HIS HOLINESS KESAVANANDA BHARATI SRIPADAGALAVARU versus STATE OF KERALA

HIS HOLINESS KESAVANANDA BHARAT! SRIPADAGALA VAR U

STATE OF KERALA

April 24, 1973 (S. M. SIKRI, C. J., J. M. SHELAT, K. S. HEGDE, A. N. GROVER, A. N. RAY, P. JAGANMOHAN REDDY, D. G. PALEK.AR, H. R. KHANNA, IC K. MATHEW, M. H. BEG, S. N. DWIVEDI, A. K. MUKHERJEA AND Y. V. CHANDRACHUD, JJ.)

Constitution of India, 1950-Artick 368 before Constitution (Twenty Fourth) Amendment Act, 197!-Nature and scope of the amending power.

Article 13(2)-'Law' in 13(2) if includes amendment of the Constitution-Distinction between legislative power and constituent power.

Article 368-"Amendment" meaning of-"Amcndmcnt" if includes the power to abrogate the Constitution-If includes the power to alter the basic struc-ture or frame-work of the Constitution,

Fundamental Rights-If amendment can take away or abridge the rights guaranteed in Part III.

Fundamental Righu--If inalienable natur31 rights so as to operate as restric-tion on the amending power.

Implied and inherent limitations-Power of amendment if subject to inherent or implied limitations.

Preamble-Nature-Preamble, if operates as source of implied limitation on the power of amendment.

Constitution (Twenty Faurth) Amendment Act 1971-Validity of-Amend· mrot if enlargement of the limits of the Amending power.

Article 368-lf there are inherent or implied limitations in the article .. amended.

Constitution (Twenty Fifth) Amendment Act, 1971-Validity of.

Section 2(a) & (b)-Substitution of 'amount' for 'compensation'-Exclusion of article 19(l)(f) to law in article 31(2)~1£ abrogates the basic structure of the Constitution-Meaning of 'amount'-Scope of judicial review of adequacy.

Section 3-lntroduction of new asticle 31C-Nature and object of the articlo-Article if abrogates the essential features of the Constitution-If amounts to dele-gation of amending power to state legislatures-Effect of Declaration-Nexus of law under the article to the directives in article 39(b) and (c), if subjedl to judicial review.

Directive Principles of State Policy-Importance in the constitutional schcmc-Rclation with fundamental rights. Property, right to-Nature of the right.Constttutron (Twenty Ninth) Amendment Act, 1972-Validity of-Article 31B and 31A-lf interrelated. Judicial Revietu-Limits of-Place of judicial review in the constitutional scheme. ·, Interpretation-Rules of Constitutional interpretation-Constituent Assembly Debates, relevancy of. The question whether the fundamental rights set out in Part III of the C:On-stitution could be taken away or abridged by amendment of the Constitution was first considered by this Court in Sankari Prasad v. Union of India, [1952] S.C.R. 89. In Sankari Prasad the validity of the Constitution (First Amendment) Act 1951, was challenged. The First Amendment made changes in articles 15 and 19 of the Constitution and inserted articles 31A and 31B. The principal contention was that the First Amendment in so far as it purported to take away or abridge the rights conferred by Part _III of the Consti-tution fell within the prohibition of article 13(2) of the Constitution. The Court unanimously held that the word 'law' in article 13(2) was relatable to exercise of ordinary legislative power and not amendments to the Constitution and that the terms of article 368 were general to empower Parliament to amend the Constitution without any exception. The question came up again in Sajjan Singh v. State of Rajasthan, [1965] 1 S.C.R. 938, wherein the validity of the Constitution (Seventeenth Amendment) Act 1964, was challenged. The majority view in Sa;jan Singh was that article 368 plainly and unambiguously meant amendment of all provisions of the Constitution and that the ward •iaw' in article 13(2) did not take in Constitution Amendments. Thereafter, in Golaknath v. State of Punjab, the Court, six against live, hdd that an amendment of the Constitution was 'law' within the meaning of article 13(2); therefore, if an amendment took away or abridged the fundamental rights it was void, that the Constitution First1 Fourth and Seventeenth Amendments abridged fundamental rights but were valid on the application of the doctrine of prospective overruling or acquiescence and that Parliament had no power from the date of the decision to amend any of the provisions of Part III so as to take away or abridge the fundamental rights. One of the amendments affecting the right to propeny was the Constitution (Fourth Amendment) Act, 1955. The Amendment Act had enacted that no law providing for compulsory acquisition or requisitioning "shall be called in question in any Court on the ground that the compensation provided by that law is not adequate". The amendment was passed to get over the interpretation given by the Court in State of West Bengal v. Bela Baoerju, [1954] S.C.R. 674, to the word 'compensation' viz., just equivalent or full indemnification for the property expropriated. The effect of the amendment was considered by this Court in Vairavdu Mudaliar v. Del'Uty Collector, [1965] 1 S.C.R. 614. The Court took the view that the fact that Parliament used the same expressions, namely, 'compensation' and 'principles', as were found in article 31 before the amendment, was clear indication that Parliament accepted the meaning given by the Court to tho.9e expressions in Bela Banerjee's case. In Union of India v. Metal Corporation, [ 1967] 1 S.C.R. 255 the Coun struck down the Metal Corporation (Acquisition of Undertaking) Act 1965, because the principles for determining the: compens.ation laid down in the Act did not represent the just equivalent of the property taken. Later, in State of Guiarat v. Shanti/al Mangal Das, [1969] 3 S.C.R. 341, the Court overruled the decision in Metal Corporaticm case. The Court held that challenge to statute that the principles specified by it did not a\\·ard just equivalent would be in clear violation of the Constitutional declaration that adequacy of conlpensation provided was not justiciable, that just equivalent was not c.apable of precise determination by the application of any recognised principles and that "''apart from the practical difficulties the law declared by this Court also placedserious obstacles in giving effect to the directive principles of State policy incorporated in article 39". Thereafter, in R .. C. Cooper v. Union of India (The Bank Nationalisation Case) [1970] 3 S.C.R. 530 the Court by majority, ten against one, held that even after the Fourth Amendment jjCompcnsation" meant "the equivalent i~ terms of money of the property comp1:1lsorily acquired'' "according to r.elevant principles which principles must be appropriate to the determination of compensation for the particular class of property sought to be acquired". Arguments were addressed mainly in W iit Petition No. 135 of 1970. In this Writ Petition the petitioner had challenged the validity of the Kerala Land Reforms Amendment Art 1969 and the Kcrala Land Reforms Amendment Act, 1971, for ·the .reason that some of the provisions thereof violated articles 14, 19(l)(f), 25, 26 and 31 of the Constitution. During the pcndency of the Writ Petition Parliament passed_ three constitution amendments, namely the Cons-titution Twenty Fourth, Twenty Fifth and Twenty Ninth Amendment Acts.

The Constitution Twenty Fourth Amendment Act amended article 368. It enacted that Parliament may, in exercise of its constituent power, amend by way of addition, variation or repeal any provision of the Constitution in accordance with the procedure laid down in that article. The other part of the amendment is that nothing in article 13 shall apply to any amendment under article 368°.

• Atticle 368 · before amendment. Procedure for amendment •f tho Constitution: An amendmont of Ibis Com· titution may be initiated only by the introducion Of Bill for the purpose in either House of Parliament. when the Bill is passed in each House by majority Of the total membership of that House and by majority of not less than two thirds of 1lhe members of that H""" present and voting, it shall bo presented to President for his auent and upon such assent beina: a:iven to the Bill. the Consti· tution shall stand amended in accordance with the terms of the Bill.

Provided that if such amendment seeks to make any cban,ge in:-

(a) article 54, article 55, article 73, article 162 or article 241; or

(b) Chapter IV of Part V. Chapter V of Pan VJ, or Chapter I of Part XI, or

(c) any of the Lists in the Seventh Scbcdule, or

(d) the representation of States in Parliament, or

(e) thci provisions of this article,

the amendment shall also require to be ratified by the Legislatures of not less than one-half of the States by resolution to that effect passed by those Legislatures before the Bill making provisiori for such amendment is presented to the President for absent Article 368 after amendment-Article 368 of the Constitution shall be re-num· bered as clause (2) thereof, and

(a) for the marginal heading of that article, the following marginal heading shall be substi!uted, nomcly :-

.. Power of Parliament to amend the Constitution and procedure therefor". (b) before clause (2) as so re-numbered, the foHowing c1ause shall be insert· ed, namely:-"Notwithstanding anything in this Constitution, Parliament may in exer-cise !l! its cons~tuent PJ?We.r a.IJ?.end by way ·of ~di ti on, variation or repeal any prov1s1on of this Constitution 1n accordance with the procedure laid down in this article". (c) in claus~ (2) aS so . re-numbered, for the words "it shall be prcsent.ed to the President for his assent and upon such assent being given to the Bill", the words "if shall be presented to the President who shall give bis assent to the Bill and thersupon" shall be substituted; (d) ·after clause (2) as so re-numbered, the fo1lowing clause shall be inserted namely:-"(3) Nothing in Article 13 shall apply to any amendment made under this articleu.The Constitution Twenty Fifth Amendment Att amended article 31(2) and article 31(2-A). Section 2 of the Amendment Act substituted the word "amount" for the word "compensation" and excluded the applicatioo of article 19(1)(f) to law under article 31(2). It was also made clear that no such law shall be called in question in any court on the groond that the whole or any port of such amount is to be given othlcrwise than in cash. Section 3 introduced new article 31C. It empowered Parliament and State Legislatures to enact law giving effect to the J;><>licy of the State towards securing the directive principles. in clause (b} or cl. (c) of article 39 and no such law could be questioned on the ground that it took away or abridged any of the rights conferred by articles 14, 19 and 31. Further, the amendment laid down that 11no law containing declaration that it is for giving effect to such policy shall be called in ~stion in any court on the ground that it docs not give effect to such policy' . The provisions of the article were not to be applied to law made by the Legislature of state unless such law received the assent of the President. The Constitution (Twenty Ninth). Amendment Act included the Kerala and Reforms Acts in the Ninth Schedule to the Constitution making them immune from attack on the ground of violation of the fundamental rights. The Petitioner challenged the validity of the three Constitution Amendment Acts.

HELD : (By Full Court) : Thie Constirution (Twenty Fourth) amendment Act, Section 2(a) md 2(b) of the Constirution (Twenty Fifth) Amendment Act and the Constirution (Twenty Ninth) Amendment Act arc valid.

By maj<>rity : .Per Hegdc, Ray, Jaganmohan Reddy, Palckar, Khanna, Mathew, Beg, Dwivedi, Mukhcrjea and Chandrachud, JI : The decision of the majority in Golaknath that the word "law" in article 13(2) included amendments to tlle Constitution and the article operated as limitation upon the power to amend the Constitution in article 368 is erroneous and is overruled.

By majority: Per Ray, Palekar, Khanna, Mathew, Beg, Dwivedi and Chandra-chud, JJ : The power of amendment is plenary. It includes within itself the power to add, alter or re.peal the various articles of the Constitution including those relating to fundamental rights.

By majority: Per Sikri, C.J. and Shelat, Hegde, Grover, Khanna, Jaganmohan Reddy and Mukherjea, JJ. (Ray, Palekar, Mathew, Beg, Dwivcdi and Chandra-chud, JJ. dissenting) : The power to amend does not include the power to alter the basic structure or framework of the Constitution so as to change its identity.

By majority: Per Ray, Palekar, Khanna, Mathew, Beg, Dwivcdi and Chandra-chud JJ. (Sikri, C.J. and Shelat, Hcgdc, Grover, Mukherjca, JJ. holding contra and Jaganmohan Reddy, J. leaving the question open) : The~ arc no inherent or implied limitations on the power of amendment under arttcle 368.

