the Constitution did not intend to make an unalterable framework of Government in which only the minor details could be changed by amendment See Willis, “Constitutional Law” (1936), pp. 123-124; Orfield, “The Amending of the Federal Constitution” (1942), p. 99; Livingstone, “Federalism and Constitutional Change” (1956), pp. 240-241; Rottschaefer, “Constitutional Law”, pp. 8-9; John W. Burgess, “Political Science and Comparative Constitutional Law”, Vol. I, p. 153; Colley, “Constitutional Limitations”, pp. 41-43; D.O. McGovney, “Is the Eighteenth Amendment Void Because of Its Contents “, Columbia Law Review, Vol. 20, May 1920 No. 5; W.F. Dodd, “Amending the Federal Constitution”, 30 Yale Law Journal 329; W.W. Willoughby, “Constitutional Law of the United States”, 2nd ed., Vol. 1, 598.

1694. In Ryan’s Case [1935] Irish Reports, 170, the Supreme Court of Ireland has occasion to discuss and decide two questions: (1) the meaning to be given to the word ‘amendment’ in Article 50 of the Irish Constitution which provided for the amendment of the Constitution and (2) whether there are any implications to be drawn from the Constitution which would cut down the scope of the amendment which could be made under Article 50. I have already dealt with the decision in the case with respect to the first point.

1695. As regards the second point, Kennedy, C.J. was of the opinion that there were certain implied limitations upon the power of amendment while the other two learned judges held that there were no such limitations. However, it is not necessary to deal with the suggested implied limitations relied on by the learned Chief Justice in the light of his observation: “the only argument advanced in support of this position is that the power to amend the Constitution gives power to amend the power itself. It certainly does not say so. One would expect (if it were so intended) that the power would express that intention by the insertion of a provision to that effect by some such words as “including amendment of this power of amendment”, but no such intention is expressed and there is nothing from which it can be implied”. There might be some justification for the view of Kennedy, C.J. that “power of amending a Constitution is something outside and collateral to the Constitution itself” and that unless there is express power to amend the amending power, the amending power cannot be enlarged. Alf Ross, the Scandinavian Jurist, has said that in the United States the highest authority is the constituent power constituted by the rules in Article V of the Constitution. These rules embody the highest ideological presupposition of the American Law system. But they cannot be regarded as enacted by any authority and they cannot be amended by any authority. Any amendment of Article V of the Constitution which, in fact, is carried out, is an a-legal fact and not the creation of law by way of procedure that has been instituted Alf Ross, “Law and Justice”, p. 81.

Now, whereas Article 50 of the Irish Constitution did not contain any power to amend that article, proviso (c) of Article 368 makes it clear that Article 368 itself can be amended and so, the whole line of the reasoning of Kennedy, C.J. has no relevance for our purpose. It is interesting to note that in Moore v. Attorney General for the Irish State (1935) A.C. 484 where the Constitutional amendment made by the Irish Parliament in 1933 (Amendment No. 22) was challenged, Mr. Green conceded before the Privy Council that Amendment No. 16 of 1929 (the amendment challenged in Ryan’s Case) was regular. The validity or otherwise of Amendment No. 16 was vital for the success of his client’s case and the concession of counsel was, in their Lordship’s view, “rightly”

made.

1696. The decision of the Privy Council in Liyanage v. the Queen (1967) 1 A.C. 259 was relied on by the petitioner to show that there can be implied limitation upon legislative power. The question for consideration in that case was whether Criminal Law (Special Provisions) Act No. 1 of 1962 passed by Parliament of Ceylon was valid. The Act purported ex-post facto to create new offences and to alter the rules of evidence and the criminal procedure obtaining under the general law at the time of the commission of the offence and also to impose enhanced punishment. The appellants contended that the Act was passed to deal with the trial of the persons who partook in the abortive coup in question and the arguments before the Privy Council were that the Act of 1962 was contrary to fundamental principles of justice in that it was directed against individuals, that it ex-post facto created crimes and their punishments, and that the Act was a legislative plan to secure the conviction of these individuls and this constituted an usurpation of the judicial power by the legislature.

1697. The Privy Council rejected the contention that the powers of the Ceylon Legislature could be cut down by reference to vague and uncertain expressions like fundamental principles of British Law, and said that although there are no express provisions in the Ceylon Constitution vesting judicial power in the judiciary, the judicial system in Ceylon has been established by the Charter of Justice of 1833, that the change of sovereignty did not produce any change in the functioning of the judicature, that under the provisions of the Ceylon Constitution there is a broad separation of powers and that, generally speaking, the legislature cannot exercise judicial power in spite of the difficulty occasionally felt to tell judicial power from legislative power. Even since the days when John Locke wrote his “Second Treatise on Civil Government” See the Chapter, “Of the Extent of Legislative Power.”, it was considered axiomatic that the legislative power does not include judicial power. And I think what the Privy Council said in effect was that the power to pass a law for peace, order, or good government under Section 29(1) of the Constitution of Ceylon would not take in a power to settle a controversy between Richard Doe and John Doe in respect of Black Acre and label it a law. It is a bit difficult to see how the doctorine of implied limitation has anything to do with the well understood principle that the power to pass law would not include judicial power As to the distinction between legislative power and judicial power, see the observation of Holmes in Prentis v. Atlantic Coast Line Co. [1908] USSC 160; (1908), 211 U.S. 210.

1698. Nor am I able to understand how the doctrine of implied limitations can draw any juice for its sustenance from the fact that President or Governor is bound to act according to the advice of the Council of Ministers, although the expression “aid and advise” taken by itself, would not denote any compulsion upon the President or Governor to act according to the advice. The expression, when it was transplanted into our Constitution from the English soil, had acquired a meaning and we cannot read it divested of that meaning.

1699. The doctrine of implied limitation against the exercise of a power once ascertained in accordance with the rules of construction was rejected by the Privy Council in Web v.

Outrim (1907) A.C. 81 (P.C.).

1700. Counsel for the petitioner relied on certain Canadian Cases to support his proposition that there are implied limitations upon the power of amendment. In Alberta Press Case (1938) 2 D.L.R. 81 Chief Justice Sir Lyman P. Duff said that the British North America Act impliedly prohibits abrogation by provincial legislatures of certain important civil liberties. He said that the reason was that the British North America Act requires the eablishment of one Parliament for Canada and since the term ‘parliament’ means, when interpreted in the light of the preamble’s reference to “a construction similar in principle to that of the United Kingdom”, a legislative body elected and functioning in an atmosphere of free speech, and that a legislation abrogating freedom of speech in a particular province would be an interference with the character of the federal parliament, and therefore, ultra vires the provincial legislature. This dictum logically involves a restriction of the powers of the dominion parliament also as was pointed out by Abbott, J.

in the Padlock Law case See Switzman v. Elbling, (1957) 7 D.L.R. 337. In that case he expressed the view, although it was not necessary so to decide, that parliament itself could not abrogate the right of discussion and debate since the provisions of the British North America Act are as binding on Parliament as on the provincial legislatures.

1701. In Saumur v. City Quebec [1953] 4 D.L.R. 641 the preamble of the British North America Act was referred to as supporting the Constitutional requirement of the religious freedom especially by Rand, J. The basic issue in that case was whether or not the Provinces had legislative authority to enact law in relation to the religious freedom, and whether the city of Quebec was justified by one of its bye-laws under a Provincial Act from prohibiting the distribution of booklets etc. in the streets without the written permission of the Chief of Police. The petitioner, a member of Jehovah’s Witnesses contended that the right to distribute booklets was guaranteed by the statement in the preamble to the British North America Act and that freedom of religion was secured by the Constitution of the United Kingdom, and that fundamental principles of that Constitution were made a part of the Canadian Constitution by implication of the preamble and accordingly the impugned Quebac bye-law was null and void. This contention was rejected by a majority of the Court. Rinfret, C.J.C., Taschereau, J.

concurring, stated that the Privy Council, on several occasions had declared that powers distributed between Parliament and the Legislatures covered absolutely all the powers which Canada could exercise as a political entity. Kerwin, J. stated that the British North America Act effected a complete division of legislative powers. Cartwright, J. (Fauteux, J. concurring) went even further: He said that there were no rights possessed by the citizens of Canada which could not be modified by either Parliament or the Legislatures of the Provinces. Rand, J. found some support in the preamble for freedom of speech, but did not mention freedom of religion in this context. Estey and Locke, JJ. assume that any topic of internal self-government was withheld from derived from it.

1702. It should be noted the view that neither the provinces nor the dominion Parliament could legislate on civil liberties so as to affect them adversely is contrary to the view of the Privy Council that no topic of internal self-Government was withheld from Canada.

“It would be subversive of the entire scheme and policy of the Act to assume that any topic of internal self-government was withheld from Canada A.G. Ontario v. A.G.

Canada [1912] A.C. 571.

1703. The main objection however to the proposition that the British “North America Act contains an implied bill of rights is that it is inconsistent with the doctrine of parliamentary supremacy. If the “Constitution is similar in principle to that of Great Britain, it must follow that the legislature is supreme as that is the fundamental law of the British Constitution. Therefore no subject would be beyond the legislative competence of both parliament and provincial legislatures. Whether there are any implied limitations upon the power of parliament or not, it is clear that the dictum of Abbott, J. in Switzman’s case is based on no high authority as there is nothing in the British North America Act to indicate that civil liberties are beyond the legislative reach of the parliament and the provincial legislatures. “There was no express guarantee of civil liberties in the British North America Act, nothing comparable to the Bill of Rights in the American Constitution or to the Fudamental Rights under our Constitution.

1704. It is, however, impossible to see the relevance of these dicta so far as the interpretation of Article 368 is concerned as none of these cases are cases relating to implied limitation on the power of amendment of any Constitution. They are cases on the legislative competence of legislatures to affect civil liberties. The Canadian Bill of Rights 1960, makes it clear that parliament of Canada can dispense with the application of the Canadian Bill of Rights in respect of any legislation which it thinks proper. Section 2 of the Canadian Bill of Rights provides:

2. Every law of Canada shall, unless it is expressly declared by an Act of the Parliament of Canada that it shall operate notwithstanding the Canadian Bill of Rights, be so construed and applied as not to abrogate, abridge or infringe or to authorize the abrogation, abridgement or infringement of any of the rights or freedoms herein recognized and declared and in particular, no law of Canada shall be construed or applied so as to….

1705. Nor is there anything in the actual decision of the Privy Council in Re the Initiative and Referendum Act to show that there are implied limitations upon the power to amend any provision of the Constitution. The only point decided in that case was that in the absence of clear and unmistakable language in Section 92(1) of the, British North America Act, 1867, the power of the Crown possessed through a person directly responsible to the Crown cannot be abrogated. That was because Section 92(1) provides for an express exception to the power of amendment and that the Act in question, on a true construction of it, fell within the exception. The case is an authority only as to the true meaning of the expression “excepting as regards the office of Lieutenant Governor”

in Section 92(1) of the aforesaid Act. I am not concerned with the obiter dictum of Lord Haldane to the effect that a provincial legislature cannot “create and endow with its own capacity a new legislative power not created by the Act to which it owes its own existence”.

1706. However, it is relevant in this context to refer to the comment of Bora Laskin on the obiter dictum of Lord Haldane in the above case: “This oft-quoted passage remains more a counsel of caution than a Constitutional limitation”. He then read the above passage and continued : “This proposition has in no way affected the widest kind of delegation by Parliament and by a provincial legislature to agencies of their own creation or under their control; see Reference re Regulations (Chemicals.) (1943) 1 D.L.R. 248;

Shannon v. Lower Mainland Dairy Products Board (1938) A.C. 708 [1919] A.C. 935, 945.

1707. Reference was made by counsel for the petitioner to Taylor v. Attorney General of Queensland (1) as authority for the proposition that power of amendment can be subject to implied limitation. The questions which the Court had to consider in the case were: (1) Was the Parliamentary Bills Referendum Act of 1908 a valid and effective Act of Parliament? and (2) Was there power to abolish the Legislative Concil of Queensland by an Act passed in accordance with the provisions of the Parliamentary Bills Referendum Act of 1908? These Acts did not alter the ‘representative’ character of the Legislature as defined in Section 1 of the Colonial Laws Validity Act, 1865, nor did they affect the position of the Crown. Therefore, the question whether the representative character of the Legislature could be changed, or the Crown eliminated did not call for decision. This will be clear from the observations of Gavan Duffy and Rich, JJ. at p. 477.

1708. The judgment of Issacs, J. shows that the opinion expressed by him as regards the “representative” character of the legislature is based on the meaning to be given to the expression ‘Constitution of such legislature’ on a true construction of Section 5 of the Colonial Laws Validity Act. Issacs, J. held that the word ‘legislature’ did not include the Crown. Having reached this conclusion on the express language of the Colonial Laws Validity Act, he made the observation:

When power is given to a colonial legislature to alter the Constitution of the legislature, that must be read subject to the fundamental conception that consistently with the very nature of our Constitution as an Empire, the Crown is not included in the ambit of such power.

1709. These observations are made in the context of the provisions of the Colonial Laws Validity Act where a “colony” is defined to include “all of Her Majesty’s possessions abroad in which there shall exist a legislature as hereinafter defined, except the Channel Islands, the Isle of Man”. The observation of Issacs, J. can only mean that when power to alter the Constitution of the legislature is conferred upon a colony which is a part of Her Majesty’s possessions abroad (the Empire), it is reasonable to assume that such power did not include the power to eliminate the Queen as a part of a colonial legislature. It is to be noted that Issacs, J. had arrived at that conclusion on the true construction of the Colonial Laws Validity Act, namely, that the word ‘legislature’ did not include the Crown.

1710. Mangal Singh v. Union of India [1966] INSC 251; [1967] 2 S.C.R. 109 was also relied on as authority for the proposition that the power of amendment is subject to implied limitation. The only question which was considered in the case was that when by a law made under Article 4 of the Constitution, a State was formed, that State should have the legislative, executive and judicial organs; the Court said:

…Power with which the Parliament is invested by Article 2 and 3, is power to admit, establish, or form new States which conform to the democratic pattern envisaged by the Constitution; and the power which the Parliament may exercise by law is supplemental, incidental or consequential to the admission establishment or formation of a State as contemplated by the Constitution, and not power to override the Constitutional scheme. No State can therefore be formed, admitted, or set up by law under Article 4 by the Parliament which has not effective legislative, executive and judicial organs. [1967] 2 S.C.R. 112.

1711. I am unable to understand how this case lends any assistance to the petitioner for it is impossible to imagine a modern State without these organs.

1712. Section 128 of the Australian Constitution Act provides for alteration of that Constitution. There are certain restrictions upon the power of amendment. We are not concerned with the controversy whether those restrictions can be taken away in the exercise of the power of amendment, as proviso (e) of Article 368 makes it clear that the amending power itself can be amended. Leading writers on the Constitution of Australia have taken the view that there are no other limitations upon the power of alteration and that all the provisions of the Constitution can be amended. See A.P. Canaway, K.C., “The Safety Valve of the commonwealth Constitution”, Australian Law Journal, vol. 12, (1938-39), p. 108 at 109; A.P. Canaway, K.C. (N.S.W.), “The Failure of the Federalism in Australia”, Appendix : Power to Alter the Constitution, A Joint Legal Opinion, p. 211;

John Quick and Robert Randolph Garran, “Annotated Constitution of the Australian Commonwealth”, pp. 988-9; W. Anstey Wynes, “Legislative, Executive and Judicial Powers in Australia”, Third Ed. pp. 695-698; Colin Howard, “Australian Federal Constitutional Law” (1968).

1713. Reference was made to the case of Victoria v. Commonwealth 45 Australian Law Journal 251 in support of the proposition that there are implied limitations upon the power of Commonwealth Parliament in Australia and therefore, there could be implied limitation upon the power of amendment. The pay roll tax imposed by the Pay Roll Tax Act, 1941 (Com.) was, according to the Pay Roll Tax Assessment Act, 1941-69, to be levied and paid or payable by any employer. Section 3(1) of the Pay Roll Tax Assessment Act defined ’employer’ to include the Crown, in the right of a State. The State of Victoria sought declaration that it was beyond the legislative competence of the Commonwealth to levy tax on wages paid by the Crown in the right of the State to officers and employees in the various departments. Menzies, Windeyer, Walsh and Gibbs, JJ. held that there was implied limitation on Commonwealth legislative power under the Constitution, but the Act did not offend such limitation. Barwich, C.J. and Owen, J. held that a law which in substance cakes a State or its powers or functions of government as its subject matter is invalid because it cannot be supported upon any granted legislative power, but there is no implied limitation on Commonwealth legislative power under the Constitution arising from the federal nature of the Constitution. McTiernan, J. held that there was no necessary implication restraining the Commonwealth from making the law.

1714. As to the general principle that non-discriminatory laws of the Commonwealth may be invalid in so far as they interfere with the performance by the States of their Constitutional functions, it must be noted that that is not claimed to rest on any reservation made in the Engineers’ Case Amalgamated Society of Enginears v. Adelaide Steamship Co. Ltd. [1920] HCA 54; (1920) 28 C.L.R. 129 itself to the general principle it advanced. It must also be noted that Menzies, Walsh and Gibbs, JJ. were not prepared to formulate the proposition as a single test in precise and comprehensive terms and that they were alive to the great difficulties which would be encountered in the formulation.

1715. If there are difficulties in formulating an appropriate test, is it not legitimate to ask whether the proposed principle is one that is capable of formulation? Is it not legitimate to ask whether there is a judicially manageable set of criteria available by which the proposed general principle may be formulated? The theory of the implied limitation propounded might invite the comment that “it is an interpretation of the Constitution depending on an implication which is formed on a vague, individual conception of the spirit of the compact”. It is difficult to state in clear terms from the judgments of these judges as to what kind of legislative action by the Commonwealth will be invalid because of the application of the general principle.

1716. The stated purpose of the general principle is to protect the continued existence and independence of the States. Do the judgments of Menzies, Walsh and Gibbs, JJ. disclose any reason why that existence and independence of the States will be threatened in the absence of the implied general principle? 1717. Windeyer, J.’s judgment is a little uncertain. He said that once a law imposes a tax it is a law with respect to taxation and that if it is invalid it must be for reasons that rest on other Constitutional prohibitions, e.g., an implied prohibition on a tax discriminating against a State. However, many cases arise in which competing possible characterizations of a Commonwealth law are possible; on one characterization it is valid, on another it is invalid. The Courts, when faced with competing possible characterizations, may not hold a law valid because one possible characterization is that the law is with respect to one of the enumerated heads of legislative power.

1718. Windeyer, J. said that a law of the Commonwealth which is directed against the States to prevent their carrying out of their functions, while it may be with respect to an enumerated subject-matter, is not for the peace, order and good government of the Commonwealth.

1719. The basic principle of construction which was definitely enunciated by the Court was that adopted by Lord Selborne in Queen v. Burah [1878] 3 A.C. 889. The judges who took the view that there was implied limitation on the power of Commonwealth to aim their legislation against the State did not differ in substance from the theory propounded by Barwick, C.J. and Owen, J. who said that it is a question of lack of power as the legislation is not with respect to a subject within the power of taxation conferred by Section 51 of Australian Constitution See generally Faigenbaum and Hanks, “Australian Constitutional Law”.

1720. I am unable to understand the relevancy of this decision. In a federal or quasi- federal State, the continued existence of the federated States, when the Constitution exists, is a fundamental pre-supposition and the legislative power of the federal legislature cannot be exercised in such a way as to destroy their continued existence. But when we are dealing with an amending power, is there any necessity to make that fundamental assumption? There might be some logic in implying limitation upon the legislative power of the federal legislature, as that power can be exercised only subject to the fundamental assumption underlying a federal state, namely, the continued existence of States. But what is its relevancy when we are dealing with implied limitation on the amending power, which is a power to alter or change the Constitution itself? 1721. It is relevant in this connection to note the vicissitudes in the fortune of the doctrine of immunity of instrumentalities which was based on the theory of implied prohibition.

Marshal, C.J. said in McCulloch v. Maryland (1819) 4 Wheaten 316. “The rule thus laid down was based upon the existence of an implied prohibition that, the Federal and State Governments respectively being sovereign and independent, each must be free from the control of the other; me doctrine was thus based upon the necessity supposed to arise in a federal system”. The progressive retreat from the doctrine in its original form has been traced by Dixon, J. in Essendon Corporation v. Criterion Theatres (1947) 74 C.L.R. 19- 22. He said:

The shifting of judicial opinion shown in the foregoing formed a prelude to the decision of the Court in Graves v. New York [1939] USSC 60; 306 U.S. 466 where the Court thought it imperative to “consider anew the immunity…for the salary of an employee of a Federal instrumentality (at p. 485) from State Income tax and decided that there should be no immunity”. Frankfruter, J.

remarked: “In this Court dissents have gradually become majority opinions and even before the present decision the rationale of the doctrine had been undermined” (at p. 491). This case marked the end of the old doctrine 1722. I would add that the theory of immunity of instrumentalities was definitely rejected by this Court in State of West Bengal v. Union of India [1962] INSC 382; A.I.R. 1963 S.C. 1241.

1723. Mr. Palkhivala argued with considerable force that if there are no limitations upon the power of amendment, the consequences would be far reaching. He said that it will be open to the Parliament to prolong the period of its existence, to make India a satellite of a foreign country, do away with the Supreme Court and the High Courts, abolish the Parliamentary system of Government and take away the power of amendment or, at any rate, make the exercise of the power so difficult that no amendment would be possible.

As I said there is no reason to think that the word ‘amendment’ was used in any narrow sense in Article 368 and that the power to amend under the article was in any way limited. If there is power, the fact that it might be abused is no ground for cutting down its width.

1724. In Vacher and Sons v. London Society of Compositors [1912] UKHL 3; [1913] A.C. 107, at p. 121 & 118. Lord Atkinson said that it is well established that, in construing the words of a statute susceptible of more than one meaning, it is legitimate to consider the consequences which would result from any particular construction, for, as there are many things which the Legislature is presumed not to have intended to bring about, a construction which would not lead to any one of these things should be preferred to one which would lead to one or more of them. In the same case, Lord McNaughton said that a judicial tribunal has nothing to do with the policy of any Act and that the duty of the Court, and its only duty, is to expound the language of the Act in accordance with the settled rules of construction.

1725. In Bank of Toronto v. Lambe [1887] 12 A.C. 575, 586 the Privy Council was concerned with the question whether the Legislature of a Province could not levy a tax on capital stock of the Bank, as that power may be so exercised as to destroy the Bank altogether. The Privy Council said that if on a true construction of Section 92 of the British North America Act, the power fell within the ambit of the section, it would be quite wrong to deny its existence because by some possibility that it may be abused or may limit the range which otherwise would be open to the Dominion Parliament. The Privy Council observed that “Their Lordships cannot conceive that when the Imperial Parliament conferred wide powers of local self-government on great countries such as Quebec, it intended to limit them on the speculation that they would be used in an injurious manner. People who are trusted with the great power of making laws for property and civil rights may well be trusted to levy a tax”.

1726. In Ex-parte Crossman 267 U.S. 120, 121 it was held that the presumption is that every organ of a State will act in coordination, that though one organ can, by its action, paralyse the functions of the other organs and make the Constitution come to a standstill, yet no Constitution proceeds on the assumption that one organ will act in such a way as to defeat the action of the other.

1727. Our Constitution, in its preamble has envisaged the establishment of a democratic sovereign republic. Democracy proceeds on the basic assumption that the representatives of the people in Parliament will reflect the will of the people and that they will not exercise their powers to betray the people or abuse the trust and confidence resposed in them by the people. Some of the great powers appertaining to the sovereignty of the State are vested in the representatives of the people. They have the power to declare war. They have power over coinage and currency. These disaster-potential powers are insulated from judicial control. These powers, if they are imprudently, exercised, can bring about consequences so extensive as to carry down with them all else we value: War and inflation have released evil forces which have destroyed liberty. If these great powers could be entrusted to the representatives of the people in the hope and confidence that they will not be abused, where is the warrant for the assumption that a plenary power to amend will be abused? The remedy of the people, if these powers are abused, is in the polling booth and the ballot box.

1728. The contention that if the power to amend Fundamental Rights in such a way as to take away or abridge them were to vest in Parliament, it would bring about the catastrophic consequences apprehended by counsel has an air of unreality when tested in the light of our experience of what has happened between 1951 when Sankari Prasad’s case [1951] INSC 45; [1952] S.C.R. 89 recognised the power of the Parliament to amend the Fundamental Rights and 1967 when the Golaknath Case [1967] INSC 45; [1967] 2 S.C.R. 762 was decided. It should be remembered in this connection that the Parliament when it exercises its power to amend Fundamental Rights is as much the guardian of the liberties of the people as the Courts.

1729. If one of the tests to judge the essential features of the Constitution is the difficulty with which those features can be amended, then it is clear that the features which are broadly described as “federal features” contained in Clauses (a) to (d) of the proviso to Article 368 are essential features of the Constitution. The articles referred to in Clause (a) to (d) deal with some of the essential features of the Constitution like the Union Judiciary, the High Courts, the legislative relation between the Union and the States, the conferment of the residual power and so on. The power to amend the legislative lists would carry with it the power to transfer the residuary entry from the Union List to the State List. This would also enable Parliament to increase its power by transferring entries from the State List or Concurrent List to the Union List. The proviso to Article 368 thus makes it clear that the Constitution-makers visualised the amendability of the essential features of the Constitution.

1730. Mr. Palkhivala contended that Fundamental Rights are an essential feature of the Constitution, that they are the rock upon which the Constitution is built, that, by and large, they are the extensions, combinations or permutations of the natural rights of life, liberty and equality possessed by the people by virtue of the fact that they are human beings and that these rights were reserved by the people to themselves when they framed the Constitution and cannot be taken away or abridged by a constituted authority like Parliament. He said that the implied limitation stems from the character of those rights as well as the nature of the authority upon which the power is supposed to be conferred.

1731. On the other hand, the respondents submitted that the people of India have only such rights as the Constitution conferred upon them, that before the Constitution came into force, they had no Fundamental Rights, that the rights expressly conferred upon the people by Part III of the Constitution and that there is no provision in our Constitution like Article 10 of the United States Constitution which reserved the rights of the people to themselves. They also said that the characterisation of Fundamental Rights, as tran cendental, sacrosanct or promodial in the sense that they are “not of today or yesterday but live eternally and none can date their birth” smacks of sentimentalism and is calculated to cloud the mind by an out-moded political philosophy, and would prevent a dispassionate analysis of the real issues in the case.

1732. The question presented for decision sounds partly in the realm of political philosophy but that is no reason why the Court should not solve it, for, as De Tocqueville wrote: “scarcely any political question arises in the United States that is not resolved sooner or later into a judicial question” See De Tocqueville, “Democracy in America”

(1948), Bradly ed. p. 280. For the purpose of appreciating the argument of Mr. Palkhivala that there is inherent imitation on the power of Parliament to amend Fundamental Rights, it is necessary to understand the source from which these rights arise and the reason for their fundamentalness.

1733. Let it be understood at the very outset that I mean by natural rights those rights which are appropriate to man as a rational and moral being and which are necessary for a good life. Although called ‘rights’, they are not per se enforceable in Courts unless recognized by the positive law of a State. I agree that the word ‘right’ has to be reserved for those claims and privileges which are recognized and protected by law. But to identify rights with legally recognized rights is to render oneself helpless before the authoritarian state. Your rights, on this theory, are precisely those which the State provides you and no more. To say that you have rights which the State ought to recognize is, from this point of view, a plain misuse of the language. “However, from the point of view of the Declaration of Independence, to recognize the existence of rights prior to and independent of political enactment, is the beginning of political wisdom. If the governments are established to ‘secure these rights’, the pre-existence of these rights is the whole basis of the political theory” See Hocking, “Freedom of the Press”, footnote at p.

59. The preamble to our Constitution shows that it was to ‘secure’ these rights that the Constitution was established, and that, by and large, the Fundamental Rights are a recognition of the pre-existing natural rights. “They owe nothing to their recognition in the Constitution-such recognition was necessary if the Constitution was to be regarded complete” See Corwin “The Higher Background of the American Constitutional Law”, p.

1734. The philisophical foundation of the rights of man is natural law and the history of rights of man is bound up with the history of natural law See Jacques Maritain, “Man and the State”, pp. 80-81. That law is deduced not from any speculative void but from the general condition of mankind in society. According to St. Thomas Aquinas the order of the precepts of the natural law follows the order of natural inclinations, because, in man there is first of all an inclination to good in accordance with the nature which he has in common with all substances in as much as every substance seeks the preservation of its own being, according to its nature; and by reason of this inclination, whatever is a means of preserving human life, and the warding off its obstacles, belongs to the natural law See Summa Theologica, Part II, Section I, Question 91, Article 2 (translated by the English Dominicans), Vol. 3. In a different context Spinoza proclaimed the very same principle in his famous words “Every being strives to persevere in being See “Ethics”, Part III, Proposition No. 6″. Secondly, according to St. Thomas Aquinas, there is in man an inclination to things that pertain to him more specially, according to that nature which he has in common with other animals: and in virtue of this inclination, those things are said to belong to the natural law which nature has taught to all animals, such as sexual intercourse, the education of the offspring and so forth See Summa Theologica, Part II, Section I, Question 91, Article 2 (translated by the English Dominicans), Vol. 3. And thirdly, there is in man an inclination to good according to the nature of his reason which inclination prompts him to know the truth and to live in society.

1735. The law of nature is both an expression of reality and a standard to measure the rightness and justice of positive law. The influence of natural law on the concept of natural justice and of the reasonable man of the common law, on the conflict law, the law of merchants and the law of quasi-contract, with special reference to the common law of India has been traced with great learning by Sir Frederic Pollock in his essay on the “History of the Law of Nature” See “Essays in Law”, p. 31.

1736. It is true that law of nature has incurred the charge of being fanciful and speculative and several of the theories advanced in support of natural law have been discredited. Mr. Max M. Laserson has rightly said that the doctrines of natural law must not be confused with natural law itself. The doctrines of natural law, like any other political and legal doctrines, may propound various arguments or theories in order to substantiate or justify natural law, but the overthrow of these theories cannot signify the overthrow of natural law itself, just as the overthrow of some theory of philosophy of law does not lead to the overthrow of law itsef See “Positive and Natural Law and their correlation in Interpretation of Modern Legal Philosophies” Essays in Honour of Roscos Pound (New York Oxford University Press), (1947).

1737. The social nature of man, the generic traits of his physical and mental Constitution, his sentiments of justice and the morals within, his instinct for individual and collective preservation, his desire for happiness his sense of human dignity, his consciousness of man’s station and purpose in life, all these are not products of fancy but objective factors in the realm of existence See Lauterpacht, “International Law and Human Rights”, p. 101.

The Law of Nature is not, as the English utilitarians in their ignorance of its history supposed, a synonym for arbitrary individual preference, but that on the contrary, it is a living embodiment of the collective reason of civilized mankind, and as such is adopted by the Common Law in substance chough not always by name See Sir Frederic Pollock, “The Expansion of the Common Law” (1904), p. 128.

1738. The sacred rights of mankind are not to be rummaged for among old parchments of musty records. They are written, as with a sunbeam, in the whole volume of human nature, by the hand of Divinity itself, and can never be obscured by mortal power (See Canadian Bar Review, Vol. XXXIV (1956), footnote on p. 219).

1739. In State of West Bengal v. Subodh Gopal [1953] INSC 85; [1954] S.C.R. 587, 596. Patanjali Sastri, J. said that article (Article 19) enumerates certain freedoms under the caption “right to freedom” and deals with those great and basic rights which are recognized and guaranteed as the natural rights inherent in the status of a citizen of a free country.

1740. In the United States of America, reliance upon natural law on the part of vested interests inimical to the economic freedom of man was destined to prove a persistent feature in the 19th century. In the second half of the 19th century, the ideas of natural law and of natural rights were resorted to in an attempt to curb State interference with rights of private property and freedom of contract. The ideas of natural law and natural rights were revived and endowed with fresh vigour for that purpose See Haines, “The Revival of Natural Law Concepts”, pp. 117-123. By reference to natural rights of man, Courts in the United States often declared to be unConstitutional legislation for securing humane conditions of work, for protecting the employment of women and children, for safeguarding the interests of consumers, and for controlling the powers of trusts and corporations. This past history explains why natural rights have been regarded in some quarters with suspicion and why writers affirming the supremacy of a higher law over the legislature or the Constitution have spoken with impatience of the damnosa hereditas of natural rights. This idea of natural law in defence of causes both paltry and iniquitous has caused many to reject it with impatience. A great practical reformer like Jeremy Bentham, a great judge like Mr. Justice Holmes and a great legal philosopher like Hans Kelsen-all believers in social progress-have treated the law of nature with little respect and have rejected it as fiction. Mr. Justice Holmes remarked : “The jurists who believe in natural law seem to me to be in that naive state of mind that accepts what has been familiar and accepted by them and their neighbours as something that must be accepted by all men everywhere” Holmes, “Collected Legal Papers”, p. 312. Professor Kelsen considers the typical function of the natural law school to have been the defence of established authority and institutions-of established governments, of private property, of slavery, of marriage See Kelsen, “General Theory of Law and State”, pp. 413-418.

1741. Despite these attacks and the ebb and flow in its fortune, there has been a revival of the law of nature in the 20th century and there is no gainsaying the fact that the doctrine of the law of nature was the bulwark and the lever of the idea of the rights of mare embodied in the International Bill of Human Rights with a view to make the recognition of these rights more effective and to proclaim to the world that no State should violate these rights See Lauterpacht, “International Law and Human Rights”, pp. 112-113.

Whether you call these rights, natural rights or not, whether they flow from the law of nature or not, as I said, these are rights which belong to man as a rational and moral being. “Man’s only right, in the last analysis is the right to be a man, to live as a human person. Specific human rights are all based on man’s right to live a human life See “Weapons for Peace” by Thomas P. Neill, quoted in “The Natural Law” by Rommnen, footnote at p. 243. Harold Laski said : Harold Laski, “Grammar of Politics” (New Haven) (1925), pp. 39-40.

I have rights which are inherent in me as a member of society; and I judge the state, as the fundamental instrument of society, by the manner in which it seeks to secure for me the substance of those rights…. Rights in this sense, are the groundwork of the state. They are the quality which gives to the exercise of its power a moral penumbra. And they are natural rights in the sense that they are necessary to good life.

1742. Mr. Seervai submitted that Article 33 of the Constitution which states that Parliament may, by law determine to what extent the Fundamental Rights, in their application to members of the Armed Forces or forces charged with the maintenance of public order be restricted or abrogated so as to ensure the proper discharge of their duties and the maintenance of discipline among them, would show that no natural rights are recognised by our Constitution, as otherwise, the limitation on the exercise of the Fundamental Rights by Parliament would be unwarranted. In support of this position, he has relied upon the observations of S.K. Das, J. in Basheshar Nath v. Commissioner of Income Tax, Delhi, etc. [1959] Supp. 1 S.C.R. 528, 605 where he said:

There are, in my opinion, clear indications in Part III of the Constitution itself that the doctrine of “natural rights” had played no part in the formulation of the provisions therein. Take Articles 33, 34 and 35 which give Parliament power to modify the rights conferred by Part III. If they were natural rights the Constitution could not have given power to Parliament to modify them.

I do not think that it was the contention of Mr. Palkhivala chat natural rights as such are enforceable by Courts without the backing of positive law or that they are not liable to be limited in certain circumstances.

1743. That all natural rights are liable to be limited or even taken away for common good is itself a principle recognized by all writers on natural law. “However, even though man’s natural rights are commonly termed absolute and inviolable, they are limited by the requirements of the universal Order to which they are subordinated. Specifically, the natural rights of man are limited intrinsically by the end for which he has received them as well as extrinsically by the equal rights of other men, by his duties towards others”.

See Romen, “The Natural Law” (1947), footnote 49, p. 253. And when the Parliament restricts or takes away the exercise of the Fundamental Rights by military personnel or the police charged with the duty of maintaining the peace, that does not mean that there are no natural rights, or, that by and large, the Fundamental Rights are not a recognition of the natural rights. It only shows that Fundamental Rights like natural rights are liable to be limited for the common good of the society. John Locke himself did not understand that natural rights were absolute and nowhere did he say so. In other words, because Parliament can restrict the exercise of or even take away the Fundamental Rights of the military personnel or the police charged with the duty of maintaining peace by law, it does not follow that Fundamental Rights, by and large, are not a recognition of the bask human rights or that those rights are not liable to be limited by positive law for common good. Natural law cannot supplant positive law; positive law must provide the practical solution in the choice of one measure rather than another in a given situation. Sir Frederick Pollock said that natural justice has no means of fixing any rule to terms defined in number or measure, nor of choosing one practical solution out of two or more which are in themselves equally plausible. Positive law whether enacted or customary, must come to our aid in such matters. It would be no great feat for natural reason to tell us that a rule of the road is desirable; but it could never have told us whether to drive to the right hand or to the left, and in fact custom has settled this differently in different countries, and even, in some parts of Europe, in different provinces of one State. See Pollock, “The Expansion of the Common Law” (1904), p. 128.

1744. Nor am I impressed by the argument that because non-citizens are not granted all the Fundamental Rights, these rights, by and large, are not a recognition of the human or natural rights. The fact that Constitution does not recognize them or enforce them as Fundamental Rights for non-citizens is not an argument against the existence of these rights. It only shows that our Constitution has chosen to withhold recognition of these rights as fundamental rights for them for reasons of State policy. The argument that Fundamental Rights can be suspended in an emergency and, therefore, they do not stem from natural rights suffers from the same fallacy, namely the natural rights have no limits or are available as immutable attributes of human person without regard to the requirement of the social order or the common good.

1745. Mr. Palkhivala contended that there are many human rights which are strictly inalienable since they are grounded on the very nature of man which no man can part with or lose. Although this may be correct in a general sense, this does not mean that these rights are free, from any limitation. Every law, and particularly, natural law, is based on the fundamental postulate of Aristotle that man is a political animal and that his nature demands life in society. As no human being is an island, and can exist by himself, no human right which has no intrinsic relation to the common good of the society can exist. Some of the rights like the right to life and to the pursuit of happiness are of such a nature that the common good would be jeopardised if the body politic would take away the possession that men naturally have of them without justifying reason. They are, to a certain extent, inalienable. Others like the right of free speech or of association are of such a nature that the common good would be jeopardised if the body politic could not restrict or even take away both the possession and the exercise of them; They cannot be said to be inalienable. And, even absolutely inalienable rights are liable to limitation both as regards their possession and as regards their exercise. They are subject to conditions and limitations dictated in each case by justice, or by considerations of the safety of the realm or the common good of the society. No society has ever admitted that in a just war it could not sacrifice individual welfare for its own existence. And as Holmes said, if conscripts are necessary for its army, it seizes them and marches them, with bayonets in their rear to death. See Common Law, p. 43. If a criminal can be condemned to die, it is because by his crime he has deprived himself of the possibility of justly asserting this right. He has morally cut himself off from the human community as regards this right.

See Jacques Maritain, Man and State, p. 102.

1746. Perceptive writers have always taken the view that human rights-are only prima facie rights to indicate that the claim of any one of them may be overruled in special circumstances. As I said the most fundamental of the pre-existing rights-the right to life- is sacrificed without scruple in a war. A prima fade right is one whose claim has prima facie justification, i.e., is justified, unless there are stronger counterclaims in the particular situation in which it is made, the burden of proof resting always on the counter- claims. To say that natural rights or human rights are prima fade rights is to say that there are cases in which pit is perfectly just to disallow their claim. Unless we have definite assurance as to the limits within which this may occur, we may have no way of telling whether we are better off with these prima fade rights than we would be without them.

“Considerations of justice allow us to make exceptions to a natural right in special circumstances as the same considerations would require us to uphold it in general. See generally “Justice and Equality” by Gregory Vlastos in “Social Justice”, p. 31 ed. by Richard B. Brandt.

1747. Owing to the complexity of social relations, rights founded on one set of relations may conflict with rights founded on other relations. It is obvious that human reason has become aware not only of the rights of man as a human and civil person but also of his social and economic rights, for instance, the right of a worker to a just wage that is sufficient to secure his family’s living, or the right to unemployment relief or unemployment insurance, sick benefits, social security and other just amenities, in short, all those moral rights which are envisaged in Part IV of the Constitution. But there was a natural tendency to inflate and make absolute, unrestricted in every respect, the familiar fundamental rights, at the expense of other rights which should counter-balance them.

The economic and social rights of man were never recognised in actual fact without having had to struggle against and overcome the bitter opposition of the fundamental rights. This was the story of the right to a just wage and similar rights in the face of the right to free mutual agreement and right to private ownership.

1748. To determine what is finally right involves a balancing of different claims. From an ethical point of view, all one can say is that particular rights are subject to modification in a given situation by the claims arising out of other rights or of the body of rights as a whole. Since no single right whether natural or not is absolute, claims based on any one right may be subject to qualifications in accordance with claims based on other rights or the requirements of the total order or way of life, namely, the principle of the common good. See Morris Ginsberg, Justice in Society, p. 77. It is significant to note that Article 29(2) of the Declaration of Human Rights provides:

In the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society.

1749. It shall be my endeavour to show in a subsequent part of this judgment how the general welfare of our democratic society requires limitation or even taking away of Fundamental Rights in certain circumstances.

1750. The framers of our Constitution realised that the Fundamental Rights, like natural rights, were not absolute and it was because of this that they provided for restrictions being imposed upon the exercise of these rights by law. But it was impossible for them, or for that matter, for any person, however, gifted they or he might be, to foresee the type of restrictions which would be necessary to meet the changing needs of a society. Even men with the most prophetic vision could not have foreseen all the developments of the body politic in the future and the type of restrictions necessary upon the Fundamental Rights to meet them. The question whether a particular Fundamental Right should be taken away or abridged for the common good of the society must be decided in the light of the experience of each generation and not by what was said or laid down at the time of the framing of the Constitution. It would be asking the impossible to expect one generation to plan a government that would pass through all the revolutionary changes in every aspect of life.

1751. Let us now see whether in the past the Parliament was justified in amending some of the Fundamental Rights and whether the fear expressed by the counsel for the petitioner, that great catastrophic consequences will follow if the Fundamental Rights are permitted to be abridged by Constitutional Amendments is justified.

1752. The First Amendment made certain changes in Article 15 which deals with prohibition of discrimination on the ground of religion, race, caste, sex or place of birth.

Clause (3) of Article 15 allowed the state to make special provision for women and children. A new clause was added by the Amendment which reads as follows:

(4) Nothing in this article or in Clause (2) of Article 29 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.

This Amendment was necessitated on account of the decision of this Court in the State of Madras v. Champakam [1951] INSC 25; [1951] S.C.R. 525 to the effect that reservation of seats for backward classes, Scheduled Castes and Tribes in public institutions was invalid, as it would offend the Fundamental Rights guaranteed under Article 29(2). When this Court said that the reservation of seats for these classes offended the Fundamental Right guaranteed under Article 29(2), what option was left but for the Parliament to enact the Amendment, for, social justice required discriminatory treatment in favour of the weaker sections of the people and in particular the Scheduled Castes and Tribes in order to promote their educational and economic interest and to give them a position of equality.

It is possible to sympathise with those who bewail the decision in the case as a ‘self- inflicted wound’. But when a Bench of five Judges held so, not all the tears in the world can recall a word of what was written, but only an amendment by Parliament, since the chance of the decision being overruled was remote and problematical.

1783. The second and sixth clauses of Article 19 were also amended by the First Amendment. Article 19(1)(a) provides that all citizens shall have the right to freedom of speech and expression. Before the amendment, Article 19(2) read:

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, or tends to overthrow, the State.

After the amendment, the same clause reads:

Nothing in Sub-clause (a) of Clause (1) shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub-clause in the interest of the…security of the State, friendly relations with foreign states, public order, decency or morality, or in relation to contempt of Court, defamation or incitement to an offence.

This amendment was necessitated by the decision of this Court in Romesh Thapar v.

State of Madras [1950] INSC 16; [1950] S.C.R. 594 wherein it was held that the disturbance of public order did not come within the expression “undermines the security of the State…. No doubt, in State of Bihar v. Shaila bala Devi [1952] INSC 36; [1952] S.C.R. 654 this Court said that it did not intend to by down in Romesh Thapar’s case that in no case will an offence against public order affect the security of the State, but that point if not of much interest in view of the Amendment. When this Court held that the word ‘public order’ would not come within the expression “undermines the security of State”, no option was left to Parliament but to make the Amendment. The words “friendly relations with foreign States”

introduced a further abridgement of the freedom of speech but nobody would contend that maintenance of friendly relations with foreign States is unnecessary and that speech which would prejudicially affect these relations should not be curbed even as England and America have done.

1754. The 16th Amendment added after the words “in the interests of” the words “the sovereignty and integrity of India” in Clauses (2), (3) and (4) of Article 19. This means that the Fundamental Rights to freedom of speech and freedom of assembly were abridged for the sake of maintaining the sovereignty and integrity of India. Freedom of speech is the matrix upon which all other freedoms are founded and nobody would deny that it is an essential feature of the Constitution. But that had to be damaged for the sake of a greater good, namely, the maintenance of the sovereignty and integrity of India. And who would dare maintain that the amendment was unnecessary? These amendments illustrate that exigencies not visualized by the makers of the Constitution would arise and that Fundamental Rights will have to be abridged for the commongood or for securing higher values.

1755. It was because counsel for the petitioner realised the necessity for amendment of Fundamental Rights in certain circumstances in such a way as to abridge them that he advanced the further contention that although Parliament should have the power to amend the Fundamental Rights, there is implied limitation upon its power to amend them in such a way as to damage or destroy their core or essence, and that the Court must, in the case of each amendment, pass upon the question whether the amendment has destroyed or damaged the essence or the core of the right. Counsel said that if the task of adjudging what is “reasonable restriction in the interest of public” could be undertaken successfully by Court there is no reason why the Court could not undertake the task of finding the core or essence of a right and whether the amendment has damaged or destroyed it.

1756. Mr. Seervai for the State of Kerala submitted that no objective standard was suggested for the Court to decide what is the core or essence of a right except the perception of the trained judicial mind and that whereas judicial review of the question whether a restriction imposed by a law is reasonable or not is based on the objective standard of reason, there is no divining rod for the Court to locate and find the core of a right. He referred to the dissenting judgment of Holmes in Lochner v. New York [1905] USSC 100; 198 U.S. 45 and to the dictum of Patanjali Sastri, J. in State of Madras v. V.G. Row [1952] INSC 19; (1952) S.C.R. 597 and said that the concept of ‘reasonable man’, that latch key to many legal doors, or, ‘reasonable, restriction in the interest of public’ mentioned in Clauses 2 to 6 of Article 19 or “reasonable restrictions” in Article 304(b) are objective in character, though there might be difference of opinion in a particular case in the application of the concepts; but the task of finding the core of a Fundamental Right is like the quest for the “philosopher’s stone”, and that the Amending Body will be left without chart or compass when it proceeds to make an amendment. Mr. Seervai further submitted that our Constitution makers deliberately omitted the phrase ‘due process’ in Article 21 to avoid flirtation by Court with any gossamer concepts drawn from higher law philosophy to annul legislation and that even in America, invalidation of law on the ground of violation of substantive due process has become practically obsolete.

1757. When a court adjudges that a legislation is had on the ground that it is an unreasonable restriction, it is drawing the elusive ingredients for its conclusion from several sources. In fact, you measure the reasonableness of a restriction imposed by law by indulging in an authentic bit of “special legislation See Learned Hand, “Bill of Rights”, p. 26″. The words ‘reason’ and ‘reasonable’ denote for the common law lawyer ideas which the “Civilians” and the Canonists’ put under the head of the ‘law of nature’.

Thus the law of nature may finally claim in principle, though not by name, the reasonable man of English and American law and all his works which are many”. See History of the Law of Nature by Pollock, pp. 57-59. Lord Coke said in Dr. Bonham’s case 8 Rep. 107, 118(a) that the common law will adjudge an Act of Parliament as void if it is against common right and reason and substantive due process in its content means nothing but testing an act or legislation on the touchstone of reason. The reason why the expression “due process” has never been defined is that it embodies a concept of fairness which has to be decided with reference to the facts and circumstances of each case and also according to the mores for the time being in force in a society to which the concept has to be applied. As Justice Frankfurter said, “due process” is not a technical conception with a fixed content unrelated to time, place and circumstances See Joint Anti-Fascist Refugee Committee v. McGrath [1951] USSC 49; 341 U.S. 123. The limitations in Article 19 of the Constitution open the doors to judicial review of legislation in India in much the same manner as the doctrine of police power and its companion, the due process clause, have done in the United States. The restrictions that might be imposed by the legislature to ensure the public interest must be reasonable and, therefore, the Court will have to apply the Yardstick of reason in adjudging the reasonableness. If you examine the cases relating to the imposition of reasonable restrictions by a law, it will be found that, all of them adopt a standard which the American Supreme Court has adopted in adjudging reasonableness of a legislation under the due process clause. In Municipal Committee v. The State of Punjab [1969] INSC 17; [1969] 3 S.C.R. 447, 453 this Court said that due process clause has no application in India and that a law cannot be struck down as constituting an unreasonable restriction upon Fundamental Rights merely because its terms were vague. The Court said that a law whose terms were vague would be struck down as violative of due process in America but, nevertheless, the principle has no application here because there is no “due process clause” in our Constitution. With great respect, I should think that this is not correct, as the concept of “due process” enters into the meaning of reasonableness of restrictions in Clauses 2 to 6 of Article 19. In Collector of Customs v. Sampathu [1961] INSC 282; [1962] 3 S.C.R. 786, 816, Rajagopala Ayyangar, J. said that though the tests of ‘reasonableness’ laid down by Clauses (2) to (6) of Article 19 might in great part coincide with that for judging for ‘due process’ it might not be assumed that these are identical, as the Constitution-framers deliberately avoided in this context the use of the expression ‘due process’ with its comprehensiveness, flexibility and attendant vagueness in favour of a somewhat more definite word ‘reasonable’. In the light of what I have said, I am unable to understand how the word ‘reasonable’ is more definite than the words due process’. As the concept of ‘due process’ draws its nourishment from natural or higher law so also the concepts of ‘reason’ and reasonableness’ draw the juice for their life from the law of reason which for the common law lawyer is nothing but natural law. See Pollock, the Expansion of Common Law, 108-109. In Abbas v. Union of India [1970] INSC 201; [1971] 2 S.C.R. 446, 470 Hidayatullah, C.J. speaking for the Court said:

…it cannot be said as an absolute principle that no law will be considered bad for sheer vagueness. There is ample authority for the proposition that a law affecting fundamental rights may be so considered.

