IN SUPREME COURT OF INDIA
PREM CHAND …PETITIONER
Vs.
UNION OF INDIA AND ORS. …RESPONDENT
DATE OF JUDGMENT: 11/11/1980
BENCH: KRISHNAIYER, V.R. PATHAK, R.S. REDDY, O. CHINNAPPA (J)
CITATION: 1981 AIR 613 1981 SCR (1)1262 1981 SCC (1) 639

ACT:
Delhi Police Act, 1978-Sections 47 and 50-Scope ofAllegations made in externment order vague-order if validorder should be passed only when there is clear and present danger based on credible material

^
HELD: The Delhi Police Act permits externment provided the action is bona fide. All power, including police power, must be informed by fairness, if it is to survice judicial scrutiny. Mala fides is fatal if it is made out. [1164 D-E]

Sections 47 and 50 of the Act have to be read strictly; any police apprehension is not enough; some ground or other is not adequate; there must be a clear and present danger based upon credible material which makes the movements and acts of the person in question alarming or dangerous or fraught with violence. Like-wise there must be sufficient reason to believe that the person proceeded against is so dangerous that his mere presence in Delhi or any part thereof is hazardous to the community and its safety. A stringent test must be applied by Courts in order that this power is not abused to the detriment of the citizen Natural justice must be fairly complied with and vague allegations such as those levelled against the petitioner and secret hearings are gross violations of Articles 14, 19 and 21. [1267 G-H,

JUDGMENT:

ORIGINAL JURISDICTION: Writ Petition No. 3050 of 1980.
(Under Article 32 of the Constitution)
A. S. Sohal and M. C. Dhingra for the Petitioner.

M. M. Abdul Khader, N. Nettar and M. N. Shroff for the Respondents.

The Judgment of the Court was delivered by

KRISHNA IYER, J.- Who will police the police ? Is freedom of movement unreasonably fettered if policemen are given power of externment for public peace? These twin problems of disturbing import, thrown up by this bizarre case, deserve serious examination. The former is as important as the latter, especially when we view it in the strange police setting painted by the petitioner. The constitutional question, which we will state presently and discuss briefly, has become largely otiose so far as the present petitioner is concerned because counsel for the State has assured the court that they will drop police surveillance or any action by way of externment as proposed earlier. The police methodology, with sinister potential to human liberty described by the petitioner, if true, deserves strong disapproval and constitutional counter-action by this Court. But before committing ourselves to any course, we must set out the factual matrix from which the present case springs.

The statutory starting point of the criminal saga of Shri Prem Chand Paniwala, the petitioner, now threatened with externment proceedings, is the Delhi Police Act 1978. Sections 47 and 50 of the said Act clothe the Commissioner of Police with externment powers necessary for keeping the capital city crime-free. One such power relates to the removal of persons about to commit offences.

The procedural prescriptions and substantive directions, in this behalf, are laid down in the above provisions. The Deputy Commissioner of Police (the DCP for short) in exercise of the said power, initiated proceedings against the petitioner and directed him to show cause why he should not be externed from the Union Territory of Delhi. Paniwala who, from humble beginning as vendor of aerated water near a cinema theatre, had spiralled up into a prosperous dealer in Vasant Vihar, when confronted by this Police notice, decided upon a constitutional show-down and came to this Court challenging the vires of the externment proceedings as arbitrary and unreasonable restrictions of his freedom of movement and, therefore, contrary to Arts. 14 and 19 and 21 of the Constitution.

The validity of the action, assuming the vires of the Act, involves also a consideration of the mala fides imputed by the petitioner to the DCP. The blow of deportation may fall heavy on his fundamental rights admits of no doubt. A flourishing businessman, happy with his wife and children, and settled in a comfortable locality in Delhi, if transported traumatically outside the Union Territory would surely suffer not merely financial mayhem, but also social, domestic and physical deprivation virtually amounting to economic harakiri an psychic distress. Nevertheless, the Act permits externment, provided the action is bona fide. All power, including police power, must be informed by fairness if it is to survive judicial scrutiny. Cases are legion which leave one ill no doubt that mala fides is fatal, if it is made out. From this angle, Prem Chand Paniwala has turned the focus on police malpractice vis-a-vis his own career; and even if a fragment of what he has said be true, the higher officers of the Delhi Police will need to look into the goings on at the lower level. Here comes the relevance of autobiographical revelations made by the petitioner in more than one affidavit.

Certain facts emerge as fairly probable from the affidavits of both sides. Prem Chand made a living as a paniwala or vendor of soft drinks near Delite Cinema even as a teenager, which shows that he had very poor beginnings. How did he fall into the thraldom of the local police? He explains it in his affidavit:

“He had a few mobile carts which were used for refrigerating water. These carts used to be parked by the petitioner on the road side due to the indulgence of the police. He was in his teens when he started his avocation and continued for a very long time. Thus, he acquired an alias i.e. Prem Chand Paniwala. Due to close association with Police and their connivance and indulgence, the petitioner thrived. In this process, the petitioner became a prey and pawn in the hands of the police. He was persuaded to be their perpetual stooge and stock witness.

The Petitioner in the year 1965, when he was 25 years old was involved in a gambling case by the police and to mould him a permanent stock witness and lest he should be militant to defy them. Despite his hesitation and unwillingness he was forced to become a permanent pawn of the police. This is how, the petitioner landed himself in the web of the police; he had no alternative than to be like that as his livelihood was dependent upon the mercy and indulgence of the police”.

The version of the petitioner is that once he yielded to the pressure of the Police to give false testimony disclosing a rubberised conscience and unveracious readiness to forswear himself, there was escalation of demands upon him and he became a regular pedlar of perjury “on police service”. Indeed, counsel for the petitioner argued that his client was a ’stock witness’ because he had to keep the Police in good humour and obliged them with tailored testimony in around 3,000 cases because the alternative was police wrath. We were flabbergasted at this bizarre confession but to lend credence to his assertion counsel produced a Few hundred summonses where the petitioner was cited as a witness. Were he not omnipresent how could he testify in so many cases save by a versatile genius for loyal unveracity? For sure, the consternation of the community at this flood of perjury will shake its faith in the veracity of Police investigation and the validity of the judicial verdict. We have no doubt that the petitioner, who has given particulars of a large number of cases where he had been cited as witness, is speaking the truth even assuming that 3,000 cases may be an exaggeration. In Justice, Justices and Justicing and likewise in the Police and Policing, the peril to the judicial process is best left to imagination if professional perjurers like the self-confessed Paniwala are kept captive by the Police, to P be pressed into service for proving “cases”. Courts, trusting the Police may act on apparently veracious testimony and sentence people into prison. The community, satisfied with such convictions, may well believe that all is well with law and order. We condemn, in the strongest terms, the systematic pollution of the judicial process and the consequent threat to human rights of innocent persons. We hope that the higher authorities in the Department who, apparently, are not aware of the nefarious goings-on at the lesser levels will immediately take measures to stamp out this unscrupulous menace.

The reason why the petitioner has divulged his role as professional perjurer for the Police is simple and credible, at this price, the favours of the Police who allowed him to carry on his soft drinks business on the public street near a cinema house, not otherwise permissible under the law. The Police blinked at the breach, the petitioner made good profits and by this mutual benefit pact, the prosecution got readymade evidence and Paniwala joined the nouveu riche. He became respectable when he became rich and when he became respectable he became reluctant to play ’stock witness’. For “the more things a man is ashamed of the more respectable he is” (Bernard Shaw). Whenever he resisted the demand for giving false evidence the Police implicated him in some case or other and when he yielded, the case was allowed to lapse. Indeed, it is surprising that the petitioner himself admits that he was “dubbed as a stock-witness and often disbelieved by the courts. Despite severe strictures passed by the courts, the Police did not give him up.” Various details are furnished by the petitioner about his deposing on prosecutions for the survival of his business. In the bargain, the petitioner acquired two houses in important localities and built up a lucrative fruit juice business. There are more uncomplimentary revelations made in the petition but we do not think it necessary to set them out. However, the crisis came when he declined to oblige with perjury since he felt his wealthy station in life and the character-building stage of his children warranted giving up the profession of stock- witness. The Police avenged themselves by initiating externment which would inflict mortal economic injury, if carried out. This version of the petitioner has been, in a way, denied. It is also true that the Assistant Commissioner, in his affidavit in reply, has indicated that witnesses have been examined in support and in opposition of the allegations justifying externment and a final order has been made by the DCP directing the petitioner “to show good conduct for a period of three months only”. It is also stated that the witnesses were examined in camera, that the DCP had consideration for the materials placed before him “including education of his children etc. and the assurance given by him”. An intelligent reading of the affidavit of the Assistant Commissioner, along with the vagueness in his denials regarding material particulars in the petitioner’s affidavits, leave us in grave doubt about the validity of the Police proceedings.

It is significant to notice that among the allegations against the petitioner are such vague statements as your activities in the area of Police Station Connaught Place and other area adjoining to the Police Station Connaught Place are causing and are calculated to cause harm, alarm and danger to the residents of the said localities and areas. While we do not delve into details, it is useful to mention that the Police allegations are again vague in respect of the remaining imputations namely:

“That you keep knife with you for unlawful purpose and threaten the persons residing in the area with dire consequences and further deter them from making report to police.
That you have engaged yourself in commission of offences against person and property attended with force and violence for which the following cases were registered against you by the Police.. “.

The petitioner’s reply affidavit makes startling disclosures about the police methods of implicating innocent people. However, the version of the petitioner can hardly be swallowed since he is a self-confessed perjurer.

Nevertheless, it is not too much to ask Government to take effective measures to prevent Police methods straying into vice. We hopefully remind the State about what Justice Brandieis once observed :

“Crime is contagious. If the government becomes a law breaker, it breeds contempt for law.” .. “TO declare that in the administration of the criminal law the end justifies the means -to declare that the government may commit crimes in order to secure the conviction of a private criminal-would bring terrible retribution. Against that pernicious doctrine this court must resolutely set its face.”

In the same American decision we have just mentioned Justice Holmes observed; “We have to choose, and for my part I think it a less evil that some criminals should escape than that the Government should play an ignoble part.”

The provisions of the statute ostensibly have a benign purpose and in the context of escalation of crime, may be restrictions which, in normal times might appear unreasonable, may have to be clamped down on individuals. We are conscious of the difficulties of detection and proof and the strain on the police in tracking down criminals. But fundamental rights are fundamental and personal liberty cannot be put at the mercy of the Police. Therefore, Ss. 47 and 50 have to be read strictly. Any police apprehension is not enough. Some ground or other is not adequate. There must be a clear and present danger based upon credible material which makes the movements and acts of the person in question alarming or dangerous or fraught with violence. Likewise, there must be sufficient reason to believe that the person proceeded against is so desperate and dangerous that his mere presence in Delhi or any part thereof is hazardous to the community and its safety. We are clear that the easy possibility of abuse of this power to the detriment of the fundamental freedoms of the citizen persuades us to insist that a stringent test must be applied. We are further clear that natural justice must be fairly complied with and vague allegations and secret hearings are gross violations of Art. 14, 19 and 21 of the Constitution as expounded by this Court in Maneka Gandhi. We do not go deep into this question for two reasons: there is another petition where the constitutionality of these identical provisions is in issue. Secondly, the counsel for the State has fairly conceded that no action will now be taken even by way of surveillance against the petitioner. In an age when electronic surveillance and mid-night rappings at the door of ordinary citizens remind us of despotic omens, we have to look at the problem as fraught with peril to constitutional values and not with lexical Laxity or literal liberality.

Having made these observations, we leave the question of vires open for final investigation, if necessary, in other cases pending before this Court. We think counsel for the State was right in representing that no further action would be taken against the petitioner. We dispose of the petition as calling no longer for directions but emphasise the need of the State to issue clear orders to the Police Department to free the processes of investigation and prosecution from the contamination of concoction through the expediency of stockpiling of stock-witnesses. To police persons who get rich quick by methods not easily or licitly understandable, is perhaps a social service. Among the list of wanted persons must be not only the poor suspects but the dubious rich. To keep an eye on their activities without close shadowing and surveillance may, perhaps, lead to criminal discoveries, if they are not too influential for the police. By this judgment what we mean is not to tell the Police to fold up their hands and remain inactive when antisocial elements suddenly grow in wealth but to be activist and intelligent enough to track down those who hold the nation’s health, wealth, peace and security in jeopardy. The only insistence is that the means must also be as good as the ends.

P.B.R. Petition allowed.

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IN THE SUPREME COURT OF INDIA
FERTILIZER CORPORATION KAMGAR UNION (REGD.), SINDRI ANDOTHER …PETITIONER
Vs.
UNION OF INDIA AND OTHERS …RESPONDENT
DATE OF JUDGMENT: 13/11/1980
BENCH: CHANDRACHUD, Y.V. ((CJ) BHAGWATI, P.N. KRISHNAIYER, V.R. FAZALALI, SYED MURTAZA KOSHAL, A.D.

CITATION:
1981 AIR 344 1981 SCR (2) 52
1981 SCC (1) 568

CITATOR INFO :
RF 1981 SC1722 (3)
R 1982 SC 149 (22,25,608,966)
F 1982 SC1107 (17,19)
MV 1983 SC 75 (46)
RF 1985 SC1147 (15)
R 1986 SC 157 (8,11)
1986 SC 847 (40)
R 1989 SC1988 (18)
RF 1991 SC1902 (36)

ACT: Constitution of India-Article 19(1)(g)-Sale of redundant/retired plants & equipment-Occupation of an industrial worker-Whether affected by such sale-Article 14- Whether violated-Article 43A-Wrongs committed by management in public sector whether can be remedied-Article 32-Access to Justice-Public Property dissipated by sale-When and by whom can the sale be set aside.

HELD (By the Court) The petitioners’ right under Art. 19(1)(g) to carry on their occupation as industrial workers was not affected by the sale, nor was their fundamental right, if any, under Article 14 of the Constitution violated. [60 A] (Per Chandrachud, C.J., Fazal Ali & Koshal, JJ.)

1. The violation of a fundamental right is the sine qua non of the exercise of the right conferred by Article 32.

53 The jurisdiction conferred on the Supreme Court by Article 32 is an important and integral part of the basic structure of the Constitution because it is meaningless to confer fundamental rights without providing an effective remedy for their enforcement, if and when they are violated.

A right without a remedy is a legal conundrum of a most grotesque kind. [59 E-F]

2. Whereas the right guaranteed by Article 32 can be exercised for the enforcement of fundamental rights only, the right conferred by Article 226 can be exercised not only for the enforcement of fundamental rights but for any other purpose. [59 E] 3(i). There is no substance in the grievance that the petitioners’ right under Article 19(1)(g) is violated or is in the imminent danger of being violated by the impugned sale, since not only did the sale not affect the employment of the workers employed in the Factory, but those of them who were rendered surplus from time to time on account of the closure of the plants were absorbed in alternate employment in the same complex. [60 C, F-G] (ii) The right of petitioners 3 and 4 and of the other workers is not, in any manner, affected by the impugned sale. The right to pursue a calling or to carry on an occupation is not the same thing as the right to work in a particular post under a contract of employment. If the workers are retrenched consequent upon and on account of the sale, it will be open to them to pursue their rights and remedies under the Industrial Laws. The closure of an establishment in which a workman is for the time being employed does not by itself infringe his fundamental right to carry on an occupation which is guaranteed by Article 19(1)(g) of the Constitution. [60 G-H, 61 A]

4. Article 19(1)(g) confers a broad and general right which is available to all persons to do work of any particular kind and of their choice. It does not confer the right to hold a particular job or to occupy a particular post of one’s choice. Even under Article 311 of the Constitution, the right to continue in service falls with the abolition of the post in which the person is working.

The workers in the instant case can no more complain of the infringement of their fundamental right under Article 19(1)(g) than can a Government servant complain of the termination of his employment on the abolition of his post.

The choice and freedom of the workers to work as industrial workers is not affected by the sale. The sale may at the highest affect their locum, but it does not affect their locus, to work as industrial workers. [61 B-D]

5. In the instant case, it is quite difficult to hold that the decision to sell the plants and equipment of the Factory was arbitrary, unreasonable or mala fide. The real drive of the petition is against the decision of the Board to sell the plants and equipment. It is that decision which is stated to furnish the cause to complain of the violation of the right conferred by Article 14, fairness, justness and reasonableness being its implicit assumptions. [64 D-F]

6. As far as possible, sales of public property, when the intention is to get the best price, ought to take place publicly. The vendors are not necessarily bound to accept the highest or any other offer, but the public at least gets the satisfaction that the Government has put all its cards on the table. One cannot exclude the possibility here that a better price might have been realised in a fresh public auction but such possibilities cannot vitiate the sale or justify the allegation of mala fides. [64 G-H, 65 A-B] 54

7. It cannot be held that the petitioners’ rights, if any, under Article 14 are violated, in view of the fact that neither the decision to sell nor the sale proceedings were unreasonable, unjust or unfair. But if and when a sale of public property is found to be vitiated by arbitrariness of mala fides, it would be necessary to consider the larger question as to who has the right to complain of it. [65C, D- E] 8.(i) The maintainability of a writ petition which is correlated to the existence and violation of a fundamental right is not always to be confused with the locus to bring a proceeding under Article 32. These two matters often mingle and coalesce with the result that it becomes difficult to consider them in water-tight compartments. The question whether a person has the locus to file a proceedings depends mostly and often on whether he possesses a legal right and that right is violated. But, in an appropriate case, it may become necessary in the changing awareness of legal rights and social obligations to take a broader view of the question of locus to initiate a proceeding, be it under Article 226 or under Article 32 of the Constitution. [65 E- G] (ii) The Court might not have refused relief to the workers if it had found that the sale was unjust, unfair or mala fide. If a public property is dissipated, it would require a strong argument to convince the Court that representative segments of the public or at least a section of the public which is directly interested and affected would have no right to complain of the infraction of public duties and obligations. Public enterprises are owned by the people and those who run them are accountable to the people.

The accountability of the public sector to the Parliament is ineffective because the parliamentary control of public enterprises is “diffuse and haphazard”. [65 G-H, 66 A] (Per Bhagwati and Krishna Iyer, JJ. concurring)

1. Public law, as part of the panorama of the developmental process, must possess the specific techniques of public sector control within well-defined parameters which will anathematise administration by court writ and interdict public officials handling public resources in disregard of normatice essentials and constitutional fundamentals. In a society in which the State had thrust upon it the imperative of effectuating massive transformation of economy and social structure the demands upon the legal order to inhibit administrative evils and engineer developmental progress are enormous, though novel.

[68 E & 69 A-B]

2. It is important to underscore the vital departure from the pattern of judicial review in the Anglo-American legal environment because the demands of development obligated by Part IV compel creative extensions to control jurisprudence in many fields, including business administrative law, contract law, penal law, fiscal law and the like. [69 C-D]

3. Judicial interference with the Administration cannot be meticulous. The court cannot usurp or abdicate, and the parameters of judicial review must be clearly defined and never exceeded. If the Directorate of a Government company has acted fairly, even if it has faltered in its wisdom, the court cannot, as a super-auditor, take the Board of Directors to task. This function is limited to testing whether the administrative action has been fair and free from the taint of unreasonableness and has substantially complied with the norms of procedure set for it by rules of public administration. [71 A-C] 55

4. Locus Standi must be liberalized to meet the challenges of the time. Ubi jus ibi remedium must be enlarged to embrace all interests of public-minded citizens or organisations with serious concern for conservation of public resources and the direction and correction of public power so as to promote justice in its triune facets. [71 D-E]

5. An officious busybody picking up a stray dispute or idle peddlar of blackmail-litigation through abuse of the process of the court cannot be permitted to pollute the court instrumentality, for private objectives. Public justice is always and only at the service of public good, never the servant or janitor of private interest or personal motive. [72 B-C]

6. Public interest litigation is part of the process to participate justice and ‘standing’ in civil litigation of that pattern must have liberal reception at the judicial door-steps. [74 E-F]

7. Certainly, it is not part of the judicial process to examine entrepreneurial activities to ferret out flaws. The court is least equipped for such oversights, Nor, indeed, is it a function of the judges under the constitutional scheme.

The internal management, business activity or institutional operation of public bodies cannot be subjected to inspection by the Court. To do so, is incompetent and improper and, therefore, out of bounds. Nevertheless, the broad parameters of fairness in administration, bona fides in action, and the fundamental rules of reasonable management of public business, if breached will become justiciable. [77 A-C]

8. Article 43A of the Constitution confers, in principle, partnership status to workers in industry and therefore technical considerations of corporate personality cannot keep out those who seek to remedy wrongs committed in the management of the public sector. [76 G] Municipal Council, Ratlam v. Shri Vardhichand and Ors.

[1980] INSC 138; [1981] 1 S.C.R. 97 Wisconsin Law Review, Vol. 1966: 999 at P. 1064 and M. Cappelletti, Rabels Z (1976) 669 at 672 referred to.

ORIGINAL JURISDICTION: Writ Petition No. 3804 of 1980.

(Under Article 32 of the Constitution).

R. K. Garg, Sunil K. Jain, D. K. Garg, Sukumar Sahu and V. J. Francis for the Petitioners.

L. N. Sinha, Att. General of India, M. M. Abdul Khader, T.V.S. Narasimhachari and M. N. Shroff for Respondent No. 1.

M. K. Banerjee, Addl. Sol. Genl., J. B. Dadachanji, C.

M. Oberoi and K. J. John for Respondent No. 2.

A. K. Sen, S. S. Ray, R. S. Narula, Anindya Mitra, Parijat Sinha N. P. Agarwala, C. K. Jain, Bardar Ahmad, Mrs.

R. Dhariwal and M. C. Dhingra for Respondent No. 4.

56 The Judgment of Y. V. Chandrachud, C.J., S. Murtaza Fazal Ali and A. D. Koshal, JJ. was delivered by, Chandrachud. C.J. V. R. Krishna Iyer J. gave a concurring Opinion of his own and on behalf of P.N. Bhagwati, J.

CHANDRACHUD, C.J. By this petition under Article 32 of the Constitution, the petitioners challenge the legality of the sale of certain plants and equipment of the Sindri Fertilizer Factory, whereby the highest tender submitted by Respondent 4 in the sum of Rs. 4.25 crores was accepted on May 30, 1980. The relief sought by the petitioners is that the respondents should be directed not to sell away the plant and equipment, that they should be asked to withdraw their decision to sell the same and that the said decision should be quashed as being illegal and unconstitutional.

Petitioner 1 is a Union of the Workers of the Factory, Petitioner 2, Shri A. K. Roy, a Member of Parliament from Dhanbad, is the President of that Union, while Petitioners 3 and 4 are workers employed in the Factory. Respondent 1 to the Writ Petition is the Union of India, Respondent 2 is the Fertilizer Corporation of India, (‘FCI’), Respondent 3 is the Sindri Fertilizer Factory, while the added Respondent 4, Ganpatrai Agarwal, is the highest tenderer. Respondent 2, a Government of India Undertaking, is a Company incorporated under the Companies Act 1956 and is a ‘Government Company’ within the meaning of Section 617 of that Act. It established the Respondent 3 Factory, which was commissioned in 1951. By article 66(1) of the Articles of Association of respondent 2, its directors are appointed by the President of India.

On January 4, 1980 the Board of Directors of respondent 2, (FCI), decided that tenders should be invited for the sale of ‘Redundant/retired plants and equipment of respondent 3. In pursuance of that decision, an advertisement was inserted in the newspapers on February 25, 1980 inviting tenders for the sale of nine units of the “closed down chemical plants” of the Factory on “as is where is” basis. The advertisement gave to the intending purchasers the option to quote for four alternatives, one of which was the quotation for individual equipment such as pumping sets and compressors. Each tenderer was required to submit three separate envelopes: Envelope No. 1 relating to the payment of earnest money; envelope No. 2 relating to the terms and conditions of the sale; and envelope No. 3 relating to the amount of bid offered by the tenderer. The offers were to be valid until June 19, 1980.

On March 20, 1980 when the envelopes bearing No. 1 were opened, it was found that two tenderers had not complied with the 57 term as to the payment of the earnest money. As a result, the number of valid tenders was reduced to nine. Discussions took place thereafter between the tenderers and the authorities, as a result of which an agreed formula was evolved regarding the exclusion of the weights of foundation and the exclusion of sales-tax from the bids offered. A few items were also excluded from the list of articles advertised for sale. In the light of these modifications, the tenderers were asked to submit fresh quotations in a separate envelope marked ‘No. 4′.

On March 21, 1980 envelopes bearing No. 3 which contained the original offers and those bearing No. 4 which contained the modified offers, were opened in the presence of the tenderers. The highest original offer was that of respondent 4 in the sum of Rs. 7.6 crores. The highest modified offer of Rs. 6.2 crores was also made by respondent 4. The sale was thereafter adjourned.

On March 31, 1980 a letter was received by Respondent 2 that a part of the plants and equipment which were advertised for sale were needed by the Fertilizer (Planning and Development) India Ltd. for the purposes of experiment and research. On April 10, 1980 a similar request was received from the Ramagundam Division of Respondent 2. On May 14, 1980 the Board of Directors decided that only those items should be offered for sale which remained after meeting the requirements of the Fertilizer (Planning and Development) and the Ramagundam Division and that fresh offers should be invited for the reduced stock, restricted to the tenderers who had submitted modified tenders in sums exceeding Rs. 4 crores. There were six such tenders amongst the nine valid tenders. A week later, the six tenderers who had submitted those tenders were called to Sindri and a fresh list of reduced items was furnished to them. They submitted their revised tenders in sealed covers on May 23, 1980. On May 24, the Tender Committee considered the offer made by Respondent 4 in the sum of Rs. 4.25 crores as the best, that being the highest amongst the fresh reduced offers. The Tender Committee referred the matter to the Board on the same date and on May 29, the Board gave its approval to the acceptance of respondent 4’s offer. On May 30, a letter of Intent was issued by Respondent 2 in the name of Respondent 4 who paid the security deposit of Rs. 50 lakhs on June 13, 1980. An order of sale in favour of Respondent 4 was issued by Respondent 2 on July 7, 1980 whereupon Respondent 4 started dismantling the machinery and equipment which he had purchased. This Writ Petition was filed on August 14, 1980. On August 25, the Court issued a show cause notice on the writ petition and stayed the sale.

58 The petitioners challenge the sale, inter alia, on the following grounds:

(1) that the decision to sell the plants and equipment of the Factory was taken without calling for any report, expert or otherwise;

(2) that the original tender of Rs. 7.6 crores was unaccountably reduced to Rs. 4.25 crores;

(3) that the price of the plants and equipment, which was ultimately realised in the sale was manipulated with ulterior purposes;

(4) that the decision to restrict the fresh offers, in respect of the reduced equipment, to the tenderers who had submitted tenders for more than Rs. 4 crores was unfair and arbitrary;

(5) that the said decision resulted in a huge loss to the public exchequer since, if the sale was readvertised, an appreciably higher price would have been realised; and (6) the sale has jeopardised the employment of 11000 odd workers who face retrenchment as a result of the sale.

Petitioners 3 and 4 support this petition under Article 32 of the Constitution by contending that the sale will deprive them of their fundamental right under Article 19(1)(g) to carry on their occupation as industrial workers.

They contend further that the sale is in violation of the provisions of Article 14, since it is arbitrary and unfair.

The learned Attorney General, who appears on behalf of the Union of India, has raised a preliminary objection to the maintainability of the writ Petition on the ground that in the first place, the petitioners have no locus standi to file the petition and secondly, that the impugned sale does not violate any of the fundamental rights of the petitioners. We must decide this objection before considering the contentions raised by Shri R. K. Garg on behalf of the petitioners.

Article 32 of the Constitution which guarantees by clause (1) the right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by Part III, provides by clause (2) that:

“The Supreme Court shall have power to issue directions or orders or writs, including writs in the nature of habeas 59 corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate, for the enforcement of any of the rights conferred by this Part”.

It is manifest that the jurisdiction conferred on this Court by Article 32 can be exercised for the enforcement of the rights conferred by Part III and for no other purpose.

Clause (1) as well as clause (2) of Article 32 bring out this point in sharp focus. As contrasted with Article 32, Article 226 (1) of the Constitution provides that:

“Notwithstanding anything in article 32 every High Court shall have power, throughout the territories in relation to which it exercises jurisdiction, to issue to any person or authority, including in appropriate cases, any Government, within those territories directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, or any of them, for the enforcement of any of the rights conferred by Part III and for any other purpose”. (emphasis supplied).

The difference in the phraseology of the two Articles brings out the marked difference in the nature and purpose of the right conferred by these Articles. Whereas the right guaranteed by Article 32 can be exercised for the enforcement of fundamental rights only, the right conferred by Article 226 can be exercised not only for the enforcement of fundamental rights but for any other purpose.

The jurisdiction conferred on the Supreme Court by Article 32 is an important and integral part of the basic structure of the Constitution because it is meaningless to confer fundamental rights without providing an effective remedy for their enforcement, if and when they are violated.

A right without a remedy is a legal conundrum of a most grotesque kind. While the draft Article 25, which corresponds to Article 32, was being discussed in the Constituent Assembly, Dr. Ambedkar made a meaningful observation by saying:

“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”. (Constituent Assembly Debates, December 9, 1948, Vol. VII, p. 953).

60 But though the right guaranteed by Article 32 is one of the highly cherished rights conferred by the Constitution, the purpose for which that right can be enforced is stated in the very article which confers that right. The violation of a fundamental right is the sine qua non of the exercise of the right conferred by Article 32.

That makes it necessary to consider whether any of the fundamental rights of the petitioners is violated or is in the imminent danger of being violated by the sale of the plants and equipment of the Factory. The grievance of the petitioners is that two of their fundamental rights are violated by the sale, one under Article 19(1) (g) and the other under Article 14 of the Constitution.

We find no substance in the grievance that the petitioners’ right under Article 19(1)(g) is violated or is in the imminent danger of being violated by the sale. That Article confers on all citizens the right to practise any profession or to carry on any occupation trade or business.

The right of the petitioners to carry on an occupation is not infringed by the sale mediately or immediately, actually or potentially, for two reasons. In the first place, Shri R.

C. Malhotra, who is the Chief Engineer of the Sindri Unit, says in paragraph 5 of the counter-affidavit filed by him on behalf of the FCI, that although the old plants and equipment had to be shut down from 1976 to 1979 because they had become redundant, unsafe or unworkable, no employee was deprived of his employment on that account. Shri Malhotra says further in the same paragraph and in paragraph 6 of the counter-affidavit, that the management of the FCI had decided to deploy the workmen working in the plants that had to be shut down in various other plants set up under the scheme of modernisation and rationalisation and in the various facilities that had been renovated in the Sindri complex itself. Thus, not only did the sale not affect the employment of the workers employed in the Factory, but those of them who were rendered surplus from time to time on account of the closure of the plants were absorbed in alternate employment in the same complex.

Secondly, the right of Petitioners 3 and 4 and of the other workers to carry on the occupation of industrial workers is not, in any manner affected by the impugned sale.

The right to pursue a calling or to carry on an occupation is not the same thing as the right to work in a particular post under a contract of employment. If the workers are retrenched consequent upon and on account of the sale, it will be open to them to pursue their rights and remedies under the Industrial Laws. But the point to be noted is that the closure of an establishment in 61 which a workman is for the time being employed does not by itself infringe his fundamental right to carry on an occupation which is guaranteed by Article 19(1)(g) of the Constitution. Supposing a law were passed preventing a certain category of workers from accepting employment in a fertiliser factory, it would be possible to contend then that the workers have been deprived of their right to carry on an occupation. Even assuming that some of the workers may eventually have to be retrenched in the instant case, it will not be possible to say that their right to carry on an occupation has been violated. It would be open to them, though undoubtedly it will not be easy, to find out other avenues of employment as industrial workers. Article 19(1) (g) confers a broad and general right which is available to all persons to do work of any particular kind and of their choice. It does not confer the right to hold a particular job or to occupy a particular post one’s choice. Even under Article 311 of the Constitution, the right to continue in service falls with the abolition of the post in which the person is working. The workers in the instant case can no more complain of the infringement of their fundamental right under Article 19(1)(g) than can a Government servant complain of the termination of his employment on the abolition of his post. The choice and freedom of the workers to work as industrial workers is not affected by the sale.

The sale may at the highest affect their locum, but it does not affect their locus, to work as industrial workers. This is enough unto the day on Art. 19(1)(g).

In regard to the infringement of the right under Article 14, the contention of the petitioners is that the plants and equipment of the factory were sold without the benefit of any expert report, that the decision to effect the sale was taken arbitrarily, that it was actuated by an ulterior motive, and that the sale is vitiated by the violation of the principles of natural justice since the ultimate bid was restricted to a select group of persons.

The petitioners contend that the arbitrariness and unfairness of the sale is reflected in the circumstance that the original bid of Rs. 7.6 crores came down to Rs. 4.25 crores. If the sale was readvertised after there was a material variation in its terms, the plants and equipment, according to the petitioners, would have fetched a much higher price.

A clear and satisfactory answer to this contention is provided by the learned Additional Solicitor General, who appears on behalf of Respondent 2, FCI. He has pointed out to us numerous circumstances from which it would appear that the grievance of the petitioners that the sale was unfair and arbitrary is not justified.

62 The affidavits filed on behalf of the respondents, particularly those of Shri R. C. Malhotra, Chief Engineer of the Sindri Unit and of Shri K. V. Krishna Ayyar, Under Secretary in the Department of Chemicals and Fertilisers, Government of India, show that the Sindri Plant, which was commissioned in 1951 and was expanded in 1959 and 1969 by providing certain extra facilities, had outlived its use.

Various schemes were considered from time to time for improving the economics of the Sindri Unit in order to ensure continued employment to the workers. The first of such schemes was the Sindri Rationalisation Scheme, which was approved by the Government in 1967. This scheme was completed in October 1979 at a cost of Rs. 60.77 crores While the Rationalisation Scheme was under implementation, it transpired that the Ammonia manufacturing facilities based on coke were fast deteriorating and unless the equipment was renovated substantially or was replaced with modern equipment, it was impossible to expect stability in the production of Nitrogenous fertilisers from the plant.

Different alternatives were before the Government in this behalf, and, finally, the Sindri Modernisation Scheme was approved by it in November 1973. This Scheme envisaged the shutting down of the old Ammonia plant based on coke and the setting up of a modern Ammonia plant producing 900 tonnes a day of Ammonia with low sulphur heavy stock as food-stock.

This scheme was completed in October 1979 at a cost of Rs.

183.19 crores. Thus, the long term plan of the Government was to retain the Ammonium Sulphate plant after renovating it and to shut down the old coke-based Ammonia plant. The plant operations with the old plant showed considerable deterioration in 1975-76. A team of engineers of the Sindri Unit as well as of the Planning and Development Division of the Fertiliser Corporation, in association with the engineers of the Central Mechanical Engineering Research Institute, Durgapur, undertook Survey, examination and inspection of the plants with a view to determining their status and condition. A committee of Directors was also appointed for the same purpose. One of the main criteria which the Directors kept before themselves in view of the reported unsafe working condition of the plant was the safety of the personnel and the workmen. The matter was thereafter kept under constant review and parts of the plant were retired or closed down from time to time as and when their operation became unsafe and uneconomical. The running of the old plant had indeed become so uneconomical that as against the cost of production of Rs. 787.23 per ton of Ammonia in 1971-72, the cost of production in 1978-79 was approximately Rs. 6296/- per ton. An additional circumstance which compelled the closure of a part of the plant is the fact that the raw material required for the old plant comprised special high quality coal which is in short supply.

63 On the question of arbitrariness of the sale, the following facts and circumstances are particularly relevant:

(1) The decision of the Board of Directors in respect of the sale relates only to the redundant or retired plants and equipment;

(2) The Board is authorised by article 68(20) of the Articles of Association of the Corporation to sell even the whole of the undertaking with the prior approval of the President of India. Such approval was taken before the sale was finalised in favour of Respondent 4;

(3) The decision of the Board was restricted to a small part of the assets of the Sindri Factory. The balance sheet for 1954-55 of the erstwhile Sindri Fertiliser & Chemicals Ltd.

shows that the assets of the said Factory were of the value of Rs. 22,82,99,086/- as on April 1, 1954, out of which plants, equipment, machinery, etc. were of the value of Rs. 14,68,59,502/-. The original cost of the plants and equipment, which have now been sold, was about Rs. 10 crores, of which the written-down value as on March 31, 1980 was about Rs. 50 lakhs. The present outlay on the Sindri Unit is in the region of Rs. 220 crores;

(4) The decision to sell the redundant or retired plants became necessary for the reason that they had out lived their life, having run for a period ranging from 18 to 28 years. It had also become unsafe, hazardous and uneconomic to run such plants and equipment; and (5) Although the old plants had to be shut down on account of the sale, no employee at all was retrenched or is likely to be retrenched on account of the sale.

The answer which the Minister for Petroleum and Chemicals gave on the floor of the House to the question put by respondent 2 is, if we may say so, strictly ‘parliamentary’. The question was whether there was any report justifying the sale. The answer was ‘NO’ because there were reports which preceded the sale and which advised the sale. But they did not ‘justify’ the sale, which is an ex post facto matter. In fact 64 many a report had suggested the disbanding of worn out, uneconomical and hazardous plants of Fertilizer undertakings like:

1. Report of the Fertilizer Mission to India of the International Bank for the Reconstruction and Development published July, 1969.

2. Techno economic study of Alternative schemes for Sindri Modernisation Project prepared by Planning and Development Division of Fertilizer Corporation of India and published May 1971.

3. Techno economic Feasibility Report of Sindri Modernisation Project published by Planning and Development Division 1973 of Fertilizer Corporation of India.

4. Appraisal of Sindri Fertilizer Project India- Report of the International Bank for Reconstruction & Development, International Development Association, published November, 1974.

5. Report on Works Transformation and Environmental Study by M/s UNICO International Corporation of Japan, published July 1975.

In view of these facts and circumstances, it is quite difficult to hold that the decision to sell the plants and equipment of the Factory was arbitrary, unreasonable or mala fide. It has to be emphasized that the real drive of the petition is against the decision of the Board to sell the plants and equipment. It is that decision which is stated to furnish the cause to complain of the violation of the right conferred by article 14, fairness, justness and reasonableness being its implicit assumptions.

There is only one other aspect of the matter and that we are unable to view with any great equanimity. It is clear from the proceedings that the plants which were initially advertised for sale went through variation on two occasions.

The first variation which was made on March 20, 1980 may not be regarded as substantial. But after the sale was adjourned to March 31, 1980, the requests received by the FCI from the other public sector undertakings stating, that they were in need of a part of the equipment which was advertised for sale, led to a substantial reduction in the goods advertised for sale. The authorities then sent for the nine tenderers and negotiated with them across the table. We want to make it clear that we do not doubt the bonafides of the authorities, but as far as possible, sales of public property, when the intention is to get the best price, ought to take place publicly. The vendors are not necessarily bound to accept the highest or any other 65 offer, but the public at least gets the satisfaction that the Government has put all its cards on the table. In the instant case, the officers who were concerned with the sale have inevitably, though unjustifiably, attracted the criticism that during the course of negotiations the original bid was reduced without a justifying cause. We had willy-nilly to spend quite some valuable time in satisfying ourselves that the reduction in the price was a necessary and fair consequence of the reduction in the quantity of the goods later offered for sale on March 31, 1980. One cannot exclude the possibility that a better price might have been realised in a fresh public auction but such possibilities cannot vitiate the sale or justify the allegation of mala fides.

In view of the fact that neither the decision to sell nor the sale proceedings were unreasonable, unjust or unfair, it cannot be held that the petitioner’s rights, if any, under Article 14 are violated. The learned Attorney General contended that arbitrariness would be actionable under Article 32, only if it causes injury to the fundamental rights of the petitioner, and that the petitioners in the instant case have no fundamental right in the exercise of which they can challenge the sale. We consider it unnecessary to examine this contention because the sale is not vitiated by any unfairness or arbitrariness.

If and when a sale of public property is found to be vitiated by arbitrariness or mala fides, it would be necessary to consider the larger question as to who has the right to complain of it.

That disposes of the question as regards the maintainability of the writ petition. But, we feel concerned to point out that the maintainability of a writ petition which is correlated to the existence and violation of a fundamental right is not always to be confused with the locus to bring a proceeding under Article 32. These two matters often mingle and coalesce with the result that it becomes difficult to consider them in water-tight compartments. The question whether a person has the locus to file a proceeding depends mostly and often on whether he possesses a legal right and that right is violated. But, in an appropriate case, it may become necessary in the changing awareness of legal rights and social obligations to take a broader view of the question of locus to initiate a proceeding be it under Article 226 or under Article 32 of the Constitution. If public property is dissipated, it would require a strong argument to convince the Court that representative segments of the public or at least a section of the public which is directly interested and affected would have no right to complain of the infraction of public duties and obligations. Public enterprises are owned by the people and those who run them are accountable to the people.

The accountability of the public sector to the Parliament is 66 ineffective because the parliamentary control of public enterprises is “diffuse and haphazard”. We are not too sure if we would have refused relief to the workers if we had found that the sale was unjust, unfair or mala fide.

Several decisions were cited before us by the learned Attorney General, the learned Additional Solicitor General, Shri A. K. Sen and Shri R. K. Garg on the question of the maintainability of the writ petition. We consider it unnecessary to discuss them in view of the fact that we have come to the conclusion that the petitioner’s fundamental right under Article 19 (1) (g) to carry on the occupation of an industrial worker is not affected by the sale, and similarly, that his fundamental right, if any, under Article 14 of the Constitution has not been violated.

The question as regards ‘access to justice’.

particularly under Article 226 of the Constitution, has been dealt with by Brother Krishna Iyer, at some length, for which reason I do not consider it necessary to dwell upon that topic.

In the result, we dismiss the petition and discharge the rule. There will be no order as to costs.

KRISHNA IYER, J. This Writ Petition which, in the forensic unfolding through oral submissions, has exceeded our expectations, bristles with profound issues of deep import one of which is the citizen’s legal standing vis a vis illegal handling of public resources a jurisprudential area of critical importance but of precedential barrenness and, therefore, all the more demanding in the developmental setting and social justice imperatives of Law India. The learned Chief Justice has considered with care some of the profound questions covered in the course of the arguments and it may be supererogation to tread the same territory.

The general factual presentation and legal conclusions of the learned Chief Justice have our concurrence. Equally, the approach to Arts. 14 and 32, with its fascinating expansionism, is of strategic significance, viewed in the perspective of Third World jurisprudence. Maybe, that while we broadly agree, our emphasis may differ, our shades of meaning may vary and, in some places, even our processes of reasoning may lead us to other destinations. Even so, a general consensus suffices and we desist from dealing with all the points discussed by our learned brothers.

Nevertheless, some problems of seminal significance affecting the adjectival law are of such compelling futuristic impact that we shall examine them alone in our separate opinion.

67 The facts have been stated, the arguments have been indicated and that helps us to plunge straight into the points we propose to consider. Briefly, a Government company has gone through the long exercise of selling and allegedly obsolescent steel plant for junk price, after receiving tenders, holding discussions, making modifications and ultimately settling the sale in favour of Ganpatrai Aggarwal of Calcutta. In this process, two decisions were taken; the first was a policy decision to sell a substantial plant, part of which could have been salvaged, as if the entire material were scrap; the second question which the company decided was to call for tenders but to settle the sale, not exactly as originally intended, but with many changes, negotiations and alterations, so much so, while the maximum offer in the first round was for over Rs. 7 crores the actual offer which was accepted was for Rs. 4 crores and odd, the difference being explained by the respondents on the score that many items included in the original proposal to sell had since been withdrawn.

When a plant is shut down, as in this case, it has been, for reasons the merits of which we do not propose to scrutinise, the workers employed in it are ordinarily thrown out of employment. Assuming some patch-work arrangement to give lingering employment for some time more were offered as a measure of alleviation, that certainly is not equal to the steady and assured service in a public sector undertaking which is a Government company owned entirely by the President of India. Their economic fortunes and employment status are affected by the amputation of a limb of the company. These workers have invoked the jurisdiction of this Court under Art. 32 of the Constitution and sought to demolish through the writ of this Court, both the decision to sell the plant on the score of obsolescence and the dubious manner of sale which, in their submission, has resulted in colossal loss to the public exchequer and, vicariously, to the citizenry of the country, including, a fortiori, the workers in the enterprise. Two questions incidentally arise: Have the workers locus standi under Art.

32, which is a special jurisdiction confined to enforcement of fundamental rights ? What, if any, are the fundamental rights of workmen affected by the employer’s sale of machinery whose mediate impact may be conversion of permanent employment into precarious service and eventual exit ? Lastly, but most importantly, where does the citizen stand, in the context of the democracy of judicial remedies, absent an ombudsman? In the face of (rare, yet real) misuse of administrative power to play ducks and drakes with the public exchequer, especially where developmental expansion necessarily involves astronomical expenditure and concomitant corruption, do public bodies enjoy immunity from challenge save through the post 68 mortem of parliamentary organs. What is the role of the judicial process, read in the light of the dynamics of legal control and corporate autonomy ? This juristic field is virgin but is also heuristic challenge, so that law must meet life in this critical yet sensitive issue. The active co-existence of public sector autonomy, so vital to effective business management, and judicial control of public power tending to berserk, is one of the creative claims upon functional jurisprudence.

The Court cannot wait and, despite allergy to minimal decisional law-making in vacant spaces, the rule of law in this virgin area cannot leave the fertile field fallow.

Judicial, though interstitial, law-making is needed in this field. “Many of the judges of England have said that they do not make law. They only interpret it. This is an illusion they have fostered. But it is notion which is now being discarded everywhere. Every new decision- on every new situation-is a development of the law. Law does not stand still. It moves continually.” We have no doubt that public law, as part of the panorama of the developmental process, must possess the specific techniques of public sector control within well defined parameters which will anathematise administration by court writ and interdict public officials handling public resources in disregard of normative essentials and constitutional fundamentals.

The functional future of the rule of law in our country depends on the fulfillment of the words of Chief Justice Earl Warren: Our Judges are not monks or scientists, but participants in the living stream of national life . Our system faces no theoretical dilemma, but a single continuous problem; how to apply to ever-changing conditions the never- changing principles of freedom”. The Indian citizen does expect some cybernetic system or ombudsman Mechanism whereby power geared to public good does not betray the goals of social engineering. The jural postulates which are an imperative of our Independence and planned development assume this command function of the law It is good that we state the inter-action between planning and law in the words of Prof. Berman:

“Plan is that aspect of the social process which is concerned with the maximum utilization of institutions and resources from the point of view of economic development; law is that aspect of the social process which is concerned 69 with the structuring and enforcing of social policy (plan) in terms of the rights and duties therefrom”.

Our national reconstruction involves an enormous increase in public sector operations in fulfillment of the paramount directives of Part IV of the Constitution. In a society in which the State had thrust upon it the imperative of effectuating massive transformation of economy and social structure the demands upon the legal order to inhibit administrative evils and engineer developmental progress are enormous, though novel. The present case, whatever the merits and the ultimate conclusion, does raise the deeper issue of the dynamics of social justice vis-a-vis the role of the Rule of Law where the public sector occupies the commanding heights of the national economy and yet asserts a right to be free from judicial review. That cannot be. While it is unnecessary for us to spell out in greater detail the emergence of a new branch of administrative law in relation to the national plan and the public sector of the economy.

It is important to underscore the vital departure from the pattern of judicial review in the Anglo American legal environment because the demands of development obligated by Part IV compel creative extensions to control jurisprudence in many fields, including business administrative law, contract law, penal law, fiscal law and the like.

Robert Siedmann, dealing with the law of economic development in Sub-Saharan Africa has dealt with the maintenance of legality in a developmental setting with focus on stability and change and the evolution of new norms of constitutional and administrative law. He rightly stresses what applies to India as well:

“If there are to be some reasonable norms for administrative behaviour in Africa, the formulation of codes of administrative law is desirable. But such codes are not self-enforcing; without institutional devices to support them, they become meaningless.” He continues to make certain observations on the enforcement on the regime of legality and their importance for the Indian scene:

“If the tone of public life is sufficiently honest and fair-minded, formal norms are relatively unneeded.

That is not the position in Africa; on the contrary, there is a notable lack of restraints upon the exercise of state power. This betrays itself most blatantly in the widespread corruption that seems 70 to exist, especially in West Africa. When corruption permeates the entire fabric of government, legality is the first sufferer, for state power is exercised on grounds unrelated to its nominal purposes.

In English-speaking Africa, the devices for the enforcement of the few standards of administrative probity that exist are in the common-law tradition. In some cases there are internal administrative appeals.

Resort to the courts for relief is theoretically available if an ascertainable norm has been violated.

Relief can be sought in a civil action brought by the extreme cases, in a criminal action brought by the director of public prosecutions.

The civil remedies for administrative wrongdoing thus depend upon the action of individual citizens. In such an action, the individual is pitted against the State-always an unequal contest. The individual does not have even the few procedural devices that the common law imports into criminal actions to try to redress the balance. At his own expense, he must challenge the vast panoply of State power with all its resources in personnel, money, and legal talent, by a civil action for a declaratory judgment or for an extraordinary remedy-injunction, writ of mandamus, or writ of prohibition. Aside from the manifold technical insufficiencies of these forms of action, the financial impediments to such an action are staggering. As a result of these impediments, in the United States, where almost the sole institutional protection against administrative error or arbitrariness is such an action, usually only great corporations or individuals who are supported by large voluntary associations have been able to carry through litigation. To rely upon such individual actions as the primary means of policing administrative action in Africa is to rely upon what is nonexistent.” A pragmatic approach to social justice compels us to interpret constitutional provisions, including those like Arts. 32 and 226, with a view to see that effective policing of the corridors of power is carried out by the court until other ombudsman arrangements a problem with which Parliament has been wrestling for too long-emerges. I have dwelt at a little length on this policy aspect and the court process because the learned Attorney General challenged the petitioners locus standi either qua worker or qua citizen to question 71 in court the wrong doings of the public sector although he maintained that what had been done by the Corporation was both bona fide and correct.

We certainly agree that judicial interference with the Administration cannot be meticulous in our Montesquien system of separation of powers. The court cannot usurp or abdicate, and the parameters of judicial review must be clearly defined and never exceeded. If the Directorate of a Government company has acted fairly, even if it has faltered in its wisdom, the court cannot, as a super-auditor, take the Board of Directors to task. This function is limited to testing whether the administrative action has been fair and free from the taint of unreasonableness and has substantially complied with the norms of procedure set for it by rules, of public administration.

Assuming that the Government-company has acted mala fide, or has dissipated public funds, can a common man call into question in a court the validity of the action by invocation of Arts. 32 or 226 of the Constitution.? Here, we come up on the crucial issue of access to justice and the special limitations of Art. 32 which is the passport to this Court.

We have no doubt that in a competition between courts and streets as dispenser of justice, the rule of law must win the aggrieved person for the law court and wean him from the lawless street. In simple terms, locus standi must be liberalised to meet the challenges of the times. Ubi just ibi remedium must be enlarged to embrace all interests of public-minded citizens or organisations with serious concern for conservation of public resources and the direction and correction of public power so as to promote justice in its triune facets. Lord Scarman’s warning in his Hamlyn Lectures lend strength to our view :

“I shall endeavour to show that there are in the contemporary world challenges, social, political and economic, which, if the system cannot meet them, will destroy it. These challenges are not created by lawyers; they certainly cannot be suppressed by lawyers: they have to be met either by discarding or by adjusting the legal system. Which is to be ?” Lest there should be misapprehension, we wish to keep the distinction clear between the fundamental right to enforce fundamental rights and the interest sufficient to claim relief under Art. 226 and even under other jurisdictions. The learned Attorney General almost 72 agreed, under pressure of compelling trends in the contemporary law of procedure, that Art. 226 may probably enable the petitioner to seek relief if the facts suggested by the court hypothetically existed. Shri A. K. Sen also took up a similar position. I will put aside Art. 32 for a moment and scan the right under Art. 226. There is nothing in the provision (unlike under Art. 32) to define ‘person aggrieved’, ‘standing’ or ‘interest’ that gives access to the court to seek redress.

The argument is, who are you to ask about the wrong committed or illegal act of the Corporation if you have suffered no personal injury to property, body, mind or reputation ? An officious busybody picking up a stray dispute or idle peddlar of blackmail-litigation through abuse of the process of the court cannot be permitted to pollute the court instrumentality, for private objectives.

Public justice is always and only at the service of public good, never the servant or janitor of private interest or personal motive.

Law as I conceive it, is a social auditor and this audit function can be put into action only when some one with real public interest ignites the jurisdiction. We cannot be scared by the fear that all and sundary will be litigation-happy and waste their time and money and the time of the court through false and frivolous cases. In a society where freedoms suffer from atrophy and activism is essential for participative public justice, some risks have to be taken and more opportunities opened for the public-minded citizen to rely on the legal process and not be repelled from it by narrow pedantry now surrounding locus standi.

Schwartz and H.W.R. Wade wrote in Legal Control of Government:

“Restrictive rules about standing are in general inimical to a healthy system of a administrative law.

If a plaintiff with a good case is turned away, merely because he is not sufficiently affected personally, that means that some government agency is left free to violate the law, and that is contrary to the public interest. Litigants are unlikely to expend their time and money unless they have some real interest at stake.

In the rare cases where they wish to sue merely out of public spirit, why should they be discouraged?” They further observed:

“The problem of standing, or locus standi is inherent in all legal systems…… But in the United States, perhaps 73 because of the constitutional basis which the subject has acquired in federal law it can be discussed as a single topic. In Britain it is a thing of shreds and patches, made up of various differing rules which apply to various different remedies and procedures. It is a typical product of the untidy system of remedies, each with its own technicalities, which all British administrative lawyers would like to see reformed.” We have no doubt that having regard to the conditions in Third World countries, Cappelletti is right in his stress on the importance of access:

“The right of effective access to justice has emerged with the new social rights. Indeed, it is of paramount importance among these new rights since, clearly, the enjoyment of traditional as well as new social rights presupposes mechanisms for their effective protection. Such protection, moreover, is best assured by a workable remedy within the framework of the judicial system. Effective access to justice can thus be seen as the most basic requirement-the most basic ‘human right’-of a system which purports to guarantee legal rights.” The need for a radical approach has been underscored in New Zealand by Black:

“…….today it is unreal to suggest that a person looks to the law solely to protect his interests in a narrow sense. It is necessary to do no more than read the newspapers to see the breadth of the interests that today’s citizen expects the law to protect-and he expects the court where necessary to provide that protection. He is interested in results, not procedural niceties.” India is an a fortiori case, especially as it suffers from the pathology of mid Victorian concepts about cause of action. The Australian Law Reform Commission in its discussion paper No. 4 has considered the pros and cons and strongly supported the wider basis for access to justice.

Class-actions will activise the legal process where individuals cannot approach the court for many reasons. I quote from the Discussion Paper No. 4 :

74 “Widened standing rules may assist consumers in attaining relevant injunctive or declaratory relief but they do not assist in recovering losses inflicted by illegal trading practices, nor do they threaten the illegal trader where he is mot hurt, his pocketbook.

The most potent legal instrument in that regard so far devised is the modern class action, to some an ‘engine of destruction’, to others a mighty force for good.

Consider the New York Commissioner of Consumer Affairs giving evidence before a United States Senate Committee in 1970.

‘A federal class action law will have more impact on the market places of the nation than all the myriads of laws and ordinances against fraud and deception which are hidden away, in the statute books of the 50 States and their various sub-divisions, put together.

All these laws make fraud illegal. But they have not made fraud unprofitable. Many of these laws can only be invoked by administrative agencies, which long ago lost their concern for the consumer and their appetite for action.

A Federal class action law…… will put the power to seek justice in court where it belongs-beyond the reach of campaign contributors, industry lobbyists, or Washington lawyers-and it will put power in the hands of the consumers themselves and in the hands of their own lawyers, retained by them to represent their interests alone.’ ” Public interest litigation is part of the process of participate justice and ‘standing’ in Civil litigation of that pattern must have liberal reception at the judicial doorsteps. The flood-gates argument has been nailed by the Australian Law Reforms Commission :

“The idle and whimsical plaintiff, a dilettante who litigates for a lark, is a specter which haunts the legal literature, not the courtroom.

A major expressed reason for limiting standing rights is fear of a spate of actions brought by busybodies which will unduly extend the resources of the courts. No argument is easier put, none more difficult to rebut. Even if the fear be justified it does not follow that present restrictions should 75 remain. If proper claims exist it may be necessary to provide resources for their determination. However, the issue must be considered.

. . . . Over recent years successive decisions of the United States Supreme Court have liberalised standing so as to afford a hearing to any person with a real interest in the relevant controversy. Surveying the result in 1973 Professor Scott commented :

‘When the floodgates of litigation are opened to some new class of controversy by a decision it is notable how rarely one can discern the flood that the dissentors feared.

Professor Scott went on to point out that the liberalised standing rules had caused no significant increase in the number of actions brought, arguing that parties will not litigate at considerable personal cost unless they have a real interest in a matter.” We agree with the conclusion of the Commission:

“The moral, perhaps, applies; if the courts cannot, or will not, give relief to people who are in fact concerned about a matter then they will resort to self-held, with grave results for other persons and the rule of law. Some may reply that if there is no evidence of a great increase in numbers there is no evidence of need for enlarged standing rights. The reply would overlook two considerations. One case may have a dramatic effect on behaviour in hundreds of others; this is the whole notion of the legal ‘test case’. Secondly, the mere exposure to possible action is likely to affect the behaviour of persons who presently feel themselves immune from legal control”.