By majority: The first pa". ?£article 31C. is valid •• 'f!>e seco~d. part of the article, viz., "and no law conta1nmg declaration that tt ts for giving e~ct ~o such policy s'Na,11 be called.~, qu~tion. in any court on the ground that it docs not give effect to such policy 1s invalid.

[Sikri, C.J. and Shelat, Hegde, Grove.r and Mukherjca, JJ. hel4 both the parts of article 31C invalid.

Ray, Palekar, Ma~hew, Beg, Dwivedi and Chandrachud, JJ. held both the ports of the article valid.

Jaganmohan Reddy J, held the second part of the article invalid and the fust part of the article valid subject to the severance of the words "inconsistent with or takes away" and the words "article 14" therein.

Khanna J. held the first part of the article valid and the second part invalid.]

Per Sikri, . C. /. : The Con;titution Twenty Fourth Amendment is valid, Section 2 of Constitttion Twenty Fifth Amendment is valid. Section 3 of Constitution Twenty Fifth Amendment is void. The Constitution Twenty Ninth Amendment is ineffective to protect the impugned sections if they abrogate or take away fundamental rights.

The Golaknath case (1967) 2 S.C.R. 762 did not decide the ambit of article 368 with respect to the powors of Parliament to amend Article 13(2) or to amend Article 368 itself. Nor did it determine the exact meaning of the expres-sion "amendment of this Constitution". The leading majority did not express -any opinion on the contention that in exercise of the power of amendment Parliament cannot destroy the fundamental structure of the Constitution but can -0nly modify provisions thereof within the framework· of the original instrument for its better effectuation. The conclu.sion in Golaknath's case tl1at the power of the Parliament to amend the Constitution is derived from Article 245, 246 and 248 of the Constitution and not from Article 368 thereto and that amend· ment is legislative process docs not survive for discussion any longer;. because, it was rightly admitted on behalf of the petitioners that the Constitution 24th Amendment Act, 1971, in so far as it tran.sfcrs the power to amend the Cons· titution from the residuary entry (Entry 97 List I) or Article 248 of the Cons-titution to Article 368, is valid. In other words Article 368 of the Constitutioo as now amended by the 24th amendment deals not only with the procedure for amendment but also with the express powers of Parliament to amend the Constitution. It is not necessary to discuss the merits of the question whether amendment is 'law' within the meaninz of Article 13 as the same result follows in this case even if it be assumed in favour of the respondents that an amendment <>f the Constitution is not 'law' within Art. 13(2) of the Constitution. (p. 96].

I C. Golaknath v. State of Puniab (1967) 2 S.C.R. 672, Sri Sankari Prasad Singh Deo v. Union of India and State of BU.ar (1952) S.C.R. 89 and Saiian Singh v. State of Raiasthan (1965) 1 S.C.R. 933 discussed.

A. K. Gopa/an v. The State of Madras (1950) S.C.R. 88 at p. 100, referred to. The expression 'Amendment of the Constitution' does not enable Parlia· ment to abrogate or take away fundamental rights or to completely change the fundamental features of the Constitution so as to destroy its identity. Within these limits Parliament can amend every article:

(i) ID construing the expression 1amendment of the Constitution' one mwt look at the whole scheme of the Constitution. It is not right to construe words in vacuum and then insert the meaning into article. [p. 101].

Bidie v. General Accident, Fire anti Life Assurance Corporation (1948) 2 All E.R. 995-998, Bourne v. Norwich Crematorium (1967) 2 All E.R. 576-578, Towne v. Elsner 245 U.S. 418; 425-62 L. ed. 372-376 and obsecvations of Gwyer C.J. in The Central Provinces & Bmr Act 1939 F.C.R. at page 42 and Lord Wright in James v. Commonwealth of Australia 1936 A.C. 578 at page 613, relied oa.

In the Constitution the word 'amendment' or 'amend' has been used in various places to mean different things. In view of. the great variation of the phrases used throughout the Constitution it follows that the word 'amendment' must derive its oolou.r from Article 368 and the rest of the provisions of the Constitution. It is not intended. that the whole Constitution could be repealed. [p. 103, 107].

Mangal Singh v. Union of India (1967) 2 SCR 109 & 112 and Holmes v. Tennison (10) L. ed. 579: 594, rdied on.

If on reading article 368 in the context of the Constitution the word 'amendment' is found to be ambiguous, one can refer to the preamble to find which construction would fit in with the preamble. Therefore, the preamble of our Constitution is of extreme impor-..ance and the Constitution should be read and interpreted in the light of the grand and noble vision exprcssocd in the preamble. The Court was wrong in holding in the Berubari's case that the preamble is not part of the Constitution. It was expressly voted to be part of the Constitution. In some cases limitations have been derived froril the preamble. [pp. 112, 114, 116].

Re. Berubari Union and Exchange of Enclave> (1960) 3 SCR 250; 281-82, Golaknoth v. Punjab (1967) 2 SCR 762; 838 and 914, Behram Khurshed Pesikaka v. The State of Bombay (1955) 1 SCR 613 at p. 653, In re. The Kera/a Education Bill 1957 (1959) SCR 995; 1018-1019, Saiian Singh v. State of Rajasthan (1965) I SCR 933, 968, Attomcy.General v. Prince Ernest Augustus of Hanover ( 1957) A.C. 436; 460 and State of Vicwria v. The Commonwealth 45 A.L.J. 251, re-ferred to.

It is impossible to equate the directive principles with fundamental rights. To say that Directive Principles give directive to take away fundamental rights in order to achieve what is directed by the directive principles seems to be contradiction in terms.

While our fundamental rights and directive .principles were being fashioned and approved by the Constituent Assembly on December 10, 1948 the General Assembly of the United Nations adopted Universal Declaration of Human Rights. The Declaration may 'not be binding instrument but it shows how India understood the nature of the human rights. In view of art. 51 of the directive principles this Court must interpret the language of the Constitution, which is after all municipal law, in the light of the United Nations Charter and the solemn declaration subscribed to by India. [p. 123].

Corocraft v. Pan American Airways (1969) 1 All. E.R. 82, 87, referred to.

The work of the Advisory Committee and the Minorities Committee of the Constituent Assembly shows that no one ever contemplated that the fundamental rights appertaining to the minorities would be liable to be abrogated by an amendment of the COnstitution. The same is true about the proceedings in the Constituent Assembly. There is no hint anywhere that abrogation of minorities' rights was ever in the contemplation of the important members of the Constituent Assembly. In the context of the British. Plan, the setting up o'f Minorities Sub-committee, the Advisory Committee and the proceedings of these c.ommittces as well as the proceedings in the Constituent Assembly, it is impossible to read the expression "Amendment of the Constitution" as empowering Parliament to abrogate the rights qf minorities.

It is sound rule of construction that speeches made by members of legis-lature in the course of· debates rdating tQ the enactment of the statute cannclt be used as aids for interpreting any of the provisions of the statute. The same

rule must be applied to the provisions of the Constitution. The speeches can be relied on only in order to see if the course of the progress of particular provision or provisions throws any light on the historical background or shows that common understanding or agreement was arrived at between certain sections of the people. [pp. 13l, 133].

Stat< of Travancore.Cochin and Others v. Bombay Co. Ltd. (1952) SCR 1112; 1121, Adminittrator-General of Bengal v. Prem Nath (1895) 22 I.A. 107-Jl8, Gopalan's case (1950) SCR 88, Golaknath's case (1967~ 2 SCR 762; 792; 922, H. H. Maharaiadhiraia Madhav Rao v. Union of India (1971) 3 SCR. 9 and Union of India v. H. S. Dhillon (1972) 2 SCR 33, referred to.

The guarantee of fundamental rights extends to numerous rights and it could not have been intended that all of them would remain completely unalterable even if article 13(2) of the Constitution be taken to include constitutional amendments. more reasonable inference to be drawn from the whole scheme of the Constitution is that some other meaning of 'Amendment' is more appropriate. This conclusion is also reinforced by the concession on behalf of the respondents· that the whole Constitution cannot be abrogated or repealed and new one substituted. In other words the expression •Amendment' of this Constitution docs not include revision of the whole Constitution. If this is true then which is that meaning of the -\vord 'amepdment' that is most appro-priate and fits in with the whole schieme of the Constitution. That meaning would be appropriate which would enable the country to achieve -a social and economic revolution without destroying the democratic structure of the Constitu-tion and the basic inalienable rights guaranteed in Part III and without going outside the contours delineated in the Preamble. [p. 140].

The Bribery Com,nissioner v. Pedrick Ranasinghe (1%5) A.C. 172, MC-Cawley" v. The King (1920) A.C. 691, and In re. The Regulation and Control of Aeronautics in Canada (1932) A.C. 54 at p. 70, referred to.

The same conclusion is arrived at by another line of reasoning. In written Constitution it is rarely that everything is said expressly. Powers and limitations arc implied from necessity or the scheme of the Constitution. The Solicitor General appearing on behalf of the Union of India conceded that implications can arise: from Constitution, but said that no implication necessarily arises under the provisions of article 368. Reading the preamble, the fundamental importance of the freedom of individual, indeed its inalienability, the importance of the economic, social and political justice mentioned in the preamble, the importance of the directive principles-, the non-inclusion in article 368 or provisions like articles 52, 53 and various other provisions, an irresistible conclusion emerges that it was not the intention to use the word "amendment' in the widest sense. It was the common understanding that fundamental rights would remain in substance as they are and they would not be amended out of existence. It semis also to have been common understanding that the fundamental features of the Constitution, namely secularisn1, democracy, and the freedom of the individual would always subsist in the wdfare state.

In view of the above reasons, necessary implication a.rises that there are implied limitations on the power of Parliament, that the expression 'Amend-ment of the Constitution' has .conseq,,.ntly · timited meaning in our Constitu-tion, and not the meaning suggested by the respondents. [pp. 141, 163; 164 ].

The Bn"bery Commissioner v. Pedrick RllfUUinglie (1965) A. C. 172, Mangal Sinth v. Uniun of India (1967) 2 SCR 109112, Taylor v. The Attornry-General of Queensland 23 C.L.R. 457, and In "· The Initiative and R<f.,...dum Acl (1919) A.C. 935, applied.

Hawk• v. Smith 64 L. Ed. 871, Rhode Island v. Palmer 64 L. Ed, 946, Uniled States of America v. William H. Soragu1 (75) L. Ed. 640, Commissioner of Stamps, Straits Settlements v. Oei Tjong Swan (1933) A.C. 378; 389, Bank of Toronto v. Iambe (1887) 12 A.C. 575-587 and Th• State (at the prosecution of Jeremiah Ryan) v. Captain Michael Lennon and others (1935) Irish Reports 170, discinguishcd.

If the argument that there is no limit to the power of Parliament to amend the Constitution is accepted, Article 368 can itself be amended to make the Constitution completely flexible or extremely rigid and unamendablc. If this is so political party with two-third majority in Parliament for few years could so amend the Constitution as to debar any other party from functioning, establish totalitarianism, enslave the people and after having effected these purposes make the Constitution unamcndablc or cxucmcly rigid. For the· aforesaid reasons, one is driven to the conclusion that 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 and the Constitution to carry out the objectives in the Preamble a,nd the Directive Principles. Applied to fundamental rights it would mean that while fundamental righis cannot be abrogated reasonable abridgements of funda-mental rights can be effected in the public interest. It is of course for Parlia-ment to decide whether an amendment is nec.essa_ry. The courts will not be concerned with the wisdom of the amendment. This meaning would enable Parliament to adjust fundamental rights in order to secure whiat the Directive Principles direct ro be accomplished, while maintaining the freedom and dignity of every citizen. [p. 164 ].