Where a law imposes a restriction upon a Fundamental Right which is vague in character, it would be struck down as unreasonable under Clauses (2) to (6) of Article 19 for the same reason as an American Court would strike it down as violative of due process, viz., a person cannot be deprived of his Fundamental Right by a law whose command is uncertain and does not sufficiently indicate to the individual affected by it how he could avoid coming within the mischief of the law. Our Constitution-makers, under the guise of testing the reasonableness of restrictions imposed by law on Fundamental Rights, brought in by the back door practically the same concept which they openly banished by the front.

1758. I am not dismayed by the suggestion that no yardstick is furnished to the Court except the trained judicial perception for finding the core or essence of a right, or the essential features of the Constitution. Consider for instance, the test for determining citizenship in the United States that the alien shall be a person of “good moral character”

the test of a crime involving “moral turpitude”, the test by which you determine the familiar concept of the “core of a contract”, the “pith and substance” of a legislation or the “essential legislative function” in the doctrine of delegation. Few Constitutiontly issues can be presented in black and white terms. What are essential features and non essential features of the Constitution ? Where does the core of a right end and the periphery begin? These are not matters of icy certainty; but, for that reason, I am not presuaded to hold that they do not exist, or that they are too elusive for judicial perception. Most of the things in life that are worth talking about are matters at degree and the great judges are those who are most capable of discerning which of the gradations make genuine difference.

1759. Nor do I think that all the provisions in the Constitution are equally essential.

Gladstone said, the most wonderful work ever struck off at a given time by the brain and purpose of man is the Constitution of the United States of America. Lord Bryce said much the same thing when he observed that it is one of the greatest contributions ever made to politics as a practical art. Yet it consists only of VII articles with the Amendments. A Constitution need not partake the prolixity of a code.” And our Constitution could very well have dropped many of its provisions. Merely because all the provisions of the Constitution have equal importance in one respect, namely, they are all embodied in one document, and can be amended only by the procedure prescribed in Article 368, it does not follow that all of them are essential features of the document in all other respects.

1760. But the question will still remain, even when the core or the essence of a Fundamental Right is found, whether the Amending Body has the power to amend it in such a way as to destroy or damage the core. I have already said that considerations of justice, of the common good, or “the general welfare in a democratic society” might require abridging or taking away of the Fundamental Rights.

1761. I have tried, like Jacob of the Old Testament to wrestle all the night with the angel, namely, the theory of implied limitation upon the power of amendment. I have yet to learn from what source this limitation arises. Is it because the people who were supposed to have framed the Constitution intended it and embodied the intention in an unalterable framework? If this is so, it would raise the fundamental issue whether that intention should govern the succeeding generations for all time. If you subscribe to the theory of Jefferson, to which I have already referred and which was fully adopted by Dr.

Ambedkar, the principal architect of our Constitution and that is the only sane theory. I think there is no foundation for the theory of implied limitations. Were it otherwise, in actual reality it would come to this : The representatives of some people the framers of our Constitution could bind the whole people for all time and prevent them from changing the Constitutional structure through their representatives. And, what is this sacredness about the basic structure of the Constitution ? Take the republican form of Government, the supposed cornerstone of the whole structure. Has mankind, after its wandering through history, made a final and unalterable verdict that it is the best form of government? Does not history show that mankind has changed its opinion from generation to generation as to the best form of government? Have not great philosophers and thinkers throughout the ages expressed different views on the subject? Did not Plato prefer the rule by the Guardians? And was the sapient Aristotle misled when he showed his proclivity for a mixed form of government? If there was no concensus yesterday, why expect one tomorrow? 1762. The object of the people in establishing the Constitution was to promote justice, social and economic, liberty and equality. The modus operandi to achieve these objectives is set out in Parts III and IV of the Constitution. Both Part III and IV enumerate certain moral rights. Each of these Parts represents in the main the statements in one sense of certain aspirations whose fulfilment was regarded as essential to the kind of society which the Constitution-makers wanted to build. Many of the articles, whether in Part III or Part IV, represent moral rights which they have recognized as inherent in every human being in this country. The task of protecting and realising these rights is imposed upon all the organs of the State, namely, legislative, executive and judicial.

What then is the importance to be attached to the fact that the provisions of Part III are enforceable in a Court and the provisions in Part IV are not? Is it that the rights reflected in the provisions of Part III are somehow superior to the moral claims and aspirations reflected in the provisions of Part IV? I think not. Free and compulsory education under Article 45 is certainly as important as freedom of religion under Article 25. Freedom from starvation is as important as right to life. Nor are the provisions in Part III absolute in the sense that the rights represented by them can always be given full implementation in all, circumstances whereas practical exigencies may sometimes entail some compromise in the implementation of the moral claims in Part IV. When you translate these rights into socio-political reality, some degree of compromise must always be present. Part IV of the Constitution translates moral claims into duties imposed on government but provided that these duties should not be enforceable by any Court. See generally A.R. Blackshield “Fundamental Rights & Economic Viability of the Indian Nation”, Journal of Indian Law Institute, Vol. 10 (1968) 1, 26-28. The question has arisen what will happen when there is a conflict between the claims in Part IV and the rights in Part III and whether the State would be justified at any given time in allowing a compromise or sacrifice the one at the expense of the other in the realisation of the goal of the Good life of the people. What is the relationship between the rights guaranteed by Part III and the moral rights in Part IV? In the State of Madras v. Champakam already referred to this Court held that the Fundamental Rights being sacrosanct, the Directive Principles of State Policy cannot override them but must run as subsidiary to them. This view was affirmed by this Court in Quareshi v. State of Bihar [1958] INSC 46; (1959) S.C.R. 629. S.R.

Das, C.J. who delivered the judgment of the Court said that the argument that the laws were passed in the discharge of the fundamental obligation imposed on the State by the Directive Principles and therefore, they could override the restrictions imposed on the legislative power of the State by Article 13(2) or that a harmonious interpretation has to be placed upon the provisions of the Act was not acceptable. It was held that the State should implement the Directive Principles but that it should do so in such a way that its laws do not take away or abridge the Fundamental Rights : as otherwise, the protecting provisions of Part III will be a mere rope of sand. In Golaknath Case, Subba Rao, C.J.

said that Fundamental Rights and Directive Principles of State Policy form an integrated whole and were elastic enough to respond to the changing needs of the society. There are observations in later cases of this Court that it is possible to harmonize Part III and Part IV.

1763. The significant thing to note about Part IV is that, although its provisions are expressly made un-enforceable, that does not affect its fundamental character. From a juridical point of view, it makes sense to say that Directive Principles do form part of the Constitutional Law of India and they are in no way subordinate to Fundamental Rights.

Prof. A.L. Goodhart said:

…if a principle is recognized as binding on the legislature, then it can be correctly described as a legal rule even if there is no court that can enforce it. Thus, most of Dicey’s book on the British Constitution is concerned with certain general principles which Parliament recognizes as binding on it.(1) Enforcement by a Court is not the real test of a law. See “A note on the theory of Law”, “Law and the Constitution” 5th ed. p. 330 by Ivor Jennings. The conventions of English Constitution are not enforceable in a Court of law but they are, nevertheless, binding and form part of the Constitutional law of the land. The similarity between the Constitutional conventions in England and Directive Principles of State Policy in India cannot be disputed.

1764. The only purpose of Article 37 is to prevent a citizen from coming forward and asking for specific performance of the duties cast upon the State by the Directive Principles. But if a State voluntarily were to implement the Directive Principles, a Court would be failing in its duty, if it did not give effect to the provisions of the law at the instance of a person who has obtained a right under the legislation. As the implementation of the Directive Principles involves financial commitments on the part of the Government and depends upon financial resources, it was thought meet that no private citizen should be allowed to enforce their implementation. But nevertheless, when the State, in pursuance of its fundamental obligation makes a law implementing them, it becomes the law of the land and the judiciary will be found to enforce the law. What is to happen if a State were to make a law repugnant to the Directive Principles? Would the Court be justified in striking down the law as contrary to the Law of the Constitution or, on what basis will a conflict between Part III and Part IV be solved? The questions require serious consideration.

1765. The definition of the word ‘State’ both for the purpose of Part III and Part IV is the same. Whereas Article 45 of the Irish Constitution addresses the directive only for the guidance of the Oireachtas, i.e., the legislature, all the directives from Articles 38 to 51 of our Constitution are addressed to the ‘State’ as defined in Article 12. That judicial process is also “State Action” seems to be clear. Article 20(2) which provides that no person shall be prosecuted and punished for the same offence more than once is generally violated by the judiciary and a writ under Article 32 should lie to quash the order. In his dissenting judgment in Naresh v. State of Maharashtra [1966] INSC 64; [1966] 3 S.C.R. 744 Hidayatullah, J. took, the view. I think rightly that the judiciary is also “State” within the definition of the word “State” in Article 12 of the Constitution. See also Shelley v. Kraemer [1948] USSC 63; 334 U.S., 1;

Eudhan v. State of Maharashtra [1954] INSC 114; [1955] 1 S.C.R. 1045. Frankfurter, J. asked the question that if the highest court of a state should candidly deny to one litigant a rule of law which it concededly would apply to all other litigants in similar situation, could it escape condemnation as an unjust discrimination and therefore a denial of the equal protection of the laws. See Backus v. Fort Street Union Depot Co., [1898] USSC 47; 169 U.S. 557, 571; also Snowden v.

Hughes[1944] USSC 47; , 321 U.S. 1.? In Carter v. Texas [1900] USSC 101; 177 U.S. 442, 447 the Court observed that whenever by any action of a State, whether through its legislature, through its courts, or through its executive or administrative officers, all persons of the African race are excluded, solely because of their race or colour, from serving as…jurors in the criminal prosecution of a person of the African race, the equal protection of the laws is denied.

1766. If convicting and punishing a person twice for an offence by a judgment is equivalent to the “State passing a law in contravention of the rights conferred by Part III”

for the purpose of enabling the person to file a petition under Article 32 to quash the judgment, I can see no incongruity in holding, when Article 37 says in its latter part. “it shall be the duty of the State to apply these principles in making laws”, that judicial process is ‘state action’ and that the judiciary is bound to apply the Directive Principles in making its judgment.

1767. The judicial function is, like legislation, both creation and application of law. The judicial function is ordinarily determined by the general norms both as to procedure and as to the contents of the norm to be created, whereas legislation is usually determined by the Constitution only in the former respect. But that is a difference in degree only. From a dynamic point of view, the individual norm created by the judicial decision is a stage in a process beginning with the establishment of the first Constitution, continued by legislation and customs and leading to the judicial decisions. The Court not merely formulates already existing law although it is generally asserted to be so. It does not only ‘seek’ and ‘find’ the law existing previous to its decision, it does not merely pronounce the law which exists ready and finished prior to its pronouncement. Beth in establishing the presence of the conditions and in stipulating the sanction, the judicial decision has a constitutive character. The law-creating function of the courts is especially manifest when the judicial decision has the character of a precedent, and that means when the judicial decision creates a general norm. Where the courts are entitled not only to apply pre- existing substantive law in their decisions, but also to create new law for concrete cases, there is a comprehensible inclination to give these judicial decisions the character of precedents. Within such a legal system, courts are legislative organs in exactly the same sense as the organ which is called the legislator in the narrower and ordinary sense of the term. Courts are creators of general legal norms. See Kelsen, “General Theory of Law and State” pp. 134-5 & 149-150. Lord Reid said : See the recent address of Lord Reid, “The Judge as Law Maker” (1972) 12 J.S.P.T.L. (N.S.) 22, 29.

There was a time when it was thought almost indecent to suggest that judges make law-they only declare it. Those with a taste for fairy-tales seem to have thought that in some Aladdin’s Cave there is hidden the Common Law in all its splendour and that on a judge’s appointment there descends on him knowledge of the magic words Open Sesame…. But we do not believe in fairy talcs any more.

I do not think any person with a sense of realism believes today as Blackstone did that the law declared by the courts has a platonic or ideal existence before it is expounded by judges. John Chipman Gray said that in the last analysis the courts also make our statute law and quoted the passage from the famous sermon of Bishop Hoadly that whoever has absolute power to interpret the law, it is he who is the law-giver, not the one who originally wrote it. See “Nature and Sources of the Law” pp. 102, 125, 172.

1768. It is somewhat strange that judicial process which involves law-making should be called ‘finding the law’. “Some simple-hearted people believe that the names we give to things do not matter. But though the rose by any other name might smell as sweet, the history of civilization bears ample testimony to the momentous influence of names. At any rate, whether the process of judicial legislation should be called finding or making the law is undoubtedly of great practical moment”. See M.R. Cohen, “Law and the Social Order” (1933), pp. 121-124. Nobody doubts today that within the confines of vast spaces a judge moves with freedom which stamps his action as creative. “The law which is the resulting product is not found, but made. The process, being legislative, demands the legislator’s wisdom”. See Benjamin N. Cardozo, “The Nature of the Judicial process”, p.

115.

1769. It is relevant in this context to remember that in building up a just social order it is sometimes imperative that the Fundamental Rights should be subordinated to Directive Principles. The makers of the Constitution had the vision of a future where liberty, equality and justice would be meaningful ideals for every citizen. There is a certain air of unreality when you assume that Fundamental Rights have any meaningful existence for the starving millions. What boots it to them to be told that they are the proud possessors of the Fundamental Rights including the right to acquire, hold and dispose of property if the society offers them no chance or opportunity to come by these rights? Or, what boots it to the beggar in the street to be told that the Constitution in its majestic equality, holds its scales even and forbids by law both his tribe and the rich to beg in the street, to steal bread or sleep under the bridge? This is not to say that the struggle for a just economic order should be allowed to take priority over the struggle for the more intangible hopes of man’s personal self-fulfilment. But in particular contexts, fundamental freedoms and rights must yield to material and practical needs. Economic goals have an un-contestable claim for priority over ideological ones on the ground that excellence comes only after existence. See generally A.R. Blackshield “Fundamental Rights and Economic Viability of the Indian Nation”, Journal of the Indian Law Institute, Vol. 10 (1968) 1. It is only if men exist that there can be fundamental rights. “Tell an unprovisioned man lost in the desert that he is free to eat, drink, bathe, read…. No one is hindering him. For the attainment of most of these ends he might better be in prison. Unrestraint without equipment is not liberty for any end which demands equipment…. Unemployment is a literal unrestraint, a marked freedom from the coercions of daily toil but as destructive of means it is the opposite of freedom for…. To contemporary consciousness it has become an axiom that there can be no freedom without provision. See Hocking “Freedom of the Press”, pp. 55-56.

1770. The twentieth century juristic thinking has formulated two jural postulates. They are (1) Every one is entitled to assume that the burdens incidental to life in society will be borne by society; (2) Every one is entitled to assume that at least a standard of human life will be assured to him; not merely equal opportunities of providing or attaining it but immediate material satisfaction. See Roscoe Pound, “Jurisprudence” Vol. 1, Section 46 (Twentieth Century).

1771. The concept of liberty or equality can have meaning only when men are alive today and hope to be alive tomorrow. “One hates to think how few Indians, for example, have any idea that their Constitution provides basic rights, let alone what those rights are or how they could be defended when violated by Government”. See Carl J. Friedrich, Man and His Government, p. 272. So the main task of freedom in India for the large part of the people is at the economic level.

1772. Roscoe Pound who expounded his theory of interest as a criterion of justice insists without qualification that the “interest” or “claims” or “demands” with which he is concerned are de facto psychological phenomena which pre-exist and are not merely the creation of the legal order. See Pound, 3 Jurisprudence, 5-24, esp. 16-21.

1773. Pound’s proposals seem, in the last analysis, to be an attempt to implement the familiar thought that there should be a correspondence between the demands made by man in a given society at a given time and its law at that time.

1774. The scheme of interests should include, all the de facto claims actually made. This, of course, is not to say that every de facto claim or interest which finds a place in the scheme of interests will be given effect in all circumstances. Claims within a legal order which are not necessarily mutually incompatible may nevertheless come into conflict in particular situations. Indeed most of the problems in which the judgment of justice is called for arise from a conflict of two or more of such de facto claims, none of which can be given effect to completely without prejudice to the others. The scheme of interests, like the jural postulates, is a device for presenting to the mind of the legislator a rough picture of the actual claims made by men in a given society at a given time, to which justice requires them to give effect so far as possible. See Julius Stone, Human Law and Human Justice, pp. 269-270. And what are the de facto claims crying aloud for recognition as interests for the millions of people of this country? That can probably admit of only one answer, by those who have eyes to see and ears to hear. By and large the rough picture of the actual claims made by the millions of people in this country and which demand recognition as interests protected by law is sketched in Part IV of the Constitution. A judgment of justice is called for when these claims which call for recognition in law as interest conflict with other rights and interests. That judgment has to be made by the dominant opinion in the community. For a Judge to serve as a communal mentor, as Learned Hand said, appears to be a very dubious addition to his duties and one apt to interfere with their proper discharge. The court is not the organ intended or expected to light the way to a saner world, for, in a democracy, that choice is the province of the political branch i.e. of the representatives of the people, striving however blindly or inarticulately, towards their own conception of the Good Life.

1775. It is inevitable that there should be much gnashing of teeth when a society opts for change and breaks with its older laissez faire tradition, which held before the eyes of both the rich and the poor a golden prize for which each may strive though all cannot attain it and which in particular provided the rich with an enchanting vision of infinite expansion, and switches on to a new social order where claims of individual self assertion and expansion are subordinated to the common good.

1776. To sum up this part of the discussion, I think there are rights which inhere in human beings because they are human beings-whether you call them natural rights or by some other appellation is immaterial. As the preamble indicates, it was to secure the basic human rights like liberty and equality that the people gave unto themselves the Constitution and these basic rights are an essential feature of the Constitution; the Constitution was also enacted by the people to secure justice, political, social and economic. Therefore, the moral rights embodied in Part IV of the Constitution are equally an essential feature of it, the only difference being that the moral rights embodied in Part IV are not specifically enforceable as against the State by a citizen in a Court of law in case the State fails to implement its duty but, nevertheless, they are fundamental in the governance of the country and all the organs of the State, including the judiciary, are bound to enforce those directives. The Fundamental Rights themselves have no fixed content; most of them are mere empty vessels into which each generation must pour its content in the light of its experience. Restrictions, abridgement; curtailment, and even abrogation of these rights in circumstances not visualized by the Constitution-makers might become necessary; their claim to supremacy or priority is liable to be overborne at particular stages in the history of the nation by the moral claims embodied in Part IV.

Whether at a particular moment in the history of the nation, a particular Fundamental Right should have priority over the moral claim embodied in Part IV or must yield to them is a matter which must be left to be decided by each generation in the light of its experience and its values. And, if Parliament, in its capacity as the Amending Body, decides to amend the Constitution in such a way as to take away or abridge a Fundamental Right to give priority value to the moral claims embodied in Part IV of the Constitution, the Court cannot adjudge the Constitutional amendment as bad for the reason that what was intended to be subsidiary by the Constitution-makers has been made dominant. Judicial review of a Constitutional amendment for the reason that it gives priority value to the moral claims embodied in Part IV over the Fundamental Rights embodied in Part III is impermissible. Taking for granted, that by and large the Fundamental Rights are the extensions, permutations and combinations of natural rights in the sense explained in this judgment, it does not follow that there is any inherent limitation by virtue of their origin or character in their being taken away or abridged for the common good. The source from which these rights derive their moral sanction and transcedental character, namely, the natural law, itself recognizes that natural rights are only prima facie rights liable to be taken away or limited in special circumstances for securing higher values in a society or for its common good. But the responsibility of the Parliament in taking away or abridging a Fundamental Right is an awesome one and whenever a question of Constitutional amendment which will have the above effect comes up for consideration, Parliament must be aware that they are the guardians of the rights and liberties of the people in a greater degree than the courts, as the courts cannot go into the validity of the amendment on any substantive ground.

1776. In the light of what I have said, I do not think that there were any express or implied limitations upon the power of Parliament to amend the Fundamental Rights in such a way as to destroy or damage even the core or essence of the rights and the 24th Amendment, by its language, makes it clear beyond doubt. The opening words of the amended article should make it clear that no invisible radiation from any other provision of the Constitution would operate as implied limitation upon the power of amendment.

Further, the amended Article 368 puts it beyond doubt that the power to amend the provisions of the Constitution is in the article itself that the power includes the power to add, vary or repeal any provision of the Constitution, that the power is a constituent power, that the assent of the President to a bill for amendment is compulsory and that nothing in Article 13(2) will apply to an amendment under the article.

1777. Article 368, as it stood before the Amendment, conferred plenary power to amend all the provisions of the Constitution and the 24th Amendment, except in one respect, namely, the compulsory character of the assent of the President to a bill for amendment, is declaratory in character. To put it in a different language, as the majority decision in the Golaknath case [1967] INSC 45; [1967] 2 S.C.R. 762 negatived the constituent power of the Parliament to amend the Fundamental Rights in such a way as to take away or abridge them which, according to the Amending Body, was wrong, the Amending Body passed the amendment to make it clear that the power to amend is located in the article, that it is a constituent power and not a legislative power as held by the majority decision in the Galaknalh case, that the power is plenary in character and that Article 13(2) is not a bar to the amendment of the Fundamental Rights in such a way as to take away or abridge them under Article 368. That the object of the amendment was declaratory in character in clear from the statement of Objects and Reasons for the Amendment. That says that the Amendment was made to provide expressly that the Parliament has competence, in the exercise of its amending power, to abridge or take away the Fundamental Rights since the majority in the Golaknath Case held that the Parliament had no such power. As I have already said, the Amendment has added nothing to the content of the article except the requirement as to the compulsory character of the assent of the President to the bill for amendment. That an Amending Body, in the exercise of its power to amend, if the power to amend is plenary, can make an amendment in order to make clear what was implicit in the article and to correct a judicial error in the interpretation of the article appears to me to be clear.

1778. Mr. Palkhivala contended that as the power to amend under Article 368 as it stood before the 24th Amendment was itself limited, the power to amend that power cannot be utilised to enlarge the amending power.

1779. There is nothing illegal or illogical in a donor granting a limited power coupled with a potential power or capacity in the donee to enlarge the limit of that power according to the discretion of the donee. It is a mistake to suppose even on the assumption that the actual power to amend under Article 368 as it stood before the 24th Amendment was limited, the Amending Body cannot enlarge the limit of the power. As I said, even if it be assumed that the actual power for amendment under the article was limited, the article gave the Amending Body a potential power, to enlarge or contract the limit of the actual power. The potential power when exercised by the Amending Body makes the actual power either enlarged or contracted. The wording of proviso to Article 368, viz., “If the amendment seeks to make any change…(e) in the provision of this article” makes it clear chat the object of the amendment of the article is to make change in Article 368. On what basis is the assumption made that by making change in the article, the area of the power, if actually limited, cannot be enlarged? I must confess my inability to perceive any limit as to the character of the change that might be made in the amending power. It was assumed by Hidayatullah, J. in his judgment in Golaknath Case that the article can be so amended and a Constituent Assembly convoked to amend the Fundamental Rights. Is such an amendment of Article 368 possible if the argument of the petitioner is right that the power to amend the amending power cannot be exercised so as to change the locus or the width of the amending power? The only thing required would be that the amending power should be amended in the manner and form prescribed by the article itself. And there is no case that that has not been done.

1780. Counsel also submitted that the operation of Article 13(2) was not liable to be taken away by the amendment. He said that although there was no express provision in Article 13(2) or in Article 368 which prevented the operation of Article 13(2) being taken away, there was implied limitation for the reason that, if the Fundamental Rights could not have been amended in such a way as Co take away or abridge them because of the inhibition contained in Article 13(2), that inhibition could not have been removed indirectly by amending Article 368 and Article 13(2). In other words, the argument was, as the word ‘law’ in Article 13(2) included an amendment of the Constitution, that was an express bar to the amendment of the Fundamental Rights in such a way as to take away or abridge them and, therefore, the Amending Body cannot do in two stages what it was prohibited from doing in one stage. Even on the assumption that the word ‘law’ in Article 13(2) included an amendment of the Constitution, I think there was nothing which prevented the Amending Body from amending Article 368 and Article 13(2) in such a way as to exclude the operation of Article 13(2) as there was no express or implied prohibition for doing so.

1781. The next question for consideration is whether the 25th Amendment is valid. By that Amendment, Article 31(2) was amended and the amended article says that no property shall be acquired save by the authority of law which provides for acquisition or requisition 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 that 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. An exception has been made in the case of acquisition of property belonging to an educational institution established and administered by a minority referred to in Clause (1) of Article 30 by providing that the State shall ensure that the amount fixed by or determined under the law for acquisition of such property must be such as would not restrict or abrogate the right guaranteed under than clause. Clause (2B) to Article 31 provides for dispensing with the application of Article 19(1)(f) to any law as is referred to in Sub-clause (2) of Article 31. A new article was also inserted viz., Article 31C which provides that 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 Articles 14, 19 and 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.

1782. Mr. Palkhivala contended that the Fundamental Right to acquire, hold and dispose of property is an essential feature of the Constitution, that there can be no dignified citizens in a State unless they have the right to acquire and hold property, that the right to acquire and hold property is essential for the enjoyment of all other Fundamental Rights as it is the basis on which all other rights are founded, that the Fundamental Rights guaranteed to the minorities would become a rope of sand if the right to hold and dispose of property can be taken away and as power to acquire property for an ‘amount’ inadequate or illusory is given to the Parliament or State Legislature, that would damage the essence or core of the Fundamental Right to property. Counsel said that if the core or the essence of the right to hold property could be taken away by a law, the right to freedom of press under Article 19(1)(a) would become meaningless as a publisher could be deprived of his printing press by paying him a nominal amount and that the fundamental right of the workers to form associations and of the religious denominations to establish and maintain institutions for religious and charitable purposes would become empty words.

1783. The framers of the Constitution regarded the right to acquire and hold property as a Fundamental Right for the reason that a dignified human life is impossible without it.

Whether it is the weakest of all Fundamental Rights would depend upon the question whether there is a heirarchy of values among the Fundamental Rights. The concept of preferred freedoms is an indication that some judges are inclined to put the right to hold property low in the scale of values.

1784. The exponents of natural law like Aristotle, St. Thomas Aquinas, Hobbes and even positivists are agreed that right to life and property is the presupposition of a good legal order. Property, according to Aristotle, is an instrument of the best and highest life.

Property is the necessary consequence and condition of liberty. Liberty and property demand and support each other.

1785. The doctrine of natural rights has exercised a profound influence upon the conception of private property. In its most modern form it insists that property is indispensable to man’s individual development and attainment of liberty, Without dominion over things, man is a slave. See John Moffatt Mecklin, “An Introduction to Social Ethics”, pp. 302-321.

1786. The most that we can claim, as a general principle applicable to all stages of social development, is that without some property or capacity for acquiring property there can be no individual liberty, and that without some liberty there can be no proper development of character. See Rashdall, “Property : Its Duties and Rights”, pp. 52-64.

1787. Persons without property enjoy no sense of background such as would endow their individual lives with a certain dignity. They exist on the surface; they cannot strike roots, and establish permanency. Holland, “Property : Its Duties and Rights”, pp. 183-192.

1788. In short, the concept of property is not an arbitrary ideal but is founded on man’s natural impulse to extend his own personality. In the long run, a man cannot exist, cannot make good his right to marriage or found a family unless he is entitled to ownership through acquisition of property.

1789. However, it is a very common mistake to speak of property as if it were an institution having a fixed content constantly remaining the same; whereas in reality, it has assumed the most diverse forms and is still susceptible to great unforeseen modifications.

1790. The root of the difficulty is that in most of the discussions the notion of private property is used too vaguely. It is necessary to distinguish at least three forms of private property : (i) property in durable and non-durable consumer’s goods; (ii) property in the means of production worked by their owners; (iii) property in the means of production not worked or directly managed by their owners, especially the accumulations of masses of property of this kind in the hands of a relatively narrow class. While the first two forms of property can be justified as necessary conditions of a free and purposeful life, the third cannot. For this type of property gives power not only over things, but through things over persons. It is open to the charge made that any form of property which gives man power over man is not an instrument of freedom but of servitude. See Professor Morris Ginsberg, “Justice in Society”, p. 101.

1791. The foundation of our society today is found not in functions, but in rights; that rights are not deducible from the discharge of function, so that the acquisition of wealth and the enjoyment of property are contingent upon the performance of services but that the individual enters the world equipped with rights to the free disposal of this property and the pursuit of his economic self-interest, and that these rights are anterior to, and independent of any service which he may render. In other words, “the enjoyment of property and the direction of industry are considered to require no social justification”

(See the passage quoted in “Equal Protection Guarantee and the Right to Property under the Indian Constitution”, by Jagat Narain, International And Comparative Law Quarterly, Vol. 15, 1966, pp. 206-7).

1792. The framers of our Constitution made the right to acquire, hold and dispose of property a Fundamental Right thinking that every citizen in this country would have an opportunity to come by a modicum of that right. Therefore, as the learned Attorney General rightly contended any defence of the right to own and hold property must essentially be the defence of a well distributed property and not an abstract right that can, in practice, be exercised only by the few.

1793. Article 39(b) provides that the State shall direct its policy towards securing that the ownership and control of the material resources of the community are so distributed as best to subserve the common good. Article 39(c) states that the State shall direct its policy towards securing that the operation of the economic system does not result in the concentration of wealth and means of production to the common detriment.

1794. Sir Ivor Jennings has said that the propositions embodied in these sub-articles are derived from Article 45 of the Irish Constitution and that in turn is based upon Papal Bulls. See Sir Ivor Jennings, “Some Characteristics of the Indian Constitution”, pp. 31- 32.

1795. His Holiness Pope Paul VI, following the previous encyclicals on the subject has said : See Encyclical Letter of Pope Paul VI (1967), “On the Development of Peoples”, pp. 18, 58, footnote at p. 58.

To quote St. Ambrose : “…the world is given to all, and not only to the rich”. That is, private property does not constitute for anyone as absolute and unconditioned right. No one is justified in keeping for his exclusive use what he does not need, when others lack necessities. In a word, ‘according to the traditional doctrine as found in the Fathers of the Church and the great theologians, the right to property must never be exercised to the detriment of the common good.

God has intended the earth and all that it contains for the use of all men and all peoples. Hence, justice, accompanied by charity, must so regulate the distribution of created goods that they are actually available to all in an equitable measure.

Moreover, all have the right to possess a share of earthly goods sufficient for themselves and their families.

In extreme necessity all goods are common, that is, are to be shared.

1796. The basic institution of property is not to be confused with particular forms it may assume in different ages or regions. These will be justified according as they continue to show that they are achieving the general aim of ministering to the good of human life.

Natural right may also be violated under a regime in which a great number, although theoretically free, are in practice excluded from the possibility of acquiring property. See William J. McDonald, “The Social Value of Property according to St. Thomas Aquinas”, p. 183.

1797. When property is acquired for implementing the directive principles under Article 39(b) or 39(c), is there an ethical obligation upon the State to pay the full market value? In all civilized legal systems, there is a good deal of just expropriation or confiscation without any direct compensation. Indeed, no one, in fact, had the courage to argue that the State has no right to deprive an individual of property to which he is so attached that he refuses any money for it. Article 31(2A) proceeds on the assumption that there is no obligation upon the State to pay compensation to a person who is deprived of his property. What does it matter to the person who is deprived of his property whether after the deprivation, the State or a Corporation owned or controlled by the State acquires title to it? Every acquisition by State pre-supposes a deprivation of the owner of the property.

If when depriving a person of his property, the State is not bound to pay compensation, what is the principle of justice which demands that he should be compensated with full market value merely because the title to the property is transferred to State or the Corporation as aforesaid after the deprivation. No absolute principle of justice requires it.

The whole business of the State depends upon its rightful power to take away the property of Dives in the form of taxation and use it to support Lazarus. When slavery was abolished in America, by law, the owners had their property taken away. The State did not consider itself ethically bound to pay them the full market value of their slaves. It is certainly a grievous shock to a community to have a large number of slave owners, whose wealth made them leaders of culture, suddenly deprived of their income. Whether it was desirable for the slaves themselves to be suddenly taken away from their masters and cut adrift on the sea of freedom without compensation is another matter. “When prohibition was introduced in America, there was virtual confiscation of many millions of dollars’ worth of property. Were the distillers and brewers entitled to compensation for their losses?. The shock to the distillers and brewers was not as serious as to others e.g., saloon keepers and bartenders who did not lose any legal property since they were only employees, but who found it difficult late in life to enter new employments. These and other examples of justifiable confiscation without compensation are inconsistent with the absolute theory of private property”. See generally M.R. Cohan, “Property and Sovereignty”, Law and Social Order, p. 45 onwards.

1798. An adequate theory of social justice should enable one to draw the line between justifiable and unjustfiable cases of confiscation.

1799. The intention of the framers of the Constitution, when they drafted Article 24 [the original Article 31(2)], can be seen from the speech of Pandit Jawaharlal Nehru in the Constituent Assembly on September 10, 1949. Constituent Assembly Debates, Vol. IX, 1193.

…Eminent lawyers have told us that on a proper construction of this clause, normally speaking, the judiciary should not and does not come in.

Parliament fixes either the compensation itself or the principles governing that compensation and they should not be challenged except for one reason, where it is thought that there has been a gross abuse of the law, where in fact there has been a fraud on the Constitution.

1800. Shri K.M. Munshi (who spoke in the Constituent Assembly on the draft Article 24 on September 12, 1949, observed : Constituent Assembly Debates, Vol. IX, p. 1299.

We find on the English Statute Book several Acts, the Land Acquisition Act, the Land Clauses Act, the Housing Act, in all of which a varying basis of compensation has been adopted to suit not only to the nature of the property but also the purpose for which it is to be acquired. Parliament therefore is the judge and master of deciding what principles to apply in each case.

1801. In the State of West Bengal v. Bela Banerjee (1954) S.C.R. pp. 558, 563-4, the expectation entertained by the Constituent Assembly that the Court will not interfere with the fixation of compensation by Parliament was belied. The Court said in that case that the owner of the property expropriated must be paid the just equivalent of what he has been deprived of and that within the limits of this basic requirement of full indemnification of the expropriated owner, the Constitution allows free play to the legislative judgment as to what principles should guide the determination of the amount payable.

1802. In order to bring Article 31(2) in conformity with the clear inten tion of the framers of the Constitution, the Fourth Amendment to the Constitution was passed and it came into effect on April 27, 1955. At the end of Article 31(2) the following words were introduced by the Amendment : “…and no such law shall be called in question in any Court on the ground that the compensation provided by the law is not adequate.” The effect of the amendment was considered by this Court in P. Vajravelu Mudaliar v. Deputy Collector (1965) 1 S.C.R. pp. 614, 626. Subba Rao, J. (as he then was) said that the fact that Parliament used the same expressions namely, ‘compensation’ and ‘principles’ as were found in Article 31 before the amendment is a clear indication that it accepted the meaning given by this Court to those expressions in Mrs. Bela Banerjee’s Case and that it follows that a Legislautre in making a law of acquisition or requisition shall provide for a just equivalent of what the owner has been deprived of or specify the principles for the purpose of ascertaining the ‘just equivalent’ of what the owner has been deprived of.

1803. In Union of India v. Metal Corporation (1967) 1 S.C.R. p. 255, it was laid down that to provide written down value of a machinery (as it was understood under the Income Tax Act) was not in compliance with Article 31(2) because it did not represent the just equivalent of the machinery, meaning thereby, the price at or about the time of its acquisition. Subba Rao, J. said that the law to justify itself has to provide for the payment of a ‘just equivalent’ to the land acquired or lay down principles which will lead to that result.

1804. Two years later, in Gujarat v. Shantilal [1969] INSC 8; (1969) 3 S.C.R. 341, this Court overruled the decision in the Metal Corporation Case and Shah, J. observed that if the quantum of compensation fixed by the Legislature is not Habile to be canvassed before the Court on the ground that it is not a just equivalent, the principles specified for determination of compensation will also not be open to challenge on the plea that the compensation determined by the application of those principles is not a just equivalent.

1805. In the Bank Nationalisation Case R.C. Cooper v. Union of India [1970] 3 S.C.R.

530, the majority decision virtually overruled the decision in Gujarat v. Shantilal. The majority was of the view that even after the Fourth Amendment ‘compensation’ meant “the equivalent in terms of money of the property compulsorily acquired” according to ‘relevant principles’ which principles must be appropriate to the determination of compensation for the particular class of property sought to be acquired.

1806. It was in these circumstances that the word ‘amount’ was substituted for ‘compensation’ in the sub-article by the 25th Amendment.

1807. It was submitted on behalf of the petitioner that the word ‘amount’ implies a norm for fixing it and that at any rate, when principles for fixing the amount are referred to, the principles must have some relevancy to the amount to be fixed.

1808. The whole purpose of the amendment was to exclude judicial review of the question whether the ‘amount’ fixed or the principle laid down by law is adequate or relevant.

1809. Mukherjea, C.J. said in Rat Sahib Ram Jawaya Kapur v. State of Punjab (1955) 2 S.C.R. 225, 237, that the Cabinet, enjoying as it does, a majority in the legislature concentrates in itself the virtual control of both legislative and executive functions; and as the Ministers constituting the Cabinet are presumably agreed on fundamentals and act on the principle of collective responsibility, the most important questions of policy are all formulated by them.

1810. Much the same sentiment was expressed by Hegde, J. see Sita Ram Bishambhar Dayal v. State of U.P. (1972), 29 Sales Tax Cases, 206:

In a Cabinet form of Government, the executive is expected to reflect the views of the Legislature. In fact in most matters it gives the lead to the Legislature. However much one might deplore the “New Despotism” of the executive, the very complexity of the modern society and the demand it makes on its government have set in motion forces which have made it absolutely necessary for the legislatures to entrust more and more powers to the executive. Text book doctrines evoked in the 19th century have become out of date….

1811. When the Cabinet formulates a proposal for acquisition of property, it will have the relevant materials to fix the amount to be paid to the owner or the principles for its fixation. Several factors will have to be taken into account for fixing the amount or laying down the principles; the nature of the property sought to be acquired, the purpose for which the acquisition is being made, the real investment of the owner excluding the fortuitous circumstances like unearned increment and also marginal utility of the property acquired to the owner. Principles of social justice alone will furnish the yardstick for fixing the amount or for laying down the principles. The proposal becomes embodied in law, if the Parliament agrees to the Bill embedying the proposal. The whole point is that the fixation of the amount or the laying down of the principle for fixing it is left to the absolute discretion of the Parliament or the State Legislatures on the basis of consideration of social justice. That the fixation is in the absolute discretion of Parliament or the State Legislature is further made clear when it is laid down that “no such law shall be called in question in any Court on the ground that the amount so fixed or determined is not adequate.” If the Parliament or State legislature can fix any amount, on consideration of principles of social justice, it can also formulate the principle for fixing the amount on the very same consideration. And the principle of social justice will not furnish judicially manageable standards either for testing the adequacy of the amount or the relevancy of the principle.

1812. The article as amended provides no norm for the Court to test the adequacy of the amount or the relevancy of the principle. Whereas the word ‘compensation’, even after the Fourth Amendment, was thought to give such a norm, namely, the just’ equivalent in money of the property acquired or full indemnification of the owners the word ‘amount’ conveys no idea of any norm. If supplies no yard-stick. It furnishes no measuring rod.

The neutral word ‘amount’ was deliberately chosen for the purpose. I am unable to understand the purpose in substituting the word ‘amount’ for the word ‘compensation’ in the sub article unless it be to deprive the Court of any yardstick or norm for determining the adequacy of the amount and the relevancy of the principles fixed by law. I should have thought that this coupled with the express provision precluding the Court from going into the adequacy of the amount fixed or determined should put it beyond any doubt that fixation of the amount or determination of the principle for fixing it is a matter for the Parliament alone and that the Court has no say in the matter.

This Court said in Shantilal’s Case [1969] 3 S.C.R. pp. 341, 366:

…it does not however mean that something fixed or determined by the application of specified principles which is illusory or can in no sense be regarded as compensation must be upheld by the courts, for, to do so, would be to grant a charter of arbitrariness.

1813. These observations were made with reference to the sub-article as it stood before the 25th Amendment, namely, before the substitution of the word ‘amount’ for the word ‘compensation’ in it Even if the decision of this Court in Shantilal’s Case is assumed to be correct, what is its relevancy after the substitution of the word ‘amount’ in Article 31(2) as regards the jurisdiction of the Court to test the adequacy of the amount on the ground of arbitrariness.

1814. I do not propose to decide nor is it necessary for the purpose of adjudging the validity of the 25th Amendment whether a law fixing an amount which is illusory or which is a fraud on the Constitution, can be struck down by Court. It is said that the instances in which the Court can interefere to test the adequacy of compensation or the relevancy of the principles for determination of compensation had been laid down in the Bank Nationalisation Case and when the 25th Amendment did not make any change in the clause, namely, “no such law shall be called in question in any court on the ground that the amount so fixed or determined is not adequate” but retained it in its original form, the only inference is that the Parliament approved the interpretation placed upon the clause by this Court and, therefore, the Court has power to examine the question Whether the amount fixed by law is adequate or illusory or that the principles for fixation of the amount are relevant. I am not quite sure about the nature of the presumption when the word “compensation” has, been deleted from the sub-article and the word “amount”

substituted.

1815. In The Royal Court Derby Procelain Co. Ltd. v. Raymond Russel [1949] 2 K.B.

417 at 429 Denning, L.J. said:

I do not believe that whenever Parliament re-enacts a provision of a statute if thereby gives statutory authority to every erroneous interpretation which has been put upon it. The true view is that the Court will be slow to overrule a previous decision on the interpretation of a statute when it has long been acted on, and it will be more than usually slow to do so when Parliament has, since the decision, re-enacted the statute in the same terms.

1816. See also the speech of Lord Radcliffe in Galloway v. Galloway [1956] A.C. 299.

The presumption, if there is any, is always subject to an intention to the contrary.

1817. Counsel for the petitioner argued that as Article 19(i)(f) is still retained it would be paradoxical if a law could provide for acquisition or requisition of property on payment of an inadequate or illusory amount. He said, even if the amount given is not the just equivalent in money of the value of the property acquired, it must at least be an amount having reasonable relation to its value as Parliament cannot be deemed to have intended by the Amendment to enable a law being passed fixing an unreasonably low amount as the right to acquire and hold property is still a Fundamental Right under Article 19. If we are to import into the concept of ‘amount’ the implication of reasonableness with reference to the market value of the property, it would immediately open the door to the justiciability of the question of the adequacy of the amount fixed or determined which the sub-article expressly says it is not open to the Court to go into.

1818. The Fundamental Right to property is attenuated to a certain extent. But it is not wholly taken away. The right that the property could be acquired only under a law fixing an amount or the principles for determining it and for a public purpose would still remain.

This Court can strike down an amendment of the Constitution only on the ground that the amendment was not made in the manner and form required by Article 368, or that the amendment was made in violation of some express or implied limitation upon the power of amendment.

1819. A Constitutional amendment which provides for the law fixing the ‘amount’ or the principles for determining the amount instead of compensation or the principles for its determination and which deprives the Court of the power of judicial review of the question whether the amount or the principles fixed by law is adequate or are relevant, cannot be adjudged bad on the ground of some invisible radiation from the concept that the right to acquire, hold or dispose of property is a Fundamental Right.

1820. If full moon compensation has to be paid, concentratiion of wealth in the form of immovable or movable property will be transformed into concentration of wealth in the form of money and how is the objective underlying Article 39(b) and (c) achieved by the transformation ? And with there be enough money in the coffers of the State to pay full compensation? 1821. As the 24th Amendment which empowers Parliament to take away or abridge Fundamental Right has been held by me to be valid, I do not think there is any conceivable basis on which I can strike down the amendment to Article 31(2). Nor can I read any implication in to the word ‘amount’ and say that it must be reasonable as that would imply a standard. Having regard to the neutral and colourless character of the word ‘amount’ and the express provision excluding judicial review of the question of the adequacy of the amount, the question of reasonableness of the amount or the relevancy of the principle is entirely outside the judicial ken.

1822. Now I turn to the question of the validity of Article 31C.

1823. Counsel for the petitioner submitted that there is a fundamental distinction between amending Fundamental, Rights in such a way as to abridge or take them away and making an amendment in the Constitution which enables Parliament in its legislative capacity and the legislatures of the States to pass a law violating Fundamental Rights and making it valid. According to counsel what has been done by Article 31C is to enable Parliament and State Legislatures to make Constitution-breaking laws and put them beyond challenge in any Court with the result that laws which would be void as contravening the Fundamental Rights are deemed, by a fiction of law, to be not void and that is a repudiation of the supremacy of the Constitution which is an essential feature of the Constitution. Counsel further said the Directive Principles which were intended by the Constitution-makers to run as subsidiary to Fundamental Rights have been made paramount to them and laws to implement the Directive Principles specified in Article 39(b) and (c) are made immune from attack, even if they violate Fundamental Rights under Articles 14, 19 and 31. He further said that a declaration by Parliament of the State legislature that a law is to give effect to the policy of the State towards securing the principles specified in Article 39(b) or (c) has been made final which, in effect, means that Parliament and State legislatures can pass any laws in the exercise of their legislative power, whether they give effect to the policy of State towards securing the Directive Principles contained in Article 39(b) and (c) or not, and get immunity for those laws from attack under Articles 14, 19 and 31.

1824. I should have thought that Article 31C is a proviso to Article 13(2) in that it enables Parliament or State Legislatures to pass laws of a particular type which would not be deemed to be void even if they violate the provision of Articles 14, 19 and 31.

1825. I have no doubt that ‘law’ in Article 31C can only mean a law passed by Parliament or the State legislatures. The word must take its colour from the context.

1826. The makers of the Constitution imposed a ban by Article 13(2) upon the ‘State’ passing a law in contravention of the rights conferred by Part III. If 24th Amendment which enablies Parliament to make an amendment of the Fundamental Rights in such a way as to take away or abridge them is valid, what is there to prevent Parliament or state legislatures to pass law for implementing the Directive Principles specified in Article 39(b) and (c) which would be immune from attack on the ground that those laws violate Articles 14, 19 and 31? Is it not open to the Amending Body to enact an amendment saying in effect that although all laws passed by Parliament and State legislatures, which violate fundamental rights are void, laws passed by Parliament and State legislatures for giving effect to the policy of the State towards securing directive principles specified in Article 39(b) and (c) would not be void, even if they contravene some of the fundamental rights, namely, those under Articles 14, 19 and 31? Article 31C merely carves out a legislative field with reference to a particular type of law, and exempts that law from the ambit of Article 13(2) in some respects. Parliament or State legislatures pass a law for giving effect to the Directive Principles specified in Article 39(b) or (c), not by virtue of Article 31C, but by virtue of their power under the appropriate legislative entires. What Article 31C does is to confer immunity on those laws from attack on the ground that they violate the provision of Articles 14, 19 and 31.

1827. The material portion of Article 31A is in pari materia with the first part of Article 31G. Article 31A has been held to be valid by this Court in Sankari Prasad’s Case [1951] INSC 45; [1952] S.C.R. 89. The fact that the argument now urged did not occur to counsel who appeared in the case or the great judges who decided it is a weighty consideration in assessing its validity. To make a distinction between Article 31A on the ground that Article 31A provides for laws dealing with certain specified subjects only whereas Article 31C makes provisions for laws to give effect to the State policy for securing the directive principles specified in Article 39(b) and (c) is, to my mind, to make a distinction between Tweedledum and Tweedledee. One can very well say that the subject matter of the law referred to in Article 31C is that dealt with by Article 39(b) and (c) or that 31A provides for immunity of the laws for securing the objects specified therein from attack on the ground that they violate Articles 14, 19 and 31. Does the artificial characterisation of a law as one with reference to the object or subject make any difference in this context ? think not.

1828. It is a bit difficult to understand how Article 31C has delegated or, if I may say so more accurately, invested the Parliament in its legislative capacity or the State legislatures, with any power to amend the Constitution. Merely because a law passed by them to give effect to the policy of the State towards securing the Directive Principles specified in Article 39(b) and (c) in pursuance to valid legislative, entries in the appropriate Lists in the Seventh Schedule might violate the Fundamental Rights under Articles 14, 19 and 31 and such law is deemed not void by virtue of Article 31C, it would not follow that Article 31C has invested the Parliament in its legislative capacity or the State legislatures with power to amend the Constitution. It is by virtue of the 25th Amendment that the law, although it might violate the Fundamental Rights under Articles 14, 19 and 31 is not deemed viod. Whenever Parliament or State legislatures pass such a law, the law so passed gets immunity from attack on the ground that it violates the Fundamental Rights under Articles 14, 19 and 31 by Virtue of Article 31C which in effect has made a pro-tanto amendment of Article 13(2) in respect of that category of laws. It is a mistake to suppose that every time when Parliament in its legislative capacity or a State legislature passes such a law and if the law violates the Fundamental Rights under Articles 14, 19 and 31, it is that law which amends the Constitution and makes it valid. The amendment of the relevant provision of the Constitution, namely Article 13(2), has already been made by the 25th Amendment. And as I said it is that amendment which confers upon the law immunity from attack on the ground that it violates the Fundamental Rights under the above said articles.

1829. Parliament in its legislative capacity or the State legislatures cannot confer any immunity upon the laws passed by them from the attack and they do not do so. They rely upon the 25th Amendment as conferring the immunity upon the law which gives effect to the State Policy towards securing the above mentioned purpose. I confess my inability to understand the distinction between a law passed in pursuance of an amendment of the Constitution which lifts the ban of Article 13(2) and a law passed in pursuance of an amendment which says that the law shall not be deemed to be void on the ground that it is inconsistent with or takes away or abridges the rights conferred by the articles in Part III.

The distinction, to my mind, is invisible. Take one illustration : Article 15(4) says:

Nothing in this article or in Clause (2) of Article 29 shall prevent the State from making any special provisions for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and Scheduled Tribes.

Suppose the sub-article had said:

Notwithstanding anything contained in this article, or Clause 2 of Article 29 the State shall be competent to make special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and Scheduled Tribes and such a law shall not be deemed to be void under Article 13(2).

In both the cases, the amendment has brought about the same effect, namely, the law shall not be deemed to be void for contravention of the right conferred by Article 15 or Article 29(2), notwithstanding the difference in the wording by which the effect was brought about. And, in both cases it is the amendment of the Constitution which gives the law the immunity from attack on the ground that it is in contravention of the rights conferred by Part III.

1830. If Article 31C is assumed to invest Parliament in its legislative capacity or State legislatures with power to pass a law of the description in question amending Fundamental Rights under Articles 14, 19 and 31 in such a way as to take away or abridge them is the grant of such a power valid. The answer seems to me to be simple. If the effect of Article 31C is as assumed, then it is a pro-tanto amendment of Article 368. It is not necessary that Article 31C should in such a case purport to amend Article 368. See Mohamed Samsudeen Kariapper v. S.S. Wijesinha and Anr. (1968) A.C. 717, 739 to 744.