In the Municipal Council, Ratlam, a bench of this Court observed:

” ‘It is procedural rules’ as this appeal proves, ‘which infuse life into substantive rights, which activate them to make them effective’ …. The truth is that a few profound issues of processual jurisprudence of great strategic significance to our legal system face us and we must zero-in on them as they involve problems of access to justice for the people beyond the blinkered rules of ‘standing’ of British Indian vintage. If the centre of gravity of justice is to shift, as the Preamble to the Constitution mandates, from the tradi- 76 tional individualism of locus standi to the community orientation of public interest litigation, these issues must be considered. In that sense, the case before us between the Ratlam Municipality and the citizens of a ward, is a pathfinder in the field of people’s involvement in the justicing process, sans which as Prof. Sikes points the system may ‘crumble under the burden of its own insensitibity’………..

Our judicial system has been aptly described as follows:

Admirable though it may be, (it) is at once slow and costly. It is a finished product of great beauty, but entails an immense sacrifice of time, money and talent.

This ‘beautiful’ system is frequently a luxury; it tends to give a high quality of justice only when, for one reason or another, parties can surmount the substantial barriers which it erects to most people and to many types of claims.

Why drive common people to public interest action ? Where Directive Principles have found statutory expression in Do’s and Dont’s the court will not sit idly by…….

After all (Australian, 16 November, 1977) was right. We quote as a concluding thought of benign import for us:- “Under a banner ‘Easier Access to Courts of Law’ the Australian, 16 November 1977 declared:

‘Perhaps-and it is only a perhaps-there was once some justification for restricting access to the courts to prevent their being bogged down in a morass of ineffectuality. But today’s better informed, better educated, more literate and more politically aware citizens should certainly not be barred from the courts by tradition. The law can no longer be a closed shop.” In the present case a worker, who, clearly, has an interest in the industry, brings this action regarding an alleged wrong-doing by the Board of Management. Article 43A of the Constitution confers, in principle, partnership status to workers in industry and we cannot, therefore, be deterred by technical considerations of corporate personality to keep out those who seek to remedy wrongs committed in the management of public sector. Locus standi and justiciability are different issues, as I have earlier pointed out. This takes us to the 77 question of justiciability of questions like sale of public property by public bodies. Certainly, it is not part of the judicial process to examine entrepreneurial activities to ferret out flaws. The court is least equipped for such oversights. Nor, indeed, is it a function of the judges in our constitutional scheme. We do not think that the internal management, business activity or institutional operation of public bodies can be subjected to inspection by the Court.

To do so, is incompetent and improper and, therefore, out of bounds. Nevertheless, the broad parameters of fairness in administration, bona fides in action, and the fundamental rules of reasonable management of public business, if breached, will become justiciable.

If a citizen is no more than a wayfarer or officious intervener without any interest or concern beyond what belongs to any one of the 660 million people of this country, the door of the court will not be ajar for him. But he belongs to an organisation which has special interest in the subject matter, if he has some concern deeper than that of a busybody, he cannot be told off at the gates, although whether the issue raised by him is justiciable may still remain to be considered. I, therefore, take the view that the present petition would clearly have been permissible under Article 226.

The learned Attorney General drew our attention to Art.

32 and cited decisions to support his contention that only the petitioner’s fundamental rights could be agitated under that Article. As the rulings now stand, he is right, although the question still survives as to whether a worker’s fundamental right under Art. 14 is not affected when arbitrary action of the enterprise in which he is employed ha an impact on his well-being.

The democratisation of judicial remedies which is the thrust of our separate opinion, induces us to conclude with a quote :

It was the boast of Augustus that he found Rome of brick and left it of marble. But how much nobler will be the sovereigns boast when he shall have it to say that he found law dear and left it cheap; found it a sealed book and left it a living letter; found it the patrimony of the rich and left it the inheritance of the poor; found it the two-edged sword of craft and oppression and left it the staff of honesty and the shield of innocence.

78 Having sought to illumine the half-lit zone of access jurisprudence, we wish to make it clear that we are not dealing with the likely application Art. 19(1) (f) or of Art. 14 which have been raised in the present case because the learned Chief Justice has held that on the merits the action of the Corporation is above board. The question which we reserve may well be considered when an appropriate occasion arises.

N. K. A. Petition dismissed.

The post Fertilizer Corporation Kamgar Union (Regd.), Sindri Another Vs. Union of India And Others appeared first on B&B Associates LLP.

IN THE SUPREME COURT OF INDIA
MINERVA MILLS LTD. & ORS. …PETITIONER
Vs.
UNION OF INDIA & ORS. …RESPONDENT
DATE OF JUDGMENT: 31/07/1980
BENCH: CHANDRACHUD, Y.V. ((CJ) BHAGWATI, P.N. GUPTA, A.C. UNTWALIA, N.L. KAILASAM, P.S.

CITATION:
1980 AIR 1789 1981 SCR (1) 206
1980 SCC (3) 625

CITATOR INFO :
E&R 1981 SC 271 (16,36,57,65,67)
MV 1982 SC1325 (11)
R 1983 SC 130 (34)
N O 1983 SC 239 (9,10,11,13,14)
R 1984 SC 326 (17,18,19,57)
F 1984 SC 374 (3,16,17)
RF 1986 SC1205 (5)
RF 1986 SC1466 (13)
E&R 1987 SC 386 (2,12,15,16,17)
R 1989 SC 653 (11)
R 1989 SC1933 (7)
R 1990 SC 123 (11)
RF 1991 SC 101 (31,68,227,259,272)

ACT:
Constitution of India Forty Second Amendment Act, Sections 4 and 55-Whether the Sections are beyond the amending power of the Parliament under Article 368 of the Constitution and therefore void-Whether the Directive Principles of State policy contained in Part IV of the Constitution can have primacy over the fundamental rights conferred by Part 111 of the Constitution-Constitution of India Articles 14, 19, 31C, 38 and 368.

HELD: (1) The newly introduced clause S of Article 368 transgresses the limitations on the amending power of Parliament and is hence unconstitutional. It demolishes the very pillars on which the preamble rests by empowering the Parliament to exercise its constituent power without any “limitation whatever”. No constituent power can conceivably go higher than the sky-high power conferred by clause (5), for it even empowers the Parliament to “repeal the provisions of this Constitution”, that is to say, to abrogate the democracy.

207 and substitute for it a totally antithetical form of Government. That can most effectively be achieved, without calling a democracy by any other name, by a total denial of social, economic and political justice to the people, by emasculating liberty of thought, expression, belief, faith and worship and by abjuring commitment to the magnificent ideal of a society of equals. The power to destroy is not a power to amend. [240C-E] Since the Constitution had conferred a limited amending power on the Parliament, the Parliament cannot under the exercise of that limited power enlarge that very power into an absolute power. Indeed, a limited amending power is one of the basic features of Indian Constitution and therefore, the limitations on that power cannot be destroyed. In other words, Parliament cannot, under Article 368, expand its amending power so as to acquire for itself the right to repeal or abrogate the Constitution or to destroy its basic and essential features. The donee of a limited power cannot by the exercise of that power convert the limited power into an unlimited one. [240E- G] Smt. Indira Nehru Gandhi v. Raj Narain, [1976] 2 SCR 347, followed.

(2) The newly introduced clause (4) of Article 368 is equally unconstitutional and void because clauses (4) and (5) are inter-linked. While clause (5) purports to remove all limitations on the amending power, clause (4) deprives the courts of their power to call in question any amendment of the Constitution. [241E-F] Indian Constitution is founded on a nice balance of power among the three wings of the State namely, the Executive, the Legislature and the Judiciary. It is the function of the Judges, may their duty, to pronounce upon the validity of laws. If courts are totally deprived of that power, the fundamental rights conferred upon the people will become a mere adornment because rights without remedies are as writ in water. A controlled Constitution will then become uncontrolled. Clause (4) of Article 368 totally deprives the citizens of one of the most valuable modes of redress which is guaranteed by Article 32. The conferment of the right to destroy the identity of the Constitution coupled with the provision that no court of law shall pronounce upon the validity of such destruction is a transparent case of transgression of the limitations on the amending power.

[241H, 242A] If a constitutional amendment cannot be pronounced to be invalid even if it destroys the basic structure of the Constitution, a law passed in pursuance of such an amendment will be beyond the pale of judicial review because it will receive the protection of the constitutional amendment which the courts will be powerless to strike down. Article 13 of Constitution will then become a dead letter because even ordinary laws will escape the scrutiny of the courts on the ground that they are passed on the strength of a constitutional amendment which is not open to challenge.

[242A-C] (3) Though it is the settled practice of the Supreme Court not to decide academic questions and the Court has consistently taken the view that it will not formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied, it is difficult to uphold the preliminary objection to the consideration of the question raised by the petitioners as regards the validity of sections 4 and 55 of the Forty-second Amendment.

In the instant case, the question raised as regards the constitutionality of sections 4 and 55 of the Forty Second Amendment is not an academic or a hypothetical question.

Further an order has been passed against the petitioners under section 18A of the Industries (Development and Regulation) Act, 1951, by which the petitioners are aggrieved. [248C, E-G] 208 Besides, there is no constitutional or statutory inhibition against the decision of questions before they actually arise for consideration. Here, in view of the importance of the question raised and in view of the fact that the question has been raised in many a petition, it is expedient in the interest of Justice to settle the true position. Secondly, what the court is dealing with is not an ordinary law which may or may not be passed so that it could be said that the court’s jurisdiction is being invoked on the hypothetical consideration that a law may be passed in future which will injure the rights of the petitioners. What the court is dealing with is a constitutional amendment which has been brought into operation and which, of its own force, permits the violation of certain freedoms through laws passed for certain purposes. [248G, 249A-B] Commonwealth of Massachusetts v. Andrew W. Mellon, 67 Lawyers’ Edition, 1078, 1084; George Ashwander v. Tennessee Valley Authority, 80 Lawyers’ Edition, 688, 711, quoted with approval.

(4) The answer to the question whether in view of the majority decision in Kesavananda Bharati it is permissible to the Parliament to so amend the Constitution as to give a position of precedence to directive principles over the fundamental rights, must necessarily depend upon whether Articles 14 and 19, which must now give way to laws passed in order to effectuate the policy of the State towards securing all or any of the principles of Directive Policy, are essential features of the basic structure of the Constitution. It is only if the rights conferred by these two articles are not a part of the basic structure of the Constitution that they can be allowed to be abrogated by a constitutional amendment. If they are a part of the basic structure, they cannot be obliterated. out of existence in relation tn a category of laws described in Article 31C or, for the matter of that, in relation to laws of any description whatsoever, passed in order to achieve any object or policy whatsoever. This will serve to bring out the point that a total emasculation of the essential features of the Constitution is, by the ratio in Keshavananda Bharati, not permissible to the Parliament.

[249E-H] (5) The importance of Directive Principles in the scheme of our Constitution cannot ever be over-emphasized.

Those principles project the high ideal which the Constitution aims to achieve. In fact Directive Principles of State Policy are fundamental in governance of the country and there is no sphere of public life where delay can defeat justice with more telling effect than the one in which the common man seeks the realisation of his aspirations. But to destroy the guarantees given by Part III in order purportedly to achieve the goals of Part IV is plainly to subvert the Constitution by destroying its basic structure.

Fundamental rights occupy a unique place in the lives. of civilized societies and have been variously described as “transcendental”, “inalienable” and “primordial” and as said in Kesavananda Bharati they constitute the ark of the Constitution. [250B-C, 254H, 255A] The significance of the perception that Parts III and IV together constitute the core of commitment to social revolution and they, together, are the conscience of the Constitution is to be traced to a deep understanding of the scheme of the Indian Constitution. Parts III and IV are like two wheels of a chariot, one no less important than the other. Snap one and the other will lose its efficacy. They are like a twin formula for achieving the social revolution which is the ideal which the visionary founders of the Constitution set 209 before themselves. In other words, the Indian Constitution is founded on the bed-rock of the balance between Parts III and IV. To give absolute primacy to one over the other is to disturb the harmony of the Constitution. This harmony and balance between fundamental rights and directive principles is an essential feature of the basic structure of the Constitution. [255B-D] The edifice of Indian Constitution is built upon the concepts crystallized in the Preamble. Having resolved to constitute ourselves into a Socialist State which carried with it the obligation to secure to our people justice- social, economic and political, Part IV has been put into our Constitution containing directive principles of State Policy which specify the socialistic goal to be achieved.

Having promised the people a democratic polity which carries with it the obligation of securing to the people liberty of thought, expression, belief, faith and worship, equality of status and of opportunity and the assurance that the dignity of the individual will at all costs be preserved, Part III has been put in our Constitution, conferring those rights on the people. Those rights are not an end in themselves but are the means to an end. The end is specified in Part IV.

Therefore, the rights conferred by Part III are subject to reasonable restrictions and the Constitution provides that enforcement of some of them may, in stated uncommon circumstances, be suspended. But just as the rights conferred by Part III would be without a radar and a compass if they were not geared to an ideal, in the same manner the attainment of the ideals set out in Part IV would become a pretence for tyranny if tho price to be paid for achieving that ideal is human freedoms. One of the faiths of our founding fathers was the purity of means. The goals set out in Part IV have, therefore, to be achieved without the abrogation of the means provided for by Part III. It is in this sense that Parts III and IV together constitute the core of our Constitution and combine to form its conscience.

Anything that destroys the balance between the two parts will ipso facto destroy an essential element of the basic structure of our Constitution. [253D-H, 256A-B] (5A) on any reasonable interpretation, there can be no doubt that by the amendment introduced by section 4 of the Forty Second Amendment, Articles 14 and 19 stand abrogated at least in regard to the category of laws described in Article 31C. The startling consequence which the amendment has produced is that even if a law is in total defiance of the mandate of Article 13 read with Articles 14 and 19, its validity will not be open to question so long as its object is to secure a directive principle of State Policy. [256D-E] (6) No doubt, it is possible to conceive of laws which will not attract Article 31C, since they may not bear direct and reasonable nexus with the provisions of Part IV.

However, a large majority of laws, the bulk of them, can at any rate be easily justified as having been passed for the purpose of giving effect to the policy of the State towards securing some principle or the other laid down in Part IV.

In respect of all such laws, which will cover an extensive gamut of the relevant legislative activity, the protection of Articles 14 and 19 will stand wholly withdrawn. It is then no answer to say, while determining whether the basic structure of the Constitution is altered, that at least some laws will fall outside the scope of Article 31C. [256E-H] (7) A total deprivation of fundamental rights, even in a limited area, can amount to abrogation of a fundamental right just as partial deprivation in every area can. The fact, therefore that some laws may fall outside the scope of Article 31C is no answer to the contention that the withdrawal of protection of Articles 14 and 19 from a large number of laws destroys the basic structure of the Constitution. [256H, 257A-B] 210 (8) Article 38 provides 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. It is not correct that all the Directive Principles of State Policy contained in Part TV eventually verge upon Article 38. Article 38 undoubtedly contains a broad guideline, but the other Directive Principles are not mere illustrations of the principle contained in Article 38. Secondly, if it be true that no law passed for the purpose of giving effect to the Directive principle in Article 38 can damage or destroy the basic structure of the Constitution, there was no necessity and more so the justification, for providing by a Constitutional amendment that no law which is passed for giving effect to the policy of the State towards securing any principle laid down in Part IV shall be deemed to be void on the ground that it is inconsistent with or takes away or abridges the rights conferred by Articles 14 and 19.

[257C-F] The object and purpose of the amendment of Article 31C is really to save laws which cannot be saved under Article 19(2) to (6). Laws which fall under those provisions are in the nature of reasonable restrictions on the fundamental rights in public interest and therefore they abridge but do not abrogate the fundamental rights. It was in order to deal with laws which do not get the protection of Article 19(2) to (6) that Article 31C was amended to say that the provisions of Article 19, inter alia cannot be invoked for voiding the laws of the description mentioned in Article 31C. [257F-G] (9) Articles 14 and 19 do not confer any fanciful rights. They confer rights which are elementary for the proper and effective functioning of a democracy They are universally so regarded, as is evident from the Universal Declaration of Human Rights. If Articles 14 and 19 are put out of operation in regard to the bulk of laws which the legislatures are empowered to pass Article 32 will be drained of its life-blood. [257G-H, 258A] Section 4 of the Forty Second Amendment found an easy way to circumvent Article 32(4) by withdrawing totally the protection of Articles 14 and 19 in respect of a large category of laws, so that there will be no violation to complain of in regard to which redress can be sought under Article 32. The power to take away the protection of Article 14 is the power to discriminate without a valid basis for classification. By a long series of decisions the Supreme Court has held that Article 14 forbids class legislation but it does not forbid classification. The purpose of withdrawing the protection of Article 14, therefore, can only be to acquire the power to enact class legislation.

Then again, regional chauvinism will have a field day if Article 19(1)(d) is not available to the citizens. Already, there are disturbing trends on a part of the Indian horizon.

Those trends will receive strength and encouragement if laws can be passed with immunity, preventing the citizens from exercising their right to move freely throughout the territory of India. The nature and quality of the amendment introduced by section 4 of the Forty Second Amendment is, therefore, such that it virtually tears away the heart of basic fundamental freedoms. [258B-E] Article 31C speaks of laws giving effect to the policy of the “State”. Article 12 which governs the interpretation of Article 31C provides that the word “State” in Part III includes the Government and Parliament of India and the Government and the Legislature of each of the States and all local or other 211 authorities within the territory of India or under the control of the Government of India. Wide as the language of Article 31C is, the definition of the word “State” in Article 12 gives to Article 31C an operation of the widest amplitude. Even if a State Legislature passes a law for the purpose of giving effect to the policy by a local authority towards securing a directive principle, the law will enjoy immunity from the provisions of Articles 14 and 19. The State Legislatures are thus given an almost unfettered discretion to deprive the people of their civil liberties.

[258E-G] (10) The principles enunciated in Part IV are not the proclaimed monopoly of democracies alone. They are common to all polities, democratic or authoritarian. Every State is goal-oriented and claims to strive for securing the welfare of its people. The distinction between the different forms of Government consists in that a real democracy will endeavour to achieve its objectives through the discipline of fundamental freedoms like those conferred by Articles 14 and 19. Those are the most elementary freedoms without which a free democracy is impossible and which must, therefore, be preserved at all costs. If the discipline of Article 14 is withdrawn and if immunity from the operation of that article is conferred, not only on laws passed by the Parliament but on laws passed by the State Legislatures also, the political pressures exercised by numerically large groups can tear the country asunder by leaving it to the legislature to pick and choose favoured areas and favourite classes for preferential treatment. [259A-D] (11) The device of reading down the provisions of a law for the purpose of saving it from a constitutional challenge is not to be resorted to in order to save the susceptibilities of the law makers, nor indeed to imagine a law of one’s liking to have been passed. Article 31C cannot be read down so as to save it from the challenge of unconstitutionality because to do so will involve a gross distortion of the principle of reading down depriving that doctrine of its only or true rationale when words of width are used inadvertently one must at least take the Parliament at its word when, especially, it undertakes a constitutional amendment. [259E-G] If the Parliament has manifested a clear intention to exercise an unlimited power, it is impermissible to read down the amplitude of that power so as to make it limited.

The principle of reading down cannot be invoked or applied in opposition to the clear intention of the legislature. In the history of the constitutional law, no constitutional amendment has ever been read down to mean the exact opposite of what it says and intends. In fact, reading down Article 31C so as to make it conform to the ratio of the majority decision in Kesavananda Bharati is to destroy the avowed purpose of Article 31C as indicated by the very heading “Saving of certain laws” under which Articles 31A, 31B and 31C are grouped. Since the amendment to Article 31C was unquestionably made with a view to empowering the legislatures to pass laws of a particular description even if those laws violate the discipline of Articles 14 and 19, it is impossible to hold that the court should still save Article 31C from the challenge of unconstitutionality by reading into that Article words which destroy the rationale of that Article and an intendment which is plainly contrary to its proclaimed purpose. [259H, 280A-C] (12) Reading the existence of an extensive judicial review into Article 31C is really to permit the distortion of the very purpose of that Article. It provides expressly that no law of a particular description shall be deemed to be void on the ground that it violates Article 14 or Article

19. It would be sheer 212 adventurism of a most extraordinary nature to undertake such a kind of judicial enquiry. [260F-G] (13) In the very nature of things it is difficult for a court to determine whether a particular law gives effect to a particular policy. Whether a law is adequate enough to give effect to the policy of the State towards securing a directive principle is always a debatable question and the courts cannot set aside the law as invalid merely because, in their opinion, tho law is not adequate enough to give effect to a certain policy. The power to enquire into the question whether there is a direct and reasonable nexus between the provisions of a law and a Directive Principle cannot confer upon the Courts the power to sit in Judgment over the policy itself of the State. At the highest, courts can, under Article 31C, satisfy themselves as to the identity of the law in the sense whether it bears direct and reasonable nexus with a Directive Principle. If the court is satisfied as to the existence of such nexus, the inevitable consequence provided for by Article 31C must follow. Indeed, if there is one topic on which all the 13 Judges in Kesavananda Bharti were agreed, it is this: that the only question open to judicial review under tho unamended Article 31C was whether there is a direct and reasonable nexus.

between the impugned law and tho provisions of Articles 39(b) and (c). Reasonableness is evidently regarding the nexus and not regarding the law. The. attempt therefore to drape Article 31C into a democratic outfit under which an extensive judicial review would be permissible must fail.

[260H, 261A-E] (14) The avowed purpose of clauses (4) and (5) of Article 368 is to confer power upon the Parliament to amend the Constitution without any “limitation whatever”.

Provisions of this nature cannot be saved by reading into them words and intendment of a diametrically opposite meaning and content. [261F-G] (15) Article 31A(1) can be looked upon as a contemporaneous practical exposition of the intendment of the Constitution, but the same cannot be said of Article 31C. Besides there is a significant qualitative difference between the two Articles. Article 31A, the validity of which has been recognised over the years, excludes the challenge under Articles 14 and 19 in regard to a specified category of laws. If by a constitutional amendment, the application of Articles 14 and 19 is withdrawn from a defined field of legislative activity, which is reasonable in public interest, the basic framework of the constitution may remain unimpaired. If the protection of those articles is withdrawn in respect of an uncatalogued variety of laws, fundamental freedoms will become a ‘parchment in a glass case’ to be viewed as a matter of historical curiosity [262A-C] (16) There is no merit in the contention that since Art. 31A was also upheld on the ground of state decisis.

Art. 31C can be upheld on the same ground. The five matters which are specified in Article 31A are of such quality, nature, content and character that at least a debate can reasonably arise whether abrogation of fundamental rights in respect of those matters will damage or destroy the basic structure of the Constitution. Article 31C does not deal with specific subjects. The directive principles are couched in broad and’ general terms for the simple reason that they specify the goals to be achieved. The principle of state decisis cannot be treated as a fruitful source of perpetuating curtailment of human freedoms. No court has upheld the validity of Article 31A on the ground that it does not violate the basic structure of the Constitution.

There is no decision on the validity of Article 31A which can be looked upon as a measuring rod of the extent of the amending power. To 213 hark back to Article 31A every time that a new constitutional amendment is challenged is the surest means of ensuring a drastic erosion of the Fundamental Rights conferred by Part III. Such a process will insidiously undermine the efficacy of the ratio of the majority judgment in Kesavananda Bharati regarding the inviolability of the basic structure. That ratio requires that the validity of each new constitutional amendment must be judged on its own merits. [262C-G] (17) It is not correct to say that when Article 31A was upheld on the ground of state decisis, what was upheld was a constitutional device by which a class of subject-oriented laws was considered to be valid. The simple ground on which Article 31A was upheld, apart from the ground of contemporaneous practical exposition, was that its validity was accepted and recognised over the years and, therefore, it was not permissible to challenge its constitutionality.

The principle of stare decisis does not imply the approval of the device. Or mechanism which is employed for the purpose of framing a legal or constitutional provision.

[262G-H, 263A-B] (18) Under clauses (2) to (6) of Article 19, restrictions can be imposed only if they are reasonable and then again, they can be imposed in the interest of a stated class of subjects only. It is for the courts to decide whether restrictions are reasonable and whether they are in the interest of the particular subject. Apart from other basic dissimilarities, Article 31C takes away the power of judicial review to an extent which destroys even the semblance of a comparison between its provisions and those of clauses (2) to (6) of Article 19. Human ingenuity, limitless though it may be, has yet not devised a system by which the liberty of the people can be protected except through the intervention of courts of law. [263B-D] Three Articles of the Indian Constitution and only three stand between the heaven of freedom into which Tagore wanted his country to awake and the abyss of unrestrained power. They are Articles 14, 19 and 21. Article 31C has removed two sides of that golden triangle which affords to the people of this country an assurance that the promise held forth by the Preamble will be performed by ushering an egalitarian era through the discipline of fundamental rights, that is, without emasculation of the rights to liberty and equality which alone can help preserve the dignity of the individual. [263D-E] Per Bhagwati, J. (concurring) (1) Since the question in regard to the constitutional validity of the amendment made in Article 31C did not arise in the writ petitions and the counter-affidavits, it was wholly academic and superfluous to decide it. Once it is conceded that Articles 31A, 31B and the unamended Article 31C are constitutionally valid it became wholly unnecessary to rely on the unamended Article 31 in support of the validity of Sick Textiles Undertaking (Nationalisation) Act, 1974 because Article 31B would, in any event, save it from invalidation on the ground of infraction of any of the fundamental rights. [268F-H] (2) Now either the Nationalisation Act was really and truly a law for giving effect to the Directive Principles set out in Article 39 clause (b) as declared in section 39 of the Act or it was not such a law and the legislative declaration contained in section 39 was a colourable device If it was the 214 former then the unamended Article 31C would be sufficient to protect the Nationalisation Act from attack on the ground of violation of Articles 14, 19 and 31 and it would be unnecessary to involve the amended Article 31C and if it was the latter, then neither the unamended nor the amended Article 31C would have any application. Thus in either event, the amended Article 31C would have no relevance at all in adjudicating upon the constitutional validity of the Nationalisation Act. In these circumstances, the court could not be called upon to examine the constitutionality of the amendment made in Article 31C. [269B-E] Dattatraya Govind Mahajan v State of Maharashtra, [1977] INSC 31; [1977] 2 SCR 790, followed.

(3) Clause (4) of Article 368 of the Constitution is unconstitutional and void as damaging the basic structure of the Constitution. [288E] The words “on any ground” in clause (4) of Article 368 are of the widest amplitude and they would obviously cover even a ground that the procedure prescribed in clause (2) and its proviso has not been followed. The result is that even if an amendment is purported to have been made without complying with the procedure prescribed in sub-clause (2) including its proviso, and is therefore unconstitutional, it would still be immune from challenge. [284F-F] As per Kesavananda Bharati’s case any amendment of the Constitution which did not conform to the procedure prescribed by sub-clause (2) and its proviso was no amendment at all and a court would declare it invalid. Thus if an amendment was passed by a simple majority in the House of the People and the Council of States and the President assented to the amendment, it would, in law, be no amendment at all because the requirement of clause (2) is that it should be passed by a majority of each of the Houses separately and by not less than two-third of the Members present and voting. But if clause (4) was valid it would become difficult to challenge the validity of such an amendment and it would prevail though made in defiance of a mandatory constitutional requirement. Clause (2) including its proviso would be rendered completely superfluous and meaningless and its prescription would become merely a paper requirement. Moreover, apart from nullifying the requirements of clause (2) and its proviso, clause (4) has also the effect of rendering an amendment immune from challenge even if it damages or destroys the basic structure of the Constitution and is, therefore, outside the amending power of Parliament. So long as clause (4) stands, an amendment of the Constitution, though unconstitutional and void as transgressing the limitation on the amending power of Parliament as laid down in Kesavananda Bharati’s case, would be unchallengeable in a court of law. The consequence of this exclusion of the power of judicial review would be that, in effect and substance, the limitation on the amending power of Parliament would, from a practical point of view, become non-existent and it would not be incorrect to say, for covertly and indirectly by the exclusion of judicial review the amending power of Parliament would stand enlarged contrary to the decision of this Court in Kesavananda Bharati’s case. This would, undoubtedly, damage the basic structure of the Constitution because there are two essential features of the basic structure which would be violated, namely, the limited amending power of the Parliament and the power of judicial review with a view to examining whether any authority under the Constitution has exceeded the limits of its powers. [284F-H, 285A-D] Our Constitution is a controlled constitution which confers powers on the various authorities created and recognised by it and defines the limits of those 215 powers. The Constitution is suprema lex, the paramount law of the land and there is no authority, no department or branch of the State which is above or beyond the Constitution or has powers unfettered and unrestricted by the Constitution. The Constitution has devised a structure of power relationship which checks and balances and limits are placed on the powers of every authority of instrumentality under the Constitution. Every organ of the State, be it the Executive or the Legislature or the Judiciary, derives its authority from the Constitution and it has to act within the limits of such authority.

Parliament too is a creature of the Constitution and it can only have such powers as are given to it under the Constitution. It has no inherent power of amendment of the Constitution and being an authority created by the Constitution, it cannot have such inherent power but the power of amendment is conferred upon it by the Constitution and it is a limited power which is so conferred. Parliament cannot in exercise of this power so amend the Constitution as to alter its basic structure or to change its identity.

Now, if by constitutional amendment, Parliament was granted unlimited power of amendment, it would cease to be an authority under the Constitution, but would become supreme over it because it would have power to alter the entire Constitution including its basic structure and even to put an end to it by totally changing its identity. Therefore, the limited amending power of Parliament is itself an essential feature of the Constitution, a part of its basic structure, for if the limited power of amendment was enlarged into an unlimited power the entire character of the Constitution would be changed. It must follow as a necessary corollary that any amendment of the Constitution which seeks, directly or indirectly, to enlarge the amending power of Parliament by freeing it from the limitation of unamendability of the basic structure would be violative of the basic structure and, hence, outside the amendatory power of Parliament. [285E-H, 286A-C] It is a fundamental principle of our Constitution that every organ of the State, every authority under the Constitution derives its powers from the Constitution and has to act within the limits of such power. The three main departments of the State amongst which the powers of Government are divided are: the Executive, the Legislature and the Judiciary. Under our Constitution there is no rigid separation of powers but there is a broad demarcation though, having regard to the complex nature of governmental functions, certain degree of overlapping is inevitable. The Constitution has created an independent machinery, namely, the judiciary which is vested with the power of judicial review to determine the legality of executive action and the validity of legislation passed by the Legislature. It is a solemn duty of the judiciary under the Constitution to keep the different organs of the State, such as the Executive and the Legislature, within the limits of the power conferred upon them by the Constitution. This power of judicial review is conferred on the judiciary by Articles 32 and 226 of the Constitution. [286D, E, 287B-C].

It is a cardinal principle of our Constitution that no one, howsoever highly placed and no authority however lofty, can claim to be the sole judge of its power under the Constitution or whether its actions are within the confines of such power laid down by the Constitution. The judiciary is the interpreter of the Constitution and the judiciary is assigned the delicate task to determine what is the power conferred on each branch of Government, whether it is limited, and if so, what are the limits and whether any action of that branch transgresses such limits. It is for the judiciary to uphold the constitutional values and to enforce the constitutional limitations. That is the essence of the rule of law, which inter alia requires that “the exercise of powers by 216 the Government whether it be the legislature or the executive or any other authority, be conditioned by the Constitution and the law”. The power of the judicial review is an integral part of our constitutional system and without it, there will be no Government of Laws and the rule of law would become a teasing illusion and a promise of unreality.

If there is one feature of our Constitution which, more than any other, is basic and fundamental to the maintenance of democracy and the rule of law, it is the power of judicial review and it is unquestionably a part of the basic structure of the Constitution. However, effective alternative institutional mechanism arrangements for judicial review cannot be made by Parliament. Judicial review is a vital principle of our Constitution and it cannot be abrogated without affecting the basic structure of the Constitution. If by a constitutional amendment, the power of judicial review is taken away and it is provided that the validity of any law made by the legislature shall not be liable to be called in question on any ground, even if it is outside the legislative competence of the legislature or is violative of any fundamental rights, it would be nothing short of subversion of the Constitution, for it would make a mockery of the distribution of legislative powers between the Union and the States and render the fundamental rights meaningless and futile. So also if a constitutional amendment is made which has the effect of taking away the power of judicial review and providing that no amendment made in the Constitution shall be liable to be questioned on any ground, even if such amendment is violative of the basic structure and, therefore, outside the amendatory power of Parliament, it would be making Parliament sole judge of the constitutional validity of what it has done and that would, in effect and substance, nullify the limitation on the amending power of Parliament and effect the basic constructure of the Constitution. [287F-H, 288A-E] (4) Clause (5) of Article 368 of the Constitution is unconstitutional and void. [289E-F] After the decisions of Kesavananda Bharati’s case and Smt. Indira Gandhi’s case there was no doubt at all that the amendatory power of Parliament was limited and it was not competent to Parliament to alter the basic structure of the Constitution and clause (5) could not remove the doubt which did not exist. What clause (5) really sought to do was to remove the limitation on the amending power of Parliament and correct it from a limited power into an unlimited one.

This was clearly and indubitably a futile exercise on the part of the Parliament. [288G-H, 289A] The Constitution has conferred only a limited amending power on Parliament, so that it cannot damage or destroy the basic structure of the Constitution and Parliament by exercise of that limited amending power convert that very power into an absolute and unlimited power. If it were permissible to Parliament to enlarge the limited amending power conferred upon it into an absolute power of amendment, then it was meaningless to place a limitation on the original power of amendment. Parliament having a limited power of amendment cannot get rid of the limitation of exercising that very power and convert it into an absolute power. Clause (5) of Article 368 which sought to remove the limitation on the amending power of Parliament by making it absolute, therefore, is outside the amending power of Parliament. However, clause (5) seeks to convert a controlled Constitution into an uncontrolled one by removing the limitation on the amending power of Parliament which is itself an essential feature of the Constitution and it is, therefore, violative of the basic structure. [289B-E] 217 Per contra:

(5) Section 4 of the Constitution (Forty-second Amendment) Act, 1976 making amendments in Article 31C and giving primacy to Directive Principles over Fundamental Rights, in case of conflict between them, does not damage or destroy the basic structure of the Constitution and is within the amending power of Parliament and therefore amended Article 31C is constitutional and valid. [342E-F].

(i) It is not correct to say that Fundamental Rights alone are based on Human Rights while Directive Principles fall in some category other than Human Rights. Fundamental Rights and Directive Principles cannot be fitted in two distinct and strictly defined categories. Broadly stated, Fundamental Rights represent civil and political rights, while Directive Principles embody social and economic rights. Both are clearly part of broad spectrum of human rights. Even, the universal Declaration of Human Rights adopted by the General Assembly of the United Nations on 10th December, 1948 contains not only rights protecting individual freedom (Articles 1 to 21) but also social and economic rights intended to ensure socio-economic justice to every one (Articles 22 to 29). The two other International Covenants adopted by the General Assembly for securing human rights, namely, the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights are also to the same effect. The socio-economic rights embodied in the Directive Principles are as much a part of human rights as the Fundamental Rights. Together, they are intended to carry out the objectives set out in the preamble of the Constitution and to establish an egalitarian social order informed with political, social and economic justice and ensuring dignity of the individual not only to a few privileged persons but to the entire people of the country including the have-nots and the handicapped, the lowliest and the lost. [320C-H] Kesavananda Bharati v. State of Kerala, [1973] Supp.

SCR, referred to.

(ii) Although Fundamental Rights and Directive Principles appear in the Constitution as distinct entities, there was no such demarcation made between them during the period prior to the framing of the Constitution. From the point of view of importance and significance, no distinction was drawn between justiciable and non-justiciable rights by the Fathers of the Constitution and both were treated as forming part of the rubric of Fundamental Rights, the only difference being that whereas the Fundamental Rights were enforceable in Courts of Law, the Directive Principles of social policy were not to be enforceable. [321A-B, 322C-D] (iii) To limit the potential of Fundamental Rights on the ground that they are merely negative obligations requiring the State to abstain as distinct from taking positive action is impermissible. [323D-C] No doubt, it is said that the Fundamental Rights deal with negative obligations of the State not to encroach on individual freedom, while the Directive principles impose positive obligations on the State to take certain kind of actions. Though the latter part may be true that the Directive Principles require positive action to be taken by the State, it is not wholly correct that the Fundamental Rights impose only negative obligations on the State. There are a few Fundamental Rights which have also a positive content, with the result that new dimensions of the Fundamental Rights are being opened up by the Supreme Court and the entire jurisprudence of Fundamental Rights is in a 218 stage of resurgent evaluation. Moreover, there are three Articles, namely, Article 15(2), Article 17 and Article 23 within the category of Fundamental Rights which are designed to protect the individual against the action of other private citizens and seem to impose positive obligations on the State to ensure this protection to the individual. [322 F-H, 323 A-B].

Hussainara Khatoon v. State of Bihar, [1979] 3 SCR 160;

Madhav Hayawadanrao Hoskot v. State of Maharashtra, [1978] INSC 138; [1979] 1 SCR 192 and Sunil Batra etc. v. Delhi Administration & Ors.

etc.[1978] INSC 148; , [1979] 1 SCR 392, followed.

(iv) The only distinguishing feature between Fundamental Rights and Directive Principles of State Policy is that whereas the former are made enforceable in a Court of Law the latter are not. They are not justiciable be cause the social and economic rights and other matters dealt with in the Directive Principles are by their very nature incapable of judicial enforcement and moreover, the implementation of many of those rights would depend on the.

state of economic development in the country, the availability. Of necessary finances and the government’s assessment of priority of objectives and values. But merely because the Directive Principles are non-justiciable, it does not follow that they are in any way subservient or inferior to the Fundamental Rights. [323 B-C, E-F].

(v) The Indian Constitution is first and foremost a social document. The majority of its provisions are either directly aimed at furthering the goals cf the socio-economic revolution or attempt to foster this revolution by establishing the conditions necessary for its achievement.

The Fundamental Rights are no doubt important and valuable in a democracy, but there can be no real democracy without social and economic justice to the common man and to create socio-economic conditions in which there can be social and economic justice to everyone, is the theme of the Directive Principles. It is the Directive Principles which nourish the roots of a democracy, provide strength and vigour to it and attempt to make it a real participatory democracy which does not remain merely a political democracy but also becomes a social and economic democracy with Fundamental Rights available to all irrespective of their power, position or wealth. The dynamic provisions of the Directive Principles fertilise the static provisions of the Fundamental Rights.

The object of the Fundamental Rights is to protect individual liberty, but individual liberty cannot be considered in isolation from the socio-economic structure in which it is to operate. There is a real connection between individual liberty and the shape and form of the social and economic structure of the society. There cannot be any individual liberty at all for the large masses of people who are suffering from want and privation and who are cheated out of their individual rights by the exploitative economic system. Their individual liberty would come in conflict with the liberty of the socially and economically more powerful class and in the process get mutilated or destroyed. The real controversies in the present day society are not between power and freedom but between one form of liberty and another. Under the present socio-economic system, it is the liberty of the few which is in conflict with the liberty of the many. The Directive Principles, therefore, impose an obligation on the State to take positive action for creating socio-economic conditions in which there will be an egalitarian social order with social and economic justice to all so that individual liberty will become a cherished value and the dignity of the individual a living reality, not only for a few privileged persons but for the entire people of the 219 country. Thus, the Directive Principles enjoy a very high place in the constitutional scheme and it is only in the framework of the socio-economic structure envisaged in the Directive Principles that the Fundamental Rights are intended to operate, for it is only then they can become meaningful and significant for the millions of our poor and deprived people, who do not have even the bare necessities of life and who are living below the poverty level. [323F-G, 324C-H, 325A-B].

(vi) Article 37 of the Constitution is an Article of crucial importance unlike the Irish Constitution which provided the inspiration for introducing Directive Principles in our Constitution. Article 37 says that the Directive Principles shall not be enforceable by any court, makes the Directive Principles fundamental in the governance of the country and enacts that it shall be the duty of the State to apply the Directive Principles in making laws. The changes made by the framers of the Constitution are vital and they have the effect of bringing about a total transformation or metamorphosis of this provision, fundamentally altering the significance and efficacy. The Directive Principle are not excluded from the cognizance of the court, as under the Irish Constitution; they are merely made non-enforceable by a court of law. Merely because the Directive Principles are not enforceable in a court of law, it does not mean that they are of subordinate importance to any part of the Constitution or that they cannot create obligations or duties binding on the State. The crucial test which has to be applied is whether the Directive Principles impose any obligations or duties on the State, if they do, the State would be bound by a constitutional mandate to carry out such obligations or duties, even though no corresponding right is created in any one which can be enforced in a court of law. On this question Article 37 is emphatic and make the point in no uncertain terms There could not have been more explicit language used by the Constitution makers to make the Directive Principles binding on the State and there can be no doubt that the State is under a constitutional obligation to carry out this mandate contained in Article 37. In fact, non-compliance with the Directive Principles would be unconstitutional on the part of the State and it would not only constitute a breach of faith with the people who imposed this constitutional obligation on the State but it would also render a vital part of the Constitution meaningless and futile. For the purpose of the Directive Principles, the “State” has the same, meaning as given to it under Article 13 for the purpose of the Fundamental Rights. This would mean that the same State which is injuncted from taking any action in infringement of the Fundamental Rights is told in no uncertain terms that it must regard the Directive Principles as fundamental in the governance of the country and is positively mandated to apply them in making laws. This gives rise to a paradoxical situation and its implications are far reaching. The State is on the one hand prohibited by the constitutional injunction in Article 13 from making any law or taking any executive action which would infringe any Fundamental Right and at the same time it is directed by the constitutional mandate in Article 37 to apply the Directive Principles in the governance of the country and to make laws for giving effect to the Directive Principles. Both are constitutional obligations of the State. When the State makes a law for giving effect to a Directive Principle, it is carrying out a constitutional obligation under Article 37 and if it were to be said that the State cannot make such a law because it comes into conflict with a Fundamental Right, it can only be on the basis that Fundamental Rights stand on a higher pedestal and have precedence over Directive Principles. But it is not correct to say that under 220 our constitutional scheme Fundamental Rights are superior to Directive Principles or that Directive Principles must yield to Fundamental Rights. Both are in fact equally fundamental and the courts have, therefore, tried to harmonise them by importing the Directive Principles in the construction of the Fundamental Rights. For the purpose of determining the reasonableness of the restriction imposed on Fundamental Rights the court may legitimately take into account the Directive Principles and where executive action is taken or legislation enacted for the purpose of giving effect to a Directive Principle, the restriction imposed by it on a Fundamental Right may be presumed to be reasonable. [325C, E-H, 326A-D, 327H, 328A-H, 329A-B].

State of Bihar v. Kameshwar Singh, [1952] SCR 889;

Pathumma v. State of Kerala, [1978] INSC 7; [1978] 2 SCR 537; M/s. Kasturi Lal Lakshmi Reddy etc. v. The State of Jammu & Kashmir & Anr., [1980] 3 SCR p. 1338, applied.

State of Madras v. Champkam Dorairajan, [1951] SCR 529.

dissented from.

In Re Kerala Education Bill, [1959] SCR 995, Referred to.

(vii) If a law is enacted for the purpose of giving effect to a Directive Principle and it imposes a restriction on a Fundamental Right, it would be difficult to condemn such restriction as unreasonable or not in public interest.

So also where a law is enacted for giving effect to a Directive Principle in furtherance of the constitutional goal of social and economic justice it may conflict with a formalistic and doctrinaire view of equality before the law, but it would almost always conform to the principle of equality before the law in its total magnitude and dimension, because the equality clause in the Constitution does not speak of mere formal equality before the law but embodies the concept of real and substantive equality which strikes at inequalities arising on account of vast social and economic differentials and is consequently an essential ingredient of social and economic justice. The dynamic principle of egalitarianism fertilises the concept of social and economic justice; it is one of its essential elements and there can be no real social and economic justice where there is a breach of the egalitarian principle. If, therefore, there is a law enacted by the legislature which is really and genuinely for giving effect to a Directive Principle with a view to promoting social and economic justice, such law does not violate the principle of egalitarianism and is in accord with the principle of equality before the law as understood not in its strict and formalistic sense, but in its dynamic and activist magnitude. In the circumstances, the Court would not be unjustified in making the presumption that a law enacted really and genuinely for giving effect to a Directive Principle in furtherance of the cause of social and economic justice, would not infringe any Fundamental Right under Article 14 or 19. This being the correct interpretation of the constitutional provisions, the amended Article 31C does no more than codify the existing position under the constitutional scheme by providing immunity to a law enacted really and genuinely for giving effect to a Directive Principle, so that needlessly futile and time-consuming controversy whether such law contravenes Article 14 or 19 is eliminated. The amended Article 31C cannot in the circumstances be regarded as violative of the basic structure of the Constitution. [329F-H, 330A-F].

(viia) A law enacted really and genuinely for giving effect to a Directive Principle, in discharge of the constitutional obligation laid down upon the State under Article 37, would not be invalid, because it infringes a fundamental right. If the Court takes the view that it is invalid, it would be placing Fundamental Rights above Directive Principles, a position not supported at all by 221 the history of their enactment as also by the constitutional scheme. The two A constitutional obligations, one in regard to Fundamental Rights and the other in regard to Directive Principles, are of equal strength and merit and there is no reason why, in case of conflict, the former should be given precedence over the latter. Whether or not a particular mandate of the Constitution is justiciable has no bearing at all on its importance and significance and justiciability by itself can never be a ground for placing one constitutional mandate on a higher pedestal than the other. The effect of giving greater weightage to the constitutional mandate in regard to Fundamental Rights would be to relegate the Directive Principles to a secondary position and emasculate the constitutional command that the Directive Principles shall be fundamental in the governance of the country and it shall be the duty of the State to apply them in making laws.

It would amount to refusal to give effect to the words fundamental in the governance of the country” and a constitutional command which has been declared by the Constitution to be fundamental would be rendered non- fundamental. The result would be that a positive mandate of the constitution commanding the State to make a law would be defeated by a negative constitutional obligation not to encroach upon a Fundamental Right and the law made by the legislature pursuant to a positive constitutional command would be delegitimised and declared unconstitutional. This plainly would be contrary to the constitutional scheme because the Constitution does not accord higher place to the constitutional obligation in regard to Fundamental Rights over the constitutional obligation in regard to Directive Principles and does not say that the implementation of the Directive Principles shall only be within the permissible limits laid down in the Chapter on Fundamental Rights.

[330A, 331A-F].

Karimbil Kunhikoman v. State of Kerala, [1962] I SCR 319 (supra) referred to.

(viii) It is not correct to say that consequent to the amendment of Article 31C the Constitution is now made to stand ‘on its head and not on its legs.’ Prior to the amendments, Fundamental Rights had a superior or a higher position in the constitutional scheme than Directive Principles and there is accordingly no question at all of any subversion of the constitutional structure by the amendment. There can be no doubt that the intention of the Constitution makers was that the Fundamental Rights should operate within the socioeconomic structure or a wider continuum envisaged by the Directive Principle, for then only would the Fundamental Rights become exercisable by all and a proper balance and harmony between Fundamental Rights and Directive Principles secured. The Constitution makers, therefore, never contemplated that a conflict would arise between the constitutional obligation in regard to Fundamental Rights and the constitutional mandate in regard to Directive Principles. But if a conflict does arise between these two constitutional mandates of equal fundamental character, since the Constitution did not provide any answer and perhaps for the reason that such a situation was not anticipated, the problem had to be solved by Parliament and some modus operandi had to be evolved in order to eliminate the possibility of conflict howsoever remote it might be. [331G-H, 332A-D].

Parliament took the view that the constitutional obligation in regard to Directive Principles should have precedence over the constitutional obligation in regard to the Fundamental Rights in Articles 14 and 19, because Fundamental Rights though precious and valuable for maintaining the democratic way of life, have absolutely no meaning for the poor, down trodden and economically 222 backward classes of people who unfortunately constitute the bulk of the people of India and the only way in which Fundamental Rights can be made meaningful for them is by implementing the Directive Principles, for the Directive Principles are intended to bring about a socio-economic revolution and to create a new socio-economic order where there will be social and economic justice for all and every one, not only a fortunate few but the teeming millions of India, would be able to participate in the fruits of freedom and development and exercise the Fundamental Rights.

Parliament, therefore, amended Article 31C with a view to providing that in case of conflict Directive Principles shall have precedence over the Fundamental Rights in Articles 14 and 19 and the latter shall yield place to the former. The positive constitutional command to make laws for giving effect to the Directive Principles shall prevail over the negative constitutional obligation not to encroach on the Fundamental Rights embodied in Articles 14 and 19.

[333C-F].

Parliament made the amendment in Article 31C because it realised that “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 man and then all freedoms will vanish” and “in order, therefore, to preserve their freedom, the privileged few must part with a portion of it.” Therefore, it cannot at all be said that the basic structure af the Constitution is affected when for evolving a modus vivandi for resolving a possible remote conflict between two constitutional mandates of equally fundamental character, Parliament decides by way of amendment of Article 31C that in case of such conflict the constitutional mandate in regard to Directive Principles shall prevail over the constitutional mandate in regard to the Fundamental Rights under Articles 14 and 19. The amendment in Article 31C far from damaging the basic structure of the Constitution strengthens and re-enforces it by giving fundamental importance to the rights of the members of the community as against the rights of a few individuals and furthering the objective of the Constitution to build an egalitarian social order where there will be social and economic justice for all, every one including the low visibility areas of humanity in the country will be able to exercise Fundamental Rights and the dignity of the individual and the worth of the human person which are cherished values will not remain merely the exclusive privileges of a few but become a living reality for the many [334H, 335A-D].

(ix) The principle of egalitarianism is an essential element of social and economic justice and, therefore, where a law is enacted for giving effect to a Directive Principle with a view to promoting social and economic justice, it would not run counter to the egalitarian principle and would not therefore be violative of the basic structure, even if it infringes equality before the law in its narrow and formalistic sense. No law which is really and genuinely for giving effect to a Directive Principle can be inconsistent with the egalitarian principle and therefore the protection granted to it under the amended Article 31C against violation of Article 14 cannot have the effect of damaging the basic structure. Therefore, there is no violation of the basic structure involved in the amendment of Article 31C. In fact, one it is accepted that the unamended Article 31C was constitutionally valid, it could only be on the basis that it did not damage or destroy the basic structure of the Constitution, it cannot be said that the amended Article 31C is violative of the basic structure. If the exclusion of the Fundamental Rights embodied in Articles 14 and 19 could be legitimately made for giving effect to the Directive Principles set out in clauses (b) and (e) of Article 39 without affecting the basic structure. these 223 Fundamental Rights cannot be excluded for giving effect to the other Directive Principles. If the constitutional obligation in regard to the Directive Principles set out in clauses (b) and (c) of Article 39 could be given precedence over the constitutional obligation in regard to the Fundamental Rights under Articles 14 and 19, there is no reason in principles why such precedence cannot be given to the constitutional obligation in regard to the other Directive Principles which stand on the same footing. It would be incongruous to hold tho amended Article 31C invalid when the unamended Article 31C has been held to be valid by the majority decision in Kesavananda Bharati’s and by the order, in Waman Rao’s case, dated 9th May, 1980. [335E-H, 336A-C].

(x) It is clear from the language of the amended Article 31C that the law which is protected from challenge under Articles 14 and 19 is law giving effect to the policy of the State towards securing or any of the Directive Principles. Whenever, therefore, any protection is claimed for a law under the amended Article 31C, it is necessary for the Court to examine whether the law has been enacted for giving effect to the policy of the State towards securing any one or more of the Directive Principles and it is only if the court is so satisfied as a result of judicial scrutiny that the court would accord the protection of the amended Article 31C to such law. Now it is undoubtedly true that the words used in the amended Article are “law giving effect to the policy of the State” but the policy of the State which is contemplated there is the policy towards securing one or more of the Directive Principles it is the constitutional obligation of the State to secure the Directive Principles and that is the policy which the State is required to adopt and when a law is enacted in pursuance of this policy of implementing the Directive Principles and it seeks to give effect to a Directive Principle, it would both from the point of grammar and language, be correct to say that it is made for giving effect to the policy of the State towards securing such Directive Principle. The words “law giving effect to the policy of the State” are not so wide but in the context and collocation in which they occur, they are intended to refer only to a law enacted for the purpose of implementing or giving effect to one or more of the Directive Principles. [337A-F].

(xi) The Court before which protection for a particular law is claimed under the amended Article 31C would, therefore, have to examine whether such law is enacted for giving effect to a Directive Principle, for genuinely it would have the protection of the amended Article 31C. A claim that a particular law is enacted for giving effect to Directive Principles put forward by the State would have no meaning or value; it is the court which would have to determine the question. Again it is not enough that there may be some connection between a provision of the law and a Directive Principle. The connection has to be between the law and the Directive Principle and it must G be a real and substantial connection. To determine whether a law satisfies this test, the court would 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 on such examination, the court finds that the dominant object of the law is to give effect to the Directive Principle, it would accord protection to the law under the amended Article 31C. But if the court finds that the law though passed seemingly for giving effect to a Directive Principle, is, in pith and substance, one for accomplishing an unauthorised purpose-unauthorised in the sense of not being covered by any Directive Principle such law would not have the protection of the amended Article 31C. The amended Article 31C does not give protection to 224 a law which has merely some remote or tenuous connection with a Directive. Principle. What is necessary is that there must be a real and substantial connection and the dominant object of the law must be to give effect to the Directive Principle, and that is a matter which the court would have to decide before any claim for protection under the amended Article 31C can be allowed. [337F-H, 338A-B, F-G].

The words used in the amended Article 31C are: “law giving effect to the policy of the State towards securing all or any of the principles laid down in Part IV” and these words on a plain natural construction do not include all the provisions of law but only those which give effect to the Directive Principle. Therefore, it is not every provision of a statute which has been enacted with the dominant’ object of giving effect to a Directive Principle that is entitled to protection but only those provisions of the statute which are basically and essentially necessary for giving effect to the Directive Principles are protected under the amended Article 31C. If there are any other provisions in the statute which do not fall within this category, they would not be entitled to protection and their validity would have to be judged by reference to Articles 14 and 19. Where, therefore, protection is claimed in respect of a statute under the amended Article 31C, the court would have first to determine whether there is real and substantial connection between the law and a Directive Principle and the predominant object of the law is to give effect to such Directive Principle and if the answer to this question is in the affirmative, the court would then have to consider which are the provisions of the law basically and essentially necessary for giving effect to the Directive Principle and give protection of the amended Article 31C only to those provisions. The question whether any particular provision of the law is basically and essentially necessary for giving effect to the Directive Principle, would depend, to a large extent, on how closely and integrally such provision is connected with the implementation of the Directive Principle. If the court finds that a particular provision is subsidiary or incidental or not essentially and integrally connected with the implementation of the Directive Principle or is of such a nature that though seemingly a part of the general design of the main provisions of the statute, the dominant object is to achieve an unauthorised purpose, it would not enjoy the protection of amended Article 31C and would be liable to be struck down as invalid if it violates Article 14 or 19. [338-G-H, 339A, D-H, 340A-D] Akadasi Padhan v. State of Orissa, [1963] 2 Supp. SCR 691; Rashbihari Panda etc. v. State of orissa[1969] INSC 10; , [1969] 3 SCR 374; M/s. Vrailal Manilal & Co. & ors. v. State of Madhya Pradesh & Ors., [1969] INSC 124; [1970] 1 SCR 400 and R. C. Cooper v. Union of India, [1970] INSC 18; [1970] 3 SCR 530, followed.

(xii) If the Court finds that even in a statute enacted for giving effect to a Directive Principle, there is a provision which is not essentially and integrally connected with the implementation of the Directive Principle or the dominant object of which is to achieve an unauthorised purpose it would be outside the protection of the amended Article 31C and would have to meet the challenge of Articles 14 and 19. [340F-H] (xiii) Articles 39 to 51 contain Directive Principles referring to certain specific objectives and in order that a law should be for giving effect to one of those Directive Principles, there would be a real and substantial connection between the law and the specific objective set out in such Directive Principle. Obviously, the objectives set out in these Directive Principles being specific and limited, every law made by a legislature in the country cannot possibly have a real and substantial connection with one or the other of these specific 225 objectives. It is only a limited number of laws which would have a real A and substantial connection with one or the other of the specific objectives contained in these Directive Principles and any and every law would not come within this category. [341A-C].

(xiv) Article 38 is a general article which stresses the obligation of the State to establish a social order in which justice-social, economic and political-shall inform all the institutions of national life. It no doubt talks of the duty of the State to promote the welfare of the people and there can be no doubt that standing by itself this might cover a fairly wide area but the objective set out in the Article is not merely promotion of the welfare of the people? but there is a further requirement that the welfare of the people is to be promoted by the State, not in any manner it likes, not according to its whim and fancy, but for securing and protecting a particular type of social order and that social order should be such as would ensure social, economic and political justice for all. Social, economic and political justice is the objective set out in the Directive Principle in Article 38 and it is this objective which is made fundamental in the governance of the country and which the State is laid under an obligation to realise. This Directive Principle forms the base on which the entire structure of the Directive Principles is reared and social, economic and political justice is the signature tune of the other Directive Principles. The Directive Principles set out in the subsequent Articles following upon Article 38 merely particularise and set out facets and aspects of the ideal of social, economic and political justice articulated in Article 38. [341C-G].

(xv) The concept of social and economic justice may not be very easy of definition but its broad contours are to be found in some of the provisions of the Fundamental Rights and in the Directive Principles and whenever a question arises whether a legislation is for giving effect to social and economic justice, it is with reference to these provisions that the question would have to be determined.

There is nothing so vague or indefinite about the concept of social or economic justice that almost any kind of legislation could be justified under it. Moreover, where a claim for protection is made in respect of a legislation on the ground that it is enacted for giving effect to a Directive Principle, the Directive Principle to which it is claimed to be related would not ordinarily be the general Directive Principle set out in Article 38, but could be one of the specific Directive Principles set out in the succeeding Articles because these latter particularise the concept of social and economic justice referred to in Article 38. Therefore, it is not correct to say that if the amendment in Article 31C were held valid, it would have the effect of protecting every possible legislation under the sun and that would in effect and substance wipe out Articles 14 and 19 from the Constitution. This is a tall and extreme argument, not justified in the provisions of the Constitution. [341H, 342A-D].