(ii) Amendment within the contours of the Preamble and the Constitution cannot be said to be vague and unsatisfactory idea which Parliamentarians and the public would not be able to understand. The true position is that every provision of the Constitution can be amended provided in the result the basic foundation and the basic structure of the Constitution remains tlM! same. Basic -structure may be said to consist of the following features: (a) Supremacy of the Constitution (b) Republican and democratic form of government (c) Secular character ofi the Constitution (d) Separation of powers bctwen the leigs-laturc, the executive and the judiciary (c) Federal character of the Constitution. The above structure is built on the basic foundation, that is, the dignity and freedom of the individual. This is of supreme importance. This cannot by any form of amendment be destroyed. T~ above foundation and the above basic features arc easily discernablc not only from the Preamble but the whole scheme of the Constitution. [p. 165].

(iii) The provisions of articles 33, 358 and 359 and the uoe of the words 'rights conferred' in article 13(2) cannot support the proposition that some of the rights in Part III arc not natural or inalienable righu. India was party to the Universal Declaration of Right1 and that declaration describes some funda-mental rights as inalienable. Various decisions of this Court describe funda-mental rights as 'natural rights' or 'human rigau'. [p. 167].

USAVANANDA I/, Jtl!RALA (Sikri, C.J.)

(iv) If Parliament hu power to pass the impugned amendment Acts, there . i1 no doubt that the wisdom of the policy of the Pai:liament cannot be ques-tioned. jlut if the net result of the above interpretation is to prevent Parliament from abrogating the fundamental rights or the basic structure outlined above it is impossible to appreciate that any uncertainty, friction or confusion will necessarily result. [p. 174]. ·

(v} It was righ<tly concedc,d that Parliament could validly amend article 368 to transfer the source of '1"ending power from List I Entry 97 to Article 368. The amendments indicating that the source of amending power will be found in article 368 itself and · the amendment making it obligatory on the President to give his assent to anr. bill duly passed under the article were within the amending power of the Parliament. It is not necessary to go into the question whether Subba Rao, Chief Justice, rightly decided that the amend-ing power was in List I Entry 97 or article 248 because nod:ting turns on it now.

It is not. legitimate to interpret article 368 as pehnitting Parliament to en· larging its power to amend the Constitution. Clause ( c) of the proviso does not give any different power than what is contained in the main article. The meaning of the expression 'amendment of the .Constitution~ docs not change when one reads the provision. Article 368 can only be amended so as not to change its identity completely. Parliament, . for instance could not make the Constitution uncontrolled by changing the prescribed two third majority to simple majority. Similarly it cannot get rid of the true meaning of the expression ~'Amendment of t1le Constitution" so as to derive power to abrogate fundamental righ.ts. If the words 'notwithstanding anything in the Constitution' arc designed to/widen the meaning of the word 'amendment of the Constitution' it would have to be held void as beyond the amending power. But they must not be read to mean this. They are inserted to get rid of the argument that article 248 and Entry 97 List I contains power of amendment. Similarly, the insertion of the words "in exercise of its constituent power only serves to exclude article 248 and Entry 97 List I and tmphasisc that it is not ordinary legislative rower that Parliament is exercising under .Article 368 but legislative pov,;er o amending the Constitution.

It cannot be said that if Parliament cannot increase its power of amendment clause ( d} of Section 3 of the 24th. amendment which makes article 13 inappli-cable to an amendment of the Constitution would be bad. There was no force in this contCntion. Anicle 13(2) as it existed previous to the 24th amendment as interpreted by the majority in GolaJcnath' s case prevented legislatures from taking away ·or abridging the rigljts conferred by Article 13. In other words any law whi.ch abridged fund~mcntal _right even to small extent was liable to be struck down. Under Article 368 Parliament can amend every article of the Constitution as long as the result is within the limits laid down in this judgment. The amendment of article 13(2) docs not go beyond the limits laid down 1:5ecau~ Parliament cannot even after the amendment abrogate or authorise abrogation or the taking away of fu!ldamental rights. After the amendment law which. !las the effect of merely abridging right while remaining within the limits laid down would not be liable to be struck down. [pp. 192, 193, 194].

Section 2 of the Constitution Twenty fifth Amendment Act, 1971, has been validly enacted.

There cannot be any doubt that the object of Section 2 of the Constitution Twonty Fifth Amendment Act is to modify the decision given by this Court in RUllOm Cavtuiief COOf'<' v. UtJi.on of India (1970) 3 SCR 530 where it was .held by ten judgos that the .Balling Companies (Acquisition and Transfer of

Undertakings) Act violated the guarantee of compensation under article 3!(2) in that it provided for giving certain amounts determined according to principles which were not relevant in the determination of compensation of the undertaking of the named Banks and by the method prescribed the amounts so declared could not. be .regarded as-· compensation. Since the word compensation has been deliberately omitted and substituted by the word 'amount' in the amended article 31(2), it is not possible to give to the word "amount" the figurative meaning, that is, the full value. Article 3!(2) postulates that in some cases principles may be laid down for determining the amount and these principles may lead to an adequate amount or an inadequate amount. So this shows that the vrord •amount' here means something to be given in lieu of the property to be ac-quirt.d but this amount has to and can be worked out by laying down certain principles. The principles must then have reasonable relationship to the property which is sought to be acquired. If this is so die amount ultimately arrived at by applying the principles must have some reasonable relationship with the property to be ;icquired, otherwise the principles laid down by the Act could hardly be principles within the meaning of Article 31 (2 ). Similarly when the alrtount is fixed by law the amount so fixed must ialso be fixed in accordance with some principles because it could not have been intended that if the amount is fixed by law, the legislature would fix the amount arbitrarily. When the government places the legislation fixing the amount before the legislature it will have to show that it has been fixed according to some prin-ciples. These principles cannot be different from the principle which the legis-lature would lay down. The change effected by the amendment in article 31(2) is that person whose property is acquired can no longer claim full compen-sation or just compensation but he can still claim that the law should lay down principles to determine the amount which he is to get and these princi-ples must have rational relation to the property sought to be acquired. If article 31(2) were to be interpreted as meaning that even an arbitrary or illusory or grossly low amount could be given, which would shock not only the judicial conscience but the conscience, of every reasonable human being, serious question would arise whether Parliament has not exceeded its amending power under article 368 of the Constitution. The substance of the fundamental right to property under article 31 consists of three things: First, the property shall be. acquired by or under valid law; S«ondly, it shall be acquired only for public purpose; and thirdly, person whose property has been acquired shall he given an amount in lieu thereof, which is nor arbitrary, illusory or shocking to the judicial conscience or to the conscience of mankind. Parliarnent has no power under the article 368 to abrogate the fundamental rights but can amend or rer,ulate or adjust them in its. exercise of amending power without destroying them. Applying this to the fundamental right of property, Parlia. ment cannot c-n1power legislatures to fix an arbitrary amount or illusory amount or an amount th.at virtually amounts to confiscation, taking all the relevant circumstances of the acquisition into consideration. Same considerations apply to the manner of payment. It cannot be interpreted to mean that an arbitrary manner of payment is contemplated. If discretion is conferred it must be excr. ciscd reasonably. [pp. 195, 196, 197].Robberts v. Hopu•ood (1925) A.C. 578; 590 and fames Laslie Williams v. Haines Thomas (1911) A.C. 381, referred to.

Article 31 (2B), the effect of which is to make article l9(!)(f) inapplicable, cannot be said to be an unreliSonablc abridgement of right under article 19(1)(£). While passing law fixing principles, the legislatures arc bound to provide procedure for the detenninatiori of the amount and if the procedure is arbitrary that provision may well be struck down under Article 14. [p. 199].

Sec#on 3. of the ·Constitution Twenty Fifth Amendment Act, 1971, is vo;iJ as it dekgates power to legi'slatures to amend the Constitution. Articl~ 368 doi!s not enable Parliament in its Constituent capacity to delegaie ;u function of amending the Constitut.,-on to another legislature or to itself in its ordinary legiilative capaa"ty.

The . expression 'notwithstanding anything contained in article 13' with which article 31C open• canMt mean that not only fundamental rights like article 19(1)(f) and article 31 arc excluded but funda:ncntal rights belonging to the .Minorities and religious groups are also excluded. The article purports to save laws which State may make towards securing the principles specified in clause (b) or (c) of article 39 from being challenged on the ground that the law is inconsistent with or takes away or abridges any of the rights conferred by articles 14, 19 or 31. This is the only ground on which they cannot be challenged. (p. 199].

The article. provides that if the law contains declaration that it is for giving effect to such policy, it shall not be called in question in any court on the ground that it docs not give effect to such policy. In other words once declaration is given no court can question the law on the- grou.nd that il has nothing to do with giving effect to the policy; whether it gives effect to sOme other policy is irrelevant. Further law may contain some provision dealing with principles specified in clause (b) or (c) of article 39 while other sections may have nothing to do with it, yet on the language it denies any court power or. jurisdiction to go into this question.

In the f:tcc of the dcdaration this Court would be unable to test the validity of incidental provisions which do not constitute an essential and integral -part of the policy directed to give ef!cct to article 39(b) and article 39(c) (p. 200].

Article 31C dif!crs in nature from article 31A. In article 31A the subject maner of the legislation is clearly provided, namely, the acquisition by the State _pf any estate or any rights therein. [art. 31A(a) J Similarly the subject matter of legislation is specifically provided in clauses (b),' (c) and (d) of article 31A. But in article 31C the sky is the limit because it leaves it to each State to. adopt measures towards securing principles specified in clauses (b) and (c) of article 39. The wording of articles 39(b) and 39(c) is vety wide. The expression· "economic system" in article 39(c) may well include professional and other services. It would be difficult to resist the contention of the State that each provision in the law had been taken for the purpose of giving effect to the policy of the State. (pp. 201, 202].

In effect article 31C enables States to adopt any policy they like and •brogate article 14, 19 and 31 of the COnstitution at will.

Parliament cannot under article 368 abrogate fundamental rights. Parlia• ment equally cannot enable the legislatures to abrogate them. This provision enables legislatures to . abrogate fundamental rights and therefore must be declar.ed .unconstitutional. [p. 204],.

Article 368 of the C.Onstitution itself provides that amendment may be initiated only by the introduction of bill for the purpose in either House of .Parliament ln _other word.s Article 368 docs not contemplate any <;>!her mode ·of amen\ll)lcn\ by Patli.ill)cllt aQ.d. it docs not equally contemplate Parliament to set up .an~t body .to aq;.nd 'the C.Onstitution. It is ~IL settled ,i,ii. India that Parliament canruit deltgate its essential legisl•tive functions. [p. 21Jof!!

Since the State legislates under article 31C and the law abrogo,tes. or takes away fundamental rights, the11: cease to have any eflect. The amendment ii not then made by Parliament as the extent of the amendment is not known till the State legislates. It is when the State legislates that the extent of the abrogation or abridgement of the fundamental rights becomes clear. To all intents and purposes it seems that it is State legislation that effects an amendment of the Constitution. If it be assumed that article 31C does not enable the State to amend the Constitution then article 31C would be ineflective because the law which in effect abridges or takes away the fundamental rights would have been passed not in the form required by article 368, that is by two third majority of the Parliament but by another body which is not recognised in article 368 and would be void on that ground. [p. 210].