Nor is it necessary that Article 31C should commence with the words “Notwithstanding anything contained in Article 368”. Just as the Dog Act under an uncontrolled Constitution, pro-tanto amends the so called Constitution if it is inconsistent with it, so also under a controlled Constitution an amendment of the Constitution, if inconsistent with any provision of the Constitution would pro-tanto amend it. The 25th Amendment was passed in the manner and form required for amendment of Article 368. I cannot read any limitation upon the power to amend the amending power which would preclude Article 368 from being amended in such a way as to invest part of the amending power in Parliament in its ordinary legislative capacity or in State legislature, to be exercised by them in a form and manner different from that prescribed by Article 368.

1831. The supposed bad odour about the article should not upset our judgment in adjudging its Constitutionality. We have no power under the Constitution to adjudge a Constitutional amendment as unConstitutional on the ground that the amendment would in effect vest large powers in Parliament and State legislatures to pass laws which might violate Articles 14, 19 and 31.

1832. Counsel for the petitioner asked the question why the right to pass laws violating the freedom of speech guaranteed under Article 19(1)(a) is given to Parliament in its legislative capacity and to the State legislatures by Article 31C when it is seen that Clauses (b) and (c) of Article 39 are concerned with matters which have no connection with that freedom.

1833. In my dissenting judgment in Bennett Coleman and Co. and Ors. v. Union of India and Ors. etc. [1972] INSC 266; [1972] 2 S.C.C. 788, I had occasion to deal with certain aspects of the modern press. Mr. Seervai has rightly emphasized its commercial character and how that aspect, though connected with freedom of speech might require control. Though the press stands as the purveyor of truth and the disinterested counsellor of the people, it is now primarily a business concern; an undertaking conducted for profit like any other, that the proprietor is a man of business and though he may desire power as well as money, profit comes before political opinions. According to Lord Bryce the power of the newspaper has two peculiar features. It has no element of Compulsion and no element of Responsibility. Whoever exposes himself to its influence does so of his own free will. He need not buy the paper, nor read it nor believe it. If he takes it for his guide, that is his own doing. The newspaper, as it has no legal duty, is subject to no responsibility, beyond that which the law affixes to indefensible attacks on private character or incitements to illegal conduct. The temptations to use the influence of a newspaper for the promotion of pecuniary interests, whether of its proprietors or of others, have also increased.

Newspapers have become one of the most available instruments by which the Money power can make itself felt in politics, and its power is practically irresponsible, for the only thing it need fear is the reduction of circulation, and the great majority of its readers, interested only in business and sport, know little of and care little for the political errors it may commit. See Lord Bryce, “Modern Democracies”, Vol. I, the Chapter on “The Press in a Democracy”, pp. 104-124.

1834. The news content of the press enters at once into the thought process of the public.

The fulness and unbent integrity of the news thus becomes a profund social concern. That which is a necessary condition of performing a duty is a right; we may therefore speak of the moral right of a people to be well served by its press. Since the citizen’s political duty is at stake, the right to have an adequate service of news becomes a public responsibility as well. So freedom of the press must now cover two sets of rights and not one only. With the rights of editors and publishers to express themselves there must be associated a right of the public to be served with a substantial and honest basis of fact for its judgments of public affairs. Of these two, it is the latter which today tends to take precedence in importance. The freedom of the press has changed its point of focus from the editor to the citizen. This aspect of the question was considered by the United States Supreme Court in United States v. Associated Press 326 U.S. 20. Mr. Justice Black who wrote the majority opinion sees the welfare of the public as the central issue. The fundamental acknowledgement that press functions are now, in the eyes of the law as well as common sense “clothed with a public interest” suggest an affirmative obligation on the part of the Government.

1835. Nobody demurs when a law preventing adulteration of food is passed. Is the adulteration of news, the everyday mental pabulum of the citizen, a less serious matter? The need of the consumer to have adequate and uncontaminated mental food is such that he is under a duty to get it. Because of this duty his interest acquires the status of a right since the consumer is no longer free not to consume and can get what he requires only through the existing press organs, the protection of the freedom of the issuer is no longer sufficient to protect automatically the consumer or the community. The general policy of laissez faire in this matter must be reconsidered. The press is a public utility in private hands and cannot be left free from all kinds of regulation. The ante-thesis between complete laissez faire and complete governmental operation or control of the press is for our society unreal Therefore, the question is whether, without intruding on the press activity, the State may regulate the conditions under which those activities take place so that the public interest is better served. See Hocking, “The Freedom of the Press”, pp.

167-9. As I said in my judgment, concentration of power substitutes one controlling policy for many independent policies, it lessens the number of competitOrs. The influential part of the nation’s press is large scale enterprise closely inter-locked with the system of finance and industry. It will not escape the natural bias of what it is. Yet, if freedom is to be secure, the bias must be known and overcome. It may also be necessary for the State to extend the scope of present legal remedies, if a given type of abuse amounts to poisoning the wells of the public opinion. It might be necessary in passing a Jaw for giving effect to the State policy towards securing the Directive Principles contained in Article 39(b) and (c) to deal with the commercial aspect of the press, and that aspect being connected with the freedom of speech, it might become inevitable for the law to abridge that freedom.

1836. Whatever one’s personal views might be about the wisdom of Article 31C, whatever distrust one might have in the attempt at improving society by what one may think as futile if not mischievous economic tinkering, it is not for us to prescribe for the society or deny the right of experimentation to it within very wide limits.

1837. It was said that, as Article 31C bars judicial scrutiny of the question that a law containing the declaration gives effect to the policy of the State, Parliament and State legislatures can pass laws having no nexus with the Directive Principles specified in Article 39(b) or (c) and violate with impunity the Fundamental Rights under Articles 14, 19 and 31.

1838. The purpose of Article 31C is only to give immunity to a law for giving effect to the policy of the State towards securing the Directive Principles under Article 39(b) and (c) from attack on the ground that its provisions violate Articles 14, 19 and 31. A law which will never give effect the State policy towards securing these principles will enjoy no immunity, if any of its provisions violates these articles. It is only a law for giving effect to the State policy towards securing the principles specified in Article 39 (b) and (c) that can contain a declaration that it is for giving effect to such a policy and it is only such a declaration that will bar the scrutiny by the Court of the question that the law does not give effect to the policy. The expression ‘no law’ in the latter part of Article 31C can only mean the type of law referred to in the first part. To be more specific the expression ‘no law’ occurring in the latter part of the article can only mean ‘no such law’ as is referred to in the first part. It would be very strange were it otherwise. If any other construction were to be adopted, a declaration could shield any law, even if it has no connection with the principles specified in Article 39(b) or (c) from attack on the ground of violation of these articles. Any law under the Sun can be brought under the protective umbrella of the declaration. Therefore, as I said, it is only a law for giving effect to the policy of the State towards securing the principles specified in Clauses (b) and (c) of Article 39, that can contain a declaration. If a declaration is contained in any law which does not give effect to the policy of the State towards securing the principles specified in these clauses, the Court can go into the question whether the law gives effect to the said policy. Whenever a question is raised that the Parliament or State legislatures have abused their power and inserted a declaration in a law not for giving effect to the State policy towards securing the Directive Principles specified in Article 39(b) or (c), the Court must necessarily go into that question and decide it. To put it in other words, the legislative jurisdiction to incorporate a declaration that the law gives effect to the policy of the State is conditioned upon the circumstances that the law gives effect to the policy of the State towards securing the Directive Principles specified in Article 39(b) and (c). If this is so, the declaration that the law is to give effect to the policy of the State cannot bar the jurisdiction of the Court to go into the question whether the law gives effect to the policy.

The declaration can never oust the jurisdiction of the Court to see whether the law is one for giving effect to such a policy, as the jurisdiction of the legislature to incorporate the declaration is founded on the law being one to give effect to the policy of the State towards securing these principles.

1839. In order to decide whether a law gives effect to the policy of the State towards securing the Directive Principles specified in Article 39(b) or (c), a Court will have to examine the pith and substance, the true nature and character of the law as also its design and the subject matter dealt with by it together with its object and scope. If the Court comes to the conclusion that the declaration was merely a pretence and that the real purpose of the law is the accomplishment of some object other than to give effect to the policy of the State towards securing the Directive Principles in Article 39(b) and (c), the declaration would not be a bar to the Court from striking down any provision therein which violates Articles 14, 19 or 31. In other words, if a law passed ostensibly to give effect to the policy of the State is, in truth and substance, one for accomplishing an unauthorized object, the Court would be entitled to tear the veil created by the declaration and decide according to the real nature of the law.

1840. Apart from the safeguard furnished by judicial scrutiny, there is sufficient guarantee in Article 31C that a State legislature will not abuse the power as the law passed by it will be valid only when it has been reserved for the assent of the President and has obtained his assent. In the light of what I have said, the apprehension expressed in some quarters that if judicial scrutiny of the question whether the law gives effect to the policy of the State towards securing these Directive Principles is barred, it will lead to the disintegration of the country has no real foundation. Nor has the dictum of Justice Holmes : Holmes, “Collected Legal Papers”, pp. 295-296. “I do not think that the United States would come to an end if the Supreme Court lost our power to declare an Act of the Congress void. But I do think that the Union would be imperilled if we could not make that declaration as to the laws of the several States”, any relevance in the context.

1841. It was said that the Constitution-makers never intended that Fundamental Rights should be subservient to Directive Principles and that they visualized a society where the rights in Part III and the aspirations in Part IV would co-exist in harmony. (The doctrine of harmonious construction has been a panacea for many of our ills. But I am not sure of its efficiency.) A succeeding generation might view the relative importance of the Fundamental Rights and Directive Principles in a different light or from a different perspective. The value judgment of the succeeding generations as regards the relative weight and importance of these rights and aspirations might be entirely different from that of the makers of the Constitution. And it is no answer to say that the relative priority value of the Directive Principles over Fundamental Rights was not apprehended or even if apprehended was not given effect to when the Constitution was framed or to insist that what the Directive Principles meant to the vision of that day, it must mean to the vision of our time.

1842. I have no doubt in my mind as regards the validity of the 29th Amendment. For the reasons given in the judgment of my learned brother Ray, J., I hold that the 29th Amendment is valid.

1843. The argument in these cases lasted for well nigh six months. Acres of paper and rivers of ink have been employed before and during the argument in supplying the Court with materials from all sources. It will be a tragedy if our conclusion were to fail to give adequate guidance to the Bench concerned in disposing of these cases. I do not, want the conclusions to which I have reached to remain a Delphic oracle. I would, therefore, sum up my findings.

1844. I hold that the decision in Golaknath Case that the Parliament had no power to amend Fundamental Rights in such a way as to take away or abridge them was wrong, that the power to amend under Article 368 as it stood before the 24th Amendment was plenary in character and extended to all the provisions of the Constitution, that the 24th Amendment did not add anything to the content of Article 368 as it stood before the amendment, that it is declaratory in character except as regards the compulsory nature of the assent of the President to a bill for amendment and that the article as amended makes it clear that all the provisions of the Constitution can be amended by way of addition, variation or repeal. The only limitation is that the Constitution cannot be repealed or abrogated in the exercise of the power of amendment without substituting a mechanism by which the State is constituted and organized. That limitation flows from the language of the article itself.

1845. I do not think there were or are any implied or inherent limitations upon the power of amendment under the article.

1846. The 24th Amendment is valid.

1847. The 25th Amendment, including Article 31C, is valid. The word ‘amount’ in Article 31(2), as amended, does not convey the idea of any norm. The fixation of the amount or the principle for determining the amount is a matter within the absolute discretion of the Parliament or the State Legislatures. The Court cannot go into the question whether the amount fixed by law or the principle laid down for determining the amount is adequate or relevant.

1848. The declaration visualized in Article 31C that the law gives effect to the policy of the State towards securing the principles specified in Article 39(b) and (c) of the Constitution would not oust the jurisdiction of the Court to go into the question whether the law gives effect to the policy. The jurisdiction of Parliament or the State legislatures to incorporate the declaration in a law is conditioned upon the circumstance that the law is one for giving effect to the State policy towards securing the aforesaid principles.

1849. The 29th Amendment is valid.

1850. I would have the writ petitions disposed of in the light of these findings. I would make no order as to costs here.

M.H. Beg, J.

1851. This reference to a special bench of thirteen Judges, larger than any previous bench hearing a case in this Court, was made so that the correctness of a view which became binding law of this country by a narrow majority of one, as a result of the eleven Judge decision of this Court, in Golak Nath and Ors. v. State of Punjab and Anr. [1967] INSC 45; [1967] 2 S.C.R. 762 may be if need be reconsidered. That view was that the prohibition contained in Article 13(2) of our Constitution against the making of any law by the State “which takes away or abridges the rights conferred” by the chapter on Fundamental Rights making laws made in contravention of this provision void “to the extent of the contravention” applies to Constitutional amendments also. Although that was a decision on a limitation held to exist, under our Constitution, as it then stood, on the power of amendment contained in Article 368 of the Constitution, yet, it did not decide what the position would be, if Article 368 was itself amended under the express power of such amendment recognised by Clause (e) of the proviso to Article 368 (2) of the Constitution.

Although, that question, which then neither arose nor was decided, is before us now directly for decision, yet, I think, we cannot avoid pronouncing upon the correctness of the majority decision in the Golak Nath’s case (Supra), which has a bearing upon the scope of the power of amendment contained in the unamended Article 368.

1852. The cases before us have become so much loaded with learning and marked by brilliance of exposition of all the points involved, either directly or indirectly, both by my learned brethren and the members of the Bar of this Court, in view of the crucial importance, for the future Constitutional history of this country, of the issues placed before us, that it would be presumptuous on my part to attempt to deal with every point which has been raised. Indeed, it is not necessary for me to repeat such views as I accept as correct expressed by my learned brethren with whose conclusion I agree. The reasons for my very respectful disagreement with those conclusions of some of my other learned brethren with which I do not concur will become evident in the course of the few observations with which I shall content myself before recording my conclusions. I venture to make these observations because, as my learned Brother Mathew has pointed out, in cases of the nature before us, the healthier practice is to follow the example of House of Lords even though a multiplicity of opinions may produce a “thicket”, which, according to Judge Learned Hand, it is the function of judicial learning and wisdom to remove. I do hope that my observations will not add to the thickness of this thicket without some useful purpose served by making them.

1853. I think that we do stand in danger, in the circumstances stated above, of losing sight of the wood for the trees, and, if we get entangled in some of the branches of the trees we may miss reaching the destination; the correct conclusion or decision. I think I can speak for all my learned brethren as well as myself when I say that we are all conscious of the enormous burden which rests upon our shoulders in placing before the country the solution or solutions which may not only be correct but beneficial for it without doing violence to the law embodied in our Constitution to which we take oaths of allegiance.

1854. I am reminded here of what, Prof. Friedmann wrote in “Law in a Changing Society’. He said at page 61:

The task of the modern judge is increasingly complex. Hardly any major decision can be made without a careful evaluation of the conflicting values and interests of which some examples have been given in the preceding pages. Totalitarian government eliminates much of the conflict by dictating what should be done”.

The lot of the democratic judge is heavier and nobler. He cannot escape the burden of individual responsibility, and the great, as distinct from the competent, judges have, I submit, been those who have shouldered that burden and made their decisions as articulate a reflection of the conflicts before them as possible. They do not dismiss the techniques of law, but they are aware that by themselves, they provide ho solution to the social conflicts of which the law is an inevitable reflection”.

He also wrote there (at page 62):

The law must aspire at certainly at justice, at progressiveness, but these objectives are constantly in conflict one with the other. What the great judges and jurists have taught is not infallible knowledge, or a certain answer to all legal problems, but an awareness of the problems of contemporary society and an acceptence of the burden of decision which no amount of technical legal knowledge can take from us.

1855. The ‘Core’, a term and concept which Mr. Palkiwala has tried to impress upon us repeatedly with his extra-ordinary forensic ability and eloquence, or crux of the problem before us is thus stated in writing, in part 10 of Book 3, containing the concluding written submission of Mr. Palkiwala.

It is submitted that it would be impossible to dispose of these petitions without dealing with the most crucial question the true ambit of the amending power. This question can be decided either on the ground of the meaning of the word “amendment” in the unamended Article 368 or on the ground of inherent and implied limitations or on both the grounds, since they converge on the same point.

It is submitted with great respect that it would be impossible to deal with the questions relating to the 24th and 25th Amendments without deciding the true ambit of the amending power”.

The questions of the correct interpretation of the 24th Amendment and its validity cannot be decided unless this Hon’ble Court first comes to a conclusion as to whether the original power was limited or unlimited. If it was originally limited the question would arise whether the 24th Amendment should be “read down” or whether it should be held to be unConstitutional. Even the question of the correct construction of the 24th Amendment cannot be decided unless the starting point is first established, namely, the true, scope of the original amending power”.

Again, it would be impossible to decide the question whether Article 31(2) which has been altered by the 25th Amendment should be “read down” in such a way as to preserve the right to property or should be declared unConstitutional as abrogating the right to property,-unless and until it is first decided whether Parliament has the right to abrogate the right to property. This directly involves the question whether the amending power is limited or unlimited.

When one comes to Article 31C the necessity of deciding the limits of the amending power becomes unmistakable. The Article violates 7 essential features of the Constitution and makes the Constitution suffer a loss of identity. There can be no question of ‘reading down’ Article 31C. It can only be held to be unConstitutional on the ground that Parliament’s amending power was limited”.

To decide the question of the validity of Article 31C only on the ground that it virtually provider for amendment of the Constitution in a “manner and form” different from that prescribed by Article 368 would be a most unsatisfactory ground of decision. The question of prune importance is the limit on the amending power. The question of manner and form pales into total insignificance compared to the question of substantive limitation on the amending power”.

It is submitted with the greatest respect that the 69 days hearing would be virtually wasted if the judgment were to rest merely on the point of manner and form, avoiding the real issue of momentous significance, namely, the scope of the amending power. It is this vital issue which has really taken up the time of the Court for almost five months”.

1856. Before tackling the core or crux of the case which, as Mr. Palkiwala has rightly pointed out, is the question of the limits of the amending power found in Article 368 of the Constitution, I must make some preliminary observations on the very concepts of a Constitution and of legal sovereignty embodied in it, and the nature of the amending power as I conceive it. This and other parts of my judgment may also disclose what I think a judge should not hesitate to explore and expose leaving it merely to be inferred from the judgment as his “undisclosed major premises”. It is part of judicial function, in my estimation, to disclose and to justify to the citizens of this country what these premises are.

1857. I think that it is clear from the Preamble as well as the provisions of Parts III and IV of our Constitution that it seeks to express the principle : “Solus Populi Seprema Lex”.

In other words, the good of the mass of citizens of our country is the supreme law embodied in our Constitution prefaced as it is by the preamble or the ‘key’ which puts “justice, social, economic and political” as the first of the four objectives of the Constitution by means of which “the people” of India constituted “a sovereign democratic Republic”.

1858. A modern democratic Constitution is to my mind, an expression of the sovereign will of the people, although, as we all know, our Constitution was drawn up by a Constituent Assembly which was not chosen by adult franchise. Upon this Constituent Assembly was conferred the legal power and authority, by Section 8 of the Indian Independence Act, passed by the British Parliament, to frame our Constitution. Whether we like it or not, Section 6 and 8 of an Act of the British Parliament transferred, in the eye of law, the legal sovereignty, which was previously vested in the British Parliament, to the Indian Parliament which was given the powers of a Constituent Assembly for framing our Constitution.

1859. The result may be described as the transfer of political as well at legal sovereignty from one nation to another, by means of their legally authorised channels. This transfer became irrevocable both as a matter of law and even more so of fact. Whatever theory some of the die-hard exponents of the legal omnipotence of the British Parliament may have expounded, the modern view, even in Britain, is that what was so transferred from one nation to another could not be legally revoked. The vesting of the power of making the Constitution was however, legally in the Constituent Assembly thus constituted and recognised and not in “the people of India”, in whose name the Constituent Assembly no doubt spoke in the Preamble to the Constitution. The Constituent Assembly thus spoke for the whole of the people of India without any specific or direct legal authority conferred by the people themselves to perform this function.

1860. The voice of the people speaking through the Constituent Assembly constituted a new “Republic” which was both “Sovereign and Democratic”. It no doubt sought to secure the noble objectives laid down in the Preamble primarily through both the Fundamental rights found in Part III and the Directive Principles of State Policy found in Part IV of the Constitution. It would, however, not be correct, in my opinion, to characterise, as Mr. Palkiwala did, the Fundamental rights contained in Part III, as merely the means whereas the Directive Principles, contained in Part IV as the ends of the endeavours of the people to attain the objectives of their Constitution. On the other hand, it appears to me that it would be more correct to describe the Directive Principles as laying down the path which was to be pursued by our Parliament and State Legislatures in moving towards the objectives contained in the Preamble. Indeed, from the point of view of the Preamble, both the fundamental rights and the Directive Principles are means of attaining the objectives which were meant to be served both by the fundamental rights and Directive Principles.

1861. If any distinction between the fundamental rights and the Directive Principles on the basis of a difference between ends or means were really to be attempted, it would be more proper, in my opinion to view fundamental rights as the ends of the endeavours of the Indian people for which the Directive principles provided the guidelines. It would be still better to view both fundamental rights and the “fundamental” Directive Principles as guide lines.

1862. Perhaps, the best way of describing the relationship between the fundamental rights of individual citizens, which imposed corresponding obligations upon the States and the Directive Principles, would be to look upon the Directive principles as laying down the path of the country’s progress towards the allied objectives and aims stated in the Preamble, with fundamental rights as the limits of that path, like the banks of a flowing river, which could, be mended or amended by displacements replacements or curtailments or enlargements of any part according to the needs of those who had to use the path. In other words, the requirements of the path itself were more important. A careful reading of the debates in the Constituent Assembly also lead me to this premise or assumption. If the path needed widening or narrowing or changing, the limits could be changed. It seems to be impossible to say that the path laid down by the Directive Principles is less important than the limits of that path. Even though the Directive Principles are “non-justiciable,” in the sense that they could not be enforced through a Court, they were declared, in Article 37, as “the principles…fundamental in the governance of the country”. The mandate of Article 37 was : “it shall be the duty of the State to apply these principles in making laws”. Primarily the mandate was addressed to the Parliament and the State Legislatures, but, in so far as Courts of justice can indulge in some judicial law making, within the interstices of the Constitution or any Statute before them for construction, the Courts too are bound by this mandate.

1863. Another distinction, which seems to me to be valid and very significant it that, whereas, the fundamental rights were “conferred” upon citizens, with corresponding obligations of the State, the Directive Principles lay down specific duties of the State organs. In conferring fundamental rights, freedom of individual citizens, viewed as individuals, were sought to be protected, but, in giving specific directives to State organs, the needs of social welfare, to which individual freedoms may have to yield, were put in the forefront. A reconciliation between the two was, no doubt, to be always attempted whenever this was reasonably possible. But, there could be no doubt, in cases of possible conflict, which of the two had to be subordinated when found embodied in laws properly made.

1864. Article 38 shows that the first of the specific mandates to State organs says:

38. 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.

In other words, promotion of a social order in which “justice, social, economic, and political” was the first duty of all the organs of the State.

1865. The second specific mandate to State, organs, found in Article 39, contains the principles of what is known as the socialistic “welfare State”. It attempts to promote social justice by means of nationalisation and State action for a better distribution of material resources of the country among its citizens and to prevent the exploitation of She weak and the helpless. It runs as follows:

39. The State shall, in particular, direct its policy towards securing:

(a) that the citizens, men and women equally, have the light to an adequate means of livelihood.

(b) that the ownership and control of the material resources or the community are so distributed as best to subserve the common good;

(c) that the operation of the economic system does not result in the concentration of wealth and means of production to the common deteriment;

(d) that there is equal pay for equal work for both men and women;

(e) that the health and strength of workers, men and women, and the tender age of children are not abused and that citizens are not forced by economic necessity to enter avocations unsuited to their age or strength;

(f) that childhood and youth are protected against exploitation and against moral and material abandonment.

1866. On the views stated above, it would be difficult to hold that, the necessarily changeable limits of the path, which is contained in the Directive Principles, are more important than the path itself. I may mention here that it was observed in one of the early Full Bench decisions of the Allahabad High Court in Motilal and Ors. v. The Government of the State of Uttar Pradesh and Ors. A.I.R. 1951 All. 257 @ 296 by Sapru J.:

I shall also say a few words about the directives of State policy which, though not justiciable, may be taken info account in considering the Constitution as a whole. These directives lay down the principles which it will be the duty of the State to apply in the making of laws and their execution. Article 38 states 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”.

Article 39 lays down the principles which must inspire State policy.

Articles 40 to 51 concern themselves with such questions inter alia, as, for example, the right to work, to education and to public assistance, the promotion of education and economic interest of scheduled castes and the duty of the State to raise the level of of nutrition and to improve public health”.

My object in drawing attention to the nature of these objectives is to show that what the framers of the Constitution were after was to establish, what is generally known, now as the ‘welfare’ or the ‘social service state’, in this country. They had taken a comprehensive view of State activities and it is quite clear that they were not dominated by the laissez faire thought of the last century. So much about Directives. Now we come to fundamental rights”.

The object of these fundamental rights, as far as I can gather from a reading of the Constitution itself, was not merely to provide security to and equality of citizenship of the people living in this land and thereby helping the process of nation-building, but also and not less importantly to provide certain standards of conduct, citizenship, justice and fair play. In the background of the Indian Constitution, they were intended to make all citizens and persons appreciate that the paramount law of the land has swept away privilege and has laid down that there is to be perfect equality between one section of the community and another in the matter of all those rights which are essential for the material and moral perfection of man”.

1867. Indeed, in Balwant Rai v. Union of India A.I.R. 1968 All. 14, Dhavan J. went so as far to hold that “the duty of the State” under Article 37 to apply these principles in “making laws” was to be carried out even by the judiciary of the State whenever it had a choice between two possible constructions that is to say, when it could indulge in judicial “law making”.

1868. The next topic on which I will venture to make some observations is the significance and meaning of the word “sovereign”. What was constituted by the Constituent Assembly, speaking for the people of India, was a “Sovereign Democratic Republic”.

1869. Here, I may, mention the well-known distinction between “political sovereignty”

and “legal sovereignty”. Dicey in his Law of the Constitution (tenth edition), discussing the nature of Parliamentary Sovereignty said (at page 73):

The matter indeed may be carried a little further, and we may assert that the arrangements of the Constitution are now such as to ensure that the will of the electors shall by regular and Constitutional means always in the end assert itself as the predominant influence in the country. But this is a political, not a legal fact. The electors can in the long run, always enforce their will. But the courts will take no, notice of the will of the electOrs.

The judges know nothing about any will of the people except in so far as that will be expressed by an Act of Parliament, and would never suffer the validity of a statute to be questioned on the ground of its having been passed or being kept alive in opposition to the wishes of the electOrs. The political sense of the word ‘sovereignty’ is, it is true, fully as important as the legal sense or more so. But the two significations, though intimately connected together, are essentially different, and in some part of his work Austin has apparently confused the one sense with the other”.

1870. Legally, the British Parliament transferred the whole of its legal sovereignty over the people and territories of this country in British India to the Constituent Assembly which spoke in the name of the people of India. The Princely States came in through “Instruments of accession”. This means that the legal sovereignty was vested in the Constituent Assembly whereas the people of India may be said to be only politically “sovereign”. Their views were carefully ascertained and expressed, from various angles, by the Members of the Constituent Assembly, political sovereign thus operated outside the ambit of law yet made its impact and effect felt upon the legal sovereign, that is to say, the Constituent Assembly. In recognition of this fact and to bring out that it was really speaking on behalf of the people of India, the Constituent Asembly began the Preamble with the words : “We, the people of India”. This meant, in my estimation, nothing more than that the Constituent Assembly spoke for the people of India even though it was vested with the legal authority to shape the destiny of this country through the Constitution framed by it. There is not to be found, anywhere in our Constitution, any transfer of legal sovereignty to the people of India.

1871. The people of India speak through their representatives in the two Houses of Parliament. They approach the courts for the assertion of their rights. The courts adjudicate upon the rights claimed by them and speak for the Constitution and not directly for the people. Judges and other dignitaries of State as well as Members of Parliament take oadhs of allegiance to the Constitution and not to the people of India. In other words, the Constitution is the “Legal sovereign” recognised by Courts, although the ultimate ‘political’ sovereignty may and does reside in “the people”.

1872. We need not, I think”, embark on any academic discourse upon the various meanings of the term “sovereignty” which has given much trouble to political thinkers and jurists such as Luguit, Grierke, Maitland, Laski, Cole and others. I will be content with quoting the views of Prof. Ernest Barker expressed in his “Principles of Social &

Political Theory” an the nature and meaning of the term “sovereignty”, as the lawyers generally understand it. He says (at page 59):

There must exist in the State, as a legal association, a power of of final legal adjustment of all legal issues which arise in its ambit. The legal association will not be a single unit, and law will not be a unity, unless there is somewhere one authority to which crucial differences ultimately come, and which gives, as the authority of last resort, the ultimate and final decision. Different social groups may press different views of what is, or ought to be, law; it is even possible that different departments of the State may hold, and seek to enforce, different notions of what is legally right; there must be a final adjustment centre. That final adjustment-centre is the sovereign, the topmost rung of the ladder, the superanus or soverano, the ‘authority of the last word’. Sovereignty is not the same as general State-authority, or puissance publique : it is the particular sort of State authority which is the power and the right of ultimate decision”.

In one sense sovereignty is ‘unlimited-unlimited and illimitable. There is no question arising in the legal association, and belonging to the sphere of its operation, which may not come up to the sovereign, and which will not be finally decided by the sovereign if it so comes up to the topmost rung.

The adjustment-centre must be competent to adjust every issue, without exception, which may stand in need of adjustment. But there are other considerations also to be noticed; and these will show us that sovereignty, if it is not limited to particular questions and definite objects (limited, that is to say, in regard to the things which it handles), is none the less limited and defined by its own nature and its own mode of action”.

In the first place, and as regards its nature, sovereignty is the authority of the last word. Only questions of the last resort will therefore be brought to the sovereign. Much will be settled in the lower ranges and in the ordinary course of the action of general State-authority. In the second place, and as regards its mode of action, the sovereign is a part : and an organ of the legal association. Nothing will therefore come to the soverign which does not belong to the nature and operation of the legal association, as such.

Sovereignty moves within the circle of the legal association, and only within that circle; it decides upon questions of a legal order, and only upon those questions. Moving within that circle, and deciding upon those questions, sovereignty will only make legal pronouncements, and it will make them according to regular rules of legal procedure. It is hot a capricious power of doing anything in any way : it is legal power of settling finally legal questions in a legal way”.

1873. Prof. Ernest Barker went on to say (a) Ultimately, and in the very last resort, the sovereign is the Constitution itself-the Constitution which is the efficient and formal cause of the association; which brings it into being; which forms and defines the organs and methods of its operations, and may also form and define (if the Constitution either contains or is accompanied by a ‘declaration of right’) the purposes of its operation. It may be objected to this view that the sovereign is a body of living persons, and not an impersonal scheme; and that ultimate sovereignty must accordingly be ascribed, not to the Constitution, but to the Constitution-making body behind it which can alter and amend its provisions. But there is an answer to that objection.

The impersonal scheme of the Constitution is permanently present, day by day, and year by year; it acts continuously, and without interruption, as the permanent control of the whole operation of the State. The body of persons which can alter and amend the Constitution (and which, by the way, can act only under the Constitution, and in virtue of the Constitution) is a body which acts only at moments of interruption,, and therefore at rare intervals. The continuous control may more properly be termed sovereign than the occasional interruption; and we may accordingly say that the Constitution itself, in virtue of being such a control, is the ultimate sovereign”.

(b) Secondarily, however, and subject to the ultimate sovereignty of the Constitution we may say that the body which makes ordinary law, in the sense of issuing the day-to-day and the year-by-year rules of legal conduct, is the immediate sovereign. That body may be differently composed in different political systems. In the United States, for example, it is composed of Congress and President acting independently (though with mutual checks and reciprocal powers of overriding one another’s authority) on a system of co-ordination. In the United Kingdom it is composed of Parliament and His Majesty’s Ministers acting interdependently, and with a mutual give and take (though here too there are mutual checks, the Parliament can dismiss the Ministers by an adverse vote as vice versa they can dismiss Parliament by advising His Majesty to use his power of dissolution), on a system which is one of connextion rather than co-ordination. However composed, the body which makes the ordinary law of the land is the immediate sovereign, which issues final legal pronouncements on ordinary currrent questions to the extent and by the methods authorized under the Constitution. The immediate sovereign which makes the ordinary law in the United Kingdom is authorized by the Constitution to a greater extent of action, and to action by easier and speedier methods, than the the immediate sovereign which makes the ordinary law in the United States; but in either case the immediate sovereign is a body authorized by the Constitution, acting and able to act because it is so authorized”.

On the argument which is here advanced the Constitution is the ultimate sovereign, in virtue of being the permanent scheme, or standing expression, of what may be called the primary law of the political association; and the law and rule-making body is the immediate sovereign, in virtue of being the constant source and perennially active fountain of what may be called the secondary law of the land. Two difficulties confront the argument, one of them largely formal, but the other more substantial The first and largely formal difficulty is that it would appear to be inconsistent to begin by ascribing ultimate sovereignty to the Constitution rather than to the Constitution-making body, and then to proceed to ascribe immediate sovereignty to the law and rule making body rather than to the law. Does not consistency demand either that both sovereigns should be impersonal systems, or that both should be personal bodies; either that the ultimate sovereign should be ‘the rule of the Constitution’ and the immediate sovereign ‘the rule of law’, or that the ultimate sovereign should be the Constitution-making body and the immediate the law and rule-making body ? We may answer that inconsistency is inherent in the nature of the case. The position of the primary law of the State is different from that of the secondary law”.

1874. I have quoted rather extensively from the views of Prof. Ernest Barker as they appeared to me to have a special significance for explaining the relevant provisions of our Constitution. Indeed, Prof. Ernest Barker begins his exposition by citing the Preamble to the Constitution of India; and, he gives this explanation in his preface for such a beginning:

I ought to explain, as I end, why the preamble to the Constitution of India is printed after the table of contents. It seemed to me, when I read it, to state in a brief and pithy form the argument of much of the book; and it may accordingly serve as a key-note. I am the more moved to quote it because I am proud that the people of India should begin their independent life by subscribing to the principles of a political tradition which we in the West call Western, but which is now something more than Western.

1875. The “sovereignty of the Constitution”, as I see it, is “a feature”, as Bosanquet put it in his Theory of the Stale, “inherent in a genuine whole”. This means that it is not vested in all its aspects in any one of the three organs of the State but may be divided between them A mark of such sovereignty is certainly the possession of “Constituent Power”, although the totality of sovereign power may be divided. Laski wrote, in his “Grammar of Politics” (pages 296-297):

It may yet be fairly argued that, in every State, some distinction between the three powers is essential to the maintenance of freedom. Since the work of Locke and Montesquieu, we have come generally to admit the truth of Madison’s remark that the accumulation of all powers…in the same hands…may justly be pronounced the very definition of tyranny.

1876. In order to avoid concentration of such excessive power in few hands that it may corrupt or be misused by chose who wield it, our Constitution also divides or distributes legal sovereignty into three branches or organs of the State the Legislative, the Executive, and the Judicature. The sphere of the sovereignty of each is sought to be so demarcated by our. Constitution that the “genuine whole” appears in the form of three intersecting circles. In those portions of these circles where the judicial power intersects the legislative and the executive powers, the judicature acts as the supervisor or guardian of the Constitution and can check legislative or executive action. But, in the remaining parts of the two interhecting circles of the Legislative and the Executive spheres, the two other branches are supreme legally, just as the judicature is in its own, so that their decisions there cannot be questioned by the judicial branch of the State.

1877. Here we are concerned only with the relationship between judicial and the legislative organs. Our Constitution makes the judicature the ultimate testing authority, as the guardian of the Constitution, in so far as the ordinary law making is concerned. In the sphere of the primary fundamental law of the Constitution lies also the amending power contained in Article 368 of the Constitution over which the control of the judicature is limited to seeing that the form and the manner of the amendment is properly observed.

Beyond that, the authority of the judicial organ over the Constituent power vested in the Constitutional bodies or organs mentioned in Article 368 of the Constitution ceases. No doubt the judicial organ has to decide the question of the limits of a sovereign authority as well as that of other authorities in cases of dispute. But, when these authorities act within these limits, it cannot interfere.

1878. After having made a few observations about the nature of the sovereignty of the Constitution and the judicial function connected with it. I will say something about the urge for dynamic changes amply disclosed by the speeches in the Constituent Assembly, which is found embodied in the Preamble as well as the Directive Principles of our Constitution. Granville Austin observed in the “Indian Constitution : Cornerstone of a Nation” (at page 43):

What was of greatest importance to most Assembly members, however, was not that socialism be embodied in the Constitution, but that a democratic Constitution, with a socialist bias be framed so as to allow the nation in the future to become as socialist as its citizens desired or as 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.

1879. Thus, the direction towards which the nation was to proceed was indicated but the precise methods by which the goals were to be attained, through socialism or state action, were left to be determined by the State organs of the future. In laying down the principles, by means of which the poverty-stricken, exploited, down-trodden, ignorant, religion and superstition ridden masses of India, composed of diverse elements, were to be transferred into a strong united, prosperous, modern nation, it was assumed and said repeatedly that India’s economy must change its feudal character. Its social patterns, modes of thought and feeling, were to be changed and guided by scientific thinking and endavour so as to lead its people on towards higher and higher ranges of achievement in every direction.

1880. Our Constitution-makers, who included some of the most eminent jurists in the country, could not have been ignorant of the teachings of our own ancient jurists, Manu and Parashara, who had pointed out that the laws of each age are different. In support of this view, the late Dr. Ganga Nath Jha, in his treatise on Hindu Law, has cited the original passages from Manu and Parashara which run as follows:

(1) Anye krita yugay dharmaah tretaayam duaaparey parey anye kali yugey nreenaam yoga roopaanusaaratah-Manu.

(2) anye krita yugev dharma tretaayaama dyaaparcy parey anye kali yugey nreenaam yuga roopaanusaratah-Parashara.

1881. An English translation of the sense of the above passages runs as follows:

1882. “The fundamental laws (imposing fundamental duties or conferring fundamental rights) differ from age to age; they are different in the age known as krita from those in the dvaapara age; the fundamental, laws of the kali age are different from all previous ages; the laws of each age conform to the distinctive character of the age (yuga roopa nusaara tah)”. In other words, even our ancient jurists recognised the principle that one generation has no right to down future generations to its own views or laws even on fundamentals. The fundamentals may be different not merely as between one society and another but also as between one generation and another of the same society or nation.

1883. At any rate, I am convinced that we cannot infer from anything in the language of the unamended Article 368 any distinction, beyond that found in the more difficult procedure prescribed for amendment of certain Articles, between more and less basic parts of the Constitution. None are sacrosanct and transcendental, in the sense that they are immune from and outside the process of amendment found in Article 368 and while others only are subject to and within its ambit even before its amendment.

1884. My learned Brother Dwivedi, J., has, very, aptly, compared the mode of progress visualized by the Constitution as the movement of the chakra. Such a movement naturally involves that a part of the nation which may have been at the top at one time may move towards the bottom and then come back to the top again. The Constitution, however, visualizes the progress of the whole nation towards greater equality as well as prosperity.

The function of the amending provision, in such a Constitution, must necessarily be that of an instrument for dynamic and basic changes in the future visualized by our Constitution makers. The whole Constitution is based on the assumption that it is a means of progress of all the people of India towards certain goals. The course of progress may involve, as choices of lesser of two evils, occasional abrogations or sacrifices of some fundamental rights, to achieve economic emancipation of the masses without which they are unable to enjoy any fundamental rights in any real sense. The movement towards the goals may be so slow as to resemble the movement of a bullock-cart. But, in this age of the automobile and the aeroplane, the movement could be much faster.

1885. The Constitutional function with which the judiciary is entrusted, in such a Constitution, is to see that the chosen vehicle does not leave the charted course or path or transgress the limits prescribed by the Constitution at a particular time. The fundamental rights, as I have said eariler, may be viewed as such limits. The power of amendment, in a Constitution such as ours, must include the power to change these limitations to suit the needs of each age and generation. As the celebrated Justice Holmes said in his “Common Law”, the life of law has not been logic, but the “felt necessities” of the times. Every kind of law, whether fundamental or ordinary, has to be an attempted adaptation to the needs of the people at a particular time. The power of adaptation in a progressive nation, with a Constitution which visualizes a movement towards socialism must, therefore, be construed in the context of the whole setting of urges enshrined in the Constitution and what their satisfaction demands. So construed, it may involve changes in the very features considered basic today.

1886. I think it has been properly pointed out by Mr. Niren De, the Attorney General, and Mr. Seeravai, the Advocate-General of Maharashtra, that the proper function of Article 368, in a Constitution is to act as a safety valve against violent revolution. It can only so operate as a safety valve if we do not construe the powers of amendment contained in it so narrowly as to import, contrary to the clear meaning of its explicit language, any bar against the alteration or change of any features of our Constitution which may be characterised as basic.

1887. We have been taken through a number of principles of interpretation and construction of documents, including a document such as our Constitution, containing the fundamental law of the land. It has been properly pointed out that the amending power, in so elaborate a Constitution, could not possibly omit from its ambit or scope the power of amendment of any part of it so that the 24th Amendment merely clarifies the original intention to lodge a wide amending power within the bosom of Article 368. It has been rightly pointed out that the careful manner in which the Constitution, and, particularly, the amending Article 368 was framed precludes the possibility of a delibrate casus omissus so as to exclude from its scope the making of any provision which may either take away or abridge or affect a fundamental right or any other basic feature. In any case, in such a Constitution as ours, we must strongly lean against a construction which may enable us to hold that any part of the Constitution is exempt from the scope of Article 368 as originally framed. Without express words in Article 368 itself to that effect, I am not prepared to merely presume or infer the presence of any casus omissus here.

1888. It was no doubt argued, on the strength of the Golak Nath case (supra), that direct or indirect abridgement or taking away of a fundamental right by an amendment under Article 368 was expressly barred by the language of Article 13(2) of the Constitution. I am in agreement with the views of my learned brethern who hold that Article 13(2) is meant to deal with ordinary laws or the functions of the Parliament and of State Legislatures in their ordinary law-making capacities. It was not intended to extend its scope indirectly to Article 368 which deals with the amendment of the fundamental law itself of which Article 13(2) is a part. The language and the context as well as the subject matter of it, found stated in Article 13(2) of the Constitution itself, preclude me from holding that it could possibly operate as a restriction on the powers of amendment of any part of the Constitution contained in Article 368 of the Constitution even before it was amended by the 24th Amendment.

1889. The majority of the learned Judges of this Court in Golak Nath case (Supra) held that the power of amendment itself and not merely its procedure was contained in Article 368 of the Constitution. They also held this power of amendment to be wide.

Hidayatullah, J., however, thought that the ambit of the term “law”, as used in Article 13(2) of the Constitution, was wide enough to cover a change in the fundamental law on which Article 368 exclusively operates. The view of Hidayatullah, J., turned the scales by a narrow majority of one in favour of the opinion that Article 13(2) operates as an express restriction upon the powers contained in Article 368 even though it does not say so expressly. The limitation was inferred from the wide meaning given to the term “law”.

But the view of the majority of Judges of this Court who have had the occasion to consider this question, that is, if we include or add the number of those who gave decisions in Sajjan Singh v. State of Rajasthan [1964] INSC 246; [1965] 1 S.C.R. 933 and Sri Sankari Prasad Singh Deo v. Union of India and State of Bihar [1951] INSC 45; [1952] S.C.R. 89, is still in favour of the view that the word “law”, as used in Article 13(2) of the Constitution, does not extend to the fundamental law or the Constitution. If it was really the intention to so extend it, at least Article 13(2) would have clarified it.

1890. I am not impressed by the contention that Article 13(2), as originally passed by the Constituent Assembly, contained a specific exemption of the powers of amendment exercised under Article 368 of the Constitution which was dropped afterwards. If the dropping of this clause was intended to bring about also drastic a change in the intention of the Constitution makers as the counsel for the petitioners contends for, there would have been some explanation given by the drafting Committee for such a change.

Moreover, we have not been shown what authority the drafting committee had to adopt language implying so drastic a change of intention of the Constituent Assembly without even bringing the matter to the notice of the Constituent Assembly. The safer presumption is that the drafting committee dropped the addition proposal by Mr.

Santhanam and adopted by the Constituent Assembly merely because it considered the additional words to be otiose and unnecessary.

1891. Our Constitution itself contains in various places a distinction between the Constitution and the law. It mentions both the “Constitution and the law” suggesting that there is a difference between them made by the Constitution itself. See : e.g.:

(1) Form of oath of the President prescribed by Article 60 of the Constitution to “preserve protect, and defend “the Constitution and the law”.

(2) The form of oath or affirmation, prescribed by Article 159 of the Constitution for the Governor of a State to “protect and defend the Constitution and the law”.

(3) The form of oath prescribed by Article 75(4) for a Union Minister given in Schedule III-Form I to do “right to all manner of people in accordance with the Constitution and the law”, (4) The form of oath prescribed for a Judge of the Supreme Court, under Article 124(6) of the Constitution, given in Third Schedule-Form IV, to “uphold the Constitution and the laws”. The form is the same for the Comptroller and Auditor-General of India under Article 148(2) of the Constitution.

(5) The form of the oath prescribed by Article 164(4) of the Constitution for a Minister of a State Government given in Third Schedule Form V to “do right to all manner of people in accordance with Constitution and the law”.

(6) The form of oath prescribed by Article 219 of the Constitution for a High Court judge given in Form VIII-Third Schedule to “uphold the Constitution and the laws”.

1892. Clause 7 of the Fifth Schedule part D, of the Constitution only explains the meaning of word amend as covering an “addition, variation or repeal” and similar is the case with Clause 21 of the Sixth Schedule. I am not attracted by the distinction between amendments, which are “deemed” not to be amendments, falling within Article 368, mentioned in the Fifth and Sixth Schedules, and actual amendments covered by Article 368. The word “deemed” was used in these provisions and Articles 4 and 169 merely to indicate that the procedure required by Article 368 was not required here. These provisions certainly furnish an aid in construing and fixing the meaning of the word “amendment” wherever used in the Constitution. And, as I have already held, the scope of amendment must necessarily be wide in the context of the whole Constitution.

1893. It may also be noticed that the term “law”, which is not used in Article 368 at all, is sought to be defined in Article 13, Sub-article (3) of the Constitution, after stating explicitly “unless the context otherwise requires”. I have already dealt with the context of Article 368 containing the power of amendment which necessarily operates on every part of the Constitution so long as its operation on any part is not found expressly excluded.

1894. However, even ignoring the context in which Article 13(3) itself occurs and other foregoing reasons, if we were to assume, for the sake of argument, that, because law is not exhaustively defined by Article 13(3) of the Constitution, the term “law” used there could include the law of the Constitution, another principle of construction could also apply here. This is that even a prior general provision followed by an express provision dealing with a particular type of law could reasonably exclude the particular and special from the purview and scope of the general. It is immaterial if the general provision precedes the provision containing a special law. This could not really affect the basis of the principle applicable.

1895. The principle indicated above has been usually applied between different pieces of legislation or to different Acts. There is no doubt that when the subsequent Act is general and the prior Act is special, the Special Act is not repealed by the provisions of the general Act by the application of the maxim : “Generalia specialibus non derogant” i.e.

provisions will not abrogate special provisions (See : Crates on Statute Law p. 376).

Again, “if a special enactment, whether it be in a public or private Act, and a subsequent general Act or absolutely repugnant and inconsistent with one another”, it has been said that “the Courts have no alternative but to declare the prior special enactment repealed by the subsequent general Act”. See : Craies on Statute Law p. 380). On the same principle, it has been held that a subsequent particular Act may have the effect of partially repealing the earlier general Act. (See : Mirfin v. Attwood [1869] L.R. 4 Q.B. 330 Heston &

Isleworth U.D.C. v. Grout [1897] 2 Ch. 306 Harishankar Bagla v. M.P. State). A.I.R.

1954 S.C. 465.

1896. The above mentioned principle has been applied generally where the question has arisen whether the particular law prevails over, and, therefore, repeals the general law. It has, however, also been held that the principle may operate to merely curtail the operation of the general law by exempting from its scope the special cases dealt with by the particular law (See : Re Williams; [1887] 36 Ch. D. 573 @ p. 577 Mirfin v. Atttwood, Harishanker Bagla v. M.P. State (Supra).). In other words, the principle may so operate as to curb or reduce the extent or ambit of applicability of the general law. An application of this principle would also show that Constitutional law, as Special Law, may be removed from the purview of “law”, as found in Article 13 of the Constitution, even if, by stretching one’s imagination, it was really possible to so stretch the scope of the term “law”, as used in Article 13 of the Constitution, as would include, but for such a principle, amendments of the Constitution. Prima facie, however, amendments of the Constitution operate on every provision of the Constitution unless any part of it is expressly excluded from the scope of such operation. The use of such a principle to remove an assumed conflict does not appear necessary.

1896. Mr. Palkiwala, presumably faced with insurmountable difficulties in relying entirely upon the very narrow majority decision in Golak Nath’s case (Supra), in favour of the view that Article 13(2) operates as a restriction upon the power of amendment contained in Article 368 of the Constitution, relied primarily upon a theory of implied limitations. The only “implied” limitation which I can read into the word amendment, as “perhaps” necessarily implied, or, as part of the meaning of the word “amendment” is the one so characterised by Wanchoo J., in Golak Nath’s case (supra). In other words, it may not include the power of completely abrogating the Constitution at one stroke. It, however, seems wide enough to erode the Constitution completely step by step so as to replace it by another.

1897. The Attorney General himself had, very properly, conceded that the scope of amendment could not be so wide as to create a vacuum by abrogating the rest of the Constitution leaving nothing behind to amend. The Attorney General’s argument was that, short of creating such a vacuum, the power is wide enough to cover a replacement of the present Constitution by another. It seems to me that the necessary implication of the word “amendment” or the meaning of the term itself may exclude a possible complete abrogation of the present Constitution although that could be done, step by step, by the bodies empowered to amend if they so desired and followed the appropriate procedure.

1898. For the reasons already given at length by my brethern Ray, Palekar, Mathew and Dwivedi with whom I concur, I find that there is nothing in cases cited which could enable us to put in implied limitations, in a Constitution such as ours, on Article 368, containing expressly the sovereign law-making power of amendment of every part of it.

The cases have really little bearing on the interpretation of such a provision containing the constituent power. As they were cited before us and examined by us, I will very briefly refer to the main cases cited.

1899. The American cases really go against the submission that relied limitations could be put on expressly stated Constitutional powers. They were : Oscar Leser v. J. Mercer Garnett 258 U.S. p. 130 U.S.A. v. William H. Sprague & William J. Howey 282 U.S. p.

716 State of Rhode Island v. A. Mitchell Palmer, Attorney General etc. 253 U.S. p. 350.

Schneiderman v. U.S. 320 U.S. p. 118 @ p. 137-145.