HELD further (concurring with the majority):

6. Clause (a) of Article 31A is constitutionally valid even on the application of the basic structure test. [290D].

Where any law is enacted for giving effect to a Directive Principle with the view to furthering the constitutional goal of social and economic justice, there would be no violation of the basic structure, even if it infringes formal equality before the law under Article 14 or any fundamental right under Article 19. Here, clause (a) of Article 31A protects a law of agrarian reform which is clearly in the context of the socio-economic conditions prevailing in 226 India, a basic requirement of social and economic justice and 15 covered by the Directive Principals set out in clause (b) and (c) of Article 39 and it cannot be regarded as violating the basic structure of the Constitution. On the contrary, agrarian reforms leading to social and economic justice to the .. rural population is an objective which strengthens the basic structure of the Constitution. [290B- D].

Even on the basis of the doctrine of stare decisions the whole of Article 31A is constitutionally valid. The view that Article 31A is constitutionally valid has been fallen in atleast three decisions of the Supreme Court, namely, Shankri Prasad’s case, Sajjan Singh’s case and Golaknath’s case and it has hold the field for over 28 years and on the faith of its correctness millions of acres of agricultural land have changed hands and now agrarian relations have come into being transferring the entire rural economy. Even though the constitutional . validity of Article 31A was not tested in these decisions by reference to the basic structure doctrine, the court would not be justified in allowing the earlier decisions to be reconsidered and the question of constitutional validity of Article 31A re- opened. These decisions have given a quietus to the constitutional challenge against the validity of Article 31A and this quietus should not now be allowed to be disturbed.

[290E, 292D, 294G-H 295A].

Shankri Prasad v. Union of India, [19621 2 SCR 89;

Sajjan Singh v. State of Rajasthan, [1965] I SCR 933; I.C.

Golaknath v. Union of India, [1967] INSC 45; [1967] 2 SCR 762; Ambika Prasad Mishra v. State of U.P. and Ors., [1980] 3 SCR . 1159.

followed It is no doubt true that the Supreme Court has power to review its earlier decisions or even depart from them and the doctrine of stare decisions cannot be permitted to perpetuate erroneous decisions of the court to the detriment of the general welfare of the public. Certainty and continuity are essential ingredients of rule of law.

Certainty and applicability of law would be considerably eroded and suffer a serious set back if the highest court in the land were ready to overrule the views expressed by it in! earlier decisions even though that view has held the field for a number of years. It is obvious that when constitutional problems are brought before the Supreme Court for its decision, complete and difficult questions are bound to arise and since the decision of many of such questions may depend upon choice between competing values, two views may be possible depending upon the value judgment or the choice of values made by the individual judge. Therefore. if one view has been taken by the court after mature deliberation the fact that another Bench is inclined to take another view would not justify the court in reconsidering the earlier decision and overrule it. The law laid down by the Supreme Court is binding on all the courts in the country and numerous questions all over the country are decided in accordance with the view taken by the Supreme Court. Many people arrange their affairs and large number of transactions also take place on the faith of the correctness of the decision given by the Supreme Court. It would create uncertainty, unstability and confusion if the law propounded by the Supreme Court on the face of which numerous cases have been decided and many transactions have taken place is held to be not the correct law after a number of years. The doctrine of stare decisions is evolved from the maxim “stare decisions et non quita movere” meaning “adhere to the decision and not unsettle things which are established” and it is a useful doctrine intended to bring about certainty and uniformity in the law. But the doctrine of stare decisions cannot be regarded as a rigid 227 and inevitable doctrine which must be applied at the cost of justice There may be cases where it may be necessary to rid the doctrine of its petrifying rigidity. The court may in an appropriate case overrule a previous decision taken by it, but that should be done only for substantial and compelling reasons. The power of review must be exercised with due care and caution and only for advancing the public well-being and not merely because it may appear that the previous decision was based on an erroneous view of the law. It is only where the perpetuation of the earlier decision would be productive of mischief or inconvenience or would have the effect of deflecting the nation from the course which has been set by the Constitution-makers or “where national crisis of great moment to the life, liberty and safety of this country and its millions are at stake or the basic direction of the nation itself is in peril of a shake up”, that the court would be justified in reconsidering its earlier decision and departing from it. It is fundamental that the nation’s constitution should not be kept in constant uncertainty by judicial review every now and then, because otherwise it would paralyse by perennial suspense all legislative and administrative action on vital issues. The court should not indulge in judicial stabilisation of State action and a view which has been accepted for a long period of time in a series of decisions and on tho faith of which millions of people have acted and a large number of transactions have been effected should not be disturbed. [292G-H, 293A-H, 294A-D].

Ambika Prasad Mishra v. State of U.P. and Anr., [1980] 3 SCR p. 1159. followed.

(7) Article 31B was conceived together with Article 31A as part of the same design adopted to give protection to legislation providing for acquisition of an estate or extinguishment or modification of any rights in an estate.

[295E-F].

The Ninth Schedule of Article 31B was not intended to include laws other than those covered by Article 31A.

Articles 31A and 31B were thus intended to serve the same purpose of protecting the legislation falling within a certain category. It was a double barreled protection which was intended to be provided to this category of legislation, since it was designed to carry out agrarian reform which was so essential for bringing about a revolution in the socio- economic structure of the country: [295F, H, 296A] Since all the earlier constitutional amendments were held valid on the basis of unlimited amending power of Parliament recognised in Shankri Prasad’s case and Sajjan Singh’s case and were accepted as valid in Golakhnath’s case and the Twenty Ninth Amendment Act was also held valid in Kesavananda Bharati’s case, though not on the application of the basic structure test and these constitutional amendments have been recognised as valid over a number of years and moreover, the statutes intended to be protected by them are all falling within Article 31A with the possible exception of only four Acts, it would not be justified in re-opening the question of validity of these constitutional amendment and hence these amendments are valid. [297F-H].

But all constitutional amendments made after the decision in Kesavananda Bharati’s case would have to be decided by reference to the basic structure doctrine, for Parliament would then have no excuse for saying that it did not known the limitation on its amending power. Now out of the statutes which are or may in future be included in the Ninth Schedule by subsequent constitutional amendments, if there are any which fall within a category covered 228 by Article 31A or 31C, they would be protected from challenge under Articles 14 and 19 and it would not be necessary to consider whether their inclusion. in the Ninth Schedule is constitutionally valid, except in those rare cases where protection may be claimed for them against violation of any other. fundamental rights. This question would primarily arise only in regard to statutes not covered by Article 31A or 31C and in case of such statutes, the Court would have to consider whether the constitutional amendments including such statutes in the Ninth Schedule violate the basic structure of the Constitution in granting them immunity from challenge of the fundamental rights. It is possible that in a given case even an abridgement of a fundamental right may involve violation of the basic structure. It would all depend on the nature of the nature of the fundamental right, the extent and depth of the infringement, the purpose for which the infringement is made and its impact on the basic values of the Constitution. For example, right to life and personal liberty enshrined in Article 21, stands on an altogether different footing from other fundamental rights. If this fundamental right is violated by any legislation, it may be difficult to sustain a constitutional amendment which seeks to protect such legislation against challenge under Article 21. So also where a legislation which has nothing to do with agrarian reform or any Directive Principles infringes the equality clause contained in Article 14 and such legislation is sought to be protected by a constitutional amendment by including it in the Ninth Schedule, it may be possible to contend that such constitutional amendment is violative of the egalitarian principle which forms part of the basic structure. However, other situations may arise where infarction of a fundamental right by a statute, is sought to be constitutionally protected might effect the basic structure of the Constitution. In every case, therefore, where a constitutional amendment includes a statute or statutes in the. Ninth Schedule, its constitutional validity would have to be considered by E. reference to the basic structured doctrine and such constitutional amendment would be liable to be declared invalid to the extent to which it damages or destroys the basic structure of the Constitution by according protection against violation of any particular fundamental right. [297H, 298C-H, 299A-B].

(8) Even on principle, the first part of the unamended Article 31C is constitutionally valid. In view of the fact that the first part of the unamended Article 31C was held to be constitutionally valid by the majority decision in Keshavananda Bharati’s case, the question of its constitutional validity cannot be again reopened. It is true, that the ratio decidendi of Keshavananda Bharati’s case was that the amending power of Parliament is limited and Parliament cannot in exercise of the power m f amendment alter the basic structure of the Constitution and the validity of every constitutional amendment has, therefore, to be judged by applying the test whether or not it alters the basic structure of the Constitution and this test was not applied by the six learned Judges, though their conclusion regarding constitutionality of the first part of the unamended Article 31C is valid. Irrespective of the reasons which weighed with each one of the Judges who upheld the validity of the first part of the unamended Article 31C, the reasons for reaching the said conclusion would certainly have a bearing on the determination of the ratio decidendi of the case and the ratio decidendi would certainly be important for the decision of future cases where the validity of the first part or the unamended Article 31C is concerned, it was in so many terms determined by the majority decision in Keshavananda Bharati’s case, and that decision binds. [300E-H, 301A-D, 302C] 229 What the first part of the unamended Article 31C does is merely to abridge the fundamental rights in Articles 14 and 19 by excluding the applicability to legislation giving effect to the policy towards securing the principles specified in clauses (b) and (c) of Article 39. The first part of the unamended Article 31C is basically of the same genre as Article 31A with only this difference that whereas Article 31A protects laws relating to certain subjects, the first part of the unamended Article 31C deals with laws having certain objectives. There is no qualitative difference between Article 31A and the first part of the unamended Article 31C in so far as the exclusion of Articles 14 and 19 is concerned. The fact that the provisions to the first part of the unamended Article 31C are more comprehensive and have greater width compared to those of Article 31A does not make any difference in principle. If Article 31A is constitutionally valid, the first part of the unamended Article cannot be held to be unconstitutional. The first part of the unamended Article 31C, in fact, stands on a more secure footing because it accords protection against infraction of Articles 14 and 19 to legislation enacted for giving effect to the Directive Principles set out in clauses (b) and (c) of Article 39. The legislature in enacting such legislation acts upon the constitutional mandate contained in Article 37 according to which the Directive Principles are fundamental in the governance of the country and it is the duty of the State to apply those principles in making laws. It is for the purpose of giving effect to the Directive Principles set out in clauses (b) and (c) of Article 39 in discharge of the constitutional obligation laid upon the State under Article 37 that fundamental rights in Articles 14 and 19 are allowed to be abridged. A constitutional amendment, therefore, making such a provision cannot be condemned as violative of the basic structure of the Constitution. [301E-H, 302A-C].

(9) Even if the Constitution (Fortieth Amendment Act, 1976 is unconstitutional and void and the Maharashtra Agricultural Lands (Lowering of Ceiling on Holdings) and (Amendment) Act, 1972 (Act 11 of 1975), the . Maharashtra Agricultural Lands (Lowering of Ceiling on Holdings) and (Amendment) Act, 1975, (Act XLVII of 1945) and the Maharashtra Lands (Ceiling on holdings) Amendment Act, 1975, (Act II of 1976) have not been validly included in the Ninth Schedule so as to earn the protection of Article 31B, they are still saved from invalidation by Article 31A and so far as the Constitution (Forty Second Amendment) Act, 1976, is concerned, it is outside the constituent power of Parliament in so far as it seeks to include clauses (4) and (S) in Article 368. [302C-D, G-H].

It is clear on a plain natural construction of its language that under the proviso to Article 83(2) the duration of the Lok Sabha could be extended only during the operation of a proclamation of emergency and if, therefore, no proclamation of emergency was in operation at the relevant time, the House of People (Extension of Duration) Act, 1976 would be outside the competence of Parliament under the proviso to Article 83(2). Again the language of Article 352 (1) makes it clear that the President can take action under this clause only if he satisfies that a grave emergency exists whereby the security of India or any part of the territory thereof is threatened, whether by war or external aggression or internal disturbance. The satisfaction of the President “that a grave emergency exists whereby the security of India.. is threatened whether by war or external aggression or internal disturbance” is a condition precedent which must be fulfilled before the President can issue a proclamation under Article 352 clause (1). When this condition precedent is satisfied, the President may exercise the power under clause (1) of Article 352 and issue a proclamation of emergency. The constitutional implications of a 230 declaration of emergency. under Article 352 clause (1) are vast and they are provided in Articles 83(2), 250, 353, 358 and 359. The emergency being an exceptional situation arising out of a national crisis certain wide and sweeping powers have been conferred on the Central Government and Parliament with a view to combat the situation and restore normal conditions. One such power is that given by Article 83(2) which provides that while a proclamation of emergency is in operation, Parliament may by law extend its duration for a period not exceeding one year at a time. Further several drastic consequences ensue upon the making of a declaration of emergency. The issue of a proclamation of emergency makes serious inroads into the principle of federalism and emasculates the operation and efficacy of the Fundamental Rights. The power of declaring an emergency is, therefore, a power fraught with grave consequences and it has the effect of disturbing the entire power structure under the Constitution. But it is a necessary power given to the Central Government with a view to arming it adequately to meet an exceptional situation arising out of threat to the security of the country on account of war or external aggression or internal disturbance or imminent danger of any such calamity. It is, therefore, a power which has to be exercised with the greatest care and caution and utmost responsibility [303A-B-306E-H, 307E-G].

(10) There is no bar to the judicial review of the validity of a proclamation of emergency issued by the President under Article 352 clause (1). [308B-C].

If a question brought before the court is purely a political question not involving determination of any legal or constitutional right or obligation, the court would not entertain it, since the court is concerned only with adjudication of legal rights and liabilities. Merely because a question has a political colour the court cannot fold its hands in despair and declare “judicial hands off”. So long as the question is whether an authority under the Constitution has acted within the limits of its power or exceeded it, it can certainly be decided by the court.

Indeed it would be its constitutional obligation to do so.

The court is the ultimate interpreter of the Constitution and when there is manifestly unauthorised exercise of power under the Constitution, it is the duty of the court to intervene. In fact, to this Court as much as to other Branches of Government is committed the conservation and furtherance of constitutional values. The Court’s task is to identify those values in the constitutional plan and to work them into life in the cases that reach the Court. “Tact and wise restraint ought to temper any power but courage and the acceptance of responsibility have their place too’. The Court cannot and should not shirk this responsibility because it has sworn the oath of allegiance to the Constitution and is also accountable to the people of this country. It would not, therefore, be right for the Court to decline to examine whether in a given case there is any constitutional violation involved in the President issuing a proclamation of emergency under clause (1) of Article 352.

[308D, F, 309A-C].

The constitutional jurisdiction of this Court does not extend further than saying whether the limits on the power conferred by the Constitution on the President have been observed or there is transgression of such limits. The only limit on the power of the President under Article 352 clause (1) is that the President should be satisfied that a grave emergency exists whereby the security of India or any part thereof is threatened whether by war or external aggression or internal disturbance. The satisfaction of the President is a subjective one and cannot be decided by reference to any objective tests. It is deliberately and advisedly subjective because the matter in respect’ to 231 which he is to be satisfied is of such a nature that its decision must necessarily be left to the Executive Branch of Government. There may be a wide range of situations which may arise and their political implications and consequences may have to . be evaluated in order to decide whether there is a situation of grave emergency by reason of the security of the country being threatened by war or external aggression or internal disturbance. It would largely be a political judgment based on assessment of diverse and varied factors, fast changing situations, potential consequences and a host of other imponderables. It cannot, therefore, by its very nature, be a fit subject matter for adjudication by judicial methods and materials and hence it is left to the subjective satisfaction of the Central Government which is best in a position to decide it. The Court cannot go into the question of correctness or adequacy of the facts and circumstances on which the satisfaction of the Central Government is based. That would ba a dangerous exercise for the Court, both because it is not a fit instrument for determining a question of this land and also because the Court would. thereby usurp the function of the executive and in doing so enter the “political thicket” which it must avoid if it is to retain its legitimacy with the people.

But, if the satisfaction is mala fide or is based on wholly extraneous and irrelevant ground, the Court would have jurisdiction to examine it because in that case there would be no satisfaction of the President in regard to the matter on which he is required to be satisfied The satisfaction of the President is a condition precedent to the exercise of power under Article 352 clause (1) and if it can be shown that there is no satisfaction of the President at all, the exercise of the power would be constitutionally invalid.

[309C-H, 310A-B].

It is true that by reason of clause (5)(a) of Article 352, the satisfaction of the President is made final and conclusive and cannot be assailed on any ground, but, the power of judicial review is a part of the basic structure of the Constitution and hence this provision debarring judicial review would be open to attack on the ground that it is unconstitutional and void as damaging or destroying the basic structure. This attack against constitutionality can, however, be averted by reading the provision to mean that the immunity from challenge granted by it does not apply whore the challenge is not that the satisfaction is improper or unjustified but that there is no satisfaction at all. In such a case it is not the satisfaction arrived at by the President which is challenged but the existence of the satisfaction itself. Where, therefore, the satisfaction is absurd or perverse or mala fide or based on a wholly extraneous and irrelevant ground it would be no satisfaction at all and it would be liable to be challenged before a court notwithstanding clause (5)(a) of Article 352. No doubt, in most cases it would be difficult if not impossible to challenge the exercise of’ power under Article 352 clause (1) even on this limited ground because the facts and circumstances on which the satisfaction is based would not be known, but where it is possible the existence of the satisfaction can always be challenged on the ground that it is mala fide or based on a wholly extraneous or irrelevant ground. [310C-F].

Gormallion v. Lightfoot, [1960] USSC 151; [1960] 364 US 339; Backer v.

Carr[1962] USSC 48; , [1962] 369 US 186, quoted with approval.

State of Rajasthan v. Union of India, [1977] INSC 145; [1977] 3 SCC 592, followed.

Gulam Sarwant v. Union of India, [1966] INSC 267; [1967] 2 SCR 271;

Bhutnath Mato v. State of West Bengal, [1974] INSC 24; [1974] 1 SCC 645, explained.

232 (11) on a plain natural interpreation of the language of sub-clauses (a) to (c) of clause (2) that so long as the proclamation of emergency is not revoked by another proclamation under sub-clause (2)(a), it would continue to be in operation irrespective of change of circumstances.

[312C].

Lakhan Pal v. Union of India, [1966] Supp. SCR 209, applied.

It is true that the power to revoke a proclamation of emergency is vested only in the Central Government and it is possible that the Central Government may abuse this power by refusing to revoke a Proclamation of Emergency even though the circumstances justifying the issue of Proclamation have ceased to exist and thus prolong baselessly the state of emergency obliterating the Fundamental Rights and this may encourage totalitarian trend. But the primary and real safeguard of the citizen against such abuse of power lies in “the good sense of the people and in the system of representative and responsible Government” which is provided in the Constitution. Additionally, it may be possible for the citizen in a given case to move the court for issuing a writ of mandamus for revoking Proclamation of Emergency, if he is able to show by placing clear and cogent material before the court that there is no justification at all for the continuance of the Proclamation of Emergency. But this would be a very heavy onus because it would be entirely for the Executive Government to be satisfied whether a situation has arisen where the Proclamation of Emergency can be revoked. There would be so many facts and circumstances and such diverse considerations to be taken into account by the Executive Government before it can be satisfied that there is no longer any grave Emergency whereby the security of India is threatened by war or external aggression or internal disturbance. This is not a matter which is fit for judicial determination and the court would not interfere with the satisfaction of the Executive Government in this regard unless it is clear on the material on record that there is absolutely no justification for the continuance of the Proclamation of Emergency and the Proclamation is being continued mala fide or for a collateral purpose. The court may in such a case, if satisfied, beyond doubt grant a writ of mandamus directing the Central Government to revoke the Proclamation of Emergency. But until that is done the Proclamation of Emergency would continue in operation and it cannot be said that though not revoked by another Proclamation it has still ceased to be in force. In the present case, it was common ground that the first Proclamation of Emergency issued on 3rd December, 1971 was not revoked by another Proclamation under clause (2)(a) of Article 352 until 21st March, 1977 and hence at the material lime when the House of People (Extension of Duration) Act, 1976, was passed the first Proclamation of Emergency was in operation. [312F-H, 313A-F.].

If the first Proclamation of Emergency was in operation at the relevant time it would be sufficient compliance with the requirement of the proviso to clause (2) of Article 83 and it would be unnecessary to consider whether the second Proclamation of Emergency was validly issued by the President. [313E-F].

(12) The House of People (Extension of Duration) Act, 1976, was enacted under the proviso to clause (2) of Article 83 for the purpose of extending the duration of the Lok Sabha and it was a condition precedent to the exercise of this power by Parliament that there should be a Proclamation of Emergency in operation at the date when the Act was enacted. The words “while the Proclamation of Emergency issued on the 3rd day of December, 1971 233 and on the 25th day of June, 1975 are both in operation” were introduced , merely by way of recital of the satisfaction of the condition precedent for justifying the exercise of the power under the proviso to clause (2) of Article 83 and they were not intended to lay down a condition for the operation of section 2 of the Act. Section 2 clearly and in so many terms extended the duration of the Lok Sabha for a period of one year and extension was not made dependent on both the Proclamations of Emergency being in operation at the date of the enactment of the Act. It was for a definite period of one year that the extension was effected and it was not co-extensive with the operation of both the Proclamations of Emergency. The extension for a period of one year was made once for all by the enactment of section 2 and the reference to both the Proclamations of Emergency being in operation was merely for the purpose of indicating that both the Proclamations of Emergency being in operation, Parliament had competence to make the extension.

It was, therefore, not at all necessary for the efficacy of the extension that both the Proclamations of Emergency should be in operation at the date of enactment of the Act.

Even if one Proclamation of Emergency was in operation at the material date it would be sufficient to attract the power of Parliament under the proviso to Article 83 clause (2) to enact the Act extending the duration of the Lok Sabha. No doubt, Parliament proceeded on the assumption that both the Proclamations of Emergency were in force at the relevant date and they invested Parliament with power to enact the Act. but even if this legislative assumption were unfounded it would not make any difference to the validity of the exercise of the power so long as there was one Proclamation of Emergency in operation which authorised Parliament to extend the duration of the Lok Sabha under the proviso to clause (2) of Article 83. It is true that the proviso to section 2 enacted that if both or either of the Proclamations of Emergency cease or ceases to operate before the expiration of the extended period of one year, the Lok Sabha shall continue until six months after the ceaser of operation of the said Proclamations or Proclamation, not going beyond the period of one year, but the opening part of this proviso can have application only in relation to a Proclamation of Emergency which was in operation at the date of enactment of the Act. If such a Proclamation of Emergency which was in operation at the material date ceased to operate before the expiration of the extended period of one year, then the term of the Lok Sabha would not immediately come to an end, but it would continue for a further period of six months but not so to exceed the extended period of one year. This provision obviously could have no application in relation to the second Proclamation of Emergency if it was void when issued. In such a case, the second Proclamation not being valid at all at the date of issue would not be in operation at all and it would not cease to operate after the date of. enactment of the Act. The proviso would in that event have to be read as relating only to the first Proclamation of Emergency, and since the Proclamation of Emergency continued until it was revoked on 21st March, 1977, the duration of the Lok Sabha was validly extended for a period of one year from 18th March, 1976 and hence there was a validly constituted Lok Sabha on the dates when the Constitution (Fortieth Amendment) Act, 1976 and the Constitution (Forty-second Amendment) Act, 1976, were.

passed by Parliament. (314G-H, 315A-H, 316A-C].

(In view of the settled practice of the Supreme Court not to say any more than is necessary to get a safe resting place for the decision, His Lordship did not consider whether the second Proclamation of Emergency was validly issued.) 234

ORIGINAL JURISDICTION: WRIT PETITION Nos. 356-361 OF 1977.

(Under Article 32 of the Constitution) N. A. Palkhiwala, J. B. Dadachanji, Ravinder Narain, O.

C. Mathur, H. P. Raina, S. Swarup, K. 1. John, Talat Ansari, Mrs. A. K. Verma, S. Thakora, Shri Narain, Robinson, F. S.

Nariman, A. N. Haksar, J. S. Singh and Manzal Kumar for the Petitioners L. N. Sinha, Att. Genl., K. K. Venugopal, Addl. Sol.

Genl., R. N. Sachthey, Grish Chandra, S. Markendaya, Miss A.

Subhashini and P. P. Singh for RR. 1 & 4.

T.V.S. Narasimhachari, M. S. Ganesh and Kailash Vasudeva for RR 2 & 3.

L. N. Sinha, Att. Genl., Miss A. Subhashini for Attorney General of India.

M. N. Shroff for the Advocates General for State of Maharashtra M. M. Ahdul Khader and K. R. Nambiar for the Advocate General for Kerala State.

N. Nettar for the Advocates General for state of Karnataka State.

Pranat Kumar Chatterjee, G. S. Chatterjee and P. K.

Chatterjee for State of West Bengal.

B. M. Patnaik Advt. Genl. and R. K. Mehta for State of Orissa.

S. L. Garg, Adv. Genl and S. K. Gambhir for State of Madhya Pradesh.

R. K. Rastogi, Adv. Genl, Badridas Sharma and Aruneshwar Gupta for State of Rajasthan.

M. V. Goswami and O. P. Rana for State of U.P.

P. H. Parekh for the interveners, M/s, Domestic Cast Pvt. Ltd. and ors. Gocul Gas Pvt. Ltd. and ors. and Parel Investment Pvt. Ltd. and Ors.

M. N. Phadke and N. M. Ghatate for the Applicant interveners M/s. Waman Rao and Ors.

R. K. Garg and V. 1. Francis for The Applicant Intervener Shyam Narain Tewari.

Chinta Subba Rao Applicant intervener in person.

M. C. Bhandare and M. N. Shroff applicant intervener for State of Maharashtra.

235 Capt. Virendra Kumar applicant intervener in person. A N. S. Grewal, B. P. Maheshwari and Suresh Sethi for G.

S. Grewal applicant intervener.

H. K. Puri. for the intervener M/s Shree Sitaram Sugar Co. Ltd.

The following Judgments were delivered: B CHANDRACHUD, C. J.-In Keshavananda Bharati this Court held by a majority that though by Article 368 Parliament is given the power to amend the Constitution. that power cannot be exercised so as to damage the basic features of the Constitution or so as to destroy its basic structure. The question for consideration in this group of petitions under article 32 is whether sections 4 and 55 of the Constitution (42nd Amendment) Act, 1976 transgress that limitation, on the amending power.

Petitioner No. 1 which is a limited company owned a textile undertaking called Minerva Mills situated in the State of Karnataka. This undertaking was nationalised and taken over by the Central Government under the provisions of the Sick Textile Undertakings (Nationalisation) Act, 1974.

Petitioners 2 to 6 are shareholders of Petitioner No. 1, some of whom are also unsecured creditors and some secured creditors.

Respondent 1 is the Union of India. Respondent 2 is the National Textile Corporation Limited in which the textile undertaking of Minerva Mills comes to be vested under section 3(2) of the Nationalisation Act of 1974. Respondent 3 is a subsidiary of the 2nd respondent.

On August 20, 1970, the Central Government appointed a Committee under section 15 of the Industries (Development and Regulation Act, 1951 to make a full and complete investigation of the affairs of the Minerva Mills Ltd., as it was of the opinion that there had been or was likely to be substantial fall in the volume of production. The said Committee submitted its report to the Central Government in January 1971, on the basis of which the Central Government passed an order dated October 19, 1971 under section 18A of the Act of 1951, authorising Respondent 2 to take over the management of the Minerva Mills Ltd. On the ground that its affairs were being managed in a manner highly detrimental to public interest.

236 By these petitions, the petitioners challenge the constitutional validity of certain provisions of the Sick Textile Undertakings (NationaLisation) Act and of the order dated October 19, 1971. We are not concerned with the merits of that challenge at this stage the petitioners further challenge the constitutionality of the Constitution (39th Amendment) Act which inserted the impugned Nationalisation Act as Entry 105 is the 9th Schedule to the Constitution.

That raises a question regarding the validity of article 31B of the Constitution with which we propose to deal in another batch of petitions. Finally, the petitioners challenge the constitutionality Of sections 4 and 55 of the Constitution (42nd Amendment) Act, 1976, and it is this contention alone with which we propose to deal in these petitions.

The challenge to the validity of section 4 and SS of the 42nd Amendment rests on the ratio of the majority judgment in Kesavanand Bharati (Supra). The several opinions rendered in that case have been discussed and analysed threadbare in texts and judgments too numerous to mention.

All the same, we cannot avoid making a brief resume of the majority judgments since the petitioners must stand or fall by them. Those judgments, on the point now in issue, were delivered by Sikri, CJ., Shelat and Grover JJ., Hegde and Mukherjea JJ., Jaganmohan Reddy J. and Khanna J.

Sikri, CJ., held that the fundamental importance of the freedom of the individual has to be preserved for all times to come and that it could not be amended out of existence According to the learned Chief Justice, fundamental rights conferred by Part III of the Constitution cannot be abrogated, though a reasonable abridgement of those rights could be effected in public interest. There is a limitation on the power of amendment by necessary implication which was apparent from a reading of the preamble and therefore, according to the learned Chief Justice, the expression “amendment of this Constitution” in Article 368 means any addition or change in any of the provisions of the Constitution within the broad contours of the preamble, made in order to carry out the basic objectives of the Constitution. Accordingly, every provision of the Constitution was open to amendment provided the basic foundation or structure of the Constitution was not damaged or destroyed.

Shelat and Grover, JJ. held that the preamble to the Constitution contains the clue to the fundamentals of the Constitution. According to the learned Judges, Parts III and IV of the Constitution which respectively embody the fundamental rights and the directive principles 237 have to be balanced and harmonised. This balance and harmony A between two integral parts of the Constitution forms a basic element of the Constitution which cannot be altered.

The word ‘amendment’ occurring in Article 368 must therefore be construed in such a manner as to reserve the power of the Parliament to amend the constitution, but not so as to result in damaging or destroying the structure and identity of the Constitution. There was thus an implied limitation in the amending power which precluded Parliament from abrogating or changing the identity of the Constitution or any of its basic features.

Hegde and Mukherjea, JJ. held that the Constitution of India which is essentially a social rather than a political document, is founded on a social philosophy and as such has two main features: basic and circumstantial. The! basic constituent remained constant, the circumstantial was subject to change. According to the learned Judges, the broad contours of the basic elements and the fundamental features of the Constitution are delineated in the preamble and the Parliament has no power to abrogate or emasculate those basic elements or fundamental features. The building of a welfare State, the learned Judges said, is the ultimate goal of every Government but that does not mean that in order to build a welfare state, human freedoms have to suffer a total destruction. Applying these tests, the learned Judges invalidated Article 31C even in its unamended form.

Jaganmohan Reddy, J., held that the word ‘amendment’ was used in the sense of permitting a change, in contra- distinction, to destruction, which the repeal or abrogation brings about. Therefore, the width of the power of amendment could not be enlarged by amending the amending power itself.

The learned Judge held that the essential elements of the basic structure of the Constitution are reflected in its preamble and that some of the important features of the Constitution are justice, freedom of expression and equality of status and opportunity. The word ‘amendment’ could not possibly embrace the right to abrogate the pivotal features and the fundamental freedoms and therefore, that part of the basic structure could not be damaged or destroyed. According to the learned Judge, the provisions of Article 31C. as they stood then, conferring power on Parliament and the State Legislatures to enact laws for giving effect to the principles specified in clauses (b) and (c) of Article 39, altogether abrogated the right given by Article 14 and were for that reason unconstitutional. In conclusion, the learned Judge held that though the power of amendment was wide. it did not comprehend the power to totally abrogate or emasculate or damage any of the fundamental rights or the essential elements on the basic structure of the Constitution or to 238 destroy the identity of the Constitution. Subject to these limitations, Parliament had the right to amend any and every provision of the Constitution.

Khanna, J. broadly agreed with the aforesaid views of the six learned Judges and held that the word ‘amendment’ postulated that the Constitution must survive without loss of its identity, which meant that the basic structure or framework of the Constitution must survive any amendment of the Constitution. According to the learned Judge. although it was permissible to the Parliament. in exercise of its amending power, to effect changes so as to meet the requirements of changing conditions it was not permissible to touch the foundation or to alter the basic institutional pattern. Therefore, the words “amendment of the Constitution”, in spite of the width of their sweep and in spite of their amplitude, could not have the effect of empowering the Parliament to destroy or abrogate the basic structure or framework of the Constitution.

The summary of the various judgments in Kesavananda Bharati (Supra) was signed by nine out of the thirteen Judges. Paragraph 2 of the summary reads to say that according to the majority, “Article 368 does not enable Parliament to alter the basic structure or framework of the Constitution”. Whether or not the summary is a legitimate part of the judgment, or is per incuriam for the scholarly reasons cited by authors, it is undeniable that it correctly reflects the majority view.

The question which we have to determine on the basis of the majority view in Keshavaananda Bharati (Supra) is whether the amendments introduced by sections 4 and 55 of the Constitution (42nd Amendment) Act, 1976 damage the basic structure of the Constitution by destroying any of its basic features or essential elements.

Section 4 of the 42nd Amendment, which was brought into force with effect from January 3, 1977 amended Article 31C of the Constitution by substituting the words and figures “all or any of the principles laid down in Part IV” for the Words and figures “the principles specified in clause (b) or clause (c) of Article 39”. Article 31C. as amended by the 42nd Amendment Act reads thus:

“31C. Notwithstanding anything contained in article 13. no law giving effect to the policy of the State towards securing all or any of the principles laid down in Part IV shall be deemed to be void on the ground that it is inconsistent with, or takes 239 away or abridges any of the rights conferred by article 14, A 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.” Section 55 of the Constitution (Forty-second Amendment) Act, 1976, which was also brought into force with effect from January 3, 1977 inserted sub-sections (4) and (5) in Article 368 which read thus:

“(4) No amendment of this Constitution (including the provisions of Part III) made or purporting to have been made under this article (whether before or after the commencement of section 55 of the Constitution (Forty-second Amendment) Act, 1976) shall be called in question in any court on any ground.

(5) For the removal of doubts, it is hereby declared that there shall be no limitation whatever on the constituent power – of Parliament to amend by way of addition, variation or repeal the provisions of this Constitution under this article”.

We will first take up for consideration the comparatively easier question as regards the validity of the amendments made by section 55 of the 42nd Amendment. It introduces two new clauses in Article 368, namely, clauses 4 and S. Clause S speaks for itself and is self explanatory.

Its avowed purpose is the “removal of doubts” but after the decision of this Court in Kesavananda Bharati (Supra), there could be no doubt as regards the existence of limitations on the Parliament’s power to amend the Constitution. In the context of the constitutional history of Article 368, the true object of the declaration contained in Article 368 is the removal of those limitations. Clause S confers upon the Parliament a vast and undefined power to amend the Constitution, even, so as to distort it out of recognition.

The theme song of the majority decision in Keshvanand Bharati (Supra) is: ‘Amend as you may even the solemn document which the founding fathers have committed to your care, for you know best the needs of your generation. But, the Constitution is a precious heritage; therefore, you cannot destroy its identity’. The majority conceded to the Parliament the right to make alterations in the Constitution so long as they are within its basic framework. And 240 what fears can that judgment raise or misgivings generate if it only means this and no more: The Preamble assures to the people of India a polity whose basic structure is described therein as a Sovereign Democratic Republic; Parliament may make any amendments to the Constitution as it deems expedient so long as they do not damage or destroy India’s sovereignty and its democratic, republican character.

Democracy is not an empty dream. It is a meaningful concept whose essential attributes are recited in the preamble itself: Justice, social, economic and political; Liberty of thought, expression, belief, faith and worship, and Equality of status and opportunity. Its aim, again as set out in the preamble, is to promote among the people an abiding sense of ‘Fraternity assuring the dignity of the individual and the unity of the Nation’. The newly introduced clause S of Article 368 demolishes the very pillars on which the preamble rests by empowering the Parliament to exercise its constituent power without any “limitation whatever”. No constituent power can conceivably go higher than the sky- high power conferred by clause (S), for it even empowers the Parliament to “repeal the provisions of this Constitution”, that is to say, to abrogate the democracy and substitute for it a totally antithetical form of Government. That can most effectively be achieved, without calling a democracy by any other name, by a total denial of social, economic and political justice to the people, by emasculating liberty of thought, expression, belief, faith and worship and by abjuring commitment to the magnificent ideal of a society of equals. The power to destroy is not a power to amend.

Since the Constitution had conferred a limited amending power on the Parliament, the Parliament cannot under the exercise of that limited power enlarge that very power into an absolute power. Indeed, a limited amending power is one of the basic features of our Constitution and therefore, the limitations on that power cannot be destroyed. In other words, Parliament cannot, under Article 368, expand its amending power so as to acquire for itself the right to repeal or abrogate the Constitution or to destroy its basic and essential features. The donee of a limited power cannot by the exercise of that power convert the limited power into an unlimited one.

The very 42nd Amendment which introduced clauses 4 and 5 in Article 368 made amendments to the preamble to which no exception can be taken. Those amendments are not only within the framework of the Constitution but they give vitality to its philosophy they afford strength and succor to its foundation. By the aforesaid amendments, what was originally described as a ‘Sovereign Democratic Republic’ became a “Sovereign Socialist Secular 241 Democratic Republic” and the resolution to promote the `unity of the Nation’ was elevated into a promise to promote the “unity and integrity of the Nation”. These amendments furnish the most eloquent example of how the amending power can be exercised consistently with the creed of the Constitution. They offer promise of more, they do not scuttle a precious heritage.

In Smt. Indira Nehru Gandhi v. Raj Narain, Khanna, J.

struck down clause 4 of Article 329A of the Constitution which abolished the forum for adjucating upon a dispute relating to the validity of an election, on the ground that the particular Article which was introduced by a constitutional amendment violated the principle of free and fair elections which is an essential postulate of democracy and which, in its turn, is a part of the basic structure of the Constitution. Mathew, J. also struck down the Article on the ground that it damaged the essential feature of democracy. One of us. Chandrachud. J. reached the same conclusion by holding that the provisions of the Article were an outright negation of the right of equality conferred by Article 14, a right which, more than any other, is a basic postulate of the Constitution. Thus whereas amendments made to the preamble by the 42nd Amendment itself afford an illustration of the scope of the amending power, the case last referred to affords an illustration of the limitations on the amending power.

Since, for the reasons above mentioned, clause 5 of Article 368 , transgresses the limitations on the amending power, it must be held to be unconstitutional.

The newly introduced clause 4 of Article 368 must suffer the same fate as clause 5 because the two clauses are inter-linked. Clause 5 purports to remove all limitations on the amending power while clause 4 deprives the courts of their power to call in question any amendment of the Constitution. Our Constitution is founded on a nice balance of power among the three wings of the State, namely the Executive, the Legislature and the Judiciary. It is the function of the Judges, nay their duty, to pronounce upon the validity of laws. If courts are totally deprived of that power, the fundamental rights conferred upon the people will become a mere adornment because rights without remedies are as writ in water. A controlled Constitution will then become uncontrolled. Clause (4) of Article 368 totally deprives the citizens of one of the most valuable modes of redress which is guaranteed by Article 32. The conferment of the right to destroy the identity of the Constitution coupled with the provision that no court of law 242 shall pronounce upon the validity of such destruction seems to us a transparent case of transgression of the limitations on the amending power.

If a constitutional amendment cannot be pronounced to be invalid even if it destroys the basic structure of the Constitution, a law passed in pursuance of such an amendment will be beyond the pale of judicial review because it will receive the protection of the constitutional amendment which the courts will be powerless to strike down. Article 13 of the Constitution will then become a dead letter because even ordinary laws will escape the scrutiny of the courts on the ground that they are passed on the strength of a constitutional amendment which is not open to challenge.

Clause 4 of Article 368 is in one sense an appendage of Clause 5, though we do not like to describe it as a logical consequence of Clause 5. If it be true, as stated in clause 5, that the Parliament has unlimited power to amend the Constitution, courts can have no jurisdiction to strike down any constitutional amendment as unconstitutional. Clause 4, therefore, says nothing more or less than what clause 5 postulates. If clause 5 is beyond the amending power of the Parliament, clause 4 must be equally beyond that power and must be struck down as such.

The next question which we have to consider is whether the amendment made by section 4 of the 42nd Amendment to Article 31C of the Constitution is valid. Mr. Palkhiwala did not challenge the validity of the unamended Article 31C, and indeed that would not be done. The unamended Article 31C forms the subject matter of separate proceeding and we have indicated therein that it is constitutionally valid to the extent to which it was upheld in Keshvananda Bharati (Supra).

By the amendment introduced by section 4 of the 42nd Amendment, provision is made in Article 31C saying that no law giving effect to the policy of the State towards securing “all or any of the principles laid down in Part IV” shall be deemed to be void on the ground that it is inconsistent with or takes away or a bridges any of the rights conferred by Article 14, Article 19 or Article 31. It is manifest that the scope of laws which fall within Article 31C has been expanded vastly by the amendment. Whereas under the original Article 31C, the challenge was excluded only in respect of laws giving effect to the policy of the State towards securing “the principles specified in clause (b) or clause (c) of Article 39” under the amendment.

243 all laws giving effect to the policy of the State towards securing “all or any of the principles laid down in Part IV” are saved from a constitutional challenge under Articles 14 and 19. (The reference to Article 31 was deleted by the 44th Amendment as a consequence of the abolition of the right to property as a fundamental right). The question for consideration in the light of this position is whether section 4 of the 42nd Amendment has brought about a result which is basically and fundamentally different from the one arising under the unamended article. If the amendment does not bring about any such result, its validity shall have to be upheld for the same reasons for which the validity of the unamended article was upheld.

The argument of Mr. Palkhivala, who appears on behalf of the petitioners, runs thus : The amendment introduced by section 4 of the 42nd Amendment destroys the harmony between Parts III and IV of the Constitution by making the fundamental rights conferred by Part III subservient to the directive principles of State Policy set out in Part IV of the Constitution. The Constitution-makers did not contemplate a disharmony or imbalance between the fundamental rights and the directive principles and indeed they were both meant to supplement each other. The basic structure of the Constitution tests on the foundation that while the directive principles are the mandatory ends of government, those ends can be achieved only through permissible means which are set out in Part III of the constitution. In other words, the mandatory ends set out in Part IV can be achieved not through totalitarian methods but only through those which are consistent with the fundamental rights conferred by Part III. If Article 31C as amended by the 42nd Amendment is allowed to stand, it will confer an unrestricted licence on the legislature and the executive, both at the Centre and in the States. to destroy democracy and establish an authoritarian regime. All legislative action and every governmental action purports to be related, directly or indirectly, to some directive principle of State policy. The protection of the amended article will therefore be available to every legislative action under the sun.

Article 31C abrogates the right to equality guaranteed by Article 14, which is the very foundation of a republican form of government and is by itself a basic feature of the Constitution.

The learned counsel further argues that it is impossible to envisage that a destruction of the fundamental freedoms guaranteed by Part III is necessary for achieving the object of some of the directive principles like equal justice and free legal aid, organising village panchayat, providing living wages for workers and just and humane conditions of work. free and compulsory education for 244 children, organisation of agriculture and animal husbandry, an protection of environment and wild life. What the Constituent Assembly had rejected by creating a harmonious balance between Parts III and IV is brought back by the 42nd Amendment.

Finally, it is urged that the Constitution had made provision for the suspension of the right to enforce fundamental rights when an emergency is proclaimed by the President. Under the basic scheme of the Constitution, fundamental rights were to lose their supremacy only during the period that the proclamation of emergency is in operation. Section 4 of the 42nd Amendment has robbed the fundamental rights of their supremacy and made them subordinate to the directive principles of State policy as if there were a permanent emergency in operation. While Article 359 suspends the enforcement of fundamental rights during the Emergency, Article 31C virtually abrogates them in normal times. Thus, apart from destroying one, of the basic features of the Constitution, namely, the harmony between Parts III and IV, section 4 of the 42nd Amendment denies to the people the blessings of a free democracy and lays the foundation for the creation of an authoritarian State.

These contentions were stoutly resisted by the learned Attorney General thus: Securing the implementation of directive principles by the elimination of obstructive legal procedures cannot ever be said to destroy or damage the basic features of the Constitution. Further, laws made for securing the objectives of Part IV would necessarily be in public interest and will fall within Article 19(5) of the Constitution, in so far as clauses (d) and (e) of Article 19(1) are concerned. They would therefore be several in any case. The history of the Constitution. particularly the incorporation of Articles 31(4) and 31(6) and the various amendments made by Articles 31A, 31B and the unamended Article 31C, which were all upheld by this Court, establish the width OB the amending power under Article 368. The impugned amendment therefore manifestly falls within the sweep of the amending Power.

The learned Attorney general further argues: A law which fulfils the directive of Article 38 is incapable of abrogating fundamental freedoms or of damaging the basic structure of the Constitution in as much as that structure itself is founded on the principle of justice, social, economic and political. Article 38, which contains a directive principle, provides 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. A law which complies- 245 with Article 38 cannot conceivably abrogate the fundamental freedoms except certain economic rights and that too, for the purpose of minimising inequalities. A law which will abrogate fundamental freedoms will either bring about social injustice or economic injustice or political injustice. It will thereby contravene Article 38 rather than falling within it and will for that reason be outside the protection of Article 31C. In any event, each and every violation of Article 14 or Article. 19 does not damage the basic structure of the Constitution.

The learned Additional Solicitor General has submitted a carefully prepared chart of 11 decisions of this Court ranging from Anvar Ali Sarkar to Haji Kader Kutty in order to show the possible impact of amended Article 31C on cases where this Court had held provisions of certain statutes to be violative of Article 14. He urged on the basis of his tabulated analysis that there can be many cases which are not relatable to directive principles and will not therefore be saved by the amended article. Those cases are reported in Anwar Ali Sarkar (Supra), Lachmandas Ahuja, Habib Muhammad, Moopil Nair, Jialal, Hazi Abdul Shakur, Devi Das, Osmania University, New Manek Chowk, Anandji Haridas and Haji Kader Kutty (Supra). He has also submitted a chart of 13 cases involving laws relatable to directive principle in which the fundamental rights were abridged but not abrogated. Since abridgement of fundamental rights in public interest is permissible as it does not damage the basic structure, laws similar to those involved in the 13 cases will not have to seek the protection of the amended article. These illustrative cases are: Ram Prasad Sahi, Rao Manohar Singhji, Kunhikaman.

246 Orissa Cement, Krishnaswami Naidu, Mukanchand, Nallaraja Reddy, Jallan Trading Co., Kamrup, Mizo District Council, Balammal, Rashbehari Pande and R. C. Cooper.

The argument of the learned Additional Solicitor General proceeds thus: For extracting the ratio of Keshvananda Bharati (Supra). One must proceed on the basis that there were as many cases as there were declarations sought for by the petitioners therein. The majority in regard to Article 368 is different from the majority in regard to the decision in respect of Article 31C. The binding ratio in regard to Article 368 as well as the ratio resulting in upholding the validity of the first part of the Article 31C will both sustain the validity of section 4 of the 42nd Amendment. In regard to fundamental rights, the ratio of the judgments of 12 out of 13 Judges, i.e., all excepting Jagamohan Reddy J., will empower amendment of each one of the articles in part III, so long as there is no total abrogation of the fundamental rights which constitute essential features of the basic structure of the Constitution. Abrogation of fundamental rights which do not constitute essential features of the basic structure or abridgement of fundamental rights which constitute such essential features is within the permissible limits of amendment. The unamended Article 31C having been upheld by the majority in Kesavanada Bharti both on the ground of stare decisis and on the ground of ‘contemporaneous practical exposition’ the amended Article 31C must be held to be valid, especially since it is not brought about a qualitative change in comparison with the provisions of the unamended article. A harmonious and orderly development of constitutional law would require that the phrases ‘inconsistent with’ or ‘take away’ which occur in Articles 31A, 31B and 31C should be read down to mean ‘restrict’ or ‘abridge’ and not ‘abrogate’. If two constructions of those expressions were reasonably possible, the Court should accept that construction which would render the constitutional amendment valid.

247 The learned counsel further argues: The directive principles, including the one contained in Article 38, do not cover the exercise of each and every legislative power relatable to the Seventh Schedule of the Constitution.

Besides, the directive principles being themselves fundamental in the governance of the country, no amendment of the Constitution to achieve the ends specified in the directive principles can ever alter the basic structure of the Constitution. If the unamended Article 31C is valid in reference to laws relatable to Articles 39(b) and (c), no dichotomy can be made between laws relatable to those provisions on the one hand and laws relatable to other directive principles. A value judgment is not permissible to the Court in this area.

It is finally urged by the learned Additional Solicitor General that judicial review is not totally excluded by the amended Article 31C because it will still be open to the Court to consider:

(i) whether the impugned law has ‘direct and reasonable nexus’ with any of the directive principles.

(ii) whether the provisions encroaching on fundamental rights are integrally connected with and essential for effectuating the directive principles or are at least ancillary thereto;

(iii) whether the fundamental right encroached upon is an essential feature of the basic structure of the Constitution; and (iv) if so, whether the encroachment, in effect, abrogates that fundamental right.

Besides these contentions Mr. R. K. Garg has filed a written brief on behalf of the Indian Federation of Working Journalists, opposing the contentions of Mr. Palkhivala. So have the learned Advocates General of the State of Karnataka and Uttar Pradesh. Mr. Aruneshwar Gupta has filed a brief on behalf of the State of Rajasthan supporting the submissions of Mr. Palkhivala. So has the State of Rajasthan. The Advocates-General of Maharashtra, Kerala, West Bengal and Orissa appeared through their respective advocates.

Both the Attorney General and the Additional Solicitor General have raised a preliminary objection to the consideration of the question raised by the petitioners as regards the validity of Sections 4 and 55 of the 42nd Amendment. It is contended by them that the issue formulated for consideration of the court; “whether the provisions of the Forty-Second Amendment of the Constitution which deprived the Fundamental Rights of their Supremacy and, inter alia, made them subordinate to the directive principles of State Policy are 248 ultra vires the amending power of Parliament?” is too wide and academic. It is urged that since it is the settled practice of the court not to decide academic questions and since property rights claimed by the petitioners under Arts.

19(1)(f) and 31 do not survive after the 44th Amendment, the court should not entertain any argument on the points raised by the petitioners.

In support of this submission reliance is placed by the learned counsel on the decisions of the American Supreme Court in Commonwealth of Massachussetts v. Andrew W. Mellon.

George Ashwander v. Tennesee Valley Authority, and on Weaver’s Constitutional Law, 1946 Edition and American Jurisprudence. Reliance is also placed on certain decisions of this court to which it is unnecessary to refer because the Attorney-General and the Additional Solicitor General are right that it is the settled practice of this Court not to decide academic questions. The American authorities on which the learned counsel rely take the view that the constitutionality of a statute will not be considered and determined by the courts as a hypothetical question, because constitutional questions are not to be dealt with abstractly or in the manner of an academic discussion. In other words, the courts do not anticipate constitutional issues so as to assume in advance that a certain law may be passed in pursuance of a certain constitutional amendment which may offend against the provisions of the Constitution.

Similarly, our Court has consistently taken the view that we will not formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied. It is only when the rights of persons are directly involved that relief is granted by this Court.

But, we find it difficult to uphold the preliminary objection because, the question raised by the petitioners as regards the constitutionality of sections 4 and 55 of the 42nd Amendment is not an academic or a hypothetical question. The 42nd Amendment is there for any one to see and by its sections 4 and 55 amendments have been made to Articles 31C and 368 of the Constitution. An order has been passed against the petitioners under section 18A of the Industries (Development and Regulation) Act, 1951, by which the petitioners are aggrieved. Besides there are two other relevant considerations which must be taken into account while dealing with the preliminary objection. There is no constitutional or statutory inhibition against the decision 249 of questions before they actually arise for consideration.

In view of the importance of the question raised and in view of the fact that the question has been raised in many a petition, it is expedient in the interest of Justice to settle the true position. Secondly, what we are dealing with is not an ordinary law which may or may not be passed so that it could be said that our jurisdiction is being invoked on the hypothetical consideration that a law may be passed in future which will injure the rights of the petitioners.

We are dealing with a constitutional amendment which has been brought into operation and which, of its own force, permits the violation of certain freedoms through laws passed for certain purposes. We, therefore, overrule the preliminary objection and proceed to determine the point raised by the petitioners.

The main controversy in these petitions centres round the question whether the directive principles of State policy contained in Art IV can have primacy over the fundamental rights conferred by Part III of the Constitution. That is the heart of the matter. Every other consideration and all other contentions are in the nature of by-products of that central theme of the case. The competing claims of parts III and IV constitute the pivotal point of the case because, Article 31C as amended by section 4 of the 42nd Amendment provides in terms that a law giving effect to any directive principle cannot be challenged as void on the ground that it violates the rights conferred by Article 14 or Article 19. The 42nd Amendment by its section 4 thus subordinates the fundamental rights conferred by Articles 14 and 19 to the directive principles.

The question of questions is whether in view of the majority decision in Kesavananda Bharati it is permissible to the Parliament to so amend the Constitution as to give a position of precedence to directive principles over the fundamental rights. The answer to this question must necessarily depend upon whether Articles 14 and 19 which must now give way to laws passed in order to effectuate the policy of the State towards securing all or any of the principles of directive Policy are essential features of the basic structure of the Constitution. It is only if the rights conferred by these two articles are not a part of the basic structure. Of the Constitution that they can be allowed to be abrogated by a constitutional amendment. If they are a part of the basic structure they cannot be obliterated out of existence in relation to a category of laws described in Article 31C or, for the matter of that, in relation to laws of any description whatsoever, passed in order to achieve any object or policy whatsoever. This will serve to bring out the point that a total emasculation of the essential features of the Constitution is, by the ratio in Kesavananda Bharati, not permissible to the Parliament.

250 There is no doubt that though the courts have always attached very great importance to the preservation of human liberties, no less importance has been attached to some of the Directive Principles of State Policy enunciated in Part IV. In the words of Granville Austin,. (The Indian Constitution: Corner Stone of a Nation, p. 50) the Indian Constitution is first and foremost a social document and the majority of its provisions are aimed at furthering the goals of social revolution by establishing the conditions necessary for its achievement. Therefore the importance of Directive Principles in the scheme of our Constitution cannot ever be over-emphasized. Those principles project the high ideal which the Constitution aims to achieve. In fact Directive Principles of State policy are fundamental in the governance of the country and the Attorney General is right that there is no sphere of public life where delay can defeat justice with more telling effect than the one in which the common man seeks the realisation of his aspirations. The promise of a better to-morrow must be fulfilled to-day; day after to-morrow it runs the risk of being conveniently forgotten. Indeed so many tomorrows have come and gone without a leaf turning that today there is a lurking danger that people will work out their destiny through the compelled cult of their own “dirty hands”. Words bandied about in marbled halls say much but fail to achieve as much.

But there is another competing constitutional interest which occupies an equally important place in that scheme.

That interest is reflected in the provisions of Part III which confer fundamental rights some on citizens as Articles 15, 16 and 19 do and some on. all persons alike as Articles 14, 20, 21 and 22 do. As Granville Austin says: “The core of the commitment to the social revolution lies in Parts III and IV.. These are the conscience of the Constitution.

It is needless to cite decisions which have extolled and upheld the personal freedoms their majesty, and in certain circumstances, their inviolability. It may however be profitable to see how the American Supreme Court, dealing with a broadly comparable Constitution, has approached the claim for those freedoms.

In Barbara Elfbrandt v. Imogene Russell the U. S.

Supreme Court was considering the constitutionality of an Arizona Statute requiring State employees to take a loyalty oath. Justice Douglas speaking for the majority, observed while striking down the provision that: “Legitimate Legislative goals ‘cannot be pursued by means that broadly stifle fundamental personal liberties when the end can 251 be more narrowly achieved’.. “The objectionable quality of……. overbreadth” depends upon the existence of a statute “susceptible of sweeping and improper application..

These freedoms are delicate and vulnerable as well as supremely precious in our society. The threat of sanctions may deter their exercise almost as potently as the actual application of sanctions”.

In United States v. Herbet Guest, though the right to travel freely throughout the territory of the United States of America does not find an explicit mention in the American Constitution, it was held that the right to travel from one State to another occupied a position fundamental to the concept of the Federal Union and the reason why the right was not expressly mentioned in the American Constitution though it was mentioned in the Articles of Confideration, was that “a right so elementary was conceived from the beginning to be a necessary concomitant of the stronger Union the Constitution created”.

This position was reiterated in Winfield Dunn v. James F. Blumstein. It was held therein that freedom to travel throughout the United States was a basic right under the Constitution and that the right was an unconditional personal right whose exercise may not be conditioned.

Therefore, any classification which serves to penalize the exercise of that right, unless shown to be necessary to promote a compelling governmental interest, was unconstitutional.

In New York Times Company v. United States the United States Government sought an injunction against the publication, by the New York Times, of the classified study entitled “History of U. S. Decision-Making Process on Viet Nam Policy”. It was held by a majority of six Judges that any system of prior restraints of expression comes to the United States Supreme Court bearing a heavy presumption against its constitutional validity, and a party. who seeks to have such a restraint upheld thus carries a heavy burden of showing justification for the imposition of such a restraint.

In National Association for the Advancement of Coloured People v. State of Alabama, a unanimous court while dealing with an attempt to oust the National Association of Coloured People from the State of Alabama held:

“In the domain of these indispensable liberties, whether of speech, press, or association, the decisions of this Court recognise that abridgement of such rights, even though unintended, may 252 inevitably follow from varied forms of governmental action”.

In Frank Palko v. State of Connecticut. Justice Cardozo delivering the opinion of the Court in regard to the right to freedom of thought and speech observed “Of that freedom one may say that it is the matrix, the indispensable condition, of nearly every other form of freedom”.