What article 31C does Is that it empowers legislature subject tn the condi-tion laid down in article 31 itself to· take away or abridge the rights con-ferred by article ')4, 19 and 31. At any rate, if it is to be deemed an amend-ment of article 368 it is beyond the powers conferred by article 368 itself. Article 368 docs not enable the Parliament to constitute another legislature to amend the Constitution in its exercise of the power to amend article 368 itself.

For the aforesaid reasons it must be held that section 3 of th~ Constitution 25th Amendment Act is void as it delegates power to the legislatures to amend the Constitution. [P. 211].

Akadasi. Padhan v. State of Orissa (1963) Supp. 2 SCR 691-707, R. C. Coop.,. v. Union of lndU. (1970) 3 SCR 530-582, In re. lnitilllive nd Rql!1'en• dum Act (1919) A.C. 935, Attorney-General of Nova Scotia v. Attorney Genl!ral of Canada (1951) S.C.R.-Canada 31 Nadan v. The King (1926) A.C. 482, The Queen v. Burah, 5 I.A. 178 (1878) 3 A.C. 889; 904; 905, and Mohamed Samsu-deen Kariappl!r v. S. S. Vijesinluzl (1968) A.C. 717, 743, rcfcrrcd tn.

The Constitution Twenty Ninth Amendment Act is i~ectitJe to protect the impugned Acts if they abrogate or take away funda)nenllll rights:

The argument that article 31B is limited by what is contained· in article 31A cannot be accepted. [p., 213].

State of Bihar v. Maharajadhiraja Sir Kameshwar Singh (1952) SCR 889; 914-15, Sibnath Banerii's case (1945) F.C.R. 19, Visweshwar Rao v. State of Madhya Pradesh (1952) SCR 1020-1037 and N. B. /eejeebhoy v. Assistant Collector Thana (1965) I SCR 636-6411, referred to.

Article 368 does not enable the Parliament tn abrogate or take away fundamental rights. If this is so it does not enable Parliament tn do this by any means including the device of article 31B and the Ninth Schedule. This device of article 31B and the 9th schedule is bad in so far it protect statutes even if they take away fundamental rights, Therefore, it is nea:ssary to declare that the Constitution (Twenty-ninth Amendment) Act, 1971 is incffcctive tn protect the impugned Acts if they take away fundamental rights. [p. 214 J.Broadly speaking consti~tional amendments hi~hcrto made in. art!cle 19 and anicle 15 and the agrarian laws enacted by vanouo S12tes furnish illustra-tion ,f>f reasonable abridgement of fundamental rights in the public interest. /

Proprietary Articles Trade Ass0<iation v. Attorney General for Canada (1931) A. C. 310; 317, and Att0<ney General for Australia v. The Queen and the Boilermakers' Society of Auttralia (1957) A.C. 288; 323, referred to.

The fact that it takes years before the validity of an enactment is finally determined is not good reason to deprive pcnons of their fundamental rights. There are other ways available to the government to expedite_ the decision. It may, for example, propose ordinary legislation to enable parties to approach the Supreme Court for transfer of such cases to this Court for determination of substantial questions of interpretation of the Constitution. [p. 215].

She/at and Grover, JI:

The Constitution Twenty Fourth and Twenty Ninth Amendments arc valid. Section 3 of the Twenty Fifth Amendment must be declared un· constitutional and invalid.

The decision in Golak,nath has become academic, for, even if it be assumed that the majority holding that the word 'law' in Article 13(2) covered constitu· tional amendments was not correct, the result on the questions, wider than those raised in Golaknath, now raised before the Court, would be just the Same. [p. 217].

Though the power to amend cannot be narrowly construed and ertentlt to all the articles, it is not unlimited so as to include the power to abrogate or change the identity of the Constitution or its basic features.

Even if the amendint power includes the power to amend article 13(2), question not decided in Golaknath, the power is not so wide as to £nclude the power to abrogate or take away the fundamental freedoms.

While interpreting constitutional provisions it is necessary to determine t;heir width or reach ; in fact the area of operation of the power, its minimum and maximum dimensions cannot be demarcated or determined, without fully examining the rival claims. Unless that is done the ambit, content, scope and extent of the amending power cannot be properly and correctly decided.

The Constitution being supreme all the organs and bodies owe their existence to it. None can claim superiority over the other and each of. them has to function within the four corners cf the constitutional provisions. All the functionaries, be they legislators, members of the executive or the judiciary take oath of allegiance to the Constitution and derive their authority and jurisdiction _from its provisions. The Constitution has entrusted- to the judicature in this Country the task of construing the provisions of the Constitution and of safeguarding the fundamental rights. It is written .and controlled Constitution. It can be amended only to the extent of and in accordance with the provisions contained therein, the principal provision being article 368. [pp. 220, 221].

With regard to the position of the judiciary the British model has been ' adopted inasmuch as the appointment of Judges both of the Supreme Court and of the High Court is kept free from political controversies. Their independence has been assured. But the doctrine of Parliamentary sovereignty as it obtains in England docs not prevail here except to the extent provided Tiy the Constitution. The entire scheme of the Constitution is such that it ensures the sovereignty and integrity of the Collntry as republic and the democratic way of life by parliamentary institutions based on free and fair elections. [p. 221). ·

The word 'amendment' has been used in the Constitution in various articles, .sometimes in narrow and sometimes in wider sense. The meaning of the word 'amendment' must be interpreted on the basis of its use in our own Constitution. It would be purely speculative or conjectural to rely on the use of the word 'amcnd1 or 'amendment' in the C-onstitution of another Countty unless the entire scheme of amending section or article is also kept in mind.

The position which emerges from an examination of the speeches in the Constituent Assembly docs not lead to any clear and conclusive result. The speeches show that our Constitution was to be an amendable one and much rigidity was not intended. (pp 228, 234 ]. It is not possible to accept the argument on behalf of the respondent that the word 'amendment' can have only one meaning. The word has several meanings and the Court will have to determine its true meaning as used in the context of article 368 by taking assistance from the other permissible aids to construction. Constitution is not to be construed in any narrow and pedantic sense. broad and liberal spirit should inspire those whose duty is to interpret it. (pp. 234, 235].

In re C.P. & Berar Sol-es of Motor Spirit & Motor Lubricants ·Taxatjon Act~ 1938, [1939] F.C.R. 18, Attorney General for New So#th Wales v. The Brewery employees Union of New South Wales etc., (1908] 6 CL.R. 469, 611-012, fames v. Commonw<alth of Australia, (1936] A.C. 578 and Bidis v. General Accident, Fire and Life Assurance Corporation, (1948]2 All E.R. 998, referred to.

Apart from the historical backgronnd and the scheme of the Constitution the use of Preamble has always been made and is permissible i£ the word 'amendment' has more than one meaning. The Constitution makers gave to the Preamble the pride of place. It embodied in solemn form all the ideals and aspirations for which the Country had struggled during the British regime and Constitution was sought to be enacted in ac.cordaru:c with the gcniw of the Indian people. It is not without significance that the Preamble was passed only after the draft articles of the Constitution had been adopted with such modifica-tions as were approved by the Constituent Assembly. The Preamble was, there~ fore, meant to embody in very few and well-defined words the key to under~ standing of the Constitution. [pp. 235, 236].

Behram Khurshid Pesikaka's case [1955] 1 S.C.R. 613, Basheshar Nath v. Commissioner of Income-tar Rajasthan [ 1959] Supp. 1 S.C.R. 528, In re Kera/a Education Bill, 1957, (1959] S.C.R. 995, Rer v. Hm, (1949) Dom. L. R. 199, john Switzman v. Freda Elbing & Attorney General of tAe Prov;nce of Qubec, (1957] Canada L.R. 285, 326 (S.C.), Re Alberta Statutes, (1938] S.C.R. 100 {Canada), Attornry General for Alberta v. Attornry General for Conada, [1939] A.C. 117, McCawley v. The King [1920] A.C. 691, 711 and In re: Berubari Union and Erchonge of Enclaves, [1960] 3 S.C.R., referred to.

It hardly makes any substantial difference whether the Preamble is part of the Constitution or not. The Preamble serves several important purposes. Firstly, it indicates the source from which the Constitution comes, v;z,, the people of India. Next, it contains the enacting clause which brings into force the Con!ltitution. In the third place, it declares the great rights and freedoms which the people of India intended to secure to all citizens and the basic type· of

government and polity which was io be established. Fr<lm aft these, if any provision of the Constitution had to be interpreted and if the expressions used therein were ambiguous, the preamble would certainly furnish ·valuable guidance in the matter, particularly when the question is of the correct ambit, scope and width of power intended to be conferred by article 368. [p. 242].

The contention that the Preamble can be varied, altered and repealed is an extraordinary one. It. QJ.3.Y be tru.e about ordinary statutes but it cannot possibly be sustained in the light of the historic background, the Objectives Resolution which formed the basis of the Preamble and the fundamental position which the Preamble occupies in our Constitution. It constitutes land.mark in India's history and sets out as matter of historical fact what the people of India resolved to do for moulding their future destiny. It is unthinkable that the Constitution makers ever conceived of stag.c when it would be claimed that even the Preamble could be abrogated or wiped out. [p. 242]. ·

Where two constructions arc possible, the Court must adopt that which will C..'lsure smooth and harmonious working of the Constitution and eschew the other which will lead to absurdity or give rise to practical inconvenience or make well-established provisions of existing bw nugatory. The conscqucnccs and effect of suggested construction have to be taken into account as 'has been frequently done by this Court [p'. 244].

State of Punjab v. Ajaib Singh, [1953] S.C.R. 254, 264, Liyanage v. The Queen [1967] I A.C. 259, The Bank of Toronto v. Lambe (1887) 12 A.C. 575, referred to.

It is not for the Courts to enter into the wisdom or policy of p3rticular provision in Constitution or statute, That is ,Jor the Constitution makers or the Parliament or the legislature. But it is well settled that the real consequences can be taken into account while judging.width of the power. The·Court cannot ignore the consequences to which particular constructltin can lead while ascertaining the limits of the provisio_ns granting the power. [p. 245].

The amending body has been created by the Constitution itself. It can only exercise those powers with which it has been invested and if that power · has limits it can· be exercised only within those limits.

Article 368 cannot be so amended as to remove these limits nor can it be amended so as to take away the voice of the States in the amending process. If the Constitution makers arc inclined to confer the full pc>wC1'. of Constituent Assembly, it could have been easily provided in suitable terms. !f however the original power was limited to some extent it could not be enlarged by the body possessing the limited power. That being .so even where an amending power is expressed in wide terms it has to be exerct.cd within the framework of the eon.titution. It cannot abrogate the Constitution or frame ill.new Constitution or alter or change the essential elements of the constitu~tructure. It can-not be overlooked tha~ the basic theory of our Constitution •is that "Pouvoir Constituent" is vested in the people and was exercised for and on their behalf by the Constituent Assembly for the purpose of framing the Constitution. [p. 251 J. •

. The true distinction between controlled and uncontrolled constitution lies · not. merely in the difference. in. the procedure of amendment but in the fact tha1 · in tontrolled Constitutions the Constitution has higher status by whose touch'. stone the validity of law made by the legislature and the organ set up by it is subjea.d to the process of judicial · review.' · Where there is 'e'Ji~n

Constitution which adopts the (irwnble of smereignty in the people then: is, firstly no question of the law-making body being sovereign body, for that body possesses only those powers which are conferml on it. Secondly, however representative it may be it cannot be equated with the people. This is specially so where the Constitution contains Bill of rights for such Bill imposes restraints on that body, that is, it negates the equation of that body with the people. [p. 252].