1900. The cases from Australia decided by the Privy Council were : McCawley v. The King 1920 A.C. p. 691., Taylor v. Attorney General of Queensland 23 C.L.R. p. 457 where an interpretation of Section 5 of the Colonial Law Validity Act was given in the light of a presumption that the power transferred to a British Colonial Legislature must be read subject to the fundamental assumption underlying the Constitution of the British Empire that the position of the Crown has not been affected; Webb v. Outrim [1907] A.C.

p. 81 where the theory of implied restrictions on powers found in the Commonwealth Parliament Act was rejected; Victoria v. Commonwealth, 45 Australian L.J. p. 251 where, without questioning the basic principle of grant of plenary powers of legislation, laid down by Lord Selborne in Q. v. Burah (1878) 3 A.C. 889 a decision was given on the lack of powers in the Federal Legislature, to tax a State, on a subject falling outside Section 51 of the Australian Constitution, which laid down the powers of taxation of the Federal Legislature, in the course of which some observations were made on the implications of Federalism which assumes the continued existence of States.

1901. The cases from Canada may lend some support to the implications of a grant of power contained by an enactment of the sovereign British Parliament, but they do not appear to me to be helpful in the context of the theory of the sovereignty of our Constitution, of which Article 368 is a pivotal part, which we have adopted. The cases from Canada cited before us were : Alberta Press cases 1938 (2) D.L.R. p. 81 Switzman v. Elbing & Attorney General of Quebec 1957 (7) D.L.R. p. 337 Saumur v. City of Quebec & Attorney General of Quebec 1953 (4) D.L.R. p. 461 A.G. for the Province of Ontario and Ors. v. A.G. for the Dominion of Canada and Anr. [1912] A.C. p. 571 where the assumption, underlying some of the decisions, that Canada did not possess fully blossomed legislative power, seems to have been repelled; In Re the Initiative and Referendum Act, where legislation offending Section 92 head 1 of the British North America Act, 1867; was held to be invalid.

1902. So far as Ryan’s case, [1935] Irish Reports p. 170 is concerned, Mr. Palkiwala could only rely on the minority judgment of Kennedy, C.J. In Moore v. Attorney General for the Irish State [1935] A.C. p. 484 it was conceded on behalf of a petitioner who had challenged the validity of an Act of the Irish Parliament that the majority decision in Ryan’s case was correct. I do not think that the Irish cases give much help to the petitioners’ submissions on implied limitation.

1903. Cases coming up from Ceylon also do not assist the petitioners. In the Bribery Commissioner v. Pedrick Ranasinghe 1965 A.C. p. 172 a provision of the Bribery Amendment Act, 1958, was held to be bad because it conflicted with the provisions of Section 29 of the Ceylon (Constitution) Order in Council, 1946, by which the Constituion of Ceylon was governed. It is, therefore, a simple case of conflict of an enactment of subordinate law making authority with the instrument of Government which regulated subordinate law-making powers and was, therefore, supreme. In that case the requirements of manner and form as laid down in Attorney-General for New South Wales and Ors. v. Trethowan and Ors. 1932 A.C. p. 526 were also held not to have been complied with. In Don John Francis Douglas Liyanage and Ors. v. The Queen 1967 (1) A.C. p. 259 it was held, with regard to the Acts the validity of which was impugned:

…the Acts could not be challenged on the ground that they were contrary to the fundamental principles of justice. The Colonial Laws Validity Act, 1865, which provided that “colonial laws should be void to the extent that they were repugnant to an Act of the United Kingdom applicable to the colony but not otherwise and should not be void on the grounds of repugnancy to the law of England, did not leave in existence a fetter of repugnancy to some vague and unspecified law of natural justice : those liberalising provisions were incorporated in, and enlarged by, the Ceylon Independence Act, 1947, of the British Parliament, the joint effect of which, with the Ceylon (Constitution) Order in Council, 1946, was to confer on the Ceylon Parliament the full legislative powers of a sovereign independent state.

1904. This case shows that repugnancy to some vague principle of “natural justice” could not invalidate the enactments of a fully competent legislative authority.

1905. There can be no question of delegation of the power of amendment if, as I have already indicated, I hold that the Constitution is the principal and the source of all Constitutionally valid power and authority in the eye of law. The principle delegatus non potest delegare is only applicable against a delegate but not against the principal. When an amendment is made by an appropriate procedure, the amendment becomes a part of the principal’s own will and intention and action. Of course, if the principal is and must necessarily be a human authority, the bodies of persons authorised to amend under Article 368 of the Constitution would share the legislative sovereignty and would constitute the “Principal” whose will is expressed in the amendment.

1906. It may be possible to use the test of consequences in order to check an abuse of power by a legally non-sovereign law-making body as the Parliament is when it does not exercise the Constituent power by the use of the two-thirds’ majorities in both Houses of Parliament as required by Article 368 of the Constitution. It may also be possible to use the theory of implied limitations by implying and annexing rules of natural justice to particular kinds of non-legislative functions laid down by statutory or even Constitutional law. But, this is done only by presuming that the Constitution did not intend abrogation of the fundamental rules of natural justice. If these rules are sought to be dispensed with by any particular ordinary enactment it may be possible to assail the validity of that enactment when Articles 14 and 19 of the Constitution apply. The exclusion of Articles 14 and 19 by a Constitutionally valid amendment only carves out or creates a new legislative field by a provision which becomes a part of the Constitution by amendment, so that the Constitutional validity of its creation cannot be assailed in any court of law so long as the form and manner prescribed by Article 368 of the Constitution have been observed in making the necessary amendment. Enactments properly falling within this field would be immune from attack for any alleged violations of Articles 14 and 19 and 31.

1907. Mr. Palkiwala then made an impassioned appeal to the theories of natural law and natural rights sought to be embodied in present day international laws as well as Constitutional laws. It is not necessary for me to deal at length with the political philosophy or the juristic implications of various and conflicting natural law theories, such as those of Spinoza, Hobbes, Locke or Rousseau, discussed by T.H. Green in his “Principles of Political Obligation”. I also do not find it necessary to embark on an academic discussion of ancient and medeival theories of natural law. I will, however, quote a passage from Friedmann on Legal Theory (5th Edition-p. 95-96), where the position, place, and uses of “natural law” theories are thus summarised:

The history of natural law is a tale of the search of mankind for absolute justice and of its failure. Again and again, in the course of the last 2,500 years, the idea of natural law has appeared, in some form or other, as an expression of the search for an ideal higher than positive law after having been rejected and derided in the interval. With changing social and political conditions the notions about natural law have changed. The only thing that has remained constant is the appeal to something higher than positive law. The object of that appeal has been as often the justification of existing authority as a revolt against it.

Natural law has fulfilled many functions. It has been the principal instrument in the transformation of the old civil law of the Romans into a broad and cosmopolitian system; it has been a weapon used by both sides in the fight between the medieval Church and the German emperors; in its name the validity of international law has been asserted, and the appeal for freedom of the individual against absolutism launched. Again it was by appeal to principles of natural law that American judges, professing to interpret the Constitution, resisted the attempt of state legislation to modify and restrict the unfettered economic freedom of the individual.

It would be simple to dismiss the whole idea of natural law as a hypocritical disguise for concrete political aspirations and no doubt it has sometimes exercised little more than this function. But there is infinitely more in it. Natural law has been the chief though not the only way to formulate ideals and aspirations of various peoples and generations with reference to the principal moving forces of the time. When the social structure itself becomes rigid and absolute, as at the time of Schoolmen, the ideal too will take a static and absolute content. At other times, as with most modern natural law theories, natural law ideals become relative or merely formal, expressing little more than the yearning of a generation which is dissatisfied with itself and the world, which seeks something higher, but is conscious of the relativity of values. It is as easy to deride natural law as it is to deride the futility of mankind’s social and political life in general, in its unceasing but hitherto vain search for a way out of the injustice and imperfection for which Western civilisation has found no other solution but to move from one extreme to another”.

The appeal to some absolute ideal finds a response in men, particularly at a time of disillusionment and doubt, and in times of simmering revolt.

Therfore natural law theories, far from being theoretical speculations, have often heralded powerful political and legal developments”.

1908. I am not prepared to use any natural law theory for putting a construction on Article 368 of the Constitution which will defeat its plain meaning as well as the objects of the Constitution as stated in the Preamble and the Directive Principles of State Policy.

I do not know of any case in which this has been done. Even in the Golak Nath’s case (supra) Subba Rao, C.J. relied on a natural law theory to strengthen his views really based on an application of the supposed express bar contained in Article 13(2).

1909. I have already stated my point of view, that we should approach the questions placed before us from the pragmatic angle of the changing needs of social and economic orders visualised by those who were or are the final Judges of these needs in exercise of the Constituent power. Checks on possible abuses of such powers do not lie through actions in Courts of law. The pressure of public opinion, and the fear of revolt due to misuse of such powers of amendment are the only practically possible checks which can operate if and when such contingencies arise. These checks lie only in the political fields of operation. They are not subject to judicial review or control. In other words, what Dicey calls the external and the internal limits may operate to control and check possible misuses of such power. Courts of justice have no means of control over a power expressly sanctioned by the Constitution which is the legal sovereign. They can only speak for the Constitution. Through their pronouncements must be heard the voice of the Constitution and of nothing beyond it.

1910. Although the Courts must recognise the validity of the exercise of a legally sovereign constituent power, such power may itself be ineffective for actually bringing about the desired results. Whether the change is in the direction of what may be considered better may itself be a matter of dispute. The answers to such questions and disputes depend upon many conditions which are outside the control of law courts. The very existence or absence of such conditions cannot be appropriately investigated or determined in law Courts. Therefore, such investigations lie outside the judicial domain when once a change is brought in by the exercise of constituent or sovereign law making power in accordance with the prescribed procedure.

1911. A socialistic state, must have the power and make the attempt to build a new social and economic order free from exploitation, misery and poverty, in the manner those in charge of framing policies and making appropriate laws think best for serving the public good. We do not today conceive of public good or progress in terms of a “movement from status to contract”, but in terms of a movement for control of economic and other kinds of powers of exploitation by individuals so as to ensure that public good not merely appears to be served but is actually served by all individuals wherever or however placed.

The emphasis today is upon due performance of their social obligations by individuals before claiming any right however fundamental or important it may be because rights and duties are correlative.

1912. Another contention advanced was that a creature of the Constitution could not possibly possess the power to create or recreate the Constitution. Therefore, it was contended, resort could not be had to Article 368 to expand the power of amendment. I am unable to accept this contention in the face of the express provision in Clause (e) to the proviso to the Article 368(2) of the Constitution. There Article 368 expressly provided either for the expansion or diminution of the scope of the powers of amendment. It cannot, therefore, be reasonably contended that the power of recreation even of the whole Constitution by stages was not already contained in the unamended Article 368. This part of proviso also shows that the Constitution makers contemplated a wide amending power so as to meet the challenges of the times offered by rapidly changing social, political, economic, national and international conditions and situations.

We cannot contract what the Constitution makers clearly intended to make elastic and expansible.

1913. For the foregoing reasons, I hold that the 24th Amendment of the Constitution is valid. It would, therefore, follow that the 25th and 29th Amendments are also valid. The reasons for the validity of each of these amendments have been so fully dealt by my learned brethren Ray, Palekar, Mathew, and Dwivedi, with most of which I respectfully concur, that I need not discuss or repeat any of them here. Nor have I, for this very reason, attempted to discuss the enormous array of cases, both Indian and foreign, or the great many juristic writings, placed before and closely examined by us. I will, however, indicate before I conclude, my special reasons for holding Section 3 of the Constitution (25th Amendment) Act 1971, adding Article 31C to the Constitution also as valid.

1914. Article 31C has two parts. The first part is directed at removing laws passed for giving effect to the policy of the State towards securing the principles specified in Clause (b) or Clause (c) of Article 39 of the Constitution from the vice of invalidity on the ground that any such law “is inconsistent with or takes away or abridges any of the rights conferred by Articles 14, 19 and 31 of the Constitution”. If we, stop here, the question whether the law is really for the purpose of giving effect to the principles specified in Clauses (b) or (c) of Article 39 would still be justiciable whenever laws passed under this provision come up before Courts. In other words, the question of relevancy of the law passed to the specified principles could still be examined by courts although the effect of invalidity for alleged violations of Articles 14 or 19 or 31 would vanish so long as the law was really meant to give effect to the principles of Article 39(b) and (c). A colourable piece of legislation with a different object altogether but merely dressed up as a law intended for giving effect to the specified principles would fail to pass the test laid down by the first part. The second part of Article 31C goes on to provide that, if such a law contains a declaration that it is for giving effect to such policy, it will become immune from judicial review altogether. In cases of laws passed by State legislatures there is a further safeguard that such laws must have been reserved for consideration by the President and assented to by him. The purpose of the declaration is, therefore, to take the place of a judicial verdict on relevancy of the grounds to the principles found in Clauses (b) and (c) of Article 39 as well as on effectiveness of these laws for the intended purposes. Nevertheless, the Attorney General and the Solicitor General, appearing for the Union of India, conceded, both in written submissions and in the course of arguments, that the question of relevancy or nexus with the specified principles would be open to judicial scrutiny in such cases of declarations annexed to laws passed.

1915. My learned brother Khanna has been pleased, despite the concession mentioned above, to declare the second part of Article 31C to be void on the ground among others, that it involves a trespass on the judicial field. It was said that, under the guise of exercise of the power of amendment, one of the pillars of the Constitution or one of the essential features of its basic structure, that is to say, judicial review, had been removed.

1916. I think that the concession made on behalf of the Union of India is quite justifiable on a ground which I now proceed to adopt. It is that a declaration by itself is not part of the law made, but it is something only attached to the law even though this annexation is by a purported law. In other words, the declaration, though provided for by law, takes the place of judicial consideration by the Courts and involves consideration of the question whether it is reasonable and necessary to attach such a declaration to a particular law.

1917. I do not think that it is necessary for me to decide what the exact nature of the function in giving the declaration is or whether it carries with it, by implication, the proposition that some rules of natural justice must be complied with. Such questions were not argued before us by any party. Nevertheless, I think that the concession could only be made on the strength of the view that the declaration by itself would not preclude a judicial examination of the nexus so that Courts can still determine whether the law passed is really one covered by the field carved out by Article 31C or merely pretends to be so protected by parading under cover of the declaration. I, therefore, adopt this reason as perfectly good one for making the concession. Hence, I hold that both parts of Article 31C are valid.

1918. On questions relating to the Amendment of Article 31(2) and the 29th Amendment of the Constitution, I adopt the reasons of my learned brethern Ray, Mathew and Dwivedi with whose conclusions I concur on these and other questions.

1920. My conclusions may now be stated as follows:

(1) The majority view in Golak Nath’s case (supra), holding that Article 13 operated as a limitation upon the powers of Constitutional amendment found in Article 368, was erroneous. The minority view there was correct on this question.

(2) The 24th Amendment is valid.

(3) The 25th Amendment, including addition of Article 31C, is valid.

(4) The word ‘amount’ in Article 31(2), as amended, does not convey the idea of any prescribed norm. The fixation of the amount or the laying down of a principle for determining the amount are matters within the exclusive power of Parliament or the State Legislature concerned. In other words, the norms and their satisfaction on the question of adequacy of compensation or its reasonableness, are matters within the exclusive competence of the legislative authorities to determine.

(5) The declaration contemplated by Article 31C is like a certificate given after considering the relevancy of the principles specified in Article 39(b) and (c) of the Constitution, and, therefore, the jurisdiction of the Court is not ousted. The Courts can still consider and decide whether the declaration is really good or a mere pretence attached to a colourable piece of legislation or to a law which has no bearing on or nexus with the principles found in Article 39(b) and (c) of the Constitution. Out of two equally acceptable views, even on the question of nexus, the one in conformity with the legislative verdict should prevail.

(6) The 29th Amendment is valid.

1921. I would also have the petitions disposed of in the light of decisions given above. I make no order as to costs incurred by parties for this stage of hearing S.N. Dwivedi, J.

1922. I concur with the conclusions reached by brother Ray with respect to the Constitutionality, of the 24th, 25th and 29th amendments. But in view of the importance of the case I wish to add my own reasons in support of those conclusions.

1923. Ideas which failed to win the minds of Englishmen in the Stuart period and died in discomfiture are seeking transmigration into the Constitution of India now. Perceive some resemblances:

Ideas during the Stuart Period Arguments of Sri Palkhiwala 1. “Acts of Parliament may take away flowers 1. By virtue of Article 368 Parliament and ornaments of the crown but not cannot so amend the Constitution the crown itself…. Sir John Finch C.J., as to take away or abridge the Fundamental Law in English Constitutional essential features of the Constitution. History by J.W. Gough, 1955 Edn. p. 73. 2. “The Parliament cannot deliver over 2. Parliament cannot so amend the the free, people of England to a foreign Constitution as to make the Republic government, or to laws imposed by of India a satellite of a foreign country. foreigners….” William Ball of Barkham Esquire, Ibid.

p. 107. 3. “The Parliament cannot deprive the free 3. Parliment cannot so amend the Constitution people of England of their innate rights as to damage or destroy the of electing knights, citizens and core of the fundamental rights in Part III burgesses for Parliament. In these things of the Constitution. of the nature of these tending to the fund mental rights and laws of the people the parliament cannot nor ought not any way to violate the people or nation.” William Ball of Barkham Esquire, Ibid. p. 107. 4. “Properties are the foundaion of 4. The right to property is a humam. Constitutions,and not the Constitutions right and is necessary for the enjoyment of property. Or if so be there were no of every other right. It is Constitution yet Law of Nature does give based on Natural Law. It cannot be a principle for every man to have a taken away or abridged by an property of what he has or may have amendment of the Constitution. which is not another man’s.” Captain Clarke Gough, supra, p. 115. 5. “How any representative, that has not

5. Parliament is a creature of the only a more trust to preserve fundamental Constitution. It cannot rise above its but that is a representative that makes creator i.e., the Constitution. So it laws, by virtue of this fundamental law, cannot damage or destroy the core of viz. that the people have a power in the fundamental rights.

legislation…can have a right to remove or destroy that fundamental? The fundamental makes the people free : this free people makes a representative; can this creature unqualify the creator ?”Quaker William Penn, Ibid., p. 155. 6. “When an act of Parliament is against

6. Amending power in Article 368 is common right or reason…the limited by the principles of Natural Common Law will control it and adjudge Law and an amendment in violation such act to be void.” Coke in Dr. Bonham’s of these principles will be void. case, quoted in the Revival of Natural Law concepts by C.G. Heines, 1930 Edn. pages 33-34.

7. “Cases which concern the life or 7. The inherent and implied limitations inheritance, or goods or fortunes of to the amending power in Article 368 subjects…are not to be decided will be determined by judges possessing by natural reason, but by artificial a trained and perceptive judicial mind. reason and judgment of law, which law is an act which requires long study and experience before that a man can attain to the cognizance of it.” Coke as quoted in the English Constitutional Conflicts of the Seventeenth Centure 1603-1689 by J.R.

Tanner, 1961 Student Edn. p. 37.

1924. Of the three contenders for primacy in the Stuart period-King, Parliament, Common Law-Parliament came out victorious. F.W. Maitland, Constitutional History of England (Paper back reprint (1963) pages 300-301. The King and the Common Law accepted its supremacy. Stuart England was passing through an age of transition. So is India today. “We are passing through the great age of transition when we are passing through the great age of transition the various systems-even systems of law-have to undergo changes. Conceptions which had appeared to us basic undergo changes”

Jawaharlal Nehru : C.A.D. Vol. 9 page 1194 (emphasis added). At bottom the controversy in these cases is as to whether the meaning of the Constitution consists in its being or in its becoming. The Court is called upon to decide whether it is a prison-house or a freeland, whether it speaks for the few or for the many. These issues can hardly be resolved with the aid of foreign legal know-how. Decisions of foreign courts and treatises and articles written on various Constitutions by foreign writers would not be safe guide in construing our Constitution. “(I)n the last analysis the decision must depend upon the words of the Constitution 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 may be so even where the words or expressions used are same in both cases, for a word or phrase may take a colour from its context and bear different senses accordingly.” (In Re. C.P. & Berar Sales of Motor Spirit Lubricants Taxation Act, 1938). [1939] F.C.R. 18 at page 38 per Gwyer C.J. For instance, law- making and Constitution-amending are both called ‘law’ in Canada and Ceylon because a Constitutional amendment there is really a subordinate enactment passed under a statute of the British Parliament or under an Order-in-Council which is delegated legislation.

Our Constitution “is something fresh and in that sense unique…. It seems to me therefore that it is useless to try and look at this through the eyes of another country or of their courts.” (In re. The Delhi Laws Act, 1912). [1951] INSC 35; [1951] S.C.R. 747 at page 1112 per Bose J.

1925. “A Constitution is the expression in national life of the genius of a people. It reflects the tendencies of the age and the articles have to be interpreted, without doing violence to the language, in the light of the pervailing phase of sentiments in the country in which the Constitution is intended to operate.” (Motilal v. State of U.P.) A.I.R. 1911 All. 251 at page 297 per Sapru J. Constitutions which grew up in the 17th, 18th and 19th centuries reflected the hopes and aspirations of men of those times; the Constitution of India reflects the hopes and aspirations of the people of India emerging from colonial economy in the second half of the 20th century. Constitutions framed in the past for organising political democracy cannot serve as a safe guide in construing the Constitution of India framed for ushering in social and economic democracy.

1926. Constitutions which grew up in the preceding three centuries were understood to sanctify the Supremacy of Property. Said Tocqueville : “The French Revolution has allowed one exclusive right to remain, the right of property, and the main problems of politics will deal with the alterations to be brought about in the right of property-holders.”

As quoted in French Political Thought in the 19th Century by Roger Henry Soltau, p. 55.

Our Constitution is conceived in a radically different tradition. Our forbears did not believe in the acquisition of things of pleasure (Preya); they stood for the good and the whoelsome (Shrey). They addressed their king as Rajan because it was his duty to secure the welfare of his people (See Richard Henry Tawney, “The Acquisitive Society”, Chapter II & IV) Their rule of law (Dharma) was intended to help the power-minus keep the power-plus in check. Their rule of law (rita) was a stream, not a puddle. It recognised the inevitability of change. They believed in the moral precept : distribute and enjoy the residue of wealth.(Mahabharata, Shanti Prava, 57 : 11.) 1927. The Constitution bears the imprint of the philosophy of our National Movement for Swaraj. That philosophy was shaped by two pre-eminent leaders of the Movement- Mahatma Gandhi and Jawaharlal Nehru. Mahatma Gandhi gave to the Movement the philosophy of Ahimsa. Two essential elements of his Ahimsa are : (1) equality; and (2) absence of the desire of self-acquisition (Aparigrah). He declared that “to live above the means befitting a poor country is to live on stolen food.” Dr. P. Sitaramaya, “The History of the Indian Congress, Vol. I, page 386. And he also said : “I consider it a sin and injustice to use machinery for the purpose of concentration of power and riches in the hands of the few. Today the machinery is used in this way.” Jawaharlal Nehru :

Discovery of India, Signet Press, 1956, page 432.

1928. While Mahatma Gandhi laid stress on the ethics of the Movement, Jawaharlal Nehru enriched its economic content. In his presidential address to the Lahore Congress Session of 1929 he said : “The philosophy of socialism has gradually permeated the entire structure of the society the world over and almost the only point in dispute is the phase and methods of advance to its full realisation. India will have to go that way too if she seeks to end her poverty and inequality though she may evove her own methods and may adopt the ideal to the genius of her race.” R.D. Agarwala, Economic Aspect of a Welfare State in India, page 32.

1929. Emphasising the intimate and inseverable connection between national liberation and social liberation, he said : “(I)f an indigenous Government took place of the foreign government and kept all the vested interests in tact, this would not be even the shadow of freedom. India’s immediate goal can only be considered in terms of the ending of the exploitation of her people. Politically it must mean independence and cession of the British connection; economically and socially it must mean the ending of all special class privileges and vested interests. Jawaharlal Nehru Whither India, 1933.

1930. The philosophy of Mahatma Gandhi was rooted in our ancient tradition; the philosophy of Jawaharlal Nehru was influenced by modern progressive thinking. But the common denominator in their philosophies was humanism. The humanism of the Western Enlightenment comprehended mere poltical equality; the humanism of Mahatama Gandhi and Jawaharlal Nehru was instinct with social and economic equality.

The former made man a political citizen; the latter aims to make him a ‘perfect’ citizen.

This new humanist philosophy became the catalyst of the National Movement for Swaraj.

1931. In 1929 the All India Congress Committee resolved that the great poverty and misery of the Indian people was due also “to the economic structure of the society.”

Indian National Congress Resolutions on Economic Policy, Programme and Allied Matters, 1924-1969, p. 3. The Karachi Congress resolution, on fundamental rights and economic programme revised in the All India Congress Session of Bombay in 1931 declare that in order to end the exploitation of the masses political freedom must include economic freedom of the starving millions. Resolutions, supra pp. 6-9. It provided that “property was not to be sequestered or confiscated “save in accordance with law” Ibid (emphasis added). It also provided that the State shall own or control the key industries and services, mining resources, railways waterways, shipping and other means of public transport.” Ibid. According to the Congress Election Manifesto of 1945, “the most vital and urgent of India’s problems is how to remove the curse of poverty and raise the standard of masses. Ibid p. 14. It declared that for that purpose it was “necessary…to prevent the concentration of wealth and power in the hands of individuals and groups, and to prevent vested interests inimical to society from growing.” Ibid. p. 14. It proposed acquisition of the land of intermediaries on payment of equitable compensation. Ibid. pp.

15-16. In November 1947 the All India Congress Committee Session at Delhi passed a resolution to the effect that the object of the Congress should be to secure “an economic structure which would yield maximum production without the creation of private monopolies and the concentration of wealth.” Ibid. pp. 18-19. It was thought that such “social structure can provide an alternative to the acquisition of economic and political equality.” Ibid. pp. 18-19.

1932. In sum, the National Movement was committeed : (1) to work for social, economic and political equality of the weaker sections of the people; (2) to disperse concentration of wealth in any form in a few hands; and (3) to acquire property in accordance with law.

Payment of compensation would be determined by equitable considerations and not by market value. The men who took the leading part in framing the Constitution were animated by these noble ideals. They embodied them in the Preamble to the Constitution;

they proliferated them in the Directive Principles of the State Policy; they gave them ascendancy over the rights in Part III of the Constitution. (See Articles 15(3), 16(4), 17, 19(2) to (6), 24, 25(a) and (b), 31(4), (5) and (6)). They made them ‘fundamental’ in the governance of the country. Pandit Govind Ballabh Pant called them ‘vital principles’.

C.A.D. Vol 9 p. 1288. And indeed so they are, for when translated into life, they will multiply the number of owners of fundamental rights and transform liberty and equality from a privilege into a universal human right.

1933. However, pleasing its name-plate or its trumpet, every form of focussed power was suspect in the eyes of the Constitution-makers. They apprehended that concentration of the ownership of the means of production and material resources and the resultant incarceration of wealth in a few profit-seeking hand may bring into being an economic power as all-assimilating and omnicompetent as the Hegelian State. It may manipulate a fall in the prices of raw-materials; it may inflate the prices of manufactures by low production and hoarding; it may increase unemployment and bring down wages; it may shrink investments and control the industrial progress of the nation. J.K. Gailbraith :

American Capitalism, pp. 21, 40 and 64; Report of the Monopolies Inquiry Commission (1965) Vol. 1 pp. 125, 128, 132 and 134. It may seek to influence politics and public opinion. J.K. Gailbraith, Ibid, p. 123; Bertrand Russel : Power (Unwin Books) p. 85;

Monopolies Inquiry Commission Report p. 136. It may try to threaten, restrain and change governments in self-interest. B. Russel, Ibid. pp. 86, 88 and 124; Monopolies Inquiry Commission Report pp. 1, 135 and 193. It may endanger liberty, the rule of law and peace. J.K. Gailbraith, Ibid, pp. 67 and 70; W. Friedmann. An Introduction to World Politics : London Macmillan and Co. Ltd. 1962, p. 4. It may retard national unity, the growth of culture and education. Monopolies Inquiry Commission Report, p. 136. To prevent these manifold abuses of the economic power, the Constitution-makers enacted Articles 39(b) and (c). It will be legitimate to bear in mind the preemptive significance of Part IV in understanding the Constitution.

1934. It is now necessary to consider whether the majority decision in Golaknath [1967] INSC 45; (1967) 2 S.C.R. 762 is correct.

Residence of Amending Power 1935. In Golaknath Wanchoo J. and two other Judges who associated with him and Hidayatullah, Bachawat and Ramaswami JJ. took the view that the power to amend the Constitution is located in Article 368. Subba Rao C.J. and four other learned Judges who associated with him, on the contrary, held that Article 368 does not grant the power of amending the Constitution. It merely provides for the procedure for amendment of the Constitution. I respectfully agree with the view that the amending power resides in the original Article 368.

1936. Despite the marginal note to Article 368, which indicates that Article 368 is prescribing the procedure for amendment, several considerations clearly show that the amending power is located in Article 368. Article 368 provides specifically for a procedure for amending the Constitution. When the prescribed procedure is strictly followed, “the Constitution shall stand amended in accordance with the terms of the Bill.”

Parliament can bring about this result by strictly following the prescribed procedure. Who can bring about a certain result may truly be said to have the power to produce that result.

Power to amend the Constitution is accordingly necessarily implied in Article 368.

1937. Article 368 finds place in Part XX of the Constitution. It is the solitary Article in that part. If provision was being made in Article 368 merely for procedure for amending the Constitution by Parliament, the Constitution-makers would have placed it logically under the heading “Legislative procedure” in Part V of the Constitution. Including the solitary Article 368 in a separate part suggests that it was intended to confer the amending power as well as to provide for the amending procedure. The heading of Part XX is “amendment of the Constitution” and not “procedure for amendment of the Constitution”. The heading will include both power as well as procedure. The proviso to Article 368 also shows that the amending power is lodged therein.

1938. Power to amend the Constitution cannot reasonably be located in Entry 97 of List I of Schedule VII read with Article 248 of the Constitution. The idea of a provision for amending the Constitution was indisputably present in the minds of the Constitution- makers. If they had considered that the power to amend the Constitution was in its nature legislative, they would have surely included in express words this power in a specific entry in List I. Article 248 and Entry 97 of List I confer residuary power on Parliament.

Article 246 and List I confer certain specific powers on Parliament. Residuary power is intended to comprehend matters which could not be foreseen by the Constitution-makers at the time of the framing of the Constitution. As the topic of amending the Constitution was foreseen by them, it could not have been put in the residuary power. Article 245(1) confers power on Parliament “subject to the provisions of this Constitution.” Articles 246 and 248 are subject to Article 245. Accordingly, a law made under Article 348 and Entry 97 of List I cannot be inconsistent with any provision of the Constitution. But a law made under Entry 97 for amending any provision of the Constitution would be inconsistent with that provision. Accordingly it would be invalid. But on following the prescribed procedure in Article 368 there ensues a valid amendment of the Constitution. So Article 248 and Entry 97 cannot include the power to amend the Constitution. The history of residuary power in our country also indicates that the power to amend the Constitution cannot be subsumed in the residuary power. Section 104 of the Government of India Act, 1935 provided for residuary power. The Governor-General could by public notification empower either the Federal Legislature or a Provincial Legislature to enact a law with respect to any matter not enumerated in any of the Lists in Schedule VII. Acting under Section 104, the Governor-General could not empower either Legislature to make a law for, amending the Government of India Act. The power to amend the said Act vested exclusively in the British Parliament. While the Constitution was on the anvil, residuary power was proposed to be vested in the States. If that power had been vested in the States, it could not have been possible to argue that the Constitution could be amended by resort to residuary power because the amending bill is to be initiated in Parliament and not in the States. It was only at a later stage that the residuary power was included in List I. The foregoing considerations show that the amending power does not reside in Article 248 and Entry 97 of List I. As already stated, it is located in Article 368 of the Constitution. Article 304(1) of the Draft Constitution was similar to Article 368. Article 304(2) enabled States to amend the Constitution as regards the method of choosing a Governor or the number of Houses of the State Legislature. In Clause 18 of his letter dated February 21, 1948 to the President of the Constituent Assembly, Dr. B.R.

Ambedkar, while forwarding the Draft Constitution, said that a provision giving ‘a limited constituent power’ to the State Legislature has been inserted in Article 304.

1939. The procedure prescribed in Article 368 is the exclusive procedure for amendment of the Constitution. The word ‘only’ in Article 368 rules out all other procedures for amendment. So no law can be made for a referendum or a constituent assembly. A referendum or a constituent assembly will reduce Article 368 to redundance. Referendum was not accepted by the framers of the Constitution. Dr. B.R. Ambedkar said : “The Draft Constitution has eliminated the elaborate and difficult procedure such as a decision by a convention or a referendum. The powers of amendment are left with the Legislatures, Central and Provincial”. C.A.D. Vol. 7, page 43.

Nature of Amending Power 1940. With respect I find it difficult to share the view of Hidayatullah J. that the amending power in Article 368 is a legislative power.’ (Golaknath, Supra at page 900).

1941. During the British period neither the people of this country nor their elected representatives were endowed with the power to make or amend their Constitution Act.

The Constitution Act by which they were governed until August 14, 1947 was enacted by the British Parliament. The power to amend that Act was vested in that Parliament. The elected representatives of the people could until that date make only legislative laws under the Constitution Act. The Constitution Act endowed them with a legislative power.

Under Sections 99 and 100 of the Government of India Act, 1935, the Union and Provincial Legislatures made legislative laws. Under Sections 42, 43 and 44 and Section 72 of Schedule IX the Governor General made ordinances. The Governor made ordinances and Acts under Sections 88, 89 and 90. The headings of all those provisions describe the law-making power as ‘legislative power’. The framers of the Constitution were familiar with the historical meaning of the expression ‘legislative power’ in this country. The were also aware of the meaning of ‘constituent power’. Accordingly, it is reasonable to believe that they have made a distinction between legislative power’ and ‘constituent power’. Indeed they have described the power of making legislative laws as a ‘legislative power’. The heading of Part XI is ‘Distribution of Legislative Powers’; the heading of Article 123 is ‘legislative power of the President’; the heading of Article 213 is ‘legislative power of the Governor’. It may be observed that the framers did not include Article 368 under the heading legislative power’ or in Part XI or in the company of the provisions dealing with the legislative procedure in Part V of the Constitution. They placed it in a separate part. This omission is explained by the fact that they were making a distinction between ‘legislative power’ and ‘constituent power’.

1942. Broadly speaking, ‘constituent power’ determines the frame of primary organs of Government and establishes authoritative standards for their behaviour. In its ordinary sense, legislative power means power to make laws in accordance with those authoritative standards. Legislative power may determine the form of secondary organs of Government and establish subordinate standards for social behaviour. The subordinate standards are derived from the authoritative standards established by the constituent power. Discussing the concept of ‘legislative power’, Bose J. said : “We have to try and discover from the Constitution itself what the concept of legislative power looked like in the eyes of the Constituent Assembly which conferred it. When that body created an Indian Parliament for the first time and endowed it with life, what did they think they were doing ? What concept of legislative power had they in mind ? …First and foremost, they had the British model in view where Parliament is supreme in the sense that it can do what it pleases and no Court of law can sit in judgment over its Acts. That model it rejected by introducing a federation and dividing the ambit of legislative authority. It rejected by drawing a distinction between the exercise of constituent powers and ordinary legislative activity…” (In re. The Delhi Laws Act 1912 (Supra) at page 1112).

1943. Parliament’s additional power to amend certain provisions of the Constitution by ordinary law would not obliterate the distinction between constituent power and legislative power. Constitutions may be uncontrolled like the British Constitution, or controlled like the Constitution of the United States of America. There may be a hybrid class of Constitutions, partly controlled and partly uncontrolled. In an uncontrolled Constitution the distinction between constituent power and legislative power disappears, because the legislature can amend by the law-making procedure any part of the Constitution as if it were a statute. In a controlled Constitution the procedure for making laws and for amending the Constitution are distinct and discrete. No part of the Constitution can be amended by the law-making procedure. This distination between constituent power and legislative power in a controlled Constitution proceeds from the distinction between the law-making procedure and the Constitution-amending procedure.

Our Constitution is of a hybrid pattern. It is partly controlled and partly uncontrolled. It is uncontrolled with respect to those provisions of the Constitution which may be amended by an ordinary law through the legislative procedure; it is controlled with respect to the remaining provisions which may be amended only by following the procedure prescribed in Article 368. When any part of the Constitution is amended by following the legislative procedure, the amendment is the result of the exercise of the legislative power; when it is amended through the procedure prescribed by Article 368, the amendment is the result of the exercise of the constituent power. The amending power conferred by Article 368 is a constituent power and not a legislative power.

Dominion of Amending Power 1944. The phrase “amendment of this Constitution” is the nerve-centre of Article 368. It is determinative of the dominion as well as the magnitude of the amending power. The words “this Constitution” in the phrase embrace the entire Constitution, as according to Article 393 “this Constitution” is called “the Constitution of India”. These words are also used in Articles 133(2) and 367(1), (2) and (3). In those provisions these words would envelop each and every provision of the Constitution. They should convey the same meaning in Article 368. Accordingly each and every provision of the Constitution including Part III falls within the sway of the amending power.

1945. In re : Barubari Union and Exchange of Enclaves [1960] 3 S.C.R. 250 at page 282 it is said that “the preamble is not a part of the Constitution”. This remark cannot assist the argument that a Preamble is not liable to amendment. It seems to me that the Court really intended to say that the Preamble is not enacting part of the Constitution. On October 17, 1949 the Constituent Assembly passed a resolution to the effect that “the Preamble stand part of the Constitution.” C.A.D. Vol. X, p. 456.

1946. According to Article 394 that article and Articles 5 to 9, Articles 60, 324, 366, 367, 379, 380, 388 and 391 to 393 came into force on November 26, 1949, while “the remaining provisions of this Constitution” were to come into force on January 26, 1950.

It is clear from the phrase “the remaining provisions of this Constitution” that the Preamble also came into force on January 26, 1950. Replying to Sri K. Santhanam’s question in regard to the date of the coming into force of the Preamble, Shri Alladi Krishnaswami Ayyar said : “The Preamble will come into force in all its plentitude when the Constitution comes into force.” C.A.D. Vol. X, p. 418.

1947. A statute has four parts-title, preamble, enacting clause and purview or body.

Crawford : Statutory Construction (1948 Edn.) p. 123 : Sutherland : Statutory Construction (1943 Edn.) Vol. 2, pp. 348-349; Haloburg’s : Laws of England, Vol. 36, p.

370, Craies on Statute Law (1963 Edn.) pp. 190 and 201. The Preamble to the Constitution of the United States of America is regarded as a part of the Constitution.

Willoughby, Constitutional Law of the United States (1929 Edn.), Vol. I, p. 62. The heading “the Constitution of India” above the Preamble shows that the Preamble is a part of it.

1948. As the Preamble is a part of the Constitution, it is liable to amendment under Article 368. Those parts of the Preamble which operate on the past such as “this 26th day of November, 1949” may perhaps not be capable of miodification. ‘Even Jove hath not power on the past’. But there is little doubt that such parts can be deleted by the exertion of the amending power.

1949. In sum, no provision of the Constitution can claim immunity from the sway of the amending power. The amending power can amend each and every provision of the Constitution including the Preamble and Part III.

Magnitude of Amending Power 1950. The magnitude of amending power is measurable by the broad-shouldered word “amendment” in Article 368. According to Wanchoo J., the word “amendment” should be given its full meaning as used in law and that means that by amendment an existing Constitution…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.” (Golaknath, supra at page 834). Hidayatullah J.

said : “I do not take a narrow view of the word “amendment” as including only minor changes within the general frame-work. By amendment new matter may be added, old matter removed or altered.” (Ibid, p. 862) Bachawat and Ramaswami JJ. gave the same extensive meaning to the word “amendment”. Thus according to six out of eleven judges in Golaknath, the word “amendment” means amending by addition, alteration or repeal.

According to the Shorter Oxford English Dictionary “amendment” means “removal of faults or errors; reformation esp. (law) in a writ or process 1607.” According to Webster’s Third New International Dictionary, it means “act of amending esp. for the better, correction of a fault or faults, the process of amending as a motion, bill, act or Constitution that will provide for its own amendment; an alteration proposed or effected by such process.” According to the Random House Dictionary of the English Language (Unabridged Edn.) “amendment” means “to alter, modify, rephrase or add to, substract from (a motion, bill, Constitution etc.) by formal procedure, to change for the better, improve, to remove or correct faults.” According to Crawford (Statutory Construction (1940 Edn.) page 170) there “are many different definitions of the term amendment, as it applies to legislation. Generally, it may be defined as an alteration or change of something, proposed in a bill or established as law. We are not, however, here concerned with the amendment of the proposed bills, but with the amendment of existing laws. Thus limited, a definition as suitable as any, defines an amendment as a change in some of the existing provisions of a statute. Or stated in more detail, 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.”

According to these definitions the power to amend means the power to make an addition to or alteration in or subtraction from the text The purpose of addition, alteration or subtraction may vary; it may be to make the text or some part of it more complete or perfect or effective. It also appears that the whole text of a law cannot be repealed or abrogated in one step; some part of it must remain while the other is repealed.

1951. The Constitution does not define the word “amendment”. Article 367(1) applies the General Clauses Act to the interpretation of the Constitution. The Act also does not define “amendment”. However, Section 6A provides that where any Central Act repeals any enactment by which, the text of any Central Act was “amended by express omission, insertion or substitution of any matter” the repeal unless different intention appears, shall not affect the continuance of “any suck amendment made by the enactment so repealed”

and in operation at the time of such repeal. Section 6A shows that “amendment” includes addition, substitution and omission. There is no reason why this definition which was known to the Constitution-makers should not apply to “amendment” in Article 368.

1952. According to the petitioners, “amendment” in Article 368 is used in the narrow sense of making improvements. Now, an improvement may be made not only by an addition, but also by omission or repeal. Thus the curing of an error in the text undoubtedly improves it. According to Hidayatullah J. it “was an error to include (the right of property) in (Part III)”. (Golaknath, supra at page 887). The removal of this error by an amendment under Article 368 will surely improve the text of the Constitution. It will remove the roadblock in the way of implementing Part IV of the Constitution.

Further, every mover of an amendment considers his proposal as an improvement in the existing text and the Court should not substitute its own evaluation for that of the mover of the amendment.

1953. The grants of legislative power are ordinarily accorded the widest amplitude. A fortiori, the constituent power in Article 368 should receive the same hospitable construction. The word “amendment” should be so construed as to fructify the purpose underlying Article 368. The framers of the Constitution have enacted Article 368 for several reasons. First, the working of the Constitution may reveal errors and omissions which could not be foreseen by them. Article 368 was designed to repair those errors and omissions. Second, the Court’s construction of the Constitution may not correspond with the Constitution-makers’ intention or may make the process of orderly government difficult. The first Amendment to the Constitution became necessary on account of the decision of this Court in the State of Madras v. Srimathi Champakam Dorairajan [1951] INSC 25; [1951] S.C.R. 525 and the decision of the Patna High Court in Kameshwar Singh v. State of Bihar A.I.R. 1951, Patna p. 91. Third, the Constituent Assembly which framed the Constitution was not elected on adult franchise and was in fact not fully representative of the entire people. On January 22, 1947 Jawaharlal Nehru said : “We shall frame the Constitution, and I hope it will be a “good Constitution, but does anyone in this House imagine that when a free India emerges it will be bound down by anything that even this House might lay down for it ? A free India will see the bursting forth of the energy of a mighty nation. What it will do and what it will not, I do not know, but I do know that it will not consent to be bound down by anything…. It may be that the Constitution, this House may frame may not satisfy an India, that free India. This House cannot bind down the next generation or people who will duly succeed us in this task.” C.A.D. Vol. 2, pages 322-323. On November 8, 1948 he reiterated : “While we who are assembled in this House undoubtedly represent the people of India, nevertheless, I think it can be said and truthfully that when a new House, by whatever name it goes, is elected in terms of this Constitution and every adult in India has the right to vote, the House that emerges then will certainly be fully representative of every section of the Indian people. It is right that that House elected so…should have an easy opportunity to make such changes as it wants to….” C.A.D. Vol. V, pp. 322-323. The Constitution-makers conferred very wide amending power on Parliament because it was believed that Parliament elected on adult franchise would be fully representative of the entire people and that such a Parliament should receive a right to have a fresh look at the Constitution and to make such changes therein as the entire people whom it represents desire. Fourth, at the apex of all human rights is the right of self-preservation. People collectively have a similar right of self- preservation. Self-preservation implies mutation, that is adaptation to the changing environment. It is in the nature of man to adjust himself to the changing social, economic and political conditions in the country. Without such adaptation the people decays and there can be no progress. Kant said : “One age cannot enter into an alliance on oath to put the next age in a position when it would be impossible for it to extend and correct its knowledge; or to make any progress whatsoever in enlightenment. This would be a crime against human nature whose original destiny lies precisely in such progress. Later generations are thus perfectly entitled to dismiss these agreements as unauthorised and criminal.” Kant’s Political Writings, Edited by Hans Reiss, Cambridge University Press, 1970, p. 57.

1954. Speaking in the same vein, Jawaharlal Nehru said : “In any event we should not make a Constitution such as some other great countries have, which are so rigid that they do not and cannot be adapted to changing conditions. Today-especially, when the world is in turmoil and we are passing through a very swift period of transition, what, we may do today may not be wholly applicable tomorrow. Therefore, while we make a Constitution which is sound and as basic as we can, it should also be flexible. C.A.D.

Vol. 7, p. 322.

1955. Article 368 is shaped by the philosophy that every generation should be free to adapt the Constitution to the social, economic and political conditions of its time. Most of the Constitution-makers were freedom-fighters. It is difficult to believe that those who had fought for freedom to change the social and political organisation of their time would deny the identical freedom to their descendents to change the social, economic and political organisation of their times. The denial of power to make radical changes in the Constitution to the future generation would invite the danger of extra Constitutional changes of the Constitution. “The State without the means of some change is without 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.” Burke : Recollections on the Revolution in France and other writings Oxford University Press, 1958 Reprint, p.

23.

1956. The context also reinforces the widest meaning of the word “amendment”. The proviso to Article 368 states that if an amendment of the Constitution seeks to make any “change” in the provisions specified therein, such amendment shall also require the ratification by at least half of the State Legislatures. Thus the proviso contemplates an amendment by way of a ‘change’ in certain provisions of the Constitution. According to the Shorter Oxford English Dictionary (3rd Edition Vol. 1, page 291) “change” means “substitution, or succession of anything in place of another; alteration in the State or quality of anything; variation, mutation, that which is or may be substituted for another of the same kind.” The power to amend accordingly includes the power to substitute one provision for another. For instance, it will be open to Parliament to remove List II in the Seventh Schedule and substitute another List therefor by strictly following the procedure prescribed in Article 368 and its proviso. The words “amendment” and “amend” have been used in Articles 107(2), 108(1) and (4), 190(3), 110(1)(b), proviso to Article 111, Articles 147, 196(2), 197(1)(c) and (2)(c), 198(3), 199(1)(b), 200, 201 and 395. In all these provisions those words include the power of repeal or abrogation. Article 110(1)(b) provides that a Bill shall be deemed to be a Money Bill if it contains a provision dealing with “the amendment of the law with respect to any financial obligations undertaken or to be undertaken by the Government of India.” Without doubt, the word “amendment”

would also include repeal or abrogation of a law with respect to any financial obligation undertaken or to be undertaken by the Government of India. The word “amendment”

cannot be confined to mere minor changes. To the same effect is Article 199(1)(b) in relation to the States. Article 147 provides that in Chapter IV of Part V and in Chapter V of Part VI references to any substantial question of law as to the interpretation of the Constitution shall be construed as including reference to any substantial question of law as to the interpretation) of the Government of India Act, 1935 (including any enactment “amending or supplementing that Act”). Here also the word “amending” would take in any enactment which has repealed any provision of the Government of India Act, 1935.

Article 395 provides that the “Indian Independence Act, 1947 and the Government of India Act, 1935, together with all other enactments amending or supplementing the law…are hereby repealed.” Here again, the word “amending” includes an enactment which has repealed any provision of the Government of India Act, 1935. It cannot be said that the framers of the Constitution intended to continue an enactment which has repealed an essential provision of the Government of India Act, 1935.

1957. Paragraph 7 of Schedule V to the Constitution reads : “(1) Parliament may from time to time by law amend by way of addition, variation or repeal any of the provisions of this Schedule and, when the Schedule is so amended, any reference to this Schedule in this Constitution shall be construed as reference to such Schedule as so amended : (2) No such law as is mentioned in sub-paragraph (I) of this paragraph shall be deemed to be an amendment of this Constitution for the purpose of Article 368.

1958. In paragraph 7(1) the words, “addition, variation, or repeal” do not enlarge the meaning of ‘amend’; they are expositive of it. If the word “amendment” in Article 368 did not include the power of repealing a provision of the Constitution, sub-paragraph (2) could not have been enacted. It has been held by this Court that Parliament may change the boundaries of a State by a law enacted under Article 3 or by an amendment of the Constitution under Article 368. (Berubari Union, supra). It would follow from this decision that Parliament may repeal any provision of Schedule V by an ordinary law enacted under paragraph 7 of Schedule V or by an amendment under Article 368. The amending power under Article 368 which provides for amendment of the Constitution by a more difficult procedure than the one by which any provision of Schedule V may be repealed under paragraph 7 cannot surely be narrower than the power under paragraph 7 of Schedule V. The same consideration equally applies to paragraph 21 of Schedule VI to the Constitution.

1959. According “to Article 33 Parliament may by law determine to what extent any of the rights conferred by Part III shall in their application to the members of the Armed forces or forces charged with the maintenance of public order be restricted or abrogated so as to ensure better discharge of their duties and the maintenance of discipline amongst them. It is open to Parliament to make a law abrogating the fundamental rights of the citizens for the time being employed in the Army and the forces charged with the maintenance of public order. For instance, it is open to it to make a law abrogating the freedom of speech of persons employed in the Army. For the reasons already discussed in relation to paragraph 7 of Schedule V, it cannot be disputed that Parliament may abrogate the fundamental rights of the citizens employed in the Army or forces charged with the maintenance of public order in the exercise of the amending power under Article 368.

1960. The power of a Constituent Assembly, which is a representative body, to frame a Constitution is unlimited and unconfined. Its absolute power is explained by the fact that it is called upon to chart a process of government of a country. In carrying out its task it has to take decisions on matters of high policy. The high power is made to match the high purpose. The nature of the power conferred on Parliament by Article 368 is similar to the power exercisable by a Constituent Assembly. Therefore the amending power in Article 368 is as unlimited and unconfined as the power of a Constituent Assembly. Indeed, it may truly be said that Parliament acts as a Continual Constituent Assembly.