In Jesse Cantwell v. State of Connecticut, Justice Roberts who delivered the opinion of the Court observed:

“In the realm of religious faith, and in that of political belief, sharp differences arise. In both fields the tenets of one man may seem the rankest error to his neighbour. To persuade others to his own point of view, the pleader, as we know, at times, resorts to exaggeration, to vilification of men who have been or are, prominent in church or state, and even to false statement. But the people of this nation have ordained in the light of history, that, in spite of the probability of excesses and abuses, these liberties are, in the long view, essential to enlightened opinion and right conduct on the part of the citizens of a democracy. The essential characteristic of these liberties is, that under their shield many types of life, character, opinion and belief can develop unmolested and unobstructed, Nowhere is this shield more necessary than in our own country for a people composed of many races and of many creeds. There are limits to the exercise of these liberties. The danger in these times from the coercive activities of those who in the delusion of racial or religious conceit would incite violence and breaches of the peace in order to deprive others of their equal right to the exercise of their liberties, is emphasized by events familiar to all. These and other transgressions of those limits the states appropriately may punish”.

In Arthur Terminiello v. City of Chicago, Justice Douglas delivering the majority opinion of the Court, while dealing with the importance of the right to free speech, observed:

“The vitality of civil and political institutions in our society depends on free discussion. As Chief Justice Hughes wrote in De Jonge v. Oregon, it is only through free debate and free 253 exchange of ideas that government remains responsive to the will of the people and peaceful change is effected, The right to speak freely and to promote diversity of ideas and programmes is therefore one of the chief distinctions that sets us apart from totalitarian regimes.

Accordingly a function of free speech under our system of government is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger.

Speech is often provocative and challenging. It may strike at prejudices and preconceptions and have profound unsettling effects as it presses for acceptance of an idea. That is why freedom of speech, though not absolute (Chaplinsky v. New Hampshire), is nevertheless protected against censorship or punishment unless shown likely to, produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance, or unrest. See Bridges v. California; Craig v. Horney. There is no room under our Constitution for a more restrictive view. For the alternative would lead to standardization of ideas either by legislatures, courts, or dominant political or community groups.” The history of India’s struggle for independence and the debates of the Constituent Assembly show how deeply our people value their personal liberties and how those liberties are regarded as an indispensable and integral part of our Constitution. It is significant that though Parts III and IV appear in the Constitution as two distinct fasciculus of articles, the leaders of our independence movement drew no distinction between the two kinds of State’s obligations- negative and positive. “Both types of rights had developed as a common demand, products of the national and social revolutions, of their almost inseparable intertwining, and of the character of Indian politics – itself(4)”. The demand for inalienable rights traces its origin in India to the 19th Century and flowered into the formation of the Indian National Congress in 1885. Indians demanded equality with their British rulers on the theory that the rights of the subjects cannot in a democracy be inferior to those of the rulers. Out of that demand grew the plants of equality and free speech. Those and other basic rights found their expression in Article 16 of The Constitution of 254 India Bill, 1895. A series of Congress resolutions reiterated that demand between 1917 and 1919. The emergence of Mahatma Gandhi; on the political scene gave to the freedom movement a new dimension: it ceased to be merely anti-British it became a movement for the acquisition of rights of liberty for the Indian Community. Mrs. Besan’t Commonwealth of India Bill, 1925 and the Madras Congress resolution of 1928 provided a striking continuity for that movement. The Motilal Nehru Committee appointed by the.

Madras Congress resolution said at pp. 89-90:

“It is obvious that our first care should be to have our Fundamental Rights guaranteed in a manner which will not permit their withdrawal under any circumstances.. Another reason why great importance attaches to a Declaration of Rights is the unfortunate existence of communal differences in the country.

Certain safeguards are necessary to create and establish a sense of security among those who look upon each other with distrust and suspicion. We could not better secure the full enjoyment of religious and communal rights to all communities than by including them among the basic principles of the Constitution.” India represents a mosaic of humanity consisting of diverse religious linguistic and caste groups. The rationale behind the insistence on fundamental rights has not yet lost its relevance, alas or not, The Congress session of Karachi adopted in 1931 the Resolution on Fundamental Rights as well as on Economic and Social change. The Sapru Report of 1945 said that the fundamental rights should serve as a “standing warning” to all concerned that:

“what the Constitution demands and expects is perfect. equality between one section of the Community and another in the matter of political and civic rights equality of liberty and security in the enjoyment of the freedom of religion, worship and the pursuit of the ordinary applications of life”. (p. 260).

The Indian nation marched to freedom in this background. The Constituent Assembly resolved to enshrine the fundamental rights in the written text of the Constitution. The interlinked goals of personal liberty and economic freedom then came to be incorporated in two separate parts, nevertheless parts of an integral, indivisible scheme which was carefully and thoughtfully nursed over half a century. The seeds sown in the 19th Century saw their fruition in 1950 under the leadership of Jawaharlal Nehru and Dr. Ambedkar. To destroy the guarantees given by Part III in order purportedly to achieve the goals of Part IV is plainly to subvert the Constitution by destroying its basic structure.

255 Fundamental rights occupy a unique place in the lives of civilized societies and have been variously described in our Judgments as “transcendental”, “inalienable” and “primordial”. For us, it has been said in Kesavananda Bharti (p. 991), they constitute the ark of the constitution.

The significance of the perception that Parts III and IV together constitute the core of commitment to social revolution and they, together, are the conscience of the Constitution is to be traced to a deep understanding of the scheme of the Indian Constitution. Granville Austin’s observation brings out the true position that Parts III and IV are like two wheels of a chariot, one no less important than the other. You snap one and the other will lose its efficacy. They are like a twin formula for achieving the social revolution, which is the ideal which the visionary founders of the Constitution set before themselves. In other words, the Indian Constitution is founded on the bed-rock of the balance between Parts III and IV. To give absolute primacy to one over the other is to disturb the harmony of the Constitution. This harmony and balance between fundamental rights and directive principles is an essential feature of the basic structure of the Constitution.

This is not mere semantics. The edifice of our Constitution is built upon the concepts crystallised in the Preamble. We resolved to constitute ourselves into a Socialist State which carried with it the obligation to secure to our people justice-social, economic and political.

We, therefore, put part IV into our Constitution containing directive principles of State policy which specify the socialistic goal to be achieved. We promised to our people a democratic polity which carries with it the obligation of securing to the people liberty of thought, expression, belief, faith and worship; equality of status and of opportunity and the assurance that the dignity of the individual will at all costs be preserved. We, therefore, put Part, III in our Constitution conferring those rights on the people. Those rights are not an end in themselves but are the means to an end. The end is specified in Part IV.

Therefore, the rights conferred by Art III are subject to reasonable restrictions and the Constitution provides that enforcement of some of them may, in stated uncommon circumstances, be suspended. But just as the rights conferred by Part III would be without a radar and a compass if they were not geared to an ideal, in the same manner the attainment of the ideals set out in Part IV would become a pretence for tyranny if the price to be paid for achieving that ideal is human freedoms. One of the faiths of our founding fathers was the purity of means. Indeed, under our law, even a dacoit who has committed a murder cannot be put to death 256 in the exercise of right of self-defence after he has made good his escape. So great is the insistence of civilised laws on the purity of means. The goals set out in Part IV have, therefore, to be achieved without the abrogation of the means provided for by Part III. It is in this sense that Parts III and IV together constitute the core of our Constitution and combine to form its conscience. Anything that destroys the balance between the two parts will ipso facto destroy an essential element of the basic structure of our Constitution.

It is in this light that the validity of the. amended Article 31C has to be examined. Article 13(2) says that the State shall not make any law which takes away or abridges the rights conferred by Part Ill and any law made in contravention of that clause shall to the extent of the contravention be void. Article 31C begins with a non- obstante clause by putting Article 13 out of harm’s way. It provides for a certain consequence notwithstanding anything contained in Article 13. It then denudes Articles 14 and 19 of their functional utility by providing that the rights conferred by these Articles will be no barrier against passing laws for giving effect to the principles laid down in Part IV. On any reasonable interpretation, there can be no doubt that by the amendment introduced by section 4 of the 42nd Amendment, Articles 14 and 19 stand abrogated at least in regard to the category of laws described in Article 31C. The startling consequence which the amendment has produced is that even if a law is in total defiance of the mandate of Article 13 read with Articles 14 and 19, its validity will not be open to question so long as its object is to secure a directive principle of state Policy. We are disposed to accept, the submission of the learned Solicitor General, considering the two charts of cases submitted by him, that it is possible to conceive of laws which will not attract Article 31C since they may not bear direct and reasonable nexus with the provisions of Part IV. But, that, in our opinion, is beside the point. A large majority of laws, the bulk of them, can at any rate be easily justified as having been passed for the purpose of giving effect to the policy of the State towards securing some principle or the other laid down in Part IV. In respect of all such laws, which will cover an extensive gamut of the relevant legislative activity, the protection of Articles 15 and 19 will stand wholly withdrawn. It is then no answer to say, while determining whether the basic structure of the Constitution is altered, that at least. some laws will fall outside the scope of Article 31C.

We have to decide the matter before us not by metaphysical subtlety, nor as a matter of semantics, but by a broad and liberal approach. We must not miss the wood for the trees. A total 257 deprivation of fundamental rights, even in a limited area, can amount to abrogation of a fundamental right just as partial deprivation in every area can. An author, who writes exclusively on foreign matters, shall have been totally deprived of the right of free speech and expression if he is prohibited from writing on foreign matters. The fact therefore that some laws may fall. Outside the scope of Article 31C is no answer to the contention that the withdrawal of protection of Articles 14 and 19 from a large number of laws destroys the basic structure of the Constitution.

It was repeatedly impressed upon us, especially by the Attorney General, that Article 38 of the Constitution is the king-pin of the directive principles and no law passed in order to give effect to the principle contained therein can ever damage or destroy the basic structure of the Constitution. That Article provides 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. We are unable to agree that all the directive Principles of State Policy contained in part IV eventually verge upon Article 38.

Article 38 undoubtedly contains a broad guideline, but the other directive principles are not mere illustrations of the principle contained in Article 38. Secondly, if it be true that no law passed for the purpose of giving effect to the directive principle contained in Article 38 can damage or destroy the basic structure of the Constitution, what was the necessity, and more so the justification. for providing by a constitutional amendment that no law which is passed for giving effect to the policy of the State towards securing any principle laid down in Part IV shall be deemed to be void on the ground that it is inconsistent with or takes away or abridges the rights conferred by Articles 14 and 19 ? The object and purpose of the amendment of Article 31C is really to save laws which cannot be saved under Article 19(2) to (6). Laws which fall under those provisions are in the nature of reasonable restrictions on the fundamental rights in public interest and therefore they abridge but do not abrogate the fundamental rights It was in order to deal with laws which do not get the protection of Article 19(2) to (6) that Article 31 was amended to say that the provisions of Article 19, inter alia, cannot be invoked for voiding the laws of the description mentioned in Article 31C.

Articles 14 and 19 do not confer any fanciful rights.

They confer rights which are elementary for the proper and effective functioning of a democracy. They are universally so regarded, as is evident from the universal Declaration of Human Rights. Many countries in the civilised world have parted with their sovereignty in the hope and belief 258 that their citizens will enjoy human freedoms. And they preferred to be bound by the decisions and decrees of foreign tribunals on matters concerning human freedoms. If Articles 14 and 19 are put out of operation in regard to the bulk of laws which the legislatures are empowered to pass, Article 32 will be drained of its life-blood. Article 32(4) provides that the right. guaranteed by Article 32 shall not be suspended except as otherwise provided for by the Constitution. Section 4 of the 42nd Amendment found an easy way to circumvent Article 32(4) by withdrawing totally the protection of Articles 14 and 19 in respect of a large category of laws, so that there will be no violation to complain of in regard to which redress can be sought under Article 32. The power to take away the protection of Article 14 is the power to discriminate without a valid basis for classification. By a long series of decisions this Court had held that Article 14 forbids class legislation but it does not forbid classification. The purpose of withdrawing the protection of Article 14, therefore, can only be to acquire the power to enact class legislation. Then again, regional chauvinism will have a field day if Article 19(1)(d) is not available to the citizens. Already, there are disturbing trends on a part of the Indian horizon. Those trends will receive strength and encouragement if laws can be passed with immunity, preventing the citizens from exercising their right to move freely throughout the territory of India. The nature and quality of the amendment introduced by section 4 of the 42nd Amendment is therefore such that it virtually tears away the heart of basic fundamental freedoms.

Article 31C speaks of laws giving effect to the policy of the “State”. Article 12 which governs the interpretation of Article 3 LC provides that the word “State” in Part III includes the Government and Parliament of India and the Government and the Legislature of each of the States and all local or other authorities within the territory of India or under the control of the Government of India. Wide as the language of Article 31C is, the definition of the word “State” in Article 12 gives to Article 31C an operation of the widest amplitude. Even if a State Legislature passes a law for the purpose of giving effect to the policy by a local authority towards securing a directive principle, the law will enjoy immunity from the provisions of Articles 14 and 19. The State Legislatures are thus given an almost unfettered discretion to deprive the people of their civil liberties.

The learned Attorney General argues that the State is under an obligation to take steps for promoting the welfare of the people by bringing about a social order in which social, economic and political justice shall inform all the institutions of the national life. He says that the deprivation of some of the fundamental rights for the purpose 259 of achieving this goal cannot possibly amount to a destruction of the basic structure of the Constitution. We are unable to accept this contention. The principles enunciated in Part IV are not the proclaimed monopoly of democracies alone. They are common to all polities, democratic or authoritarian. Every State is goal-oriented and claims to strive for securing the welfare of its people.

The distinction between the different forms of Government consists in that a real democracy will endeavour to achieve its objectives through the discipline of fundamental freedoms like those conferred by Articles 14 and 19. Those are the most elementary freedoms without which a free democracy is impossible and which must therefore be preserved at all Costs. Besides, as observed by Brandies, J., the need to protect liberty is the greatest when Government’s purposes are beneficent. If the discipline of Article 14 is withdrawn and if immunity from the operation of that article is conferred, not only on laws passed by the Parliament but on laws passed by the State Legislatures also, the political pressures exercised by numerically large groups can tear the country asunder by leaving it to the legislature to pick and choose favoured areas and favourite classes for preferential treatment.

The learned Attorney General and the learned Solicitor General strongly impressed upon us that Article 31C should be read down so as to save it from the challenge of unconstitutionality. It was urged that it would be legitimate to read into that Article the intendment that only such laws would be immunised from the challenge under Articles 14 and 19 as do not damage or destroy the basic structure of the Constitution. The principle of reading down the provisions of a law for the purpose of saving it from a constitutional challenge is well-known. But we find it impossible to accept the contention of the learned counsel in this behalf because, to do so will involve a gross distortion of the principle of reading down, depriving that doctrine of its only or true rationale when words of width are used inadvertently. The device of reading down is not to be resorted to in order to save the susceptibilities of the law makers, nor indeed to imagine a law of one’s liking to have been passed. One must at least take the Parliament at its word when, especially, it undertakes a constitutional amendment.

Mr. Palkhivala read out to us an extract from the speech of the then Law Minister who, while speaking on the amendment to Article 31 C, said that the amendment was being introduced because the government did not want the “let and hindrance” of the fundamental rights. If the Parliament has manifested a clear intention to exercise an unlimited power, it is impermissible to read down the amplitude of 260 that power so as to make it limited. The principle of reading down cannot be invoked or applied in opposition to the clear intention of the legislature. We suppose that in the history of the constitutional law, no constitutional amendment has ever been read down to mean the exact opposite of what it says and intends. In fact, to accept the argument that we should read down Article 31C, so as to make it conform to the ratio of the majority decision in Kesavanda Bharti, is to destroy the avowed purposes of Article 31C as indicated by the very heading “Saving of certain laws” under which Articles 31A, 31B and 31C are grouped. Since the amendment to Article 31C was unquestionably made with a view to empowering the legislatures to pass laws of a particular description even if those laws violate the discipline of Articles 14 and 19, it seems to us impossible to hold that we should still save Article 31C from the challenge of unconstitutionality by reading into that Article words which destroy the rationale of that Article and an intendment which is plainly contrary to its proclaimed purpose.

A part of the same argument was pressed upon us by the learned Additional Solicitor General who contended that it would still be open to the Courts under Article 31C to decide four questions: (1) Does the law secure any of the directive principles of the Stats policy? (ii) Is it necessary to encroach upon fundamental rights in order to secure the object of the directive principles? (iii) what is the extent of such encroachment, if any? and (iv) Does that encroachment violate the basic structure of the Constitution? This argument is open to the same criticism to which the argument of the learned Attorney General is open and which we have just disposed of. Reading the existence of an extensive judicial review into Article 31C is really to permit the distortion of the very purpose of that article.

It provides expressly that no law of a particular description shall be deemed to be void on the ground that it violate Article 14 or Article 19. It would be sheer adventurism of a most extraordinary nature to undertake the kind of judicial enquiry which, according to the learned Additional Solicitor General, the courts are free to undertake.

We must also mention, what is perhaps not fully realised, that Article 31C speaks of laws giving effect to the “Policy of the State”, “towards securing all or any of the principles laid down in Part IV.”‘ In the very nature of things it is difficult for a court to determine whether a particular law gives effect to a particular policy. Whether a law is adequate enough to give effect to the policy of the State towards securing a directives principle is always a debatable question 261 and the courts cannot set aside the law as invalid merely because, in their opinion, the law is not adequate enough to give effect to a certain policy. In fact, though the clear intendment of Article 31C is to shut out all judicial review, the argument of the learned Additional Solicitor General calls for a doubly or trebly extensive judicial review than is even normally permissible to the courts. Be it be remembered that the power to enquire into the question whether there is a direct and B. reasonable nexus between the provisions of a law and a directive principle cannot confer upon the courts the power to sit in judgment over the policy itself of the State. At the highest, courts can, under Article 31C, satisfy themselves as to the identity of the law in the sense whether it bears direct and reasonable nexus with a directive principle. If the court is satisfied as to the existence of such nexus, the inevitable consequence provided for by Article 31C must follow. Indeed, if there is one topic on which all the 13 Judges in Kesavananda Bharati were agreed, it is this: that the only question open to judicial review under the unamended Article 31 was whether there is a direct and reasonable nexus between the impugned law and the provisions of Article 39(b) and (c). Reasonableness is evidently regarding the nexus and not regarding the law. It is therefore impossible to accept the contention that it is open to the courts to undertake the kind of enquiry suggested by the Additional Solicitor General. The attempt therefore to drape Article 31C into a democratic outfit under which an extensive judicial review would be permissible must fail.

We should have mentioned that a similar argument was advanced in regard to the amendment effected by section 55 of the 42nd Amendment to Article 368, by the addition of clauses (4) and (5) therein. It was urged that we should so construe the word “amendment” in clause (4) and the word “amend” in clause 5 as to comprehend only such amendments as do not destroy the basic structure of thy Constitution. That argument provides a striking illustration of the limitations of the doctrine of reading down. The avowed purpose. Of clauses (4) and (5) of Article 368 is to confer power upon the Parliament to amend the Constitution without any “limitation whatever”. Provisions of this nature cannot be saved by reading into them words and intendment of a diametrically opposite meaning and content.

The learned Attorney General then contends that Article 31C should be upheld for the same reasons for which Article 31A(1) was upheld. Article 31A (1) was considered as a contemporaneous practical exposition of the Constitution since it was inserted by the very First Amendment which was passed in 1951 by the same body of persons who were members of the Constituent Assembly. We can understand:

262 that Article 31A can be looked upon as a contemporaneous Practical exposition of the intendment of the Constitution, but the same cannot be said of Article 31C. Besides, there is a significant qualitative difference between the two Articles. Article 31A, the validity of which has been recognised over the years excludes the challenge under Articles 14 and 19 in regard to a specified category of laws. If by a constitutional amendment, the application of Articles 14 and 19 is withdrawn from a defined field of legislative activity, which is reasonably in public interest, the basic framework of the constitution may remain unimpaired. But if the protection of those articles is withdrawn in respect of an uncatalogued variety of laws, fundamental freedoms will become a ‘parchment in a glass case’ to be viewed as a matter of historical curiosity.

An attempt was made to equate the provisions of Article 31 with those of Article 31A in order to lend plausibility to the contention that since Article 31A was also upheld on the ground of stare decisis Article 31 can be upheld on the same ground. We see no merit in this contention. In the first place, as we have indicated above. the five matters which are specified in Article 31A are of such quality, nature, content and character that at least a debate can reasonably arise whether abrogation of fundamental rights in respect of those matters will damage or destroy the basic structure of the Constitution. Article 31C does not deal with specific subjects. The directive principles are couched in broad and general terms for the simple reason that they specify the goals to be achieved. Secondly, the principle of stare decisis cannot be treated as a fruitful source of perpetuating curtailment of human freedoms. No court has upheld the validity of Article 31A on the ground that it does not violate the basic structure of the Constitution.

There is no decision on the validity of Article 31A which can be looked upon as a measuring rod of the extent of the amending power. To hark back to Article 31A every time that a new constitutional amendment is challenged is the surest means of ensuring a drastic erosion of the fundamental rights conferred by Part III. Such a process will insidiously undermine the efficacy of the ratio of the majority judgment in Kesavananda Bharati regarding the inviolability of the basic structure. That ratio requires that the validity of each new constitutional amendment must be judged on its own merits.

Nor indeed are we impressed by a limb of the same argument that when Article 31A was upheld on the ground of stare decisis, what was upheld was a constitutional device by which a class of subject-oriented laws was considered to be valid. The simple ground on which Article 31A was upheld, apart from the ground of contemporaneous practical exposition, was that its validity was accepted and recognised over the years and, therefore, it was not permissible 263 to challenge its constitutionality. The principle of stare decisis does not imply the approval of the device or mechanism which is employed for the purpose of framing a legal or constitutional provision.

It was finally urged by the learned Attorney General that if we uphold the challenge to the validity of Article 31C, the validity or clauses (2) to (6) of Article 19 will be gravely imperilled because those clauses will also then be liable to be struck down as abrogating the rights conferred by Article 19(1) which are an essential feature or the Constitution. We are unable to accept this contention.

Under clauses (2) to (6) of Article 19, restrictions can be imposed only if they are reasonable and then again, they can be imposed in the interest of a stated class of subjects only. It is for the courts to decide whether restrictions are reasonable and whether they are in the interest of the particular subject. Apart from other basic dissimilarities, Article 31C takes away the power of judicial review to an extent which destroys even the semblance of a comparison between its provisions and those of clauses (2) to (6) of Article 19. Human ingenuity, limitless though it may be, has yet not devised a system by which the liberty of the people can be protected except through the intervention of courts of law.

Three Articles of our Constitution, and only three, stand between the heaven of freedom into which Tagore wanted his country to awake and the abyss of unrestrained power.

They are Articles 14, 19 and 21. Article 31C has removed two sides of that golden triangle which affords to the people of this country an assurance that the promise held forth by the preamble will be performed by ushering an egalitarian era through the discipline of fundamental rights, that is.

without emasculation of the rights to liberty and equality which alone can help preserve the dignity of the individual.

These then are our reasons for the order which we passed on May 9, 1980 to the following effect:

“Section 4 of the Constitution 42nd Amendment Act is beyond the amending power of the Parliament and is void since it damages the basic or essential features of the Constitution and destroys its basic structure by a total exclusion of challenge to any law on the ground that it is inconsistent with, or takes away or abridges any of the rights conferred by Article 14 or Article 19 of the Constitution, if the law is for giving effect to the policy of the State towards securing all or any of the principles laid down in Part IV of the Constitution.” “Section 55 of the Constitution 42nd Amendment Act is beyond the amending power of the Parliament and is void since it removes all limitations on the power of the Parliament to 264 amend the Constitution and confers power upon it to amend the Constitution so as to damage or destroy its basic or essential features or its basic structure.” There will be no order as to costs.

BHAGWATI, J. (His Lordship’s Judgment is a common judgment for Waman Rao’s case and Minerva Mill’s case. The petitioners in Writ Petitions Nos. 656 to 660 of 1977- Wamanrao & others etc, v. The Union of India & ors.

(hereinafter referred to as Wamanrao’s case) and other allied petitions have challenged the constitutional validity of the Maharashtra Agricultural Lands (Ceiling on Holdings) Act 1961 (herein after referred to as the principal Act) as amended by the Maharashtra Agricultural Lands (Lowering of Ceiling on Holdings and (Amendment Act 1972 (hereinafter referred to as Act 21 of 1975) and the Maharashtra Agricultural Lands (Lowering of Ceiling on Holdings) and (Amendment) Act 1975 (hereinafter referred to as Act 47 of 1975) and the Maharashtra Agricultural Lands (Ceiling on Holdings) Amendment Act 1975 (hereinafter referred to as Act 2 of 1976) on the ground that the amended provisions of the Act are violative of Articles 14, 19(1)(f), 31 and 31A of the Constitution. We shall hereafter for the sake of convenience refer to the principal Act as duly amended by the subsequent Acts 21 of 1975, 47 of 1975 and 2 of 1976 as “the impugned legislation”. It is not necessary for the purpose of this opinion to set out the relevant provisions of the impugned legislation but it is sufficient to state that it imposed a maximum ceiling on the holding of agricultural land in the State of Maharashtra and provided for acquisition of land held in excess of the ceiling and for the distribution of such excess land to landless and other persons with a view to securing the distribution of agricultural land in a manner which would best subserve the common good of the people. The impugned legislation recognised two units for the purpose of ceiling on holding of agricultural land. One was person which by its definition in section 2, sub-section (2) included a family and ‘family’ by virtue of section 2, sub-section (11) included a Hindu Undivided Family and in the case of other persons, a group or unit the members of which by custom or usage, are joint in-estate or possession or residence and the other was ‘family unit’ which according to its definition in section 2(11A) read with section 4, meant a person and his spouse and their minor sons and minor unmarried daughters The impugned legislation created an artificial concept of a ‘family unit’ for the purpose of applicability of the ceiling and provided that all lands held by each member of the family unit whether jointly or separately shall be aggregated together and by a fiction of law deemed to be held by the family unit. There were also certain provisions in the impugned legislation which prohibited transfers and acquisitions 265 of agricultural land with a view to effectuating the social policy and economic mission of the law. The impugned legislation also contained provisions prescribing the machinery for implementation of its substantive provisions.

Now plainly and unquestionably this was a piece of legislation relating to agrarian reform and was immunised against challenge under Articles 14, 19 and 31 by the protective cloak of Article 31A but even so, by way of abundant caution, it was given additional protection of Article 31B by including the Principal Act and the subsequent amending Acts in the 9th Schedule: vide the Constitution (Seventeenth Amendment) Act 1964 and the Constitution (Fortieth Amendment) Act, 1976. The drastic effect of the impugned legislation was to deprive many land holders of large areas of agricultural lands held by them.

Some of them, therefore. preferred writ petitions in the High Court of Bombay at Nagpur challenging the constitutional validity of the impugned legislation and on the challenge being negatived by the High Court, they preferred appeals in this Court. The only contention advanced on behalf of the land holders in support of the appeals was that the impugned legislation in so far as it introduced an artificial concept of a ‘family unit’ and fixed ceiling on holding of land by such family unit was violative of the second proviso to cl. (1) of Article 31A and was not saved from invalidation by the protective armour of Article 31B. This contention was negatived by the Constitution Bench and it was held that the impugned legislation did not, by creating an artificial concept of a family unit and fixing ceiling on holding of land by such family unit, conflict with the second proviso to clause (1) of Article 31A and even if it did contravene that proviso, it was protected by Article 31B since the principal Act as well as the subsequent amending Acts were included in the 9th Schedules vide Dattatraya Govind Mahajan v. State of Maharashtra. Now at the time when this hatch of cases was argued before the Court, the emergency was in operation and hence it was not possible for the land-holders to raise many of the contentions which they could otherwise have raised and, therefore, as soon as the emergency was revoked, the landholders filed review petitions in this Court against the decision in Dattatraya Govind Mahajan’s case and also preferred direct writ petitions in this Court challenging once again the constitutional validity of the impugned legislation. Now, concededly, Article 31A provided complete immunity to the impugned legislation against violation of Articles 14, 19 and 31 and Article 31B read with he 9th Schedule protected the impugned legislation not only against violation of Articles 14, 19 and 31 but 266 also against infraction of the second proviso to Clause (1) of Article 31A. Moreover, the impugned legislation being manifestly one for giving effect to the Directive Principles contained in Article 39 clauses (b) and (c), it was also protected against invalidation by Article 31C. The petitioners could not therefore successfully assail the constitutional validity of the impugned legislation unless they first pierced the protective armour of Articles 31A, 31B and 31C. The petitioners sought to get Articles 31A, 31B and 31C out of the way by contending that they offended against the basic structure of the Constitution and were.

therefore, outside the constituent power of Parliament under Article 368 and hence unconstitutional and void. The argument of the petitioners was that these constitutional amendments in the shape of Articles 31A, 31B and 31C being invalid, the impugned legislation was required to meet the challenge of Articles 14, 19(1)(f), 31 and 31A and tested on the touchstone of these constitutional guarantees. the impugned legislation was null and void. The first and principal question which, therefore, arose for consideration in these cases was whether Articles 31A, 31B and 31C are ultra vires and void as damaging or destroying the basic structure of the Constitution. We may point out here that we were concerned in these cases with the constitutional validity of Article 31C as it stood prior to its amendment by the Constitution (Forty-Second Amendment) Act, 1976.

because it was the unamended Article 31C which was in force at the dates when. the amending Acts were passed by the legislature amending the principal Act. These cases were heard at great length with arguments ranging over a large areas and lasting for over five weeks and we reserved judgment on 8th March ]979. Unfortunately. we could not be ready with our judgment and hence on 9th May 1980 being the last working day of the Court before the summer vacation we made an order expressing our conclusion but stating that we would give our reasons later. By this order we held that Article 31A does not damage any of the basic or essential features of the Constitution or its basic structure and is therefore valid and constitutional and so is Article 31C as it stood prior to its amendment by the Constitution (Forty Second Amendment) Act, 1976 valid to the extent its constitutionality was upheld in Kesavananda Bharati’s case.

So far as Article 31B is concerned, we said that Article 31 as originally introduced was valid and so also are all subsequent amendments including various Acts and Regulations in the 9th Schedule from time to time upto 24th April, 1973 when Kesavananda Bharati’s case was decided. We did not express any final opinion on the constitutional validity of the amendments made in the 9th Schedule on or after 24th April 1973 but we made it clear that, these amendments would be open to 267 challenge on the ground that they or any one or more of them damage the basic or essential features of the Constitution or its basic structure. and are therefore. Outside the constituent power of Parliament. This was The order made by us on 9th May. 1980 and for reasons which I shall mention presently. I propose to set out in this Judgment my reasons for subscribing to this order.

So far as Minerva Mills Case is concerned, the challenge of the petitioners was directed primarily against an order dated 19th October, 1971 by which the Government of India, in exercise of the power conferred under Sec. 18A of the Industries (Development and Regulation) Act, 1951, authorised the taking over of the management of the industrial undertaking of the petitioners by the National Textile Corporation under the Sick Textile Undertakings (Nationalisation) Act 1974 (hereinafter referred to as the Nationalisation Act) by which the entire Industrial undertaking and the right, title and interest of the petitioners in it stood transferred to and vested in the Central Government on the appointed date. We are not concerned for the purpose of the present opinion with the challenge against the validity of the Order dated 19th October, 1971, for the question which has been argued before us arises only out of the attack against the constitutionality of the Nationalisation Act. The petitioners challenged the constitutional validity of the Nationalisation Act inter alia on the ground of infraction of Articles 14, 19(1)(f) and (g) and 31 Clause (2), but since the Nationalisation Act has been included in the 9th Schedule by the Constitution (Thirty-ninth Amendment) Act, 1975, the petitioners also attacked the constitutionality of the Constitution (Thirty-ninth Amendment) Act, 1975, for it is only if they could get the Nationalisation Act out from the protective wing of Article 31B by persuading the Court to strike down the Constitution (Thirty- ninth Amendment) Act, 1975, that they could proceed with their challenge against the constitutional validity of the Nationalisation Act Now clauses (4) and (5) which were introduced in Article 368 by section 55 of the Constitution (Forty-second Amendment) Act, 1976 and which were in force at the date of the filing of the writ petitions provided that no amendment of the Constitution made or purported to have been made whether before or after the commencement of that section shall be called in question in any Court on any ground and barred judicial review of the validity of a constitutional amendment (obviously, if these two clauses were validly included in Article 368, they would stand in the way of the petitioners challenging the constitutional validity of the Constitution (Thirty-ninth Amendment) -Act, 1975. The petitioners were, therefore, compelled to go further and impugn the constitutional validity of section 55 of the Constitution 268 (Forty-second Amendment) Act, 1976. This much challenge, as shall presently point out, would have been sufficient to clear the path for the petitioners in assailing the constitutional validity of the Nationalisation Act, but the petitioners, not resting content with what was strictly necessary, proceeded also to challenge section 4 of the Constitution (Forty-second Amendment) Act, 1976 which amended Article 31C. There were several grounds on which the constitutional validity of the Constitution (Forty-second Amendment) Act, 1976 was impugned in the writ petitions and I shall refer to them when I deal with the arguments advanced on behalf of the parties. Suffice it to state for the present, and this is extremely important to point out.

that when the writ petitions reached hearing before us, Mr.

Palkhiwala, learned counsel appearing on behalf of the petitioners requested the Court to examine only one question, namely, whether the amendments made in Article 31C and Article 368 by section 4 and SS of the Constitution (Forty-second Amendment) Act, 1976 were constitutional and valid and submitted that if these constitutional amendments were held invalid, then the other contentions might be examined by the Court at a later date. He conceded before us, in the course of the arguments, that he was accepting the constitutional validity of Articles 31A, 31B and the unamended Article 31C and his only contention vis-a-vis Article 31C was that it was the amendment made in Article 31C which had the effect of damaging or destroying the basic structure of the Constitution and that amendment was, therefore, beyond the constituent power of Parliament. The learned Attorney General on behalf of the Union of India opposed this plea of Mr. Palkhiwala and urged by way of preliminary objection that though the question of constitutional validity of clauses (4) and (S) of Article 368 introduced by way of amendment by section SS of the Constitution (Forty-second Amendment Act, 1976 undoubtedly arose before the Court and it was necessary for the Court to pronounce upon it, the other question in regard to the constitutional validity of the amendment made in Article 31C did not arise on the writ petitions and the counter- affidavits and it was wholly academic and superfluous to decide it. This preliminary objection raised by the learned Attorney General was in my opinion well founded and deserved to be sustained. Once Mr. Palkhiwala conceded that he was not challenging the constitutionality of Article 31A, Article 31B and the unamended Article 31C and was prepared to accept them as constitutionally valid, it became wholly unnecessary to rely on the amended Article 31C in support of the validity of the Nationalisation Act, because Article 31B would, in any event, save it from invalidation on the ground of infraction of any of the Fundamental Rights. In fact, if we look at the counter-affidavit filed by Mr. T. S. Sahani, Deputy Secretary, Government of 269 India in reply to the writ petitions, we find that no reliance has been placed on behalf of the Government on the amended Article 31C. The case of the Union of India is and that is supported by the legislative declaration contained in section 39 of the Nationalisation Act, that this Act was enacted for giving effect to the policy of the State towards securing the principles specified in clause (b) of Article 39 of the Constitution. Neither the Union of India in its counter- affidavit nor the learned Attorney General in the course of his arguments relied on any other Directive Principle except that contained in Article 39 clause (b).

Mr. Palkhiwala also did not make any attempt to relate the Nationalisation Act to any other Directive Principle of State Policy. Now either the Nationalisation Act was really and truly a law for giving effect to the Directive Principle set out in Article 39 clause (b) as declared in section 39 or it was not such a law and the legislative declaration contained in section 39 was a colourable device. If it was the former, then the unamended Article 31C would be sufficient to protect the Nationalisation Act from attack on the ground of violation of Articles 14, 19 and 31 and it would be unnecessary o invoke the amended Article 31C and if it was the latter, then neither the unamended nor the amended Article 31C would have any application. Thus, in either event, the amended Article 31C would have no relevance at all in adjudicating upon the constitutional validity of the Nationalisation Act. It is difficult to see how, in these circumstances, the Court could be called upon to examine the constitutionality of the amendment made in Article 31C: that question just did not arise for consideration and it was wholly unnecessary to decide it.

Mr. Palkhiwala could reach the battle front for challenging the constitutional validity of the Nationalisation Act as soon as he cleared the road blocks created by the unamended Article 31C and the Constitution (Thirty-ninth Amendment) Act, 1975 bringing the Nationalisation Act within the protective wing of Article 31B and it was not necessary for him to put the amendment in Article 31C out of the way as it did not block his challenge against the validity of the Nationalisation Act. I am, therefore, of the view that the entire argument of Mr. Palkhiwala raising the question of constitutionality of the amendment in Article 31C was academic and the Court could have very well declined to be drawn into it, but since the Court did, at the invitation of Mr. Palkhiwala, embark upon this academic exercise and spent considerable time over it, and the issues raised are also of the gravest significance to the future of the nation, I think, I will be failing in my duty if I do not proceed to examine this question on merits.

I may point out at this stage (that the arguments on this question were spread over a period of about three weeks and considerable 270 learning and scholarship were brought to bear on this question on both sides. The hearing of the arguments commenced on 22nd October 1979 and it ended on 16th November 1979. I hoped after the completion of the arguments on questions of such momentous significance, there would be a ‘free and frank exchange of thoughts’ in a judicial conference either before or after the draft judgment was circulated by my Lord the Chief Justice and I would either be able to share the views of my colleagues or if that was not possible, atleast try to persuade them to agree with my point of view. But, I find myself in the same predicament in which the learned Chief Justice found himself in Keshavananda Bharti v. State of Kerala. The learned Chief Justice started his judgment in that case by observing “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 would be able to share the views of someone or the other of my esteemed brothers, but we were over-taken by adventitious circumstances,” namely, so much time was taken up by counsel to explain their respective points of view that very little time was left to the Judges “after the conclusion of the arguments, for exchange of draft judgments”. Here also, I am compelled by similar circumstances, though not adventitious, to hand down a separate opinion without having had an opportunity to discuss with my colleagues the reasons which weighed with them in striking down the impugned constitutional amendments. Some how or other, perhaps owing to extraordinary pressure of work with which this Court is over-burdened. no judicial conference or discussion was held nor was any draft judgment circulated which could form the basis of discussion, though. as pointed out above, the hearing of the arguments concluded as far back as 16th November, 1979. It was only on 8th May, 1980, just two days before the closing of the Court for the summer vacation, that I was informed by the learned Chief Justice that he and the other three learned Judges, who had heard this case along with me, had decided. to pass an order declaring the impugned constitutional amendments ultra vires and void on the ground that they violated the basic features of the Constitution and that the reasons for this order would be given by them later. I found it difficult to persuade myself to adopt this procedure, because there had been no judicial conference or discussion amongst the Judges where there could be free and frank exchange of views nor was any draft judgment circulated and hence I did not have the benefit of knowing the reasons why the learned Chief Justice and the other three learned judges were 271 inclined to strike down the constitutional amendments. If there had been a judicial conference or discussion or the draft judgment setting out the reasons for holding the impugned constitutional amendments Ultra vires and void had been circulated, it would have been possible for me, as a result of full and frank discussion or after considering the reasons given in the draft judgment, either to agree with the view taken by my Lord the Chief Justice and the other three learned judges or if I was not inclined so to agree, then persuade them to change their view and agree with mine.

That is the essence of judicial collectivism. It is, to my mind, essential that a judgment of a Court should be the result of collective deliberation of the judges composing the Court and it would, in my humble opinion, not be in consequence with collective decision making, if one or more of the judges constituting the Bench proceed to say that they will express their individual opinion, ignoring their colleagues and without discussing the reasons with them and even without circulating their draft judgment so that the colleagues have no opportunity of participating in the collective decision-making process. This would introduce a chaotic situation in the judicial process and it would be an unhealthy precedent which this Court as the highest Court in the land -as a model judicial institution which is expected to set the tone for the entire judiciary in the country- should not encourage Moreover, I felt that it was not right to pronounce an order striking down a constitutional amendment without giving a reasoned judgment. Ordinarily, a case can be disposed of only by a reasoned judgment and the order must follow upon the judgment. lt is true that sometimes where the case involves the liberty of the citizen or the execution of a death sentence or where the time taken in preparing a reasoned judgment might pre-judicially affect the winning party, this Court, does, in the larger interests of justice, pronounce an order and give reasons later, but these are exceptional cases where the requirements of justice induces the Court to depart from the legally sanctioned course. But, there the court had in fact waited for about 5 1/2 months after the conclusion of the arguments and there was clearly no urgency which required that an order should be made though reasons were not ready, the delay of about 22 months in making the order was not going to injure the interests of any party, since the order was not going to dispose of the writ petition and many issues would still remain to be decided which could be dealt only after the summer vacation. Thus there would have been no prejudice to the interests of justice if the order had been made on he re-opening of the Court after the summer vacation supported by a reasoned judgment. These were the reasons which compelled me to make my order dated 9th May, 1980 declining to pass an unreasoned order pronouncing on the validity of the impugned constitutional 272 amendments and stating that I would “prefer to pass a final order in this case when I deliver my reasoned judgment”.

This order unfortunately led to considerable misunderstanding of my position and that is the reason why I have thought it necessary to explain briefly why I acted in the manner I did.

There is also one other predicament from which I suffer in the preparation of this opinion. It is obvious that the decision of the questions arising in Wamanrao’s case is closely and integrally connected with the decision of the questions in Minerva Mill’s case and therefore, logically as also from the point of view of aesthetics and practical pragmatics, there should be one opinion dealing with the questions in both the cases. But, unfortunately Minerva Mill’s case was heard by a Bench of five judges different from the Bench which heard Wamanrao’s case. Wamanrao’s case was heard by a Bench consisting of the learned Chief Justice, myself, Krishna Iyer, J., Tulzapurkar, J. and A. P.

Sen, J. while Krishna Iyer, J., Tulzapurkar, J. and A. P.

Sen, J. were not members of the Bench which heard the Minerva Mill’s case. Since two different Benches heard these cases, there would ordinarily have to be two opinions, one in each case. I. however, propose to write a single opinion dealing with the questions arising in both cases, since that is the only way in which I think I can present an integrated argument in support of my view, without becoming unduly and unnecessarily repetitive.

The principal question that arises for consideration in these two cases is whether Article 31A, Article 31B read with the 9th Schedule as amended from time to time and particularly by the Constitution (Seventeenth Amendment) Act, 1964 and the Constitution (Fortieth Amendment) Act, 1976, Article 31C as it stood prior to its amendment by the Constitution (Forty-second Amendment) Act, 1976 and the amended Article 31C are constitutionally valid; do they fall within the scope of the amending power of Parliament under Article 368. The determination of this question depends on the answer to the larger question as lo whether there are any limits on the amending power of Parliament under Article 368 and if so, what are the limits. This question came up for consideration before a Bench of 13 Judges of this Court- the largest Bench that ever sat-and after a hearing which lasted for 68 days-the longest hearing that ever took place- eleven judgments were delivered which are reported in Keshavananda Bharti v. State of Kerala (supra). The earlier decision of this Court in l.C. Golaknath & Ors. v. State of Punjab where, by a majority of six against five, the fundamental 273 rights were held to be unamendable by Parliament under Article 368, was over-ruled as a result of the decision in Keshavananda Bharti’s case. But, six out of the thirteen learned Judges (Sikri, C. J. Shelat, Grover, Hegde, Reddy and Mukharjea, JJ. accepted the contention of the petitioners that though Article 368 conferred power to amend the Constitution, there were inherent or implied limitations on the power of amendment and therefore Article 368 did not confer power on Parliament to amend the Constitution so as to destroy or emasculate the essential or basic elements or features of the Constitution. The fundamental rights, according to the view taken by these six learned Judges, constituted basic or essential features of the Constitution and they could not be, therefore, abrogated or emasculated in the exercise of the amending power conferred by Article 368, though a reasonable abridgment of those rights could be effected in the public interest. Khanna, J. found it difficult in the face of the clear words of Article 368 to exclude from their operation Articles relating to fundamental rights and he held that “the word ‘amendment’ in Article 368 must carry the same meaning whether the amendment relates to taking away or abridging Fundamental rights in Part II of the Constitution or whether it pertains to some other provision outside Part III of the Constitution.” But proceeding to consider the meaning of the word ‘amendment’, the learned Judge held that the power to amend does not include the power to abrogate the Constitution, that the word ‘amendment’ postulates that the existing Constitution must survive without loss of identity, that it must be retained though in an amended from. and therefore. the power of amendment does not include the power to destroy or abrogate the basic structure or framework of the Constitution. The remaining six Judges took the view that there were no limitations of any kind on the power of amendment, though three of them seemed willing to foresee the limitation that the entire Constitution could not be abrogated, leaving behind a State without a Constitution.

Now some scholars have expressed the view that from the welter of confusion created by eleven judgments running over a thousand pages, it is not possible to extract any ratio decidendi which could be said to be the law declared by the Supreme Court. It is no doubt true that the six judges led by Sikri. C.J., have read a limitation on the amending power of Parliament under Article 368 and so has Khanna, J., have employed the formulations “basic features” and “essential elements” while Khanna. J. has employed the formulation “basic structure and framework” to indicate what in each view is immune from the amendatory process and it is argued that “basic features” and “essential elements” cannot be regarded as synonymous with “basic structure and framework”.

274 These scholars have sought to draw support for their view from the following observation of Khanna, J. at page 706 of the Report:

“It is then argued on behalf of the petitioners that essential features of the Constitution cannot be changed as a result of amendment. So far as the expression “essential features” means the basic structure or framework of the Constitution. I have already dealt with the question as to whether the power to amend the Constitution would include within itself the power to change the basic structure or framework of the Constitution. Apart from that, all provisions of the Constitution are subject to amendatory process and cannot claim exemption from that process by being described essential features.” Whatever be the justification for this view on merits, I do not think that this observation can be read as meaning that in the opinion of Khanna, J. “basic structure or frame work” as contemplated by him was different from “basic features” or “essential elements” spoken of by the other six learned judges. It was in the context of an argument urged on behalf of the petitioners that the “essential features” of the Constitution cannot be changed that this observation was made by Khanna, J. clarifying that if the “essential features” meant the “basic structure or framework” of the Constitution, the argument of the petitioners would be acceptable, but if the “essential features” did not form part of the “basic structure or framework” and went beyond it, then they would not be immune from the amendatory process. But it does appear from this observation that The six Judges led by Sikri C.J. On the one hand and Khanna, J.

On the other were not completely ad idem as regards the precise scope of the limitation on the amendatory power of Parliament. This might have raised a serious argument as to whether there, any ratio decidendi at all can be culled out from the judgments in this case in so far as the scope and ambit of the amendatory power of Parliament is concerned. A debatable question would have arisen whether “basic and essential features” can be equated with “basic structure or framework” of the Constitution and if they cannot be, then can the narrower of these two formulations be taken to represent the common ratio. But it is not necessary to examine this rather difficult and troublesome question, because l find that in Smt. Indira Gandhi vs. Raj Narain a Bench of five Judges of this Court accepted the majority view in Keshavanand Bharti’s case to be that the amending power conferred under Article 368, though wide in its sweep and reaching every provision of the Constitution, does not enable Parliament to alter the basic structure or framework 275 of the Constitution. Since this is how the judgments in Keshavananda Bharti’s case have been read and a common ratio extracted by a ‘Bench of five Judges of this Court, it is binding upon me and hence I must proceed to decide the questions arising in these cases in the light of the principle emerging from the majority decision that Article 368 does not confer power on Parliament to alter the basic structure or framework of the Constitution. I may mention in the passing that the summary of the judgments given by nine out of the thirteen Judges after the delivery of the judgments also states the majority view to be that “Article 368 does not enable Parliament to alter the basic structure or framework of the Constitution.” of course, in my view this summary signed by nine Judges has no legal effect at all and cannot be regarded as law declared by the Supreme Court under Article 141. It is difficult to appreciate what jurisdiction or power these nine Judges had to give a summary setting out the legal effect of the eleven judgments delivered in the case. Once the judgments were delivered, these nine Judges as also the remaining four became functus officio and thereafter they had no authority to cull out the ratio of the judgments or to state what, on a proper analysis of the judgments, was the view of the majority.

What was the law laid down was to be found in the judgments and that task would have to be performed by the Court before whom the question would arise as to what is the law laid down in Keshavananda Bharti’s case. The Court would then hear the arguments and dissect the judgments as was done in Smt. Indira Gandhi’s case (supra) and then decide as to what is the true ratio emerging from the judgments which is binding upon the Court as law laid down under Art. 141. But here it seems that nine judges set out in the summary what according to them was the majority view without hearing any arguments. This was a rather unusual exercise, though well- intentioned. But quite apart from the validity of this exercise embarked upon by the nine judges, it is a little difficult to understand how a proper and accurate summary could be prepared by these judges when there was not enough time, after the conclusion of the arguments, for an exchange of draft judgments amongst the Judges and many of them did not even have the benefit of knowing fully the views of others. I may, therefore, make it clear that I am not relying on the statement of the majority view contained in The Summary given at the end of the judgments in Keshavananda Bharti’s case, but I am proceeding on the basis of the view taken in Smt. Indira Gandhi’s case as regards the ratio of the majority decision in Keshavananda Bharti’s case.

I may also at this stage refer to an argument advanced before its on the basis of certain observations in the judgment of Khanna, J.

276 that he regarded fundamental rights as not forming part of the basic structure of the Constitution and therefore, according to him, they could be abrogated or takes away by Parliament by an amendment made under Article 368. If this argument were correct, the majority holding in Keshavanda Bharti’s case would have to be taken to be that the fundamental rights could be abrogated or destroyed in exercise of the power of amendment. because Ray, J., Palekar, J., Mathew, J., Beg, J., Dwivedi, J. and Chandrachud, J. took the view that the power of amendment being unlimited, it was competent to Parliament in exercise of this power to abrogate or emasculate the Fundamental Rights and adding the view of Khanna, J., there would be 7 Judges as against 6 in holding that the Fundamental Rights could be abrogated or taken away by Parliament by a constitutionally amendment. But we do not think that this submission urged or behalf of the respondents is well founded. It is undoubtedly true. that there are certain observations in the judgment of Khanna, J. at the bottom of page 688 of the Report which seem into suggest that according to the learned Judge, the fundamental rights could be abridged or taken away by an amendment under Article 368.

For example, he says: “No serious objection is taken to repeal, addition or alteration of provisions of the Constitution other than those in Part III under the power of amendment conferred by Article 368. The same approach in my opinion should hold good when we deal with amendment relating to Fundamental Rights contained in Part III of the Constitution. It would be impermissible to differentiate between the scope and width of the power of amendment when it deals with Fundamental Rights and the scope and width of that power when it deals with provisions not concerned with Fundamental Rights.” Then again at page 707 of the Report, the learned Judge rejects the argument that the core and essence of a Fundamental Right is immune from the amendatory process. These observations might at first blush appear to support the view that, according to Khanna, J., the amendatory power under Article 368 was sufficiently wide to comprehend not only addition or alternation but also repeal of a Fundamental Right resulting in its total abrogation.

But if we look art the judgment of Khanna, J. as a whole, we do not think this view can be sustained. It is clear that these observations were made by the learned Judge with a view to explaining the scope and width of the power of amendment under Article 368. The learned Judge held that the amendatory power of Parliament was wide enough to reach every provision of the Constitution including the Fundamental Rights in Part Ill of the Constitution. but while so holding, he proceeded to make it clear that despite all this width the amendatory power was subject to an overriding limitation.

277 namely, that it could not be exercised so as to alter the basic structure or framework of the Constitution. The learned Judge stated in so many words at page 688 of the Report that though “the power of amendment is plenary and would include within itself, the power to add, alter or repeal the various articles including those relating lo fundamental rights”, it is “subject to the retention, or the basic structure or framework of the Constitution.” The same reservation was repeated by the learned Judge in cl. (vii) of the summary of his conclusions given at the end of his judgment. It will, therefore, be seen that according to Khanna, J. the power of amendment can be exercised by Parliament so as even to abrogate or take away a fundamental right, so long as it does not alter the basic structure or framework of the Constitution. But if the effect of abrogating or taking away such fundamental right is to alter or affect the basic structure or framework of the Constitution, the amendment would be void as being outside the amending power of Parliament. It is precisely for this reason that the learned Judge proceeded to consider whether the right to property could be said to appertain to the basic structure or framework of the Constitution. If the view of Khanna, J. where that no fundamental right forms part of the basic structure or framework of the Constitution and it can therefore be abrogated or taken away in exercise of the amendatory power under Article 368, it was totally unnecessary for the learned Judge to consider whether the right to property could be said to appertain to the basic structure or framework of the Constitution. The very fact that Khanna, J. proceeded to consider this question shows beyond doubt that he did not hold that fundamental rights were not a part of the basic structure. The only limited conclusion reached by him was that the right to property did not form part of the basic structure, but so far as the other fundamental rights were concerned, he left the question open. Therefore, it was that he took pains to clarify in his judgment in Smt. Indira Gandhi’s case (supra) that what he laid down in Keshavananda Bharati’s case was “that no Article of the Constitution is immune from the amendatory process because of the fact that it relates to fundamental right and is contained in Part III of the Constitution”, and that he did not hold in That case that “fundamental rights are not a part of the basic structure of the Constitution”. Now if this be so, it is difficult to understand how he could hold the Constitution (Twenty-ninth Amendment) Act, 1972 unconditionally valid. Consistently with his view, he should have held that the Constitution (Twenty-ninth Amendment) Act 1972 would be valid only if the protection afforded by it to the Kerala Acts included in the 9th Schedule was not violative of the basic structure or 278 framework of the Constitution. But merely because the learned Judge wrongly held the Constitution (Twenty-ninth Amendment) Act, 1972 to be unconditionally valid and did not uphold its validity subject to the scrutiny of the Kerala Acts added in the 9th Schedule, it cannot follow that he regarded the fundamental rights as not forming part of the basic structure of the Constitution. If the law was correctly laid down by him, it did not become incorrect by being wrongly applied. It is not customary to quote from the writing of a living author, but departing from that practice which, I believe, is no longer strictly adhered to or followed, I may point out that what I have said above finds support from the comment made by Mr. Seervai in the 3rd Volume of his book on Constitutional Law, where the learned author says: “The conflict between Khanna, J.’s views on the amending power and on the unconditional validity of the Twenty Ninth Amendment is resolved by saying that he laid down the scope of the amending power correctly. but misapplied that law in holding Article 31B and Schedule 9 unconditionally valid.” l entirely agree with this perceptive remark of the learned author.

The true ratio emerging from the majority decision in Keshavananda Bharati’s case being that the Parliament cannot in the exercise of its amendatory power under Article 368 alter the basic structure or framework of the Constitution.

I must proceed to consider whether Article 31A, Article 31B read with 9th Schedule, Article 31C as it stood prior to its amendment and the amended Article 31C are violative of the basic structure or framework of the Constitution, for if they are, they would be unconstitutional and void. Now what are the features or elements which constitute the basic structure of framework of the Constitution or which. if damaged or destroyed, would rob the Constitution of its identity so that it would cease to be the existing Constitution but would become a different Constitution. The majority decision in Keshavananda Bharati’s case no doubt evolved the doctrine of basic structure or framework but it did not lay down that any particular named features of the Constitution formed part of its basic structure or framework. Sikri, C.J. mentioned supremacy of the Constitution, republican and democratic form of government.

secular character of the Constitution, separation of powers among the legislature executive and judiciary, federalism and dignity and freedom of the individual as essential features of the Constitution. Shelat and Grover, JJ. added to the list two other features; justice- social, economic and political and unity and integrity of the nation. Hegde and Mukherjee, JJ. added sovereignty of India as a basic feature of the Constitution. Reddy, J. thought that sovereign 279 democratic republic, parliamentary form of democracy and the three organs of the State formed the basic structure of the Constitution, Khanna, J. held that basic structure indicated the broad contours and outlines or the Constitution and since the right to property was a matter of detail, it was not a part of that structure. But he appeared to be of the view that the democratic form of government. the secular character of the State and judicial review formed part of the basic structure. It is obvious that these were merely illustrations of what each of the six learned Judges led by Sikri. C.J. thought to be the essential features of the Constitution and they were not intended to be exhaustive.

Shelat and Grover, JJ. Hegde and Mukherjea JJ. and Reddy, J.

in fact said in their judgments that their list of essential features which form the basic structure of the Constitution was illustrative or incomplete. This enumeration of the essential features by the six learned Judges had obviously no binding authority: first. because the Judges were not required to decide as to what features or elements constituted the basic structure or framework of the Constitution and what each of them said in this connection was in the nature of obiter and could have only persuasive value; secondly, because the enumeration was merely by way of illustration and thirdly, because the opinion of six Judges that certain specified features formed part of the basic structure of the Constitution did not represent the majority opinion and hence could not be regarded as law declared by this Court under Article 141. Therefore, in every case where the question arises as to whether a particular feature of the Constitution is a part of its basic structure, it would have to be determined on a consideration of various factors such as the place of the particular feature in the scheme of the Constitution, its object and purpose and the consequence of its denial on the integrity of the Constitution as a fundamental instrument of country’s governance. Vide the observations of Chandrachud, J. (as he then was) in Smt. Indira Gandhi’s case at page 658 of the Report.

This exercise of determining whether certain particular features formed part of the basic structure of the Constitution had to be undertaken by this Court in Smt.

Indira Gandhi’s case (supra) which came up for consideration within a short period of four years after the delivery of the Judgments in Keshvananda Bharti’s case. The constitutional amendment which was challenged in that case was the Constitution (Thirty-ninth Amendment) Act. 1975, which introduced Article 329A and the argument was that clause (4) of this newly added article was constitutionally invalid on the ground that it violated the basic structure or framework of the Constitution. This challenge was unanimously upheld by a Constitution Bench which consisted of 280 the Chief Justice and four senior most Judges of this Court.