The meaning of the words "amendment of this Constitution" as used in the article 368 must be such as accords with the true -intention of the Constitution makers as ascertainable from the historical background, the Preamble, the entire scheme of the Constitution, its structure or framework and the intrinsic evidence in various articles including article 368. It is neither possible to give it narrow meaning nor can such wide meaning be given as will enable the amending body to change subsrantially or entirely the structure and identity of the Consti· tu ti on. The concession by the respondents that the whole constitution· cannot be abrogated or repealed and new one substituted supports the conclusion that the widest possible meaning cannot be given to it. [p. 255].

Bribery Commissioner v. Pedrick, (1965] A.C. 172, 193-94, Rhode Island v. A. Mitchel Palmet, 64 L. Ed. 946, /. /.Dhillon v. R. W. Gloss, 65 L. Ed. 994, United States v. William H. Sprague & William /. Howey, 75 L. Ed. 640, 644, Howard /oseph Whitehill, 19 L. Ed. 2nd 228 and Hawi{e v. Smith, 64 L. Ed. 871, referred to.

There is ample evidence in the Constitution itself to indicate that it creates system oi checks and balances by reason of which powers are so distributed that none of the three organs can bccoJ;ne so predominant as to disable the others from exercising and discharging powers and functions entrusted to them. Though the Constitution does not lay down the principle of separation of powors in all its rigidity as is the case in the United States Constitution, it cnvisaaes such separation to degree as was found in RanasingAe's case. The judi.Clal review provide(! expressly in the Consaitution by article 226 and 32 is one ol. the features on which hinges the system of checks and balances. Apart from that the necessity for judicial decision on the competence or otherwise of an Act arises from the very federal nature of Conscitution. The function of inter· pretation of Constitution being thus assigned to the judicial power of the State the question whether the subject of law is within the ambit of one or more powers in lcgislaturej conferred by the Constitution has always been question of interpretation of the Constiaution. It may be -added that at no stage the' respondents contested the proposition that the validity of ,a Constitution amendment can be the subject of review by this Court. Judicial review cannot be undemocratic in our Constitution because of the provisions relating to the appointment of Judges, the specific restrictions to which the fundamental rights are made subject, the deliberate exclusion of the due process clause in article 21 and the affirmation in article 141 that Judges declare but no< make law. To this may be added the none -rigid arncndatory process which authorises by means of two third majority and the additional requiremcot of ratification. [p. 278].

Bribery Commissioner ~. Pedrick RanasingAe, [1965] A.C. 172, Attorney General for the Commonwealth of Australia v. Colonial Sugar, [1914] A. C. 237 and West v. Commissioner of Tara#on (N.S.W.) (1936-37) C.L.R. 657, relied on. Case law discussed.

172, Attorney

The correct approach to the question of limitation which may be implied in any legislative provisions including constitutional document hao to be made from the point, of view of interpretation. It is not novel theory

or doctrine which has to be treated as innovation of those who evolve heterodox methods to substantiate their own thesis. The argument that there arc no implied limitations because there are no exptcSI limitations is • contradiction in terms. The implied limitations can only arise where there arc no express limitations. The contention that no implications can be read in an. amending power in Constitution must be therefore repelled. [p. 279].

The whole scheme underlying the Constitution is to bring about economic and r.ociai changes without taking away the dignity of the individual. Indeed the same has been placed on such a. high pedestal that to ensure &eedom etc. from infringement has been justicfable by the highest court in the land. The dictum of Da~ C.J., in Kera/a Educllhon Bill "points the true picture in which there must be harmony between Parts III and IV ; indeed the picture will get distorted and blurred if any vital provision out of them is cut out or denuded of its identity. [p. 280].

The basic structure of the Constitution is not vague concept and the apprehensions expressed on behalf of the respondents that netither the citizen nor the Parliament would be able to understand it are unfounded.

If the historical background, the Preamble, the entire scheme of the Consti-tution, the relevant provisions thereof including Art. 368 arc kept in mind there can be 110 difficulty in discerning that the following can be regarded as illustrating the basic clements of the constitutional structure :

(I) The supremacy of the Constitution; (2) Repulillcan democratic form of government and soverignty~ the Coon try; ( 3) Secular and federal character of the Constitution ; ( 4) Demarcation of power between the legislature, and executive and the judiciary ; (5) The dignity of indi-vidual secured by the various freedoms and basic righu in Part III and the mandate to build welfare State contained in Part IV and ( 6) The unity and the integrity of the nation. (p. 280].

The 24th Amendment does no more than to clarify in express language that which was implicit in the unamended article 368 ahd it docs not or cannot add to the power originally conferred thereunder.

'fhc entire discussion from the point of view of the meaning of the ec:prcssion "amendment' as implied in article 368 and the limitations which arise by implication leads to the result that the amending power under attidc 368 i• neither narrow nor unlimited. On this footing the ,validity of the 24th amend ment can be sustained if article 368 as it originally -stood and after the amendment is read in the above manner. The insertion of article 13( 4) and 368 and other provisions made will not a!Iect the result, vis., that the power in article 368 i• wide enough to permit amendment of each and every article of the Constitution by way of addition, variation or repeal so long as its basic clements arc not abrogated or denuded of their identity. [p. 281 ].

Sectioo 2 of the 25th Amendment is ••lid

Clause (2) of article 31 as substituted by s. 1 of the 25th Amendment doe. llot abrogate any basic clement of the Constitution nor docs it denude it of it. identity because-

(a) the fiution or the detemiination of the 'amount' under that article has to be based on oorne norm or principle which must be relevant for die purpme of arriving at t1i" amount payable in respect of the property acquind or requisitioned ; :!,-'6 S.C. tlld<-/13

(b) the amount need not be the market value but it should have reasonable relationship with the Value of such property ;

(c) the amount should neither be illusory nor fixed arbitrarily;

{d) though the courts arc debarred from going into the question of the ~dcquacy of the a~ou~t and would give due weight to legislative Judgment, the cxam1natton of all the matters in (a), (b) and (c) above is open to judicial review.

As regards clause (2B) inserted in article 31 which makes article 19(1)(!) inapplicable, there is no reason trJ suppose that for determination of the amounr 'OD. the ~rinciplcs laid do,vn in the law any such procedure will be provided which will be unreasonable or opposed to the rules of natural justice. [pp. 291 292]. ,

Section 3 of Constitution Twenty Fifth Amendment is unconstitutional and involid

The validity of section 3 of the 25th Amendment cannot be sustained because the said article suffers from two vices. The first is that it enables abrogation of the basic clements of the Constitution inasmuch as the fundamental rights contained in articles 14, 19 and 31 can be completely taken away and, secondly, the power of a1nendmcnt contained in article 368 is of special nature which has been exclusively conferred on Parliament and can be exercised only in the ·manner laid down !n that article. The same could· not be delegated to any other legislature in the Country. Section 3 must therefore be declared to be: wnconstitutional and invalid. [ p. 292 J.

The 29th Amendment is valid

Tne question whether the articles included in the Ninth Schedule by that amendment or any provision of those Act abrogates any of the basic elements of die constitutional structure or denudes them of . their identity will have to be examined when the \'alidiry of those Acts comes up for consideration,

Hegde and Mukherjea, /l.

The Constitution 1'wc-nty Fourth and Twenty Ninth. ~mcndments arc v•lid. Section 2 of the Constitution Twenty Fifth Amendment is valid. Section 3 of the Constitution Twenty Fifth Amendment is invalid.

The power to amend the Constitutjon u-lt.Jer"Art. 368 a.r it stood before its amendment empowe~ed, the Parliament by foll<>wing the form an4 manner laid down in that ':Article, to amend each nd et1dy Article and each and every Part of the _Constitutjon.

The view taken in Sankari Pi-asad's case, Saifan. Singh'~ case as well as Gol.alf..nath' s case that the .(>f?r-"Cr .to amend is to be found in article 368 is thC -correct view. It is difficult to accept the view that the power to amend the CPnstitritiOO · is 'not to bC fou'nci even by· necessary implication in article 368 but m~st 'he !ound c1sc\vhere .. Our .Constitutioh .makers, whq were _keenly conscious of the importance of the provision relatiflt~ to the amendment of the .Constitution and .d~bated that question for several days would not have !cf! this in>portant power . :hidden in Entry 'Y7 or ,,ist I leaving it to the of'! cha~ of the, courts locating that power in that Entry. The reasoning in suppo;t of the view fails to give due weight ti>, the fact that the <l!'°!cisc of th~ power under arti<lc 245, 2~6 anc 248 is "sub!l!<:t.' ta ·the·, pt'OV!OJOn$, of ,th!S Constitution". Most amendments of the Const1t\1t1on .must· nccq~rily .un?IJge,

on one or the other of the existing provisions of the Constitution, Article 248 as well as the Lists in the 7th schedule merely deal with the legislative ~wer and not with the amending power. [p. 299].

Article 368 docs not expressly i:onftr the power to amend; the power is necessarily implied in the article.. The Article contains both the power and the procedure for an1cnding the ConstitUtion. The article opens by saying "An a1nend1ncnt of the Con!-.titution" which means an amendment of each and every provhion an<l part of the Constitution. There is nothing in that article to restrict its scope. If article 3~$. is read by itself, there could be no doubt that the power of an1<.:ndr.nent implied in that article can reach each and every article as well as every part of the Coostitutfon. [pp. 299, 300].

Th< exprmion 'law' in Articl< 13(2) <v<n b<for< Art. 13 was ammd<d by the 24th Amendment Act did not include amendments to the Constitution.

Constitution is cxprc.tcd tc endure for long time. Therefore, it must necessarily he elastic. Society cannot be placed in strait jacket. When society grows, it~ requirements change. The Constitution and the laws may have to be changed to suit those needs. No single gcn¢ation can bind the cOurse of generations to come. Hence every Constitution wisely drawn up provides for its own amendment. [p. 305].

To implement the duties imposed on the State' under Part IV, it may be necessary to abridge in certain respects the rights conferred on the citizens or, individuals under Part Ill, as in the case of incorporation ,of .clause 4 in Article 15 to benefit the backward classes and Scheduled Castes and Scheduled Tribes and the amendment of Artkle 19(2) with view to maintain effectively public order and friendly relations \.vith foreign· States. Hence; the ar)lending power should not be construed iri narrow or pedantic ·man&cr~ The .power, must receive broad and libcr~.l interpretation. How large it Should be is' qpcs--tion that requires closer examination. Both on prin~iplc as -well as on the language of Anide 3~ it was impossible to aq::cdc to the contention that no right guaranteed by Part III, can be abridged. [p. '305].

It is not cle:ir why the Drafting Committee deleted the reference to the amendment of the Constitution in Article 13(2). It is possible that they were of the opinion that in view of the plain 'language of' the provision relating to the amendment of the Constitution, that is draft Article 304, it wa·s unnecessary. to provide in Article 13(2) that the amendment of the .Constitution docs not .c.;qme within its scope •

. ThiS Court i11 al~vs reluctant to overrule its ~lier. decisio~s. There must be compciling reasOns for overruling a·n earlier decision of this Court. There are already conflicting decisions as to the scope . of Article 36$. As for back as l~l, in Sankari &asad's case, this Court took. the view .that. the pO~er of amendment confcireq under article. 368 . included· 'in itself the power to abridge a.nd take away the fundamental. right. incorporated in Part 'III of the 'Constitution. ·The correctness of that· view was hot cha1lcngcd:. in several oth~.r de.cisio~S~. ·Th~~ same. V~eW ·wa' taken in S~ii'!n. Singh's 'rJse. ·'That view w~s negatived i.n GOlQknath'.j'c:asc by very .~arrbw majority:, [p. 3061. ·

. ·.One other. circumsiilnccs of' gr~t signifitanec·ifthat the first ·;t;n1en<lmertt to the Constitution was carried out by the prl>V!Sli>nal Par!Wlien~ which. eon' •isted of the very members who were the members of th~ C<instituent Assembly.