1961. The history of Article 368 supports the broadest construction of the word “amendment”. Article 368 is similar to Article 304 of the Draft Constitution. Article 305 of the Draft Constitution is material for our purpose. It relevantly read : “Notwithstanding anything contained in Article 304, 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…shall not be amended during a period of 10 years from the commencement of this Constitution.

1962. Part XIV of the Draft Constitution made reservation of seats in Parliament and State Legislatures for Muslims, Scheduled Castes, Scheduled Tribes and Indian Christians. The word “amended” in Article 305 unmistakably include the repeal of the provisions prescribing the reservations. As Article 305 was an exception to Article 304, the word “amendment” in Article 304 would include the power of abrogating the reservations. As in Article 304, so in Article 368 “amendment” should include the sense of repeal and abrogation.

1963. According to Sri Palkhiwala, whenever the Constitution-makers intended to confer the power of repeal on any authority, they have expressly said so as in Articles 35(b), 252(2), the proviso to Article 254(2) and Article 372(1) and (2). In all these provisions the Words “alter, repeal or amend” are used with reference to a law. As “amend” would not authorise repeal simpliciter of the entire law, the framers of the Constitution have expressly conceded the power of repealing the entire law. So these provisions do not help the argument of Sri Palkhiwala that “amendment” in Article 368 should be given a narrow meaning.

1964. To sum up, the nature, object and history of the amending power and the context of Article 368 leave little room for doubt that the word “amendment” includes the power of repealing or abrogating each and every provision of the Constitution. It may be that Parliament may not be able to annhilate the entire Constitution by one stroke of pen. But it can surely repeal or abrogate all provisions in Part III. Article 368 permits Parliament to apply not only the physician’s needle but also the surgeon’s saw. It may amputate any part of the Constitution if and when it becomes necessary so to do for the good health and survival of the other parts of the Constitution.

Meaning of ‘Law’ in Article 13(2) 1965. There is a distinction between ‘Constitution’ and ‘law’. (Ordinarily) a ‘Constitution’ signifies a politico-legal document. President Wilson once said that the U.S. Constitution has been, to a considerable extent, a political document and not a mere ‘lawyers document’. C.G. Hains : Role of the Supreme Court in American Government and Politics, 1944 Edn., p. 44. On the other hand, in its ordinary sense ‘law’ signifies a statute or a legislative enactment. Again, a ‘Constitution’ prescribes the paramount norm or norms; a law prescribes derivative norms. They are derived from the paramount norms.

The reckoning of a Constitutional amendment in the eye of law is the same as that of a Constitution. Therefore ordinarily a Constitutional amendment is not law. Significantly, there is not a whisper of the word ‘law’ in Article 368.

1966. The context of the word ‘law’ in Article 13(2) does not show that it includes an amendment of the Constitution made under Article 368. The word ‘law’ in Article 13(1) obviously does not include a Constitution. No Constitution existing at the time of the commencement of our Constitution and taking away or abridging the fundamental rights of the people conferred by Part III of the Constitution has been brought to our notice in spite of the assiduous research of Sri Palkhiwala. Article 13(3)(a) provides for an extensive definition of the word ‘law’ by including things which are not ordinarily regarded as included in it. It mentions an ordinance, order, bye-law, rule, regulation, notification, custom or usage having the force of law. But it does not include the Constitution which in the ordinary sense does not mean ‘law’.

1967. A distinction between ‘Constitution’ and ‘law’ is made in the Constitution itself.

According to Article 60 the President of India has to take the oath that he will preserve, protect and defend “the Constitution and the law”. Article 159 requires the Governor of a State to take the same oath. A Minister of the Union and a State, the Judges of the Supreme Court and High Courts and the Comptroller and Auditor General also take the same kind of oath. If the framers of the Constitution had regarded the Constitution as ‘law’, they would not have separately mentioned the Constitution in various oaths.

1968. Various provisions of the Constitution indicate that the product which comes into being by fallowing the legislative procedure prescribed in Articles 107 to 111 is called ‘law’. The heading over Articles 107 and 196 reads as “Legislative Procedure”. When the prescribed legislative procedure is followed, the end-product is law. But when the procedure prescribed in Article 368 is strictly followed, it results in the amendment of the Constitution. The Constitution-makers did not call it ‘law’.

1969. Ordinarily fundamental rights avail against the State organs, that is, the Legislature, the Executive and the Judiciary and other agencies of the State. While making an amendment under Article 368, Parliament acts as a constituent authority and not as a State organ. The body making a law in accordance with the procedure prescribed under Articles 107 to 111 and an amendment according to the procedure prescribed in Article 368 may be the same, but the two functions are fundamentally different in character. It is common knowledge that often there is a polarisation of various functions in one and the same body. For instance, the House of Lords in Great Britain exercises legislative functions as well as judicial functions. It may pass a Bill by a bare majority of the Lords assembled in a particular session. But all the Lords minus the Lord Chancellor, the Law Lords and such other Lords as have held or are holding high judicial offices cannot decide a civil appeal. On the other hand, three Lords selected from any one of the last three categories of Lords may decide a civil appeal. The functional difference accounts for this apparent paradox of numbers. The members of the Dominion Parliament of India could not, by their unanimous vote, make the Constitution of India. But the same members-acting as the Constituent Assembly could, by a bare majority, make the Constitution. The functional difference in making a legislative law and an amendment of the Constitution likewise explains the basic difference in the procedures prescribed in Articles 107 to 111 and Article 368. In case of difference on a Bill between the House of the People and the Council of States, the two Houses may meet unicamerally and pass a legislative measure. The President cannot refuse his assent to a Bill passed by both Houses bicamerally or unicamerally. But an amendment of the Constitution under Article 368 cannot be made by a vote in a joint sitting of the two Houses. The two Houses must meet separately and pass tile amending bill by the requisite majority. The President may withhold his assent to the Constitution amending bill. It is on account of the functional difference between law making and Constitution amending that a law passed by the unanimous vote of Parliament according to the procedure in Articles 107 to 111 cannot override any fundamental right. A Bill passed by more than half of the members of each House assembled separately and by two third of the members present and voting will, however, result in the amending of the fundamental rights.

1970. Legislative power in Article 245 is made ‘subject to the provisions of this Constitution’. But Article 368 is not made ‘subject to the provisions of this Constitution’.

Article 368 places only one express fetter on the amending power, that is, the procedural fetter. A substantive fetter on the amending power is accordingly not contemplated by Article 368. The framers of the Constitution were aware of the fact that certain foreign Constitutions have expressly put the amending power in substantive fetters. Indeed Article 305 sought to place such a fetter on the Draft Article 304 (corresponding to Article 368). In the absence of clear textual evidence, I am unable to expand the meaning of ‘law’ in Article 13(2), for an expansive construction would permanently rule out the lawful making of structural reforms in the social, economic and political frame of the country. Speaking on the First amendment to the Constitution following the decision of this Court in State of Madras v. Srimathi Champakan Dorairajan, [1951] INSC 25; (1951) S.C.R. 525 on May 29, 1951 Jawaharlal Nehru said : “We have to give them (the weaker sections of the society) opportunities-economic opportunities, educational opprtunities and the like. Now in doing that we have been told that we come up against some provisions in the Constitution which rather lay down some principles of equality or some principles of non-discrimination etc. So we arrive at a peculiar tangle. We cannot have equality because in trying to attain equality we come up against some principles of equality. That is a very peculiar position. We cannot have equality because we cannot have non- discrimination because if you think in terms of giving a lift to those who are down, you are somehow affecting the present status quo undoubtedly. Therefore, if this argument is correct, then we cannot make any major change in the status quo, whether economic or in any sphere of public or private activity.” Parliamentary Debates Vols. XII-XIII, Part II- 1951, pages 9616-9617.

1971. The word ‘compensation’ in the unamended Article 31(2) has been construed by this Court to mean full market value of the acquired property. This construction creates a direct conflict between Article 31(2) and Article 39(c). Article 39(c) enjoins the State to direct its policy towards securing “that the operation of the economic system does not result in the concentration of wealth and means of production to the common detriment.”

This object can never be achieved if full market value of the acquired properly is to be paid to its owner. The payment of full market value to the owner will change the form of the concentration of wealth from property to cash. The concentration would remain. The history of our National Movement clearly shows that the Constitution-makers were committed to the accomplishment of the objects specified in Part IV of the Constitution.

They have expressly declared that those objects are ‘fundamental’. in the governance of the country. It is accordingly reasonable to think that they have provided for the means of resolving the conflict between Articles 31(2) and 39(c) or between Articles 29 and 46.

They must have intended that when a conflict arises between the rights in Part III and the obligations of the State in the Part IV, that conflict may be resolved by an amendment of the Constitution under Article 368. “My concept of a fundamental right is something which Parliament cannot touch save by an amendment of the Constitution” (emphasis added) (S. Krishnan versus State of Madras) [1951] INSC 31; [1951] S.C.R. 621 at page 652 per Bose J.

1972. The phrase ‘notwithstanding anything in the Constitution’ is used in a provision granting power for emancipating the grant from any restrictive provision in the Constitution. As the word ‘law’ in the Article 13(2) is not intended to include an amendment of the Constitution, Article 368 does not open with the non-obstante clause.

1973. No unmistaking conclusion can be drawn from the history of Article 13(2) as to the meaning of the word ‘law’. The Draft Report of the Sub-Committee on Fundamental Rights, dated April 3, 1947, contained an annexure dealing with Fundamental Rights.

Shiva Rao, Framing of India’s Constitution, Vol. II, p. 137. Clause 2 of the annexure relevantly provided that “any law which may hereafter be made by the State inconsistent with the provisions of this Chapter/Constitution shall be void to the extent of such inconsistency.” By a letter of April 16, 1947, the Chairman of the Fundamental Rights sub-Committee forwarded an annexure on Fundamental Rights to the Chairman, Advisory Committee on Fundamental Rights. Clause 2 of the annexure materially read:

“All existing laws or usages in force…inconsistent with the rights guaranteed under this 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.” Ibid, p. 171.

On April 23, 1947, the Advisory Committee on Fundamental Rights presented an interim report to the President of the Constituent Assembly. The Report contained an annexure providing for fundamental rights. Clause (2) of the annexure materially read : “All existing laws, notifications, regulations, customs or usages in force…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.” Ibid, p. 290. Shri K. Santhanam proposed an amendment substituting for the last words in Clause (2) the words “Nor shall any such right be taken away or abridged except by an amendment of the Constitution.” In his speech he 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 or inconvenient….

In order to avoid any such doubts I have moved this amendment.” C.A.D. Vol. 3, pp.

415-416. So according to him the amendment was by way of abundant caution. Sardar Vallabh Bhai Patel accepted the amendment. It was put to vote and adopted. Ibid, p. 415.

The Constituent Assembly thus accepted the position that fundamental rights could be abrogated by a Constitutional amendment.

1974. In October, 1947, a Draft Constitution was prepared by the Constitutional Adviser.

Shiva Rao, supra, p. 7. Section 9(2) of his Draft Constitution materially read : “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 Constitution except by way of amendment of this Constitution under Section 232 and any law made in contravention of this section shall to the extent of such contravention be void.” Although the Constituent Assembly had expressly accepted the amendment of Sri K. Santhanam, the Drafting Committee omitted the words “except by way of amendment of this Constitution.” The relevant portion of Article 8(2) of the Draft Constitution read : “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 Part shall to the extent of the contravention be void.” No explanation for excluding the words “except by way of amendment of this Constitution”, which were approved by the Constituent Assembly, is to be found in the records. It is, however, important to observe that when the words “except by way of amendment of the Constitution” are omitted from Sri K. Santhanam’s amendment, the remaining words “nor shall any such rights be taken away or abridged”

are quite wide to prohibit the abrogation or abridgment of fundamental rights even by a Constitutional amendment. The same effect seems to be produced by the words “nothing in this Constitution” in Section 9(2) of the Draft Constitution prepared by the Constitutional Adviser. But the Drafting Committee substituted Section 9(2) by Article 8(2) of the Draft Constitution. Article 8(2) of the Draft Constitution does not enmesh in plain words all the provisions of the Constitution including Article 304. This may perhaps explain the omission of the words “except by way of amendment of this Constitution.”

from Article 8(2) of the Draft Constitution. In any case, this history of Article 13(2) does not prove that the Drafting Committee intended Up give supremacy to fundamental rights over the Constitution amending power. In this connection it is important to refer to a note from the Constitutional Adviser’s office that ‘law’ in Section 9(2) did not include an amendment of the Constitution. Shiva Rao, Vol. IV, p. 26.

1975. A careful reading of Dr. B.R. Ambedkar’s speeches would show that the Constitution amending power can be used to abrogate or abridge the fundamental rights.

On November 4, 1948 he said:

The provisions of the Constitution relating to the amendment of the Constitution divide the Articles of the Constitution into two groups. In the one group are placed Articles relating to : (a) the distribution of legislative powers between the Centre and the State, (b) the representation of the States in Parliament; and (c) the powers of the Courts, All other Articles are placed in another group. Articles placed in the second group cover a very large part of the Constitution and can be amended by Parliament by a double majority, namely, a majority of not less than two third of the members of each House present and voting and by a majority of the total membership of each House. The amendments of these articles did not require ratification by the States.” C.A.D. Vol. VII, p. 36. (emphasis added).

He reiterated:

It is only for amendments of specific matters-and they are only few-that the ratifications of the State legislatures is required. All other articles of the Constitution are left to be amended by Parliament.” C.A.D. Vol. VII, p. 43. (emphasis added).

On another occasion he repeated:

Now, what is it we do ? We divide the articles of the Constitution under three categories. The first category is one which consists of articles which can be amended by Parliament by a bare majority. The second set of articles are articles which require two-thirds majority. If the future Parliament wishes to amend any particular article which is not mentioned in Part III or Article 304, all that is necessary is to have two-thirds majority. Then, they can amend it.

Mr. President : Of members present The Honourable Dr. B.R. Ambedkar : Yes, Now, we have no doubt put certain articles in a third category where for the purpose of amendment the mechanism is somewhat different or double. It requires two-thirds majority plus ratification by the States.” C.A.D. Vol. IX, pp. 660-663.

1976. It would appear from these speeches that for the purpose of amendment Dr.

Ambedkar has classified all the Articles of the Constitution in three categories. The Articles must fit in one or the other of the three categories, for according to him there is no fourth category. Articles in Part III of the Constitution should accordingly fit into one of these categories. It seems to me that having regard to his threefold classification of the Articles it is not fair to interpret his speeches as showing that the Articles in Part III are not at all amendable. The word “not” in the sentence “if the future Parliament wishes to amend any particular article which is not mentioned in Part III or Article 304” is presumably either a slip of tongue or a printer’s devil. When Jawaharlal Nehru said that the fundamental rights were intended to be “permanent in the Constitution”, he did not really mean that they are not amendable. His speeches, already quoted by me, would clearly show that he regarded the entire Constitution to be subject to amendment by any future Parliament.

1977. Sri Kamath had moved an amendment to Article 304 which expressly provided for amendment in the provisions of Part III, but that amendment was rejected by the Constituent Assembly. No inference of unamendability of those provisions can be drawn from the rejection of his motion, for the members of the Constituent Assembly might have thought that the language of Article 304 of the Draft Constitution was sufficiently spacious to include an amendment of the provisions of Part III and that accordingly Sri Kamath’s motion was unnecessary.

1978. The phrase “Constitution as by law established” in the President’s oath would not establish that the Constitution is a law in the ordinary sense of the term. The word ‘law’ in the phrase, in my view, means lawful. The phrase would mean “Constitution established in a lawful manner, that is, by the people through their representatives.

1979. The oath of the President to defend “the Constitution and the law” does not bind him to the Constitution as it stood on the day he took the oath. The word ‘law’ undoubtedly means the law for the time being in force. A variation or repeal of a part of a law would not compromise the oath. In the context of law, the ‘Constitution’ would mean the Constitution as varied or repealed from time to time.

1980. Sri Palkhiwala has contended vigorously that people have reserved to themselves the fundamental rights and that those rights are sacred and immutable natural rights. It seems to me that it is an error to consecrate the rights enumerated in Part III of the Constitution as “Sacrosanct” or “transcendental” or to romanticise them as “natural rights” or “primordial rights” or to embalm them in the shell of “inalienable and inviolable” and “immutable.

1981. To regard them as sacrosanct does not seem to comport with the secular virtue of our Constitution. To regard them as “natural rights” or “primordial rights” overlooks the fact that the rights specified in Articles 15, 16, 17, 18, 21, 22, 23, 24, 25, 27, 28. 29, 30 and 32 were begotten by our specific national experience. They did not exist in India before the Constitution.

1982. The Constitution-makers did not regard the rights mentioned in Part III as ‘sacrosanct’ or as ‘inalienable’ and ‘inviolable’ or as ‘immutable’. Jawaharlal Nehru said :

“So, if you wish to kill this Constitution make it sacred and sacrosanct certainly. But if you want it to be a dead thing, not a growing thing, a static, unwieldy, unchanging thing, then by all means do so, realising that that is the best way of stabbing it in the front and in the back. Because whatever the ideas of the 18th century philosophers or the philosophers of the early 19th century…nevertheless the world has changed within a hundred years- changed mightily” Parliamentary Debates Vols. XII-XIII, Part II, pp. 9624-9625.

1983. Articles 15(3), 16(4) and (5), 19(2) to (6), 21, 22(3), 4(b) and 7(a) and (b), 23(2), 25(1) and (2), 26, 28(2), 31(4), (5), and (6) encumber the rights with manifold unpredictable limitations. Article 19(2) has invented a completely new restriction to free speech, namely, ‘friendly relations with foreign states’ Article 33 expressly empowers Parliament to restrict or abrogate the rights in their application to the Army and forces responsible for the maintenance of public order. For a period of five years from May 14, 1954, the ‘reasonableness’ of restrictions on the rights specified in Article 19 was made unjusticiable in the State of Jammu and Kashmir. Clause (7) added to Article 19 by the President provided that ‘reasonable restrictions’ in Clauses (2), (3), (4) and (5) shall be construed as meaning such restrictions as the appropriate legislature in Jammu and Kashmir “deems reasonable”. Article 35A applied to that State by the President made inroads into the rights of employment under the State, the right to acquire property the right to settlement and the right to scholarships and other aids in the State. Article 303(2) empowers Parliament to make law giving preferences and making discrimination in the matter of inter-State trade if it is necessary to do so for dealing with a situation arising from scarcity of goods in any part of the country. Article 358 suspends rights under Article 19 during the operation of the Proclamation of Emergency under Article 352.

Article 359 empowers the President to suspend the rights under Article 32 during Emergency, so that all fundamental rights may be made quiescent. All these provisions prove that the fundamental rights may be taken away or abridged for the good of the people. (Basheskar Nath v. The Commissioner of Income Tax [1959] Supp. 1 S.C.R. 528 at pages 604-605 per S.K. Das J.).

1984. Rights in Part III are downright man made. According to Dr. B.R. Ambedkar, they are the ‘gift of law’ C.A.D. Vol. VII, p. 40. Article 13(2) and 32(1) and (2) and 359 expressly speak of the fundamental rights as “conferred by Part III”. They are thus the creatures of the Constitution. They are called fundamental rights not because they are reserved by the people to themselves but because they are made indestructible by legislative laws and executive action. There is no analogue in the Constitution to the X Amendment of the U.S. Constitution which expressly speaks of the reservation of powers by the people. It is well to remember that the I Amendment taking away or abrogating certain rights was passed by the Constituent Assembly acting as the Provisional Parliament. It reflects the Constitution-makers’ intention that the rights can be abrogated.

1985. The prescription of a more rigid procedure for changing the provisions specified in the provisio to Article 368 underscores the fact that the framers of the Constitution regarded them as more valuable than the provisions of Part III. They attached more value to federalism than to the fundamental rights.

Inherent and implied limitations on amending power 1986. Wanchoo J. and two other learned Judges who associated with him have held that there are no inherent and implied limitations on the amending power in Article 368 (Golaknath, Supra at page 836). Bhachawat and Ramaswami JJ. shared their opinion.

(ibid, pages 910 and 933). It seems to me that Hidayatullah J. also did not favour the argument of inherent and implied limitations on the amending power, for he has 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.”

(ibid, p. 878).

1987. Sri Palkhiwala’s argument of inherent and implied limitations may be reduced to the form of a syllogism thus. All legislative powers are subject to inherent and implied limitations.

1988. The constituent power in Article 368 is a legislative power.

1989. The constituent power is subject to inherent and implied limitations.

1990. If the major and minor premises in the syllogism are valid, the conclusion also must be valid. But both premises are fallacious. Some legislative powers are not subject to any inherent and implied limitations. Take the case of the War Power. During the course of arguments I had asked Sri Palkhiwala to point out any inherent and implied limitation on the War Power, but he could point out none. When the President has issued a Proclamation of Emergency under Article 352, the cardinal principle of federalism is in eclipse. Parliament may make laws for the whole or any part of the territory of India with respect to any of the matters enumerated in the State List. (See Article 250(1)). The executive power of the Union shall extend to the giving of directions to any State as to the manner in which the executive power thereof is to be exercised. Parliament may confer powers and impose duties or authorise the conferring of powers and the imposition of dudes upon the Union officers and authorities in respect of a matter not enumerated in the Union List. (See Article 353). The teeth, of Article 19 become blunted. (See Article 358). The President may suspend the right to move any Court for the enforcement of fundamental rights. (See Article 359) it would virtually suspend the fundamental rights during Emergency. Article 83(2) provides that the House of the People shall continue for five years from the date appointed for its first meeting. According to its proviso, the period of five years 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. Evidently during Emergency the War Power of Parliament and the President is at its apogee, uncribbed and uncabined. It has already been shown earlier that the constituent power in Article 368 is not a legislative power. As both premises of the syllogism are fallicious, the conclusion cannot be valid.

1991. According to Sri Palkhiwala, an inherent limitation is one which inheres in the structure of Parliament. Parliament consists of two Houses and the President. The House of the People is elected by adult franchise. It is argued that Parliament cannot make any amendment doing away with its structure. Its structure limits its amending potency. It is a big assumption and should not be accepted without proof from the text of the Constitution. The Constitution does not embody any abstract philosophy. It is still seriously debated whether ‘birds fly because they have wings’ or ‘birds have wings because they fly’. Many maintain that function works change in structure. Proviso to Article 83(2), Articles 250, 353, 358 and 359 demonstrate that the structure of our polity and of Parliament suffer change from the tasks of Emergency. Article 368 itself can be amended to enlarge the amending power. The magnitude of the amending power is to be measured by the purposes which it is designed to achieve than by the structure of Parliament.

1992. Implied limitations cannot be spelt out of the vague emotive generalities of the Preamble. ‘People’, ‘Sovereign’, ‘Democratic’, ‘Republic’, ‘Justice’, ‘Liberty’, ‘Equality’ and ‘Fraternity’ are plastic words, and different people have impressed different meanings on them. Slavery had coexisted with democracy and republic. Liberty and religious persecution have walked hand in hand. It was once believed that equality was not compromised by denying vote to the propertyless. Preamble is neither the source of powers nor of limitations on power. (In re. Barubari Union, Supra, p. 282).

1993. According to Sri Palkhiwala, an implied limitation is one which is implicit in the scheme of various provisions of the Constitution. The scheme “of various provisions is to create primary organs of State and to define, demarcate and limit their powers and functions. The scheme of Article 368, on the other hand, is to re-create the primary organs of State and to re-define, re-demarcate and re-limit their powers and functions if and when it becomes imperative to do so for the good of the people. Accordingly it must plainly have been the intention of the Constitution-makers that Article 368 should control and condition rather than be controlled and conditioned by other provisions of the Constitution. Article 368 is the master, not the slave of the other provisions. Acting under Article 368, Parliament is the creator, not the creature of the Constitution. In one word, it is supreme. As Lord Halifax has said : The “reverence that is given to a fundamental…would be much better applied to that supremacy or power, which is set up in every nation in differing shapes, that altereth the Constitution as often as the good of the people requireth it…. I lay down, then, as a fundamental first, that in every Constitution there is some power which neither will nor ought to be bounded. Gough, Supra, at page 170.” Jawaharlal Nehru also said : “(U)ltimately the whole Constitution is a creature of Parliament.” C.A.D. Vol. IX, p. 1195.

1994. It is said that Article 368 cannot be used to abrogate any basic, fundamental or essential feature of the Constitution or to damage or destroy the core of any fundamental right. But no accurate test for ascertaining a basic, fundamental or essential feature or the core of a fundamental right has been suggested by Sri Palkhiwala. An appeal is made to the trained and perceptive judicial mind to discover the essential features of the Constitution and their core. During the Stuart period in England the King as well as the Parliament were both claiming to defend the fundamentals of English polity. Charles I declared that he had taken up arms only “to defend the fundamental laws of this Kingdom.” Gough, supra, p. 78. On the other hand, Parliamentarians maintained that the right of the people was more truly fundamental than anything based merely on tradition or prescription Ibid, p. 99. Commenting on the remark of Sir John Finch C.J. (quoted in the opening of this judgment) Maitland said: (W)ho is to decide what is an ornastitution above both king and Parliament, limiting to royal acts a ment and what a substantial part of the crown. The notion of a Conproper sphere, limiting to statutes a proper sphere, was nowhere to be found expressed in any accurate terms, and would satisfy neither king nor nation Constitutional History of England, Supra, p. 300.

1995. At the end of the 17th century Lord Halifax derisively remarked : “Fundamental is a pedestal that men set everything upon that they would not have broken. It is a nail everbody would use to fix that which is good for them; for all men would have that principle to be immutable that serves their use at the time.

1996. Fundamental is a word used by the laity as the word sacred is by the clergy, to fix everything to themselves they have a mind to keep, that nobody else may touch it Gough, supra, pp. 169-170.

1997. The Constitution-makers who were familiar with the English Constitutional history could not conceivably have left undetermined the test of distinguishing the essential features from the non-essential features or their core. The test is writ large in Article 368 itself. Every provision of the Constitution which may be amended only by the procedure prescribed in Article 368 is an essential feature of the Constitution, for it is more set than legislative laws. The test is the rigid procedure. The more rigid the procedure, the more essential the provision amendable thereby. Thus the provisions specified in the proviso to Article 368 are more essential than the rights in Part III. It has already been shown earlier that the fundamental rights, even though an essential feature of the Constitution, are within the sway of the amending power in Article 368. On a parity of reasoning, judicial review of legislation is also amendable. The Constitution creates, enlarges, restricts and excludes judicial review of legislation. (See Articles 32(2), 138, 139, 143, 77(2), 166(2) and 31(4), (5) and (6)). Article 32(2) is as amendable as any fundamental right in Part III.

The word “guaranteed” in Article 32(1) does not testify to its unamendable character. The guarantee is good against the Government organs and not against the constituent power.

It may be recalled that on December 9, 1948, Dr. B.R. Ambedkar, while speaking on Article 25 of the Draft Constitution (present Article 32) said : “The Constitution has invested the Supreme Court with these writs and these write could not be taken away Unless and until the Constitution itself is amended by means left open to the Legislature C.A.D. Vol. VII, p. 953.” And this he said in spite of his affirmation that Article 25 is the “very soul” and the “very heart” of the Constitusion.

1998. Article 368 places no express limits on the amending power. Indeed, it expressly provides for its own amendment. Parliament and more than half of the States may jointly repeal Article 368 and thus make fundamental rights immutable if they so desire. It is not permissible to enlarge constructively the limitations on the amending power. Courts are not free to declare an amendment void because in their opinion it is opposed to the spirit supposed to pervade the Constitution but not expressed in words. (A.K. Gopalan v. The Union of India [1950] INSC 14; [1950] S.C.R. 88 at p. 120 per Kania C.J. and p. 220 per Mahajan J.; Raja Suriya Pal Singh v. State of U.P. [1952] S.C.R. 1056 at page 1068 per Mahajan J.). In Babu Lal Pavate versus State of Bombay [1960] 1 S.C.R. 905 the Constitutionality of the States Reorganisation Act, 1956 was questioned by this Court. The Act provided for the formation of two separate units out of the former State of Bombay: (1) The State of Maharashtra and (2) The State of Gujarat. It also provided for transfer of certain territories from one State to another. The Act was passed under Article 3 of the Constitution. Article 3 has a proviso to the effect that no Bill under the main part of Article 3 shall be introduced in either of the Houses unless, where the proposal contained in the Bill affects the area, boundary or name of any of the States, the Bill has been referred by the President to the Legislature of that State for expressing its views thereon.

The Bill carved out three units out of the State of Bombay, but the Act carved out only two units. It was urged that the word “State” in Article 3 should be given a larger connotation so as to mean not merely the State but its people as well. This according to the argument was the “democratic process” incorporated in Article 3. According to this “democratic process” the representatives of the people of the State of Bombay assembled in the State Legislature should have been given an opportunity of expressing their views not merely on the proposal contained in the Bill but on any subsequent modification thereof. Rejecting this argument, S.K. Das, J. said:

(I)t will be improper to import into the question of construction doctrines of democratic theory and practice obtaining in other countries, unrelated to the tenor, scheme and words of the provisions which we have to construe…. It does not appear to us that any special or recondite doctrine of “democratic process” is involved therein.

1999. In the South India Corporation (P) Ltd. v. The Secretary, Board of Revenue, Trivandrum [1963] INSC 163; (1964) 4 S.C.R. 280 at page 295, Subba Rao J., while construing Article 372 observed:

Whatever it may be, the inconsistency must be spelled out from the other provisions of the Constitution and cannot be built up on the supposed political philosophy underlying the Constitution.

2000. Counsel for the petitioners has relied on Mangal Singh v. Union of India [1966] INSC 251; (1967) 2 S.C.R. 109. The Punjab Reorganisation Act, 1966 was enacted with the object of reorganising the State of Punjab. Its Constitutionality was questioned in this Court. The argument of the respondent that a law made under Articles 2, 3 and 4 may also make supplemental, incidental and consequential provisions which shall include provisions relating to the set-up of the legislative, executive and judicial organs of the State was countered by the appellant with the argument that such a wide power Parliament might conceivably exercise to abolish the legislative and judicial organs of the state altogether.

Rejecting the counter-argument Shah J. said:

We do not think that any such power is contemplated by Article 4. Power with which the Parliament is invested by Articles 2 and 3 is power to admit, establish or form new States which conform to the democratic pattern envisaged by the Constitution; and the power which the Parliament may exercise by law is supplemental, incidental or consequential to the admission, establishment or formation of a State as contemplated by the Constitution and is not power to override the Constitutional scheme. No State can therefore be formed, admitted or set up by law under Article 4 by the Parliament which has no effective legislative, executive and judicial organs.

2001. Under Articles 2 and 3 Parliament may by law form a new State, increase or diminish the area of any State, and alter the boundary or name of any State. The power is thus exercisable with reference to a State. The observation, of Shah J. is to be read in the context of Chapters II, III and IV of Part VI. Chapter II of Part VI provides for the executive structure of a State. Article 155 states that there shall be a Governor for each State. Chapter III of Part VI deals with the structure of the State Legislature. Article 168 provides that for every State there shall be a Legislature. The composition of the Legislature, its powers and functions are laid down in this Chapter. Chapter V provides for the structure of the State Judiciary. Article 214 provides that there shall be a High Court for each State. The provisions in these Chapters are mandatory. Parliament, while making a law under Articles 2, 3 and 4, cannot make radical changes in the legislative, executive and judicial administration of a State, for its law-making power is subject to Chapter II, III and V of Part VI.

2002. Sri Palkhiwala has invoked natural law as the higher law conditioning the constituent power in Article 368. Natural Law has been a sort of religion with many political and Constitutional thinkers. But it has never believed in a single Godhead. It has a perpetually growing pantheon. Look at the pantheon, and you will observe there : ‘State of Nature’, ‘Nature of Man’, ‘Reason’, ‘God’, ‘Equality’, ‘Liberty’, ‘Property’, ‘Laissez Faire’, ‘Sovereignty’, ‘Democracy’, ‘Civilised Decency’, ‘Fundamental Conceptions of Justice’ and even ‘War’ “In justifying and extolling war as an institution Treitschke appealed “to the laws of human thought and of human nature” which forbid any alternative.” H.

Lauterpacht : International Law and Human Rights, (1950 Edn.) p. 108.

2003. The religion of Natural Law has its illustrious Priestly Heads such as Chrysippus, Cicero, Seneca, St. Thomas Acquinas, Grotius, Hobbes, Locke, Paine, Hamilton, Jefferson and, Trietschke. The pantheon is not a heaven of peace. Its gods are locked in constant internecine conflict.

2004. Natural Law has been a highly subjective and fighting faith. Its bewildering variety of mutually warring gods has provoked Kelson to remark: “(O)utstanding representatives of the natural law doctrine have proclaimed in the name of Justice or Natural Law principles which not only contradict one another, but are in direct opposition to many positive legal orders. There is no positive law that is not in conflict with one or the other of these principles; and it is not possible to ascertain which of them has a better claim to be recognised than any other. All these principles represent the highly subjective value judgments of their various authors about what they consider to be just of natural What is Justice? University of California Press, 1960, page 259”.

2005. Article 368 should be read without any preconceived notions. The framers of the Constitution discarded the concept of “due process of law” and adopted the concept of “procedure established by law” in Article 21. It is therefore reasonable to believe that they have discarded the vague standard of due process of law for testing the legitimacy of a Constitutional amendment. Due Process of Law is another name of natural law. The Constitution-makers could have easily imposed any express limitation on the content of the amending power. The absence of any express limitation makes me think that they did not surround the amending power with the arnorphic penumbra of any inherent and implied limitations.

Judicial Review of Constitutional amendments 2006. The history of this Court from Gopalan (Supra) to Golaknath (Supra) brings out four variant judicial attitudes. In Gopalan the majority of the Court expressly or tacitly acknowledged “the omnipotence of the sovereign legislative power.” The Court displayed humility and self-restraint. But two years later in 1952 the Court assumed the posture of a sentinel. In the State of Madras v. V.G. Row [1952] INSC 19; (1952) S.C.R. 597 a unanimous Court spoke thus: “(A)s regards the fundamental rights’…this Court has been assigned the role of a sentinel on the qui vive.” While the Court took care to assure that it has no ‘desire to tilt at legislative authority in a crusader’s spirit’, it added by way of warning that “it cannot desert its own duty to determine finally the Constitutionality of an impugned statute.”

The Court moved away from its Gopalan attitude of humility and self-restraint to the sentinel’s role, compounded of self-restraint and self-consciousness. In 1954 the Court moved away a step further. In Virendra Singh and Ors. v. State of Uttar Pradesh [1954] INSC 55; [1955] 1 S.C.R. 415 the Court, making the people its mouthpiece, asserted : “(W)e do not found on the will of the Government, we have upon us the whole armour of the Constitution wearing the breastplate of its protecting provisions and flashing the sword of its inspirations.” Perhaps this passage is a faithful drawing of a crusader. But the picture is of a crusader getting ready to set out on a new path. This is the Third attitude of the Court. It displays more of self-assertion than of self-suppression. By 1963 Gopalan attitude of humility and self-restraint had lost its appeal. With the banner of “natural”, “sacrosanct”, and “transcedental” rights in one hand and ‘the flaming sword of (the Constitution’s) inspiration’ in the other, the Court announced in Golaknath that Parliament cannot take away or abridge the fundamental rights in Part III. This is the fourth attitude of the Court towards judicial review. From Gopalan to Golaknath, the Court has shifted from one end to the other end of the diagonal, from Parliament’s supremacy to its own supremacy.

2007. At the centre of the Court’s legal philosophy, there is the rational free-will of the individual. The Court’s claim to the guardianship over fundamental rights is reminiscent of the Platonic guardians, the philosopher kings who were to rule over the Republic. The Courts’s elevation of the fundamental rights recalls Locke, ‘whose notion of liberty involves nothing more spiritual than the security of property and is consistent with slavery and persecution’ Acton: The History of Freedom and Power, p. 104. When the Court surrounds the fundamental rights with the nimbus of ‘sacred’ and ‘sacrosanct’, we are reminded of the theories of Grotius and Pufendorf with their theological strains.

When the Court declares that the fundamental rights are ‘primordial’, ‘immutable’ and ‘inalienable’ it is presumably banking on Blackstone with the difference that unlike him it is negating the omnipotence of Parliament. When it is claimed that fundamental rights are accorded a “transcendental position” in the Constitution, it is seeking to read Kant’s transcendental idealism into the Constitution.

2008. This philosophy has entailed the subservience of the Directive Principles of State Policy to the fundamental rights. January 26, 1950 became the great divide : on one side of it were those who became endowed with the fundamental rights and enjoyed their blessings; on the other side were those who were formally granted fundamental rights but had no means and capacity to enjoy their blessings. This great divide is to remain for all time to come. But the Constitution-makers had a contrary intention. Said Jawaharlal Nehru: “These (the Directive Principles of State Policy) are, as the Constitution says, the fundamentals in the governance of the country. Now, I should like the House to consider how you can give effect to these principles if the argument which is often being used…is adhered to, you can’t. You may say you must accept the Supreme Court’s interpretation of the Constitution. But, I say, then if that is correct, there is an inherent contradiction in the Constitution between the fundamental rights and the Directive Principles of State Policy.

Therefore, again, it is upto this Parliament to remove that contradiction and make the fundamental rights subserve the Directive Principles of State Policy Lok Sabha Debates, 1955-Vol. II, p. 1955″.

2009. Article 31(4), (5) and (6) establish beyond doubt that the Constitution-makers intended to give ascendency to the Directive Principles of State Policy over fundamental”

rights. “It is futile to cling to our notions of absolute sanctity of individual liberty or private property and to wishfully think that our Constitution-makers have enshrined in our Constitution the notions of individual liberty and private property that prevailed in the 16th century when Hugo Grotius flourished or in the 18th century when Blackstone wrote his Commentaries and when the Federal Constitution of the United States of America was framed. We must reconcile ourselves to the plain truth that emphasis has now unmistakbly shifted from the individual to the community. We cannot overlook that the avowed purpose of our Constitution is to set up a welfare State by subordinating the social…interest in the rights of the communitySocial interests are ever expanding and are too numerous to enumerate or even to anticipate and therefore, it is not possible to circumscribe the limits of social control to be exercised by the State…. It must be left to the State to decide when and how and to what extent it should exercise this social control State of West Bengal v. Subodh Gopal [1953] INSC 85; (1954) S.C.R. 587 at page 655 per Das J.”.

2010. The Constitution does not recognise the supremacy of this Court over Parliament.

We may test legislative laws only on the touchstone of authoritative norms established by the Constitution. Its procedural limitations aside, neither Article 368 nor any other part of the Constitution has established in explicit language any authoritative norms for testing the substance of a Constitutional amendment. I conceive that it is not for us to make ultimate value choices for the people. The Constitution has not set up a government of judges, in this country. It has confided the duty of determining paramount norms to Parliament alone. Courts are permitted to make limited value choices within the parameters of the Constitutional value choices. The Court cannot gauge the urgency of an amendment and the danger to the State for want of it, because all evidence cannot come before it. Parliament, on the other hand, is aware of all factors, social, economic, political, financial, national and international pressing for an amendment and is therefore in a better position to decide upon the wisdom and expediency of it.

2011. Reason is a fickle guide in the quest for structural socio-political values. In the trilogy of Sankari Prasad Singh v. Union of India [1951] INSC 45; [1952] S.C.R. 89, Sajjan Singh of State of Rajasthan [1964] INSC 246; [1965] 1 S.C.R. 933 and Golaknath (Supra) the opinion of seven judges prevailed over the opinion of thirteen judges. The reason of the author of the Nicomochean Ethics found reason in slavery. The reason of the impassioned advocate of Unlicensed Printing saw reason in denying freedom of speech to the Catholics. So Schanupenhaur has said : “We do not want a thing because we have sound reasons for it;

we find a reason for it because we want it” As quoted in the Story of Philosophy by Will Durant at p. 339. Pure reason is a myth. Structuring reason is also calculating expediency, computing the plus and minus of clashing values as a particular time, in a particular place and in particular conditions, striking difficult balances.

2012. Structural socio-political value choices involve a complex and complicated political process. This Court is hardly fitted for performing that function. In the absence of any explicit Constitutional norms and for want of complete evidence, the Court’s structural value chokes will be largely subjective. Our personae predilections will unavoidably enter into the scale and give colour to our judgment. Subjectivism is calculated to undermine legal certainty, an essential element of the rule of law.

2013. Judicial review of Constitutional amendments will blunt the people’s vigilance, articulateness and effectiveness. True democracy and true republicanism postulate the settlement of social, economic and political issues by public discussion and by the vote of the people’s elected representatives, and not by judicial opinion. The Constitution is not intended to be the arena of legal quibbling for men with long purses. It is made for the common people. It should generally be so construed that they can understand and appreciate it. The more they understand it, the more they love it and the more they prize it.

2014. I do not believe that unhedged amending power would endanger the interests of the religious, linguistic and cultural minorities in the country. As long as they are prepared to enter into the political process and make combinations and permutations with others, they will not remain permanently and completely ignored or out of power. As an instance, while the Hindu Law of Succession has been amended by Parliament, no legislature from 1950 to this day has taken courage to amend the Muslim Law of Succession. A minority party has been sharing power in one State for several years. Judicial review will isolate the minorities from the main stream of the democratic process. They will lose the flexibility to form and re-form alliances with others. Their self-confidence will disappear, and they will become as dependent on the Court’s protection as they were once dependent on the Government’s protection. It seems to me that a two-third majority in Parliament will give them better security than the close vote of this Court on an issue vitally affecting them.

2015. Great powers may be used for the good as well as to the detriment of the people.

An apprehended abuse of power would not be a legitimate reason for denying unrestricted amending power to Parliament, if the language of Article 368 so permits without stretch or strain. While construing the Constitution, it should be presumed that power will not be abused. (A.K. Gopalan v. State [1950] INSC 14; [1950] S.C.R. 88 at pp. 320-21 at pages 320-21 per Das J.; Dr. N.B. Khare v. The State of Delhi [1950] INSC 19; [1950] S.C.R. 519 at page 526 per Kania C.J.; In Re. Delhi Laws Act [1951] INSC 35; [1951] S.C.R. 747 at p. 1079 per Das J.), There is a general presumption in favour of an honest and reasonable exercise of power. (State of West Bengal v. Anwar Ali Sarkar [1952] INSC 1; [1952] S.C.R. 284 at page 301 per Patanjali Sastri J.).

We should have faith in Parliament. It is responsible to the people; it cannot ignore any section of them for all time.

2016. Repelling the abuse of power argument, Das J. observed:

(W)hat, I ask, is our protection against the legislature in the matter of deprivation of property by the exercise of the power of taxation? None whatever. By exercising its power of taxation by law, the State may deprive us of almost sixteen annas in the rupee of our income. What, I ask, is the protection which our Constitution gives to any person against the legislature in the matter of deprivation even of life or personal liberty.

None, except the requirement of Article 21, namely, a procedure to be established by the legislature itself and skeleton procedure prescribed in Article 22…. What is abnormal if our Constitution has trusted the legislature as the people of Great Britain have trusted their Parliament ? Right to life and personal liberty and the right to private property still exist in Great Britain in spite of the supremacy of Parliament. Why should we assume or apprehend that our Parliament…should act like mad man and deprive us of our property without any rhyme or reason? After all our executive government is responsible to the legislature and the legislature is answerable to the people. Even if the legislature indulges in occasional vagaries, we have to put up with it for the time being. That is the price we must pay for democracy. But the apprehension of such vagaries can be no justification for stretching the language of the Constitution to bring it into line with our notion of what an ideal Constitution should be. To do so is not to interpret the Constitution but to make a new Constitution by unmaking the one which the people of India have given to themselves.

That, I apprehend, is not the function of the Court. [1953] INSC 85; (1954) S.C.R. 587 2017. The argument of fear therefore is not a valid argument. Parliament as a legislature is armed with at least two very vast powers in respect of war and currency. Any imprudent exercise of these two powers may blow the whole nation into smithereens in seconds, but no court has so far sought to restrict those powers for apprehended abuse of power. Democracy is founded on the faith in self-criticism and self-correction by the people. There is ‘nothing to fear from a critical and cathartic democracy.

2018. The conflicts of the mediaeval Pope and the Emperor put on the Wane their power as well as their moral authority. Conditions in India today are not propitious for this Court to act as a Hildebrand. Unlike the Pope and the Emperor, the House of the People, the real repository of power, is chosen by the people. It is responsible to the people and they have confidence in it. The Court is not chosen by the people and is not responsible to them in the sense in which the House of the People is. However, it will win for itself a permanent place in the hearts of the people and thereby augment its moral authority if it can shift the focus of judicial review from the numerical concept of minority protection to the humanitarian concept of protection of the weaker sections of the people.

2019. It is really the poor, starved and mindless millions who need the Court’s protection for securing to themselves the enjoyment of human rights. In the absence of an explicit mandate, the Court should abstain from striking down a Constitutional amendment which makes art endeavour to ‘wipe out every tear from every eye’. In so doing the Court will not be departing from but will be upholding the national tradition. The Brihadaranyaka Upanishad says : “Then was born the Law (Dharma), the doer of good. By the law the weak could control the strong.” (I. IV, 14). Look at the national emblem, the chakra and satyameva jayate. The chakra is motion; satyam is sacrifice. The chakra signifies that the Constitution is a becoming, a moving equilibrium; satyam is symbolic of the Constitution’s ideal of sacrifice and humanism. The Court will be doing its duty and fulfilling its oath of loyality to the Constitution in the measure judicial review reflects these twin ideals of the Constitution.

Twentyfourth Amendment 2020. It consists of two relevant sections, Sections 2 and 3, These sections have been drawn in the light of various judgments in Golaknath (supra). Section 2 adds Clause (4) to Article 13. As the majority decision in Golaknath had taken the view that Article 13(2) is a limitation on the amending power to take away or abridge the fundamental rights, Clause (4) removes that limitation. Section 3 consists of four clauses. Clause (a) substitutes the marginal note to the unamended Article 368. The substituted marginal note reads as “Power of Parliament to amend the Constitution and procedure therefor”.

Clause (b) renumbers the unamended Article 368 as Clause (2) and adds Clause (1) to it.

The new Clause (1) calls the amending power as ‘constituent power’. It empowers Parliament to amend ‘by way of addition, variation or repeal’ any provision of the Constitution in accordance with the prescribed procedure. It opens with the wellknown phrase “Notwithstanding anything in this Constitution”. In the renumbered Clause (2) also, that is, the unamended Article 368, there is an amendment It says that the President shall give his assent to the Bill. Clause (d) adds Clause (3) no Article 368. It provides that nothing in Article 13 shall apply to any amendment made under Article 368:

2021. It may be observed that except as regards the assent of the President to the Bill, everything else in the 24th Amendment was already there in the unamended Article 368.

I have already held to that effect earlier in this judgment. Accordingly, the amendment is really declaratory in nature. It removes doubts cast on the amending power by the majority judgment in Golaknath (supra) I am of opinion that the 24th Amendment is valid.

2022. The unamended Article 368 imposed a procedural limit to the amending power.

The amending Bill could not become a part of the Constitution until it had received the assent of the President. I have held earlier that the President could withhold his assent.

After the amendment the President cannot withhold assent. The procedural restrictions are a part of Article 368. The unamended Article 368 provided for its own amendment. It was accordingly open to Parliament to amend the procedure. So I find no difficulty in upholding the amendment that the President “shall give his assent to the Bill 2023. One thing more. Let us assume for the sake of argument that the amending power in the unamended Article 368 was subject to certain inherent and implied limitiations. Let us also assume that it was restricted by the provisions of Article 13(2). The unamended Article 368 would impliedly read as “subject to Article 13(2) and any inherent and implied limitations.” So the restrictions imposed by Article 13(2) and inherent and implied limitations were a part of the body of Article 368. As Article 368 is itself liable to amendment, these restrictions are now removed by Parliament for they will fall within the ambit of the word “amendment”. The phrase “notwithstanding anything in this Constitution” in the newly added Clause (1) of Article 368 is apt to sweep away all those restrictions. In the result, the amending power is now free of the incubus of Article 13(2) and inherent and implied limitations, if any.

In my opinion, the whole of the 24th amendment is perfectly valid.

Section 2 of the 25th Amendment 2024. Section 2 amends Article 31(2). The unamended Article 31(2) obligated the State to pay ‘compensation’ for any property acquired or requisitioned by it. Section 2 substitutes the word ‘compensation” by the words “an amount”. It also provides that the amount fixed by law or determined in accordance with the principles prescribed by law may be “given in such a manner as may be specified in such law.

2025. The last part of the main part of the amended Article 31(2) also states that “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.

2026. A proviso has also been added to Article 31(2). According to the proviso, while making any law-providing for the compulsory acquisition of any property of 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 the law is such as would not restrict or abrogate the rights guaranteed under that clause.

2027. Section 2 adds Clause (2B) to Article 31. Clause (2B) states that the provisions of Article 19(1)(f) shall not affect any law referred to in the amended Article 31(2).

2028. The birth of Section 2 is dictated by the history of Article 31(2). Article 24 of the Draft Constitution became Article 31(2). Article 24 was moved by Jawaharlal Nehru in the Constituent Assembly on September, 10, 1949. Then he said that compensation could not be questioned “except where it is thought that there has been a gross abuse of law, where in fact there has been a fraud on the Constitution C.A.D. Vol. IX, p. 1193”. His construction of Article 24 received support from Sri Alladi Krishnaswami Ayyar and Sri K.M. Munshi. Sri K.M. Munshi narrated his personal experience. In 1938 Bombay Government acquired the Bardoli lands. In one case the property acquired was worth over rupees five lacs. It was sold during the Non-cooperation Movement to an old Diwan of a native State for something like Rs. 6000. The income from the property was about Rs.

80,000.00 a year. The Diwan had received that income for about 10 years. The Bombay Legislature acquired the property by paying compensation equal to the amount invested by the Diwan in the property plus 6%. In direct opposition to the manifest intention of the Constitution makers, this Court held that the word “compensation” in Article 31(2) means “full cash equivalent” (The State of West Bengal v. Mrs. Bela Banerjee) (1954) S.C.R.

558.

2029. To give effect to the intention of the Constitution-makers, Article 31(2) was amended by the 24th Amendment to the Constitution in 1955. The 4th Amendment added to Article 31(2) these words: “and no such law shall be called in question in any court on the ground that the compensation provided by law is not adequate.” The effect of the 4th amendment was considered by this Court in P. Vajravelu v. Special Deputy Collector, Madras [1964] INSC 214; [1965] 1 S.C.R. 614. Subba Rao J. said:

The fact that Parliament Used the same expressions, namely, ‘compensation’ and ‘principles’ as were found in Article 31 before the amendment is a clear indication that it accepted the meaning given by this Court to those expressions in Mrs. Bela Banerjee’s case. It follows that a Legislature in making a law of acquisition or requisition shall provide for a just equivalent of what the owner has been deprived of or specify the principles for the purpose of ascertaining the ‘just equivalent’ of what the owner has been deprived of. If Parliament intended to enable a Legislature to make such a law without providing for compensation so defined, it would have used other expressions like ‘price’, ‘consideration’ etc. Ibid. at page 626.