It is not necessary for our purpose to analyse the judgments given by the five Judges in this case as they deal with various matters which are not relevant to the questions which arise before us. But it may be pointed out that two of the learned Judges, namely, Khanna and Mathew, JJ. held that democracy was an essential feature forming part of the basic structure and struck down clause (4) of Article 329A on the ground that it damaged the democratic structure of the Constitution. Chandrachud, J. (as he then was) emphatically asserted that, in his opinion, there were four unamendable features which formed part of the basic structure, namely, “(i) India is a sovereign democratic republic; (ii) Equality of status and opportunity shall be secured to all its citizens; (iii) The State shall have no religion of its own and all persons shall be equally entitled to freedom of conscience and the right freely to process, practise and propagate religion and (iv) The nation shall be governed by a government of laws, not of men.” These, according to him, were “the pillars of our constitutional philosophy, the pillars, therefore, of the basic structure of the Constitution.” He then proceeded to hold that clause (4) of Article 329A was “an outright negation of the right of equality conferred by Article 14, a right which more than any other is a basic postulate of our Constitution” and on that account declared it to be unconstitutional and void, Mathew, J. however, expressed his dissent from the view taken by Chandrachud, J. as regards the right of equality conferred by Article 14 being an essential feature of the Constitution and stated inter alia the following reason:

“The majority in Bharati’s case did not hold that Article 14 pertains to the basic structure of the Constitution. The Majority upheld the validity of the first part of Article 31C; this would show that a constitutional amendment which takes away or abridges the right to challenge the validity of an ordinary law for violating the fundamental right under that Article would not destroy or damage the basic structure. The only logical basis for supporting the validity of Article 31A, 31B and the first part of 31C is that Art.

14 is not a basic structure.” I shall have occasion to discuss later the concept of equality under the Constitution and whether it forms part of the basic structure. But, one position of a basic and fundamental nature I may make clear at this stage, and there I agree with Mathew, J., that whether a particular feature forms part of the basic structure has necessarily to be determined on the basis of the specific provisions of the Constitution. To quote the words of Mathew, J. in Smt.

Indira Gandhi’s case (supra) “To be a basic structure it must be a terrestrial concept having its 281 habitat within the four corners of the Constitution.” What Constitutes basic structure is not like “a twinkling star up above the Constitution.” “It does not consist of any abstract ideals to be found outside the provisions of the Constitution. The, Preamble no doubt enumerates great concepts’ embodying the ideological aspirations of the people but these concepts are particularised and their essential features delineated in the various provisions of the Constitution. It is these specific provisions in the body of the Constitution which determine the type or democracy which the founders of that instrument established;

the quality and nature of justice, political, social and economic which they aimed to realise, the content of liberty of thought and expression which they entrenched in that document and the scope of equality of status and of opportunity which they enshrined in it. These specific provisions enacted in the Constitution alone can determine the basic structure of the Constitution. These specific provisions, either separately or in combination. determine the content of the great concepts set out in the Preamble.

It is impossible to spin out any concrete concept of basic structure out of the gossamer concepts set out in the Preamble. ‘The specific provisions of the constitution are the stuff from which the basic structure has to be woven.(‘)” Now, in Wamanrao’s case the broad argument of Mr.

Phadke on behalf of the petitioners founded on the doctrine of basic structure was, and this argument was supported by a large number of other counsel appearing in the allied petitions, that the fundamental rights enshrined in Articles 14 and 19 form part of the basic structure of the Constitution and therefore Article 31A, Article 31B read with 9th Schedule and the unamended Article 31C in so far as they exclude the applicability of Articles 14 and 19 to certain kinds of legislation emasculate those fundamental rights and thereby damage the basic structure of the Constitution and they must accordingly be held to be outside the amending power of Parliament and hence unconstitutional and void. I have not made any reference here to Article 31 and treated the argument of Mr. Phadke as confined only to Articles 14 and 19, because, though Article 31 was very much in the Constitution when the arguments in Wamanrao’s case were heard, it has subsequently been deleted by the Constitution (Forty-Fourth Amendment) Act, 1978 and reference to it has also been omitted in Articles 31A, 31B and 31C and we are therefore concerned with the constitutional validity of these Articles only in so far as they grant immunity against challenge on the ground of infraction of Articles 14 and 19. Mr. Phadke on behalf of the petitioners also challenged 282 the constitutional validity of the Constitution (Fortieth Amendment). Act. 1976 which included the amending Acts 21 of 1975, 41 of 1975 and 2 of 1976 in the 9th Schedule. On the ground that the Lok Sabha was not in existence at the date when it was enacted. But obviously. in view of clauses (4) and (5) introduced in Article 368 by section 55 , of the Constitution (Forty-second Amendment) Act, 1976, it was not possible for Mr. Phadke on behalf of the petitioners to assail the constitutional validity of Article 31A, Article 31B read with the 9th Schedule as amended by the Constitution (Fortieth Amendment) Act. 1976 and the unamended Article 31C. since these two clauses of Article 368 barred challenge to the validity of a constitutional amendment on any ground whatsoever and declared that there shall be no limitation whatever on the constituent power of Parliament to amend by way of addition. variation or repeal, any provision of the Constitution. He therefore. as a preliminary step in his argument challenged the constitutional validity of clauses (4) and (S) of Article 368 on the ground that these clauses damaged the basic structure of the Constitution and were outside the amending power of Parliament. The argument of Mr. Palkhiwala on behalf of the petitioners in the Minerva Mills’ case was a little different. He too attacked the vires of clauses (4) and (5) of Article 368 since they barred at the threshold any challenge against the constitutional validity of the amendment made in Article 31C, but so far as Article 31A, Article 31B and the unamended Article 31C were concerned, he did not dispute their validity and, as pointed out by me earlier, he conceded and in fact gave cogent reasons showing that they were constitutionally valid. His only attack was against the validity of the amendment made in Article 31C by section 4 of the Constitution (Forty-second Amendment Act.

]976 and he contended that this amendment, by making the Directive Principles supreme over the fundamental rights.

damaged or destroyed the basic structure of the Constitution. He urged that the basic structure of the Constitution rests on the foundation that while the Directive Principles are the mandatory ends of government, those ends have to be achieved only through the permissible means set out in the Chapter on fundamental rights and this balance and harmony between the fundamental rights and the directive Principles was destroyed by the amendment in Article 31C by making the fundamental rights subservient to the Directive Principles and in consequence, the basic structure of the Constitution was emasculated. A passionate plea was made by Mr. Palkhiwala with deep emotion and feeling that if Article 31C as amended was allowed to stand, it would be an open licence to the legislature and the executive, both at the Centre and in the States, to destroy democracy and establish an authoritarian or totalitarian regime, since almost every legislation could be related, 283 directly or indirectly, to some Directive Principle and would thus be able to earn immunity from the challenge of Articles 14 and 19 and the fundamental rights enshrined in these two Articles would be rendered meaningless and futile and would become mere rope of sand. Mr. Palkhiwala vehemently urged that Justice, liberty and equality were the three pillars of the Constitution and they were embodied in Articles 14 and 19 and therefore if the supremacy of the fundamental rights enshrined in these Articles was destroyed and they were made subservient to the directive Principles, it would result in the personality of the Constitution being changed beyond recognition and such a change in the personality would be outside the amending power of Parliament. Mr. Palkhiwala likened the situation to a permanent state of emergency and pointed out by way of contrast that whereas under an emergency the people may be precluded from enforcing their fundamental rights under Articles 14 and 19 for the duration of the emergency, here the people were prevented from moving the court for enforcement of these fundamental rights for all time to come even without any emergency where a law was passed purporting to give effect to any of the Directive Principles. The amendment in Article 31C was thus, according to Mr.

Palkhiwala, outside the amending power of Parliament and was liable to be struck down as unconstitutional and void.

Logically I must first consider the challenge against the constitutional validity of clauses (4) and (5) of Art.

368, because it is only if they can be put out of the way that Mr. Phadke and Mr. Palkhiwala can proceed further with their respective challenges against the validity of the other constitutional provisions impugned by them. Both these clauses were inserted in Article 368 by section 55 of the Constitution (Forty-second Amendment), Act, 1976 with a view to overcoming the effect of the majority decision in Keshavananda Bharati’s case. Clause (4) enacted that no amendment of the Constitution “made or purporting to have been made under this Article [whether before or after the commencement of section 55 of the Constitution (Forty-second Amendment) Act, 1976] shall be called in question in any court on any ground” while clause (5), which begins with the words “For the removal of doubts”, declared that “there shall be no limitation whatever on the constituent power of Parliament to amend by way of addition, variation or repeal the provisions of this Constitution under this Article.” The question is whether these two clauses transgress the limitations on the amending power of Parliament and are therefore void. I will first take up for consideration clause (4) which seeks to throw a cloak of protection on an amendment made or purporting to have been made in the 284 Constitution and makes it unchallengeable on any ground. It is rather curious in its wording and betrays lack of proper care and attention in drafting. It protects every amendment made or purporting to have been made “whether before or after the commencement of section S of the Constitution (Forty-second Amendment Act. 1976.” But would an amendment made by any other section of the Constitution (Forty second Amendment) Act, 1976 such as section (4). which would be neither before nor after the commencement of section 55, but simultaneous with it. be covered by this protective provision? This is purely a problem of verbal semantics which arises because of slovenliness in drafting that is becoming rather common these days and I need not dwell on it, for there are more important questions which arise out of the challenge to the constitutional validity of clause (4) and they require serious consideration. I will proceed on the basis that the protection sought to be given by clause (4) extends to every amendment whatsoever and that the parenthetical words “whether before or after the commencement of section SS of the Constitution (Forty-second Amendment) Act, 1976” were introduced merely by way of abundant caution with a view to indicating that this protection was intended to cover even amendments made or purporting to have been made before the enactment of the constitution (Forty-second Amendment) Act. 1976. Now even a cursory look at the language of clause (4) is sufficient to demonstrate that this is a case of zeal overrunning discretion. Clause (4) provides that no amendment to the Constitution made or purporting to have been made under Article 368 shall be called in question in any court on any ground. The words ‘on any ground’ are of the widest amplitude and they would obviously cover even a ground that the procedure prescribed in clause (2) and its proviso has not been followed. The result is that even if an amendment is purported to have been made without complying with the procedure prescribed in sub-clause (2) including its proviso, and is therefore unconstitutional. it would still be immune from challenge. It was undisputed common ground both at the Bar and on the Bench, in Keshavananda Bharati’s case that any amendment of the Constitution which did not conform to the procedure prescribed by sub-clause (2) and its proviso was no amendment at all and a court would declare it invalid. Thus if an amendment were passed by a simple majority in the House of the People and the Council of States and the President assented to the amendment, it would in law be no amendment at all because the requirement of clause (2) is that it should be passed by a majority of each of the two Houses separately and by not less than two- thirds of the members present and voting. But if clause (4) were valid, it would become difficult to challenge the validity of such an amendment and it would prevail though made in defiance of a 285 mandatory constitutional requirement. Clause (2) including its proviso A would be rendered completely superfluous and meaningless and its prescription would become merely a paper requirement. Moreover, apart from nullifying the requirement of clause (2) and its proviso, clause (4) has also the effect of rendering an amendment immune from challenge even if it damages or destroys the basic structure of the Constitution and is therefore outside the amending power of Parliament. So long as clause (4) stands, an amendment of the Constitution though unconstitutional and void as transgressing the limitation on the amending power of Parliament as laid down in Keshavananda Bharati’s case, would be unchallengeable in a court of law. The consequence of this exclusion of the power of judicial review would be that, in effect and substance, the limitation on the amending power of Parliament would from a practical point of view, become non-existent and it would not be incorrect to say that, covertly and indirectly, by the exclusion of judicial review, the amending power of Parliament would stand enlarged contrary to the decision of this Court in Keshavananda Bharati’s case. This would undoubtedly damage the basic structure of the Constitution, because there are two essential features of the basic structure which would be violated, namely, the limited amending power of Parliament and the power of judicial review with a view to examining whether any authority under the Constitution has exceeded the limits of its powers. I shall immediately proceed to state the reasons why I think that these two features form part of the basic structure of the Constitution.

It is clear from the majority decision in Keshavananda Bharati’s case that our Constitution is a controlled Constitution which confers powers on the various authorities created and recognised by it and defines the limits of those powers. The Constitution is supreme lex, the paramount law of the land and there is no authority, no department or branch of the State, which is above or beyond the Constitution or has powers unfettered and unrestricted by the Constitution. The Constitution has devised a structure of power relationship with checks and balances and limits are placed on the powers of every authority or instrumentality under the Constitution. Every organ of the State, be it the executive or the legislature or the judiciary, derives its authority from the Constitution and it has to act within the limits of such authority.

Parliament too, is a creature of the Constitution and it can only have such powers as are given to it under the Constitution. It has no inherent power of amendment of the Constitution and being an authority created by the Constitution, it cannot have such inherent power, but the power of amendment is conferred upon it by the Constitution and it is a limited power which is so conferred. Parliament cannot in exercise of this power so 286 amend the Constitution as to alter its basic structure or to change its identity. Now, if by constitutional amendment, Parliament were granted unlimited power of amendment, it would cease to be an authority under the Constitution, but would become supreme over it, because it would have power to alter the entire Constitution including its basic structure and even to put an end to it by totally changing its identity. It will therefore be seen that the limited amending power of Parliament is itself an essential feature of the Constitution, a part of its basic structure, for if the limited power of amendment were enlarged into an unlimited power, the entire character of the Constitution would be changed. It must follow as a necessary corollary that any amendment of the Constitution which seeks, directly or indirectly, to enlarge the amending power of Parliament by freeing it from the limitation of unamendability of the basic structure would be violative of the basic structure and hence outside the amendatory power of Parliament.

It is a fundamental principle of our constitutional scheme, and I have pointed this out in the preceding paragraph, that every organ of the State, every authority under the Constitution. derives its power from the Constitution and has to act within the limits of such power.

But then the question arises as to which authority must decide what are the limits on the power conferred upon each organ or instrumentality of the State and whether such limits are transgressed or exceeded. Now there are three main departments of the State amongst which the powers of Government are divided; the Executive, the Legislature and the Judiciary. Under our Constitution we have no rigid separation of powers as in the United States of America, but there is a broad demarcation, though, having regard to the complex nature of governmental functions, certain degree of overlapping is inevitable. The reason for this broad separation of powers is that “the concentration of powers in any one organ may” t(t quote the words of Chandrachud, J.

(as he then was) in Smt. Indira Gandhi’s case (supra) “by upsetting that fine balance between the three organs, destroy the fundamental premises of a democratic Government to which were pledged.” Take for example, a case where the executive which is in charge of administration acts to the prejudice of a citizen and a question arises as to what are the powers of the executive and whether the executive has acted within the scope of its powers. Such a question obviously cannot be left to the executive to decide and for two very good reasons. First, the decision of the question would depend upon the interpretation of the Constitution and the laws and this would pre-eminently be a matter fit to be decided by the judiciary, because it is the judiciary which alone would be possessed of expertise in this field and secondly, the constitutional 287 and legal protection afforded to the citizen would become illusory. A if it were left to the executive to determine the legality of its own action. So also if the legislature makes a law and a dispute arises whether in making the law the legislature has acted outside the area of its legislative competence or the law is violative of the fundamental rights or of any other provisions of the Constitution, its resolution cannot, for the same reasons, be, left to the determination of the legislature. The Constitution has, therefore, created an independent machinery for resolving these disputes and this independent machinery is the judiciary which is vested with the power of judicial review to determine the legality of executive action and the validity of legislation passed by the legislature. It is the solemn duty of the judiciary under the Constitution to keep the different organs of the State such as the executive and the legislature within the limits of the power conferred upon them by the Constitution. This power of judicial review is conferred on the judiciary by Articles 32 anc! 226 of the Constitution. Speaking about draft Article 25, corresponding to present Article 32 of the Constitution, Dr. Ambedkar, the principal architect of our Constitution, said in the Constituent Assembly on 9th December, 1948:

“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) It is a cardinal principle of our Constitution that no one howsoever highly placed and no authority however lofty can claim to be the sole judge of its power under the Constitution or whether its action is within the confines of such power laid down by the Constitution. The judiciary is the interpreter of the Constitution and to the judiciary is assigned the delicate task to determine what is the power conferred on each branch of Government, whether it is limited, and if so, what are the limits and whether any action of that branch transgresses such limits. It is for the judiciary to uphold the constitutional values and to enforce the constitutional limitations. That is the essence of the rule of law, which inter alia requires that “the exercise of powers by the Government whether it be the legislature or the executive or any other authority, be conditioned by the Constitution and the law”. The power of judicial review is an integral part of our constitutional system and without it, there will be no Government of laws and the rule of law would become a teasing illusion and a promise of unreality. I am of the view that if there is one feature of our 288 Constitution which, more than any other, is basic and fundamental to the maintenance of democracy and the rule of law, it is the power of judicial review and it is unquestionably, to my mind, part of the basic structure of the Constitution. Of course, when I say this I should not be taken to suggest that however effective alternative institutional mechanisms or arrangements for judicial review cannot be made by Parliament. But what I wish to emphasise is that judicial review is a vital principle of our Constitution and it cannot be abrogated without affecting the basic structure of the Constitution. If by a Constitutional amendment, the power of judicial review is taken away and it is provided that the validity of any law made by the Legislature shall not be liable to be called in question on any ground, even if it is outside the legislative competence of the legislature or is violative of any fundamental rights, it would be nothing short of sub- version of the Constitution, for it would make a mockery of the distribution of legislative powers between the Union and the States and render the fundamental rights meaningless and futile. So also if a. constitutional amendment is made which has the effect of taking away the power of judicial review and providing that no amendment made in the Constitution shall be liable to be questioned on any ground, even if such amendment is violative of the basic structure. and, therefore, outside the amendatory power of Parliament, it would be making Parliament sole judge of the constitutional validity of what it has done and that would. in effect and substance, nullify the limitation on the amending power of Parliament and affect the basic structure of the Constitution. The conclusion must therefore inevitably follow that clause (4) of Article 368 is unconstitutional.

and void as damaging the basic structure of the Constitution.

That takes us to clause (S) of Article 368. This clause opens with the words “For the removal of doubts” and proceeds to declare that there shall be no limitation whatever on the amending power of Parliament under Article 368. It is difficult to appreciate the. meaning of the opening words “For the removal of doubts” because the majority decision in Keshavananda Bharati’s case clearly laid down and left no doubt that the basic structure of the Constitution was outside the competence of the mandatory power of Parliament and in Smt. Indira Gandhi’s case all the Judges unanimously accepted theory of the basic structure as a theory by which the validity of the amendment impugned before them, namely, Article 329A(4) was to be judged.

Therefore, after the decisions in Keshavananda Bharati’s case and Smt. Indira Gandhi’s case, there was no doubt at all that the amendatory. power of Parliament was limited and it was not competent to Parliament to alter the basic structure of the Constitution 289 and clause (5) could not remove the doubt which did not exist. What A clause (S) really sought to do was to remove the limitation on the amending power of Parliament and convert it from a limited power into an unlimited one. This was clearly and indubitably a futile exercise on the part of Parliament. I fail to see how Parliament which has only a limited power of amendment and which cannot alter the basic structure of the Constitution can expand its power of amendment so as to confer upon itself the power of repeal or abrogate the Constitution or to damage or destroy its basic structure. That would clearly be in excess of the limited amending power possessed by Parliament. The Constitution has conferred only a limited amending power on Parliament so that it cannot damage or destroy the basic structure of the Constitution and Parliament cannot by exercise of that limited amending power convert that very power into an absolute and unlimited power. If it were permissible to Parliament to enlarge the limited amending power conferred upon it into an absolute power of amendment, then it was meaningless to place a limitation on the original power of amendment. It is difficult to appreciate how Parliament having a limited power of amendment can get rid of the limitation by exercising that very power and convert it into an absolute power. Clause (S) of Article 368 which sought to remove the limitation on the amending power of Parliament by making it absolute must therefore be held to be outside the- amending power of Parliament. There is also another ground on which the validity of this clause can be successfully assailed. This clause seeks to convert a controlled Constitution into an uncontrolled one by removing the limitation on the amending power of Parliament which, as pointed out above, is itself an essential feature of the Constitution and it is therefore violative of the basic structure would in the circumstances hold clause (5) of Article 368 to be unconstitutional and void.

With clauses (4) and (S) of Article 368 out of the way, I must now proceed to examine the challenge against the constitutional validity of Article 31A, Article 31B read with the 9th Schedule and the unamended Article 31C. So far as Article 31A is concerned, Mr. Phadke appearing on behalf of the petitioners contended that, tested by the doctrine of basic structure, Art. 31A was unconstitutional and void, since it had the effect of abrogating Articles 14 and 19 in reference to legislation falling within the categories specified in the various clauses of that Article. He argued that the Fundamental Rights enshrined in Articles 14 and 19 were part of the basic structure of the Constitution and any constitutional amendment which had the effect of abrogating or damaging these Fundamental Rights was outside the amendatory power of Parliament. While considering this 290 argument, I may make it clear that I am concerned here only with constitutional validity of clause (a) of Article 31A since the protection of Article 31A has been claimed in respect of Maharashtra Land Ceiling Acts only under clause (a) of that Article and I need not enter upon a discussion of the constitutional validity of clauses (b) to (e) of Article 31A. I do not think that the argument of Mr. Phadke challenging the constitutional validity of clause (a) of Article 31A is well-founded. I shall have occasion to point out in a later part of this judgment that where any law is enacted for giving effect to a Directive Principle with a view to furthering the constitutional goal of social and economic justice, there would be no violation of the basic structure, even if it infringes formal equality before the law under Art. 14 or any Fundamental Right under Article 19.

Here clause (a) of Article 31A protects a law of agrarian reform which is clearly. in the context of the socio- economic conditions prevailing in India, a basic requirement of social and economic justice and is covered by the Directive Principles set out in clauses (b) and (c) of Article 39 and it is difficult to see how it can possibly be regarded 1) as violating the basic structure of the Constitution. On the contrary, agrarian reform leading to social and economic justice to the rural population is an objective which strengthens the basic structure of the Constitution. Clause (a) of Article 31A must therefore be held to be constitutionally valid even on the application of the basic structure test.

But, apart from this reasoning on principle which in our opinion clearly sustains the constitutional validity of clause (a) of Article 31A. we think that even on the basis of the doctrine of stare decisions, the whole of Article 31A must be upheld as constitutionally valid. The question as to the constitutional validity of Article 31 A first came up for consideration before this Court in Shankari Prasad v.

Union of India. There was a direct challenge levelled against the constitutionality of Article 31A in this case on various grounds and this challenge was rejected by a Constitution Bench of this Court. The principal ground on which the challenge was based was that if a constitutional amendment takes away or abridges any of the Fundamental Rights conferred by Part III of the Constitution it would fall within the prohibition of Article 13(2) and would therefore be void. Patanjali Shastri, J., speaking on behalf of the Court, did not accept this contention and taking the view that in the context of Article 13, ‘law’ must be taken to mean rules or regulations made in exercise of ordinary legislative power and not amendments to the constitution made in exercise of constituent power, be held that 291 Article 13(2) does not affect constitutional amendments.

This view in regard to the interpretation of the word ‘law’ in Article 13(2) has now been affirmed by this Court sitting as a full Court of 13 Judges in Keshavananda Bharati’s case and it is no longer possible to argue the contrary proposition. It is true that in, this case, the constitutional validity of Article 31A was not assailed on the ground of in fraction of the basic feature since that was a doctrine which came to be evolved only in Keshavananda Bharati’s case, but the fact remains that whatever be the arguments advanced or omitted to be advanced. Article 31A was held to be constitutionally valid by this Court. Nearly 13 years after this decision was given in Shankari Prasad’s case, a strong plea was made before this Court in Sajjan Singh v. State of Rajasthan that Shankari Prasad’s case should be reconsidered, but after a detailed discussion of the various arguments involved in the case, the Constitution Bench of this Court expressed concurrence with the view expressed in Shankari Prasad’s case and in the result, upheld the constitutional validity of Article 31A, though the question which arose for consideration was a little different and did not directly involve the constitutional validity of Article 31A. Thereafter, came the famous decision of this Court in Golak Nath’s case where a full Court of 11 Judges. while holding that the Constitution (First Amendment Act exceeded the constituent power or Parliament, still categorically declared on, the basis of the doctrine prospective overruling that the said amendment, and a few other like amendments subsequently made, should not be disturbed and must be held to be valid. The result was that even the decision in Golak Nath’s case accepted the constitutional validity of Article 31A. The view taken in Golak Nath’s case as regards the amending power of Parliament was reversed in Keshavananda Bharati’s case where the entire question as to the nature and extent of the constituent power of Parliament to amend the Constitution was discussed in all its dimensions and aspects uninhibited by any previous decisions, but the only constitutional amendments which were directly challenged in that case were the Twenty-fourth and Twenty-fifth and Twenty-ninth Amendments. The constitutional validity of Art. 31A was not put in issue in Keshavananda Bharati’s case and the learned Judges who decided that case were not called upon to pronounce on it and it cannot therefore be said that this Court uphold the vires of Article 31A in that Case. It is no doubt true that Khanna, J. held Article 31A to be valid on the principle of stare decisis. but that was only for the purpose of upholding the validity of Article 31C.

292 because he took the view that Article 31C was merely an extension of the principle accepted in Article 31A and “the ground which sustained the validity of clause (1) of Article 31A, would equally sustain the validity of the first part of Article 31C”. So far as the other learned Judges were concerned, they did not express any view specifically on the constitutional validity of Article 31A, since that was not in issue before them. Ray, J., Palekar, J., Mathew, J., Beg, J., Dwiwedi, J. and Chandrachud, J., held Article 31C to be valid and if that view be correct, Article 31A must fortiorari be held to be valid But it must be said that there is no decision of the Court in Keshavananda Bharati’s case holding Art. 31A as constitutionally valid, and logically, therefore, it should be open to the petitioners in the present case to contend that. tested by the basic structure doctrine, Article 31A is constitutional. We have already pointed out that on merits this argument has no substance and even on an application of the basic structure doctrine. Article 31A cannot be condemned as invalid. But in any event, I do not think that it would be proper to reopen the question of constitutional validity of Article 31A which has already been decided and silenced by the decisions of this Court in Shankari Prasad’s case, Sajjan Singh’s case and Golak Nath’s case. Now for over 28 years, since the decision in Shankari Prasad’s case Article 31A has been recognised as valid and on this view, laws of several States relating to agrarian reform have been held to be valid and as pointed out by Khanna, J. in Keshavananda Bharati’s case “millions of acres of land have changed hands and millions of new titles in agricultural lands have been created”. If the question of validity of Article 31A were reopened and the earlier decisions upholding its validity were reconsidered in the light of the basic structure doctrine, these various agrarian reform laws which have brought about a near socio-economic revolution in the agrarian, sector might be exposed . to jeopardy and that might put the clock back by settling at naught all changes that have been brought about in agrarian relationship during these years and create chaos in the lives of millions of people who have benefitted by these laws. It is no doubt true that this Court has power to review its earlier decisions or even depart from them and the doctrine of stare decisis cannot be permitted to perpetuate erroneous decisions of this Court to the detriment of the general welfare of the public. There is indeed a school of thought which believes with Cardozo that “the precedents have turned upon us and they are engulfing and annihilating us, engulfing and annihilating the very devotees that worshipped at their shrine” and that the Court should not be troubled unduly if it has to break away from precedents in order to modify old rules and if need be to fashion new ones to meet the challenges and problems thrown upon 293 by a dynamic society. But at the same time, it must be borne in A mind that certainty and continuity are essential ingredients of rule of law. Certainty in applicability of law would be considerably eroded and suffer a serious set- back if the highest court in the land were readily to overrule the view expressed by it in earlier decisions even though that view has held the field for a number of years.

It is obvious that when constitutional problems are brought before this Court for its decision, complex and difficult questions are bound to arise and since the decision on many of such questions may depend upon choice between competing values, two views. may be possible depending upon the value judgment or the choice of values made by the individual Judge. Therefore, if one view has been taken by the Court after mature deliberation, the fact that another Bench is inclined to take another view would not justify the Court in reconsidering the earlier decision and overruling it. The law laid down by this Court is binding on all Courts in the country and numerous cases all over the country are decided in accordance with the view taken by this Court. Many people arrange their affairs and large number of transactions also take place on the faith of the correctness of the decision given by this Court. It would create uncertainty, instability and confusion if the law propounded by this Court on the faith of which numerous cases have been decided and many transactions have taken place is held to be not the correct law after a number of years. The doctrine of stare decisis has evolved from the maxim “stare decisis et non quita movere” meaning “adhere to the decision and do not unsettle things which are established”, and it is a useful doctrine intended to bring about certainty and uniformity in the law. But when I say this, let me make it clear that I do not regard the doctrine of stare decisis as a rigid and inevitable doctrine which must be applied at the cost of justice. There may be cases where it may be necessary to rid the doctrine of its petrifying rigidity. “Stare decisis” as pointed out by Brandeis “is always a desideratum, even in these constitutional cases, but in them, it is never a command”. The Court may in an appropriate case overrule a previous decision taken by it, but that should be done only for substantial and compelling reasons. The power of review must be- exercised with due care and caution and only for advancing the public well-being and not 294 merely because it may appear that the previous decision was based on an erroneous view of the law. It is only where the perpetuation of the earlier decision would be productive of mischief or inconvenience or would have the effect of deflecting the nation from the course which has been set by the Constitution makers or to use the words of Krishna Iyer, J. in Ambika Prasad Misra v. State of U.P. & Ors. “where national crisis of great momenta to the life, liberty and safety of this country and its millions are at stake or the basic direction of the nation itself is in peril of a shake- up” that the Court would be justified in reconsidering its earlier decision and departing from it. It is fundamental that the nation’s Constitution should not be kept in constant uncertainty by judicial review every now and then, because otherwise it would paralyse by perennial suspense all legislative and administrative action on vital issues.

The Court should not indulge in judicial stabilisation of State action and a view which has been accepted for a long period of time in a series of decisions and on the faith of which millions of people have acted and a large number of transactions have been effected, should not be disturbed.

Let us not forget the words of Justice Roberts of the United States Supreme Court-words which are equally applicable to the decision making process in this Court:

“The reason for my concern is that the instant decision, overruling that announced about nine years ago, tends to bring adjudications of this tribunal into the same days as a restricted rail road ticket good for this day and train only.. It is regrettable that in an era marked by doubt and confusion, an era whose greatest need is steadfastness of thought and purpose, this Court which has been looked to as exhibiting consistency in adjudication, and a steadiness which would hold the balance even in the face of temporary ebbs and flows of opinion, should now itself become the breeder of fresh doubt and confusion in the public mind as to the stability of out institutions.” Here the view that Article 31A is constitutionally valid has been taken in atleast three decisions of this Court, namely, Shankari Prasad’s case, Sajjan Singh’s case and Golak Nath’s case and it has held the field for over 28 years and on the faith of its correctness, millions of acres of agricultural land have changed hands and new agrarian relations have come into being, transforming the entire rural economy. Even though the constitutional validity of Article 31A was not tested in these decisions by reference to the basic structure doctrine, I do not think the Court would be justified in allowing the earlier decisions to be 295 reconsidered and the question of constitutional validity of Article 31A A re-opened. These decisions have given a quietus to the constitutional challenge against the validity of Article 31A and this quietus should not now be allowed to be disturbed. I may point that this view which I am taking is supported by the decision of this Court in Ambika Prasad Misra v. State of U.P. and ors. (supra).

I may now turn to consider the constitutional challenge against the validity of Article 31B read with the 9th Schedule. This Article was introduced in the Constitution alongwith Article 31A by the Constitution (First Amendment) Act, 1951. Article 31A as originally introduced was confined only to legislation for acquisition of an estate or extinguishment or modification of any rights in an estate and it saved such legislation from attack under Articles 14, 19 and 31. Now once legislation falling within this category was protected by Art. 31A, it was not necessary to enact another saving provision in regard to the same kind of legislation. But, presumably, having regard to the fact that the constitutional law was still in the stage of evolution and it was not clear whether a law, invalid when enacted, could be revived without being re-enacted. Parliament thought that Article 31A, even if retrospectively enacted.

may not be sufficient to ensure the validity of a legislation which was already declared void by the courts as in Kameshwar Singh’s case, and therefore considered it advisable to have a further provision in Article 31B to specifically by-pass judgments striking down such legislation. That seems to be the reason why Article 31B was enacted and statutes falling within Article 31A were included in the 9th Schedule. Article 31B was conceived together with Article 31A as part of the same design adopted to give protection to legislation providing for acquisition of an estate or extinguishment or modification of any rights in an estate. The 9th Schedule of l? Article 31B was not intended to include laws other than those covered by Article 31A. That becomes clear from the speeches of the Law Minister and the Prime Minister during the discussion on the Constitution (First Amendment) Act, 1951. Dr. Ambedkar admitted of the 9th Schedule that prima facie “it is an unusual procedure” but he went on to add that “all the laws that have been saved by this Schedule are laws that fall under Article 31.” Jawaharlal Nehru also told Parliament:

“It is not with any great satisfaction or pleasure that we have produced this long Schedule. We do not wish to add to it for two reasons. One is that the Schedule consists of a particular type of legislation, generally speaking, and another type should not come in.. ” (emphasis supplied).

Articles 31A and 296 31B were thus intended to serve the same purpose of protecting legislation falling within a certain category. It was a double barelled protection which was intended to be provided to this category of legislation, since it was designed to carry out agrarian reform which was so essential for bringing about a revolution in the socio-economic structure of the country. This was followed by the Constitution (Fourth Amendment) Act, 1956 by which the categories of legislation covered by Article 31A were sought to be expanded by adding certain new clauses after clause (a). Originally, in the draft bill in addition to these clauses, there was one more clause, namely, clause (d) which sought to give protection to a law providing for the acquisition or requisitioning of any immovable property for the rehabilitation of displaced persons and, as a corollary to the proposed amendment of Art. 31A, it was proposed in Clause (S) of the Bill to add in the 9th Schedule two more State Acts and four Central Acts which fell within the scope of clauses (d) and (f) of the revised Article 31A. Vide cl.

(4) of the Statement of objects and Reasons-The two State Acts which were proposed to be included in the 9th Schedule were the Bihar Displaced Persons Rehabilitation (Acquisition of Land) Act. 1950 and the United Provinces Land Acquisition (Rehabilitation of Refugees) Act, 1948. The West Bengal Land Development and Planning Act, 1948, which was struck down by this Court in State of West Bengal v. Bela Banerjee, and the invalidity of which really started the entire exercise of the Constitution (Fourth Amendment) Act. 1955, was however, left-out of the 9th Schedule in the draft Bill because it included certain purposes of acquisition which fell outside the proposed clause (d) of Article 31A. But, while the Constitution (Fourth Amendment) Act, 1955 was being debated, an ordinance was issued by the Governor of West Bengal omitting with retrospective effect all the items in the definition of “public purpose” except the settlement of displaced persons who had migrated into the State of West Bengal, with the result that the West Bengal Act as amended by the ordinance came within the category of legislation specified in the proposed clause (d) of Art. 31A. In view of this amendment, the West Bengal Act was included in the 9th Schedule by way of amendment of the draft Bill. It is significant to note that similar Orissa Statute which provided for acquisition of land for purposes going beyond the proposed clause (d) of Article 31A and which was not amended in the same manner as the West Bengal Act, was not included in the 9th Schedule. A Central Act, namely, the Resettlement of Displaced Persons (Land Acquisition) Act, 1948 fell within the proposed clause (d) of Art. 31A and it was therefore included in the 297 9th Schedule in the draft Bill. The link between Articles 31A and A 31B was thus maintained in the draft Bill, but when the draft Bill went before the Joint Committee. the proposed clause (d) of Article 31A was deleted and the Bihar, U.P. and West Bengal Acts as also the above-mentioned Central Act which were originally intended to be within the scope and ambit of Article 31A, became unrelated to that Article. Even so, barring these four Acts, all the other statutes included in the 9th Schedule fell within one or the other clause of the amended Art. 31A. Subsequent to this amendment. several other statutes dealing with agrarian reform were included in the 9th Schedule by the Constitution (Seventeenth Amendment) Act, 1964 and no complaint can be made in regard to such addition, because all these statutes partook of the character of agrarian reform legislation and were covered by clause (a) Of Article 31A in view of the extended definition of “estate” substituted by the same amending Act. The validity of the Constitution (Seventeenth Amendment) Act, 1964 was challenged before this Court in Golak Nath’s case (supra) and though the Court by a majority of six against five took the view that Parliament has no power to amend any fundamental right, it held that this decision would not affect the validity of the Constitution (Seventeenth Amendment) Act, 1964 and other earlier amendments to the Constitution and thus recognised the validity of the various constitutional amendments which included statutes in the 9th Schedule from time to time upto that date. Then came the Constitution (Twenty Ninth Amendment) Act, 1972 by which two Kerala agrarian reform statutes were included in the 9th Schedule. The validity of the Twenty Ninth Amendment Act was challenged in Keshavananda Bharati’s case, but by a majority consisting of Khanna. J. and the six learned Judges led by Ray. C.J., it was held to be valid. Since all the earlier constitutional amendments were held valid on the basis of unlimited amending power of Parliament recognised in Shankari Prasad’s case and Sajjan Singh’s case and were accepted as valid in Golak Nath’s case and the Twenty Ninth Amendment Act was also held valid in Keshavananda Bharati’s case. though not on the application of the basic structure test, and these constitutional amendments have been recognised as valid over a number of years and moreover, the statutes intended to be protected by them are all falling within Article 31A with the possible exception of only four Acts referred to above, I do not think, we would be justified in re-opening the question of validity of these constitutional amendments and hence we hold them to be valid. But, all constitutional amendments made after the decision in Keshavananda Bharati’s case would have to be tested by reference to the basic structure doctrine, for Parliament would then have no excuse for saying that it did not know the limitation 298 on its amending power. It may be pointed out that quite a large number of statutes have been included in the 9th Schedule by the subsequent constitutional amendments and strangely enough, we find for the first time that statutes have been included which have no connection at all with Article 31A or 31C and this device of Article 3113 which was originally adopted only as a means of giving a more definite and assured protection to legislation already protected under Article 31A, has been utilised for the totally different purpose of excluding the applicability of Fundamental Rights to all kinds of statute which have nothing to do with agrarian reform or Directive Principles.

This is rather a disturbing phenomenon. Now out of the statutes which are or may in future be included in the 9th Schedule by subsequent constitutional amendments. if there are any which fall within a category covered by Article 31A or 31C, they would be protected from challenge under Articles 14 and 19 and it would not be necessary to consider whether their inclusion in the 9th Schedule J’ is constitutionally valid, except in those rare cases where protection may be claimed for them against violation of any other fundamental] rights. This question would primarily arise only in regard to statutes not covered by Article 31A or 31C and in case of such statutes the Court would have to consider whether the constitutional amendments including such statutes in the 9th Schedule violate the basic structure of the Constitution in granting them immunity from challenge of the fundamental rights. It is possible that in a given case, even an abridgement of a fundamental right may involve violation of the basic structure. It would all depend on the nature of the fundamental right, the extent and depth of the infringement, the purpose for which the infringement is made and its impact on the basic values of the Constitution. Take for example, right to life and personal liberty enshrined in Article 21. This stands on an altogether different footing from other fundamental rights.

I do not wish to express any definite opinion, but I may point out that if this fundamental right is violated by any legislation. it may be difficult to sustain a constitutional amendment which seeks to protect such legislation against challenge under Art. 21. So also where a legislation which has nothing to do with agrarian reform or any Directive Principles infringes the equality clause contained in Article 14 and such legislation is sought to be protected by a constitutional amendment by including it in the 9th Schedule, it may be possible to contend that such constitutional amendment is violative of the egalitarian principle which forms par of the basic structure. But these are only examples which I am giving by way of illustration.

for other situations may arise where infraction.

299 of a fundamental right by a statute, if sought to be constitutionally A protected, might affect the basic structure of the Constitution. In every case, therefore, where a constitutional amendment includes a statute or statutes in the 9th Schedule, its constitutional validity would have to be considered by reference to the basic structure doctrine and such constitutional amendment would be liable to be declared invalid to the extent to which it damages or destroys the basic structure of the Constitution by according protection against violation of any particular fundamental right.

I will now turn to consider the challenge against the constitutional validity of the unamended Art. 31C. This article was introduced in the Constitution by the Constitution (Twenty-fifth Amendment) Act, 1971 and it provided in its first part that “Notwithstanding anything contained in Art. 13, no law giving effect to the policy of the state towards securing the principles specified in Cl.

(b) or (c) of Art. 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 Art. 14, Art. 19 or Art. 31”. It is not necessary to reproduce here the second part of the unamended Art. 31C because that was declared unconstitutional by the majority decision in Keshavananda Bharti’s case and must consequently be treated as non-est.

The argument of Mr. Phadke against the constitutional validity of the unamended Art. 31C was the same as in case of Art. 31A, namely, that it emasculated the fundamental rights in Articles 14 and 19 and was, therefore, destructive of the basic structure of the Constitution. I shall presently examine this argument on merits and demonstrate that it is unsustainable, but before I do so, I may point out at the outset that it is wholly unnecessary to embark upon a discussion of the merits of this argument, because the first part of the unamended Art. 31C was held to be constitutionally valid by the majority decision in Keshavananda Bharti’s case and that decision being binding upon as, it is not open to Mr. Phadke to reagitate this question. Out of the thirteen Judges who sat on the Bench in Keshavananda Bharti’s case, Ray, J., as he then was, Palekar, J., Dwivedi, J., Khanna, J., Mathew. J., Beg, J., and Chandrachud, J., (as he then was took the view that the first part of the unamended Art. 31C was constitutionally valid, because the amending power of parliament was absolute and unlimited. Khanna, J. did not subscribe to the theory that Parliament had an absolute and unlimited right to amend the Constitution and his view was that the power of amendment conferred on Parliament was a limited power restricting Parliament from so amending the Constitution as to alter its basic structure, but even on the basis of this limited power, he upheld the constitutional validity of the first part of the unamended Article 31C. There were thus seven 300 out of thirteen Judges who held that the first part of the unamended Art. 31C was constitutionally valid, though the reasons which prevailed with Khanna, J. for taking this view were different from those which prevailed with the other six learned Judges. The issue as regards the constitutional validity of the first part of the unamended Art. 31C which directly arose for consideration before the Court was accordingly answered in favour of the Government and the law laid down by the majority decision was that the first part of the unamended Art. 31C was constitutional and valid and this declaration of the law must be regarded as binding on the court in the present writ petitions. Mr. Phadke, however, disputed the correctness of this proposition and contended that what was binding on the court was merely the ratio decidendi of Keshavananda Bharati’s case and not the conclusion that the first part of the unamended Article 31C was valid. The ratio decidendi of Keshavananda Bharti’s case, according to Mr. Phadke, was that the amendatory power of Parliament is limited and. it cannot be exercised so as to alter the basic structure of the Constitution and it was this ratio decidendi which was binding upon us and which we must apply for the purpose of determining whether the first part of the unamended Article 31C was constitutionally valid. It is no doubt true, conceded Mr. Phadke that the six learned Judges headed by Ray, J. (as he then was) held the first part of the unamended Article 31C to be constitutionally valid but that was on the basis that Parliament had absolute and unrestricted power to amend the Constitution, which basis was, according to the majority decision, incorrect. lt was impossible to say, argued Mr.

Phadke, what would have been the decision of the six learned Judges headed by Ray, J. (as he then was if they had applied the correct test and examined the constitutional validity of the first part of the unamended Article 31C by reference to the yardstick of the limited power of amendment, and their conclusion upholding the validity of the first part of the unamended Article 31C by applying the wrong test could not therefore be said to be binding . On the Court in the present writ petitions. This argument of Mr. Phadke is, in my opinion, not well founded and cannot be accepted. I agree with Mr. Phadke that the ratio decidendi of Keshavananda Bharati’s case was that the amending power of Parliament is limited and, Parliament cannot in exercise of the power of amendment alter the basic structure of the Constitution and the validity of every constitutional amendment has therefore to be judged by applying the test whether or not it alters the basic structure of the constitution and this test was not applied by the six learned Judges headed by Ray, J. (as he 301 then was), but there my agreement ends and I cannot accept further argument of Mr. Phadke that for this reason, the conclusion reached by the six learned Judges and Khanna, J., as regards the constitutionality of the first part of the unamended Article 31C has no validity. The issue before the court in Keshavananda Bharti’s case was whether the first part of the unamended Article 31C was constitutionally valid and this issue was answered in favour of the Government by a majority of seven against six. It is not material as to what were the reasons which weighed with each one of the Judges who upheld the validity of the first part of the unamended Article 31C. The reasons for reaching this conclusion would certainly have a bearing on the determination of the ratio decidendi of the case and the ratio decidendi would certainly be important for the decision of future cases where the validity of some other constitutional amendment may come to be challenged, but so far as the question of validity of the first part of the unamended Article 31C is concerned, it was in so many terms determined by the majority decision in Keshavananda Bharati’s case and that decision must be held binding upon us. Mr. Phadke cannot therefore be allowed to reopen this question and I must refuse to entertain the challenge against the Constitutional validity of the unamended Art. 31C preferred by Mr. Phadke.

But even if it were open to Mr. Phadke to dispute the decision in Keshavananda Bharti’s case and to raise a challenge against the constitutional validity of the first part of the unamended Article 31C, I do not think the challenge can succeed. What the first pari of the unamended Article 31C does is merely to abridge the Fundamental Rights in Articles 14 and 19 by excluding their applicability to legislation giving effect to the policy towards securing the principles specified in clauses (b) and (c) of Article 39.

The first part of the unamended Article 31C is basically of the same genre as Article 31A with only this difference that whereas Article 31A protects laws relating to certain subjects, the first part of the unamended Article 31C deals with laws having certain objectives. There is no qualitative difference between Article 31A and the first part of the unamended Article 31C in so far as the exclusion of Articles 14 and 19 is concerned. The fact that the provisions to the first part of the unamended Article 31C are more comprehensive and have greater width compared to those of Article 31A does not make any difference in principle. If Article 31A is constitutionally valid, it is indeed difficult to see how the first part of the unamended Article 31C can be held-to be unconstitutional. It may be pointed out that the first part of the unamended Article 31C in fact stands on a more secure footing because it accords protection against infraction of Articles 14 and 19 to legislation enacted for giving effect to the Directive Principles set out in clauses (b) and (c) of Article 39.

302 The legislature in enacting such legislation acts upon the constitutional mandate contained in Article 37 according to which the Directive Principles are fundamental in the governance of the country and it is the duty of the State to apply those principles in making laws. lt is for the purpose of giving effect to the Directive Principles set out in clause (b) and (c) of Art. 39 in discharge of the constitutional obligation laid upon the State under Article 37 that Fundamental Rights, in Articles 14 and 19 are allowed to be abridged and I fail to see how a constitutional amendment making such a provision can be condemned as violative of the basic structure of the Constitution. Therefore even on first principle, I would be inclined to hold that the first part of the unamended Article 31C is constitutionally valid.

That takes us to the next ground of challenge against the constitutional validity of the Constitution (Fortieth Amendment) Act, 1956 in so far as it included the amending Acts 21 of 1975, 47 of 1975 and 2 of 1976 in the 9th Schedule and the Constitution (Forty-second Amendment) Act, 1976 in so far as it introduced cls. (4) and (5) in Art.

368. The petitioners contended under this head of challenge that the Constitution (Fortieth Amendment) Act, 1976 was passed by the Lok Sabha on 2nd April, 1976 and the Constitution Forty-Second Amendment) Act, 1976 sometime in November, 1976, but on these dates the Lok Sabha was not validly in existence because it automatically dissolved on 18th March, 1976 on the expiration of its term of 5 years.

It is no doubt true that the House of People (Extension of Duration) Act, 1976 was enacted by Parliament under the Proviso to Art. 83(2) extending the duration of the Lok Sabha for a period of one year, but the argument of the petitioners was that this Act was ultra vires and void, because the duration of, the Lok Sabha could be extended under the proviso to Art. 83(2) only during the operation of a Proclamation of an Emergency and, in the submission of the petitioners, there was no Proclamation of Emergency in operation at the time when the House of People (Extension of Duration) Act, 1976 was passed. It may be conceded straight away that, strictly speaking, it is superfluous and unnecessary to consider this argument because, even if the Constitution (Fortieth Amendment) Act, 1976 is unconstitutional and void and the Amending Acts 21 of 1975, 47 of 1975 and 2 of 1976 have not been validly included in the 9th Schedule so as to earn the protection of Art. 318, they are still as pointed out earlier, saved from invalidation by Art. 31A and so far as the Constitution Forty-second Amendment) Act, 1976 is concerned, I have already held that it is outside the constituent power of Parliament in so far as it seeks to include clauses (4) and (5) in Art. 368. But since a 303 long argument was addressed to us seriously pressing this ground of challenge, I do not think I would be unjustified in dealing briefly with it.

It is clear on a plain natural construction of its language that under the Proviso to Art. 83(2), the duration of the Lok Sabha could be extended only during the operation of a Proclamation of Emergency and if, therefore, no Proclamation of Emergency was in operation at the relevant time, the House of People (Extension of Duration) Act, 1976 would be outside the competence of Parliament under the Proviso to Art. 83(2). The question which thus requires to be considered is whether there was a Proclamation of Emergency was in operation at the date when the House of People (Extension of Duration Act, 1976 was enacted. The learned Solicitor General appearing on behalf of the Union of India contended that not one but two Proclamations of Emergency were in operation at the material date.. One Proclamation issued by the President on 3rd December, 1971 and the other Proclamation issued on 25th June, 1976. By the first Proclamation, the President in exercise of the powers conferred under cl. (1) of Art. 352 declared that a grave emergency existed whereby the security of India was threatened by external aggression. This Proclamation was approved by Resolutions of both the Houses of Parliament of 4th December, 1971 as contemplated under cl. 2(c) of Art.

352 and it continued in operation until 21st March, 1977 when it was revoked by a Proclamation issued by the President under clause 2(a) of Art. 352. The first Proclamation of Emergency was thus in operation at the date when the House of People Extension of Duration) Act, 1976 was enacted by Parliament. The second Proclamation of Emergency was issued by the President under Art. 352 cl. (1) and by this Proclamation, the President declared that a grave emergency existed whereby the security of India was threatened by internal disturbance. This Proclamation was also in operation at the date of enactment of the House of People (Extension of Duration) Act, 1976 since it was not revoked by another Proclamation issued under cl. 2(a) of Art. 35 until 21st March, 1977. The argument of the petitioners however, was that, though the first Proclamation of Emergency was validly issued by the President on account of external aggression committed by Pakistan against India, the circumstances changed soon thereafter and the emergency which justified the issue of the Proclamation ceased to exist and consequently the continuance of the Proclamation was malafide and colourable and hence the Proclamation, though not revoked until 21st March, 1972, ceased in law to continue in force and could not be said to be in operation at the material date, namely, 16th February, 1976. So far as the second Proclamation of Emergency is concerned, the petitioners contended that it was illegal and void on 304 three grounds, namely; whilst the first Proclamation of Emergency was in operation, it was not competent to the President under Art. 352. clause (1) to issue another Proclamation of Emergency; (2) the second Proclamation of Emergency was issued by the President on the advice of the Prime Minister and since this advice was given by the Prime Minister without consulting the Council of Ministers, which alone was competent under the Government of India (Transaction of Business Rules, 1961 to deal with the question of issue of a Proclamation of Emergency, the second Proclamation of Emergency could not be said to have been validly issued by the President; and (3) there was not threat to the security of India on account of internal disturbance, which could justify the issue of a Proclamation of Emergency and the second Proclamation was issued, not for a legitimate purpose sanctioned by clause (1) of Art. 352 but with a view to perpetuating the Prime Minister in power and it was clearly malafide and for collateral purpose and hence outside the power of the President under Art. 352 cl.(1). The petitioners had to attack the validity of both the Proclamations of Emergency, the continuance of one and the issuance of another, because even if one Proclamation of Emergency was in operation at the relevant time, it would be sufficient to invest Parliament with power to enact the House of People (Extension of Duration) Act, 1976.

Obviously, therefore, if the first Proclamation of Emergency was found to continue in operation at the date of enactment of the House of People (Extension of Duration) Act, 1976, it would be unnecessary to consider whether the second Proclamation of Emergency was validly issued by the President. I will accordingly first proceed to examine whether the first Proclamation of Emergency which was validly issued by the President ceased to be in force by reason of the alleged change in circumstances and was not operative at the relevant time. It is only if this question is answered in favour of the petitioners that it would become necessary to consider the question of validity of the second proclamation of Emergency.

I think it is necessary to emphasize even at the cost of repetition that it was not the case of the petitioners that the first Proclamation of emergency when issued, was invalid. It is a historical fact which cannot be disputed that Pakistan committed aggression against India on 3rd December, 1971 and a grave threat to the security of India arose on account of this external aggression. The President was, therefore, clearly justified in issuing the first Proclamation of Emergency under cl. (1) of Art. 352. The petitioners, however, contended that the circumstances which warranted the issue of the first Proclamation of Emergency ceased to exist and put forward various facts such as the termination of hostilities with Pakistan on 16th December, 1971, the signing of the Simla Pact on 2nd June, 1972, the resumption of postal and 305 telecommunication links on 4th November, 1974 and the conclusion of trade agreement between India and Pakistan on 24th November, 1974 as also several statements made by the Prime Minister and other Ministers from time to time to show that the threat to the security of India on account of external aggression ceased long before 1975 and there was absolutely no justification whatsoever to continue the Proclamation and hence the continuance of the Proclamation was mala-fide and in colourable exercise of power and it was liable to be declared as unconstitutional and void. I do not think this contention of the petitioners can be sustained on a proper interpretation of the provisions of Art. 352. This Article originally consisted of three clauses, but by section 5 of the Constitution (Thirty-eighth Amendment) Act, 1975. clauses (4) and (5) were added in this Article and thereafter, by a further amendment made by sec. 48 of the Constitution Forty-second Amendments Act, 1976, another clause (2A) was introduced after cl. (2). The whole of this Article is not relevant for our purpose but I shall set out only the material provisions thereof which have a bearing on the controversy between the parties;

352(1): “If the President is satisfied that a grave emergency exists hereby the Security of India or of any part of the territory thereof is threatened, whether by war or external aggression or internal disturbance, he may, by Proclamation, make a declaration to that effect (in respect of the whole of India or cf such part of the territory thereof as may be specified in the Proclamation;

(2) A Proclamation issued under cl. (1)- (a) may be revoked (or varied) by a subsequent Proclamation;

(b) shall be laid before each House of Parliament;

(c) shall cease to operate at the expiration of two months unless before the expiration of that period it has been approved by resolutions of both Houses of Parliament.

………………………………………………

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(2A)…………………………………………..

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(3) A Proclamation of Emergency declaring that the security of India or of any part of the territory thereof is threatened by war or by external aggression or by internal disturbance may be made before the actual occurrence of war or of any such aggression or disturbance if the President is satisfied the there is 306 imminent danger thereof.

(4) The power conferred on the President by this article shall include the power to issue different Proclamations on different grounds, being war or external aggression or internal disturbance or imminent danger of war or external aggression or internal disturbance whether or not there is a Proclamation already issued by the President under cl. (1) and such Proclamation is in operation.

(5) Notwithstanding anything in this Constitution:- (a) the satisfaction of the President mentioned in clauses (1) and (3) shall be final and conclusive and shall not be questioned in any Court on any ground;

(b) subject to the provisions of cl. (2), neither the Supreme Court nor any other court shall have jurisdiction to entertain any question, on any ground, regarding the validity of- (i) a declaration made by Proclamation by the President to the effect stated in clause (1); or (ii) the continued operation of such Proclamation.” Now it is obvious on a plain natural construction of the language of cl. (1) of Art. 352 that the President can take action under this clause only if he is satisfied that a grave emergency exists whereby the security of India or any part of the territory thereof is threatened, whether by war or external aggression or internal disturbance. The satisfaction of the President “that a grave emergency exists whereby the security of India… is threatened whether by war or external aggression or internal disturbance” is a condition precedent which must be fulfilled before the President can issue a Proclamation under Art. 352 cl. (1).

When this condition precedent is satisfied, the President may exercise the power under cl. (1) of Art. 352 and issue a Proclamation of Emergency. The constitutional implications of a declaration of emergency under Art. 352 cl. (1) are vast and they are provided in Articles 83(2), 250, 353, 354, 358 and 359. The emergency being an exceptional situation arising out of a national crisis certain wide and sweeping powers have been conferred on the Central Government and Parliament with a view to combat the situation and restore normal conditions. One such power is that given by Art. 83 (2), which provides that while a Proclamation of Emergency is in operation, Parliament may by law extend its duration for a period not exceeding, one year at a time. Then another power conferred is that under Art. 250 which says that, while a Proclamation of Emergency is in operation, Parliament shall have the power to make laws for the 307 whole or any part of the territory of India with respect to any of the matters enumerated in the State List. The effect of this provision is that the federal structure based on separation of powers is put out of action for the time being. Another power of a similar kind is given by Art. 353 which provides that during the time when a Proclamation of Emergency is in force, the executive powers 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. This provision also derogates from the federal principle which forms the basis of the Constitution. Then we come to Art. 354 which confers power on the President, during the operation of a Proclamation of Emergency, to direct that provisions relating to distribution of revenues under Arts. 268 to 270 shall have effect subject to such modifications or exceptions as he thinks fit. Another drastic consequence of the Proclamation of Emergency is that provided in Article 358 which suspends the operation of the Fundamental Rights guaranteed under Art. 19 while a Proclamation of Emergency is in operation. Art. 359 cl (1) em powers the President during the operation of a Proclamation of Emergency to make an order suspending the enforcement of any of the Fundamental Rights conferred by Part III and cl. (A) introduced by the Constitution (Thirty Eighth Amendment) Act, 1975 suspends the operation of those Fundamental Rights of which the enforcement has been suspended by the President by an order made under clause (1). These are the drastic consequences which ensue upon the making of a declaration of emergency. The issue of a Proclamation of Emergency makes serious inroads into the principle of federalism and emasculates the operation and efficacy of the Fundamental Rights. The power of declaring an emergency is therefore a power fraught with grave consequences and it has the effect of disturbing the entire power structure under the Constitution. But it is a necessary power given to the Central Government with a view to arming it adequately to meet an exceptional situation arising out of threat to the security of the country on account of war or external aggression or internal disturbance or imminent danger of any such calamity. It is therefore a power which has to be exercised with the greatest care and caution and utmost responsibility.