It should be ·remembered that members of the Constitucot Assembly continued as the members of the provisional Parliament till the general election in 1952. They must have been :nvarc of the intention with which article 368 was enacted. [p. 306].

Though the power to amend the Constitution untler Article 368 is • very wide power, it does not include the power to destroy or emascuate the basic elements or the fUndamental features of the Constitution.

Since the word ament.hncnt in Article 368 is not word of precise import and has not been used in various articles and parts of the Constitution to convey always the same precise meaning it is necessary to cake the aid of other relevant rules of construction to find out. the intention of the Constitution-makers.

If the nature of the power granted is clear and beyond doubt the fact that it may be misused is '"'holly irrclcva~t. But, if there is reasonable doubt as. to the nature of the powe:: granted then the Court has to rake into consideration the consequences that might ensue by interpreting the same as an unlimited power. Since the word 'amendment' has more than one meaning it is necessary to examine the consequences of accepting the contention of the· Union and the States. [p. 313].

It is difficult to ac\:cpt the contention that our Constitution makers after making in1mrnsc. sacrifices for achieving certain ideals made provisions in the Constitution itself for the destruction of those ideals. There is no doubt as men of experience and round political knowledge they must have known that social, econon1ic and political changes are bound to come with the passage of time and the Constitution must be capable of being so adjusted as to be able to respond to those new demands. Our Constitution is not a- mere political document. It is essentially social document. It is based on social philso· phy and every social philooophy like every religion has two main features, namely, basic and circurnc;tantial. The former remains constant but the latter is subject to change. The core of religion always remains constant but the practices associated with it may change. Likewise Constitution like ours contains certain features which arc so csscntial that they cannot be changed or destroyed. In any event it cannot be destroyed from within. In other words, one cannct legally use the Constitution to destroy itself. Under Article 36S the amended Constitution must remain "the Constituti'on"- whiCh means the original Constitution. \Vhcn we speak of the 'abro~ation1 or 'repeal' of the Constinnion we do not refer to any form but to substance. If one or more of the basic features of the Constitution arc taken away to that extent the Constitution is abrogated or repealed. If some other provisions inconsistent with those features arc incorporated it cannoll still remain the Constitution referred to in Article 368. The personality of the Co. ·•titution must remain unchanged. [p. 314].

It is also necessary to bear in mind that the power to amend the Constitution -is conferred on Parliament, body constituted und"cr the Constitution. The people as such are not associated with the amendment of the Constitution. The Preamble shows it i< the people of this country who conferred this Coosti· tution on themselves. The statement that the people of this country conkrrcd the Constitution on themselves is not open to challenge before the Court. Its factual corrtttncss cannot be gone into by this Court which again is creature of the Constitution. n •• facts set out in the preamble have to be acuptcd hr· this Court u correct. [ p. 315 J.When power to amend Constitution is given to the people its contents can be construed to be larger than when that power is given to body ' constituted under that Constitution. Two-thirds oI the members of the twe Howes of Parliament nrcd not neccasarily represent even the majority of the people of this country. Our electoral system is such that even minority of · vOO:rs can elect more than 2/3 of the members of the either House of Parliament. That is seen from our· c:xpericncc in the ~st. That apart, our Constitution wat· framed on the basi~ of consensus and not on the basis of majority votes. It provides for the protection of the· minorities. If the majority opinion is taken as the guiding factor then the guarantee given to the minorities may )>ecomc valueless. It is wcll~known that the representatives of rhc minorities in the Constituent .Assembly gave up their claim for special protection which they were demanding -in the past because of the guarantee of the Fundamental Rights. Therefore, the contention en behalf of the Union and the States that the two third nujority -·of the members of the two houses of Parliament arc always authorised to speak on behalf of the entire people of this country is unacceptable. [p. 315].

Implied limitations on the power conferred under statute constitute general feature of all statutes. The position cannot be different in the case of powers conferred under Constitution. grant of power in general terms or even in· absolute terms may be qualified by other express provisions in the same enactment or may be qualified by· the implications in the context or even by oonsiderations arising out 0£ what appears to be the general scheme of the statute. Several of the powers conferred under our Constit•Jtion have been held to be subject to implied limitations though those powers arc expressed ift general terms or even iu ~bsolute terms. The amending power is one of ~he powers conferred under the Constitution whatever the nature of that power might be. [pp. 316, 317].

It is clear that the amending power under article 368 is also subject to in1plied H1nitations. The contention that power to amend the Constitution cannot be subject to any implied limitation is negatived by the observations of the Judicial Committee in the Bribery Commissioner v. Rana Singhe. [p. -318].

The position as re~rds the ascertainment of basic clements or fundamental features of the Constitution can by no means be more difficult than the dif& .. culty of the legislature<; to determine before hand the constitutionality of legisla-tion made under various other heads. Argument based on the difficulties likely to be faced by the legislatures arc of very little importance and they arc essen-tially arguments against judicial review. [p. 320].

Under our electoral system it is ·possible for party to get two thir• majority in the two houses of Parliament even if that party does not get an absolute majority of votes cast at the election. That apart, when party goes to election it presents to the electorate diverse programmes and holds out 'Yarious promises. The programmes presented or the promises held out need not necessarily include proposals for amending the Constitution. During the gcntral elections to Parliament in 1952, 1957, 1962 and 1967 no proposal to amend the Constitution appears to have been placed before the electorate, Even when proposals for an1C'ndment of the Constitution arc placed before the c:lcctoratc, as was done by the Congress party in 1971, the proposed amendments arc not usually placed before the electorate. Under the!< circumstances the claim. that the electorate had given mandate to the party to amend the Constttution in any particular manner is unjustified. Further parliamentarydemocracy like ours functions on the basis of the p:lity system. The mechanics of the opcracion of the party system as well as the system of Cabinc~ goyernmcnt are such that the people as whole can have little 'ontrol in the matter of detailed law making. [p. 321]. 11ic assertion that either the majority of the members of Parliament or even two third member~ of Parliament can speak on behalf o! the nation has no basis in fact. Indeed it may he possible for the ruling party to carry through important constitutional amendments even a~tcr it has lost the confidence of the electorate. Members of the Lok Sabha arc elected for !<rm of five years, 1'hc 1uling party and its members may or may not enjoy the confidence of the electorate throughout their time of office ; therefore it will not be correct to say that whenever Parliament amends the Constitution it must be held to have done it as desired by the people. [p. 321 ],

There is further fallacy in the contention that whenever the Constitution is amended we should presume that the amendment in question was made ia order to adapt the Constitution to respond the growing needs of the people. By using the amendment power it is theoretically possible for Parliament to extend its own life indefinitely a<: also to amend the Constitution in such manner as to make it eiLlicr JcJr.lily or practically unamcndable ever afterwards. The power which is capable of being used against the people themselves can-not he considered as power exercised on behalf of the people or in their intere9t.

On careful consideration of the various aspects of the case it must be held that Parliament has no power to abrogate or emasculate the basic clements or fundamental features of the Constitution such as the sovereignty of lndit, the democratic character of our polity, thC unity of the country and the essential features of the individual freedoms secured to the citizens. Nor has the Parliament the power to revoke the mandate to build Welfare State and egalitarian society. These limitation' arc only illustrative and not c:r:baustivc. Despite these limitations there can be no question that the amending power is wide power and it reaches every article and every part of the Constitution to fulfil the obligations imposed on the State. It can also he used to reshape tl-.e Constitution within the limits mentioned earlier to make it an effective instrwncnt for social good. It is not possible to agree- with the ·contention that in order to build J Welfare State, it is necessary to destroy some of the human freedoms. That, :it li.ny rate, is not the perspective of our Constitution. Our C"nstitution envisages that the State should wihout delay make available to all the citizens of the Country the real benefits of those freedoms in democratic way. Human freedoms arc lost gradually and imperceptibly and their destruction is generally followed by authoritarian rule. That is what history has taught us. Struggle between liberty and power is eternal. Vigilance is the price that we, like every other democratic society, have to- pay to safeguard the dcmocradc values enshrined in our Constitution. Even the best of .fOVernments arc -not averse to have 1nore and more power to carry out their plan and programmes which they rnay sincerely believe to be in public inf.crest, but freedom once lost is hardly regained except by revolution. Every encroachment on freedoms sets pattern for further encroachments. Our Constitutional plan is to eradicate poverty \Vithout destruction of individual freedoms.

In the result the contention of the petitioners that the word 'amendment' in article 368 carries with it certain limitations and further that the power conferred under article 368 is subject to certain limitations must he upheld though that power is quite large. [p. 322].

Th< 241h Am.,.Jm.,.t did not . ffllarc• th< amffldinc pow.r o/ Parlia~ent. ·It merely made erplicit what was implicit in ·th~ original ArticltJ Henee it is valid.

Since Article 368 as it originally stood comprehended both power as well as procedu1e to :upend the Constitution, the change effected in the marginal note has no significance. · The power though . described as constituent power still . continues to be: an amending poWer and therefore the content of power has not \!ndergonc any~ change. 1 he power conferred under the original article being lirnited pow~r to amend the Constitution the constituent power to amend Constitution r~erred to in the amended article must also be held to carry with it tPe limitations to which that power was subjected earlier. The new words 'addition', 1variation' or'· 'repeal' only prescribe the modes or manner by which an 'amcndmc~t' may be madd, but they do not determine the scope of the power of 'amendment'.'. The provision in the new article that the President shall not· withhold hi• as9Cllt cannot be said to have damaged or destroyed any basic elementS of the Constitution. In fact under our Constitution the Presi-dent is only Constitutional head. He has to act on the advice of the cabinet. There is no possibility of the Constitution being amended in opposition to the "'ishes of the 'cabinet.

Aniclcs 13( 4) and 368(3) make explicit what was implicit. Parliament . cannot acquire power which it otherwise doca not possess. Clause ( c) to the proviso of article 368 does not confer power on Parliament to enlarge its own power. The : powCr to amend the Constitution as well as the ordinary procedure to an1end any part of the Constitution was contained in the main part of the Constitution. ·The proviso merely places further restrictions on the procedure to amend the Articles mentioned therein. ·Lim.itations on the power to amend the Constitution would operate even when Article 368 is amended. lllnitcd power cannot be used to enlarge the same power into an absolute power. Parliament .cannot do indirectly what it cannot do directly. }ience the mere claim in the statement of objects and reasons to certain power docs not go to· show that Parliament either endorsed that claim or could have conferred on itself such poWer. It must be deemed to have exercised only such powe:r as it pos~sses. It is ~he well accepted rule of construction that if provision is: reasop.ably capable of two interpretations the court must accept that interpreta-tion which makes the provision valid. If the power conferred on Parliament to, dmend the Constitution under article 368 as it originally stood is limited power Parliainent cannct enlarge the scope of that power.

For these reasons the· scope of Parliament's power to amend the Consti:. tu ti on fir any part thereof must be held to have remained as it was before the 24th Amendment notwithstanding the alterations made in the phraseology of Article 368. [pp. 325, 326, 327].