2030. Regarding the amendment he said:

(A) more reasonable interpretation is that neither the principles prescribing the ‘just equivalent’ nor the ‘just equivalent’ can be questioned by the Court on the ground of the inadequacy of the compensation fixed or arrived at by the working of the principles. To illustrate, a law is made to acquire a house; its value at the time of the acquisition has to be fixed; there are many modes of valuation, namely, estimate by an engineer, value reflected by comparable sales, capitalisation of rent and similar others. The application of different principles may lead to “different results. The adoption of one principle may give a higher value and the adoption of another principle may give a lesser value. But none the less they are principles on which and the manner in which compensation is determined.

The Court cannot obviously say that the law should have adopted one principle and not the other, for it relates only to the question of adequacy.

On the other hand, if a law lays down principles which are not relevant to the property acquired or to the value of the property at or about the time it is acquired it may be said that they are not principles contemplated by Article 31(2) [1965] 1 S.C.R. Supra, at page 627.

2031. In Union v. Metal Corporation [1967] 2 S.C.R. 255 at page 264-265 Subba Rao J.

spoke again on the implications of the Fourth Amendment. He said:

The law to justify itself has to provide for the payment of a ‘just equivalent’ to the land acquired or lay down principles which will lead to that result. If the principles laid down are relevant to the fixation of compensation and are not arbitrary, the adequacy of the resultant product cannot be questioned in a court of law. The validity of the principles judged by the above tests falls within judicial scrutiny, and if they stand the tests, the adequacy of the product falls outside its jurisdiction.

2032. These two decisions neutralised the object of the 4th Amendment. In State of Gujarat v. Shantilal Mangaldas [1969] INSC 8; [1969] 3 S.C.R. 341 this Court overruled the Metal Corporation. Shah J. said at page 363 of the Report:

Right to compensation in the view of this Court was intended by the Constitution to be a right to a just equivalent of the property of which a person was deprived. But the just equivalent was not capable of precise determination by the application of any recognised principles. The decisions of this Court in the two cases-Mrs. Bela Banerjee’s case and Subodh Gopal Bose’s case were therefore likely to give rise to formidable problems, when the principles specified by the Legislature as well as the amounts determined by the application of those principles were declared justiciable. By qualifying ‘equivalent’ by the adjective ‘just’ the enquiry was made more controversial; and apart from the practical difficulties the law declared by this Court also placed serious obstacles in giving effect to the directive principles of State policy incorporated in Article 39.

(emphasis added).

2033. He added:

If the quantum of compensation fixed by the Legislature is not liable to be canvassed before the Court on the ground that it is not a just equivalent, the principles specified for determination of compensation will also not be open to challenge on the plea that the compensation determined by the application of those principles is not a just equivalent…(I)t does not mean however that something fixed or determined by the application of specified principles which is illusory or can in no sense be regarded as compensation must be held by the Courts, for, to do so would be to grant a charter of arbitrariness, and permit a “device to defeat the Constitutional guarantiee. A challenge to a statute that the principles specified by it do not award a just equivalent will be in clear violation of the Constitutional declaration that adequacy of compensation provided is not justiciable.

[1969] 3 S.C.R. pages 365-366.

2034. Shantilal Mangaldas transfused blood in the 4th Amendment made anaemic by Vajravelu and Metal Corporation. But soon thereafter came the majority decision in R.C.

Cooper v. Union of India [1970] INSC 18; [1970] 3 S.C.R. 530. Cooper in substance overruled Shantilal Mangaldas and restored the old position. More, it also added the test of Article 19(1)(f) to valid acquisition of property. These decisions of the Court constrained Parliament to enact Section 2 of the 25th Amendment.

2035. Having regard to this history, it will not be proper to import the concept of compensation in Article 31(2), Section 2 has substituted the word ‘compensation’ by the word ‘amount’ at every relevant place in Article 31(2). The Court should not minimize or neutralize its operation by introducing notions taken from or inspired by the old Article 31(2) which the words of Section 2 are intended to abrogate and do abrogate.

2036. According to Webster’s Dictionary on Synonyms (1st Edn. page 47) the word ‘amount’ means ‘sum, total, quantity, number, aggregate, whole’. According to the Shorter Oxford English Dictionary, the word ‘principle’ means ‘that from which something takes its rise originates or derives’. The word ‘adequate’, according to the same Dictionary, means ‘equal in magnitude or extent, commensurate in fitness, sufficient, suitable’.

According to the Words and Phrases (Permanent Ed. Vol. II, p. 363) the word “adequate”

some time means that which is equal to the value; but in its primary and more properly significance nothing can be said to be adequate which is not equal to what is required suitable to the case or occasion, wholly sufficient, proportionate and satisfactory.

2037. Unlike ‘compensation’ the word ‘amount’ is not a term of art. It bears no specific legal meaning. The amount fixed by law or determined in accordance with the principles specified by law may be paid partly in cash and partly in kind. In such a case it may often be difficult to quantify the aggregate value of the cash and the thing given. Again, the amount may be paid in such a manner as may be specified in the law. Thus the law may provide for payment of the amount over a long period of years. Article 19(1)(f) shall now have no impact on Article 31(2). Having regard to all these circumstances, it is, I think, not permissible to import the notion of reasonableness in Article 31(2) as amended by Section 2. The phrase ‘principle on which and the manner in which the compensation is to be determined and given’ in the old Article 31(2) is now substituted by the phrase ‘amount which may be determined in accordance with such principles and given in such a manner as may be specified in such law? As the word ‘compensation’ found place in the former phrase, the Court has held that the principles should be relevant to ‘compensation’, that is, to the ‘just equivalent’ of the property acquired. That phrase is no more there now in Article 31(2). The notion of ‘the relevancy of principles to compensation’ is jettisoned by Section 2. Obviously, where the law fixes the amount, it cannot be questioned in any court on the ground that it is not adequate, that is, not equal to the value of the property acquired or requisitioned. The legislative choice is conclusive. It would accordingly follow that the amount determined by the principles specified in the law is equally unquestionable in courts.

2038. The newly added proviso to Article 31(2) appears to me to fortify this construction.

According to the proviso, the law providing for compulsory acquisition of any property of an educational institution which would receive the protection of Clause (1) of Article 30, should ensure that the amount fixed by or determined under it for the acquired property would not restrict or ‘abrogate’ the right guaranteed under that clause. Now, the object of a proviso is to take out something which is included in the main part of a provision. So the amount payable under the main part of the amended Article 31(2) may be such as would ‘abrogate’ the right of property of all and sundry. Accordingly it is not permissible to import in the amended Article 31(2) the notions of ‘arbitrary amount’ or ‘illusory amount’ or ‘fraudulent amount’. As some amount must be paid, the law may be virtually confiscatory, but not literally confiscatory. The position now is akin to the legal position in Section 25 of the Contract Act. Under that provision the adequacy of consideration negotiated by the contracting parties cannot be questioned in court. Most trifling benefit or detriment is sufficient. There is however this difference between Section 25 and Article 31(2). While the consideration is settled by the contracting parties, the amount payable for the acquisition or requisitioning of property is settled by the legislature. Like the former, the latter is also not to be questioned in courts.

2039. Article 31(2) is distinguishable from Articles 31A, 31B and 31C. While some amount is payable under a law protected by Article 31(2), no amount whatsoever may be paid under a law protected by Articles 31A, 31B and 31C. The former may be virtually confiscatory, the latter may be wholly confiscatory. The amount fixed by law or determined in accordance with the principles in such a law is now not justiciable even though it may seem to be an ‘arbitrary amount’ or ‘illusory amount’ or ‘fraudulent amount’ by the measure of compensation. The ouster of judicial oversight does not imply that the legislature would act whimsically. The value of the property acquired or requisitioned, the nature of the property acquired or requisitioned, the circumstances in which the property is being acquired or requisitioned and the object of acquisition or requisition will be the guiding principles for legislative determination of amount. The second principle may involve, inter alia, consideration of the income already received by the owner of the property and the social contribution to the value of the property by way of public loans at lower rates of interest, cheap state supply of energy and raw materials subsidies and various kinds of protection, tax holidays, etc. It should be remembered that the value of a property is the resultant of the owner’s industry and social contribution.

The owner ought not to receive any amount for the value contributed by society. He is entitled to payment for his own contribution. The third principle will include the element of social justice. It is thus wrong to say that on my interpretation of Article 31(2) the legislatures will act arbitrarily in determining the amount. The amended Article 31(2) does not remove the bar of Article 14. If the amount paid to the owner of property is in violation of the principles of Article 14, the law may even now be struck down. Although the amended Article 31(2), according to my construction of it, will abrogate the right of property, it is Constitutional as it falls within the scope of the 24th Amendment which I have held to be Constitutional.

Section 3 of the 75th Amendment 2040. Section 3 adds Article 31C to Part III of the Constitution. It reads :

“Notwithstanding anything contained in Article 13, no law giving effect to the policy of the State towards securing the principles specified in Clause (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 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.

2041. Provided that where such law is made by the Legislatures 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.

2042. Section 3, like Section 2, is made under Article 368 as amended by the 24th Amendment. The provisions of Article 31C fall within the scope of the amended Article 368, and its validity, too, cannot be assailed.

2043. It is pointed out by Sri Paikhiwala that Article 31C authorises State Legislatures and Parliament as a legislative body to make laws contravening the rights conferred by Articles 14, 19 and 31 and that it, in effect, delegates the power of making amendments in those articles. Pointedly, the argument is that the Parliament as the constituent power has delegated the constituent power to the Parliament as a legislative body and the State Legislatures.

2044. It is also stressed that the second part of Section 3 arms the legislatures with the absolute power of sheltering laws which violate Articles 14, 19 and 31 and have no relation to the principles specified in Article 39(b) and (c).

2045. The second part prohibits any court from inquirying whether the law protected by Article 31C has relevancy to Article 39(b) and (c) if it contains a declaration that it gives effect to the policy specified in that provision. Howsoever shocking it may seem, it is not an innovation. You will find several articles having a close resemblance to it. Article 77(2) provides that the validity of an order or instrument which is authenticated as provided therein ‘shall not be called in question on the ground that it is not an order or instrument made or executed by the President’. A similar provision is made in Article 166(2) in relation to the Governor. Article 103(1) provides that if any question arises as to whether a member of either House of Parliament has become subject to any of the qualifications mentioned in Article 102(1), the question shall be decided by the President and ‘his decision shall be final.’ A similar provision is to be found in Article 192(1) as regards the members of the State Legislature with respect rto the decision of the Governor, Article 311(2) gives a right of licaring to an employee sought to be dismissed or removed or reduced in rank. Clause (b) of the proviso to the article enacts that where the appointing authority’is satisfied that for some reason it is not reasonably practicable to hold such inquiry, the pre-requisite of hearing may be dispensed with. Clause (3) of Article 311 then enacts that if a question arises whether it is reasonably practicable to hold an inquiry, ‘the decision thereon of the authority…shall be final’. Article 329(a) enacts that notwithstanding anything in the Constitution the validity of any law relating to the delimitation of constituencies or allotment of seats to such constituencies made or purporting to be made under Article 327 or Article 328 shall not be called in question in any court. Like these articles, the second part of Section 3 excludes judicial review to a limited extent.

2046. The main part of Article 31C consists of two parts; The first part provides that no law giving effect to the policy of the State towards securing the principles specified in Article 39(b) and (c) 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 Articles 14, 19 and 31. The fast part may be split up into two : (a) giving effect to the policy of the State towards securing (b) the principles specified in Article 39(b) and (c). Under the first part the Court has to see two things before a particular law can receive protection of Article 31C. Firstly, the law must have relevancy to the principles specified in Article 39(b) and (c); secondly, the law should give effect to those principles. Article 39(b) provides that the State shall strive to secure that the ownership and control of the material resources of the community are so distributed as best to subserve the common good. Article 39(c) urges the State to strive to secure that the operation of the economic system does not result in the concentration of wealth and means of production to the common detriment, It may be observed that “subserve the common good” in Clause (b) and ‘common detriment’ in Clause (c) raise questions of fact Now, it is possible to imagine a state of affairs where a law having relevancy to the principles specified in Article 39(b) and (c) may not appear to the Court to subserve the common good or to prevent common detriment. Such a law will not prevail over Articles 14, 19 and 31. Thus the first part retains the Court’s power to decide the legal question of the law’s relevancy to the principles specified in Article 39(b) and (c) as well as the factual question of the law’s efficacy to subserve the common good or to prevent common detriment. It can test the ends as well as the means of the law.

2047. Coming to the second part, it excludes judicial review ‘on the ground that (the law) does not give effect to such policy’. So the law cannot be challenged on the ground that the means adopted by the law are not sufficient to subserve the common good and prevent common detriment. In other words, the sufficiency of the law’s efficacy alone is made non-justiciable. The Court still retains power to determine whether the law has relevancy to the distribution of the ownership and control of the material resources of the community and to the operation of the economic system and concentration of wealth and means of production. If the Court finds that the law has no such relevancy, it will declare the law void if it offends the provisions of Articles 14, 19 and 31.

2048. The fate of a provision included in a law containing the requisite declaration but having no relevancy as discussed will be no better. It will also be void if it offends against Articles 14, 19 and 31 unless it is subordinate, ancillary or consequential to any provision having such relevancy or forms an integral part of the scheme of such provision.

Delegation of Amending Power 2049. As Article 368(2) as now amended provides that ‘only’ Parliament may amend the Constitution by the prescribed procedure, it is said that Parliament may not delegate the constituent power to any extraneous authority. It is not necessary to decide this question.

Assuming that Parliament may not delegate the constituent power, the question still remains whether Article 31C authorise the State Legislatures and Parliament as a legislative body to amend any part of the Constitution.

2050. The power of the Parliament and State Legislatures to make a law with respect to the principles specified in Articles 39(b) and (c) is derived from Article 246 read with Lists I, II and III of the Seventh Schedule. Their legislative power is however not absolute. It is restricted by various fundamental rights including those in Articles 14, 19 and 31, for Article 13(2) expressly prohibits the legislatures from making a law which will be violative of those rights.

2051. What does Article 31C seek to do? One, the non-obstante clause in Article 31C removes the bar of Article 13(2) against law making with respect to the principles specified in Article 39(b) and (c). The bar, however, is not removed in respect of all the fundamental rights. It is removed in respect of the rights in Articles 14, 19 and 31 only.

Second, Articles 14, 19 and 31 remain operative as a bar against law-making with respect to all matters other than the principles specified in Articles 39(b) and (c). They are in partial eclipse as regards laws having relevancy to the principles specified in Article 39(b) and (c). This is the true nature and character of Article 31C. We should be guided by what it really does and not by how it seems, by its effect and not by its semantic garb.

Looked at in this manner, Article 31C is in the nature of a saving clause to Articles 14, 19 and 31. Instead of being placed at the end of each of these articles, it is placed at one place for the sake of drafting elegance and economy. As a saving clause, Article 31C saves certain kinds of laws from destruction at the hands of Articles 14, 19 and 31.

2052. This effect is brought about directly and immediately by the choice of the constituent power expressed in Article 31C itself and not by the laws which claim its protection. Those laws do not expressly or impliedly take away or abridge the rights in Articles 14, 19 and 31. The constituent power itself has brought about that effect through Article 31C. There is therefore no delegation of the constituent power. In Harishankar Bagla v. The State of Madhya Pradesh [1955] 1 S.C.R. 380 this Court has considered the question of delegation of legislative power. Section 3 of the Essential Supplies.

(Temporary Powers) Act, 1946 enabled the Central Government to make orders for maintaining or increasing supplies of any essential commodity or for securing for their equitable distribution and availability at fair prices and for regulating or prohibiting the production, supply and distribution thereof and trade and commerce therein Section 6 provided that any order made under Section 5 would have effect notwithstanding anything inconsistent therewith contained in any enactment other than the Act or any instrument having effect by virtue of any enactment other than the Act. It was argued before the High Court that Section 6 delegated legislative power to the Central Government because an order made under Section 3 had the effect of repealing an existing law. The High Court accepted the argument. But on appeal this Court reversed the judgment of the High Court and held that Section 6 did not delegate legislative power.

The Court said:

The effect of Section 6 certainly is not to repeal any one of these laws or abrogate them. Its object is simply to by-pass them where they are inconsistent with the provisions of the Essential Supplies (Temporary Powers) Act, 1946 or the orders made thereunder. In other words, the orders made under Section 3 would be operative in regard to the essential commodity covered by the Textile Control Order wherever there is repugnancy in this Order with the existing laws and to that extent the existing laws with regard to those commodities will not operate. By passing a certain law does hot necessarily amount to repeal or abrogation of that law. That law remains unrepealed but during the continuance of the order made under Section 3 it does not operate in that field for the time being. The ambit of its operation is just limited without there being any repeal of any one of its provisions. Conceding, however, for the sake of argument that to the extent of a repugnancy between an order made under Section 3, and the provisions of an existing law the existing law stands repealed by implication, it seems to us that the repeal is not by any Act of the Parliament itself. By enacting Section 6 Parliament itself has declared that an order made under Section 3 shall have effect notwithstanding any inconsistency in this order with any enactment other than that Act. This is not a declaration made by the delegate but the Legislature itself has declared its will that way in Section 6. The abrogation or the implied repeal is by force of the order made by the delegate under Section 3. The power of the delegate is only to make an order under Section 3. Once the delegate has made that order its power is exhausted. Section 6 then steps in wherein the Parliament has declared that as soon as such an order comes into being that will have effect notwithstanding any inconsistency therewith contained in any enactment other than this Act…. There is no delegation involved in the provisions of Section 6 at all…[1955] 1 S.C.R.

380 at page 391-392.

2053. These observations squarely apply to the provisions of Article 31C accordingly hold that there is no delegation of the constituent power.

2054. Since the laws claiming protection of Article 31C themselves do not work an amendment in Articles 14, 19 and 31, it is not necessary that they should pass through the procedure prescribed in Article 368.

The meaning of ‘distributed’ in Article 39(b) 2055. Sri Palkhiwala has submitted that the nationalisation of property is not contemplated by the word ‘distributed’ in Article 39(b). But the question will be sufficient at this stage to refer to certain aspects briefly. The State is the representative and trustee of the people. A nationalised property is vested in the State. Through the State, the entire people collectively may be said to own property. It may be said that in this way the ownership of the nationalised property is distributed amongst the people represented by the State. (See Essays in Fabian Socialism, Constable & Co. Ltd. 1949 Edn; p. 40;

C.E.M. load, Introduction to Modern Political Theory, Oxford University Press, 1959, pp.

49-50; W.A. Robson, Nationalised Industry and Public Ownership, George Allen and Lenwin Ltd. 1960, pages 461, 462, 476, 477 and 485).

2056. The draft Article 31(ii) became Article 39(b). Prof. K.T. Shah moved an amendment to the draft article to this effect: “that the ownership, control and management of the natural resources of the country in the shape of mines and minerals, wealth, forests, rivers and flowing waters as well as in the shape of the seas along the coast of the country shall be vested in and belong to the country collectively and shall be exploited and developed on behalf of the community by the State as represented by the Central or Provincial Governments or local governing authority or statutory corporation as may be provided for in each case by Act of Parliament C.A.D. Vol. VII, p. 506.

2057. Replying to Prof. K.T. Shah, Dr. B.R. Ambedkar said : “with regard to his other amendment, viz, substitution of his own clause for Sub-clause (ii) of Article 31, all I want to say is this that I would have been quite prepared to consider the amendment of Prof.

Shah if he had shown that what he intended to do by substitution of his own clause was not possible to be done under the language as it stands. So far as I am able to see, I think the language that has been used in the Draft is much more extensive language which includes the propositions which have been moved by Prof. Shah, and I therefore do not see the necessity C.A.D. Vol. VII, p. 518.

2058. In Dr. Ambedkar’s view the nationalisation of property is included in the word ‘distributed’ in Article 39(b).

29th Amendment 2059. This amendment has added to the Ninth Schedule the Kerala Land Reforms (Amendment) Act, 1969 (Kerala Act 35 of 1969) and the Kerala Land Reforms (Amendment) Act, 1971 (Kerala Act 25 of 1971). The effect of the inclusion of these Acts in the Ninth Schedule is that the Acts get me protection of Article 31B. The argument of Sri Palkhiwala is twofold. First Article 31B is inextricably dovetailed with Article 31A and that accordingly any law which is included in the Ninth Schedule should be connected with agrarian reforms which is the object of Article 31A. If a law included in the Ninth Schedule is not related to agrarian reforms, it cannot by-pass Articles 14, 19 and 31. It is not possible to accept this argument In State of Bihar v. Maharajadhiraja Sir Kameshwar Singh [1952] S.C.R. 889, Patanjali Sastri C.J. rejected this limited meaning of Article 31B. The learned Chief Justice observed:

There is nothing in Article 31B to indicate that the specific mention of certain statutes was only intended to illustrate the application of the general words of Article 31A. The opening words of Article 31B are not 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 in no way calculated to restrict the application of the latter article or of the enactments referred to therein to acquisition of estates Ibid, at pages 914- 915.

2060. In Wisheshwar Rao v. State of Madhya Pradesh [1952] 1 S.C.R. 1020 at page 1037, Mahajan J. said:

In my opinion, the observation far from supporting the contention, raised negatives it. 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.

2061. (See also N.B. Jeajeabhoy v. Assistant Collector, Thana [1964] INSC 213; [1965] 1 S.C.R. 636 at page 648 per Subba Rao J.) 2062. The next argument is that the two Kerala Acts which abrogate the fundamental rights of property are void because the amending power in Article 368 cannot be used for that purpose. I have already rejected this argument in connection with the 24th and 25th Amendments. So nothing more need be said about it. I hold that the 29th Amendment is valid.

2063. Let me summarise the discussion:

(1) The majority decision in Golaknath is not correct and should be overruled.

(2) The word ‘amendment’ in Article 368 is broad enough to authorise the varying, repealing or abrogating of each and every provision in the Constitution including Part III.

(3) There are no inherent and implied limitations on the amending power in Article 368.

(4) The 24th, 25th and 29th Amendments are valid in their entirety.

(5) According to Article 31(2) the amount fixed by law or determined in accordance with the principles prescribed by such law for the acquired or requisitioned property cannot be questioned in any court.

(6) The last part of Article 31C does not oust the jurisdiction of courts to examine whether the impugned law has relevancy to the distribution of the ownership and control of the material resources of the community or to the operation of the economic system and the concentration of wealth and means of production.

2064. The Constitution Bench will now decide the case according to law.

Y.V. Chandrachud, J.

2065. I wanted to avoid writing a separate judgment of my own but such a choice seems no longer open. We sat in full strength of 13 to hear the case and I hoped that after a free and frank exchange of thoughts, I will be able to share the views of someone or the other of my esteemed Brothers. But, we were overtaken by adventitious circumstances.

Counsel all round consumed so much time to explain their respective points of view that very little time was left for us to elucidate ours. And the time factor threatened at one stage to assume proportion as grave as the issues arising in the case. The Court, very soon will be poorer by the retirement of the learned Chief Justice and that has set a date-line for the judgment. There has not been enough time, after the conclusion of the arguments, for an exchange of draft judgment amongst us all and I have had the benefit of knowing fully the views of only four of us. I deeply regret my inability to share the views of the learned Chief Justice and of Hegde J., on some of the crucial points involved in the case.

The views of Ray J. and Palekar J. are fairly near my own but I would prefer to state my reasons a little differently. It is tall to think that after so much has been said by so many of us, I could still present a novel point of view but that is not the aim of this judgment.

The importance of the matter under consideration would justify a personal reflection and it is so much more satisfactory in a matter ridden, albiet wrongly, with political over- tones, to state one’s opinion firmly and frankly so that one can stand one’s ground without fear or favour.

2066. I do not propose to pin-point every now and then what the various counsel have urged before us, for I apprehend that a faithful reproduction of all that has been said will add to the length, not necessarily to the weight, of this judgment. However, lest I may be misunderstood, particularly after the earlier reference to the counsel consuming so much time, let me in fairness say that I acknowledge with gratitude the immense contribution of the learned Counsel to the solution of the intricate problems which arise for decision.

Such brilliance, industry, scholarship and precision as characterised the arguments of Mr.

Palkhivala, the learned Attorney-General, the learned Advocate-General of Maharashtra and the learned Solicitor-General are rarely to be surpassed. What my judgment contains is truly theirs-if this the least be good, the praise be theirs, not mine.

2067. Lester Barnhardt Orfield, an extreme exponent of the sovereignty of amending power under Article V of the American Constitution, has described that power as ‘sui generis’. I will borrow that expression to say that the whole matter before us is truly sui generis. The largest Bench sat for the longest time to decide issues described as being of grave moment not merely to the future of this country but to the future of democracy itself. For a proper understanding of the meaning and scope of the amending provisions contained in Article 368 of our Constitution. We were invited to consider parallel clauses in the Constitutions of 71 countries of the world spread far and wide, with conflicting social and political philosophies. We travelled thus to new lands like Bolivia, Costa Rica, El Salvador, Gautemala, Honduros, Liberia, Nicarague, Paraguay, Uruguay and Venezuela. Constitutional sojourns to Australia, Canada, Ceylon, France, Germany, Ireland, Switzerland, U.S.S.R. and U.S.A. were of course of frequent occurrence. These excursions were interesting but not proportioned to their utility, for I believe there is no international yardstick with which” to measure the width of an amending power.

2068. We were then taken through the writings of scores of scholars, some of whom have expressed their beliefs with a domatism not open to a Judge. There was a faith controversy regarding the credentials of some of them, but I will mention the more-often quoted amongst them, in order to show what a wide and clashing variety of views was fed to us. They are : Granville Austin, James Bryce, Charles Bumdick, John W. Burgess, A.P. Canaway, Dr. D. Conrad, Thomas M. Cooley, Edward S. Crowin, S.A. DeSmith, de Tocqueville, A.V. Dicey, Herman Finer, W. Friedmann, Carl J. Friedrich, James, W.

Garner, Sir Ivor Jennings, Arthur Berriedale Keith, Leo Kohn, Harold J. Laski, Bora Laskin, A.H.F. Lefroy, William S. Livingston, William Marbury, C.M. McIlwain, Charles E. Merriam, William B. Munro, Lester B. Orfield, Henry Rottschaeffer, George Skinner, Joseph Story, C.F. Strong, Andre Tunc, Samuel P. Weaver, K.C. Wheare, E.

Willis, Westel W. Willoughby, Woodrow Willson, W. Anstay Wynes and Arnold Zurcher.

2069. At one end is the view propounded by writers like James Garner (‘Political Science and Government’) and William B. Munro (‘The Government of the United States’) that an unamendable Constitution is the worst tyranny of time or rather the very tyranny of time and that such a Constitution constitutes government by the graveyard. At the other end is the view expressed with equal faith and vigour by writers like Dr. Conrad (‘Limitation of Amendment Procedures and the Constituent Power’), William Marbury (‘The Limitations upon the Amending Power’-Harvard Law Review, Vol. XXXIII) and George Skinner ‘Intrinsic Limitations on the Power of Constitutional Amendment’-Michigan Law Review, Vol. 18 that any amending body organised within the statutory scheme, however verbally unlimited its power, cannot by its very structure change the fundamental pillers supporting its Constitutional authority; that the constituent assembly cannot create a second perpetual pouvoir constitueant above the nation; that it may be safely premised that the power to amend the Constitution cannot include the power to destroy it; that the greatest delusion of the modern political world is the delusion of popular sovereignty-a fiction under which all the dictators have sprung up and thrived; and that men should be afraid that any Judge complaint enough to read into a Constitution a beneficial power patently not there, might at another time be complient enough to read within it any or all of the guarantees of their liberty for, a Judge willing to take orders from a benevolent despot might be equally subservient to a malevolent one. Someone has said in a lighter vein that Law comes from the west and Light from the east, but brushing aside such considerations, the conflicting views of these writers, distinguished though they be, cannot conclude the controversy before us, which must be decided on the terms of our Constitution and the genius of our Nation. The learning of these scholars has lighted my path and their views must be given due weight and consideration. But the danger of relying implicitly on everyone of the standpoints of everyone of these authors is apparent from what Andre Tune said in answer to a question put to him at the end of his lecture on ‘Government under Law : A Civilian View’. He confessed that the picture drawn by him at one time, of the French Law was too rosy and, on a misconception, it was too gloomy of American law and American life; and that, Frenchmen had by and large rectified to some extent their first impression that it could be extremely dangerous to have a ‘Government of Judges’, according to the famous slogan. That reminds me of what Sir Ivor Jennings has said in his book ‘Some Characteristics of the Indian Constitution’ that “It is a useful principle that one should never trust politicians; but it is equally true that in the context of the future one should never trust Constitutional lawyers. On the whole the politician of tomorrow is more likely to be right than the Constitutional lawyer of today.”

I will therefore make a spare and studied use of the views of some of these men of earning. But I cannot restrain the reflection, in the strain of Dr. Conrad, that after going through all this erudition, one may well conclude this tour d’horizon with the opening quotation of Walter Bagehot’s famous treatise: ‘On all great subjects, says Mr. Mill, much remains to be said.

2070. Theories of political science, sociology, economics and philosophy were copiously quoted before us. Some of these contain a valiant defence of the right of property without which, it is said, all other fundamental freedoms are as writ in water. Others propound the view that of all fundamental rights, the right to property is the weakest, from which the conclusion is said to follow that it was an error to include it in the chapter on Fundamental Rights. Our dicision of this vexed question must depend upon the postulate of our Constitution which aims at bringing about a synthesis between ‘Fundamental Rights’ and the ‘Directive Principles of State Policy’, by giving to the former a pride of place and to the latter a place of permanence. Together, not individually, they form the core of the Constitution. Together, not individually, they constitute its true conscience.

2071. The charter of United Nations, the Universal Declaration of Human Rights and the European Convention of 1950 were cited to show the significant change in the world thinking towards the rights of individuals which, by these documents have been accorded recognition on an international plane. Will India, the largest democracy in the world, do mere lip service to these precious freedoms and shall it not accord to them their rightful place in the lives of men and in the life of the nation? Such is the dialectical query. Apart from whether the so-called intellectuals-the ‘classe non classe’-believe in the communistic millennium of Marx or the individualistic Utopia of Bastiat, the answer to this question must depend upon the stark urgency for striking a balance between the rights of individuals and the general good of the society.

2072. We were also invited to have a glimpse of the social and political philosophies of Grotius (1583-1645), Hobbes (1588-1679), Locke (1632-1704), Wolff (1679-1784), Rousseau (1712-1778), Blackstone (1723-1780), Kant (1724-1804), Bentham (1748- 1832) and Hegel (1770-1831). These acknowledged giants of the past-their opinions have a high persuasive value-have expounded with care and deliberation the controversial theory of ‘Natural Law’ and ‘Natural Rights’. Each has his own individualistic approach to the question but arising out of their writings is a far-reaching argument that there are rights which inhere in every man as a rational and moral being; that these rights are inalienable and inviolable; and that the core of such of these rights as are guaranteed by the Constitution cannot be damaged or destroyed. The answer to this contention would consist in the inquiry, firstly as regards the validity of the core and hence the consequences of natural law thinking; and secondly, on whether our organic document supports the inference that natural rights were either recognised by it-explicitly or implicitly-and if so, whether any of such rights were permitted to be reserved by the people without any qualification, so that an individual would be entitled to protect and nurse a minimal core of such rights, uninfluenced by social considerations.

2073. The debates of the Constituent Assembly and of the first Provisional Parliament on which none declined to rely furnished a lively experience. The speeches of Pandit Jawaharlal Nehru, Sardar Vallabhbhai Patel, Dr. Rajendra Prasad, Dr. S. Radhakrishnan, Dr. Ambedkar, Govind Ballabh Pant, Dr. K.M. Munsi, Alladi Krishnaswamy Ayyar, Dr.

Shyama Prasad Mookherjee, Acharya Kripalani, Rev. Jerome D’Souza, K. Santhanam, Dr. Punjabrao Deshmukh, H.V. Kamath and others were read out to us in support of the rival stands mainly touching the question of ‘inalienability’ of fundamental rights and what in those days was freely referred to as the power of ‘Eminent Domain’. Some of the speakers were acknowledged national leaders of high stature, some were lawyers of eminence and some had attained distinction in the undefined field of politics and social reform. Their speeches are inspiring and reflect the temper of the times but we cannot pass on the amplitude of the power of amendment of the Constitution by considering what amendments were moved to the corresponding Article 13 of the Constitution and why those proposals for amendment were dropped or not pursued. Similarly, the fact that the First Amendment to the Constitution was passed in 1951 by members of the Constituent Assembly sitting as the Provisional Parliament cannot relieve us of the task of judicially interpreting the validity of the contention that the Fundamental Rights cannot be abridged or taken away or that the core of the essential features of the Constitution cannot be damaged or destroyed. Jawaharlal Nehru undoubtedly said in the Constituent Assembly that “Hundreds of millions of our own people look to us and hundreds of millions of others also look to us; 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 Constitution. There should be a certain flexibility. If you make anything rigid and permanent you stop a Nation’s growth, the growth of a living vital organic people,”; and again in the Provisional Parliament that “A Constitution which is unchanging and static, it dos not matter how good it is, how perfect it is, is a Constitution that has past its use. It is in its old age already and gradually approaching its death. A Constitution to be living must be growing; must be adaptable; must be flexible; must be changeable. And if there is one thing which the history of political developments has pointed out, I say with great force, it is this that the great strength of the British Nation and the British people has laid in their flexible Constitution. They have known how to adapt themselves to changes, to the biggest changes, Constitutionally. Sometimes they went through the process of fire and revolution”. But he also said when the Constitution (First Amendment) Bill, 1951, was on the anvil that “-so far as this House is concerned, it can proceed in the manner provided by the Constitution to amend it, if this House so choose.

2074. “Now there is no doubt that this House has that authority. There is no doubt about that, and here, I am talking not of the legal or Constitutional authority, but of moral authority, because it is, roughly speaking, this House that made the Constitution.” Our task is not to pass on the “moral authority” of the Parliament to amend the Constition but to determine whether it has “legal or Constitutional authority” to do so. Applying the same test, the speech which the other of the two chief architects of the Constitution-Dr.

Ambedkar-made in the Constituent Assembly can raise no estoppel and decide no Constitutional issue. He said: “Now, what is it we do? We divide the articles of the Constitution under three categories. The first category is the one which consists of articles which can be amended by Parliament by a bare majority. The second set of articles are articles which require two-thirds majority. If the future Parliament wishes to amend any particular article which is not mentioned in part III or Article 304, (corresponding to present Article 368), all that is necessary for them is to have two-thirds majority. Then they can amend it.” Perhaps, there is a slip in the reference to Part III”- even Homer nods. Perhaps, there is an error on the part of the typist-they often nod. But even granting that the eminent cannot ever err, what was said by Dr. Ambedkar and others in the Constituent Assembly and the Parliament was at best their opinion of law.

The true legal position is for us and none else to decide, though within the limits set by the Constitution.

2075. During the course of arguments, a catena of decisions of several courts were cited before us. I thought when the arguments began-yes, I remember it because the commencement of the case is not that lost in antiquity-that the judgments of this Court will form the focus of discussion, foreign decisions making a brief appearance. But in retrospect, I think I was wrong. Learning, like language, is no one’s monopoly and counsel were entitled to invite us to consider how heroically courts all over the world had waged battles in defence of fundamental freedoms and on the other hand how, on occasions, the letter of law was permitted to prevail in disregard of evil consequences.

Between such extremes, the choice is always difficult and delicate but it has to be made for, in a matter involving the cherished freedoms of the subject and the powers of the Parliament, I do not want to project my freedom to say, as Justice McReynolds of the American Supreme Court did in the National Prohibition Cases involving the validity of the Eighteenth Amendment to the American Constitution, that I am unable to come to any conclusion. But I am quite clear that I have no use for the advice of Walter Berns (‘Freedom, Virtue & The First Amendment’ 1957), that since there can be no freedom to end freedom even if the people desire to enslave themselvs, “the Suprme Court must act undemocratically in order to preserve democracy”. Nor indeed shall I walk down the garden-path laid by Dale. Gibson (‘Constitution Amendment and the implied Bill of Rights’, McGill Law Journal, Volume 12), that “where an issue as vital as the protection of civil liberties is concerned, and where the legislators have demonstrated their inability to provide adequate safeguards, the courts are entirely justified (perhaps even morally obliged) in employing all the ingenuity and imagination at their command to preserve individual rights”. Such exhortations have a spartan air which lends colourfulness to arid texts but they overlook the fundamental premise that judges, unlike Manu, are not law- givers. Besides, it cannot ever be too strongly stressed that the power of substantive ‘due process of law’ available under the Fourteenth Amendment to the American Constitution was considered and rejected by our Constituent Assembly which contained a galaxy of legal talent. In America, under the due process clause, there was a time when the Supreme Court used to invalidate laws because they were thought to be unwise or incompatible with some particular economic or social philosophy. Thus, in Lochner v.

New York, 49 L. ed. 937 the law restricting employment in baker to 10 hours per day and 60 hours per week was regarded as an unConstitutional interference with the right of adult labourers, tut juris, to contract with respect to their means of livelihood. It was decades later that the Court recognised the value and the validity of the dissenting opinion recorded by Justice Holmes:

This case is decided upon an economic theory which a large part of the country does not entertain. If it were a question whether 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. It is settled by various decisions of this Court that State Constitutions and State laws may regulate life in many ways which we as legislators might think as injudicious or if you like as tyranical as this, and which equally with this interfere with the liberty to contract.* * * The Fourteenth Amendment does not enact Mr.

Herbert Spencer’s Social Statics. * * * But a Constitution…is made for people of fundamentally differing views and the accident of our finding certain opinions natural and familiar or novel and even shocking ought not to conclude our judgment upon the question whether statutes embodying them conflict with the Constitution.

In course of time such shining dissents became the majority view and the due process clause came to be construed as permitting enactment of laws limiting the hours of labour in mines, prohibiting employment of children in hazardous occupations, regulating payment of wages, preserving minimum wages for women and children, the ‘Blue Sky laws’ and the ‘Man’s Best Friend (Dog) laws’. Even laws like the Kentuky Statutes requiring Banks to turn over to the protective custody of that State deposits that were inactive for 10 or 25 years were upheld, as not involving taking over the property of the banks Anderson National Bank v. Luckett [1944] USSC 35; 321 U.S. 233. With this American history before them, the Drafting Committee of the Constituent Assembly chose in Article 21 of our Constitution a phrase of certain import, ‘procedure established by law’ in place of the vague and uncertain expression ‘due process of law’.

2076. We were taken through an array of cases decided by the Privy Council, the Supreme Court of the United States of America, the Supreme Courts of American States, the High Court of Australia, the Supreme Court of Ireland, the High Court of Ireland, the Supreme Court of South Africa and of course our own Supreme Court, the Federal Court and the High Courts. Why, consistently with American practice, we were even referred to briefs which counsel had filed before the Supreme Court in the Rhode Island case. We also spent a little time on the judgment of the District Court of New Jersey in the Sprague case, a judgment which though reversed in appeal by the Supreme Court, was thought to have a certain relevance.

2077. We began, speaking chronologically, with the decision rendered in 1803 by the American Supreme Court in William Marbury v. James Madison 2 L. ed. 69 in which the opinion of the Court was delivered by Chief Justice John Marshall in words whose significance custom has still not staled:

Certainly all those who have framed written Constitutions contemplate them as forming the fundamental and paramount law of the nation, and, consequently, the theory of every such government must be, that an act of the legislature, repugnant to the Constitution is void.

2078. We ended with some of the very recent decisions of this Court like the Bank Nationalisation Case [1970] INSC 18; [1970] 3 S.C.R. 530 in which a Bench of 11 Judges held by a majority of 10 to 1 that the Banking Companies (Acquisition and Transfer of Undertakings) Act, 1969 violated the guarantee of compensation under Article 31(2) in that, it provided for giving certain amounts determined according to principles which were not relevant in the determination of compensation of the undertaking of the named Banks and by the method prescribed, the amounts so declared could not be regarded as compensation. In between come several decisions, prominent amongst which are: (1) The Privy Council decision in Burah’s case (1878, Attorney-General of Ontario case (1911), Vacher & Son’s case (1912), McCawley’s case (1919), In Re the Initiative and Referendum Act case (1919), Trethowan’s case (1932), Moore’s case (1935), Ibralabee’s case (1964), Ranasinghe’s case (1965), Don John Liyanage’s case (1965) and Kariapper’s case (1967); (2) The decisions of the Federal Court in the C.P. & Berar Reference (1938), Subramaniam Chettiyar’s case (1940) and Suraj Narain Anand’s case (1941); (3) The decisions of the American Supreme Court in Lochner’s case (1904), Hawke v. Smith (1920), the Rhode Island Case (1920), Dillon v. Gloss (1920), Lesser v. Garnett (1922), Ex parte Grossman (1925), Sprague’s case (1931); Schneiderman’s case (1943) and Skrupa’s case (1963); (4) The decisions of the American State Supreme Courts in Livermore v. Waite (1894), Edwards v. Lesseur (1896), Ex parte Dillon (1920) and Geigenspan v. Boding (1920); (5) The decision of the Irish Supreme Court in Ryan’s case (1935); (6) The decisions of the Appellate Division of the Supreme Court of South Africa in Harris’ case (1952) and in the ‘High Court of Parliament Case’ (1952); (7) The desicions of the Canadian Supreme Court in the Alberta Press Case (1938), the case of Attorney-General of Nova Scotia (1950), Samur’s case (1953) and Switzman’s case (1957); and (8) The decisions of the Hight Court of Australia in Engineer’s case (1920), West v. Commonwealth of Australia in (1937), South Australia v. Commonwealth (1942) and State of Victoria v. Commonwealth (1970).

2079. Most of the decisions of the Privy Council noticed above have an important bearing on the issues arising before us and some of these decisions present a near parallel to our Constitutional provisions which require interpretation. They will help a clearer perception of the distinction between ‘controlled’ and ‘uncontrolled’ Constitutions, which in turn has an important bearing on the patent distinction between laws made in the exercise of constituent power and those made in the exercise of ordinary legislative power conferred by the Constitution. In this distinction would seem to lie an answer to some of the basic contentions of the petitioner in regard to the interpretation of Articles 13 and 368 of the Constitution.

2080. The decisions of American courts may bear examination, but in their application to the problems arising under our Constitution it would be necessary to keep in constant sight some of the crucial differences between the circumstances attendant on the birth of the two Constitutions, the purposed vagueness of theirs and the finical content of ours and the significant disparity in the structure of their Article 5 and our Article 368. In America, an important principle of Constitutional liberty is that the sovereignty resides in the people and as they could not in their collective character exercise governmental powers, a written document was by common consensus agreed upon in each of the States.

The American Constitution, thus, is covenant of the sovereign people with the individuals who compose the nation. Then, the Supreme Court of America, as said by Sir Henry Main, is not only a most interesting but a unique creation of the fathers of the Constitution. “The success of the experiment has blinded men to its novelty. There is no exact precedent for it, either in the ancient or modern world.” In fact, it is said that the history of the United States has been written not meerly in the halls of Congress or on the fields of battle but to a great extent in the Chambers of the Supreme Court. The peculiar role played by that court in the development of the nation is rooted, apart from the implications arising out of the due process clause, in the use of a few skeleton phrases in the Constitution. We have drawn our Constitution differently. It is, however, relevant that American courts were time and again asked to pass on the existence of inherent limitations on the amending power and their attitude to that question requires examination of the claim of writers like Edward Corwin that such arguments were brushed aside by the court as unworthy of serious attention. Another aspect of American decisions which has relevance in this matter is the explication of the concept of amendment in cases like Livermore’s (California, 1894), McCleary’s (Indiana, 1917) and Ex Parte Dillon’s (California, 1920).

2081. Decisions of the Australian High Court like the Engineers’ case, the State of Victoria case and the Melbourne Corporation case bear on the central theme of the petitioner’s argument that the Parliament which is a creature of the Constitution cannot in exercise of its powers act in derogation of the implications to be derived, say, from the federal nature of the Constitution. That is, some implications must arise from the structure of the Constitution itself.

2082. The two decisions of the South African Supreme Court (Harris’ case and the High Court of Parliament case) may serve to throw some light on the concept that the sovereignty of a legislature is not incompatible with its obligation to comply with the requirements of form and manner prescribed by the instrument which regulates its power to make law, for a legislature has no power to ignore the conditions of law-making.

2083. The Canadian cases really bear on the legislative competence of provincial legislatures in regard to individual freedoms or in regard to criminal matters. In Canada, as many as six different views have been propounded on civil liberties and it would appear that though different judges have voiced their opinion in favour of one or the other of such views, none has pronounced finally in favour of any particular view.

2084. A special word must be said of Ryan’s case which was decided by the Irish Supreme Court. It was read out in extenso to us and I am free to confess that it evoked in me a quick response. In that case, the three Judges of the Irish High Court and two of the 3 Judges of their Supreme Court rejected contentions similar to those of the petitioner herein but Chief Justice Kennedy, though he did not deal directly with the meaning of the word ‘amendment’, read limitations on the meaning of that word as a result of various implications derived from the Irish Constitution. Petitioner relies on the lone voice of the Chief Justice. That it is lone is immaterial for our purpose for, after all, the decision has but a pesuasivc value. Respondents not only distinguished the judgment of the learned Chief Justice but contended that the ratio of the decision is clearly in their favour. Ryan’s case became for both sides an ‘Irish Golak Nath’.

2085. I have made this compact summary of the decisions to indicate, in the first place, that these perhaps are the only decisions which require close consideration out of the vast multitude of those that were canvassed before us and secondly, to show the broad trend of judicial thinking on the points pressed upon us. It is impossible, in what I consider to be the true scope of this judgment and unnecessary for what I feel is its real purpose, to deal at length with everyone of these decisions. That task, I think, may well be left to receive a scholarly treatment at the hands of a Constitutional writer. As Judges, we are confronted and therefore concerned with practical problems and it is well to remind ourselves that our principal task is to construe the Constitution and not to construe judgments. Those judgments are without doubt, like lamp-posts on the road to freedom and judges who have shed on that road the light of their learning and the impress of their indepedence, have carved for themselves a niche in the history of civil liberties. See what Frankfurter J.

said in Joint Anti-Fascist Ref. Comm. v. McGraths [1951] USSC 49; 341, U.S. 123, 171 “Man being what he is, cannot safely be trusted with complete immunity from outward responsibility in depriving others of their rights”; or, what Jackson J. said in American Comm. Assoc. v.

Doudds [1950] USSC 56; 339, U.S. 382, 439 “Our protection against all kinds of fanatics and extremistes, none of whom can be misted with unlimited power over others, lies not in their forbearance but in the limitations of our Constitution”; or, what Patterson J. said in his famous charge to the Jury in Van Home’s lessee v. Dorrance 1 L. ed. 391: “The Constitution…is stable and permanent, not to be worked upon by the temper of the times, nor to rise and fall with the tide of events…. One encroachment leads to another;

precedent gives birth to precedent; what has been done may be done again; thus radical principles are generally broken in upon, and the Constitution eventually destroyed.”

These are sonorous words and they will resound through the corridor of Times. But these landmarks in the development of law cannot be permitted to be transformed into weapons for defeating the hopes and aspirations of our teeming millions,-half-clad, half-starved, half-educated. These hopes and aspirations representing the will of the people can only become articulate through the voice of their elected representatives. If they fail the people, the nation must face death and destruction. Then, neither Court nor Constitution will save the country. In those moments of peril and disaster, rights and wrongs are decided not before the blind eyes of justice, not under the watchful eyes of the Speaker with a Marshal standing by but, alas, on streets and in by-lanes, Let us, therefore, give to the Parliament the freedom, within the framework of the Constitution, to ensure that the blessings of liberty will be shared by all. It is necessary, towards that end, that the Constitution should not be construed in a “narrow and pedantic sense Per Lord Wright in James v. Commonwealth of Australia, (1936) A.C. 578, 614” Rules of interpretation which govern other statutes also govern a Constitutional enactment but those “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 Per Higgins J. in Att. Genl. for New South Wales v. Brewery Employees Union, (1908) 6 Commonwealth L.R. 469, 611-12.(2)” To put it in the language of Sir Maurice Gwyer C.J., “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 the language of the enactment in the interests of any legal or Constitutional theory, or even for the purpose of supplying omissions or of correcting supposed errOrs. A Federal Court will not strengthen, but only derogate from, its position, if it seeks to do anything but declare the law; but it may rightly reflect that a Constitution of government is a living and organic thing, which of all instruments has the greatest claim to be construed ut res magis valeat quam pereat In re.

The Central Provinces and Berar Act No. XIV of 1939. (1938) F.C.R. p. 18, 37.” In the exercise of our powers of judicial review, let us therefore not act as a check of the past on the present and the future “…it is the present that represents the will of the people and it is that will that must ulimately be given effect in a democracy Schwartz : A Basic History of the U.S. Supreme Court” The core of social commitment is the quint-essence of our Constitution and we must approach it in the spirit in which it was conceived. We erected the edifice of our Constitution in the hope that it will last, unlike the French who, on the establishment of the Third Republic in 1875, framed a Constitution in the hope that it will fail, since the majority of the Constitution-makers were not Republicans but Royalists. In the peculiar conditions in which the French Republic found itself, there was only one throne but three claimants for a seat on it. The social philosophy of our Constitution defines expressly the conditions under which liberty has to be enjoyed and justice is to be administered in our country; and shall I say of our country what Justice Fitzgibbon said of his in Ryan’s case : “this other Eden demi-Paradise, this precious stone, set in the silver sea, this blessed plot, this earth, this, realm, this” India. If it is not that to-day, let us strive to make it so by using law as a flexible instrument of social order. Law is not, in the phrase of Justice Holmes, a “brooding omnipotence in the sky.

2086. All through the hearing of the case, there was hardly a point on which Dictionaries and Law Lexicons were not cited. Sec this long list: The Shorter Oxford English Dictionary on historical Principles, 3rd Ed.; Shorter Oxford English Dictionary;

Webster’s Third New International Dictionary of the English Language; Webster’s English Dictionary, 1952; The Random House Dictionary of the English Language; The Reader’s Digest Great Encyclopaedic Dictionary; The Dictionary of English Law, Earl Jowitt; The Cyclopaedic Law Dictionary by Frank D. Moore; Prem’s Judicial Dictionary- Words & Phrases judicially defined in India England, U.S.A. & Australia; Bouvier’s Law Dictionary; Universal English Dictionary; Chamber’s 20th Century Dictionary; Imperial Dictionary by Ogilvie; Standard Dictionary by Funk & Wagnalls; Stroud’s Judicial Dictionary; Judicial and Statutory Definitions of Words and Phrases, Second Series;

Words and Phrases legally defined, John B. Saunders; Wharton’s Law Lexicon;

Venkataramaiya’s Law Lexicon; Law Lexicon of British India-compiled and edited by P.