It will be convenient at this stage to consider the question as to whether and if so to what extent, the Court can review the constitutionality of a Proclamation of Emergency issued under Article 352 cl. (1). There were two objections put forward on behalf of the respondents against the competence of the Court to examine the question of validity of a Proclamation of Emergency. One objection was that the question whether a grave emergency exists whereby the security of India or any part thereof is threatened by war or external aggression 308 or internal disturbance is essentially a political question entrusted by the Constitution to the Union Executive and on that account, it is not justiciable before the court. It was urged that having regard to the political nature of the problem, it was not amenable to judicial determination and hence the court must refrain from inquiring into it. The other objection was that in any event by reason of clauses (4 and 5) of Article 352, the Court had no jurisdiction to question the satisfaction of the President leading to the issue of a Proclamation of Emergency or to entertain any question regarding the validity of the Proclamation of Emergency or its continued operation. Both these objections are in my view unfounded and they do not bar judicial review of the validity of a Proclamation of Emergency issued by the President under Article 352 cl. (1). My reasons for saying so are as follows:

It is axiomatic that if a question brought before the court is purely a political question not involving determination of any legal or constitutional right or obligation, the court would not entertain it, since the court is concerned only with adjudication of legal rights and liabilities. But merely because a question has a political complexion, that by itself is no ground why the court should shrink from performing its duty under the Constitution, if it raises an issue of constitutional determination. There are a large number of decisions in the United States where the Supreme Court has entertained actions having a political complexion because they raised constitutional issue. Vide Gomallion v. Lightfoot and Baker v. Carr. The controversy before the court may be political in character, but so long as it involves determination of a constitutional question, the court cannot decline to entertain it. This is also the view taken by Gupta, J. and myself in State of Rajasthan v. Union of India. I pointed out in my judgment in that case and I still stand by it, that merely because a question has a political colour, the court cannot fold its hands in despair and declare “Judicial hands off”. So long as the question is whether an authority under the Constitution has acted within the limits of its power or exceeded it, it can certainly be decided by the court. Indeed it would be its constitutional obligation to do so. I have said before I repeat again that the Constitution is suprema lex the paramount law of the land, and there is no department or branch of government above or beyond it. Every organ of government, be it the executive or the legislature or the judiciary, derives its authority from the Constitution and it has to act within the limits of its authority and whether it has done so or not is for the Court to decide. The Court is H 309 the ultimate interpreter of the Constitution and when there is manifestly unauthorised exercise of power under the Constitution, it is the duty of the Court to intervene. Let it not be forgotten, that to this Court as much as to other branches of government, is committed the conservation and furtherance of constitutional values. ‘the Court’s task is to identify those values in the constitutional plan and to work them into life in the cases that reach the court. “Tact and wise restraint ought to temper any power but courage and the acceptance of responsibility have their place too.” The Court cannot and should not shirk this responsibility, because it has sworn the oath of allegiance to the Constitution and is also accountable to the people of this country. It would not therefore, be right for the Court to decline to examine whether in a given case there is any constitutional violation involved in the President issuing a Proclamation of Emergency under cl. ( I) of Article 352.

But when I say this, I must make It clear that the constitutional jurisdiction of this Court does not extend further than saying whether the limits on the power conferred by the Constitution on the President have been observed or there is transgression of such limits. Here the only limit on the power of the President under Article 35 cl. (1) is that the President should be satisfied that a grave emergency exists whereby the security of India or any part thereof is threatened whether by war or external aggression or internal disturbance. The satisfaction of the President is a subjective, one and cannot be decided by reference to any objective tests. It is deliberately and advisedly subjective because the matter in respect to which he is to be satisfied is of such a nature that its decision must necessarily be left to the Executive branch of Government. There may be a wide range of situations which may arise and their political implications and consequences may have to be evaluated in order to decide whether there is a situation of grave emergency by reason of the security of the country being threatened by war or external aggression or internal disturbance. It is not a decision which can be based on what the Supreme Court of the United States has described as “judiciably discoverable and manageable standards”. It would largely be a political judgment based on assessment of diverse and varied factors, fast-changing situations. potential consequences and a host of other imponderables. It cannot therefore, by its very nature, be a fit subject matter for adjudication by judicial methods and materials and hence it is left to the subjective satisfaction of the Central Government which is best in a position to decide it. The court cannot go into the question of correctness or adequacy of the facts and circumstances on which the satisfaction of the Central Government is based.

That would be a dangerous exercise for the Court, both because it is not a fit instrument for determining a question of this kind and also because the court would thereby usurp 310 the function of the executive and in doing so, enter the “political thicket” which it must avoid, if it is to retain its legitimacy with the people. But one thing is certain that if the satisfaction is mala fide or is based on wholly extraneous and irrelevant grounds, the court would have jurisdiction to examine it, because in that case there would be no satisfaction of the President in regard to the matter on which he is required to be satisfied. The satisfaction of the President is a condition precedent to the exercise of power under Art. 352 cl. (1) and if it can be shown that there is no satisfaction of the President at all, the exercise of the power would be constitutionally invalid. It is true that by reason of clause (5)(a) of Article 352, the satisfaction of the President is made final and conclusive, arid cannot be assailed on any ground, but, as I shall presently point out, the power of judicial review is a part of the basic structure of the Constitution and hence this provision debarring judicial review would be open to attack on the ground that it is unconstitutional and void as damaging or destroying the basic structure. This attack against constitutionality can, however, be averted by reading the provision to mean and that is how I think it must be read that the immunity from challenge granted by it does not apply where the challenge is not that the satisfaction is improper or unjustified but that there is no satisfaction at all. In such a case, it is not the satisfaction arrived at by the President which is challenged but the existence of the satisfaction itself. Where therefore the satisfaction is absurd or perverse or mala fide or based on a wholly extraneous and irrelevant ground, it would be no satisfaction at all and it would be liable to be challenged before a court, notwithstanding clause (5)(a) of Article 352. It must, of course, be conceded that in most cases it would be difficult if not impossible, to challenge the exercise of power under Article 352 clause (1) even on this limited ground, because the facts and circumstances on which the satisfaction is based would not be known, but where it is possible, the existence cf the satisfaction can always be challenged on the ground that it is mala fide or based on a wholly extraneous or irrelevant ground.

It is true that so far there is no decision of this court taking the view that the validity of a Proclamation of Emergency can be examined by the court though within these narrow limits. But merely because there has been no occasion for this Court to pronounce on the question of justiciability of a Proclamation of Emergency no inference can be drawn that a Proclamation of Emergency is immune from judicial scrutiny. The question whether or not a Proclamation of Emergency can be judicially reviewed on the ground that it is mala fide or an abuse of power of the President did arise before this Court in Gulam Sarwai v.

Union of India. but the court declined to 311 express any opinion on this question since no material was placed before the Court making out a case of mala fides or abuse of power. Undoubtedly, in the subsequent decision of this Court in Bhutnath Mato v. State of West Bengal there are one or two observations which might seem to suggest at first blush that a Proclamation of Emergency being a political matter is “de hors our ken”, but if one looks closely at the judgment of Krishna Iyer, J. in that case, it will be apparent that he does not lay down that a Proclamation of Emergency cannot be reviewed by the judiciary even on a limited ground and leaves that question open and rejects the contention of the petitioner challenging the continuance of Emergency only on the ground that “the onus of establishing the continuation of Emergency and absence of any ground whatever for the subjective satisfaction of the President, heavy as it is, has hardly been discharged, “and consequently it would be an academic exercise in constitutional law to pronounce on the question of judicial reviewability of a Proclamation of Emergency.

There is thus no decision of this court holding that a Proclamation of Emergency is beyond the judicial ken and I am not fettered by any such decision compelling me to take a view different from the one which I have expounded in the preceding paragraph of this opinion. In fact, the judgment of Gupta, J. and myself in State of Rajasthan v. Union of India (supra) completely supports me in the view I am taking. A Proclamation of Emergency is undoubtedly amenable to judicial review though on the limited ground that no satisfaction as required by Article 352 was arrived at by the President in law or that the satisfaction was absurd or perverse or mala fide or based on an extraneous or irrelevant ground.

Now the question arises whether the continuance of a Proclamation of Emergency valid when issued can be challenged before the court on the ground that the circumstances which necessitated or justified its issuance have ceased to exist. Can the court be asked to declare that the Proclamation of Emergency has ceased to exist and is no longer in force or does the Proclamation continue to be in force until it is revoked by another Proclamation under clause 2(a) of Article 352. The answer to this question depends on the interpretation of clause (2) of Article 352.

That clause says in sub-clause (a) that a Proclamation of Emergency issued under clause (1) may be revoked by a subsequent Proclamation. Sub-clause (b) of that clause requires that a Proclamation issued under clause (1) shall be laid before each House of Parliament and under sub-clause (c) such a Proclamation ceases to operate at the expiration of two months, unless it has been approved by both Houses of Parliament before the expiration of two 312 months. It is clear from this provision that a Proclamation of Emergency validly issued under clause (1) would continue to operate at least for a period of two months and if before the expiration of that period, it has been approved by resolutions of both Houses of Parliament, it would continue to operate further even beyond the period of two months, and the only way in which it can be brought to an end is by revoking it by another Proclamation issued under clause 2(a). There is no other way in which it can cease to operate. Neither Article 352 nor any other Article of the Constitution contains any provision saying that a Proclamation of Emergency validly issued under clause (1) shall cease to operate as soon as the circumstances warranting its issuance have ceased to exist. It is, therefore, clear on a plain natural interpretation of the language of sub-clauses (a) to (c) of clause (2 that so long as the Proclamation of Emergency is not revoked by another Proclamation under sub-clause (2) (a), it would continue to be in operation irrespective of change of circumstances. It may be pointed out that this interpretation of the provision of clause (2) of Article 352 is supported by the decision of this Court in Lakhan Pal v. Union of India where dealing with a similar contention urged on behalf of the petitioner that the continuance of the emergency which was declared on 26th October, 1962 was a fraud on the Constitution. this Court speaking through Sarkar, C. J. pointed out that “the only way a proclamation ceases to have effect is by one of the events mentioned in this clause” and since neither had happened, the Proclamation must be held to have continued in operation. The petitioner urged in that case that armed aggression which justified the issue of the Proclamation of Emergency had come to an end and the continuance of the Proclamation was therefore unjustified. But this contention was negatived on the ground that the Proclamation having been approved by the two Houses of Parliament within a period of two months of its issuance, it could cease to have effect only if revoked by another Proclamation and that not having happened, the Proclamation continued to be in force.

It is true that the power to revoke a Proclamation of Emergency is vested only in the Central Government and it is possible that the Central Government may abuse this power by refusing to revoke a Proclamation of Emergency even though the circumstances justifying the issue of Proclamation have ceased to exist and thus prolong baselessly the state of emergency obliterating the Fundamental Rights and this may encourage a totalitarian trend. But the Primary and real safeguard of the citizen against such abuse of power lies in “the good sense of the people and in the system of representative and responsible Government” which is provided in the Constitution. Additionally, it may be possible for the citizen in a given case to move 313 the court for issuing a writ of mandamus for revoking the Proclamation of Emergency if he is able to show by placing clear and cogent material before the court that there is no justification at all for the continuance of the Proclamation of Emergency. But this would be a very heavy onus because it would be entirely for the executive Government to be satisfied whether a situation has arisen where the Proclamation of Emergency can be revoked. There would be so many facts and circumstances and such diverse considerations to be taken into account by the executive Government before it can be satisfied that there is no longer any grave emergency whereby the security of India is threatened by war or external aggression or internal disturbance. ‘this is not a matter which is a fit subject matter for judicial determination and the court would not interfere with the satisfaction of the executive Government in this regard unless it is clear on the material on record that there is absolutely no justification for the continuance of the Proclamation of Emergency and the Proclamation is being continued mala fide or for a collateral purpose. The court may in such a case, if satisfied beyond doubt, grant a writ of mandamus directing the Central Government to revoke the Proclamation of Emergency. But until that is done, the Proclamation of Emergency would continue in operation and it cannot be said that, though not revoked by another Proclamation, it has still ceased to be in force. Here, in the present case it was common ground that the first Proclamation of Emergency issued on 3rd December 1971 was not revoked by another Proclamation under clause 2(a) of Article 352 until 21st March 1977 and hence at the material time when the House of People (Extension of Duration) Act, 1976 was passed, the first Proclamation of Emergency was in operation.

Now if the first Proclamation of Emergency was in operation at the relevant time, it would be sufficient compliance with the requirement of the proviso to clause (2) of Article 83 and it would be unnecessary to consider whether the second Proclamation of Emergency was validly issued by the President. But, contended the petitioners, the House of People (Extension of Duration) Act, 1976 on a proper interpretation of section 2 postulated the operational existence of both the Proclamations of Emergency and if either of them was not in existence at the material date, the Act would be inoperative and would not have the effect of extending the duration of the Lok Sabha. It was therefore not enough for the respondents to establish that the first Proclamation of Emergency was in operation at the relevant date, but it was further necessary to show that the second Proclamation of Emergency was also in operation and hence it was necessary to consider whether the second Proclamation of Emergency was validly issued by the President. The respondents sought to answer this contention 314 of the petitioners by saying that on a proper construction of the language of section 2, it was not a condition precedent to the operation. of the House of People (Extension of Duration Act, 1976 that both the Proclamations of Emergency should be in operation at the date when the Act was enacted. The House of People (Extension of Duration) Act, 1976 no doubt referred to both the Proclamations of Emergency being in operation but that was merely, said the respondents, by way of recital and it was immaterial whether this recital was correct or in correct, because so long as it could be objectively established that on Proclamation of Emergency at least was in operation, the requirement of the proviso to Article 83 clause (2) would be satisfied and the Act would be within the competence of Parliament to enact.

These rival contentions raised a question of construction of section 2 of the House of People (Extension of Duration) Act, 1976. It is a simple question which does not admit of much doubt or debate and a plain grammatical reading of section 2 is sufficient to answer it. It would be convenient to reproduce section 2 which co-incidentally happens to be the only operative section of the Act:

“Sec. 2: The period of five years (being the period for which the House of the People may, under clause (2) of Article 83 of the Constitution, continue from the date appointed for its first meeting) in relation to the present House of the People shall, while the Proclamations of Emergency issued on the 3rd day of December, 1971 and on the 25th day of June, 1975, are both in, operation, be extended for a period of one year:

Provided that if both or either of the said Proclamations cease or ceases to operate before the expiration of the said period of one year, the present House of the People shall, unless previously dissolved under clause (2) of Article 83 of the Constitution,.

continue until six months after the cesser of operation OF the said Proclamations or Proclamation but not beyond the said period of one year.” While interpreting the language of this section, it is necessary to bear in mind that the House of People (Extension of Duration) Act, 1976 was enacted under the proviso to clause (2) of Article 83 for the purpose of extending the duration of the Lok Sabha and it was a condition precedent to the exercise of this power by Parliament that there should be a Proclamation of Emergency in operation at the date when the Act was enacted. Now according to Parliament there were two Proclamations of Emergency which were in operation at the material date, one issued on 3rd December 1971 and the other on 25th June 1975 and the condition precedent for the exercise of the power under the proviso to cl. (2) of Article 83 to enact the House of People (Extension 315 of Duration) Act, 1976 was satisfied. It was, from the point of view of legislative drafting, not necessary to recite the fulfillment of this condition precedent, but the draftsman of the Act, it seems, thought it advisable to insert a recital that this condition precedent was satisfied and he, therefore, introduced the words “while the Proclamations of Emergency issued on the 3rd day of December, 1971 and on the 25th day of June, 1975 are both in operation” before the operative part in sec. 2 of the Act. These words were introduced merely by way of recital of the satisfaction of the condition precedent for justifying the exercise of the power under the proviso to clause (2) of Article 83 and they were not intended to lay down a condition for the operation of sec. 2 of the Act. Section 2 clearly and in so many terms extended the duration of the Lok Sabha for a period of one year and this extension was not made dependent on both the Proclamations of Emergency being in operation at the date of the enactment of the Act. It was for a definite period of one year that the extension was effected and it was not co- extensive with the operation of both the Proclamations of Emergency. The extension for a period of one year was made once and for all by the enactment of section 2 and the reference to both the Proclamations of Emergency being in operation was merely for the purpose of indicating that both the Proclamations of Emergency being in operation.

Parliament had competence to make the extension. It was therefore not at all necessary for the efficacy of the extension that both the Proclamations of Emergency should be in operation at the date of enactment of the Act. Even if one Proclamation of Emergency was in operation at the material date, it would be sufficient to attract the power of Parliament under the proviso to Art. 83 clause (2) to enact the Act extending the duration of the Lok Sabha. Of course, it must be concerned that Parliament proceeded on the assumption that both the Proclamations of Emergency were in force at the relevant date and they invested Parliament with power to enact the Act, but even if this legislative assumption were unfounded, it would not make any difference to the validity of the exercise of the power, so long as there was one Proclamation of Emergency in operation which authorised Parliament to extend the duration of the Lok Sabha wader the proviso to clause (2) of Article 83. It is true that the proviso to sec. 2 enacted that if both or either of the Proclamations of Emergency cease or ceases to operate before the expiration of the extended period of one year, the Lok Sabha shall continue until six months after the cesser of operation of the said Proclamations or Proclamation, not going beyond the period of one year, but the opening part of this proviso can have application only in relation to a Proclamation of Emergency which was in operation at the date of enactment of the Act. If such a Proclamation of Emergency which was in operation at the 316 material date ceased to operate before the expiration of the extended period of one year, then the term of the Lok Sabha would not immediately come to an end, but it would continue for a further period of six months but not so to exceed the extended period of one year. This provision obviously could have no application in relation to the second Proclamation of emergency if it was void when issued. In such a case, the second Proclamation not being valid at all at the date of issue would not be in operation at all and it could not cease to operate after the date of enactment of the Act. The proviso would in that event have to be read as relating only to the first Proclamation of Emergency, and since that Proclamation of Emergency continued until it was revoked on 21st March, 1977, the duration of the Lok Sabha was validly extended for a period of one year from 18th March, 1976 and hence there was a validly constituted Lok Sabha on the dates when the Constitution (Fortieth Amendment) Act, 1976 and the Constitution (Forty-second Amendment) Act, 1976 were passed by Parliament. On this view it is not at all necessary to consider whether the second Proclamation of Emergency was validly issued by the President. It is the settled practice of this Court not to say more than is necessary to get a safe resting place for the decision and I do not think that any useful purpose will be served by examining the various grounds of challenge urged against the validity of the second Proclamation of Emergency, particularly since clause (3) has been introduced in Art. 352 by the Constitution (Forty-Fourth Amendment) Act, 1978 requiring that a Proclamation of Emergency shall not be issued by the President unless the decision of the Union Cabinet recommending the issue of such Proclamation has been communicated to him in writing and clause (9) of Article 352 introduced by the Constitution (Thirty-eighth Amendment) Act. 1975 and renumbered by the Constitution (Forty-Fourth Amendment) Act, 1978 empowers the President to issue different Proclamations on different grounds. I would, therefore. reject the challenge against the validity of the Constitution (Fortieth Amendment) Act, 1976 and the Constitution (Forty-second Amendment) Act, 1976 based on the ground that on the dates when these Constitution Amending Acts were enacted, the Lok Sabha was not validly in existence.

That takes me to the challenge against the constitutional validity of the amendment made in Article 31.

by section 4 of the Constitution (Forty-second Amendment) Act, 1976. This amendment substitutes the words “all or any of the principles laid down in Part IV” for the words “the principles specified in clause (b) or clause (c) of Article 39” and so amended; Article 31C provides that “Notwithstanding anything contained in Article 13, no law giving effect to the policy of the State towards securing all or any of the principles laid dow.. in Part IV shall 317 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 or Article 19”. The amended Article 31C gives primacy to Directive Principles over Fundamental Rights in case of conflict between them and the question is whether this amendment is in any way destructive of the basic structure of the Constitution. To answer this question satisfactorily, it is necessary to appreciate the inter- relationship between Fundamental Rights and Directive Principles and for this purpose it would be useful to trace briefly the history of their enactment in the Constitution.

The genesis of Fundamental Rights and Directive Principles is to be found in the freedom struggle which the people of India waged against the British rule under the aegis of the Indian National Congress led by Mahatma Gandhi, Jawaharlal Nehru and other national leaders. These great leaders realised the supreme importance of the political and civil rights of the individual. because they knew from their experience of the repression under the British rule as also from the recent events of history including the two World Wars that these rights are absolutely essential for the dignity of man and development of his full personality. But, at the same time, they were painfully conscious that in the socio-economic conditions that prevailed in the country.

only an infinitesimal fraction of the people would be able to enjoy these civil and political rights. There were millions of people in the country who were steeped in poverty and destitution and for them, these civil and political rights had no meaning. It was realised that to the large majority of people who are living an almost sub-human existence in conditions of object poverty and for whom life is one long unbroken story of want and destitution, notions of individual freedom and liberty, though representing some of the most cherished values of free society, would sound as empty words bandied about only in the drawing rooms of the rich and well-to-do and the only solution for making these rights meaningful to them was to re-make the material conditions and usher in a new social order where socio- economic justice will inform all institutions of public life so that the pre-conditions of fundamental liberties for all may be secured. It was necessary to create socio-economic conditions in which every citizen of the country would be able to exercise civil and politically rights and they will not remain the preserve of only a fortunate few. The national leaders, therefore, laid the greatest stress on the necessity of bringing about socio-economic regeneration and ensuring social and economic justice. Mahatma Gandhi, the father of the nation, said in his inimitable style in words, full of poignancy:

“Economic equality is the master key to non- violent independence. A non-violent system of Government is an impossibility so long as the wide gulf between the rich and the hungry 318 millions persists. The contrast between the palaces of New Delhi and the miserable hovels of the poor labouring class cannot last one day in a free India in which the poor will enjoy the same power as the rich in the land. A violent and bloody revolution is a certainty one day, unless there is voluntary abdication of riches and the power that riches give and sharing them for common good”.

Jawaharlal Nehru also said in the course of his presidential address to the Lahore Congress Session of 1929:

“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 evolve her own methods and may adapt the ideal to the genius of her race.

Then again, emphasizing the intimate and inseverable connection between political independence and social and economic freedom, he said:

“If an indigenous Government took the place of the foreign Government and kept all the vested interests intact, 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.” The Congress Resolution of 1929 also emphasized the same theme of socio-economic reconstruction when it declared:

“The great poverty and misery of the Indian people are due, not only to foreign exploitation in India, but also to the economic structure of society, which the alien rulers support so that their exploitation may continue. In order therefore to remove this poverty and misery and to ameliorate the condition of the Indian masses, it is essential to make revolutionary changes in the present economic and social structure of society and to remove the gross inequalities.” The Resolution passed by the Congress in 1931 proceeded to declare that in order to end the exploitation of masses, political freedom must include social and economic freedom of the starving mil lions. The Congress Election Manifesto of 1945 also reiterated the same thesis when it said that “the most vital and urgent of India’s 319 problems is how to remove the curse of poverty and raise the standard of masses” and for that purpose it is “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”. This was the socio- economic philosophy which inspired the framers of the Constitution to believe that the guarantee of individual freedom was no doubt necessary to be included in the Constitution, but it was also essential to make provisions for restructuring the socio-economic order and ensuring social and economic justice to the people. This was emphasized by Jawaharlal Nehru when, speaking on the resolution regarding the aims and objectives before the Constituent Assembly, he said:

“The first task of this Assembly is to free India through a new Constitution, to feed the starving people and clothe the naked masses and give every Indian fullest opportunity to develop himself according to his capacity.

In fact, as pointed out by K. Santhanan, a prominent southern member of the Constituent Assembly, there were three revolutions running parallel in India since the end of the first World War. The political revolution came to an end on 15th August, 1947 when India became independent but clearly political freedom cannot be an end in itself. it can only be a means to an end, “that end being” as eloquently ex- pressed by Jawaharlal Nehru “the raising of the people,…………….. to higher levels and hence the general advancement of humanity.” It was therefore necessary to carry forward and accomplish the social and economic revolutions. The social revolution was meant to get India “out of the mediavalism based on birth, religion, custom and community and reconstruct her social structure on modern foundations of law, individual merit and secular education,” while the economic revolution was intended to bring about “transition from primitive rural economy to scientific and planned agriculture and industry.” Dr. Radhakrishnan who was a member of the Constituent Assembly and who later became the President of India also emphasised that India must have a socio-economic revolution designed not only to bring about the real satisfaction of the fundamental needs of the common man hut to go much deeper and bring about “a fundamental change in the structure of Indian society.” It was clearly realised by the framers of the Constitution that on the achievement of this great social and economic change depended the survival of India. “If we cannot solve this problem soon”, Jawaharlal Nehru warned the Constituent Assembly “all our paper Constitutions will become useless and purposeless.” The objectives Resolution which set out the and 320 objectives before the Constituent Assembly in framing the Constitution and which was passed by the Constituent Assembly in January 1947 before embarking upon the actual task of Constitution making, therefore, expressed the resolve of the Constituent Assembly to frame a constitution “wherein shall be guaranteed and secured to all the people of India justice, social, economic and political, equality of status and of opportunity before the law; freedom of thought, expression, belief, faith, worship, vocation, association and action subject to law and public morality and wherein adequate safeguards shall be provided for minority, backward and trial areas and depressed and other backward classes.” These objectives were incorporated by the Constitution makers in the Preamble of the Constitution and they were a sought to be secured by enacting Fundamental Rights in Part III and Directive Principles in Part IV.

It is not possible to fit Fundamental Rights and Directive Principles in two distinct and strictly defined categories, but it may be stated broadly that Fundamental Rights represent civil and political rights while Directive Principles embody social and economic rights. Both are clearly part of the broad spectrum of human rights. If we look at the Universal Declaration of Human Rights adopted by the General Assembly of the United Nations on 18th December 1948. we find that it contains not only rights protecting individual freedom (See Articles 1 to 21) but also social and economic rights intended to ensure socio-economic justice to every one (See Articles 22 to 29). There are also two International Covenants adopted by the General Assembly for securing human rights, one is the International Covenant on Civil and Political Rights and the other is the International Covenant on Economic, Social and Cultural Rights. Both are international instruments relating to human rights. It is therefore not correct to t say that Fundamental Rights alone are based on human rights while Directive Principles fall in some category other than human rights. The socio-economic rights embodied in the Directive Principles are as much a part of human rights as the Fundamental Rights. Hegde and Mukherjea, JJ. were. to my mind, right in saying in Keshavananda Bharati’s case at page 312 of the Report that “the Directive Principles and the Fundamental Rights mainly proceed on the basis of human Rights.” Together, they are intended to carry out the objectives set out in the Preamble of the Constitution and to establish an egalitarian social order informed with political, social and economic justice and II ensuring dignity of the individual not only to a few privileged persons but to the entire people of the country including the have-nots and the handicapped, the lowliest and the lost, 321 Now it is interesting to note that although Fundamental Rights and Directive Principles appear in the Constitution as distinct entities, there was no such demarcation made between them during the period prior to the framing of the Constitution. If we may quote the words of Granville Austin in his book; “Both types of rights had developed as a common demand, products of the national and social revolutions, of their almost inseparable intertwining. and of the character of Indian politics itself”. They were both placed on the same pedestal and treated as falling within the same category compendiously described as “Fundamental Rights”.

The Sapru Committee in its Constitutional Proposals made in 1945, recommended that the declaration of Fundamental Rights in its wider sense was absolutely necessary and envisaged these rights as falling in two classes; one justiciable and the other non-justiciable-the former being enforceable in Courts of law and the latter, not. The Committee however, felt difficulty in dividing the Fundamental Rights into these two classes and. left the whole issue to be settled by the Constitution-making body with the observation that though the task was difficult, it was by no means impossible. This suggestion of the Sapru Committee perhaps drew its inspiration from the Irish Constitution of 1937, which made a distinction between justiciable and non- justiciable rights and designated the former as Fundamental Rights and the latter as Directive Principles of Social Policy. Dr. Lauter-pacht also made a similar distinction between justiciable and non-justiciable rights in his “International Bill of the Rights of Men”. The substantial provisions of this Bill were in two parts; Part I dealt with personal or individual rights enforceable in Courts of Law while Part II set out social and economic rights incapable of or unsuitable for such enforcement. Sir B. N. Rau, who was the Constitutional Adviser to the Government of India, was considerably impressed by these ideas and he suggested that the best way of giving effect to the objectives set out in the objectives Resolution was to split-up the objectives into Fundamental Rights and Fundamental Principles of State Policy, the former relating to personal and political rights enforceable in Courts of Law and the latter relating to social and economic rights and other matters, not so enforceable and proposed that the Chapter on Fundamental Rights may be split- up into two parts; Part A dealing with the latter kind of rights under the heading “Fundamental Principles of Social Policy” and Part dealing with the former under the heading “Fundamental Rights”. The Fundamental Rights Sub-Committee also recommended that “the list of fundamental rights should be prepared in two parts, the first part consisting of rights enforceable by appropriate legal process and the second consisting of Directive Principles of Social Policy”. A week later, while moving for consideration, the Interim Report of Fundamental Rights, Sardar Vallabhbhai Patel said:

322 “This is a preliminary report or an interim report because the Committee when it sat down to consider the question of fixing the fundamental rights and its incorporation into the Constitution. came to the conclusion that the Fundamental Rights should be divided into two parts-the first part justiciable and the other non-justiciable.” This position was reiterated by Sardar Vallabhbhai Patel when he said while presenting the Supplementary Report:

“There were two parts of the Report; one contained Fundamental Rights which were justiciable and the other part of the Report referred to Fundamental Rights which were not justiciable but were directives.. ” It will, therefore, be seen that from the point of view of importance and significance no distinction was drawn between justiciable and non-justiciable rights and both were treated as forming part of the rubric of Fundamental Rights, the only difference being that whereas the former were to be enforceable in Courts of Law, the latter were not to be so enforceable. This proposal of dividing the fundamental rights into two parts, one part justiciable and the other non-justiciable, was however not easy of adoption, because it was a difficult task to decide in which category a particular fundamental right should be included. The difficulty may be illustrated by pointing out that at one time the right to primary education was included in the draft list of Fundamental Rights, while the equality clause figured in the draft list of Fundamental Principles of Social Policy. But ultimately a division of the Fundamental Rights into justiciable and non-justiciable rights was agreed-upon by the Constituent Assembly and the former were designated as “Fundamental Rights” and the latter as “Directive Principles of State Policy”. It has sometimes been said that the Fundamental Rights deal with negative obligations of the State not to encroach on individual freedom, while the Directive Principles impose positive obligations on the State to take certain kind of action.

But, I find it difficult to subscribe to this proposition because, though the latter part may be true that the Directive Principles require positive action to be taken by the State, it is not wholly correct to say that the Fundamental Rights impose only negative obligations on the State. There are a few fundamental rights which have also a positive content and that has been. to some extent, unfolded by the recent decisions of this Court in Hussainara Khatton v. State of Bihar, Madhav Hayawadanrao Hoskot v. State of Maharashtra and Sunil Batra etc. v. Delhi Administration & Ors. etc.. There are new dimensions of 323 the Fundamental Rights which are being opened-up by this Court and the entire jurisprudence of Fundamental Rights is in a stage of resurgent evolution. Moreover, there are three Articles, namely, Art. 15(2), Art. 17 and Art. 23 within the category of Fundamental Rights which are designed to protect the individual against the action of other private citizens and seem to impose positive obligations on the State to ensure this protection to the individual. I would not, therefore, limit the potential of the Fundamental Rights by subscribing to the theory that they are merely negative obligations requiring the State to abstain as distinct from taking positive action. The only distinguishing feature, to my mind, between Fundamental Rights and Directive Principles is that whereas the former are enforceable in a Court of Law, the latter, are not. And the reason for this is obvious; it has been expressed succinctly by the Planning Commission in the following words:

“The non-justiciability clause only provides that the infant State shall not be immediately called upon to account for not fulfilling the new obligations laid upon it. A State just awakened to freedom with its many pre-occupations might be crushed under the burden unless it was free to decide the order, the time, the place and the mode of fulfilling them.” The social and economic rights and other matters dealt with in the Directive Principles are by their very nature incapable of judicial enforcement and moreover, the implementation of many of those rights would depend on the state of economic development in the country, the availability of necessary finances and the Government’s assessment of priority of objectives and values and that is why they are made non-justiciable. But merely because the Directive Principles are non-justiciable, it does not follow that they are in any way subservient or inferior to the Fundamental Rights.

The Indian Constitution is first and foremost a social document. The majority of its provisions are either directly aimed at furthering the goals of the socio-economic revolution or attempt to foster this revolution by establishing the conditions necessary for its achievement.

Yet despite the permeation of the entire Constitution by the aim of national renascence, says Granville Austin, “the core of the commitment to the social revolution lies ………..

in the Fundamental Rights and the Directive Principles of State Policy.” These are the conscience of the Constitution and, according to Granville Austin, “they are designed to be the Chief instruments in bringing 324 about the great reforms of the socio-economic revolution and realising the constitutional goals of social, economic and political justice for all. The Fundamental Rights undoubtedly provide for political justice by conferring various freedoms on the individual, and also make a significant contribution to the fostering of the social revolution by aiming at a society which will be egalitarian in texture and where the rights of minority groups will be protected. But it is in the Directive Principles that we find the clearest statement of the socioeconomic revolution.

The Directive Principles 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 object physical conditions that had prevented them from fulfilling their best salves. The Fundamental Rights are no doubt important and valuable in a democracy. but there can be no real democracy without social and economic justice to the common man and to create socio- economic conditions in which there can be social and economic justice to every one, is the theme of the Directive Principles. It is the Directive Principles which nourish the roots of our democracy, provide strength and vigour to it and attempt to make it a real participatory democracy which does not remain merely a political democracy but also becomes social and economic democracy with Fundamental Rights available to all irrespective of their power, position or wealth. The dynamic provisions of the Directive Principles fertilise the static provisions of the Fundamental Rights. The object of the Fundamental Rights is to protect individual liberty, but can individual liberty be considered in isolation from the socio-economic structure in which it is to operate. There is a real connection between individual liberty and the shape and form of the social and economic structure of the society. Can there be any individual liberty at all for the large masses of people who are suffering from want and privation and who are cheated out of their individual rights by the exploitative economic system ? Would their individual liberty not come in conflict with the liberty of the socially and economically more powerful class and in the process, get mutilated or destroyed ? It is axiomatic that the real controversies in the present day society are not between power and freedom but between one form of liberty and another. Under the present socio-economic system, it is the liberty of the few which is in conflict with the liberty of the many. The Directive Principles therefore, impose an obligation on the State to take positive action 325 for creating socio-economic conditions in which there will be an egalitarian social order with social and economic justice to all, so that individual liberty will become a cherished value and the dignity of the individual a living reality, not only for a few privileged persons but for the entire people of the country. It will thus be seen that the Directive Principles enjoy a very high place in the constitutional scheme and it is only in the framework of the socio-economic structure envisaged in the Directive Principles that the Fundamental Rights are intended to operate, for it is only then they can become meaningful and significant for the millions of our poor and deprived people who do not have even the bare necessities of life and who are living below the poverty level.

The Directive Principles are set out in Part IV of the Constitution and this Part starts with Article 37 which, to my mind, is an Article of crucial importance. It says: “The provisions contained in this Part shall not be enforceable in any court but the principles therein laid down are nevertheless fundamental in the governance of the country and it shall be the duty of the State to apply these principles in making laws.” It is necessary, in order to appreciate the full implications of this Article, to compare it with the corresponding provision in the Irish Constitution which, as pointed out above, provided to some extent the inspiration for introducing Directive Principles in the Constitution. Article 45 of the Irish Constitution provides:

“The principles of social policy set forth in this Article are E intended for the general guidance of the Directives. The application of those principles in the making of laws shall be the care of the Direchtas exclusively and shall not be cognizable for any court under any of the provisions of this Constitution.” It is interesting to note that our Article 37 makes three significant departures from the language of Article 45;

first whereas Articles 4. provides that the application of the principles of social policy shall not be cognizable by any court, Article 37 says that the Directive Principles shall not be enforceable by any court: secondly whereas Article 45 provides that the principles of social policy are intended for the general guidance of the Direchtas, Article 37 makes the Directive Principles fundamental in the governance of this country; and lastly, whereas Article 45 declares that the application of principles of social policy in the making of laws shall be the care of the Direchtas exclusively, Article 37 enacts that it shall be the duty of the State to apply the Directive Principles in making laws.

The changes made by the framers of the Constitution are vital and they have the effect of bringing about a total transformation or metamorphosis o f this provision, fundamentally altering its significance and efficacy, 326 It will be noticed that the Directive Principles are not excluded from the cognizance of the court, as under the Irish Constitution: they are merely made non-enforceable by a court of law for reasons already discussed But merely because they are not enforceable by the judicial process does not mean that they are of subordinate importance to any other part of the Constitution. I have already said this before, but I am emphasizing it again, even at the cost of repetition, because at one time a view was taken by this Court in State of Madras v. Champkan Dorairajan that because Fundamental Rights are made enforceable in a court of law and Directive Principles are not. “the Directive Principles have to conform to and run as subsidiary to the Chapter on Fundamental Rights.” This view was patently wrong and within a few years, an opportunity was found by this Court in the Kerala Education Bill, 1959 SCR 995 to introduce a qualification by stating that: “Nevertheless in determining the scope and ambit of the Fundamental Rights relied on by or on behalf of any person or body, the court may not entirely ignore these Directive Principles of State Policy laid down in Part IV of the Constitution but should adopt the principle of harmonious construction and should attempt to give effect to both as much as possible.” But even this observation seemed to give greater importance to Fundamental Rights as against Directive Principles and that was primarily because the Fundamental Rights are enforceable by the Judicial process while the Directive Principles are expressly made non-enforceable I am however, of the opinion, and on this point I agree entirely with the observation of Hegde, J. in his highly illuminating Lectures on the “Directive Principles of State Policy” that:

“Whether or not a particular mandate of the Constitution is enforceable by court, has no bearing on the importance of that mandate. The Constitution contains many important mandates which may not be enforceable by the courts of law. That does not mean that those Articles must render subsidiary to the Chapter on Fundamental Rights …… it would be wrong to say that those positive mandates”, that is the positive mandates contained in the Directive Principles, “are of lesser significance than the mandates under Part III.” Hegde, J. in fact pointed out at another place in his Lectures that:

“Unfortunately an impression has gained ground in the organs of the State not excluding judiciary that because the Directive Principles set out in Part IV are expressly made by Article 37 non-enforceable by courts, these directives are mere pious hopes 327 not deserving immediate attention. I emphasize again that no Part of the Constitution is more important that Part IV To ignore Part IV is to ignore the sustenance provided for in the Constitution, the hopes held out to the nation and the very ideals on which our Constitution is built up.” (Emphasis supplied).

I wholly endorse this view set forth by Hegde, J and express my full concurrence with it.

I may also point out that simply because the Directive Principles do not create rights enforceable in a court of law, it does not follow that they do not create any obligations on the State. We are so much Obsessed by the Hohfeldian Classification that we tend to think of rights, Liberties, powers and privileges as being invariably linked with the corresponding concept of duty, no right, liability and immunity. We find it difficult to conceive of obligations or duties which do not create corresponding rights in others. But the Hohfeldian concept does not provide a satisfactory analysis in all kinds of jural relation ships and breaks down in some cases where it is not possible to say that the duty in one creates an enforceable right in another. There may be a rule which imposes an obligation on an individual or authority and yet it may not be enforceable in a court of law and therefore not give rise to a corresponding enforceable right in another person. But it would still be a legal rule because it prescribes a norm or con duct to be followed by such individual or authority.

The law may provide a mechanism for enforcement of this obligation, but the existence of the obligation does not depend upon the creation of such mechanism. The obligation exists prior to and independent of the mechanism of enforcement. A rule imposing an obligation or duty would not therefore cease to be a rule of law because there is no regular judicial or quasi-judicial machinery to enforce its command. Such a rule would exist despite of any problem relating to its enforcement. Otherwise the conventions of the Constitution and even rules of International Law would no longer be liable to be regarded as rules of law. This view is clearly supported by the opinion of Professor A. L.

Goodhart who, while commenting upon this point, says:

“I have always argued that if a principle is recognised 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 recognises as binding on it.” It is therefore. to my mind, clear beyond doubt that merely because the Directive Principles are not enforceable in a court of law, it does not mean that they cannot create obligations or duties binding on the 328 State. The crucial test which has to be applied is whether the Directive Principles impose any obligations or duties on the State; if they do, the State would be bound by a constitutional mandate to carryout such obligations or duties, even though no corresponding right is created in any one which can be enforced in a court of law.

Now on this question Article 37 is emphatic and makes the point in no uncertain terms. It says that the Directive Principles are “nevertheless fundamental in the governance of the country and it shall be the duty of the State to apply these principles in making laws.” There could not have been more explicit language used by the Constitution makers to make the Directive Principles binding on the State and there can be no doubt that the State is under a constitutional obligation to carry out this mandate contained in Article 37. In fact, non-compliance with the Directive Principles would be unconstitutional on the part of the State and it would not only constitute a breach of faith with the people who imposed this constitutional obligation on the State but it would also render a vital part of the Constitution meaningless and futile. Now it is significant to note that for the purpose of the Directive Principles, the “State” has the same meaning as given to it under Article 13 for the purpose of the Fundamental Rights.

This would mean that the same State which is injuncted from taking any action in infringement of the Fundamental Rights is told in no uncertain terms that it must regard the Directive Principles as fundamental in the governance of the country and is positively mandated to apply them in making laws. This gives rise to a paradoxical situation and its implications are for reaching. The State is on the one hand, prohibited by the constitutional injunction in Article 13 from making any law or taking any executive action which would infringe any Fundamental Right and at the same time it is directed by the constitutional mandate in Article 37 to apply the Directive Principles in the governance of the country and to make laws for giving effect to the Directive Principles. Both are constitutional obligations of the State and the question is, as to which must prevail when there is a conflict between the two. When the State makes a law for giving effect to a Directive Principle, it is carrying out a constitutional obligation under Article 37 and if it were to be said that the State cannot make such a law because it comes into conflict with a Fundamental Right, it can only be on the basis that Fundamental Rights stand on a higher pedestal and have precedence over Directive Principles. But, as we have pointed out above, it is not correct to say that under our constitutional scheme, Fundamental Rights are superior to Directive Principles or that Directive Principles must yield to Fundamental Rights. Both are in fact equally fundamental and the courts have therefore in recent times tried to 329 harmonise them by importing the Directive Principles in the construction of the Fundamental Rights. It has been laid down in recent decisions of this Court that for the purpose of determining the reasonableness of the restriction imposed on Fundamental Rights, the Court may legitimately take into account the Directive Principles and where executive action is taken or legislation enacted for the purpose of giving effect to a Directive Principle, the restriction imposed by it on a Fundamental Right may be presumed to be reasonable.

I do not propose to burden this opinion with reference to all the decided cases where this principles has been followed by the Court, but I may refer only to one decision which, I believe, is the latest on the point, namely, Pathumma v. State of Kerala, where Fazal Ali, J. summarised the law in the following words: “one of the tests laid down by this Court is that in judging the reasonableness of the restrictions imposed by clause (5) of Art. 19, the Court has to bear in mind the Directive Principles of State Policy”.

So also in the State of Bihar v. Kameshwar Singh, this Court relied upon the Directive Principle contained in Art. 39 in arriving at its decision that the purpose for which the Bihar Zamindary Abolition legislation had been passed was a public purpose. The principle accepted by this Court was that if a purpose is one falling within the Directive Principles, it would definitely be a public purpose. It may also be pointed out that in a recent decision given by this Court in M/s Kasturi Lal Lakshmi Reddy etc. v. The State of Jammu & Kashmir & Anr, has been held that every executive action of the Government, whether in pursuance of law or otherwise, must be reasonable and informed with public interest and the yardstick for determining both reasonableness and public interest is to be found in the Directive Principle and therefore, if any executive action is taken by the Government for giving effect to a Directive Principle, it would prima facie be reasonable and in public interest. It will, therefore, be seen that if a law is enacted for the purpose of giving effect to a Directive Principle and it imposes a restriction on a Fundamental Right, it would be difficult to condemn such restriction as unreasonable or not in public interest. So also where a law is enacted for giving effect to a Directive Principle in furtherance of the constitutional goal of social and economic justice it may conflict with a formalistic and doctrinaire view of equality before the law, but it would almost always conform to the principle of equality before the law in its total magnitude and dimension, because the equality clause in the Constitution does not speak of more formal equality before the law but embodies the concept of real and 330 substantive equality which strikes at inequalities arising on account of vast social and economic differentials and is consequently an essential ingredient of social and economic justice. The dynamic principle of egalitarianism fertilises the concept of social and economic justice; it is one of its essential elements and there can be no real social and economic justice where there is a breach of the egalitarian principle. If, therefore, there is a law enacted by the legislature which is really and genuinely for giving effect to a Directive Principle with a view to promoting social and economic justice. it would be difficult to say that such law violates the principle of egalitarianism and is not in accord with the principle of equality before the law as understood not in its strict and formalistic sense, but in its dynamic and activist magnitude. In the circumstances, the Court would not be unjustified in making the presumption that a law enacted really and genuinely for giving effect to a Directive Principle in furtherance of the cause of social and economic justice, would not infringe any Fundamental Right under Article 14 or 19. Mr. C. H. Alexandrowick, an eminent jurist, in fact, says: “Legislation implementing Part IV must be regarded as permitted restrictions on Part III”. Dr. Ambedkar, one of the chief architects of the Constitution, also made it clear while intervening during the discussion on the Constitution (First Amendment Bill in the Lok Sabha on 18th May 1951 that in his view “So” far as the doctrine of implied powers is concerned, there is ample authority in the Constitution itself, namely, in the Directive Principles to permit Parliament to make legislation, although it will not be specifically covered by the provisions contained in the Part on Fundamental Rights”.

If this be the correct interpretation of the constitutional provisions, as I think it is, the amended Article 31C does no more than codify the existing position under the constitutional scheme by providing immunity to a law enacted really and genuinely for giving effect to a Directive Principle, so that needlessly futile and time-consuming controversy whether such law contravenes Article 14 or 19 is eliminated. The amended Article 31C cannot in the circumstances be regarded as violative of the basic structure of the Constitution.

But I may in the alternative, for the purpose of argument. assume that there may be a few cases where it may be found by the court. perhaps on a narrow and doctrinaire view of the scope and applicability of a Fundamental Right as in Karimbil Kunhikoman v. State of Kerala where a law awarding compensation at a lower rate to holders of larger blocks of land and at higher rate to holders of smaller blocks of land was struck down by this Court as violative of the equality clause, that a law enacted really and genuinely for giving effect to a Directive Principle is violative of a Fundamental Right under Article 14 or 19. Would such a law enacted in discharge of the.

331 constitutional obligation laid upon the State under Article 37 be invalid, because it infringes a Fundamental Right ? If the court takes the view that it is invalid, would it not be placing Fundamental Rights above Directive Principles, a position not supported at all by the history of their enactment as also by the constitutional scheme already discussed by me. The two constitutional obligations, one in regard to Fundamental Rights and the other in regard to Directive Principles, are of equal strength and merit and there is no reason why, in case or conflict. the former should be given precedence over the latter. I have already pointed out that whether or not a particular mandate of the Constitution is justiciable has no bearing at all on its importance and significance and justiciability by itself can never be a ground for placing one constitutional mandate on a higher pedestal than the other. The effect of giving greater weightage to the constitutional mandate in regard to Fundamental Rights would be to relegate the Directive Principles to a secondary position and emasculate the constitutional command that the Directive Principles shall be fundamental in the governance of the country and it shall be the duty of the State to apply them in making laws. It would amount to refusal to give effect to the words “fundamental in the governance of the country” and a constitutional command which has been declared by the Constitution to be fundamental would be rendered not fundamental. The result would be that a positive mandate of the Constitution commanding the State to make a law would be defeated; by a negative constitutional obligation not to encroach upon a Fundamental Right and the law made by the legislature pursuant to a positive constitutional command would be delegitimised and declared unconstitutional. This plainly would be contrary to the constitutional scheme because, as already pointed out by me, the Constitution does not accord a higher place to the constitutional obligation in regard to Fundamental Rights over the contractional obligation in regard to Directive Principles and does not say that the implementation of the Directive Principles shall only be within the permissible limits laid down in the Chapter on Fundamental Rights. The main thrust of the argument of Mr. Palkhiwala was that by reason of the amendment of Article 31C, the harmony and balance between Fundamental Rights and Directive Principle are disturbed because Fundamental Rights which had. prior to the amendment, precedence over Directive Principles are now, as a result of the amendment, made subservient to Directive Principles. Mr. Palkhiwala picturesquely described the position emerging as a result of the amendment by saying that the Constitution is now made to stand on its head instead of its legs. But in my view the entire premise on which this argument of Mr. Palkhiwala is based is fallacious because it is not correct to say, and I have in the preceding portions 332 of this opinion, given cogent reasons for this view, that prior to the amendments Fundamental Rights had a superior or higher position in the constitutional scheme than Directive Principles and there is accordingly no question at all of any subversion of the constitutional structure by the amendment. There can be no doubt that the intention of the Constitution makers was that the Fundamental Rights should operate within the socio-economic structure or a wider continuum envisaged by the Directive Principles, for then only would the Fundamental Rights become exercisable by all and a proper balance and harmony between Fundamental Rights and Directive Principles secured. The Constitution makers therefore never contemplated that a conflict would arise between the constitutional obligation in regard to Fundamental Rights and the constitutional mandate in regard to Directive Principles. But if a conflict does arise between these two constitutional mandates of equal fundamental character how is the conflict to be resolved ? The Constitution did not provide any answer because such a situation was not anticipated by the Constitution makers and this problem had therefore to be solved by Parliament and some modus operandi had to be evolved in order to eliminate the possibility of conflict howsoever remote it might be.

The way was shown in no uncertain terms by Jawaharlal Nehru when he said in the Lok Sabha in the course of discussion on the Constitution (First Amendment) Bill:

“The Directive Principles of State Policy represent a dynamic move towards a certain objective.

The Fundamental Rights represent something static, to preserve certain rights which exist. Both again are right. But somehow and sometime it might so happen that dynamic movement and that static standstill do not quite fit into each other.

The dynamic movement towards a certain objective necessarily means certain changes taking place: that is the essence of movement. Now it may be that in the process of dynamic movement certain existing relationships are altered, varied or affected. In fact, they are meant to affect those settled relationships and yet if you come back to the Fundamental Rights they are meant to preserve, not indirectly, certain settled relationships. There is a certain conflict in the two approaches, not inherently. because that was not meant, I am quite sure. But there is that slight difficulty and naturally when the courts of the land have to consider these matters they have to lay stress more on the Fundamental Rights than on the Directive Principles. The result is that the whole purpose behind the Constitution, which was meant to be a dynamic Constitution leading to a certain goal step 333 by step, is somewhat hampered and hindered by the static element A being emphasized a little more than the dynamic element……… . If in the protection of individual liberty you protect also individual or group inequality, then you come into conflict with that Directive Principle which wants, according to your own Constitution. a gradual advance, or let us put it in another way, not so gradual but more rapid advance, whenever possible to a State where .. . there is less and less inequality and more and more equality. If any kind of an appeal to individual liberty and freedom is construed to mean as an appeal to the continuation of the existing inequality, then you get into difficulties. Then you become static, unprogressive and cannot change and you cannot realize the ideal of an egalitarian society which I hope most of us aim at” Parliament took the view that the constitutional obligation in regard to Directive Principles should have precedence over the constitutional obligation in regard to the Fundamental Rights in Articles 14 and 19, because Fundamental Rights though precious and valuable for maintaining the democratic way of life, have absolutely no meaning for the poor, down trodden and economically backward classes of people who unfortunately constitute the bull of the people of India and the only way in which Fundamental Rights can be made meaningful for them is by implementing the Directive Principles, for the Directive Principles are intended to bring about a socio-economic revolution and to create a new socio-economic order where there will be social and economic justice for all and every one, not only a fortunate few but the teeming millions of India, would be able to participate in the fruits of freedom and development and exercise the Fundamental Rights. Parliament therefore amended Article 31C with a view to providing that in case of conflict Directive Principles shall have precedence over the Fundamental Rights in Articles 14 and 19 and the latter shall yield place to the former. The positive constitutional command to make laws for giving effect to the Directive Principles shall prevail over the negative constitutional obligation not to encroach on the Fundamental Rights embodied in Articles 14 and 19. Parliament in making this amendment was moved by the noble philosophy eloquently expressed in highly in spiring and evocative words. full of passion and feeling. by Chandrachud, J. (as he then was) in his judgment in Keshavananda Bharati’s case at page 991 of the Report 1 may quote here what Chandrachud, J. (as he then was) said on that, occasion, for it sets out admirably the philosophy which inspired Parliament in enacting the amendment in Article 31C The learned Judge said:

“I have stated in the earlier part of my judgment that the Constitution accords a place of pride to Fundamental Rights and 334 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 IIl and IV, I feel no doubt That the basic object of conferring freedoms on individuals is the ultimate achievement of the ideals set 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 enjoys the State to apply the Directive Principles in making laws.

The freedom of a few have them to be abridged in order to ensure the freedom of all. It is in this sense that Parts, III and IV, as said by Granville Austin, together constitute “the conscience of the constitution”. The Nation stands today 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.” This is precisely what Parliament achieved by amending Article 3lC. Parliament made the amendment in Article 31C because it realised that “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 335 the mercy of then manly and then all freedoms will vanish” and “in order, therefore, to preserve their freedom, the privileged few must part with a portion of it.” I find it difficult to understand how it can at all be said that the basic structure of the Constitution its affected when for evolving a modus vivandi. for resolving a possible remote conflict between two constitutional mandates of equally fundamental character, Parliament decides by way of amendment of Article 31C that in case of such conflict, the constitutional mandate in regard to Directive Principles shall prevail over the constitutional mandate in regard to the Fundamental Rights under Articles 14 and 19. The amendment in Article 31C far from damaging the basic structure of the Constitution strengthens and reenforces it by giving fundamental importance to the rights of the members of the community as against the rights of a few individuals and furthering the objective of the Constitution to build an egalitarian social order where there will be social and economic justice for all, every on including the low visibility areas of humanity in the country will be able to exercise Fundamental Rights and the dignity of the individual and the worth of the human person which are cherished values will not remain merely the exclusive privileges of a few but become a living really for the many.

Additionally, this question may also be looked at from another point of view so far as the protection against violation, of Article 14 is concerned. The principle of egalitarianism, as I said before, is an essential element of social and economic justice and, therefore, where a law is enacted for, giving effect to a Directive Principle with a view to promoting social and economic justice, it would not run counter to the egalitarian principle and would not therefore be violative of the basic structure, even if it infringes equality before the law in its narrow and formalistic sense. No law which is really and genuinely for giving effect to a Directive Principle can be inconsistent with the egalitarian principle and therefore the protection granted to it under the amended Article 31C against violation of Article 14 cannot have the effect of damaging the basic structure. I do not therefore see how any violation of the basic structure is involved in the amendment of Article 31C. In fact. Once we accept the proposition laid down by the majority decision in Keshavananda Bharati’s case that the unamended Article 31C was constitutionally valid, it could only be on the basis that it did not damage or destroy the basic structure of the Constitution and moreover in the order made in Waman Rao’s case on 9th May, 1980 this Court expressly held that the unamended Article 31C “does not damage any of the basic or essential features of the Constitution or its basic structure,” and if that be so, it is difficult to appreciate how the amended 336 Article 31C can be said to be violative of the basic structure. If the exclusion of the Fundamental Rights.

embodied in Articles 14 and 19 could be legitimately made for giving effect to the Directive Principles set out in clauses (b) and (c) of Article 39 without affecting the basic. structure. I fail to see why these Fundamental Rights cannot be excluded for giving effect to the other Directive Principles. If the constitutional obligation in regard to the Directive Principles set out in clauses (b) and (c) of Article 39 could be given precedence over the constitutional obligation in regard to the Fundamental Rights under Articles 14 and 19, there is no reason in principle why such precedence cannot be given to the constitutional obligation in regard. to the other Directive Principles which stand on the same footing. It would, to my mind, be incongruous to hold the amended Article 31C invalid when the unamended Articles 31C has been held to be valid by the majority decision in Keshavananda Bharati’s case and by the order made on 9th May, 1980 in Waman Rao’s case.

Mr. Palkhiwala on behalf of the petitioners however contended that there was a vital difference between Article 31C as it stood prior to its amendment and the amended Article 31C, in as much as under the unamended Article 31C only certain categories of laws, namely, those enacted for the purpose of giving effect to the Directive Principles set out in clauses (b) and (c) of Article 39 were protected against challenge under Articles 14 and 19, while the position under the amended Article 31C was that practically every law would be immune from such challenge because it would be referable to one Directive Principle or the other and the result would be that the Fundamental Rights in Articles 14 and 19 would become meaningless and futile and would, for all practical purposes, be dead letter in the Constitution. The effect of giving immunity to laws enacted for the purpose of giving effect to any one or more of the Directive Principles would, according to Mr. Palkhiwala, be in reality and substance to wipe out Articles 14 and 19 from the Constitution and that would affect the basic structure of the Constitution. Mr. Palkhiwala also urge that the laws which were protected by the amended Article 31 C were laws for giving effect to the policy of the State towards securing any one or more of the Directive Principles and every law would be comprehended within this description since it would not be competent to the court to enter into questions of policy and determine whether the policy adopted in a particular law is calculated to secure any Directive Principle as claimed by the State. The use of the words “law giving effect to the policy of the State”, said Mr.