Th< newly substitut<d Articl< 31(2) Jo<S not d<stroy th< right tr1 property -b.cauS< (i) th< fixation of 'amount' und.r that articl< should haV< reasonabl< r.Zationship with th< valu< of th< prop'1'ty acquir.J qr r.quisi• tioned; (ii) the principlu laid down must b< rd<vant fqr th< purpose of arriving at th< 'amount' payabl< in mp.ct of th< propmy acquired or r.quisitioned; (iii) th< 'amount' fixed should not b< illusory; and (iv) the sam• should not b< fi«d arbitrarily.

The question whether the 'amount' in quc.stion has been fixed arbitrarily or the <amc is illuso1Y or 1hc principles laid down for the determination of the same arc relevant to the subject matter of acquisition or requisition as about the

aime when the property in question is acquired or requisitioned arc open to judicial review. But it is no more open to the court to consider whether the 'amount' fixed or to be determined on the buis of the principles laid down i1 adequate, [p. 356].

Clause 2(b) of rh• 25rh Am•ndm<nt Act which incorporaud Arlie/, 31(2B) is also valid as it did not damage or destroy any essential features of th1 Conslitution. [p. 356].

Clause (3) of the 25th AmenJ.ment Act which introduced into the Constitu-tion Artillt 31C is invalid for two reasons i.e. (i) it wa1 beyond the amending power of Parliament in so far as the amendment in question permits Jestruc· tion of several basic elements or fundamental features of C.onititution and (ii) it tmpowtrs the Parliamept and the State Legislatives to pro tanto amend certain human freedoms guaranteed to the citizens by the exercise of their ordinary legislativ. pow.r. [p. 356].

The 29th Amendment Act is valid but the Acts which were brought into the IXth Schedule -by that amendment or any provision in any of them abrogate tany of the basic clements or essential features of the Constitution will have to be examined when the validity of those Acts is gone into. [p. 357].

Ray, /.-The Constitution Twenty Fourth, Twenty Fifth and Twenty Ninth Amendments arc valid.

Law in arlic/e 13(2) means laws .na;:UJ by th< Ugis/atatur< subject to the provj1ions cf the Constiturion. An amendment of the Coostitution is not 'law' tvithin th• meaning of articl• 13(2). Amendment of the Cons-titution is Mn exercise of Constituent power.

The Constitutional mandate in article 368 does not admit or provide any tcopc fa< any conflict with any other article of the Constitutioo. The legality of an amendment is no more open to attack than of the Constitution itself. The opening part of unamended article 368 tliz., "[aJn amendment ot this constitution may be initiated" and its concluding part before the proviso viz., "''the Constitution shall stand _amended" show clearly that the whole con,. titution can be an1ended and no part of the Constitution is excluded freril .amendment. Therein lies the distinction between the Constitution and ordi-nary la\v, The distinction lies in the criterion of validity. The validity .of an ordinary law can be ques.tioned and when questioned it must be justi-fied by reference to higher-law. In the case of the constitution the validity is inhetent and lies within itself. The constitution generates its own validity; the validity lie'! in the social fact of its acceptance by the community. There is clear demarcation between ordinary law made in exercise of legisl3tivc power and constitutional law made in exercise of constituent power. There~ fore, the power to amend constitution is different from the power to amend ordinary law. The distinction bct\veen legislative power and constituent power is vital in rigid or controlled constitution, because, it is that di,. tinction which brings in the doctrine that law ultra vjres the constitution is void. When Parliament is engaged in the amending process it is not legislating; it is exercising particular power which is sui generis lx-:stowed 11rn it by the amending clause in the Constitution. Thus, an amendment <1 the Constitution under article 368 is constituent 'law' and not 'law' within the meaning of article 13(2) and law as defined in article (13)(3)(a). Law in article 13(2) could only mean that law which needs validity from higher source . and which can and ought to be regarded as invalid when it comes in conSict with higher law. It cannot possibly include law which ii self validating and which is never invalid. The distinctio~ ~~c~n constituent and legislative power is brought out by the feature in r1g1d constitution that the amendment is by different procedure than that by which ordinary law may be altered. The amending power is therefore said to be recreation of thC Constituent Assembly every time Parliament amends the Constitution in accordance with article 368. [pp. 364, 365; 374].

View contra in Golaknath v. State of Punjab, [1967] 2 S.C.R. 672, held incorrect.

McCawley v. King, [1920] A.C. 691 and Bribery Commissioner v. Ped· rick Ramuinghe, [1965] A.C. 172, held inapplicable.

Article 368 in the unamended form contains power as welJ as self execut-jng procedures which if followed by the p:·escribed authorities, would result in an 11mn1dment of the Constitution. The power to amend meant the fJOWer to add •lter or repral any provision of the Constitution. The power is unlimited so long di the re.iult is an amended .Constitution, that is to say, an organic instrfli.. rnent which /'1'0vides for the making, interpretation and implementation of Jaw. Under proviso (2) to the unamended article the power of amendment could be increa.sed, There are no express or implied limiiations on the power·· of amendment. There is no distinction ·between essential and non-essen.titlt features of th~ ConstitutiOn to raise any impediment to the exerciie of th< power of amendment. The Preamble does not operate as limitation on th1 power of amendment .

., Amendment is form of growth of the Constitution and the term 4amendment' connotes definite and formal processes of constitutional change. These processes of change are the evolution of the Constitution. The force of tradition and custom and judicial interpretation may all affect the organic structure of the State. The object of amendment is to sec that the consti-tution is pre~rved. Rebellion or revolution is an illegal channel of giving expression to change. The "consent of the governed" is that each genera-tion has right to establish its own law. The people expressed in the Preamble gave the Constitution including the power to amend the constitu-tion to the bodies mentioned in article 368. These bodies represent the people. If Coristitution provides the method of amendment that method alone is 1egal. Any method ·other than the method provided in article 368, as for example, ..convening constituent Assembly or Referendum would be revolutionarr. Article 368 restricts only the procedure or the manner and form required for amendment but not the kind or character of the amendment that may be made. The deliberative and restrictive processe) "!nd 1 procedure. ensure a. change i~ the ~nstitution in an orderly fashion 1n order to give expression to social necessity and to give permanence to the Constitution .. [pp. 374, 392].

. The ~xpr~ssion "amendment of this Constitution" has clear substan· tive mcan1ng 1n t~e ~ontcxt of written constitution and it means that any ~art of '!>~ Constitution can be amended by changing the samr. by varia-tion, add1t1on or repeal. The words 4'amendmcnt .of this Constitution may be initiated" and the words 1'the Constitution shall -stand amended in ac~ cordancc with the terms of the Bill" in article 368 indicate that the wurd

amendment is used in an unambiguous and clear manner. The word' 1amcnd' is used in Constitution to denote any kind of change. The various. amendments which have already been made to the Constitution indicate that. provisions have been added varied or repealed. The meaning and sco.pe ot the amending power j,, in the object and necessity for amendment .tn a. \Vrittcn Constitution i.e. for changing the Constitution in an or?crly man-ner and for making changes in the fundamental law or organic la\V . t.o change the fundamental or basic ~principles in the Co~stitution. The back-ground in which ar.ticlc 368 was enacted by the Constltutcnt Assembly has an important aspect on the meaning and scope of the power of amendment .. The Constituent Assembly made no distinction between essential and non-essential features. No one in the Constituent Assembly said that fundamen-tal rights could not be amended. Even in the debate on. the Constitution: First Amendment Act no one doubted the power of Parliament to amend fundamental rights. Proceedings in the Constituent Assembly show thatt the whole Constitution was . taken in broad perspective and the amendments suggested fell under three categories providing for simple majority, or tw0< thirds majority, or two-thirds majority and ratification by the States. These· different procedures were thought of to avoid rigidity. The conclusion is that the meaning of the word 'amendment' is wide and not restricted •. ·If there arc no limitations on the power it is the whole power. [pp. 391, 396, 397~ 398].There are no inherent or implied limitations on the amending povrer .. The theory of inherent and implied limitations on the amending po\"lrer is based on the assumption of narrow and restricted meaning of the word 'amendment' to suggest that the basic features or the essential features of the democratic republican character of the Constitution cannot be damaged and destroyed. This Court in Berubari case f(1960) 3 S.C.R. 250] said that the Preamble has never been regarded as the source of any substantive power, because such po'vcrs are expressly granted in the body of the Cons-titution. This Court said, 11What is true about powers is equally true about prohibitions and limitations". The petitioner's contention that the Preamble is not part of the Constitution, and so, being unalterable, other provisions which gave effect to the Preamble cannot be amended has no force. The contention that the Preamble is not part of the Constitution is nUllified by the petitioner's reference and reliance on the Preamble as the source of all inherent limitations. The Preamble in Constitution refers to the frame of the Constitution at the time of the Preamble and, therefore, it can possibly have no relevance to the Constitucn.t power in the future when that consti-tution itself can be changed. The position would be the same so far as the preamble is concerned whether the constituent power is exercised by the amending body provided for by the people themselves in the Constitution or by referendum, if so provided for in the Constitution. Clear constitutional provisions nre imperative both on the legislatures and the cour:ts. Where constitutional provision is comprehensive in sco~·and leaves no room for interpretation the Court is without power to amend add to or detract from the constitutional provision or to create exceptions thereof bf implication \Vhere the people express themselves in careful and measured terms in fran'l· ing the Constitution and they leave little to implications, amendments or ch.an~es in the existing order or conditions cannot be left to inserting im-~ltcations by. reference to the. preamble which is an expression of the inten-tion at the time of the framing of the Constitution. The power to arnend' the Constitution is, therefore, not restricted and controlled by the PrCamblc .. [pp. 401, 402, 404, 405].

Berubari call, [1960] 3 S.C.R. 250, t;;opalan v. State of Madras, [1950} S.C.R. 88, Kmla ttlucotian Bill, 1957, [1959] S.C.R. 995, BaJhesh1r Nath v. Th• CJ.T., Dtlhi, ,[1955] Supp. 1 S.C:R. 528, Coal Bming Artas Act cast, [1962] 1 S.C.R. 44, Stat• ~f Rai•stha~ v. Lttla rain, [1965] .1. S.C.R. 276, Stcrttary of State for India in Council v. Mah1ra1ah of Bobbil1, I.L.R. Mad. 529, Attornty Gtntral v. Prine. Ernest Augustus of Hano•ar, [ 1951J A.C. 436 and Htnmng Jacobson v. Commonwtalth of Mauachusettus, 197 U.S. 11 referred to. ,

The theory of implied limitations is subtle attempt t~ annihilate the a~­mativc power. of amendment. The maxim expressum facit cessare tacztum 1• one of the salutary principles of statutory construction. [p. 406).

. R. v. Burah, 3 A.C. 889, Wtbb v. Outrim, [1907] A.C. 89, Fielding v., Thomas, [1896) A.C. 66, Whittman v. Sad/tr, [1910] A.C. 514, referred to.

The entire approach of the pcthioncr to the power of amc~d~cnt . con-tained in article 368 ignores the fact that the object of the Const1tut1on tS , tc> provide £Or the organs of state like the judicature, legislature and the cxecut:ivc for the governance of the Country. Great and wide powers arc conferred ,for the governance by great sovereign countries and such powers cannot be with-held on ihc ground that they may be used externally or oppressively. \".ell settled principles of construction in interpreting constitutions preclude limiting the language of the Constitution by political, juristic or social concepts indcpcn• dcntly of the language of the constitution to be interpreted. [pp. 406, 407].Dttp Chand v. Statt of Uttar Pradtth, [1959) Supp. 2 S.C.R. 8, Quun v. Burah, [1887] 5 I.A. 179, A11ornty Gtntral for Ontario v. Attorn•y Gtntral for Canada, [1912] A.C. 571, Gopalan Cm, [1950] S.C.R. 88, Kuh•an M•dha••~ Menon v. State of Bombay, [ 1951 J S.C.R. 228 and Bmoari Lal Sharm• case, 72 I.A. 57, rcfcfrcd to.