Ramanatha Aiyer; Words and Phrases, Permanent Edition; The Construction of Statutes by Earl T. Crawford; Corpus Juris Secundum and American Jurisprudence. These citations were made in order to explain the meaning, mainly, of the words ‘Amendment’, ‘Constituent’, ‘Constitution’, ‘Constitutional law’, ‘Distribute’ and ‘law’. This is of course in addition to several decisions which have dealt with these words and phrases in some context or the other. It is useful to have a dictionary by one’s side and experience has it that a timely reference to a dictionary helps avert many an embarrassing situation by correcting one’s inveterate misconception of the meaning of some words. But I do not think that mere dictionaries will help one understand the true meaning and scope of words like ‘amendment’ in Article 368 or ‘law’ in Article 13(2). These are not words occurring in a school text-book so that one can find their meaning with a dictionary on one’s right and a book of grammar on one’s left. These are words occurring in a Constitution and one must look at them not in a school-masterly fashion, not with the cold eye of a lexicographer, but with the realization that they occur in “a single complex instrument, in which one part may throw light on another”, so that “the construction must hold a balance between all its parts Per Lord Wright in James v. Commonwealth of Australia (1936) A.C. 578, 613. Such words, having so significant an impact on a power as important as the power to amend the Constitution cannot be read in vacuo. The implication of the social philosophy of the instrument in which they occur and the general scheme of that instrument under which the very object of the conferment of freedoms entrenched in Part III is the attainment of ideals set out in Part IV, must play an important role in the construction of such words. “A word, is not a crystal, transparent and unchanged; it is the skin of living thought and may vary greatly in colour and content according to circumstances and the time in which it is used Per Holmes J. in Towne v.

Eisner 62 L. ed. 372, 376”.

2087. ‘Sui generis’, I called this case. I hope I have not exaggerated its uniqueness. It is manifest that the case has a peculiar delicacy. And now through the cobwebs of 71 Constitutions, dozens of dictionaries, scores of texts and a multitude of cases, I must find a specific answer to the questions raised before us and state it as briefly as I may.

2088. The main argument was made in Writ Petition No. 135 of 1970. The Kerala Land Reforms Amendment Act (35 of 1969) came into force in the State of Kerala on January 1, 1970. The Kerala Land Reforms Amendment Act (25 of 1971) came into force on August 7, 1971. The High Court of Kerala struck down some of the provisions of the Act of 1969 and that judgment was upheld by this Court on April 26, 1972 in Kunjukutty Sahib, etc. v. The State of Kerala and Anr. [1972] INSC 121; [1972] 2 S.C.C. 364.

2089. Writ Petition No. 135 of 1970 was filed in this Court under Article 32 of the Constitution on March 21, 1970. During the pendency of this Petition, the Constitution, 24th 25th, 26th and 29th Amendment Acts were passed by the Amending body, that is, the Parliament. The 24th Amendment Act received the President’s assent on November 5, 1971. In a House of 518 members of the Lok Sabha, 384 members voted in favour of the 24th Amendment and 23 against it. In a House of 243 members of the Rajya Sabha 177 members voted in favour and 8 against it. As regards 25th Amendment, 355 voted in favour and 20 against it in the Lok Sabha; while in the Rajya Sabha, 166 voted in favour and 20 against it. The voting on the 29th Amendment in the Lok Sabha was 286 in favour and 4 against. In the Rajya Sabha, 170 voted in favour and none against it.

2090. In August, 1972, the Petitioner was permitted by an amendment to challenge the validity of the 24th, 25th and 29th Amendments to the Constitution. These Amendments, after receiving the President’s assent, came into force on November 5, 1971, April, 20, 1972 and June 9, 1972.

2091. The Constitution (Twenty-Fourth Amendment) Act, 1971 has by Section 2 thereof added a new Clause (4) to Article 13 of the Constitution providing that nothing in that article “shall apply to any amendment of this Constitution made under Article 368”.

Section 3(a) of the Amending Act substitutes a new marginal heading to Article 368 in place of the old. The marginal heading of the unamended Article 368 was : “Procedure for amendment of the Constitution.” The new heading is: “Power of Parliament to amend the Constitution and procedure therefor.” Section 3(b) of the Amending Act inserts a new Sub-section (1) in Article 368 : “Notwithstanding anything in this Constitution, Parliament may in exercise of its constituent power amend by way of addition, variation or repeal any provision of this Constitution in accordance with the procedure laid down in this article.” Section 3(c) makes it obligatory for the President to give his assent to the Amendment Bill. Section 3(d) adds a new Clause (3) to Article 368 stating that “Nothing in Article 13 shall apply to any amendment 2092. The Constitution (Twenty-Fifth Amendment) Act, 1971 brings about significant changes in Article 31 and introduces a new Article 31C. By Section 2(a) of the Amendment Act, 1971, Clause (2) of Article 31 is substituted by a new clause which permits compulsory acquisition or requisitioning of the property for a public purpose by authority of 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.” No such law can be called in question on the ground that the amount is not adequate or that the whole or any part of it is to be given otherwise than in cash. The newly added proviso to Article 31(2) makes an exception in regard to properties of educational institutions of minorities.

If such properties are compulsorily acquired, the State has to ensure that the amount fixed for acquisition is such as would not restrict or abrogate the right guaranteed under Article 30(1) of the Constitution. Section 2(b) of the Amendment Act, 1971 adds a new Clause 2(b) to Article 31 which provides that nothing in Article 19(1)(f) shall affect any such law as is referred to in Article 31(2) as substituted. Section 3 of the Amendment Act, 1971, introduces a new Article 31C, which provides that notwithstanding anything contained in Article 79, no law giving effect to the policy of the State towards securing the principles mentioned in Article 39(b) or (c) shall be deemed to be void on the ground that it takes away or abridges the rights conferred by Articles 14, 19 and 31. No law containing a declaration that it is for giving effect to such policy can be called in question in any court on the ground that it does not give effect to such policy. If such a law is made by the Legislature of a State, the provisions of Article 31C can apply only if the law received the assent of the President.

2093. By the Constitution (Twenty-Ninth Amendment) Act, 1972, the two Kerala Acts – Act 35 of 1969 and Act 25 of 1971 – were included in the Ninth Schedule thereby giving them the protection of Article 31B. By such inclusion, the challenge made by the petitioner to these two Acts by his Writ Petition filed in March, 1970 became infructuous depending upon the validity of the 29th Amendment Act.

2094. Shorn of refinements, the main questions which arise for decision are: (1) What is the true ratio and effect of the decision in the Golak Nath case? (2) Should that ratio be upheld? (3) If the majority decision in the Golak Nath case be incorrect, what is the extent of the inherent or implied limitations, if any, on the power of the Parliament to amend the Constitution by virtue of its power under Article 368? and (4) Are the 24th, 25th and 29th Constitution Amendment Acts valid? 2095. The Constitution of India came into force on January 26, 1950 and on June 18, 1951 the Constitution (First Amendment) Act, 1951 was passed by the Parliament, Sections 2, 3, 4 and 5 of the Amending Act made significant amendments resulting to a large extent in the abridgement of Fundamental Rights conferred by Part III of the Constitution. By Section 4, a new Article 31A was inserted and by Section 5 was inserted Article 31B for the validation of certain Acts and Regulations. These Acts and Regulations were enumerated in the Ninth Schedule to the Constitution, which itself was added by Section 14 of the Amendment Act.

2096. The validity of the Amendment Act, 1951 was challenged in this Court in Sri Shankar Prasad Singh Deo v. Union of India and State of Bihar [1951] INSC 45; [1952] 1 S.C.R. 89. It was urged in that case that the Amendment. Act in so far as it purported to take away or abridge the rights conferred by Part III felt within the prohibition of Article 13(2) and was therefore unConstitutional. Patanjali Sastri J. who spoke for the unanimous court rejected this argument by holding 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 exercise of constituent power; and therefore, in the absence of a clear indication to the contrary, Fundamental Rights were not immune from Constitutional amendment. The challenge to the Amendment Act, 1951 was on these grounds rejected.

2097. The Constitution (Fourth Amendment) Act, 1955 abridging the Fundamental Rights guaranteed by Aritcle 31 was passed on April 27, 1955. Section 2 of this Act introduced a radical change by providing that no law to which Article 31(2) was applicable shall be called in question in any court on the ground that the compensation provided by that law was not adequate. By Section 3 of the Amending Act a new and extensive Clause (1) was substituted for the old Clause (1) of Article 31A, with retrospective effect. The newly added provision opens with a non-obstante clause:

“Notwithstanding anything contained in Article 13” and privides that no law providing for matters mentioned in new Clauses (a) to (s) Article 31A(1), 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. No challenge was ever made to these amendments.

2098. The Constitution (Seventeenth Amendment) Act, 1964 came into force on June 20, 1964. This Act, by Section 2(ii) inserted a new definition of “estate” in Article 31A(2)(a) with retrospective effect and added as many as 44 Acts in the Ninth Schedule, thus extending the protection of the Schedule to 64 Acts in all.

2099. The validity of the Seventeenth Amendment Act was challenged before this Court in Sajjan Singh v. State of Rajasthan [1964] INSC 246; [1965] 1 S.C.R. 933. Out of the the several arguments which were urged in that case the only one which is relevant for the present purpose is that the Amendment Act was void in view of the provisions of Article 13(2), in so far as the Act purported to abridge the Fundamental Rights guaranteed by Part III.

Delivering the majority judgment, Gajendragadkar C.J. took the view on behalf of himself, Wanchoo and Raghubar Dayal JJ. that the expression ‘amendment of the Constitution’ plainly and unambiguously means amendment of all the provisions of the Constituion and therefore the amending power conferred by Article 368 extended to all the provisions of the Constitution. The majority judgment rejected the contention that the word ‘law’ in Article 13(2) would take in Constitution Amendment Acts passed under Article 368, as there was a clear distinction between the constituent power conferred by Article 368 and the ordinary legislative power and Article 13(2) would take in laws made in the exercise of the latter power only. Hidayatullah J. and Mudholkar J. concurred in the final conclusion but by separate judgments they doubted the majority view and observed that it was possible that Article 368 merely laid down the procedure for amending the Constitution but did not confer the power to amend the Constitution. Both the learned Judges however stated expressely that they should not be taken to have expressed a final opinion on that question. The seeds of the controversial decision in I.C. Golak Nath and Ors. v. State of Punjab and Anr. [1967] INSC 45; [1967] 2 S.C.R. 762 were sown by the doubt thus expressed by Hidayatullah J. and Mudholkar J.

2100. The decision in the Golak Nath case was rendered by a Bench of 11 Judges of this Court on February 27, 1967. The petitioners therein had challenged the validity of Punjab Act 10 of 1953 and the Mysore Act 10 of 1962 as amended by Act 14 of 1965, on the ground that these Acts violated their Fundamental Rights, alleging that though the impugned acts were included in the Ninth Schedule, they did not receive the protection of the 1st, 4th and 17th Amendment Acts. It was common case that if the 17th Amendment which included the impugned Acts in the Ninth Schedule was valid, the Acts would not be open to challenge on any ground.

2101. Chief Justice Subba Rao delivered the leading majority judgment for himself and for Justices Shah, Sikri, Shelat and Vaidilingam. Hidayatullah J. concurred with their conclusion but delivered a separate judgment. Wanchoo J. delivered the leading minority judgment on behalf of himself and Justices Bhargava and Mitter. Justice Bachawat and Justice Ramswami concurred by their separate judgments with the view expressed in the leading minority judgment.

2102. The leading majority judgment recorded the following conclusions:

1. That Fundamental Rights are the primordial rights necessary for the development of human personality and as such they are rights of the people preserved by the Constitution.

2103. The Constitution has given by its scheme a place of permanence to the fundamental freedoms. In giving to themselves the Constitution the people have reserved the fundamental freedoms to themselves. The incapacity of the Parliament, therefore, in exercise of its amending power to modify, restrict or impair fundamental freedoms in Part III arises from the scheme of the Constitution and the nature of the freedoms.

2104. Article 368 assumes the power to amend found elsewhere. In other words, Article 368 does not confer power on Parliament to amend the Constitution but merely prescribes the procedure for the exercise of such power to amend.

2105. The power to amend is to be found in Articles 245 and 248 read with Entry 97 in List I of the Seventh Schedule to the Constitution.

2106. In the exercise of the power of amendment, Parliament could not destroy the structure of the Constitution but it could only modify the provisions thereof within the framework of original instrument for its better effectuation. In other words, the provisions of the Constitution could undoubtedly be amended but not so as to take away or abridge the Fundamental Rights.

2107. There is no distinction between the power to amend the Constitution and the ordinary power to make laws.

2108. Article 13(2) which contains an inclusive definition, prima facie takes in Constitutional law.

2109. The residuary power of Parliament could be relied upon to call for a Constituent Assembly for making the new Constitution or radically changing it. (This opinion however was tentative and not final).

2110. The Seventeenth Amendment Act impugned before the court as also the First, Fourth and Sixteenth Amendments were Constitutionally invalid. Declaring these amendments invalid was, however, likely to lead to confusion and chaos and therefore these amendments would be deemed to be valid except for future purposes, by application of the principle of ‘prospective invalidation’.

2111. In future, Parliament will have no power to amend Part III of the Constitution so as to take away or abridge the Fundamental Rights.

2112. Hidayatullah J. agreed with the final decision expressed in the leading majority judgment and his views can be summarised as follows:

1. The power of amendment must be possessed by the State. One could not take a 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.

2113. Article 368 outlines a process which if followed strictly results in the amendment of the Constitution. The article gives power to no particular person or persons.

2114. 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 Schedule Seven of the Constitution.

2115. There is no distinction in our Constitution between laws made ordinarily and laws made occasionally for the amendment of the Constitution. Therefore, Constitutional amendments must fall within the scope of Article 13(2).

2116. The whole Constitution is open to amendment, only two dozen articles being outside the reach of Article 368; that too, because the Constitution has made them fundamental.

2117. Fundamental Rights cannot be abridged or taken away by the ordinary amending process. Parliament must amend Article 368 to convoke another Constituent Assembly, pass a law under Item 7 of List I to call a Constituent Assembly and then that Assembly may be able to abridge or take away the Fundamental Rights. The Parliament was constituted with powers of legislation which included amendments of the Constitution but only so far as Article 13(2) allowed.

2118. Parliament had no power to amend Article 368 so as to confer on itself constituent powers over the Fundamental Rights. This would be wrong and against Article 13(2).

2119. The conclusion recorded by the leading majority judgment was correct, not on the ground of prospective invalidation of laws but on the ground of acquiescence. The First, Fourth and Seventh Amendments were part of the Constitution by acquiescence for a long time and could not therefore be challenged. They also contained authority for the Seventeenth Amendment.

2120. Wanchoo J. who delivered the leading minority judgment came to the following conclusions:

1. Both the procedure and the power to amend the Constitution are to be found in Article 368 and not in Entry 97 of List I.

2121. The word ‘amendment’ must be given its full meaning, that is, that the power was not restricted to improvement of details but extended to the addition to or substitution or deletion of existing provisions.

2122. In exercise of the power conferred by Article 368 it was competent to the Parliament by observing the procedure prescribed therein to amend any provision of the Constitution.

2123. The word ‘law’ in Article 13(2) could only take in laws made by Parliament and State Legislatures in the exercise of their ordinary legislative power but not amendments made under Article 368.

2124. The power to amend being a constituent power cannot be held to be subject to any implied limitations on the supposed ground that the basic features of the Constitution could not be amended.

2125. Bachawat J. agreed with Wanchoo J. and stated:

1. No limitation on the amending power could be gathered from the language of Article 368. Each and every part of the Constitution could therefore be amended under that Article.

2126. The distinction between the Constitution and the laws is so fundamental that the Constitution cannot be regarded as a law or a legislative act.

2127. Article 368 indicates that the term ‘amend’ means ‘change’. A change is not necessarily an improvement.

2128. It was unnecessary to decide the contention whether the basic features of the Constitution, as for example, the republic form of government or the federal structure thereof could be amended, as the question did not arise for decision.

2129. Ramaswami J. adopted a similar line of reasoning and held:

2130. That the definition of ‘law’ in Article 13(3) did not include in terms ‘Constitutional amendment’. Had it been intended by the Constitution-makers that the Fundamental Rights guaranteed by Part III should be completely outside the scope of Article 368 it is reasonable to assume that they would have made an express provision to that effect.

2131. The Preamble to the Constitution which declared India as a sovereign democratic republic was not beyond the scope of the amending power; similarly certain other basic features of the Constitution like those relating to distribution of legislative power, the parliamentary power of Government and the establishment of the Supreme Court and the High Courts were also not beyond the power of amendment.

2132. Every one of the articles of the Constitution is amendable under Article 368 and there was no room for any implication in the construction of that article.

2133. It is thus clear that the majority of Judges in the Golak Nath case consisting of Justices Wanchoo, Hidayatullah, Bhargava, Mitter, Bachawat and Ramaswami rejected the argument that Article 368 merely prescribes the procedure to be followed in amending the Constitution. They held that Article 368 also conferred the power to amend the Constitution. They rejected the argument that the power to amend could be found in Entry 97 of List I. The majority of Judges consisting of Subba Rao, C.J. and his 4 colleagues as well as Hidayatullah J. held that there was no distinction between constituent power and legislative power and that the word ‘law’ used in Article 13(2) includes a law passed by Parliament to amend the Constitution. Subba Rao C.J. and his 4 colleagues suggested that if a Constitution had to be radically altered the residuary power could be relied upon to call for a Constituent Assembly. Hidayatullah J. took a different view and held that for making radical alterations so as to abridge Fundamental Rights Article 368 should be suitably amended and the Constituent Assembly should be called after passing a law under Entry 97 in the light of the amended provisions of Article 368.

It is important to mention that all the eleven Judges who constituted the Bench were agreed that even Fundamental Rights could be taken away but they suggested different methods for achieving that purpose. Subba Rao C.J. and his 4 colleagues suggested calling of a Constituent Assembly; Hidayatullah J. suggested an amendment of Article 368 for calling a Constituent Assembly after passing a law under Entry 97; the remaining 5 Judges held that the Parliament itself had the power to amend the Constitution so as to abridge or take away the Fundamental Rights.

2134. The leading majority judgment did not decide whether Article 368 itself could be amended so as to confer a power to amend every provision of the Constitution. The reason for this was that the Golak Nath case was decided on the basis of the unamended Article 368. The question whether Fundamental Rights could be taken away by amending Article 368 was not before the Court. The question also whether in future Parliament could by amending Article 368 assume the power to amend every part and provision of the Constitution was not in issue before the Court. Such a question could arise directly, as it arises now, only after an amendment was in fact made in Article 368, and the terms of that amendment were known. The observation in the leading majority judgment putting restraints on the future power of the Parliament to take away Fundamental Rights cannot therefore constitute the ratio of the majority judgment. The learned Judges did not evidently consider that in future the chapter on Fundamental Rights could be made subject to an amendment by first amending Article 368 as is now done under the Twenty- Fourth Amendment.

2135. It shall have been seen that the petitioners in the Golak Nath case won but a Pyrrhic victory. They came to the Court, not for the decision of an academic issue, but to obtain a declaration that laws which affected their fundamental rights were unConstitutional.

Those laws were upheld by the court but I suppose that the petitioners left the court with the consolation that posterity will enjoy the fruits of the walnut tree planted by them. But it looks as if a storm is brewing threatening the very existence of the tree.

2136. As stated above, 6 out of the 11 learned Judges held in the Golak Nath case that Article 368 prescribed not merely the procedure for amendment but conferred the power to amend the Constitution and that the amending power cannot be traced to the Residuary Entry 97 of List I, Schedule VII read with Articles 245, 246 and 248 of the Constitution. I respectfully adopt this view taken by the majority of Judges.

2137. Part XX of the Constitution is entitled “Amendment of the Constitution”, not “Procedure for Amendment of the Constitution”. Article 368, which is the only article in Part XX must therefore be held to deal both with the procedure and the product of that procedure. The marginal note to Article 368: “Procedure for Amendment of the Constitution” was only a catchword and was in fact partially correct. It did not describe the consequence of the adoption of the procedure because the title of the part described it clearly. The justification of the somewhat inadequate marginal note to Article 368 can be sought in the fact that the article does not confer power on any named authority but prescribes a self-executing procedure which if strictly followed results in this : “the Constitution shall stand amended”. The history of the residuary power since the days of the Government of India Act, 1935, and the scheme of distribution of legislative power show that if a subject of legislative power was prominently present to the minds of the framers of the Constitution, it would not have been relegated to a Residuary Entry, but would have been included expressly in the legislative list-more probably in List I. That the question of Constitutional amendment was prominently present to the minds of the Constitution-makers is clear from the allocation of a separate Part-Part XX-to “Amendment of the Constitution”. Then, the legislative power under Entry 97, List I, belongs exclusively to the Parliament. The power to amend the Constitution cannot be located in that Entry because in regard to matters falling within the proviso to Article 368, Parliament does not possess exclusive power to amend the Constitution. The Draft Constitution of India also points in the direction that the power of amendment cannot be located in the Residuary Entry. Draft Article 304, which corresponds to Article 368, conferred by Sub-article (2) a limited power of amendment on the State Legislatures also and those Legislatures neither possessed the residuary power of legislation nor did the State List, List II, include ‘Amendment of the Constitution’ as a subject of legislative power. Finally, the power to legislate under Article 245 is “subject to the provisions of this Constitution”, so that under the residuary power, no amendment could be made to any part of the Constitution, as any amendment is bound, to some extent, to be inconsistent with the article to be amended.

2138. Having located the amending power in Article 368 and having excluded the argument that it can be traced to Entry 97 of List I, it becomes necessary to determine the width and scope of that power. Is the power unfettered and absolute or are there any limitations-express, implied or inherent on its exercise? 2139. Counsel for the petitioner urges : (1) That the word ‘amendment’ is not a term of art and has no precise and definite, or primary and fundamental, meaning; (2) That Article 368 carries vital implications by its very terms and there is inherent evidence in that Article to show chat in the context thereof the word ‘amendment’ cannot cover alterations in, damage to, or destruction of any of the essential features of the Constitution; (3) That Article 13(2) by taking in Constitutional amendments constitutes an express limitations on the power of amendment; (4) That there are implied and inherent limitations on the amending power which disentitle Parliament to damage or destroy any of the essential features, basic elements or fundamental principles of the Constitution; and (5) That in construing the ambit of the amending power, the consequences on the power being held to be absolute and unfettered must be taken into account. Counsel says that Article 368 should not be read as expressing the death-wish of the Constitution or as being a provision for its legal suicide. Parliament, he says, cannot arrogate to itself, under Article 368, the role of an Official Liquidator of the Constitution. Each of these propositions is disputed by the Respondents as stoutly as they were asserted.

2140. ‘Amendment’ is undoubtedly not a term of art and the various dictionaries, texts and law lexicons cited before us show that the word has several shades of meaning. (Sec for example the meanings given in The Shorter Oxford English Dictionary on historical Principles, 3rd Ed.; Webster’s Third New International Dictionary of the English Language; The Random House Dictionary of the English Language; The Dictionary of English Law, Earl Jowitt; Judicial and Statutory Definitions of Words and Phrases, Second Series; Words and Phrases legally defined, John B. Saunders; Wharton’s Law Lexicon, 14 Ed.; Words and Phrases Permanent Edition; and The Construction of Statutes by Earl T. Crawford.) 2141. Some of the American State Supreme Courts have taken the view that 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. (See Livermore v. Waite (1894) 102 Cal. 113; McFadden v. Jordan 32, Cal. 2d.

330; Foster v. Evatt 144, Ohio St. 65). Another line of decisions, again of the American State Supreme Court, has accepted a wider meaning of the word ‘amendment’ so as to include within it even a ‘revision’ of a Constitutional document. (See Edwards v. Lesseur, Southwestern Reporter, Vol. 33, p. 1120; Ex Parte Dillon, Federal Reporter No. 262, p.

563; Staples v. Gilmer, American Law Reports Annotated, Vol. 158, p. 495).

2142. In brief, it would be correct to say that at least three different meanings have been generally given to the word ‘amendment’:

(a) to improve or better; to remove an error;

(b) to make changes which may not improve the instrument but which do not alter, damage or destroy the basic features, essential elements or fundamental principles of the instrument sought to be amended; and (c) to make any changes whatsoever.

2143. These texts and authorities are useful in that they bring a sense of awareness of the constructional difficulties involved in the interpretation of a seemingly simple word like ‘amendment’. But enriched by such awareness, we must in the last analysis go to our own organic document for determining whether the word ‘amendment’ in Article 368 is of an ambiguous and uncertain import.

2144. The various shades of meaning of the word ‘amendment’ may apply differently in different contexts, but it seems to me that in the context in which that word occurs in Article 368, it is neither ambiguous nor amorphous, but has a definite import.

2145. The proviso to Article 368 furnishes intrinsic evidence to show that the word ‘amendment’ is used in that article not in a narrow and insular sense but is intended to have the widest amplitude. Article 368 provides that “An amendment of this Constitution may be initiated only by the introduction of a Bill for the purpose in either House of Parliament”, and after the Bill is passed by the prescribed majority, “the Constitution shall stand amended in accordance with the terms of the Bill”. The proviso says that the amendment shall also require to be ratified by the State legislatures of not less than one- half of the States if “such amendment seeks to make any change in” the matters mentioned in Clauses (a) to (e) of the proviso. “Such amendment” obviously means ‘amendment’ referred to in the main body of Article 368 and thus the article itself envisages that the amendment may take the form of ‘change’. There is in this case a dictionary at every corner for every word and we were referred to various meanings of ‘change’ also. It is enough to cite the meaning of the word from the Oxford English Dictionary (Vol. I, p. 291): “Change: substitution…of one thing for another. Alteration in the state or quality of any thing”. Webster’s 3rd New International Dictionary Vol. III pp.

373-4, gives the same meaning. It is clear beyond doubt that ‘change’ does not mean only ‘such an addition…within the lines of the original instrument as will effect an improvement or better carry out the purpose for which it was framed’.

2146. Paragraph 7 of Part D of the Fifth Schedule and paragraph 21 of the Sixth Schedule also furnish similar proof of the meaning of the word ‘amendment’. These two paragraphs provide for amendment of the respective Schedules in identical terms:

Amendment of the Schedule.-(1) Parliament may from time to time by law amend by way of addition, variation or repeal any of the provisions of this Schedule and, when the Schedule is so amended, any reference to this Schedule in this Constitution shall be construed as a reference to such Schedule as so amended.

(2) No such law as is mentioned in sub-paragraph (1) of this paragraph shall be deemed to be an amendment of this Constitution for the purposes of Article 368.

2147. Two things emerge from these provisions of Paragraphs 7 and 21 of the Fifth and Sixth Schedules. Firstly, that the concept of “amendment” as shown by Clause (1) takes in “addition, variation or repeal” and secondly, that an amendment even by way of “addition, variation or repeal” would fall within the terms of Article 368. It is expressly excepted from the scope of that article so that it may not fall within it, which it otherwise would.

2148. The expression ‘amendment’ was used in a large number of articles of the Constitution as originally enacted: Articles 4(1)(2), 108(4), 109(3)(4), 111, 114(2), 169(2), 196(2), 198(3) and (4), 200, 201, 204(2), 207(1)(2)(3), 240(2), 274(1), 304(b) and 349. A reference to the content and the subject matter of these articles would show that in almost every one of the cases covered by these articles, ‘amendment’ would be by way of addition, variation or repeal.

2149. In several provisions of the original Constitution, different expressions were used to indicate conferment of the amending power. Article 35(b) called it “altered, repealed, amended”; Article 243(1) described it as “repeal or amend”. The proviso to Article 254(2) described it as “adding to, amending, varying Or repealing”; and Article 392(1) used the expression “such adaptations, whether by way of modification, addition or omission”.

The English language has a rich vocabulary and there are such nice and subtle differences in the shades of meaning of different words that it is said that there are, in that language, no synonyms. But I find it impossible to believe that the various expressions enumerated above have behind them any calculated purpose or design. Their use may easily, though with a little generosity, be attributed to a common failing to attain elegance of language.

Reading more than meets the eye tends to visit the writing with the fate reserved for the poems of Sir Robert Browning. When he wrote them, two persons knew what they meant – he and the God. After hearing the critics, God alone knew what the poet intended:

2150. Constitutions of several countries of the world show the words ‘amendment’, ‘alteration’, ‘revision’ and ‘change’ are used promiscuously. The Constitutions of Liberia, Trinidad and Tobago show that there is no difference in meaning between ‘amendment’ and ‘alteration’. Those of Somalia, Jordan, Kuwait, Lebanon, and the Vietnam Democratic Republic show that there is no difference between ‘amendment’ and ‘revision’.

The Constitution of Belgium shows that the words ‘revision’ and ‘alteration’ are used in the same sense. The Constitution of Barundi shows that ‘amendment’ denotes ‘change’.

The Constitutions of Monaco, Costa Rica, Cuba and Nicaragua show that ‘amendment’ can be total or partial.

2151. Dr. D. Conrad says of Article 368, in “Limitation of Amendment Procedures and the Constituent Power” that “it is hardly possible to restrict the legal meaning of amendment to ‘improvement’, nor can it be denied that by amendment complete articles may be removed or replaced”. The author is justified in this view. The Indian Constitution is neither the first written Constitution of the world nor of course the last.

Since the time that the first written Constitution, namely the American Constitution was framed in 1787 until today, the expression ‘amendment’ is known to occur at least in 57 Constitutions out of 71. It is inconceivable that the power of changing a written instrument of fundamental importance would be so expressed for so long and in the Constitutions of so many countries, if the word ‘amendment’ was of doubtful import.

2152. On August 21, 1946, the Constituent Assembly passed the Government of India (Third Amendment) Act, 1949, which substituted a new Section 291 in the Government of India Act, 1935 giving to the Governor General the power to make such amendments as he considered necessary, whether by way of “addition, modification or repeal” in certain provisions. Shortly thereafter, that is, on September 17, 1949, the Constituent Assembly debated Article 304 corresponding to present Article 368, using the word ‘amendment’ simpliciter. In the debate on Article 304 amendment No. 3239 moved by Shri H.V. Kamath which sought to introduce in that article the words “whether by way of variation, addition or repeal” was rejected.

2153. I am unable to read in this legislative history an inference that the word ‘amendment’ was used in Article 304 in order to curtail the scope of the amending power.

It is significant that the Government of India (Third Amendment) Act, 1939 was described in its title as an “Act to further amend the G.I. Act 1935” and the Preamble stated that it was expedient to amend the Government of India Act, 1935. By Section 4 the old Section 291 was “repealed” totally and the new Section 291 was “substituted”. By Section 3 a new sub-section was “inserted”. By Section 5 a new item was “substituted”

and totally new itmes Nos. 31B and 31C were “inserted”. The Act of 1949 therefore leaves no room for doubt that the word ‘amend’ included the power of addition, alteration and repeal. Apart from this it is well recognized that the use of different words does not necessarily produce a change in the meaning. (See Maxwell ‘Interpretation of Statutes’ 12th Ed., pp. 286 to 289; State of Bombay v. Heman Alreja A.I.R. 1952 Bom. 16, 20 per Chagla C.J. and Gajendragadkar J.).

2154. Finally, it is important that 5 out of the 11 Judges in the Golak Nath case took the view that the word ‘amendment’ must be given a wide meaning. The leading majority judgment did not consider that question on the ground that so far as Fundamental Rights were concerned, the question could be answered on a narrower basis. Ramaswami J. also did not consider the meaning of the word ‘amendment’. However, Wanchoo J. who delivered the leading minority judgment, Hidayatullah J. and Bachawat J. took the view that the word must be given a wide meaning. According to Hidayatullah J., “By an amendment new matter may be added, old matter removed or altered”.

2156. Thus the word ‘amendment’ in Article 368 has a clear and definite import and it connotes a power of the widest amplitude to make additions, alterations or variations.

The power contained in Article 368 to amend the Constitution is indeed so wide that it expressly confers a power by Clause (e) of the proviso to amend the amending power itself. No express restraint having been imposed on the power to amend the amending power, it is unnecessary to seek better evidence of the width of the power of amendment under our Constitution.

2157. Article 368, manifestly, does not impose any express limitations. The reason for this is obvious. The power of amendment is in substance and reality a power to clarify the original intention obscured, for example, by limitations of language and experience, so as to adjust the intention as originally expressed to meet new challenges. As a nation works out its destiny, new horizons unfold themselves, new challenges arise and therefore new answers have to be found. It is impossible to meet the new and unforeseen demands on the enervated strength of a document evolved in a context which may have largely lost its relevance. The power of amendment is a safety valve and having regard to its true nature and purpose, it must be construed as being equal to the need for amendment. The power must rise to the occasion. According to Friedrich Constitutional Government &

Democracy, 4th Ed. p. 139, “The constituent power bears an intimate relation to revolution. When the amending provisions fail to work in adjusting the Constitutional document to altered needs, revolution may result.” That is why, the rule of strict construction which applies to a penal or taxing statute is out of place in a Constitutional Act and a ‘construction most beneficial to the widest possible amplitude” of its powers must be adopted British Coal Corporation v. Rex 1935 (A.C.) 500, 518.

2158. If, on the terms of Article 368 the power of amendment is wide and unfettered, does Article 13(2) impose any restraint on that power? Hereby hangs a tale. A majority of Judges held in the Golak Nath case that the power of amendment was to be traced to Article 368. But a majority, differently composed, held that amendment of the Constitution was ‘law’ within the meaning of Article 13(2) and, therefore, the Parliament had no power to take away or abridge the rights conferred by Part III of the Constitution.

This finding contained in the judgment of the leading majority and of Hidayatullah J. is the nerve of the decision in the Golak Nath case. It is therefore necessary to consider that question closely.

2159. I will set out in juxtaposition Articles 13(2), 245 and 368 in order to highlight their inter-relation:

Article 13(2) Article 245 Article 368 The State shall Subject to the Amendment of this not make any Provisions of Constitution may be law which takes this Constitution initiated only by the away or abridges Parliament may make introduction of a Bill the rights conferred laws for the whole for the purpose in by this part. or any part of the either House of parliament, territory of India. and when the Bill, is passed each House by a majority of not less than two thirds of that House present and voting, it shall be presented to the Emphasis supplied) president for his assent and upon such assent being given to the Bill, the Constitution shall stand amended in accordance with the terms of the Bill.

Article 13(2) clearly echoes the language of Article 245. Article 245 gives the power to ‘make laws’, while Article 13(2) imposes a limitation on the exercise of the power to ‘make laws’. As between the two articles, Article 13(2) is the paramount law for, Article 245 is expressly subject to all the provisions of the Constitution including Article 13(2).

2160. Article 368 avoids with scrupulous care the use of the word ‘law’, because there is a fundamental distinction between Constitutional law and ordinary law. The term ‘Constitutional law’ is never used in the sense of including the laws made under the Constitution. (See Jennings-The Law and the Constitution, 5th Ed., pp. 62-65).

Constitutional law is the fundamental, superior or paramount law. Its authority and sanction are higher than those of ordinary laws. (Encyclopaedia Britannica, Vol. VI, Constitution and Constitutional Law, p. 314). As stated by Dicey in his ‘Introduction to the study of the Law of the Constitution’ (10th Ed.,) pp. 149-151), the legislature in a federal Constitution is a subordinate law-making body whose laws are in the nature of bye-laws within the authority conferred by the Constitution.

2161. Articles 3, 4, 169, Paragraph 7 of the Fifth Schedule and Paragraph 21 of the Sixth Schedule emphasises an important aspect of the distinction between Constitutional law and ordinary law. What is authorised to be done by these provisions would normally fall within the scope of Article 368. In order however to take out such matters from the scope of that article and to place those matters Within the ordinary legislative sphere, special provisions are made in these articles that any laws passed thereunder shall not be deemed to be an amendment of the Constitution for the purposes of Article 368.

2162. Article 13(1) provides:

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

This article deals with the effect of inconsistency between the provisions of Part III and the pre-Constitution laws and provides that to the extent of such inconsistency the pre- Constitution laws shall be void Article 13(2) pursues the same strain of thought by making void postConstitution laws to the extent of their inconsistency with the provisions of Part III. The pre-Constitution and the post-Constitution laws dealt with by the two clauses of Article 13 are in nature and character identical. They are ordinary laws as distinguished from Constitutional laws.

2163. Counsel for the petitioner urged that Article 395 of the Constitution repealed only the Indian Independence Act, 1947 and the Government of India Act of 1935 and under Article 372, notwithstanding the repeal of these two enactments, all the laws in force in the territory of India immediately before the commencement of the Constitution continued in force until altered, repealed or amended. It is urged that several Constitutional laws of the then Indian States were in force on the 26th January, 1950 and the object of Article 13(1) was partly to save those laws also. There is no substance in this contention. It is in the first place a proposition of doubtful authority that the Indian States had a Constitution properly so-called. But even assuming that such Constitutions were at one time in force, they would cease to be in operation as Constitutional Laws on the integration of the States with the Indian Union. Article 13(1) therefore does not include any Constitutional laws.

2164. Article 13(3)(a) contains an inclusive definition of ‘law’ as including any Ordinance, order bye-law, rule regulation, notification, custom or usage having in the territory of India the force of law. It is surprising that the necessity to include amendments of the Constitution within the inclusive definition of ‘law’ should have been overlooked if indeed Article 13(2) was intended to take in Constitutional amendments.

There is high and consistent authority for the view that Constitution is the fundamental or basic law, and that it is a law of superior obligation to which the ordinary law must conform. (Corpus Juris Secundum, Vol. 16, pp. 22-25; Weaver-Constitutional Law and its Administration (1946) p. 3; Burgess-Political Science and Constitutional Law, Vol. 1, pp. 145-146). Unless, therefore, Constitutional law was expressly included in Article 13(3)(a), it would fall outside the purview of Article 13(2).

2165. In America, there is a large volume of authority that the legislatures of the various States, in initiating Constitutional amendments do not exercise ordinary legislative power. This distinction is brought out clearly by saying that in relation to the federal Constitution of America, a State Constitutional provision or amendment is ‘law’ within the meaning of the federal Constitution. Again, when under Article V of the Constitution the Congress makes a proposal for amendment and the States ratify it, neither the Congress nor the States are legislating. (Corpus Juris Secundum, Vol. 16, pp. 48, 49;

Charles R. Burdick-The Law of the American Constitution, pp. 40-42).

2166. The fundamental distinction between Constitutional law and ordinary law lies in the criterion of validity. In the case of Constitutional law, its validity is inherent whereas in the case of an ordinary law its validity has to be decided on the touchstone of the Constitution, With great respect, the majority view in Golak Nath case, did not on the construction of Article 13(2), accord due importance to this essential distinction between legislative power and the constituent power. In a controlled Constitution like ours, ordinary powers of legislatures do not include the power to amend the Constitution because the Body which enacts and amends the Constitution functions in its capacity as the Constituent Assembly. The Parliament performing its functions under Article 368 discharges those functions not as a Parliament but in a constituent capacity.

2167. There is a fundamental distinction between the procedure for passing ordinary laws and the procedure prescribed by Article 368 for affecting amendments to the Constitution. Under Article 368, a bill has to be initiated for the express purpose of amending the Constitution, it has to be passed by each House by not less than two-thirds members present and voting and in cases falling under the proviso, the amendment has to be ratified by the legislatures of not less than half the States. A bill initiating an ordinary law can be passed by a simple majority of the members present and voting at the sitting of each House or at a joint sitting of the two Houses. Article 368 does not provide for a joint sitting of the two Houses. The process of ratification by the States under the Proviso cannot possibly be called an ordinary legislative process for, the ratification is required to be made by “resolutions” to that effect. Ordinary bills are not passed by resolutions.

2168. The distinction between constituent power and ordinary legislative power can best be appreciated in the context of the nature of the Constitution which the court has to interpret in regard to the amending power. In McCawley v. The King [1920] A.C. 691, Lord Birkenhead used the words ‘controlled’ and ‘uncontrolled’ for bringing about the same distinction which was made between ‘rigid’ and ‘flexible’ Constitution first by Bryce and then by Dicey. In a ‘controlled’ or ‘rigid’ Constitution, a different procedure is prescribed for amendming the Constitution than the procedure prescribed for making ordinary laws.

2169. In an ‘uncontrolled’ or ‘flexible’ Constitution the procedure for amending the Constitution is same as that for making ordinary laws. In such a Constitution, the distinction between Constitutional laws and ordinary laws tends to become blurred because any law repugnant to the Constitution repeals the Constitution pro tanto [McCawley v. The King [1920] A.C. 691].

2170. Thus, the true ground of division, by virtue of the nature of the Constitution, is whether it is flexible or rigid. That depends upon whether the process of Constitutional law-making is or is not identi cal with the process of ordinary law-making. A typical instance of a flexible Constitution is that of the United Kingdom. The Constitution of the former Kingdom of Italy was also flexible, so flexible indeed, that Mussolini was able profundly to violate the spirit of the Constitution without having to denounce it. The Constitution of the United States is rigid, as it cannot be amended without the special machinery being set in motion for that purpose. “In short, then, we may say that the Constitution which cannot be bent without being broken is a rigid Constitution.” (See Modern Political Constitutions : an Introduction to the Comparative Study of Their History and Existing Form by C.F. Strong, 1970 Reprint). The Indian Constitution, considered as a whole is a ‘controlled’ or ‘rigid’ Constitution, because, broadly, none of the articles of that Constitution can be amended otherwise than by the special procedure prescribed by Article 368. Certain provisions thereof like Article 4 read with Articles 2 and 3, Article 169, para 7 of the Fifth Schedule and para 21 of the Sixth Schedule confer power to amend the provisions of the Constitution by the ordinary law-making process but these amendments are expressly excepted by the respective provisions from the purview of Article 368. Schedules V and VI of the Constitution are in fact a Constitution within a Constitution.

2171. The distinction between ‘flexible’ and ‘rigid’ Constitutions brings into sharp focus the true distinction between legislative and constituent power. This is the distinction which, with respect, was not given its due importance by the majority in the Golak Nath case. In a rigid Constitution, the power to make laws is the genus, of which the legislative and constituent powers are species, the differentia being the procedure for amendment. If the procedure is ordinary, the power is legislative; if it is special, the power is constituent.

2172. This discussion will show that in a rigid’ or ‘uncontrolled’ Constitution-like ours-a law amending the Constitution is made in exercise of a constituent power and partakes fully of the character of Constitutional law. Laws passed under the Constitution, of which the validity is to be tested on the anvil of the Constitution are the only laws which fall within the terms of Article 13(2).

2173. The importance of this discussion consists in the injunction contained in Article 13(2) that the State shall not make any ‘law’ which takes away or abridges the rights conferred by Part III. An Amendment of Constitution within the terms of Article 368 not being law within the meaning of Article 13(2), it cannot become void on the ground that it takes away or abridges the rights conferred by Part III.

2174. Fundamental Rights undoubtedly occupy a unique place in civilized societies, whether you call them “transcendental”, “inalienable”, or as Lieber called them, “Primordial”. There is no magic in these words for, the strength and importance of these rights is implicit in their very description in the Constitution as “fundamental”. But the special place of importance which they occupy in the scheme of the Constitution, cannot by itself justify the conclusion that they are beyond the reach of the amending power.

Article 13(2) clearly does not take in the amending power and Article 368 does not except the Fundamental Rights from its scope.

2175. But they cannot be tinkered with and the Constitution has taken care to ensure that they do not become a mere ‘plaything’ of a special majority. Members of the Lok Sabha are elected on adult universal suffrage by people of the States. Whereas, ordinary laws can be passed by a bare majority of those present, Constitutional amendments are required to be passed under Article 368 by a majority of the total membership of each House and by a majority of not less than two-thirds of the members of each House separately present and voting. In matters falling within the proviso, amendments are also required to be ratified by the Legislatures of not less than half of the States. Rajya Sabha, unlike the Lok Sabha, is a perpetual body, which changes one-third of its membership every two years. Members of the Rajya Sabha are elected by Legislative Assemblies of the States, that is, by those who are directly elected by the people themselves. The mode of election to Rajya Sabha constitutes to some extent an insurance against gusts and waves of public opinion.

2176. I will now proceed to consider an important branch of the petitioner’s argument which, frankly, seemed to me at first sight plausible. On closer scrutiny, however, I am inclined to reject the argument. It is urged by the learned Counsel that it is immaterial whether the amending power can be found in Article 368 or in Entry 97 of List I, because wherever that power lies, its exercise is subject to inherent and implied limitations.

2177. The argument takes this form : Constitutions must of necessity be general rather than detailed and prolix, and implication must therefore play an important part in Constitutional construction. Implied limitations are those which are implicit in the scheme of the Constitution while inherent limitations are those which inhere in an authority from its very nature, character and composition. Implied limitations arise from the circumstances and historical events which led to the enactment of our Constitution, which represents the solemn balance of rights between citizens from various States of India and between various sections of the people. Most of the essential features of the Constitution are basic Human Rights, sometimes described as “Natural Rights”, which correspond to the rights enumerated in the “Universal Declaration of Human Rights”, to which India is a signatory. The ultimate sovereignty resides in the people and the power to alter or destory the essential features of a Constitution is an attribute of that sovereignty. In Article 368, the people are not associated at all with the amending process. The Constitution gives the power of amendment to the Parliament which is only a creature of the Constitution. If the Parliament has the power to destroy the essential features it would cease to be a creature of the Constitution, the Constitution would cease to be supreme and the Parliament would become supreme over the Constitution. The power given by the Constitution cannot be construed as authorising the destruction of other powers conferred by the same instrument. If there are no inherent limitations on the amending power of the Parliament, that power could be used to destroy the judicial power, the executive power and even the ordinary legislative power of the Parliament and the State legislatures. The Preamble to our Constitution which is most meaningful and evocative, is beyond the reach of the amending power and therefore no amendments can be introduced into the Constitution which are inconsistent with the Preamble. The Preamble walks before the Constitution and is its identity card.

2178. Counsel has made an alternative submission that assuming for purposes of argument that the power of amendment is wide enough to reach the Fundamental Rights, it cannot be exercised so as to damage the core of those rights or so as to damage or destory the essential features and the fundamental principles of the Constitution. Counsel finally urges that the history of implied and inherent limitations has been accepted by the highest courts of countries like U.S.A., Canada, Australia and Ireland. The theory is also said to have been recognised by this Court, the Federal Court and the Privy Council.

2179. In answer to these contentions, it was urged on behalf of the respondents that there is no scope for reading implied or inherent limitations on the amending power, that great uncertainty would arise in regard to the validity of Constitutional amendment if such limitations were read on the amending power, that the Preamble is a part of the Constitution and can be amended by Parliament, that there is in our Constitution no recognition of basic human or natural rights and that the consensus of world opinion is against the recognition of inherent limitations on the amending power.

2180. Before dealing with these rival contentions, I may indicate how the argument of inherent limitations was dealt with in the Golak Nath case. Subba Rao C.J. who delivered the leading majority judgment said that there was considerable force in the argument but it was unnecessary to decide it (p. 805). According to Hidayatullah J. “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.” (p. 878).

Wanchoo J. who delivered the leading minority judgment rejected the argument by observing : “The power to amend being a constituent power cannot in our opinion…be held subject to any implied limitations thereon on the ground that certain basic features of the Constitution cannot be amended.” (p. 836). Bachawat J. observed that it was unnecessary to decide the question, as it was sufficient for the disposal of the case to say that Fundamental Rights were within the reach of the amending power (p. 906).

Ramaswami J. considered and rejected the argument by observing that there was no room for an implication in the construction of Article 368 and it was unlikely that if certain basic features were intended to be unamendable, the Constitution makers would not have expressly said so in Article 368 .

2181. It is difficult to accept the argument that inherent limitations should be read into the amending power on the ground that Fundamental Rights are natural rights which inhere in every man. There is instrinsic evidence in Part III of the Constitution to show that the theory of natural rights was not recognised by our Constitution-makers. Article 13(2) speaks of rights “conferred” by Part III and enjoins the States not to make laws inconsistent therewith. Article 32 of the Constitution says that the right to move the Supreme Court for the enforcement of rights ‘conferred’ by Part III is guaranteed. Before the Fundamental Rights were thus conferred by the Constitution, there is no tangible evidence that these rights belonged to the Indian people. Article 19 of the Constitution restricts the grant of the seven freedoms to the citizens of India. Non-citizens were denied those rights because the conferment of some of the rights on the Indian citizens was not in recognition of the pre-existing natural rights. Article 33 confers upon the Parliament the power to determine to what extent the rights conferred by Part III should be restricted or abrogated in their application to the members of the Armed Forces. Article 359(1) empowers the President to suspend the rights “conferred” by Part III during the proclamation of an emergency. Articles 25 and 26 by their opening words show that the right to freedom of religion is not a natural right but is subject to the paramount interest of society and that there is no part of that right, however important, which cannot and in many cases has not been regulated in civilised societies. Denial to a section of the community, the right of entry to a place of worship, may be a part of religion but such denials, it is well-known, have been abrogated by the Constitution. [1957] INSC 99; (1958 S.C.R. 895 at 919, per Venkatarama Aiyar J.; Sri Venkataramana Devaru and Ors. v. The State of Mysore and Ors. see also Bourne v. Keane 1919 A.C. 815 at 861 per Lord Birken-head L.C.). Thus, in India, citizens and non-citizens possess and are entitled to exercise certain rights of high significance for the sole reason that they are conferred upon them by the Constitution.

2182 The ‘natural right’ theory stands, by and large repudiated today. The notion that societies and governments find their sanction on a supposed contract between independent individuals and that such a contract is the sole source of political obligation is now regarded as untenable. Calhoun and his followers have discarded this doctrine, while theorists like Story have modified it extensively. The belief is now widely held that natural rights have no other than political value. According to Burgess, “there never was, and there never can be any liberty upon this earth among human beings, outside of State organisation.” According to Willoughby, natural rights do not even have a moral value in the supposed “state of nature”; they would really be equivalent to force and hence have no political significance. Thus, Natural Right thinkers had once “discovered the lost title- deeds of the human race” but it would appear that the deeds are lost once over again, perhaps never to be resurrected.

2183. The argument in regard to the Preamble is that it may be a part of the Constitution but is not a provision of the Constitution and therefore, you cannot amend the Constitution so as to destroy the Preamble. The Preamble records like a sun-beam certain glowing thoughts and concepts of history and the argument is that in its very nature it is unamendable because no present or future, however mighty, can assume the power to amend the true facts of past history. Counsel relies for a part of this submission on the decision in Beru Ban case [1960] 3 S.C.R. 250, 282. Our attention was also drawn to certain passages from the chapter on “preamble” in “commentaries on the Constitution of the United States” by Joseph Story.