Palkhiwala, introduced considerable uncertainty in the, yardstick with which to decide whether a particular law falls within the description in the 337 amended Article 31C and widened the scope and applicability of the A amended Article so as to include almost every law claimed by the State to all within such description. This argument was presented by Mr. Palkhiwala with great force and persuasiveness but it does not appeal to me and I.

cannot. accept it. It is clear from the Language of the amended Article 31C that the law which is protected from challenge under Articles 14 and 19 is law giving effect to the policy of the State towards securing all or any of this Directive Principles. Whenever, therefore, any protection is claimed for a law under the amended Article 31C, it is necessary for the court to examine whether this law has been enacted for giving effect to the policy of the State towards securing any one or more of the Directive Principles and ii is only if the court is so satisfied as a result of judicial scrutiny, that the court would accord the protection of, the amended Article 31C to such law. Now it is undoubtedly true that the words used in the amended Article are “law giving effect to the policy of the Stale”, but the policy of the State which is contemplated there is the policy towards securing one or more of the Directive Principles. It is the constitutional obligation of the State to secure the Directive Principles and that is the policy which the State is required to adopt and when a law is enacted in pursuance of this policy on implementing the Directive Principles and it seeks to give effect to a Directive Principle, it would, both from; the point of view of grammar and language, be correct to say that it is made for giving effect to the policy of the State towards securing such Directive Principle. The words “law giving effect to the policy of the State” are not sc. wide as Mr. Palkhiwala would have it, but in the context and collocation in which they occur, they are intended to refer only to a law enacted for the purpose on implementing or giving effect to one or more of the Directive Principles. The Court before which, protection for a particular law is claimed under the amended Article 31C would therefore have to examine whether such law is enacted for giving effect to a Directive Principle, for then only it would have the protection of the amended Article 31C. Now the question is what should be the test or determining whether a law is enacted for giving effect to a Directive Principle. One thing is clear that a claim to that effect put forward by the State would have no meaning or value; it is the court which would have to determine the question.

Again it is not enough that there may be some connection between a provision of the law and a Directive Principle.

The concoction has to be between the law and the Directive Principle and it must be a real HE and substantial connection. To determine whether a law satisfies this test, the court would have to examine the pith and substance, the true 338 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 on such examination, the court finds that the dominant object of the law is to give effect to the Directive Principle, it would accord protection to the law under the amended Article 31C. But if the court finds that the law though passed seemingly for giving effect to a Directive Principle, is, in pith and substance. One for accomplishing an unauthorised purpose unauthorised in the sense of not being covered by any Directive Principle, such law would not have the protection of the amended Article 31C. To take the illustration given by Khanna, J. in Keshavananda Bharati’s case’ at page 745 of the Report, “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 Stale 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.” It may be possible, after performing what I may call an archaeological operation, to discover some remote the tenuous connection between such law and some Directive Principle, but the dominant object of such law would be, as pointed out by Mr H. M. Seeravi at Page 1559 of the second Volume of his book on “Constitutional Law of India”, to implement “the policy of the State to discriminate against citizens who hail from another State, and in a practical sense, to drive them out of it”, and such law would not be protected by the amended Article 31C. Many such examples can be given but I do not wish to unnecessarily burden this opinion. The point I wish to emphasize is that the amended Article 31 does not give protection to a law which has merely some remote or tenuous connection with a Directive Principle. What is necessary is that there must be a real and substantial connection and the dominant object of the law must be to give effect to the Directive Principle, and that is a matter which the court would have to decide before any claim for protection under the amended Article 31C can be allowed.

There is also one other aspect which requires to be considered before protection can be given to a law under the amended Article 31C. Even where the dominant object of a law is to given effect to a Directive Principle. it is not every provision af the law which is entitled to claim protection.

The words used in the amended Article 31C are: “Law giving effect to the policy of the State towards securing all or any of the principles laid down in Part IV” and these words, on a plain natural construction. do not include all the provisions on the law but only those which give effect to the Directive 339 Principle. But the question is how to identify these provisions giving effect to the Directive Principle in order to accord to them the protection of the amended Article 31C.

The answer to this question is analogically provided by the decision of this Court in Akadasi Padhan v. State of Orissa.

There the question was as to what was the precise connotation of the expression la relating to” a State monopoly which occurs in Article 19(6). This Court held that “a law relating to” a State monopoly cannot include all the provisions contained in such law but it must be construed to mean, “the law relating to the monopoly in its absolutely essential features” and it is only those provisions of the law “which are basically and essentially necessary for creating the State monopoly” which are protected by Article 19(6). This view was reiterated in several subsequent decisions of this Court which include inter alia Rashbihari Pande etc. v. State of Orissa, Vrajla Manilal & Co. & ors v.

State of Madhya Pradesh & Ors and R. C. Cooper v. Union of India. I would adopt the same approach in the construction of Article 31C and hold that it is not every provision of a statute which , has been enacted with the dominant object of giving effect to a Directive Principle, that it entitled to protection. but only those provisions of the statute which are basically and essentially necessary for giving effect to the. Directive Principles are protected under the amended Article 31C. If there are any other provisions in the statute which do not fall within this category, they would not be entitled to protection and their validity would have to be judged reference to Articles 14 and 19. Where, therefore, protection is claimed in respect of a statute under the amended Article 31C, the court would have first to determine whether there is real and substantial connection between the law and a Directive Principle and the predominant object of the law is to give effect to such Directive Principle and if the answer to this question is in the affirmative, the court would then have to consider which are the provisions of the law basically and essentially necessary for giving effect to the Directive Principle and give protection of the amended Article 31C only to those provisions. The question whether any particular provision of the law is basically and essentially necessary for giving effect to the Directive Principle. would depend, to a large extent, on how closely and integrally such provision is connected with the implementation on the Directive Principle. If the court finds That a particular provision is subsidiary 340 or incidental or not essentially and integrally connected with the implementation of the Directive Principle or is of such a nature that, though seemingly a part of the general design of the main provisions of the statute, its dominant object is to achieve an unauthorised purpose, it would not enjoy the protection of the amended Article 31C and would be liable to be struck down as invalid if it violates. Article 14 or 19 These considerations which I have discussed above completely answer some of the difficulties raised by Mr.

Palkhiwala. He said that if the amended Article 31C were held to be valid, even provision, like Section 23(e) and 24(1)(a) of the Bombay Prohibition Act, 1949 C which were struck down in State of Bombay v. F. N. Balsari as violating freedom of speech guaranteed under Article 19(1)(a), would have to be held to be valid. I do not think that freedom and democracy in this country would be imperilled if such provisions were held valid. In fact, after the amendment of Article 19(2) by the Constitution (First Amendment Act, 1951, it is highly arguable that both such provisions would fall within the protection of Article 19(2) and would be valid. And even otherwise, it is difficult to see how any violation of the basic structure is involved if a provision of a law prohibiting a person from commending any intoxicant, the consumption or use of which is forbidden by the law (except under a licence issued by the State Government) is protected against infraction of Article 19(1)(a). The position would perhaps be different if a provision is introduced in the Prohibition Act saying that no one shall speak against the prohibition policy or propagate for the repeal of the Prohibition Act or plead for removal of Article 47 from the Directive Principle. Such a provision may not and perhaps would not be entitled to the protection of the amended Article 31C, even though it finds a place in the Prohibition Act, because its dominant object would not be to give effect to the Directive Principle in Article 47 but to stifle freedom of speech in respect of a particular matter and it may run the risk of being struck down as violative of Article 19(1)(a). If the Court finds that even in a statute enacted for giving effect to a Directive Principle, there is a provision which is not essentially and integrally connected with the implementation of the Directive Principle or the dominant object of which is to achieve an unauthorised purpose, it would be outside the protection of the amended Article 31C and would have to meet the challenge of Articles 14 and 19.

Lastly, I must consider the argument of Mr. Palkhiwala that almost any and every law would be within the protection of the 341 amended Article 31C because it would be referable to some Directive Principle or the other. I think this is an argument of despair. Articles 39 to 51 contain Directive Principles referring to certain specific objectives and in order that a law should be for giving effect to one of those Directive Principles. there would have to be a real and substantial connection between the law and the specific objective set out in such Directive Principle. Obviously, the objectives set out in these Directive Principles being specific and limited, every law made by a legislature in the country cannot possibly have a real and substantial connection with one or the other of these specific objectives. It is only a limited number of laws which would have a real and substantial connection with one or the other of specific objectives contained in these Directive Principles and any and every law would not come within this category. Mr. Palkhiwala then contended that in any event, the Directive Principle contained in Article 38 was very wide and it would cover almost any law enacted by a legislature. This contention is also not well founded.

Article 38 is a general article which stresses the obligation of the State to establish a social order in which justice-social, economic and political shall inform all the institutions of national life. It no doubt talks of the duty of the State to promote the welfare of the people and there can be no doubt that standing by itself this might cover a fairly wide area but it may be noted that the objective set out in the Article is not merely promotion of the welfare of the people, but there is a further requirement that the welfare of the people is to be promoted by the State, not in any manner it likes, not according to its whim and fancy, but for securing and protecting a particular type of social order and that social order should be such as would ensure social, economic and political justice for all. Social, economic and political justice is the objective set out in the Directive Principle in Article 38 and it is this objective which is made fundamental in the governance of the country and which the State is laid under an obligation to realise. This Directive Principle forms the base on which the entire structure of the Directive Principles is reared and social, economic and political justice is the signature tune of the other Directive Principles. The Directive Principles set out in the subsequent Articles following upon Article 38 merely particularise and set out facets and aspects of the ideal of social, economic and political justice articulated in Article 38. Mr. Palkhiwala’s complaint was not directed against the use of the words ‘political justice’ in Article 38 but his contention was that the concept of social and economic justice referred to in that Article was so wide that almost any legislation could come within it. I do not agree. The concept 342 of social and economic Justice may not be very easy of definition but its broad contours are to be found in some of the provisions of the Fundamental Rights and in the Directive Principles and whenever a question arises whether a legislation is for giving effect to social and economic justice, it is with reference to these provisions that the question would have to be determined. There is nothing so vague or indefinite about the concept of social or economic justice that almost any kind of legislation could be justified under it. Moreover, where a claim for protection is made in respect of a legislation on the ground that it is enacted for giving effect to a Directive Principle, the Directive Principle to which it is claimed to be related would not ordinarily be the general Directive Principle set out in Article 38, but would be one of the specific Directive Principles set out in the succeeding Articles, because as I said before, these latter particularise the concept of social and economic justice referred to in Article 38. I cannot therefore subscribe to the proposition that if the Amendment in Article 31C were held valid, it would have the effect of protecting every possible legislation under the sun and that would in effect and substance wipe out Articles 14 and 19 from, the Constitution. This is a tall and extreme argument for which I find no justification in the provisions of the Constitution.

I would therefore declare Section 55 of the Constitution (Forty second Amendment) Act, 1976 which inserted sub-sections (4) and (5) in Article 368 as unconstitutional and void on the ground that it damages the basic structure of the Constitution and goes beyond the amending power of Parliament. But so far as Section 4 of the Constitution (Forty-second Amendment) Act, 1976 is concerned. I hold that, on the interpretation placed on the amended Article 31C by me, it does not damage or destroy the basic structure of the Constitution and is within the amending power of Parliament and I would therefore declare the amended Article 31C to be constitutional and valid.

I have also given my reasons in this judgment for subscribing to the order dated 9th May, 1980 made in Waman Rao’s case and this judgment ill so far as it sets out those reasons will be formally pronounced by me when Waman Rao’s case is set down on board for judgment.

S.R.

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IN THE SUPREME COURT OF INDIA

KRISHAN LAL …PETITIONER
Vs.
STATE OF HARYANA …RESPONDENT

DATE OF JUDGMENT: 01/04/1980

BENCH: KRISHNAIYER, V.R. VENKATARAMIAH, E.S. (J)

CITATION:
1980 AIR 1252 1980 SCR (3) 305
1980 SCC (3) 159

CITATOR INFO :
F 1983 SC 911 (9)

ACT:

Indian Penal Code 1860 (XLV of 1860) Section 376-Rape on young girl-Necessity of corroboration of girl’s testimony-Nature and extent of corroboration necessary.

HELD 1. To forsake vital consideration and go by obsolete demands for substantial corroboration is to sacrifice commonsense in favour of an artificial concoction called ‘judicial’ probability.

2. Human psychology and behavioural probability must be borne in mind when assessing the testimonial potency of the victim’s version. What girl would foster rape charges on a stranger unless a remarkable set of facts or cleanest motives are made out? The inherent bashfulness, the innocent naivete and the feminine tendency to conceal the outrage of masculine sexual aggression are factors which are relevant to improbabilise the hypothesis of false implication. The injury on the person of the victim has corroborative value.

3. The court loses its credibility if it rebels against realism. The law court is not an unnatural world. [308 B]

4. Merely because the trial court has ultra-cautiously acquitted someone, the higher court must, for that reason, cannot acquit everyone. [308C]

5. A socially sensitized judge is a better statutory armour against gender outrage than long clauses of a complex section with all the protections writ into it. [308C]

6. Observation on probative force of circumstances are not universal laws of nature but guidelines and good counsel. [307 F] Gurcharan Singh v. State of Haryana [1972] INSC 218; AIR 1972 SC 2661 referred to.

CRIMINAL APPELLATE JURISDICTION: Special Leave Petition (Crl.) 2599 of 1979.

From the Judgment and Order dated 9-7-1979 of the Punjab and Haryana High Court in Crl.A. 1228/1976. S. K Sabharwal and R.C. Kohli for the petitioner.

The order of the Court was delivered by, KRISHNA IYER, J, A rapist-if the concurrent findings of the courts below were correct has chosen to seek special leave to challenge his crime and punishment, and his counsel has attacked the verdict of culpability as wholly unfounded.

Indeed, it is redundant, and absent exceptional circumstances, out of bounds, for this Court, exercising its jurisdiction under Art. 136, to launch upon an exploration and re-appreciation of the evidence, its strengths and weaknesses with a view to sit in judgment over the holdings of the High Court in affirmance of those of the trial Court.

Briefly, we will touch upon one or two circumstances without claiming to be exhaustive in any manner. One Shashi Bala of Ambala was sleeping, with her mother and other children, outside her house in hot July (1975). The petitioner, in the company of another (acquitted accused), carried her away under intimidation to a neighbouring godown belonging to one Tilak Raj (another acquitted accused) and in that secluded venue committed rape on the young women.

After subjecting her to these beasteal acts of lust, Shashi Bala, who by then was nearly unconscious, was put back in her cot from where she had been removed. In the morning, the mother of the victim found blood on the daughter’s salwar and thereupon she complainingly narrated the criminal assault of the previous night. On the return of the father, P.W. 7, who had been away, the victim went, in his company, to the police station, lodged a report which was followed by investigation and charge-sheet. The Court, after a trial, convicted the present petitioner but, on grounds of benefit of doubt, acquitted the rest. Medical evidence showed that the raped girl was below 16 years of age. We are not too happy about the acquittal but since the State has not chosen to come up in appeal against the acquittal, we do not probe the matter further.

Counsel for the petitioner persistently urged that the evidence of the prosecutrix, without substantial corroboration, was inadequate to rest a conviction under s.

376 I.P.C. He relied on observations of this Court in Gurucharan Singh v. State of Haryana for the pro- 307 position that although a prosecutrix is not an accomplice, her evidence, as a rule of prudence, is viewed by courts unfavourably unless reinforced by corroboration “so as to satisfy its conscience that she is telling the truth and that the present accused of rape on her has not been falsely implicated”. It is true that old English cases, followed in British Indian courts, had led to a tendency on the part of judge made law that the advisability of corroboration should be present to the mind of the Judge “except where the circumstance make it safe to dispense with it”. Case-law, even in those days, had clearly spelt out the following propositions:

“The tender years of the child, coupled with other circumstances appearing in the case, such, for example as its demeanour, unlikelihood of tutoring and so forth, may render corroboration unnecessary but that is a question of fact in every case. The only rule of law is that this rule of prudence must be present to the mind of the judge or the jury as the case may be and be understood and appreciated by him or them. There is no rule of practice that there must, in every case, be corroboration before a conviction can be allowed, to stand.” “It would be impossible, indeed it would be dangerous to formulate the kind of evidence which should, or would, be regarded as corroboration. Its nature and extent must necessarily vary with circumstances of each case and also according to the particular circumstances of the offence charged.” Observations on probative force of circumstances are not universal laws of nature but guidelines and good counsel.

We must bear in mind human psychology and behavioural probability when assessing the testimonial potency of the victim’s version. What girl would foist a rape charge on a stranger unless a remarkable set of facts or clearest motives were made out? The inherent bashfulness, the innocent naivete and the feminine tendency to conceal the outrage of masculine sexual aggression are factors which are relevant to improbabilise the hypothesis of false implication. The injury on the person of the victim, especially her private parts, has corroborative value. Her complaint to her parents and the presence of blood on her clothes are also testimony which warrants credence. More than all, it baffles belief in human nature that a girl sleeping with her mother and other children in the open will come by blood on her garments and injury in her private parts unless she has been subjected to the torture of rape.

And if rape has been committed, 308 as counsel more or less conceded, why, of all persons in the world, should the victim hunt up the petitioner and point at him the accusing finger? To forsake these vital considerations and go by obsolescent demands for substantial corroboration is to sacrifice commonsense in favour of an artificial concoction called ‘Judicial’ probability. Indeed, the court loses its credibility if it rebels against realism. The law court is not an unnatural world.

We are not satisfied that merely because the trial court has ultra-cautiously acquitted someone, the higher court must, for that reason, acquit everyone, Reflecting on this case we feel convinced that a socially sensitised judge is a better statutory armour against gender outrage than long clauses of a complex section with all the protections writ into it.

N.V.K. Petition dismissed.

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SUPREME COURT OF INDIA

HARISH CHANDER & ORS. ….PETITIONER
Vs.
GHISA RAM AND ANR. …RESPONDENT

DATE OF JUDGMENT: 18/12/1980

BENCH: KOSHAL, A.D. ISLAM, BAHARUL (J)

CITATION:
1981 AIR 695 1981 SCR (2) 405
1981 SCC (1) 431

ACT:

Punjab Land Revenue Act, Section 44 and Rule 1 contained in Section 109 Evidence Act-Scope of-Suit of pre- emption of land on the ground that the plaintiff was a tenant-Presumption of truth of entries in favour of the revenue records like Jamabandi and Khasra Girdawaris.

HELD: A presumption of truth attaches to the entries in the Jamabandi for the year 1959-60 showing the defendant- respondents as a tenant, in view of the provisions of Section 44 of the Punjab Land Revenue Act. That presumption is no doubt rebuttable, but, in the instant case, no attempt has been made to displace it. [407C-D] Further, once that presumption is raised, still another comes to the aid of respondent No. 1 by reason of the rule contained in Section 109 of the Indian Evidence Act, namely, that when two persons have been shown to stand to each other in the relationship of landlord and tenant, the burden of proving that such relationship has ceased, is on the party who so asserts. It may, therefore, be legitimately presumed that the plaintiff continued to possess the land as a tenant till the institution of the suit. [407D-E]

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2150 of 1970.

Appeal by Special Leave from the Judgment and Order dated 27-7-1980 of the Punjab and Haryana High Court in R.S.

No. 737/70 Harbans Singh for the Appellant.

Hardayal Hardy and B. Datta, for the Respondent.

The Judgment of the Court was delivered by KOSHAL, J.- This appeal by special leave is directed against the judgment dated July 27, 1970 of the High Court of Punjab and Haryana affirming the decrees passed by the trial court and the first appellate court in a suit for possession by way of pre-emption of the land in dispute in favour of plaintiff-respondent No. 1 on the ground that he was a tenant of the disputed land when it was sold to the appellants by respondents Nos. 2 to 4 through a registered sale deed dated September 29, 1967.

406

2. The suit was resisted by the appellants with the counter-claim that they, and not respondent No. 1, were in possession of the land on the relevant date as tenants inasmuch as it had been leased out to them by their vendor Kanti Prasad two years prior to the sale, i.e., in the year 1965. The decrees passed by the courts below proceed on the basis of evidence to the effect that the name of respondent No. 1 was recorded as a tenant in the Jamabandi for the year 1959-60 (Ex. P. 1) and consistently thereafter till the year 1968 (Khasragirdawaris Exs. P. 2 to P. 7). Apart from the oral evidence there is no material on the record which may indicate the falsity of any of the entries in the revenue records and we are of the opinion that the lower courts were fully justified in relying on them.

Learned counsel for the appellants relies upon three documents in support of his contention that the Khasra- girdawaris should not be believed. First in point of time is an application (Ex. A31) which was sent to the concerned Deputy Commissioner through the military authorities by one of the appellants who was an army hand. That application is dated December 11, 1967 and states that the land in dispute was taken by him on lease from Kanti Prasad in the year 1965 and prays that the Khasra-girdawari should be corrected accordingly. The second is the sale-deed itself in which appears a recital to the effect that on the date of the sale the vendors had been in possession of the land covered by it for the preceding two years. The third is the plaint itself which seeks “possession by way of pre-emption”. None of these documents is of any help to the case of the appellants. The recital in the plaint is easily explained.

It is no more than the usual prayer made in suits for preemption and may well be interpreted to mean that possession be granted to the plaintiff by the decree in his capacity of a pre-emptor (and not that of a mere tenant). It cannot be implied therefrom that the plaintiff was out of actual possession. In fact the case made out in the plaint was specifically founded on the plea that the plaintiff had been in possession of the land in dispute as a tenant right upto the date of the institution of the suit. Paragraph 4 of the plaint reads:

“4. The plaintiff has been continuously cultivating the aforesaid land mentioned in para No. 1 of the plaint, for a long time as non-occupancy tenant and I, the plaintiff, have been cultivating the same even uptil now. The Vendees are outsiders, therefore, I, the plaintiff have the preferential right of pre- emption.” This plea clearly negatives the contention based on the recital contained in the prayer clause of the plaint.

407 The averments appearing in the sale deed and application Ex. A. 31 (which was made about 2/1/2 months later) to the effect that the appellants had been in possession of the land as tenants since 1965 appears to have been falsely made in an attempt to defeat prospective preemptors. Had it been a correct statement of fact, there is no reason why it should not have found a place in the agreement of sale which is dated the 24th April, 1967 but in which no mention of delivery of possession of the land to the appellants is made. Nor is any cogent explanation forthcoming for the fact that no attempt was made by any of the appellants to have their possession over the land as tenants made the subject-matter of an entry in the relevant records at any time before the sale deed was registered.

No suspicion can attach to the entries in the jamabandi for the year 1959-60, nor have the contents of that document been assailed before us. A presumption of truth attaches to those entries in view of the provisions of s. 44 of the Punjab Land Revenue Act. That presumption is no doubt rebuttable but no attempt has been made to displace it.

Further, once that presumption is raised, still another comes to the aid of respondent No. 1 by reason of the rule contained in s. 109 of the Indian Evidence Act, namely, that when two persons have been shown to stand to each other in the relationship of landlord and tenant, the burden of proving that such relationship has ceased, is on the party who so asserts. It may therefore be legitimately presumed that the plaintiff continued to possess the land as a tenant till the institution of the suit.

Even though the question of possession of the plaintiff as a tenant is a question of fact which is concluded by concurrent findings arrived at by the courts below, we confirm these findings after consideration of the relevant material.

3. The decree passed in favour of respondent No. 1 is not challenged on any other ground. The appeal is accordingly dismissed with costs. All mesne profits deposited by respondent No. 1 in the courts below shall be paid back to him forthwith.

V.D.K Appeal dismissed.

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SUPREME COURT OF INDIA

SHANKARLAL GYARASILAL DIXIT …PETITIONER
Vs.
STATE OF MAHARASHTRA …RESPONDENT

DATE OF JUDGMENT: 17/12/1980
BENCH: CHANDRACHUD, Y.V. ((CJ) SEN, A.P. (J) ISLAM, BAHARUL (J)

CITATION:
1981 AIR 765 1981 SCR (2) 384
1981 SCC (2) 35
CITATOR INFO :
R 1984 SC1622 (156,159,161,173)

ACT:

Evidence-Circumstantial evidence-Tests to be applied while evaluating circumstantial evidence-Falsity of defence- If could take the place of proof of facts- “Shadow of doubt” meaning of.

HELD : In a case of circumstantial evidence it is necessary for the Court to find whether the circumstances on which the prosecution relies are established by satisfactory evidence, often described as clear and cogent and whether the circumstances are of such a nature as to exclude every other hypothesis save the one that the appellant is guilty of the offences of which he is charged. In other words, the circumstances have to be of such a nature as to be consistent with the sole hypothesis that the accused is guilty of the crime imputed to him. [390 B-C] It is not necessary that in every case depending on circumstantial evidence, the whole of the law governing cases of circumstantial evidence should be set 385 out in the judgment. Legal principles are not magic incantations. Their importance lies more in their application to a given set of facts than in their recital in the judgment. The simple expectation is that the judgment must show that the finding of guilt if any has been reached after a proper and careful evaluation of circumstances in order to determine whether they are compatible with any other reasonable hypothesis. [395D-E] In the instant case the prosecution story that the appellant was not on good terms with his mother, brothers and wife, that he was living alone in the house and that on the day of occurrence the young school boys who were his tenants were not in the house and that, therefore, he was all alone is proved. That P.W. 5 climbed over the roof of his house, entered the appellant’s house and opened the front door is also proved. [390H] But it is impossible to say that the appellant was in the house when P.W. 5 and the three ladies entered the house. None of the four persons made any attempt to elicit any information from the appellant about the presence of the dead body in the bath room though it was alleged that everyone saw him lying on a cot in the court yard. Even if the ladies would not exchange a single word with him, P.W. 5 would have instinctively enquired from him as to how the dead body of the child was lying in the bath room. P.W. 5 categorically stated that he had no talk with the appellant at all. His claim that he called out to the appellant to open the door but that he declined to do so was a clear improvement over what he narrated to the police immediately after the incident. [392A-H] Secondly the girl’s father did not inform the police, either when he went to the police station for the first time or when he went there a second time to record the first information report, that the appellant was present in the house when the ladies entered it. In the statement made to the police immediately after the incident all that he stated was that the girl had died a mysterious death. The disclosure made by him to police in his complaint leaves no manner of doubt that the appellant was not present in his house at the time of the recovery of the dead body. In his cross-examination he admitted that his wife did not tell him that it was the appellant who killed their daughter and that the particular portion in the F.I.R. in which it was stated that his wife had told him that their daughter was killed by the appellant was not correctly recorded. [393A-B] Once the crucial link in the chain of circumstances that the appellant was in the house at the time when the dead body was discovered snaps the entire case would have to rest on slender tit bits. [394B] The course of contemporaneous and subsequent events strengthens the inference that the appellant was not in the house when the dead body was discovered. The police inspector who visited the house for making the panchnama of the scene of the offence did not state whether the house was open or locked when he and the punchas entered it. If the appellant’s complicity in the crime was suspected, attempts would have been made to arrest him immediately. It is not known as to who arrested him and from where and in what circumstances. All that was stated was that the appellant was produced before him in the course of the day. [393D-F] It is improbable that the appellant would have kept the underpant of the child under his pillow while escaping from the house. The discovery of a blood 386 stain on the appellant’s pant and of a dry stain of semen on his underpant are circumstances far too feeble to establish that the appellant raped or murdered the girl. Absence of smegma around the appellant’s corona glandis would not necessarily establish that he had a recent intercourse nor do the other circumstances like bruises on the thigh establish his involvement in the crime. If the girl was raped she was raped without resistance. [394E-F] The argument of the prosecution that the total ignorance of the incident pleaded by the appellant is false and would itself furnish a link in the chain of caution is without substance because falsity of defence cannot take the place of proof of facts which the prosecution has to establish in order to succeed. A false plea can at best be considered as an additional circumstance if other circumstances point unfailingly to the guilt of the accused.

[395A-B] The High Court was in error in saying that what the Court has to consider is whether the cumulative effect of the circumstances establishes the guilt of the accused beyond the “shadow of doubt”. “Shadow of doubt” even in cases which depend on direct evidence is shadow of “reasonable’ doubt. In its practical application the test which requires the exclusion of other alternative hypotheses is far more rigorous than the test of proof beyond reasonable doubt. Secondly, the High Court’s view that such a person as the appellant could not be an asset to his wife and children and for that reason should be awarded the sentence of death is not correct because unfaithful husbands, unchaste wives and unruly children are not for that reason to be sentenced to death if they commit murders unconnected with the state of their equation with their family and friends. The passing of the sentence of death must elicit the greatest concern and solicitude of the Judge because, that is one sentence which cannot be recalled.

[395F-G, 396H]

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.

766 of 1980.

Appeal by Special Leave from the Judgment and Order dated 27/ 28-2-80 of the Bombay High Court (Nagpur Bench) in Criminal Appeal No. 331/79 and confirmation case No. 3 of 1979.

M. R. Daga, R. A. Gupta and N. P. Paliwal for the Appellant.

H. R. Khanna and M. N. Shroff, for the Respondent.

The Judgment of the Court was delivered by CHANDRACHUD, C. J. The appellant Shankarlal Gyarasilal Dixit who is 30 years of age, was convicted by the learned Additional Sessions Judge, Akola, for offences under sections 376 and 302 of the Indian Penal Code on the charge that on December 10, 1978 he raped a five year old girl called Sunita and thereafter committed her murder. He was sentenced to rigorous imprisonment for 7 years for the offence of rape and to death for the offence of murder. The order of conviction and sentence having been confirmed by a Division Bench of the 387 Bombay High Court by its judgment dated February 27-28, 1980, he has filed this appeal by special leave.

The appellant lives in a locality called Marwadipura in the town of Karanja, District Akola. His house is situated near a temple called Gopal Mandir, and a little beyond the temple is a public well. Ramrao Wagh, the father of the deceased Sunita, used to reside in a house near about the well.

On December 10, 1978 at about 10-30 a.m., Sunita’s mother Renukabai, went to the well for fetching water.

Sunita accompanied her. Renukabai returned after a little while but Sunita, who was playing with some children, stayed back. She did not come home for quite some time and feeling concerned, Renukabai went in search of her. Unable to find the girl, she went back to her house and told her neighbours, Shilabai Deo and Shobhabai Waghode, that Sunita was missing. The three ladies thereafter went in search of Sunita. Believing that she might be in the appellant’s house, they knocked at his door repeatedly. The door was bolted from inside but there was no response from within. As the ladies were running out of their guesses and patience, a teacher called Shrinarayan Sharma, who lived in a house next to the appellant’s, arrived on the scene. Sharma climbed over the roof of his house, entered the appellant’s house through an open courtyard and opened the front door. The three ladies thereafter entered the house when, it is alleged, they saw the appellant sleeping on a cot in the court-yard, with a cover pulled upto his face. Sunita was lying still and motionless in the bath-room, wrapped in a blanket. Renukabai lifted her dead child, threw the blanket and ran home. Sunita’s underpant was missing.

Soon thereafter, Renukabai’s husband Ramrao Wagh returned from the bazar at about 12-45 p.m., and learned from her that Sunita’s dead body was found in the appellant’s house. Sunita had injuries on her person and her private parts were swollen. Ramrao went to the police station and informed the police of the mysterious death of his daughter. He returned to his house with the police and after about half an hour, he went again to the police station and lodged the First Information Report (Exhibit 11), on the basis of which offences were registered against the appellant under sections 376 and 302 of the Penal Code.

P.S.I. Ramdas Katke gave directions for the arrest of the appellant, held an inquest on the dead body of Sunita, sent the dead body for post-mortem examination and went to the appellant’s house. From there, he seized a blood-stained tile of the flooring of a room and a blood-stained blanket which was lying in the bath-room. There was a 388 cot in the court-yard of the house and under a pillow, which was lying on that cot, was found a child’s underpant. That too was seized.

The appellant was thereafter arrested and on being produced before the investigating officer, he was sent for medical examination.

Dr. S. J. Santani, Assistant Surgeon of the Karanja Municipal Hospital, who performed the post-mortem examination on the dead body of Sunita found six external injuries on her person. Her vagina was lacerated and her hymen was ruptured. From these symptoms Dr. Santani concluded that the girl was raped. From the other injuries, he concluded that she died of asphyxia, probably due to tracheal compression.

Dr. Santani examined the appellant on the same day at 9-00 p.m. The appellant had put on two full-pants, one on top of the other. His underpant was suspected to bear the mark of dried semen. There were marks of bruises over his left thigh, there was no smegma around the corona glandis and there was a small abrasion over the base of his glans- penis which had a bluish discolouration on it.

The defence of the appellant was one of simple denial.

He stated that he was falsely implicated in the case at the instance of his brother, mother and his neighbour Shrinarayan Sharma.

There can be no doubt that the deceased Sunita died a homicidal death. The post-mortem report prepared by Dr.

Santani shows that she had a contusion over the left cheek, a contusion with soft red bruise and abrasions over the whole of the anterior aspect of the neck, small bruises and abrasions over the lips and mouth, an abrasion over the chest, an abrasion over the right shoulder and an incised wound behind the right ear, below the mastoid process. These injuries, according to Dr. Santani, were sufficient in the ordinary course of nature to cause death.

There is also no reason to doubt that Sunita was raped or at least attempted to be raped before being murdered. The evidence of Dr. Santani shows that her vagina was lacerated and her hymen was ruptured. These are strong indications of her being subjected to a sexual assault. The inquest panchanama shows that her vagina was swollen and a whitish fluid and blood were coming out of it. The evidence of Renukabai and Shilabai that Sunita’s underpant was missing points in the same direction.

The important question for determination is whether the appellant can be held guilty for either or both of these offences. There is no direct evidence, in the sense of an eye-witness account, to connect the 389 appellant with the crime. The prosecution, however, relies on the following circumstances in order to establish the charges of rape and murder levelled against him :

(1) The dead body of Sunita was found in the house of the appellant;

(2) The appellant was residing in the house all alone at the relevant time;

(3) Renukabai (PW 2), Shilabai (PW 3) and Shobhabai knocked at the door of the appellant several times and though the door was bolted from inside, there was no response from within;

(4) Shrinarayan Sharma (PW 5), a next-door neighbour, climbed over the roof of his house and seeing that the appellant was sleeping on a cot in the court- yard, he called out for him. On hearing the call, the appellant turned his side and said that he would not open the door;

(5) Shrinarayan Sharma entered the appellant’s house and opened the door whereupon Renukabai, Shilabai and Shobhabai went in. They saw the dead body of Sunita lying in a bath-room and the appellant sleeping on a cot in the courtyard of the house;

(6) At the time when Sharma and the three ladies entered the house, no other person apart from the appellant was in the house;

(7) In spite of the all-round commotion and the discovery of a dead body from his house, the appellant continued to lie unconcerned on the cot.

He expressed no surprise, indeed no reaction at all; nor did he challenge or ask any of the four “intruders” as to why one of them entered his house from the roof and the others rushed in to look out for something;

(8) Sunita’s underpant was later found under a pillow which was lying on the cot on which the appellant was sleeping;

(9) A human blood-stain of B Group was found on the appellant’s pant. Sunita’s blood belonged to B Group;

(10) A stain of semen was found on the underpant of the appellant;

(11) There was no smegma around the appellant’s corona glandis; there was a small abrasion over the base of his 390 glans penis which had a bluish discolouration; and there were bruises over his right thigh; and (12) The plea of the appellant that he knew nothing of the crime and that he was involved falsely at the instance of his mother, brother and the neighbour Sharma is patently false.

Since this is a case of circumstantial evidence, it is necessary to find whether the circumstances on which the prosecution relies are established by satisfactory evidence, often described as ‘clear and cogent’ and secondly, whether the circumstances are of such a nature as to exclude every other hypothesis save the one that the appellant is guilty of the offences of which he is charged. In other words, the circumstances have to be of such a nature as to be consistent with the sole hypothesis that the accused is guilty of the crime imputed to him.

There is credible evidence in support of the first circumstance out of the 12 circumstances enumerated above.

The evidence of Renukabai (PW 2), Shilabai (PW 3) and Shrinarayan Sharma (PW 5) proves that when they entered the appellant’s house they saw the dead body of Sunita lying in a bath-room of the house. The dead body was wrapped in a blanket which Renukabai, the mother of Sunita, discarded while removing Sunita to her own house. The blanket, which bore a few stains of human blood was seized by the police from the appellant’s house when they made a panchanama of the scene of offence.

As regards the second circumstance, the evidence of Navalkishore Dixit (PW 8), who is the younger brother of the appellant, shows that after the death of their father on May 1,1978, the appellant started picking up quarrels with the family members, trying to screw money from them for his vices. He beat Navalkishore on November 30 and on December 7 he assaulted their mother. On December 8, Navalkishore left the house with the mother and they went to live with a person called Balkisan Banga. Thus, the only two other members of the family who used to live in the house along with the appellant had left the house two days before the incident. The appellant’s wife and their children had already started residing separately from him in the house of the wife’s father in the same town of Karanja.

A few young village boys who were residing at Karanja for their schooling were occupying a part of the appellant’s house as his tenants. But the evidence of Shilabai (PW 3) who was a tenant of the appellant in another part of the house, shows that the boys had gone to their village, Dapura, over the week-end. The incident happened 391 on December 10, 1978 which was a Sunday. Thus, there is enough evidence to show that the appellant was living by himself in his house on the date of the incident. The other members of his family had virtually deserted him and his school-boy tenants had gone to their village which was a short distance away from Karanja.

The evidence as regards the third circumstance may also safely be accepted. Renukabai (PW 2) and Shilabai (PW 3) knocked at the appellant’s door repeatedly but the door was bolted from inside and there was no response to their request that the door be opened. Plainly, the reason why Shrinarayan Sharma (PW 5) had to climb over the roof of his house for the purpose of entering the court-yard of the appellant’s house was that the ladies were unable to make any headway.

A part of the fourth circumstance is easy to accept as proved because there can be no doubt that Shrinarayan Sharma climbed over the roof of his adjoining house and entered the appellant’s house. Shrinarayan Sharma is a cousin of the appellant and his testimony on this part of the case accords with the broad probabilities of human affairs.

But though it is true that Shrinarayan Sharma climbed over the roof of his house for the purpose of entering the appellant’s house, it seems to us impossible to accept his claim that he saw the appellant sleeping on a cot in the court-yard, that he called out for him and that on hearing the call, the appellant merely turned his side and said that he will not open the door. That takes us to the consideration of what we consider to be the most important link in the chain of circumstances implicating the appellant. The focal point of the case is that the appellant was present in his house while the dead body of Sunita was lying in the bath-room. A part of circumstance (4) and the 5th circumstance relate to the question as to whether the appellant was sleeping on a cot in the court-yard of his house whilst the dead body of Sunita was lying in the bath- room.

There are several reasons which make it impossible to believe that the appellant was in the house when Shrinarayan Sharma and the three ladies found the dead body of Sunita after entering the house. It is incredible that if Shrinarayan Sharma and the ladies saw the appellant in the house, they would not exchange a single word with him. The dead body was lying close-by in a bath-room and any normal human being would have instinctively inquired of the appellant as to how it was that the dead body was lying in his house. None of the four persons who entered the appellant’s house made any attempt whatsoever to elicit any information from him as to how Sunita came to 392 be lying dead in the bath-room. It is alleged that everyone saw the appellant sleeping on a cot in the court-yard, but it is strange that none talked to him at all.

One can understand the ladies not having the courage to talk to the appellant. But it is difficult to believe that Shrinarayan Sharma, a forty-five-year old school teacher, could also not dare so much as to ask the appellant, without making any accusation against him, as to how the dead body of the girl came to be in the bath-room. Shrinarayan Sharma has made a categorical admission in his evidence that he had no talk with the appellant at all. In fact, as stated earlier, the claim of Shrinarayan Sharma that he called out to the appellant and that the appellant said that he would not open the door, seems to us a clear improvement over what he narrated to the police immediately after the incident. He did not tell the police anything of the kind. When his attention was drawn to this significant omission, his explanation was that he could not say why the police did not record that part of his statement. We have no doubt that Shrinarayan Sharma did not tell the police during the course of his statement, which was recorded immediately after the incident, that he called out for the appellant and that the appellant stated that he would not open the door. This was far too important a happening which the witness would have failed to disclose to the police.

Another reason for rejecting the case of the prosecution that the appellant was present in the house when the dead body of Sunita was discovered is that when Ramrao Wagh, the father of Sunita, returned to his house from the bazzar at about 12.30 p.m., he was neither informed by his wife Renukabai nor by any other person that the appellant was present in the house when Renukabai brought back the dead body of Sunita from the appellant’s house. The admitted sequence of events in this behalf has an important bearing on this central theme of the case. Ramrao Wagh went to his house from the bazzar and in pursuance of a disclosure made to him by his wife Renukabai, he straightaway went to the police station. The only statement which he made at the police station was that his daughter Sunita had died a mysterious death. Nothing at all was said by him regarding the presence of the appellant in the house at the time when the dead body of Sunita was discovered. The statement made by Ramrao Wagh to the police was evidently not reduced to writing, but it is clear that Ramrao went back to the house along with the police officers. He went again to the police station, when the First Information Report, Exhibit 11, was recorded. It is surprising that even in the FIR, Ramrao Wagh did not say that the appellant was present in the house when Renukabai 393 and the other persons entered the house and when the dead body of Sunita was discovered. All that Ramrao stated in the FIR was that the appellant had killed his daughter in order that she should not cry while she was being raped. Surely, the FIR was recorded after Ramrao had learnt of the incident from his wife and a few others including Shrinarayan Sharma, Shilabai and Shobhabai. The disclosure made by Ramrao to the police in his complaint leaves no manner of doubt that the appellant was not present in his house at the time when Sunita’s dead body was discovered.

The FIR contains a statement that Renukabai had told Ramrao that the appellant had killed Sunita. Ramrao admitted in his cross-examination that Renukabai did not tell him anything of the sort and that the particular portion of the FIR in which it is stated that Renukabai had told him that Sunita was killed by Shankarlal was not correctly recorded.

The up-shot of the matter is that when the FIR was recorded, no one thought that the appellant was responsible for the violence which was done to Sunita.

The course of contemporaneous and subsequent events strengthens the inference that the appellant was not in the house when the dead body of Sunita was discovered. Ramrao went to the police station not once but twice, and it is reasonable to expect that if the appellant’s complicity in the crime was stated or suspected, attempts would have been made immediately to arrest him. When PSI Katke went to the appellant’s house for making the panchanama of the scene of offence, the appellant was evidently not in the house.

According to PSI Katke, instructions were given by him for the arrest of the appellant. But surprisingly, there is not one word on the record to show as to who arrested the appellant and from where. All that the Investigating Officer has stated in his evidence is that during the course of the day the appellant was produced before him. This passive- voice statement does not inspire confidence.

The up-shot of the matter is that Shrinarayan Sharma did not tell the police that he called out the appellant or that the appellant replied that he will not open the door.

Secondly, Renukabai did not tell her husband Ramrao that when she entered the house of the appellant and found the dead body of Sunita in the bath-room, the appellant was present in the house. Thirdly, none of the large group of persons who were present in the house of Ramrao disclosed, what was certainly the most significant circumstance, that the appellant was sleeping in the court-yard while the dead body was lying in the bath-room of his house. Finally, no attempt was made immediately after the FIR was lodged to have the appellant arrested and there is no 394 evidence on the point as to who arrested him, from where, and in what circumstances.

As we have stated earlier, the crucial link in the chain of circumstances is the presence of the appellant in his house at the time when the dead body of Sunita was discovered. Once that link snaps, the entire case would have to rest on slender tit-bits here and there. This discussion disposes of the second part of the 4th circumstance part of the 5th circumstance and circumstances (6) and (7).

The discovery of Sunita’s under-pant, which is the 8th circumstance, is also enveloped in suspicion. At the time when the under pant was discovered, the appellant was not in the house. PSI Katke has not stated in his evidence as to whether the appellant’s house was open or locked when he and the panchas entered it. It is also difficult to believe that the appellant would keep the under-pant under his pillow while making good his escape from the house after the dead body of Sunita was taken away. We are inclined to the view that Sunita’s under-pant was placed under the pillow as a part of the scheme to involve the appellant, first by fixing that he was sleeping on the cot at the crucial time and then by showing that the under-pant of the girl was found under the very pillow which was lying on the cot on which the appellant was sleeping.

The discovery of a blood stain of the ‘B’ Group measuring 0.5 cm. in diameter on the appellant’s pant and of a dried stain of semen on his under-pant are circumstances far too feeble to establish that the appellant raped or murdered Sunita. ‘B’ Group is not an uncommon group of blood and no effort was made to exclude the possibility that the blood of the appellant belonged to the same group. As regards the dried stain of semen on the appellant’s under- pant, he was a grown up man of 30 years and no compelling inference can arise that the stain was caused during the course of the sexual assault committed by him on the girl.

It is then said that there was no smegma around the appellant’s corona glandis. That cannot by itself prove that he had sexual intercourse. The presence of smegma may perhaps exclude the possibility of recent sexual intercourse but its absence will not necessarily establish that the person has had a recent intercourse. A small abrasion over the base of the glans-penis and its bluish discolouration are also inconclusive circumstances. Nor indeed can the bruises on the appellant’s thigh establish his involvement in the crime. If the girl was raped, she was raped without resistance. She was five years of age.

The last circumstance relied on by the prosecution is that the total ignorance of the incident pleaded by the appellant is false, and 395 would itself furnish a link in the chain of causation. We have come to the conclusion that the appellant was not present in the house at the time when Sunita’s dead body was discovered. That makes it impossible to hold that the appellant’s plea is false. Besides, falsity of defence cannot take the place of proof of facts which the prosecution has to establish in order to succeed. A false plea can at best be considered as an additional circumstance, if other circumstances point unfailingly to the guilt of the accused.

It causes us some surprise that the learned Additional Sessions Judge, Akola, who tried the case, has not shown any awareness of the fundamental principle which governs cases dependent solely on circumstantial evidence. Nowhere in his judgment has the learned Judge alluded, directly or indirectly, to the principle that in a case of circumstantial evidence, the circumstances on which the prosecution relies must be consistent with the sole hypothesis of the guilt of the accused. It is not to be expected that in every case depending on circumstantial evidence the whole of the law governing cases of circumstantial evidence should be set out in the judgment.

Legal principles are not magic incantations and their importance lies more in their application to a given set of facts than in their recital in the judgment. The simple expectation is that the judgment must show that the finding of guilt, if any, has been reached after a proper and careful evaluation of circumstances in order to determine whether they are compatible with any other reasonable hypothesis.

The High Court, it must be said, has referred to the recent decisions of this Court in Mahmood v. State of Uttar Pradesh and Chandmal v. State of Rajasthan in which the rule governing cases of circumstantial evidence is reiterated.

But, while formulating its own view the High Court, with respect, fell into an error in stating the true legal position by saying that what the Court has to consider is whether the cumulative effect of the circumstances establishes the guilt of the accused beyond the “shadow of doubt”. In the first place, ‘shadow of doubt’, even in cases which depend on direct evidence is shadow of “reasonable” doubt. Secondly, in its practical application, the test which requires the exclusion of other alternative hypothesis is far more rigorous than the test of proof beyond reasonable doubt.

Our judgment will raise a legitimate query: If the appellant was not present in his house at the material time, why then did so many people conspire to involve him falsely ? The answer to such questions 396 is not always easy to give in criminal cases. Different motives operate on the minds of different persons in the making of unfounded accusations. Besides, human nature is too willing, when faced with brutal crimes, to spin stories out of strong suspicions. In the instant case. the dead body of a tender girl, raped and throttled, was found in the appellant’s house and, instinctively, everyone drew the inference that the appellant must have committed the crime.

No one would pause to consider why the appellant would throw the dead body in his own house, why would he continue to sleep a few feet away from it and whether his house was not easily accessible to all and sundry, as shown by the resourceful Shrinarayan Sharma. No one would even care to consider why the appellant’s name was not mentioned to the police until quite late. These are questions for the Court to consider.

The folks of Karanja had a grouse against the appellant. He had made a nuisance of himself to his family and friends, neighbours and tenants. The small world of Karanja was up in arms against him. He had assaulted his mother and brother a few days before the incident. He had a quarrel with Shilabai, his tenant, on the very day of the incident. He was an idler and had no means of livelihood.

The description of his clothes at the time of his arrest is an eloquent commentary on the way of his life. He was wearing two full pants, one on top of another, not because he had one too many to wear but because, one of the two pants was torn at awkward places and he had to hide his shame. It was torn on both the hips as well as the centre.

The left leg of the pant was torn over two feet and the right leg over half a foot. The shirt on his person was torn all over. The right arm of the shirt was hanging precariously by the rest of the torn portion of his shirt.

The Karanja community must have heaved a sigh of relief that a person who was so good-for-nothing was ultimately in the hands of law. Such people have no partisans. But that does not mean that justice can be denied to them.

We may mention in passing, though in the view which we are taking it is not relevant, that while confirming the sentence of death imposed on the appellant by the Sessions Court, the High Court even took into consideration the appellant’s relations with the members of his family. After mentioning that he had beaten his mother and brother and that his wife was living separately from him, the High Court concluded:

“In our opinion, such a person could neither be an asset to his wife and children nor entitled to live in the society.” Unfaithful husbands, unchaste wives and unruly children are not for that reason to be sentenced to death if they commit murders uncon- 397 nected with the state of their equation with their family and friends. The passing of the sentence of death must elicit the greatest concern and solicitude of the Judge because, that is one sentence which cannot be recalled.

For reasons aforesaid, we allow the appeal and set aside the judgments of the High Court and the Sessions Court. The sentence of death as also the sentence of seven years’ imprisonment imposed upon the appellant is set aside.

We acquit the appellant and direct that he shall be released.

P.B.R. Appeal allowed.

The post Shankarlal Gyarasilal Dixit Vs. State of Maharashtra appeared first on B&B Associates LLP.

AJAY HASIA ETC. …PETITIONER
Vs.
KHALID MUJIB SEHRAVARDI & ORS. ETC. …RESPONDENT

DATE OF JUDGMENT 13/11/1980

BENCH: BHAGWATI, P.N.

BENCH: BHAGWATI, P.N. CHANDRACHUD, Y.V. ((CJ) KRISHNAIYER, V.R. FAZALALI, SYED MURTAZA KOSHAL, A.D.

CITATION: 1981 AIR 487 1981 SCR (2) 79 1981 SCC (1) 722

CITATOR INFO :
R 1981 SC1009 (11,12) D 1981 SC1771 (3,6,9) F 1983 SC 130 (14) R 1983 SC 580 (9) F 1984 SC 363 (20) F 1984 SC 541 (8,13,14) F 1984 SC 873 (7,9,11) D 1984 SC1056 (7) RF 1984 SC1361 (19) F 1985 SC 364 (8) R 1985 SC1416 (94) R 1986 SC 596 (2) RF 1986 SC1370 (101) R 1986 SC1571 (59,69,105) E&D 1987 SC 454 (22,25) RF 1987 SC1086 (17,26) APL 1988 SC 469 (9,10,11,12) R 1988 SC1369 (11) R 1988 SC1451 (8) APL 1989 SC 88 (7) RF 1989 SC 341 (14) R 1989 SC 903 (32) F 1989 SC1642 (25) E 1989 SC1977 (7) APL 1990 SC 334 (104) R 1990 SC1031 (12) RF 1990 SC1277 (46) R 1990 SC1402 (29) RF 1991 SC 101 (32) RF 1992 SC 76 (2,8) F 1992 SC1858 (19)

ACT:

Admission to Engineering College-Jammu & Kashmir Regional Engineering College, Srinagar, registered as a society under the Jammu & Kashmir Registration of Societies Act, 1898-Whether a “State” under Article 12 of the Constitution and amenable to writ jurisdiction.

Viva voce test-Interview of each of the candidates lasting only two or three minutes asking formal questions relating to the candidates parentage and residence and without any relevance to the subject for which marks were allocated, whether arbitrary-Allocation of 1/3 of the total marks required for the qualifying examination for the viva voce-Whether bad, unreasonable and arbitrary-Whether prescribing different admission procedures for candidates belonging to the State of Jammu & Kashmir and candidates belonging to other State is violative of the Equality Clause under Article 14.

HELD : (1). Having regard to the Memorandum of Association and the Rules of the Society, the respondent college is a State within the meaning of Article 12. The composition of the Society is dominated by the representatives appointed by the Central Government and the Governments of Jammu & Kashmir, Punjab, Rajasthan and Uttar Pradesh with the approval of the Central Government. The monies required for running the college are provided entirely by the Central Government and the Government of Jammu & Kashmir and even if any other monies are to be received by the Society, it can be done only with the approval of the State and the Central Governments. The Rules to be made by the Society are also required to have the prior approval of the State and the Central Governments and the accounts of the Society have also to be submitted to both the Governments for their scrutiny and satisfaction.

The Society is also to comply with all such directions as may be issued by the State Government with the approval of the Central Government in respect of any matters dealt with in the report of the Reviewing Committee. The control of the State and the Central Governments is indeed so deep and pervasive that no immovable property of the Society can be disposed of in any manner without the approval of both the Governments. The State and the Central Governments have even the power to appoint any other person or persons to be members of the Society and any member of the Society other than a member representing the State or the Central Government can be removed from the membership of the Society by the State Government with the approval of the Central Government. The Board of Governors, which is incharge of general superintendence, direction and control of the affairs of the Society and of its income and property is also largely controlled by nominees of the State and the Central Governments. The State Government and by reason of the provision for approval, the Central Government also thus have full control of the work- 80 ing of the Society and therefore, the Society is merely a projection of the State and the Central Governments. The voice is that of the State and the Central Governments. The Society is an instrumentality or the agency of the State and the Central Governments and it is an “authority” within the meaning of Article 12. If the Society is, an “authority” and, therefore, the “State” within the meaning of Article 12, it must follow that it is subject to the constitutional obligation under Article 14. [99F-H, 100 K-F] (2) The expression “other authorities”, in Article 12 must be given an interpretation where constitutional fundamentals vital to the maintenance of human rights are at stake, functional realism and not facial cosmetics must be the diagnostic tool, for constitutional law must seek the substance and not the form. The Government may act through the instrumentality or agency of juridical persons to carry out its functions, since, with the advent of the welfare State its new task have increased manifold. [90B-D] It is, undoubtedly, true that the corporation is a distinct juristic entity with a corporate structure of its own and it carries on its functions on business principles with a certain amount of autonomy which is necessary as well as useful from the point of view of effective business management, but behind the formal ownership which is cast in the corporate mould, the reality is very much the deeply pervasive presence of the Government. It is really the Government which acts through the instrumentality or agency of the corporation and the juristic veil of corporate personality worn for the purpose of convenience of management and administration cannot be allowed to obliterate the true nature of the reality behind which is the Government. It is clear that if a corporation is an instrumentality or agency of the Government, it must be subject to the same limitations in the field of constitutional law as the Government itself, though in the eye of the law it would be a distinct and independent legal entity. If the Government acting through its officers is subject to certain constitutional limitations, it must follow a fortiorari that the Government acting through the instrumentality or agency of a corporation should equally be subject to the same limitations. If such a corporation were to be free from the basic obligation to obey the Fundamental Rights, it would lead to considerable erosion of the efficiency of the Fundamental Rights, for in that event the Government would be enabled to override the Fundamental Rights by adopting the stratagem of carrying out its functions through the instrumentality or agency of a corporation, while retaining control over it. The Fundamental Rights would then be reduced to little more than an idle dream or a promise of unreality. [91B-F] The Courts should be anxious to enlarge the scope and width of the Fundamental Rights by bringing within their sweep every authority which is an instrumentality or agency of the Government or through the corporate personality of which the Government is acting, so as to subject the Government in all its myriad activities, whether through natural persons or through corporate entities, to the basic obligation of the Fundamental Rights. The constitutional philosophy of a democratic socialist republic requires the Government to under take a multitude of socioeconomic operations and the Government, having regard to the practical advantages of functioning through the legal device of a corporation, embarks on myriad commercial and economic activities by resorting to the instrumentality or agency of a corporation, but this contrivance of carrying on such activities through a corporation cannot exonerate the Government from implicit obedience to the Fundamental Rights. To use the 81 corporate methodology is not to liberate the Government from its basic obligation to respect the Fundamental Rights and not to override them. The mantle of a corporation may be adopted in order to free the Government from the inevitable constraints of red-tapism and slow motion but by doing so, the Government cannot be allowed to play truant with the basic human rights, otherwise it would be the easiest thing for the government to assign to a plurality of corporations almost every State business such as Post and Telegraph, TV, Radio, Rail, Road and Telephones-in short every economic activity-and thereby cheat the people of India out of the Fundamental Rights guaranteed to them. That would be a mockery of the Constitution and nothing short of treachery and breach of faith with the people of India, because though apparently the corporation will be carrying out these functions, it will in truth and reality be the Government which will be controlling the corporation and carrying out these functions through the instrumentality or agency of the corporation. Courts cannot by a process of judicial construction allow the Fundamental Rights to be rendered futile and meaningless and there by wipe out Chapter III from the Constitution. That would be contrary to the constitutional faith of the post-Menaka Gandhi era. It is the Fundamental Rights which along with the Directive Principles constitute the life force of the Constitution and they must be quickened into effective action by meaningful and purposive interpretation. If a corporation is found to be a mere agency or surrogate of the Government, “in fact owned by the Government, in truth controlled by the government and in effect an incarnation of the government,” the court must not allow the enforcement of Fundamental Rights to be frustrated by taking the view that it is not the government and, therefore, not subject to the constitutional limitations. Therefore, where a corporation is an instrumentality or agency of the Government, it is an authority within the meaning of Article 12 and, hence, subject to the same basic obligation to obey the Fundamental Rights as the government. [91G-H, 92A-G] R. D. Shetty v. The International Airport Authority of India & Ors., [1979] 1 S.C.R. 1042 and U.P. Warehousing Corporation v. Vijay Narain, [1980] INSC 5; [1980] 3 S.C.C. 459, followed.

(3) The test for determining as to when a corporation can be said to be an instrumentality or agency of Government may be culled out from the judgment in the International Airport Authority’s case. They are not conclusive or clinching, but they are merely indicative indicia which have to be used with care and caution, because while stressing the necessity of a wide meaning to be placed on the expression “other authorities”, it must be realised that it should not be stretched so far as to bring in every autonomous body which has some nexus with the Government with the sweep of the expression. A wide enlargement of the meaning must be tempered by a wise limitation. The relevant tests gathered from the decision in the International Airport Authority’s case may be summarized as: (i) “One thing is clear that if the entire share capital of the corporation is held by Government it would go a long way towards indicating that the Corporation is an instrumentality or agency of Government. (ii) ‘Where the financial assistance of the State is so much as to meet almost entire expenditure of the corporation, it would afford some indication of the corporation being impregnated with governmental character.’ (iii) ‘It may also be a relevant factor…… whether the corporation enjoys monopoly status which is the State conferred or State protected.’ (iv) ‘Existence of ‘deep and pervasive State control may afford an indication that the Corporation is a state 82 agency or instrumentality.’ (v) ‘If the functions of the corporation of public importance and closely related to governmental functions, it would be a relevant factor in classifying the corporation an instrumentality or agency of Government.’ (vi) ‘Specifically, if a department of Government is transferred to a corporation, it would be a strong factor supportive of this inference” of the corporation being an instrumentality or agency of Government.”[96F-H, 97A-D] It is immaterial for this purpose whether the corporation is created by a statute or under a statute. The test is whether it is an instrumentality or agency of the Government and not as to how it is created. The enquiry has to be not as to how the juristic person is born but why it has been brought into existence. The corporation may be a statutory corporation created by a statute or it may be a Government company or a company formed under the Companies Act, 1956 or it may be a society registered under the Societies Registration Act, 1860 or any other similar statute. Whatever be its genetical origin, it would be an “authority” within the meaning of Article 12 if it is an instrumentality or agency of the Government and that would have to be decided on a proper assessment of the facts in the light of the relevant factors. The concept of instrumentality or agency of the Government is not limited to a corporation created by a statute but is equally applicable to a company or society and in a given case it would have to be decided, on a consideration of the relevant factors, whether the company or society is an instrumentality or agency of the Government so as to come within the meaning of the expression “authority” in Article

12. [97F-H, 98A-B] (4) Merely because a juristic entity may be an “authority” and, therefore, “State” within the meaning of Article 12, it may not be elevated to the position of “State” for the purpose of Articles 309, 310 and 311 which find a place in Part XIV. The definition of “State” in Article 12 which includes an “authority” within the territory of India or under the control of the Government of India is limited in its application only to Part III and by virtue of Article 36, to Part IV and it does not extend to the other provisions of the Constitution and, hence, a juristic entity which may be “State” for the purpose of Parts III and IV would not be so for the purpose of Part XIV or any other provision of the Constitution. [98B-D] S. L. Aggarwal v. Hindustan Steel Ltd., [1970] 3 S.C.R.

365; Sabhajit Tewary v. Union of India & Ors., [1975] 3, S.C.R. 616 and Sukhdev Singh v. Bhagat Ram, [1975] 3 S.C.R.

619, explained and distinguished.

(5) Article 14 must not be identified with the doctrine of classification. What Article 14 strikes at is arbitrariness because any action that is arbitrary, must necessarily involve negation of equality. The doctrine of classification which is evolved by the courts is not para- phrase of Article 14 nor is it the objective and end of that Article. It is merely a judicial formula for determining whether the legislative or executive action in question is arbitrary and therefore constituting denial of equality. If the classification is not reasonable and does not satisfy the two conditions, namely, (1) that the classification is founded on an intelligible differentia and (2) that differentia has a rational relation to the object sought to be achieved by the impugned legislative or executive action, the impugned legislative or executive action, would plainly be arbitrary and the guarantee of equality under Article 14 would be breached. Wherever, therefore, there is arbitrariness in State action whether it be the 83 legislature or of the executive or of an “authority” under Article 12, Article 14 immediately springs into action and strikes down such State action. In fact, the concept of reasonableness and non-arbitrariness pervades the entire constitutional scheme and is a golden thread which runs through the whole of the fabric of the Constitution. [100G, 102D-F] E.P. Royappa v. State of Tamil Nadu, [1974] 2 S.C.R.

348; Maneka Gandhi v. Union of India, [1978] 2 S.R. 621 and R. D. Shetty v. The International Airport, Authority of India, & Ors., [1979] 1 S.C.R. 1042, applied.

(6) The procedure adopted by the respondent Society cannot be regard as arbitrary merely because it refused to take into account the marks obtained by the candidates at the qualifying examination but chose to regulate the admissions by relying on the entrance test. The entrance test facilitates the assessment of the comparative talent of the candidates by application of a uniform standard and is always preferable to evaluation of comparative merit on the basis of marks obtained at the qualifying examination, when the qualifying examination is held by two or more different authorities, because lack of uniformity is bound to creep into the assessment of candidates by different authorities with different modes of examination. [103A-B, D-F] (7) The oral interview test is undoubtedly not a very satisfactory test for assessing and evaluating the capacity and calibre of candidates, but in the absence of any better test for measuring personal characteristics and traits, the oral interview test must, at the present stage, be regarded as not irrational or irrelevant though it is subjective and based on first impression, its result is influenced by many uncertain factors and it is capable of abuse. In the matter of admission to college or even in the matter of public employment, the oral interview test as presently held should not be relied upon as an exclusive test, but it may be resorted to only as an additional or supplementary test and, moreover, great care must be taken to see that persons who are appointed to conduct the oral interview test are men of high integrity, calibre and qualification. [106C-E] R.Chitra Lakha and Others v. State of Mysore and Others, [1964] INSC 20; [1964] 6 S.C.R. 368, followed.

(8) Having regard to the drawbacks and deficiencies in the oral interview test and the conditions prevailing in the country, particularly when there is deterioration in moral values and corruption and nepotism are very much on the increase, allocation of a high percentage of marks for the oral interview as compared to the marks allocated for the written test, is not free from the vice of arbitrariness.

The allocation of as high a percentage as 33 1/3 of the total marks for oral interview suffers from the vice of arbitrariness. [107A-D] The court, however, to avoid immense hardship being caused to those students in whose case the validity of the selection cannot otherwise be questioned and who have nearly completed three semesters and taking into consideration the fact that even if the petitioners are ultimately found to be deserving of selection on the application of the proper test, it would not be possible to restore them to the position as if they were admitted for the academic year 1979-80, which has run out long since declined to set aside the selection made. The Court was, however, of the view that under the existing circumstances.

84 allocation of more than 15% of the total marks for the oral interview would be arbitrary and unreasonable. [107G-H, 108A-F] A. Peeriakaruppan v. State of Tamil Nadu, [1971] 2 S.C.R. 430; Miss Nishi Meghu v. State of Jammu & Kashmir & Ors., [1980] 3 S.C.R. p. 1253, applied.

(9) There can be no doubt that if the interview did not last for more than two or three minutes on an average and the questions asked had no bearing on the factors required to be taken into account the oral interview test would be vitiated, because it would be impossible in such an interview to assess the merit of a candidate with reference to these factors. Here the absence of proper affidavit by the members of the committee to the contrary leads to the only conclusion that the selection made on the basis of such test must be held to be arbitrary. However, if the marks allocated for the oral interview do not exceed 15% of the total marks and the candidates are properly interviewed and relevant questions are asked with a view to assessing their suitability with reference to the factors required to be taken into consideration, the oral interview test would satisfy the criterion of reasonableness and non- arbitrariness. Further it would be desirable if the interview of the candidates is tape-recorded, for in that event there will be contemporaneous evidence to show what were the questions asked to the candidates by the interviewing committee and what were the answers given and that will eliminate a lot of unnecessary controversy besides acting as a check on the possible arbitrariness of the interviewing committee. [109A-B, D-E, F-H]

ORIGINAL JURISDICTION: Writ Petition Nos. 1304, 1262, 1119, 1118, 1574-75, 1373-74, 1244-45, 1230, 1494-97, 1566- 67, 1143, 1440, 1586, 1420-23, 1441-43, 1389, 1144, 1461, 1437-39, 1431, 1268, 1145, 1263 and 1331 of 1979.

(Under Article 32 of the Constitution) Anil Dev Singh, Lalit Kumar Gupta, Subhash Sharma, C.

P. Pandey and S. K. Sabharwal for the Petitioners in W.PS.

1389, 1437-39, 1262, 1497, 1586, 1230 and 1263 of 1979.

Y. S. Chitale, P. N. Duda, V. K. Pandita, R. Satish and E. C. Agarwala for the Petitioners in W.P. Nos. 1241-43, 1495-96, 1566-67, 1423, 1143-44,1118-19,1494, 1145 and 1331 of 1979.

S. K. Bisiaria for the Petitioner in W.P. 1461/79.

Rishi Kesh and B. Datta for the Petitioner in W.Ps.

1373-74, 1304 and 1431/79.

Y. S. Chitale, D. N. Tiku, E. C. Agarwala, M. Mudgal, Ashok Kaul and Vineet Kumar for the Petitioners in W.Ps.

1244-45, 1420-22 and 1440/79.

S.S. Khanduja for the Petitioners in W.Ps. 1268, 1574- 75/79.

S. N. Kacker and Altaf Ahmed for the appearing Respondents.

85 The Judgment of the Court was delivered by BHAGWATI, J. These writ petitions under Article 32 of the Constitution challenge the validity of the admissions made to the Regional Engineering College, Srinagar for the academic year 1979-80.

The Regional Engineering College, Srinagar (hereinafter referred to as the College) is one of the fifteen Engineering Colleges in the country sponsored by the Government of India. The College is established and its administration and management are carried on by a Society registered under the Jammu and Kashmir Registration of Societies Act, 1898. The Memorandum of Association of the Society in clause 3 sets out the objects for which the Society is incorporated and they include amongst other things establishment of the college with a view to providing instruction and research in such branches of engineering and technology as the college may think fit and for the advancement of learning and knowledge in such branches. Vide subclause (i). The Society is empowered by clause 3 sub- clause (ii) of the Memorandum of Association to make rules for the conduct of the affairs of the Society and to add to, amend, vary or rescind them from time to time with the approval of the Government of Jammu and Kashmir State (hereinafter referred to as the State Government) and the Central Government. Clause 3 sub-clause (iii) of the Memorandum of Association confers power on the Society to acquire and hold property in the name of the State Government. Sub-clause (v) of clause 3 of the Memorandum of Association contemplates that monies for running the college would be provided by the State and Central Governments and sub-clause (vi) requires the Society to deposit all monies credited to its fund in such banks or to invest them in such manner as the Society may, with the approval of the State Government decide. The accounts of the Society as certified by a duly appointed auditor are mandatorily required by sub- clause (ix) of clause 3 of the Memorandum of Association to be forwarded annually to the State and Central Governments.

Clause 6 of the Memorandum of Association empowers the State Government to appoint one or more persons to review the working and progress of the Society, or the college and to hold inquiries into the affairs thereof and to make a report and on receipt of any such report, the State Government has power, with the approval of the Central Government, to take such action and issue such directions as it may consider necessary in respect of any of the matters dealt with in the report and the Society or the College, as the case may be, is bound to comply with such directions. There is a provision made in clause 7 of the Memorandum of Association that in case the Society or the college is not functioning properly, the State Government will have the power to take over the 86 administration and assets of the college with the prior approval of the Central Government. The founding members of the Society are enumerated in clause 9 of the Memorandum of Association and they are the Chairman to be appointed by the State Government with the approval of the Central Government, two representatives of the State Government, one representative of the Central Government, two representatives of the All India Council for Technical Education to be nominated by the northern Regional Committee, one representative of the University of Jammu and Kashmir, one non-official representative of each of the Punjab, Rajasthan, U.P. and Jammu and Kashmir States to be appointed by the respective Governments in consultation with the Central Government and the Principal who shall also be the ex-officio Secretary.

The Rules of the Society are also important as they throw light on the nature of the Society. Rule 3 clause (i) reiterates the composition of the Society as set out in clause 9 of the Memorandum of Association and clause (ii) of that Rule provides that the State and the Central Governments may by mutual consultation at any time appoint any other person or persons to be member or members of the Society. Rule 6 vests the general superintendence, direction and control of the affairs and its income and property in the governing body of the Society which is called the Board of Governors. Rule 7 lays down the constitution of the Board of Governors by providing that it shall consist of the Chief Minister of the State Government as Chairman and the following as members : Three nominees of the State Government, three nominees of the Central Government, one representative of the All India Council for Technical Education, Vice-Chancellor of the University of Jammu and Kashmir, two industrialists/technologists in the region to be nominated by the State Government, one nominee of the Indian Institute of Technology in the region, one nominee of the University Grants Commission two representatives of the Faculty of the College and the Principal of the college as ex-officio member-Secretary. The State Government is empowered by rule 10 to remove any member of the Society other than a member representing the State or Central Government from the membership of the Society with the approval of the Central Government. Clause (iv) of Rule 15 confers power on the Board to make bye-laws for admission of students to various courses and clause (xiv) of that Rule empowers the Board to delegate to a committee or to the Chairman such of its powers for the conduct of its business as it may deem fit, subject to the condition that the action taken by the committee of the Chairman shall be reported for confirmation at the next meeting of the Board. Clause (xv) of Rule 15 provides that the Board shall 87 have power to consider and pass resolution on the annual report, the annual accounts and other financial estimates of the college, but the annual report and the annual accounts together with the resolution passed thereon are required to be submitted to the State and the Central Governments. The Society is empowered by Rule 24, clause (i) to alter, extend or abridge any purpose or purposes for which it is established, subject to the prior approval of the State and the Central Governments and clause (ii) of Rule 24 provides that the Rules may be altered by a Resolution passed by a majority of 2/3rd of the members present at the meeting of the Society, but such alteration shall be with the approval of the State and the Central Governments.

Pursuant to clause (iv) of Rule 15 of the Rules, the Board of Governors laid down the procedure for admission of students to various courses in the college by a Resolution dated 4th June, 1974. We are not directly concerned with the admission procedure laid down by this Resolution save and except that under this Resolution admissions to the candidates belonging to the State of Jammu and Kashmir were to be given on the basis of comparative merit to be determined by holding a written entrance test and a viva voce examination and the marks allocated for the written test in the subjects of English, Physics, Chemistry and Mathematics were 100, while for viva voce examination, the marks allocated were 50 divided as follows: (i) General Knowledge and Awareness-15; (ii) Broad understanding of Specific Phenomenon-15; (iii) Extra-curricular activities-10 and (iv) General Personality Trait-10, making up in the aggregate-50. The admissions to the college were governed by the procedure laid down in this Resolution until the academic year 197980, when the procedure was slightly changed and it was decided that out of 250 seats, which were available for admission, 50% of the seats shall be reserved for candidates belonging to the Jammu & Kashmir State and the remaining 50% for candidates belonging to other States including 15 seats reserved for certain categories of students. So far as the seats reserved for candidates belonging to States other than Jammu & Kashmir were concerned, certain reservations were made for candidates belonging to Scheduled Castes and Scheduled Tribes and sons and wards of defence personnel killed or disabled during hostilities and it was provided that “inter se merit will be determined on the basis of marks secured in the subjects of English, Physics, Chemistry and Mathematics only”. The provision made with regard to seats reserved for candidates belonging to Jammu & Kashmir State was that “apart from 2 seats reserved for the sons and daughters of the permanent college employees, reservations shall be made in accordance with the 88 Orders of Jammu and Kashmir Government for admission to technical institutions and the seats shall be filled up on the basis of comparative merit as determined under the following scheme, both for seats to be filled on open merit and for reserved seats in each category separately; (1) marks for written test-100 and (2) marks for viva voce examination-50, marking up in the aggregate-150. It was not mentioned expressly that the marks for the written test shall be in the subjects of Physics, English, Chemistry and Mathematics nor were the factors to be taken into account in the viva voce examination and the allocation of marks for such factors indicated specifically in the admission procedure laid down for the academic year 1979-80, but we were told and this was not disputed on behalf of the petitioners in any of the writ petitions, that the subjects in which the written test was held were English, Physics, Chemistry and Mathematics and the marks at the viva voce examination were allocated under the same four heads and in the same manner as in the case of admissions under the procedure laid down in the Resolution dated 4th June, 1974.

In or about April 1979, the college issued a notice inviting applications for admission to the first semester of the B.E. course in various branches of engineering and the notice set out the above admission procedure to be followed in granting admissions for the academic year 1979-80. The petitioners in the writ petitions before us applied for admission to the first semester of the B.E. course in one or the other branch of engineering and they appeared in the written test which was held on 16th and 17th June, 1979. The petitioners were thereafter required to appear before a Committee consisting of three persons for viva voce test and they were interviewed by the Committee. The case of the petitioners was that the interview of each of them did not last for more than 2 or 3 minutes per candidate on an average and the only questions which were asked to them were formal questions relating to their parentage and residence and hardly any question was asked which would be relevant to any of the four factors for which marks were allocated at the viva voce examination. When the admissions were announced, the petitioners found that though they had obtained very good marks in the qualifying examination, they had not been able to secure admission to the college because the marks awarded to them at the viva voce examination were very low and candidates who had much less marks at the qualifying examination, had succeeded in obtaining very high marks at the viva voce examination and there by managed to secure admission in preference to the petitioners. The petitioners filed before us a chart showing by way of comparison the marks obtained by the petitioners on the one hand and some of the successful candidates on the other at the qualifying examination, in the written test and at the viva voce exami- 89 nation. This chart shows beyond doubt that the successful candidates whose marks are given in the chart had obtained fairly low marks at the qualifying examination as also in the written test, but they had been able to score over the petitioners only on account of very high marks obtained by them at the viva voce examination. The petitioners feeling aggrieved by this mode of selection filed the present writ petitions challenging the validity of the admissions made to the college on various grounds. Some of these grounds stand concluded by the recent decision of this Court in Miss Nishi Maghu v. State of Jammu & Kasmir & Ors. and they were therefore not pressed before us. Of the other grounds, only one was canvassed before us and we shall examine it in some detail.

But before we proceed to consider the merits of this ground of challenge, we must dispose of a preliminary objection raised on behalf of the respondents against the maintainability of the writ petition. The respondents contended that the college is run by society which is not a corporation created by a statute but is a society registered under the Jammu & Kashmir Societies Registration Act, 1898 and it is therefore not an ‘authority’ within the meaning of Art. 12 of the Constitution and no writ petition can be maintained against it, nor can any complaint be made that it has acted arbitrarily in the matter of granting admissions and violated the equality clause of the Constitution. Now it is obvious that the only ground on which the validity of the admissions to the college can be assailed is that the society adopted an arbitrary procedure for selecting candidates for admission to the college and this resulted in denial of equality to the petitioners in the matter of admission violative of Art. 14 of the Constitution. It would appear that prima facie protection against infraction of Art. 14 is available only against the State and complaint of arbitrariness and denial of equality can therefore be sustained against the society only if the society can be shown to be State for the purpose of Art. 14. Now ‘State’ is defined in Art. 12 to include inter alia the Government of India and the Government of each of the States and all local or other authorities within the territory of India or under the control of the Government of India and the question therefore is whether the Society can be said to be ‘State’ within the meaning of this definition. Obviously the Society cannot be equated with the Government of India or the Government of any State nor can it be said to be a local authority and therefore, it must come within the expression “other authorities” if it is to fall within the definition of ‘State’. That immediately leads us to a consideration of the question as to what are the “other authorities” contemplated in the definition of ‘State’ in Art. 13.

90 While considering this question it is necessary to bear in mind that an authority falling within the expression “other authorities” is, by reason of its inclusion within the definition of ‘State’ in Article 12, subject to the same constitutional limitations as the Government and is equally bound by the basic obligation to obey the constitutional mandate of the Fundamental Rights enshrined in Part III of the Constitution. We must therefore give such an interpretation to the expression “other authorities” as will not stultify the operation and reach of the fundamental rights by enabling the Government to its obligation in relation to the Fundamental Rights by setting up an authority to act as its instrumentality or agency for carrying out its functions. Where constitutional fundamentals vital to the maintenance of human rights are at stake, functional realism and not facial cosmetics must be the diagnostic tool, for constitutional law must seek the substance and not the form. Now it is obvious that the Government may act through the instrumentality or agency of natural persons or it may employ the instrumentality or agency of juridical persons to carry out its functions. In the early days when the Government had limited functions, it could operate effectively through natural persons constituting its civil service and they were found adequate to discharge governmental functions which were of traditional vintage. But as the tasks of the Government multiplied with the advent of the welfare State, it began to be increasingly felt that the frame work of civil service was not sufficient to handle the new tasks which were often specialised and highly technical in character and which called for flexibility of approach and quick decision making. The inadequacy of the civil service to deal with these new problems came to be realised and it became necessary to forge a new instrumentality or administrative device for handing these new problems. It was in these circumstances and with a view to supplying this administrative need that the corporation came into being as the third arm of the Government and over the years it has been increasingly utilised by the Government for setting, up and running public enterprises and carrying out other public functions. Today with increasing assumption by the Government of commercial ventures and economic projects, the corporation has become an effective legal contrivance in the hands of the Government for carrying out its activities, for it is found that this legal facility of corporate instrument provides considerable flexibility and elasticity and facilitates proper and efficient management with professional skills and on business principles and it is blissfully free from “departmental rigidity, slow motion procedure and hierarchy of officers”. The Government in many of its commercial ventures and public enterprises is resorting to more and more frequently to this resourceful legal contrivance of a corporation because it has many practical advantages and at the 91 same time does not involve the slightest diminution in its ownership and control of the undertaking. In such cases “the true owner is the State, the real operator is the State and the effective controllorate is the State and accountability for its actions to the community and to Parliament is of the State.” It is undoubtedly true that the corporation is a distinct juristic entity with a corporate structure of its own and it carries on its functions on business principles with a certain amount of autonomy which is necessary as well as useful from the point of view of effective business management, but behind the formal ownership which is cast in the corporate mould, the reality is very much the deeply pervasive presence of the Government. It is really the Government which acts through the instrumentality or agency of the corporation and the juristic veil of corporate personality worn for the purpose of convenience of management and administration cannot be allowed to obliterate the true nature of the reality behind which is the Government. Now it is obvious that if a corporation is an instrumentality or agency of the Government, it must be subject to the same limitations in the field of constitutional law as the Government itself, though in the eye of the law it would be a distinct and independent legal entity. If the Government acting through its officers is subject to certain constitutional limitations, it must follow a fortiorari that the Government acting through the instrumentality or agency of a corporation should equally be subject to the same limitations. If such a corporation were to be free from the basic obligation to obey the Fundamental Rights, it would lead to considerable erosion of the efficiency of the Fundamental Rights, for in that event the Government would be enabled to over-ride the Fundamental Rights by adopting the stratagem of carrying out its functions through the instrumentality or agency of a corporation, while retaining control over it. The Fundamental Rights would then be reduced to little more than an idle dream or a promise of unreality. It must be remembered that the Fundamental Rights are constitutional guarantees given to the people of India and are not merely paper hopes or fleeting promises and so long as they find a place in the Constitution, they should not be allowed to be emasculated in their application by a narrow and constricted judicial interpretation. The courts should be anxious to enlarge the scope and width of the Fundamental Rights by bringing within their sweep every authority which is an instrumentality or agency of the Government or through the corporate personality of which the Government is acting, so as to subject the Government in all its myriad activities, whether through natural persons or through corporate entities, to the basic obligation of the Fundamental Rights.

The constitutional philosophy of a democratic socialist republic requires 92 the Government to undertake a multitude of socioeconomic operations and the Government, having regard to the practical advantages of functioning through the legal device of a corporation, embarks on myriad commercial and economic activities by resorting to the instrumentality or agency of a corporation, but this contrivance of carrying on such activities through a corporation cannot exonerate the Government from implicit obedience to the Fundamental Rights. To use the corporate methodology is not to liberate the Government from its basic obligation to respect the Fundamental Rights and not to over-ride them. The mantle of a corporation may be adopted in order to free the Government from the inevitable constraints of red-tapism and slow motion but by doing so, the Government cannot be allowed to play truant with the basic human rights. Otherwise it would be the easiest thing for the government to assign to a plurality of corporations almost every State business such as Post and Telegraph, TV and Radio, Rail Road and Telephones-in short every economic activity-and there by cheat the people of India out of the Fundamental Rights guaranteed to them. That would be a mockery of the Constitution and nothing short of treachery and breach of faith with the people of India, because, though apparently the corporation will be carrying out these functions, it will in truth and reality be the Government which will be controlling the corporation and carrying out these functions through the instrumentality or agency of the corporation. We cannot by a process of judicial construction allow the Fundamental Rights to be rendered futile and meaningless and thereby wipe out Chapter III from the Constitution. That would be contrary to the constitutional faith of the post- Menaka Gandhi era. It is the Fundamental Rights which along with the Directive Principles constitute the life force of the Constitution and they must be quickened into effective action by meaningful and purposive interpretation. If a corporation is found to be a mere agency or surrogate of the Government, “in fact owned by the Government, in truth controlled by the government and in effect an incarnation of the government,” the court must not allow the enforcement of Fundamental Rights to be frustrated by taking the view that it is not the government and therefore not subject to the constitutional limitations. We are clearly of the view that where a corporation is an instrumentality or agency of the government, it must be held to be an ‘authority’ within the meaning of Art. 12 and hence subject to the same basic obligation to obey the Fundamental Rights as the government.

We may point out that this very question as to when a corporation can be regarded as an ‘authority’ within the meaning of Art. 12 arose for consideration before this Court in R. D. Shetty v. The International 93 Airport Authority of India & Ores. There, in a unanimous judgment of three Judges delivered by one of us (Bhagwati, J) this Court pointed out:

“So far as India is concerned, the genesis of the emergence of corporations as instrumentalities or agencies of Government is to be found in the Government of India Resolution on Industrial Policy dated 6th April, 1948 where it was stated inter alia that “management of State enterprises will as a rule be through the medium of public corporation under the statutory control of the Central Government who will assume such powers as may be necessary to ensure this.” It was in pursuance of the policy envisaged in this and sub-sequent resolutions on Industrial policy that corporations were created by Government for setting up and management of public enterprises and carrying out other public functions. Ordinarily these functions could have been carried out by Government departmentally through its service personnel but the instrumentality or agency of the corporation was resorted to in these cases having regard to the nature of the task to be performed. The corporations acting as instrumentality or agency of Government would obviously be subject to the same limitations in the field of constitutional and administrative law as Government itself, though in the eye of the law, they would be distinct and independent legal entities. If Government acting through its officers is subject to certain constitutional and public law limitations, it must follow a fortiori that Government acting through instrumentality or agency of corporations should equally be subject to the same limitations.” The Court then addressed itself to the question as to how to determine whether a corporation is acting as an instrumentality or agency of the Government and dealing with that question, observed:

“A corporation may be created in one of two ways. It may be either established by statute or incorporated under a law such as the Companies Act 1956 or the Societies Registration Act 1860. Where a Corporation is wholly controlled by Government not only in its policy making but also in carrying out the functions entrusted to it by the law establishing it or by the Charter of its incorporation, there can be no doubt that it would be an instrumentality or agency of Government. But ordinarily where a corporation 94 is established by statute, it is autonomous in its working, subject only to a provision, often times made, that it shall be bound by any directions that may be issued from time to time by Government in respect of policy matters. So also a corporation incorporated under law is managed by a board of directors or committee of management in accordance with the provisions of the statute under which it is in corporated. When does such a corporation become an instrumentality or agency of Government? Is the holding of the entire share capital of the Corporation by Government enough or is it necessary that in addition there should be a certain amount of direct control exercised by Government and, if so what should be the nature of such control? Should the functions which the Corporation is charged to carry out possess any particular characteristic or feature, or is the nature of the functions immaterial? Now, one thing is clear that if the entire share capital of the corporation is held by Government, it would go a long way towards indicating that the corporation is an instrumentality or agency of Government. But, as is quite often the case, a corporation established by statute may have no shares or shareholders, in which case it would be a relevant factor to consider whether the administration is in the hands of a board of directors appointed by Government though this consideration also may not be determinative, because even where the directors are appointed by Government, they may be completely free from governmental control in the discharge of their functions. What then are tests to determine whether a corporation established by statute or incorporated under law is an instrumentality or agency of Government ? It is not possible to formulate an inclusive or exhaustive test which would adequately answer this question. There is no cut and dried formula, which would provide the correct division of corporations into those which are instrumentalities or agencies of Government and those which are not.” The Court then proceeded to indicate the different tests, apart from ownership of the entire share capital:

” …. if extensive and unusual financial assistance is given and the purpose of the Government in giving such assistance coincides with the purpose for which the corporation is expected to use the assistance and such purpose is of 95 public character, it may be a relevant circumstance supporting an inference that the corporation is an instrumentality or agency of Government….. It may therefore be possible to say that where the financial assistance of the State is so much as to meet almost entire expenditure of the corporation, it would afford some indication of the corporation being impregnated with governmental character ……….But a finding of State financial support plus an unusual degree of control over the management and policies might lead one to characterise an operation as State action-Vide Sukhdev v. Bhagatram [1975] INSC 43; [1975] 3 SCR 619 at 658. So also the existence of deep and pervasive State control may afford an indication that the Corporation is a State agency or instrumentality. It may also be a relevant factor to consider whether the corporation enjoys monopoly status which is State conferred or State protected. There can be little doubt that State conferred or State protected monopoly status would be highly relevant in assessing the aggregate weight of the corporation’s ties to the State.” “There is also another factor which may be regarded as having a bearing on this issue and it is whether the operation of the corporation is an important public function. It has been held in the United States in a number of cases that the concept of private action must yield to a conception of State action where public functions are being performed. Vide Arthur S. Miller: “The Constitutional Law of the Security State” (10) Stanford Law Review 620 at 664).” “It may be noted that besides the so-called traditional functions, the modern state operates as multitude of public enterprises and discharges a host of other public functions. If the functions of the corporation are of public importance and closely related to governmental functions, it would be a relevant factor in classifying the corporation as an instrumentality or agency of Government. This is precisely what was pointed out by Mathew, J., in Sukhdev v. Bhagatram (supra) where the learned Judge said that “institutions engaged in matters of high public interest of performing public functions are by virtue of the nature of the functions performed government agencies. Activities which are too fundamental to the society are by definition too important not to be considered government functions.” 96 The court however proceeded to point out with reference to the last functional test:

“……… the decisions show that even this test of public or governmental character of the function is not easy of application and does not invariably lead to the correct inference because the range of governmental activity is broad and varied and merely because an activity may be such as may legitimately be carried on by Government, it does not mean that a corporation, which is otherwise a private entity, would be an instrumentality or agency of Government by reason of carrying on such activity. In fact, it is difficult to distinguish between governmental functions and non- governmental functions. Perhaps the distinction between governmental and non-governmental functions is not valid any more in a social welfare State where the laissez faire is an outmoded concept and Herbert Spencer’s social statics has no place. The contrast is rather between governmental activities which are private and private activities which are governmental.

[Mathew, J. Sukhdev v. Bhagatram (supra) at p. 652].

But the public nature of the function, if impregnated with governmental character or “tied or entwined with Government” or fortified by some other additional factor, may render the corporation an instrumentality or agency of Government. Specifically, if a department of Government is transferred to a corporation, it would be a strong factor supportive of the inference.” These observations of the court in the International Airport Authority’s case (supra) have our full approval.

The tests for determining as to when a corporation can be said to be a instrumentality or agency of Government may now be called out from the judgment in the International Airport Authority’s case. These tests are not conclusive or clinching, but they are merely indicative indicia which have to be used with care and caution, because while stressing the necessity of a wide meaning to be placed on the expression “other authorities”, it must be realised that it should not be stretched so far as to bring in every autonomous body which has some nexus with the Government within the sweep of the expression. A wide enlargement of the meaning must be tempered by a wise limitation. We may summarise the relevant tests gathered from the decision in the International Airport Authority’s case as follows (1) “One thing is clear that if the entire share capital of the corporation is held by Government it would go a long 97 way towards indicating that the corporation is an instrumentality or agency of Government.” (2) “Where the financial assistance of the State is so much as to meet almost entire expenditure of the corporation, it would afford some indication of the corporation being impregnated with governmental character.” (3) “It may also be a relevant factor…….whether the corporation enjoys monopoly status which is the State conferred or State protected.” (4) “Existence of deep and pervasive State control may afford an indication that the Corporation is a State agency or instrumentality.” (5) “If the functions of the corporation of public importance and closely related to governmental functions, it would be a relevant factor in classifying the corporation as an instrumentality or agency of Government.” (6) “Specifically, if a department of Government is transferred to a corporation, it would be a strong factor supportive of this inference of the corporation being an instrumentality or agency of Government.” If on a consideration of these relevant factors it is found that the corporation is an instrumentality or agency of government, it would, as pointed out in the International Airport Authority’s case, be an ‘authority’ and, therefore, ‘State’ within the meaning of the expression in Article 12.

We find that the same view has been taken by Chinnappa Reddy, J. in a subsequent decision of this court in the U.

P. Warehousing Corporation v. Vijay Narain and the observations made by the learned Judge in that case strongly reinforced the view we are taking particularly in the matrix of our constitutional system.

We may point out that it is immaterial for this purpose whether the corporation is created by a statute or under a statute. The test is whether it is an instrumentality or agency of the Government and not as to how it is created.

The inquiry has to be not as to how the juristic person is born but why it has been brought into existence. The corporation may be a statutory corporation created by a statute or it may be a Government Company or a company formed under the Companies Act, 1956 or it may be a society registered under the Societies Registration Act, 1860 or any other similar statute. Whatever be its genetical origin, it would be an “authority” within the meaning of Article 12 if it is an instrumentality or agency of the Government and that would 98 have to be decided on a proper assessment of the facts in the light of the relevant factors. The concept of instrumentality or agency of the Government is not limited to a corporation created by a statute but is equally applicable to a company or society and in a given case it would have to be decided, on a consideration of the relevant factors, whether the company or society is an instrumentality or agency of the Government so as to come within the meaning of the expression “authority” in Article 12.

It is also necessary to add that merely because a juristic entity may be an “authority” and therefore “State” within the meaning of Article 12, it may not be elevated to the position of “State” for the purpose of Articles 309, 310 and 311 which find a place in Part XIV. The definition of “State” in Article 12 which includes an “authority” within the territory of India or under the control of the Government of India is limited in its application only to Part III and by virtue of Article 36, to Part IV: it does not extend to the other provisions of the Constitution and hence a juristic entity which may be “State” for the purpose of Parts III and IV would not be so for the purpose of Part XIV or any other provision of the Constitution. That is why the decisions of this Court in S. L. Aggarwal v. Hindustan Steel Ltd. and other cases involving the applicability of Article 311 have no relevance to the issue before us.

The learned counsel appearing on behalf of the respondents Nos. 6 to 8, however, relied strongly on the decision in Sabhajit Tewary v. Union of India & Ors(2) and contended that this decision laid down in no uncertain terms that a society registered under the Societies Registration Act, 1860 can never be regarded as an “authority” within the meaning of Article 12. This being a decision given by a Bench of five Judges of this Court is undoubtedly binding upon us but we do not think it lays down any such proposition as is contended on behalf of the respondents.

The question which arose in this case was as to whether the Council of Scientific and Industrial Research which was juridically a society registered under the Societies Registration Act, 1860 was an “authority” within the meaning of Article 12. The test which the Court applied for determining this question was the same as the one laid down in the International Airport Authority’s case and approved by us, namely, whether the Council was an instrumentality or agency of the Government. The Court implicitly assented to the proposition that if the Council were an agency of the Government, it would undoubtedly be an “authority”. But, having regard to the various 99 features enumerated in the judgment, the Court held that the Council was not an agency of the Government and hence could not be regarded as an “authority”. The Court did not rest its conclusion on the ground that the Council was a society registered under the Societies Registration Act, 1860, but proceeded to consider various other features of the Council for arriving at the conclusion that it was not an agency of the Government and therefore not an “authority”. This would have been totally unnecessary if the view of the Court were that a society registered under the Societies Registration Act can never be an “authority” within the meaning of Article 12.

The decision in Sukhdev Singh v. Bhagat Ram [1975] INSC 43; (1975) 3 SCR 619 was also strongly relied upon by the learned counsel for respondents Nos. 6 to 8 but we fail to see how this decision can assist the respondents in repelling the reasoning in the International Airport Authority’s case or contending that a company or society formed under a statute can never come within the meaning of the expression “authority” in Article 12. That was a case relating to three juristic bodies, namely, the Oil and Natural Gas Commission, the Industrial Finance Corporation and the Life Insurance Corporation and the question was whether they were “State” under Article 12. Each of these three juristic bodies was a corporation created by a statute and the Court by majority held that they were “authorities” and therefore “State” within the meaning of Article 12. The Court in this case was not concerned with the question whether a company or society formed under a statute can be an “authority” or not and this decision does not therefore contain anything which might even remotely suggest that such a company or society can never be an “authority”. On the contrary, the thrust of the logic in the decision, far from being restrictive, applies to all juristic persons alike, irrespective whether they are created by a statute or formed under a statute.

It is in the light of this discussion that we must now proceed to examine whether the Society in the present case is an “authority” falling within the definition of “State” in Article 12. Is it an instrumentality or agency of the Government? The answer must obviously be in the affirmative if we have regard to the Memorandum of Association and the Rules of the Society. The composition of the Society is dominated by the representatives appointed by the Central Government and the Governments of Jammu & Kashmir, Punjab, Rajasthan and Uttar Pradesh with the approval of the Central Government. The monies required for running the college are provided entirely by the Central Government and the Government of Jammu & Kashmir and even if any other monies are to be received by the 100 Society, it can be done only with the approval of the State and the Central Governments. The Rules to be made by the Society are also required to have the prior approval of the State and the Central Governments and the accounts of the Society have also to be submitted to both the Governments for their scrutiny and satisfaction. The Society is also to comply with all such directions as may be issued by the State Government with the approval of the Central Government in respect of any matters dealt with in the report of the Reviewing Committee. The control of the State and the Central Governments is indeed so deep and pervasive that no immovable property of the Society can be disposed of in any manner without the approval of both the Governments. The State and the Central Governments have even the power to appoint any other person or persons to be members of the Society and any member of the Society other than a member representing the State or the Central Government can be removed from the membership of the Society by the State Government with the approval of the Central Government. The Board of Governors, which is in charge of general superintendence, direction and control of the affairs of Society and of its income and property is also largely controlled by nominees of the State and the Central Governments. It will thus be seen that the State Government and by reason of the provision for approval, the Central Government also, have full control of the working of the Society and it would not be incorrect to say that the Society is merely a projection of the State and the Central Governments and to use the words of Ray, C.J. in Sukhdev Singh’s case (supra), the voice is that of the State and the Central Governments and the hands are also of the State and the Central Governments. We must, therefore, hold that the Society is an instrumentality or agency of the State and the Central Governments and it is an ‘authority’ within the meaning of Art. 12.

If the Society is an “authority” and therefore “State” within the meaning of Article 12, it must follow that it is subject to the constitutional obligation under Article 14.

The true scope and ambit of Article 14 has been the subject matter of numerous decisions and it is not necessary to make any detailed reference to them. It is sufficient to state that the content and reach of Article 14 must not be confused with the doctrine of classification. Unfortunately, in the early stages of the evolution of our constitutional law, Article 14 came to be identified with the doctrine of classification because the view taken was that Article forbids discrimination and there would be no discrimination where the classification making the differentia fulfils two conditions, namely, (i) that the classification is founded on an intelligible differentia which distinguishes persons or things 101 that are grouped together from others left out of the group;

and (ii) that differentia has a rational relation to the object sought to be achieved by the impugned legislative or executive action. It was for the first time in E.P. Royappa v. State of Tamil Nadu that this Court laid bare a new dimension of Article 14 and pointed out that Article has highly activist magnitude and it embodies a guarantee against arbitrariness. This Court speaking through one of us (Bhagwati, J.) said :

“The basic principle which therefore informs both Articles 14 and 16 is equality and inhibition against discrimination. Now, what is the content and reach of this great equalising principle ? It is a founding faith, to use the words of Bose, J., “a way of life”, and it must not be subjected to a narrow pedantic or lexicographic approach. We cannot countenance any attempt to truncate its all-embracing scope and meaning, for to do so would be to violate its activist magnitude. Equality is a dynamic concept with many aspects and dimensions and it cannot be “cribbled, cabined and confined” within traditional and doctrinaire limits. From a positivistic point of view, equality is antithetic to arbitrariness. In fact, equality and arbitrariness are sworn enemies; one belongs to the rule of law in a republic while the other, to the whim and caprice of an absolute monarch.

Where an act is arbitrary it is implicit in it that it is unequal both according to political logic and constitutional law and is therefore violative of Art.

14, and if it affects any matter relating to public employment, it is also violative of Art. 16. Articles 14 and 16 strike at arbitrariness in State action and ensure fairness and equality of treatment.” This vital and dynamic aspect which was till then lying latent and submerged in the few simple but pregnant words of Article 14 was explored and brought to light in Royappa’s case and it was reaffirmed and elaborated by this Court in Maneka Gandhi v. Union of India where this Court again speaking through one of us (Bhagwati, J.) observed :

“Now the question immediately arises as to what is the requirement of Article 14 : what is the content and reach of the great equalising principle enunciated is this article ? There can be no doubt that it is a founding faith of the 102 Constitution. It is indeed the pillar on which rests securely the foundation of our democratic republic.

And, therefore, it must not be subjected to a narrow, pedantic or lexicographic approach. No attempt should be made to truncate its all-embracing scope and meaning for, to do so would be to violate its activist magnitude. Equality is a dynamic concept with many aspects and dimensions and it cannot be imprisoned within traditional and doctrinaire limits……………Article 14 strikes at arbitrariness in State action and ensures fairness and equality of treatment. The principle of reasonableness, which legally as well as philosophically, is an essential element of equality or non-arbitrariness pervades Article 14 like a brooding omnipresence.” This was again reiterated by this Court in International Airport Authority’s case (supra) at page 1042 of the Report.

It must therefore now be taken to be well settled that what Article 14 strikes at is arbitrariness because any action that is arbitrary, must necessarily involve negation of equality. The doctrine of classification which is evolved by the courts is not para-phrase of Article 14 nor is it the objective and end of that Article. It is merely a judicial formula for determining whether the legislative or executive action in question is arbitrary and therefore constituting denial of equality. If the classification is not reasonable and does not satisfy the two conditions referred to above, the impugned legislative or executive action would plainly be arbitrary and the guarantee of equality under Article 14 would be breached. Wherever therefore there is arbitrariness in State action whether it be of the legislature or of the executive or of “authority” under Article 12, Article 14 immediately springs into action and strikes down such State action. In fact, the concept of reasonableness and non- arbitrariness pervades the entire constitutional scheme and is a golden thread which runs though the whole of the fabric of the Constitution.

We may now turn to the merits of the controversy between the parties. Though several contentions were urged in the writ petitions, challenging the validity of the admissions made to the college, they were not all pressed before us and the principal contention that was advanced was that the society acted arbitrarily in the matter of granting of admissions, first by ignoring the marks obtained by the candidates at the qualifying examination; secondly by relying on viva voce examination as a test for determining comparative merit of the candidates; thirdly by allocating as many as 50 marks for the viva voce examination as against 100 marks allocated for the written test and 103 lastly, by holding superficial interviews lasting only 2 or 3 minutes on an average and asking questions which had no relevance to assessment of the suitability of the candidates with reference to the four factors required to be considered at the viva voce examination. Now so far as the challenge on the first count is concerned, we do not think it is at all well-founded. It is difficult to appreciate how a procedure for admission which does not take into account the marks obtained at the qualifying examination, but prefers to test the comparative merit of the candidates by insisting on an entrance examination can ever be said to be arbitrary. It has been pointed out in the counter affidavit filed by H. L.

Chowdhury on behalf of the college that there are two universities on two different dates and the examination by the Board of Secondary Education for Jammu is also held on a different date than the examination by the Board of Secondary Education for Kashmir and the results of these examinations are not always declared before the admissions to the college can be decided. The College being the only institution for education in engineering courses in the State of Jammu & Kashmir has to cater to the needs of both the regions and it has, therefore, found it necessary and expedient to regulate admissions by holding an entrance test, so that the admission process may not be held up on account of late declaration of results of the qualifying examination in either of the two regions. The entrance test also facilitates the assessment of the comparative talent of the candidates by application of a uniform standard and is always preferable to evaluation of comparative merit on the basis of marks obtained at the qualifying examination, when the qualifying examination is held by two or more different authorities, because lack of uniformity is bound to creep into the assessment of candidates by different authorities with different modes of examination. We would not, therefore, regard the procedure adopted by the society as arbitrary merely because it refused to take into account the marks obtained by the candidates at the qualifying examination, but chose to regulate the admissions by relying on the entrance test.

The second ground of challenge questioned the validity of viva voce examination as a permissible test for selection of candidates for admission to a college. The contention of the petitioners under this ground of challenge was that viva voce examination does not afford a proper criterion for assessment of the suitability of the candidates for admission and it is a highly subjective and impressionistic test where the result is likely to be influenced by many uncertain and imponderable factors such as predelictions and prejudices of the interviewers, his attitudes and approaches, his pre-conceived notions and idiosyncrasies and it is also capable of abuse because it leaves scope 104 for discrimination, manipulation and nepotism which can remain undetected under the cover of an interview and moreover it is not possible to assess the capacity and calibre of a candidate in the course of an interview lasting only for a few minutes and, therefore, selections made on the basis of oral interview must be regarded as arbitrary and hence violative of Art. 14. Now this criticism cannot be said to be wholly unfounded and it reflects a point of view which has certainly some validity. We may quote the following passage from the book on “Public Administration in Theory and Practice” by M. P. Sharma which voices a far and balanced criticism of the oral interview method :

“The oral test of the interview has been much criticised on the ground of its subjectivity and uncertainty. Different interviews have their own notions of good personality. For some, it consists more in attractive physical appearance and dress rather than anything else, and with them the breezy and shiny type of candidate scores highly while the rough uncut diamonds may go unappreciated. The atmosphere of the interview is artificial and prevents some candidates from appearing at their best. Its duration is short, the few questions of the hit-or-miss type, which are put, may fail to reveal the real worth of the candidate. It has been said that God takes a whole life time to judge a man’s worth while interviewers have to do it in a quarter of an hour. Even at it’s best, the common sort of interview reveals but the superficial aspects of the candidate’s personality like appearance, speaking power, and general address. Deeper traits of leadership, tact, forcefulness, etc. go largely undetected. The interview is often in the nature of desultory conversation. Marking differs greatly from examiner to examiner. An analysis of the interview results show that the marks awarded to candidates who competed more than once for the same service vary surprisingly. All this shows that there is a great element of chance in the interview test. This becomes a serious matter when the marks assigned to oral test constitute a high proportion of the total marks in the competition.

01 Glenn Stahl points out in his book on “Public Personnel Administration” that there are three disadvantages from which the oral test method suffers, namely, “(1) the difficulty of developing valid and reliable oral tests; (2) the difficulty of securing a reviewable record on an oral test; and (3) public suspicion of the oral test as a channel 105 for the exertion of political influence” and we may add, other corrupt, nepotistic or extraneous considerations. The learned author then proceeds to add in a highly perceptive and critical passage :

“The oral examination has failed in the past in direct proportion to the extent of its misuse. It is a delicate instrument and, in inexpert hands, a dangerous one. The first condition of its successful use is the full recognition of its limitations. One of the most prolific sources of error in the oral has been the failure on the part of examiners to understand the nature of evidence and to discriminate between that which was relevant, material and reliable and that which was not. It also must be remembered that the best oral interview provides opportunity for analysis of only a very small part of a person’s total behaviour.

Generalizations from a single interview regarding an individual’s total personality pattern have been proved repeatedly to be wrong.” But, despite all this criticism, the oral interview method continues to be very much in vogue as a supplementary test for assessing the suitability of candidates wherever test of personal traits is considered essential. Its relevance as a test for determining suitability based on personal characteristics has been recognised in a number of decisions of this Court which are binding upon us. In the first case on the point which came before this Court, namely, R. Chitra Lekha and Others v. State of Mysore and Others this Court pointed out :

“In the field of education there are divergent views as regards the mode of testing the capacity and calibre of students in the matter of admissions to colleges. Orthodox educationists stand by the marks obtained by a student in the annual examination. The modern trend of opinion insists upon other additional tests, such as interview, performance in extra- curricular activities, personality test, psychiatric tests etc. Obviously we are not in a position to judge which method is preferable or which test is the correct one…………………………………………….

….. The scheme of selection, however, perfect it may be on paper, may be abused in practice. That it is capable of abuse is not a ground for quashing it. So long as the order lays down relevant objective criteria and entrusts the business of selection to quali- 106 fied persons, this Court cannot obviously have any say in the matter.

and on this view refused to hold the oral interview test as irrelevant or arbitrary. It was also pointed out by this Court in A. Peeriakaruppan v. State of Tamil Nadu & Ors :

“In most cases, the first impression need not necessarily be the past impression, but under the existing conditions, we are unable to accede to the contentions of the petitioners that the system of interview as in vogue in this country is so defective as to make it useless.” It is therefore not possible to accept the contentions of the petitioners that the oral interview test is so defective that selecting candidates for admission on the basis of oral interview in addition to written test must be regarded as arbitrary. The oral interview test is undoubtedly not a very satisfactory test for assessing and evaluating the capacity and calibre of candidates, but in the absence of any better test for measuring personal characteristics and traits, the oral interview test must, at the present stage, be regarded as not irrational or irrelevant though it is subjective and based on first impression, its result is influenced by many uncertain factors and it is capable of abuse. We would, however, like to point out that in the matter of admission to college or even in the matter of public employment, the oral interview test as presently held should not be relied upon as an exclusive test, but it may be resorted to only as an additional or supplementary test and, moreover, great care must be taken to see that persons who are appointed to conduct the oral interview test are men of high integrity, calibre and qualification.

So far as the third ground of challenge is concerned, we do not think it can be dismissed as unsubstantial. The argument of the petitioners under this head of challenge was that even if oral interview may be regarded in principle as a valid test for selection of candidates for admission to a college, it was in the present case arbitrary and unreasonable since the marks allocated for the oral interview were very much on the higher side as compared with the marks allocated for the written test. The marks allocated for the oral interview were 50 as against 100 allocated for the written test, so that the marks allocated for the oral interview came to 33 1/3% of the total number of marks taken into account for the purpose of making the selection. This, contended the petitioners, was beyond all reasonable proportion and rendered the selection of the candidates arbitrary and violative of the equality clause of the Constitution. Now there can be no doubt that, 107 having regard to the drawbacks and deficiencies in the oral interview test and the conditions prevailing in the country, particularly when there is deterioration in moral values and corruption and nepotism are very much on the increase, allocation of a high percentage of marks for the oral interview as compared to the marks allocated for the written test, cannot be accepted by the Court as free from the vice of arbitrariness. It may be pointed out that even in Peeriakaruppan’s case (supra), where 75 marks out of a total of 275 marks were allocated for the oral interview, this Court observed that the marks allocated for interview were on the high-side. This Court also observed in Miss Nishi Maghu’s case (supra): “Reserving 50 marks for interview out of a total of 150… does seem excessive, especially when the time spent was not more than 4 minutes on each candidate”. There can be no doubt that allocating 33 1/3 of the total marks for oral interview is plainly arbitrary and unreasonable. It is significant to note that even for selection of candidates for the Indian Administrative Service, the Indian Foreign Service and the Indian Police Service, where the personality of the candidate and his personal characteristics and traits are extremely relevant for the purpose of selection, the marks allocated for oral interview are 250 as against 1800 marks for the written examination, constituting only 12.2% of the total marks taken into consideration for the purpose of making the selection. We must, therefore, regard the allocation of as high a percentage as 33 1/3 of the total marks for the oral interview as infecting the admission procedure with the vice of arbitrariness and selection of candidates made on the basis of such admission procedure cannot be sustained. But we do not think we would be justified in the exercise of our discretion in setting aside the selections made for the academic year 1979-80 after the lapse of a period of about 18 months, since to do so would be to cause immense hardship to those students in whose case the validity of the selection cannot otherwise be questioned and who have nearly completed three semesters and, moreover, even if the petitioners are ultimately found to be deserving of selection on the application of the proper test, it would not be possible to restore them to the position as if they were admitted for the academic year 1979-80, which has run out long since. It is true there is an allegation of mala fides against the Committee which interviewed the candidates and we may concede that if this allegation were established, we might have been inclined to interfere with the selections even after the lapse of a period of 18 months, because the writ petitions were filed as early as October-November, 1979 and merely because the Court could not take-up the hearing of the writ petitions for such a long time should be no ground for denying relief to the petitioners, if they are otherwise so entitled. But we do not think that on the material placed before us we can 108 sustain the allegation of mala fides against the Committee.

It is true, and this is a rather disturbing feature of the present cases, that a large number of successful candidates succeeded in obtaining admission to the college by virtue of very high marks obtained by them at the viva voce examination tilted the balance in their favour, though the marks secured by them at the qualifying examination were much less than those obtained by the petitioners and even in the written test, they had fared much worse than the petitioners. It is clear from the chart submitted to us on behalf of the petitioners that the marks awarded at the interview are by and large in inverse proportion to the marks obtained by the candidates at the qualifying examination and are also, in a large number of cases, not commensurate with the marks obtained in the written test.

The chart does create a strong suspicion in our mind that the marks awarded at the viva voce examination might have been manipulated with a view to favouring the candidates who ultimately came to be selected, but suspicion cannot take the place of proof and we cannot hold the plea of mala fides to be established. We need much more cogent material before we can hold that the Committee deliberately manipulated the marks at the viva voce examination with a view to favouring certain candidates as against the petitioners. We cannot, however, fail to mention that this is a matter which required to be looked into very carefully and not only the State Government, but also the Central Government which is equally responsible for the proper running of the college, must take care to see that proper persons are appointed on the interviewing committees and there is no executive interference with their decision-making process. We may also caution the authorities that though, in the present case, for reasons which we have already given, we are not interfering with the selection for the academic year 1979- 80, the selections made for the subsequent academic years would run the risk of invalidation if such a high percentage of marks is allocated for the oral interview. We are of the view that, under the existing circumstances, allocation of more than 15% of the total marks for the oral interview would be arbitrary and unreasonable and would be liable to be struck down as constitutionally invalid.

The petitioners, arguing under the last ground of challenge, urged that the oral interview as conducted in the present case was a mere pretence or farce, as it did not last for more than 2 or 3 minutes per candidate on an average and the questions which were asked were formal questions relating to parentage and residence of the candidate and hardly any question was asked which had relevance to assessment of the suitability of the candidate with reference to any of the four factors required to be considered by the Committee. When the time spent on each candidate was not more 2 or 3 minutes on an average, 109 contended the petitioners, how could the suitability of the candidate be assessed on a consideration of the relevant factors by holding such an interview and how could the Committee possibly judge the merit of the candidate with reference to these factors when no questions bearing on these factors were asked to the candidate. Now there can be no doubt that if the interview did not take more than 2 or 3 minutes on an average and the questions asked had no bearing on the factors required to be taken into account, the oral interview test would be vitiated, because it would be impossible in such an interview to assess the merit of a candidate with reference to these factors. This allegation of the petitioners has been denied in the affidavit in reply filed by H. L. Chowdhury on behalf of the college and it has been stated that each candidate was interviewed for 6 to 8 minutes and “only the relevant questions on the aforesaid subjects were asked”. If this statement of H. L. Chowdhury is correct, we cannot find much fault with the oral interview test held by the Committee. But we do not think we can act on this statement made by H. L. Chowdhury, because there is nothing to show that he was present at the interviews and none of the three Committee members has come forward to make an affidavit denying the allegation of the petitioners and stating that each candidate was interviewed for 6 to 8 minutes and only relevant questions were asked.

We must therefore, proceed on the basis that the interview of each candidate did not last for more than 2 or 3 minutes on an average and hardly any questions were asked having bearing on the relevant factors. If that be so, the oral interview test must be held to be vitiated and the selection made on the basis of such test must be held to be arbitrary.

We are, however, not inclined for reasons already given, to set aside the selection made for the academic year 1979-80, though we may caution the State Government and the Society that for the future academic years, selections may be made on the basis of observation made by us in this judgment lest they might run the risk of being struck down. We may point out that, in our opinion, if the marks allocated for the oral interview do not exceed 15% of the total marks and the candidates are properly interviewed and relevant questions are asked with a view to assessing their suitability with reference to the factors required to be taken into consideration, the oral interview test would satisfy the criterion of reasonableness and non-arbitrariness. We think that it would also be desirable if the interview of the candidates is tape-recorded, for in that event there will be contemporaneous evidence to show what were the questions asked to the candidates by the interviewing committee and what were the answers given and that will eliminate a lot of unnecessary controversy besides acting as a check on the possible arbitrariness of the interviewing committee.

110 We may point out that the State Government, the Society and the College have agreed before us that the best fifty students, out of those who applied for admission for the academic year 1979-80 and who have failed to secure admission so far, will be granted admission for the academic year 1981-82 and the seats allocated to them will be in addition to the normal intake of students in the College. We order accordingly.

Subject to the above direction, the writ petitions are dismissed, but having regard to the facts and circumstances of the present cases, we think that a fair order of costs would be that each party should bear and pay its own costs of the writ petitions.

S.R. Petitions dismissed.

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