2184. I find it impossible to accept the contention that the Preamble is not a provision of the Constitution. The record of the Constituent Assembly leaves no scope for this contention. It is transparent from the proceedings that the Preamble was put to vote and was actually voted upon to form a part of the Constitution. (Constituent Assembly Debates, Vol. X, pp. 429, 456). As a part and provision of the Constitution, the Preamble came into force on January 26, 1950. The view is widely accepted that the Preamble is a part of the enactment (Craies on Statute Law, 7th Ed., p. 201; Halsbury, Vol. 36, 3rd. Ed., p. 370).

2185. In considering the petitioner’s argument on inherent limitations, it is well to bear in mind some of the basic principles of interpretation. Absence of an express prohibition still leaves scope for the argument that there are implied or inherent limitations on a power, but absence of an express prohibition is highly relevant for inferring that there is no implied prohibition. This is clear from the decision of the Privy Council in The Queen v. Burah 5 I.A. 178, 195. This decision was followed by this Court in State of Bombay v.

Nauratan Das Jaitha Bai 1951 (2) S.C.R. 51, 81 and in Sardar Inder Singh v. State of Rajasthan [1957] INSC 11; 1957 S.C.R. 605, 616-17. In saying this, I am not unmindful of the fact that Burah’s case and the two cases which followed it, bear primarily on conditional legislation.

2186. Another principle of interpretation is that it is not open to the courts to declare an Act void on the ground that it is opposed to a ‘spirit’ supposed to pervade the Constitution but not manifested in words. As observed by Kania C.J. in Gopalan’s case 1950 S.C.R.

88, 121, a wide assumption of power to construction is apt to place in the hands of judiciary too great and to indefinite a power, either for its own security or the protection of private rights. The argument of ‘spirit’ is always attractive and quite some eloquence can be infused into it. But one should remember what S.R. Das J. said in Keshav Madhav Menon’s case [1951] INSC 3; 1951 S.C.R. 228, 231 that one must gather the spirit from the words or the language used in the Constitution. I have held that the language of Article 368 is clear and explicit. In that view, it must be given its full effect even if mischievous consequences are likely to ensue; for, judges are not concerned with the policy of law- making and “you cannot pass a covert censure against the legislature.” (Vacher & Sons, Limited v. London Society of Compositors) 1913 (A.C.) 107 at 112, 117, 121. The importance of the circumstance that the language of Article 368 admits of no doubt or ambiguity is that such a language leaves no scope for implications, unless in the context of the entire instrument in which it occurs, such implications become compulsive. I am tempted to say that ‘context’ does not merely mean the position of a word to be construed, in the collocation of words in which it appears, but it also means the context of the times in which a fundamental instrument falls to be construed.

2187. An important rule of interpretation which, I think, has a direct bearing on the submissions of the petitioner on inherent limitations is that if the text is explicit, it is conclusive alike in what it directs and what it forbids. The consequences of a particular construction, if the text be explicit, can have no impact on the construction of a Constitutional provision (Attorney-General, Ontario v. Attorney-General, Canada) [1892] A.C. 571. As observed by Chief Justice Marshall in Providence Bank v. Alpheus Billings L. ed. 939, 957 a power may be capable of being abused but the Constitution is not intended to furnish a corrective for every abuse of power which may be committed by the government I see no warrant for the assumption that the Parliament will be disposed to out a perverse construction on the powers plainly conferred on it by the Constitution. And talking of abuse of powers, is there not the widest scope for doing so under several provisions of the Constitution ? The powers of war and peace, the powers of finance and the powers of preventive detention, are capable of the widest abuse and yet the Founding Fathers did confer those powers on the Parliament. When I look at a provision like the one contained in Article 22 of the Constitution, I feel a revolt rising within myself, but then personal predilections are out of place in the construction of a Constitutional provision. Clause (7) of Article 22 permits the Parliament to enact a law under which a person may be detained for a period longer than three months without obtaining the opinion of an Advisory Board. While enacting certain laws of Preventive Detention, the Government has shown some grace in specifying the outer limits, however, uncertain, of the period of detention though, so it seems, it is under no obligation to do so. Thus, even when the original Constitution was passed, powers capable of the gravest abuse were conferred on the Parliament, which as the petitioner’s counsel says, is but a creature of the Constitution. In assessing the argument that the gravity of consequences is relevant on the interpretation of a Constitutional provision, I am reminded of the powerful dissent of Justice Holmes in Lochner v. New York 49 L. ed. 937 regarding a labour statute. The test according to the learned Judge was not whether he considered the law to be reasonable but whether other reasonable persons considered it unreasonable. In Bank of Toronto v.

Lambe [1887] A.C. 575, 586 Lord Hobhous observed: “People who are trusted with the great power of making laws for property and civil rights may well be trusted to levy taxes.” Trust in the elected representatives is the corner stone of a democracy. When that trust fails, everything fails. As observed by Justice Learned Hand in “the spirit of liberty”

: “I often wonder, whether we do not rest our hopes too much upon Constitution, 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.

2188. Established text books on Interpretation also take the view that “where the language of an Act is clear and explicit, we must give effect to it, whatever may be the consequences, for in that case the words of the statute speak the intention of the legislature Craies on “Statute Law”, 6th Ed., p. 66.

2189. It is thus clear that part from Constitutional limitations, no law can be struck down on the ground that it is unreasonable or unjust. That is the view which was taken by this Court in the State of Bihar v. Kameshtvar Singh 1952 S.C.R. 889, 936, 937. Mahajan J.

Described the Bihar Land Reforms Act, which was under consideration in that case, as repugnant to the sense of justice of the court. In fact, the learned Judge says in his judgment that it was not seriously disputed by the Attorney-General, that the law was highly unjust and inequitous and the compensation provided therein in some cases was purely illusory. The Court, however, found itself powerless to rectify an “unjustice”

perpetrated by the Constitution itself. No provision incorporated in a Constitution at the time of its original enactment can ever be struck down as unConstitutional. The same test must apply to what becomes a part of that Constitution by a subsequent amendment, provided that the conditions on which alone such amendments can be made are strictly complied with. Amendments, in this sense, pulpate with the vitality of the Constitution itself.

2190. The true justification of this principle is, as stated by Subba Rao J. in the Collector of Customs, Baroda v. Digvijaysinhji Spinning & Weaving Mills Ltd., [1962] 1 S.C.R.

896, 899 that a construction which will introduce uncertainty into the law must be avoided. It is conceded by the petitioner that the power to amend the Constitution is a necessary attribute of every Constitution. In fact, amendments which were made by the Constitution (First Amendment) Act, 1951 to Articles 15 and 19 were never assailed and have been conceded before us to have been properly made. It was urged by the learned Counsel that the substitution of new Clause (2) in Article 19 did not abrogate the Fundamental Rights, but on the other hand enabled the citizens at large to enjoy their fundamental freedoms more fully. This, I think, is the crux of the matter. What counsel concedes in regard to Article 19(2) as substituted by the First Amendment Act can be said to be equally true in regard to the amendments now under challenge. Their true object and purpose is to confer upon the community at large the blessings of liberty. The argument is that the Parliament may amend the provisions of Part III, but not so as to damage or destroy the core of those rights or the core of the essential principles of the Constitution. I see formidable difficulties in evolving an objective standard to determine what would constitute the core and what the peripheral layer of the essential principles of the Constitution. I consider the two to be inseparable.

2191. Counsel painted a lurid picture of the consequences which will ensue if a wide and untrammelled power is conceded to the Parliament to amend the Constitution. These consequences do not scare me. It is true that our confidence in the men of our choice cannot completely silence our fears for the safety of our rights. But in a democratic policy, people have the right to decide what they want and they can only express their will through their elected representatives in the hope and belief that the trust will not be abused. Trustees are not unknown to have committed breaches of trust but no one for that reason has abolished the institution of Trusts. Can we adopt a presidential system of government in place of the parliamentary system? Can we become a monarchial or theocratic State ? Shall we permit the Parliament to first destroy the essential features of the Constitution and then amend the amending power itself so to as provide that in future no amendment shall be made except by a 99 per cent majority? Can the Parliament extend its term from 5 to 50 years and create a legislative monopoly in its favour ? These are the questions which counsel has asked. My answer is simple. History records that in times of stress, such extreme steps have been taken both by the people and by the Parliament. In 1640, when England was invaded by Scots, Charles the I was obliged to recall Parliament to raise money for the war. The ‘Short’ Parliament insisted on airing its grievances before voting the money and was dismissed. Charles had to summon a new Parliament immediately, and this ‘Long’ Parliament lasting until 1660, set out to make personal government by a monarch impossible. The true sanction against such political crimes lies in the hearts and minds of men. It is there that the liberty is insured. I therefore say to myself not in a mood of desperation, not in a mood of helplessness, not cynically but in the true spirit of a democrat: If the people acting through the Parliament want to put the Crown of a King on a head they like, or if you please, on a head they dislike, (for uneasy lies the head that wears a Crown), let them have that liberty. If and when they realise the disaster brought by them upon themselves, they will snatch the Crown and scatter its jewels to the winds. As I say this, I am reminded of a famous saying of Justice Holmes: “About seventy-five years ago, I learnt that I was not God. And so, when the people…want to do something I can’t find anything in the Constitution expressly forbidding them to do, I say, whether I like it or not : ‘God-dammit, let ’em do it 2192. No name is mentioned with greater honour in the history of American democracy than that of Thomas Jefferson. He was the central figure in the early development of American democracy, and on his death he was politically canonized. Jefferson said in regard to the necessity of a wide amending power that “The earth belongs in usufruct to the living; the dead have neither powers nor rights over it.” “If one generation could hind another, the dead and not the living would rule. Since conditions change and men change, there must be opportunity for corresponding change in political institutions, and also for a renewal of the principle of government by consent of the governed.” According to President Wilson, “a Constitution must of necessity be a vehicle of life; that its substance is the thought and habit of the nation and as such it must grow and develop as the life of the nation changes.

2193. In support of his argument on implied limitations, learned Counsel for the petitioner drew our attention to certain decisions on the theory of immunity of instrumentalities : The means and instrumentalities of the State Governments should be left free and unimpaired. Our Court rejected this theory in State of West Bengal v. Union of India [1964] 1 S.C.R. 394, 407. Sinha C.J. observed that the argument presented before the Court was : “a resucitation of the new exploded doctrine of the immunity of instrumentalities which originating from the observations of Marshall C.J. in Mc. Culloch v. Maryland has been decisively rejected by the Privy Council…and has been practically given up even in the United States.” The doctrine originally arose out of supposed existence of an implied prohibition that the Federal and State Governments being sovereign and independent must each be free from the control of the other. Dr. Wynes observes in his book : “Legislative, Executive and Judicial Powers in Australia (4th Edition)” that the doctrine has undergone considerable change in the United States and its progressive retreat is traced by Dixon J. in the Essendon Corporation case [1947] HCA 15; [1947] 74 C.L.R. 1, p. 19. In that case, after tracing the history of the doctrine since its enunciation by Chief Justice Marshall, Dixon J. says : “I think that the abandonment by the Supreme Court of the United States of the old doctrine may be fairly said to be now complete.

2194. A large number of cases bearing on inherent or implied limitations were cited to us from U.S.A. Canada, Australia, South-Africa and Ceylon. Having considered those cases carefully, I find it difficult to say that the theory of implied or inherent limitations has received a wide recognition. In McCawley v. R. [1920] UKPCHCA 1; [1920] A.C. 691, 28 C.L.R. 106 the dissenting judgment of Isaacs and Rich JJ. in the Australian High Court was upheld by the Privy Council, except in regard to a matter which is here not relevant. The judgment of the two learned Judges which received high praise from the Privy Council (p. 112 of Commonwealth Law Reports), shows that implications in limitation of power ought not to be imported from general concepts but only from express or necessarily implied limitations. It also shows that in granting powers to colonial legislatures, the British Parliament, as far back as 1865, refused to place on such powers limitations of vague character. The decision of the Privy Council in Bribery Commissioner v. Ranasinghe [1964] UKPC 1; 1965 A.C. 172 was discussed before us in great details by both the sides. The matter arose under the Constitution of Ceylon, of which the material provisions bear a near parallel to our Constitution, a fact which, with respect, was not noticed in the judgment of the leading” majority in the Golak Nath case. It was not argued by the respondents in Ranasinghe’s case that any provision of the Ceylonese Constitution was unamendable. It is also necessary to remember that the appeal did not raise any question regarding the religious rights protected by Section 29(2) and (3) of the Ceylonese Constitution. It is clear that counsel for the respondents there stated (p. 187), that there was no limitation on the power of amendment except the procedure prescribed by Section 29(4), and that even that limitation could be removed by an amendment complying with Section 29(4). The Privy Council affirmed this position (page 198) and took the widest view of the amending power. A narrower view was in fact not argued.

2195. From out of the decisions of the American Supreme Court, it would be sufficient to notice three : Rhode Island v. Palmer 64 L. ed. 946; U.S. v. Sprague 75 L. ed. 640 and Schneiderman v. U.S.A. 87 L. ed. 1796.

2196. In the Rhode Island case, the leading majority judgment gave no reasons but only a summary statement of its conclusions. The learned Advocate-General of Maharashtra has, however, supplied to us the full briefs filed by the various counsel therein. The briefs show that the 18th amendment regarding “Prohibition of Intoxicating Liquors” (which was repealed subsequently by the 21st Amendment) was challenged on the ground, inter alia, that there were implied and inherent limitations on the power of amendment under Article V of the American Constitution. These arguments were not accepted by the Supreme Court, as is implicit in its decision. The court upheld the Amendment.

2197. We were supplied with a copy of the judgment of the District Court of New Jersey in Sprague’s case. The District Court declared the 18th Amendment void on the ground that there were inherent limitations on the amending power in that, the power had to conform to “theories of political science, sociology, economics etc.” The judgment of the Supreme Court shows that not even an attempt was made to support the judgment of the District Court on the ground of inherent limitations. The appeal was fought and lost by Sprague on entirely different grounds, namely : whether ‘amendment’ means ‘improvement’; whether the 10th Amendment had an impact on Article 5 of the U.S.

Constitution and whether the alternative of ratification by Convention or Legislatures showed that the method of Convention was essential for valid ratification when the amendment affected the rights of the people. Obviously, the Supreme Court saw no merit in the theoretical limitations which the District Court had accepted for, in a matter of such grave importance, it would not have reversed the District Court judgment if it could be upheld on the ground on which it was founded.

2198. In Schneiderman’s case, action was taken by the Government to cancel the appellant’s naturalisation certificate on the ground that at the time of applying for naturalisation, he was and still continued to be a communist and thereby he had misrepresented that he was “attached to the principles of the Constitution of the United States”.

2199. Schneiderman won his appeal in the Supreme Court, the main foundation of the judgment being that the fundamental principles of Constitution were open to amendment by a lawful process.

2200. Leading Constitutional writers have taken the view that the American Supreme Court has not ever accepted the argument that there are implied or inherent limitations on the amending power contained in Article 5. Edward S. Corwin, who was invited by the Legislative Reference Service, Library of Congress, U.S.A., to write on the American Constitution, says after considering the challenges made to the 18th and 19th Amendments on the ground of inherent limitations : “brushing aside these arguments as unworthy of serious attention, the Supreme Court held both amendments valid Constitution of the United States of America prepared by Edward S. Corwin, 1953, p.

712.”. According to Thomas M. Cooley, there is no limit to the power of amendment beyond the one contained in Article 5, that no State shall be deprived of its equal suffrage in the Senate without its consent. The author says that this, at any rate, is the result of the decision of the so-called National Prohibition Cases (which include the Rhode Island case). The decision, according to Cooley, 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 The General Principles of Constitutional Law in the U.S.A. by Thomas M. Cooley, 4th Edn., pp. 46-47. According to Henry Rottschaefer, it was contended on several occasions that the power of amending the Federal Constitution was subject to express or implied limitations, “but the Supreme Court has thus far rejected every such claim Handbook of American Constitutional Law by Henry Rottschaefer, pp. 8-10”.

2201. In regard to the Canadian cases, it would, I think, be enough to say that none of the cases cited by the petitioner concerns the exercise of the power to amend the Constitution. They are cases on the legislative competence of the provincial legislatures in regard to individual freedoms or in regard to criminal matters. The issue in most of these cases was whether the provincial legislature had transgressed on the Dominion field in exercise of its powers under Section 92 of the British North America Act, 1867. The Canadian Bill of Rights, 1960, makes the rights incorporated in the Bill defeasible by an express declaration that an Act of Parliament shall operate notwithstanding the Bill of Rights. At least six different views have been propounded in Canada on the fundamental importance of these rights. According to Schmeiser, the Supreme Court of Canada has not given judicial approval to any of these views. “It should also be noted that the fundamental problem is not whether Parliament or the Legislatures may give us our basic freedoms but rather which one may interfere with them or take they away Civil Liberties in Canada by Schmeiser, p. 13”. I do not think therefore, that any useful purpose will be served by spending time on Hess’s case (4, D.L.R. 199); Saumur’s case (4, D.L.R. 641);

Switzman’s case (7, D.L.R. (2nd) 337); or Chabot’s case (12, D.L.R. (2nd) 796), which were cited before us.

2202. The view that there are implied limitations found from Sections 17 and 50 of the British North America Act was invoked by Duff C.J. in the Alberta Press Case [1938] S.C.R. 100, 146 (Canada) and by three learned Judges in the Saumur Case. It is, however, important that while denying legislative competence to the province of Alberta Duff C.J.

was willing to grant the jurisdiction to the Parliament to legislate for the protection of this right.

2203. The petitioner has relied strongly upon the decision in Attorney-General of Nova Scotia v. Attorney-General of Canada [1951] S.C.R. 31 (Canada) but the true ratio of that decision is that neither the federal nor the provincial bodies possess any portion of the powers respectively vested in the other and they cannot receive those powers by delegation. The decision in Chabot v. School Commissioners [1947] 12 D.L.R. (No. 2) 796 is of the Quebec Court of Appeal, in which Casey J. observed that the religious rights find their existence in the very nature of man; they cannot be taken away. This view has not been shared by any judge of the Supreme Court and would appear to be in conflict with the decision in Henry Briks & Sons v. Montreal [1955] S.C.R. 799 (Canada)(3).

2204. I do not think that any useful purpose will be served by discussing the large number of decisions of other foreign courts cited before us. As it is often said, a Constitution is a living organism and there can be no doubt that a Constitution is evolved to suit the history and genius of the nation. Therefore, I will only make a brief reference to a few important decisions.

2205. Ryan’s [1935] Irish Reports 170 case created a near sensation and was thought to cover the important points arising before us. The High Court of Ireland upheld the amendment made by the Oireachtas, by deleting Article 47 of the Constitution which contained the provision for referendum, and which also incorporated an amendment in Article 50. This latter article conferred power on the Oireachtas to make amendments to the Constitution within the terms of the Scheduled Treaty. An amendment made after the expiration of a period of 8 years from the promulgation of the Constitution was required to be submitted to a referendum of the people. The period of 8 years was enlarged by the amendment into 16 years. The High Court of Ireland upheld the amendment and so did the Supreme Court, by a majority of 2 to 1. Kennedy C.J. delivered a dissenting judgment striking down the amendment on the ground that there were implied limitations on the power of amendment An important point of distinction between our Constitution and the Irish Constitution is that whereas Article 50 did not contain any power to amend that article itself, Article 368 of our Constitution confers an express power by Clause (e) of the Proviso to amend that article. The reasoning of the learned Chief Justice therefore loses relevance in the present case. I might mention that in Moore v. Attorney General for the Irish State [1935] A.C. 484 in which a Constitutional amendment made in 1933 was challenged, it was conceded before the Privy Council that the amendment which was under fire in Ryan’s case was validly made. The Privy Council added to the concession the weight of its own opinion by saying that the concession was made ‘rightly’.

2206. Several Australian decisions were relied upon by the petitioner but I will refer to the one which was cited by the petitioner’s counsel during the course of his reply; Taylor v. Attorney General of Queens-land [1917] HCA 45; 23 C.L.R. 457. The observations of Isaacs J. on which the learned Counsel relies seem to me to have been made in the context of the provisions of the Colonial Laws Validity Act. The real meaning of those observations is that when power is granted to a colonial legislature to alter the Constitution, it must be assumed that the power did no comprehend the right to eliminate the Crown as a part of the colonial legislature. It may be mentioned that well-known Constitutional writers A.P.

Canaway, K.C. : “The Safety Valve of the Commonwealth Constitution”, Australian Law Journal, Vol. 12, (1938-39), p. 108 at 109; W. Anstey Wynes : “Legislative, Executive and Judicial Powers in Australia”, 4th Edn., Chapter XVII, p. 507 have expressed the view that all the provisions of the Australian Constitution, including Article 128 itself which confers power to amend the Constitution, are within the power of amendment.

This view has been taken even though Article 128 does not confer express power to amend that article itself.

2207. While winding up this discussion of authorities, it is necessary to refer to the decision of the Privy Council in Livange v. the Queen (1967) 1 A.C. 259 in which it was held that the powers of the Ceylon legislature could not be cut down by reference to vague and uncertain expressions like ‘fundamental principles of British law’.

2208. It must follow from what precedes that The Constitution (Twenty-fourth Amendment) Act, 1971 is valid. I have taken the view that Constitutional amendments made under Article 368 fell outside the purview of Article 13(2). Section 2 of the 24th Amendment Act reiterates this position by adding a new Clause (4) in Article 13 : “(4) Nothing in this article shall apply to any amendment of this Constitution made under Article 368.” I have also taken the view that the old Article 368 not only prescribed the procedure for amendment of the Constitution but conferred the power of amendment.

That position is made clear by Section 3 of the 24th Amendment which substitutes by Clause (a) a fully expressive marginal heading to Article 368. I have held that the power of amendment conferred by Article 368 was wide and untrammelled. Further, that Constitutional amendments are made in the exercise of constituent power and not in the exercise of ordinary law-making power. That position is reiterated by Clause (b) of Section 3. Clause (c) of Section 3 makes it obligatory for the President to give his assent to the bill for a Constitutional amendment. Rightly no arguments have been addressed on this innovation. Finally, Clause (d) of Section 3 of the 24th Amendment excludes the application of Article 13 to an amendment made under Article 368. As indicated in this judgment that was the correct interpretation of Articles 13 and 368.

2209. The Constitution (Twenty-fourth Amendment) Act, 1971, thus, merely clarifies what was the true law and must therefore be held valid.

The Twenty-Fifth Amendment 2210. The Constitution (Twenty-Fifth Amendment) Act, 1971, which came into force on April 20, 1972 consists of two effective sections : Sections 2 and 3. Section 2(a) substitutes a new Clause (2) for the original Clause (2) of Article 31 of the Constitution.

Under the original Article 31(2), no property could be acquired for a public purpose under any law unless it provided for compensation for the property taken possession of or acquired and either fixed the amount of the compensation, or specified the principles on which, and the manner in which, the compensation was to be determined and given. In the State of West Bengal v. Bela Banerjee [1953] INSC 81; [1954] S.C.R. 558, a unanimous Bench presided over by Patanjali Sastri C.J. held that the principles of compensation must ensure the payment of a just equivalent of what the owner was deprived of. The Constitution (Fourth Amendment) Act was passed on April 27, 1955 in order to meet that decision. By the Fourth Amendment, an addition was made to Article 31(2) providing that “…no such law shall be called in question in any court on the ground that the compensation provided by the law is not adequate.” The effect of the amendment was considered by this Court in P. Vajravelu Mudaliar v. Deputy Collector [1965] 1 S.C.R.

614. The Madras Legislature had passed an Act providing for the acquisition of lands for housing schemes and had laid down principles for fixing compensation different from those prescribed in the Land Acquisition Act, 1894. Delivering the judgment of the Court, Subba Rao J. held that the fact that Parliament used the same expressions, ‘compensation’ and ‘principles’ as were found in Article 31 before its Amendment, was a clear indication that it accepted the meaning given by this Court to those expressions in Bela Banerjee’s case. The Legislature, therefore, had to provide for a just equivalent of what the owner was deprived of or specify the principles for the purpose of ascertaining the just equivalent. The new clause added by the Fourth Amendment, excluding the jurisdiction of the Court to consider the adequacy of compensation, was interpreted to mean that neither the principles prescribing the ‘just equivalent’ nor the ‘just equivalent’ could be questioned by the court on the ground of the inadequacy of the compensation fixed or arrived at by the working of the principles. By applying this test, the Court upheld the principles of compensation fixed under the Madras Act as not contravening Article 31(2). The Act, however, was struck down under Article 14 on the ground that full compensation had still to be paid under a parallel Law : The Land Acquisition Act.

2211. In Union v. Metal Corporation, [1966] INSC 154; [1967] 1 S.C.R. 255 a Bench of two Judges consisting of Subba Rao C.J. and Shelat J. held that the law of acquisition in order to justify itself had to provide for the payment of a ‘just equivalent’ or lay down principles which will lead to that result. It is only if the principles laid down are relevant to the fixation of compensation and are not arbitrary that the adequacy of the resultant product could not be questioned in a court of law. It is evident that this decision marked a departure from the judgment in Vajravelu’s case.

2212. In the State of Gujarat v. Shantilal Mangaldas [1969] INSC 8; [1969] 3 S.C.R. 341 Shah J.

speaking for himself and three other learned Judges expressed his disagreement with the observations of Subba Rao C.J. in the Metal Corporation’s case and expressly over-ruled that decision. It was held that if the quantum of compensation was not liable to be challenged on the ground that it was not a just equivalent, the principles specified for determination of compensation could also not be challenged on the plea that the compensation determined by the application of those principles was not a just equivalent.

The learned Judge observed that this did not, however, mean that something fixed or determined by the application of specified principles which is illusory or can in no sense be regarded as compensation must be upheld by the Courts, for, to do so, would be to grant a charter of arbitraries, and permit a device to defeat the Constitutional guarantee.

Principles could, therefore, be challenged on the ground that they were irrelevant to the determination of compensation, but not on the ground that what was awarded as a result of the application of those principles was not just or fair compensation.

2213. In R.C. Cooper v. Union [1970] INSC 18; [1970] 3 S.C.R. 530, (the Bank Nationalisation case), the judgment in Shantilal Mangaldas’s case, was in substance overruled by a Bench of 11 Judges by a majority of 10 to 1. The majority referred to the meaning of compensation as an equivalent of the property expropriated. It was held that if the statute in providing for compensation devised a scheme for payment of compensation in the form of bonds and the present value of what was determined to be given was thereby substantially reduced, the statute impired the guarantee of compensation.

2214. This chain of decisions on the construction of Articles 31(2) introduced uncertainty in law and defeated to a large extent the clearly expressed intention of the amended Article 31(2) that a law providing for compensation shall not be called in question in any court on the ground that the compensation provided by it was not adequate. Shah J. in Shantilal Mangaldas [1969] S.C.R. 341 at 362, 363 case had observed with reference to the decision in Bela Banerjee’s case and Subodh Gopal’s [1953] INSC 85; [1954] S.C.R. 587 case that those decisions had raised more problems than they solved and that they placed serious obstacles in giving effect to the Directive Principles of State Policy incorporated in Article 39. Subba Rao J. had also observed in Vajravelu’s [1964] INSC 214; [1965] 1 S.C.R. 614, 626 case that if the intention of the Parliament was to enable the legislature to make a law without providing for compensation it would have used other expressions like, ‘price’, ‘consideration’, etc. This is what the Parliament has now done partially by substituting the word ‘amount’ for the word ‘compensation’ in the new Article 31(2).

2215. The provision in the newly added Clause 2B of Article 31 that nothing in Article 19(1)(f) shall affect any law referred to in Article 31(2) has been obviously incorporated because the Bank Nationalisation case overruled a long line of authorities which had consistently taken the view that Article 19(1)(f) and Article 31(2) were mutually exclusive so far as acquisition and requisition were concerned [See for example Gopalan’s case[1950] INSC 14; , 1950 S.C.R. 88; Chiranjit Lal Choudhury’s case[1950] INSC 38; , 1950 S.C.R. 869 at 919;

Sitabati Devi’s case, (1967) 2 S.C.R. 949; Shantilal Mangaldas’s case, 1969 S.C.R. 341;

and H.N. Rao’s case, 1969(2) S.C.R. 392].

2216. Learned Counsel appearing for the petitioner mounted a severe attack on the Twenty-Fifth Amendment, particularly on the provisions of Article 31C. He contends that Article 31C subverts seven essential features of the Constitution, and destroys ten Fundamental Rights, which are vital for the survival of democracy, the rule of law and integrity and unity of the Republic. Seven of these Fundamental Rights, according to the counsel are unconnected with property rights. The argument continues that Article 31C destroys the supremacy of the Constitution by giving a blank charter to Parliament and to all the State Legislatures to defy and ignore the Constitution; it subordinates the Fundamenal Rights to Directive Principles of State Policy, destroying thereby one of the foundations of the Constitution; it virtually abrogate the “manner and form” of amendment laid down in Article 368 by empowering the State Legislatures and the Parliament to take away important Fundamental Rights by an ordinary law passed by a simple majority; that it destroys by conclusiveness of the declaration the salient safeguard of judicial review and the right of enforcement of Fundamental Rights; and that, it enables the Legislatures, under the guise of giving effect to the Directive Principles, to take steps calculated to affect the position of religious, regional, linguistic, cultural and other minorities. Counsel complaints that the article abrogates not only the most cherished rights to personal liberty and freedom of speech but it also abrogates the right to equality before the law, which is the basic principle of Republicanism. By enacting Article 31C, the Parliament has resorted to the strange procedure of maintaining the Fundamental Rights unamended, but authorising the enactment of laws which are void as offending those rights, by validating them by a legal fiction that they shall not be deemed to be void. Today, Article 31 permits the enactment of laws in abrogation of Articles 14, 19 and 31, but what guarantee is there that tomorrow all the precious freedom will not be excepted from the range of laws passed under that article? Learned Counsel wound up his massive criticism against Article 31C by saying that the article is a monstrous outrage on the Constitution and its whole object and purpose is to legalise despotism.

2217. Having given a most anxious consideration to these arguments, I have come to the conclusion that though Article 31C is pregnant with possible mischief, it cannot, by the application of any of the well-recognised judicial tests be declared unConstitutional.

2218. For a proper understanding of the provisions of Article 31C, one must in the first place appreciate the full meaning and significance of Article 39(b) and (c) of the Constitution. Article 39 appears in Part IV of the Constitution, which lays down the Directive Principles of State Policy. The idea of Directive Principles was taken from Eire, which in turn had borrowed it from the Constitution of Republican Spain. These preceding examples, as said by Sir Ivor Jennings Some Characteristics of the Indian Constitution, 1953, 30-32, are significant because they came from countries whose peoples are predominantly Roman Catholic, “and the Roman Catholics are provided by their Church not only with a faith but also with a philosophy”. On matters of faith and philosophy-social or political-there always is a wide divergence of views and in fact Republican Spain witnessed a war on the heels of the enactment of its Constitution and in Eire, de Valera was openly accused of smuggling into the Constitution the pet policies of his own party. Articles 38 and 39 of our Constitution are principally based on Article 45 of the Constitution of Eire, which derives its authority from the Papal Bulls. Article 39 provides by Clause (b) that the State shall, in particular, direct its policy towards securing-“that the ownership and control of the material resources of the community are so distributed as best to subserve the common good”. Clause (c) of the article enjoins the State to direct its policy towards securing-“that the operation of the economic system does not result in the concentration of wealth and means of production to common detriment.” Article 31C has been introduced by the 25th Amendment in order to achieve the purpose set out in Article 39(b) and (c).

2219. I have stated in the earlier part of my judgment] that the Constitution accords a place of pride to Fundamental Rights and a place of permanence to the Directive Principles. I stand by what I have said. The Preamble of our Constitution recites that the aim of the Constitution is to constitute India into a Sovereign Democratic Republic and to secure to “all its citizens”, Justice-social, economic and political-liberty and equality.

Fundamental Rights which are conferred and guaranteed by Part III of the Constitution undoubtedly constitute the ark of the Constitution and without them a man’s reach will not exceed his grasp. But it cannot be overstressed that, the Directive Principles of State Policy are fundamental in the governance of the country. What is fundamental in the governance of the country cannot surely be less significant than what is fundamental in the life of an individual. That one is justiciable and the other not may show the intrinsic difficulties in making the latter enforceable through legal processes but that distinction does not bear on their relative importance. An equal right of men and women to an adequate means of livelihood; the right to obtain humane conditions of work ensuring a decent standard of life and full enjoyment of leisure; and raising the level of health and nutrition are not matters for compliance with the Writ of a Court. As I look at the provisions of Parts III and IV, I feel no doubt that the basic object of conferring freedoms on individuals is the ultimate achievement of the ideals sec out in Part IV. A circumspect use of the freedoms guaranteed by Part III is bound to subserve the common good but voluntary submission to restraints is a philosopher’s dream. Therefore, Article 37 enjoins the State to apply the Directive Principles in making laws. The freedom of a few have then to be abridged in order to ensure the freedom of all. It is in this sense that Parts III and IV, as said by Granwille Austin The Indian Constitution-Cornerstone of a Nation, Edn. 1966, together constitute “the conscience of the Constitution”. The Nation stands to- day at the cross-roads of history and exchanging the time-honoured place of the phrase, may I say that the Directive Principles of State Policy should not be permitted to become “a mere rope of sand”. If the State fails to create conditions in which the Fundamental freedoms could be enjoyed by all, the freedom of the few will be at the mercy of the many and then all freedoms will vanish. In order, therefore, to preserve their freedom, the privileged few must part with a portion of it.

2220. Turning first to the new Article 31(2), the substitution of the neutral expression “amount” for “compensation” still binds the Legislature to give to the owner a sum of money in cash or otherwise. The Legislature may either lay down principles for the determination of the amount or may itself fix the amount. There is, however, intrinsic evidence in Article 31(2) that it does not empower the State to confiscate or expropriate property. Not only does Article 31(2) not authorise the legislature to fix “such amount as it deems fit”, “in accordance with such principles as it considers relevant”, but it enjoins the legislature by express words either to fix an “amount” for being paid to the owner or to lay down “principles” for determining the amount to be paid to him. If it was desired to authorise the legislature to pass expropriatory laws under Article 31(2), nothing would have been easier for the Constituent Body than to provide that the State shall have the right to acquire property for a public purpose without payment of any kind or description.

The obligation to pay an “amount” does not connote the power not to pay any amount at all. The alternative obligation to evolve principles for determining the amount also shows that there is no choice not to pay. The choice open to the Legislature is that the amount may directly be fixed by and under the law itself or alternatively, the law may fix principles in accordance with which the amount will be determined. The amount may, of course, be paid in cash or otherwise.

2221. The specific obligation to pay an “amount” and in the alternative the use of the word “principles” for determination of that amount must mean that the amount fixed or determined to be paid cannot be illusory. If the right to property still finds a place in the Constitution, you cannot mock at the man and ridicule his right. You cannot tell him; “I will take your fortune for a farthing”.

2222. But this is subject to an important, a very important, qualification. The amount fixed for being paid to the owner is wholly beyond the pale of a challenge that it is inadequate. The concept of adequacy is directly co-related to the market value of the property and therefore such value cannot constitute an element of that challenge. By the same test and for similar reasons, the principles evolved for determining the amount cannot be questioned on the ground that by application of those principles the amount determined to be paid is inadequate, in the sense that it bears no reasonable relationship with the market value of the property. Thus the question whether the amount or the principles are within the permissible Constitutional limits must be determined without regard to the consideration whether they bear, a reasonable relationship with the market value of the property. They may not bear a reasonable relationship and yet they may be valid. But to say that an amount does not bear reasonable relationship with the market value is a different thing from saying that it bears no such relationship at all, none whatsoever. In the latter case the payment becomes illusory and may come within the ambit of permissible challenge.

2223. It is unnecessary to pursue this matter further because we are really concerned with the Constitutionality of the Amendment and not with the validity of a law passed under Article 31(2). If and when such a law comes before this Court it may become necessary to consider the matter closely. As at present advised, I am inclined to the view which as I have said is unnecessary to discuss fully, that though it is not open to the court to question a law under Article 31(2) on the ground that the amount fixed or determined is not adequate, courts would have the power to question such a law if the amount fixed thereunder is illusory; if the principles, if any are stated, for determining the amount are wholly irrelevant for fixation of the amount; if the power of compulsory acquisition or requisition is exercised for a collateral purpose; if the law offends Constitutional safeguards other than the one contained in Article 19(1)(f); or, if the law is in the nature of a fraud on the Constitution. I would only like to add, by way of explanation, that if the fixation of an amount is shown to depend upon principles bearing on social good it may not be possible to say that the principles are irrelevant.

2224. As regards the new Article 31(2B) I see no substance in the submission of the petitioner that the exclusion of challenge under Article 19(1)(f) to a law passed under Article 31(2) is bad as being in violation of the principles of natural justice. I have stated earlier that Constitutional amendments partake of the vitality of the Constitution itself, provided they are within the limits imposed by the Constitution. The exclusion of a challenge under Article 19(1)(f) in regard to a law passed under Article 31(2) cannot therefore be deemed unConstitutional. Besides, there is no reason to suppose that the legislature will act so arbitrarily as to authorise the acquisition or requisitioning of property without so much as complying with the rules of natural justice. Social good does not require that a man be condemned unheard.

2225. Article 31C presents a gordian knot. King Gordius of Phrygia had tied a knot which an oracle said would be undone only by the future master of Asia. Alexander the Great, failing to untie the knot, cut it with his sword. Such a quick and summary solutions of knotty problems is, alas, not open to a Judge. The article reads thus:

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.

2226. A misconception regarding the ambit of this article may first be removed. The article protects only “law” and not an executive action. The term ‘law’ is used in Article 13(3) in a wider sense, so as to include an Ordinance, order, bye-law, etc., but that definition is limited to the purposes of Article 13. Article 31C cannot therefore be said to violate the provisions of Article 31(1) under which no person can be deprived of his property save by authority of law. It is, however, not to be denied that the word ‘law’ in Article 31C may include all incidents and aspects of law-making.

2227. In order properly to understand the scope of Article 31C, it would be necessary to refer to the history of the allied provisions of the Constitution. Prior to the 4th Constitutional Amendment which came into force on April 27, 1915, Articles 31A and 31B which were introduced by the First Amendment Act, 1951 excluded wholly the provisions of Part III in regard to laws providing for the acquisition of any estate or of any rights therein. The reason of the rule was that the rights of society are paramount and must be placed above those of the individual.

2228. The language of Article 31C makes it clear that only such laws will receive its protection as are for giving effect to the policy of the State towards securing the principles specified in Article 39(b) or (c). Under Clause (b) the State has to direct its policy towards securing that the ownership and control of the material resources of the community are so distributed as best to subserve the common good. Under Clause (e) the State has to take steps towards securing that the operation of the economic systems does not result in the concentration of wealth and means of production to the common detriment. Apart from the declaration contained in the latter part of Article 31B it seems to me transparent that the nexus between a law passed under Article 31C and the objective set out in Article 39(b) and (c) is a condition precedent to the applicability of Article 31C. The declaration cannot be utilised as a cloak to protect laws bearing no relationship with the objective mentioned in the two clauses of Article 39.

2229. The objectives set out in Part IV of the Constitution were not limited in their application to agrarian reform. The 4th and 17th Amendments extended the basic principle underlying the First Amendment by introducing changes in Articles 31 and 31A and the Twenty-Fifth Amendment has taken one step further by extending the principle to a vaster field. Article 31C will operate substantially in the same way as Article 31A has operated in the agrarian sphere. In fact Article 31C is a logical extention of the principles underlying Article 31(4) and (6) and Article 31A.

2230. I find it difficult to accept the argument, so strongly pressed upon us, that Article 31C delegates the amending power to State Legislatures and empowers them to make amendments to the Constitution without complying with the form and manner prescribed by Article 368. I am also unable to appreciate that the article empowers the Parliament likewise. The true nature and character of Article 31C is that it identifies a class of legislation and exempts it from the operation of Articles 14, 19 and 31. Articles 31(4) and (6) identified laws in reference to the period of their enactment. Articles 31(2) and 31A identified the legislative field with reference to the subject-matter of the law. Articles 15(4) and 33 identified laws with reference to the objective of the legislation. In this process no delegation of amending power is involved. Thus, these various provisions, like Article 31C, create a field exempt from the operation of some of the Fundamental Rights. The field of legislation is not created by Article 31C. The power to legislate exists apart from and indepedently of it. What the article achieves is to create an immunity against the operation of the specified Fundamental Rights in a pre-existing field of legislation. In principle, I see no distinction between Article 31C on the one hand and Articles 15(4), 31(4), 31(5)(b)(ii), and 31(6) on the other. I may also call attention to Article 31A introduced by the First Amendment Act, 1951 under which “Notwithstanding anything contained in Article 13”, no law providing for matters mentioned in Clauses (a) to (e) “shall be deemed to be void on the ground that it is inconsistent or takes away or abridges any of the rights conferred by Articles 14, 19 or

31. The fact that the five clauses of Article 31A referred to the subject-matter of the legislation whereas Article 31C refers to laws in relation to their object does not, in my opinion, make any difference in principle.

2231. The argument that Article 31C permits a blatant violation of the form and manner prescribed by Article 368 overlooks that the article took birth after a full and complete compliance with the form and manner spoken of in Article 368. Besides, implicit in the right to amend Article 368 is the power, by complying with the form and manner of Article 368, to authorise any other body to make the desired amendments to Constitutional provisions. The leading majority judgment in Golak Nath case and Hidayatullah J. thought of a somewhat similar expedient in suggesting that a Constituent Assembly could be convoked for abridging the Fundamental Rights. I do not see any distinction in principle between creating an authority like the Constituent Assembly with powers to amend the Constitution and authorising some other named authority or authorities to exercise the same power. This aspect of the matter does not, however, arise for further consideration, because Article 31C does not delegate the power to amend.

2232. The latter part of Article 31C presents to me no difficulty: “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.” Clearly, this does not exclude the jurisdiction of the court to determine whether the law is for giving effect to the policy of the State towards securing the principles specified in Article 39(b) or (c).

Laws passed under Article 31C, can, in my opinion, be upheld only, and only if, there is a direct and reasonable nexus between the law and the Directive Policy of the State expressed in Article 39(b) or (c). The law cannot be called in question on the ground that it does not give effect to such policy but I suppose no court can ever take upon itself the task of finding out whether a Jaw in fact gives effect to its true policy. If such a latitude were open to the Judges, laws of Prohibition and Gambling should have lost their place on the statute booklong since.

2233. In my opinion, therefore, Section 3 of the Twenty-Fifth Amendment, which introduces Article 31C, is valid.

THE CONSTITUTION (TWENTY-NINTH AMENDMENT)

ACT, 1972.

2234. In regard to the inclusion of the two Kerala Acts, (Act 33 of 1969 and Act 25 of 1971) in the Ninth Schedule by the Twenty-Ninth Amendment, it is urged by the petitioner’s counsel that if the provisions of the two Acts do not fall within the terms of 31A(1)(a), the Acts will not get the protection of Article 31B.

2235. The validity of Article 31B has been accepted in a series of decisions of this Court and I suppose it is too late in the day to re-open that question; nor indeed did the learned Counsel for the petitioner challenge the validity of that article. In State of Bihar v.

Kameshwar Singh [1952] S.C.R. 889, a similar contention was considered and rejected by Patanjali Sastri C.J., who spoke for the Court. The same view was reiterated in Visweshwar Rao v. The State of Madhya Pradesh [1952] S.C.R. 1020 by Mahajan J. The argument fell to be considered once again in N.B. Jeejeebhoy v. Assistant Collector, Thana, Prant, Thana [1964] INSC 213; [1965] 1 S.C.R. 636, but Subba Rao J. confirmed the view taken in the earlier cases. These cases have consistently held that the opening words of Article 31B: “without prejudice to the generality of the provisions contained in Article 31A” only indicate that the Acts and Regulations specified in the Ninth Schedule would obtain immunity even if they did not attract Article 31A. If every Act in the Ninth Schedule has to be covered by Article 31A, Article 31B would become redundant. Article 31B was, therefore, held not to be governed by Article 31A. The Twenty-Ninth Amendment must, accordingly be held to be valid.

2236. Debates of the Constituent Assembly and of the First Provisional Parliament were extensively read out to us during the course of arguments. I read the speeches with interest, but in my opinion, the debates are not admissible as aids to construction of Constitutional provisions. In Gopalan’s case [1950] INSC 14; [1950] 1 S.C.R. 88, 110, Kania C.J., following the decisions in The Municipal Council of Sydney v. The Commonwealth [1904] 1 Com. L.R. 208 and United States v. Wong Kim Ark [169] U.S. 649, 699, observed that while it is not proper to take into consideration the individual opinions of Members of Parliament to construe the meaning of a particular clause, a reference to the debates may be permitted when a question is raised whether a certain phrase or expression was up for consideration at all or not. According to Mukherjea J. (p. 274), the debates of the Constituent Assembly are of doubtful value as an aid to discover the meaning of the words in a Constitution. The learned Judge said that a resort can be had to the debates with great caution and only when latent ambiguities are to be resolved. A similar view was expressed by this Court in State of Travancore, Cochin and Anr. v.

Bombay Co. Limited [1952] S.C.R. 113. In the Golak Golak Nath case, Subba Rao C.J.

clarified that he had not referred to the speeches made in the Constituent Assembly for the purpose of interpreting the provisions of Article 368. Bachawat J. also took the same view.

2237. It was urged by the learned Advocate-General of Maharashtra that there is a noticeable change in the attitude of this Court to parliamentary debates since the decision in Gopalan’s case and that the most pronounced trend manifested itself first in Golak Nath’s case and then decisively in the Privy Purse case [1970] INSC 253; [1971] 3 S.C.R. 9, 83. The practice followed in the Privy Purse case is said to have been adopted both by the majority and the minority in Union of India v. H.S. Dillon [1971] 2 S.C.R., 779, 784, 829-30.

2238. I am unable to agree that any reliance was placed in the Privy Purse case or in Dillon’s case on parliamentary speeches, for the purpose of interpreting the legal provisions. Shah J., in the Privy Purse case, referred to the speech of Sardar Vallabhbhai Patel in order to show the circumstances in which certain guarantees were given to the former Rulers. The Advocate-General is right that Mitter J. made use of a speech for construing Article 363, but that was done without discussing the question as regards the admissibility of the speech. In Dillon’s case, it is clear from the judgment of the learned Chief Justice, that no use was made of the speeches in the Constituent Assembly for construing any legal provision. In fact, the learned Chief Justice observed that he was glad to find from the debates that the interpretation which he and two his colleagues had put on the legal provision accorded with what was intended.

2239. It is hazardous to rely upon parliamentary debates as aids to statutory construction.

Different speakers have different motives and the system of ‘Party Whip’ leaves no warrant for assuming that those who voted but did not speak were of identical persuasion.

That assumption may be difficult to make even in regard to those who speak. The safest course is to gather the intention of the legislature from language it uses. Therefore, parliamentary proceedings can be used only for a limited purpose as explained in Gopalan’s case.

2240. Before summarising my conclusions, let me say that it is with the greatest deference and not without hesitation that I have decided to differ from the eminent Judges who constituted the majority in the Golak Nath case. Two of them still adorn this Bench and to them as to the other learned Brothers of this Bench with whom it has not been possible to agree, I say that it has been no pleasure to differ from them, after being with some of them for a part of the time, on a part of the case. Their concern for common weal, I guess, is no less than mine and so let me express the hope that this long debate and these long opinions will serve to secure at least one blessing-the welfare of the common man. We are all conscious that this vast country has vast problems and it is not easy to realise the dream of the Father of the Nation to wipe every tear from every eye.

But, if despite the large powers now conceded to the Parliament, the social objectives are going to be a dustbin of sentiments, then woe betide those in whom the country has placed such massive faith.

2241. My conclusions are briefly these:

2242. The decision of the leading majority in the Golak Nath case that the then Article 368 of the Constitution merely prescribed the procedure for amendment of the Constitution and that the power of amendment had to be traced to Entry 97 of List I, Schedule VII read with Articles 245, 246 and 248 is not correct.

2243. The decision of the leading majority and of Hidayatullah J. that there is no distinction between an ordinary law and a law amending the Constitution is incorrect.

Article 13(2) took in only ordinary laws, not amendments to the Constitution effected under Article 368.

2244. The decision of the leading majority and of Hidayatullah J. that Parliament had no power to amend the Constitution so as to abrogate or take away Fundamental Rights is incorrect.

2245. The power of amendment of the Constitution conferred by the then Article 368 was wide and unfettered. It reached every part and provision of the Constitution.

2246. Preamble is a part of the Constitution and is not outside the reach of the amending power under Article 368.

2247. There are no inherent limitations on the amending power in the sense that the Amending Body lacks the power to make amendments so as to damage or destroy the essential features or the fundamental principles of the Constitution.

2248. The 24th Amendment only declares the true legal position as it obtained before that Amendment and is valid.

2249. Section 2(a) and Section 2(b) of the 25th Amendment are valid. Though courts have no power to question a law described in Article 31(2) substituted by Section 2(a) of the Amendment Act, OP the ground that the amount fixed or determined for compulsory acquisition or requisition is not adequate or that the whole or any part of such amount is to be given otherwise than in cash, courts have the power to question such a law if (i) the amount fixed is illusory; or (ii) if the principles, if any are stated, for determining the amount are wholly irrelevant for fixation of the amount; or (iii) if the power of compulsory acquisition or requisition is exercised for a collateral purpose; or (iv) if the law of compulsory acquisition or requisition offends the principles of Constitution other than the one which is expressly excepted under Article 31(2B) introduced by Section 2(b) of the 25th Amendment Act – namely Article 19(1)(f); or (v) if the law is in the nature of a fraud on the Constitution.

2250. Section 3 of the 25th Amendment which introduced Article 31C into the Constitution is valid. In spite, however, of the purported conclusiveness of the declaration therein mentioned, the Court has the power and the jurisdiction to ascertain whether the law is for giving effect to the policy of the State towards securing the principles specified in Article 39(b) or (c). If there is no direct and reasonable nexus between such a law and the provisions of Article 39(b) or (c), the law will not, as stated in Article 31C, receive immunity from a challenge under Articles 14, 19 or 31.

2251. The 29th Amendment Act is valid. The two Kerala Acts mentioned therein, having been included in the Ninth Schedule, are entitled to the protection of Article 31B of the Constitution.

2252. I would direct each party to bear its own costs.

2253. As I am coming to the close of my judgment, drafts of judgments of several of my esteemed colleagues are trickling in. As I look at them, I hear a faint whiser of Lord Dunedin. And then I thought : I began this judgment by saying that I wanted to avoid writing a separate judgment of my own. Are first thoughts best? ORDER

2263. The Constitution Bench will determine the validity of the Constitution (Twenty- sixth Amendment) Act, 1971 in accordance with law.

2264. The cases are remitted to the Constitution Bench for disposal in accordance with law. There will be no order as to costs incurred upto this stage.

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