All provisions, 0£ the Constitution arc essential and no distinction can IJe. m<!dc between essential and non-essential features from the point of view of amendment unless the makers of Constitution make it expressly clear in the Constitution itself. The theory of implied and inherent limitation!! cannot be allowed to act as boa constrictor to the clear and unambiguou!I power af amendment. When certain restrictions arc imposed in article 368 it is not in· tended that other undefined restrictions should be imposed by implication. The provisions Of the Constitution, in the Hght of historical background and special problems of the Country will show that no provision can be considered non· essential. The character of the provisions which are ,amendable under the ~rovisq to article 368 itself shows that the petitioner's submission that cssen· tzal features arc unamcndablc is baseless vision. To find out essential or non-essential features is an eXercise in irqponderables. If there are no indicationr in the Constitution as to what the essential features arc, the task of amend· mcnt of the Constitution becomes an unpredictable and indeterminate task. There must be an objective standard by which it can be predicted as to what is essential and what is not csseniial. If Parliament cannot judge these features Parliament cannot amend the Constitution, [pp. 407, 408, 409, 410].

There is no foundation for the analogy that just as Jucigcs test reason· ablcncss in law the judicial mind will find out the essential features on the test of reasonableness. Reasonableness in law is treated as an objective criterion.

The crucial point i1 that

hccausc reason inheres in man as rational being. The crucial point i1 that in_ contradistinction to the American Constitution where rights arc couched in wick j,?encral terms leaving it to the Courts to evolve necessary limitations, our Constitution limited it by precise words of limitation. [p. 410].

Gopalan case, referred to

When article 368 speaks of changes in the provisions of the Constitution/ as arc set out in els. (a) to {d) of the proviso it is manifest that the makers .. of the Constitution expressed their intention with unerring accuracy that fca~· lures which can broadly be described as federal features, and from that point · of view essential features, could be amended. The proviso confers that_ power with relation to the judiciary, die executive and the legislature, none of which could be said to be non-essential. The contention about unamendability of essential features do not take into consideration that the extent and character oi any change in the provisions of the Constitution is to be determined by legislatures as amending bodies under article 368 and as representatives of the people in democracy and it is not the function of the courts to make any such determination. (pp. 411, 412]. The 24th amendnlent made explicit what the judgment in Shankari Prasad and the majority judgment in Sajja• Singh and the dissenting judgment in Golak Nath said, namely, that Parliament has the cons'tituent power to amend the Constitution. Certain obscrvatious in Golaknath raiScd doubt as to the meaning of the word 'amendment'. The 24th am~ndment has expressly clarified that doubt. [p. 413]. .Article 368 in the unamended term contained power as well as self execut· ing procedures which if followed by the prescribed authorities would result in an amendment of the constitution. The ··-words 11Constitution shall stand amend-ed" in article 368 will exclude simple repeal, that is, without substituting any-thing in place of the repealed Constitution. An amendment of the Constitu-tion is an amendment of some thing which provides system according to which state or nation is governed. {p. 414].

An amendment of the Constitution is to make fundamental changes in the Constitution. Fundamental or basic principles can be changed. However radical the change the amendment must provide for the mode in which the:: state is constituted or organised. The. power of amendment is unlimited so long as t~e resul~ is an amended ~on~titution, t~at is to say, an organic instru-n1ent '-'[1]h1ch pro.vides for the making interpretation and implemen_tation of law. [p. 415]. The question whether under proviso ( e} to the unamended article 368 the power of amendment could be increased has to be answered in the affirmative. First, under article 368 proviso ( e) any limitation on the power of amendment alleged to be found in any other article of the Constitution can be removed. Secondly, judicial decisions show that by amending the article conferring the power of amendment greater power to amend the Constitution can be obtain-ed than was conferred by the original article. Thirdly, the power to a.mend the amending power must include the power to add, alter or l'!Cpcal any part of that article and there is no reason why the addition cannot confer power of amendment which the authorities named in article 368 did not possess. [pp. J!l5, '416].

Ryan's case, [1935] Ir. Rep. 170 and Ranasinghe's case, [1965] A.C. 172, f'eferred to.

The contention that the people reserved the power to themselves 'to amend the essential features of the Constitution and if any such amendment were to be made it should be referred to the people by refrcndum is without merit. If essential features could be amended by the people the very fact that the Constituent Assembly did not include referendum- as one of the methods of amendments and the fact that the Constitution -makers excluded no part of the Constitution from amendment establishes that the amendment of written Constitution can be legally done only by the method prescribed by the Consti-tution. If the method of referendum be adopted for the purpose of amendment that would be extra-constitutional or revolutionary. The amending body repre-sents the will of the people. Therefore as long as article 368 may be amended under proviso ( e) any amendment of the Constitution by recourse to referen-dum would be revolutionary. The concept of popular sovereignty is well settled in parliamentary democracy and it means that the people express their will th.rough their representatives elected by them at the general election as. the amending body prescribed by the Constitution. [p. 418]. TJaerc is intrinsic evidence in the provisions of Part III itself that our Constitution docs not adopt the theory that fundamental rights arc natural right> or moral rights which every human being is at all times to have. The basic concept of fundamental right is social one and it has social functiona These rights arc conferred by the Constitution. The nature of the restrictions. on fmdamcntal rights shows that there is nothing natu.ral about those rights. The Constitution is the higher law and ·it attains form which makes possible the attribution to it -of an entirely new set of validity, the validity of statute emanating from the soverign people. Invested with statutory form and imple-mented by judicial review the higher law becomes juristically the n1ost fruitful foe the people. [p. 419, 421].

BASheshar Nath v. CJ.'f., Delh~ [1959] Supp. I S.C.R: 528, referred to.

If the power of amendil)ent of the Constitution is co-extensive with the-power of the judiciary to invalidate laws, the democratic pr0ttss anO the co-ordinate nature of the great departments of State arc maintained. The process· harmonises with the theory of our Constitution that the three great depart-ments of' State the legislature, the judiciary and the exo:;utive arc co-ordinate and none is superior to the other. If the power of amendment does not con-tain any limitation and if the power is denied by reading into the Constitu-tion inherent limitations to. extinguish the validity of all amendments on the principle of csscn~I features of the Constitution which arc undefined and· unttrmed, the Courts will have to lay down new Constitution. The framers of the Constitution ~id. no~ put any limitation on the amending power because the end of Constitu!lon IS the safety, the greatness and du~ well-being of people. Changes in the Constitution serve these great ends and carry out the real purposes of the Constitution •. [pp. 422, 423].

'The doc!rine of ronscquences has no application in ronstruing grant of power ronfcrred by Constitution. 1be argument that the O>nstitutioa of India could be subverted or dcstr?Ycd .,Uight have hortativc appeal but it is not "!'!'portable by the a~ expcflcncc in our ~ntry. The two basic postu-lates ID democracy are faith ID human reason and faith in human nature. There is no hi11hcr faith than faith in the aClllOCrltic process. Bctwccn 1951 when this Court rcc.opiicd in Shinklri PNJllJ unlimit<d power of. ainendment till

.Golaknath decision in 1967 the normal democratic process functi~cd .;ts pro-·vided by the Constitution. In considering gr~t of power the wides~ mean-ing should be given to the words of the power 1Il order to· effc_ctuate 1t fully. The two exceptions to this rule are : first, in order to reconolc powers cx-,c:lusively conferred on different legislatures, narrower meaning ca~ be g~ven .to one of the powers in order that both may operate as fully a.t is possible. Second, technical terms must be given their technical meaning even thoug? it is narrower than the ordinary or popular meaning. The theory of conscquen-. ce:.: i! misconstrued if it is taken to mean that considerations of policy, wis-dom and social or economic policies arc included in the theory of consc.qucnccs. If power is conferred which is in clear and ambiguous language and docs not admit of more than one construction there can be no scope for narrowing the clear meaning and width of the power by .considering the consequences of the exerciSC' of the power and by so reading down the power. The very :basis of parliamentary democracy is that the exercise of power is always sub-ject to the popular will and control. The theory of implied and inherent lirnita· ·tions is repudiation of this democratic process. [pp. ~24, 425, 426].

Vacher & Sons v. London Soci.iy of Composirors, [1913] A.C. 107, C. P. & Berar case, [1938] F.C.R. 18, Province of Madras v. Governor-General, 72 I.A. 93, State of Madras v. Gannon Dunkerley & Co. (Madras) Ltd., [1959] S.C.R. 379, Attorney General for Ontario v. AttC»'ney General for Dominions, [1912] A.C. 571, Bank of Toronto v. Lambe [1887] 12 A.C. 575, Bihar Land Reforms case, [1952] S.C.R. 889, Grundt case, [1948] Ch. 145, Rori v. lllison, [1930] A.C. l, Demscl/e Howard v. I/Unoi1 C1'11tral Rail Road Co., 207 U.S. 463, Lochner v. New York, 198 U.S. 45; 49 L.Ed. 937, referred to.

The amending provisions in the Constitutions of the United States, Canada, Australia, Ireland and Ceylon and judicial decisions on the power -of amend· ment in those Countries do not lend support to the submissi.ons that rest-ricted meaning should be attributed to the word 'amendmcne and that implied and inherent limitations should be read into the meaning and power of amend· ment. [p. 426].

Rhoile Island v, Palmer, 253 U.S. 350; 64 1. Ed. 947, Hawke v. Smith, 253 U.S. 221, Lesser v. Garnett, 258 U.S. 130, United States v. Sprague, 222 U.S. 716, referr~d to.

Initiative and Referendum case, [1919] A.C. 935, Switzman v. Elbing, 1957 Canada La_;v. Reports 285, Rer v. Hess [1949] 4 Dominion Law Reports 199, Saumur v. City of Quebec and Attorney G1'11cral of Quebec, [1953] D.L.R. 641, Chabot v. School Commissioners of La.morandiere and Attorney General for Quebec, [1958] 12 D.L.R. 796, Hodge v. Queen, 9 App. Cas. 117, Re Alberta Legislation, [1938]. 2 D.L.R. 81, Taylor v. Attorney General of Queensland, 23 C.L.R. 457, Victoria v. Commanwealth, 45 Australian Law Journal 251 Amal-gamated Society of Engineers v. Adelaide Steamship Co. ftd., [1920] 2S C.L.R. 129, Moore If'" Ors. v. Attorney General for the Irish Free State & ()rs,, Jl935] A.C. 484, Liyanage v. Queen [1967] l A.C., 259, Kariapur case, [1968] A.C. 71~, Ranasinghe c~se, [.1965] A.C. 172, lbrclebbe case, [1964] A.C. 900, ex· plamed and held mapphcable. ·

The word "amount" in article 31(2) after the Twenty Fifth Ame»dmcnt means ~ sum. of money. The, prin_ciple which tnay. he acted .upon Ir; the legi~ lature tn fix•nt t/Je amou'lft m11y include considerations of social juitice. f11r1,

ill and Part JV of the Constitution touch and modify each other. The ade--quacy of amo#nt fixed on the principles specified or the manner as. to hocv _such amount is to be given otherwise than in cash -:annot be the sub1ect mutter .of iudicial review-Article 31(2) is self contained and articles 31(2) and 19(1) (f) are mutually exclusive-Article 31(2) is to be read with articles 31A. -31B and 31C-Article 31C is an application of the princJ'ples underlying articl~s 31(4) and 31(6) and 31A to the sphere of industry-The article creates a.legis-J11tive field with reference to the object of legislation. In removing restnctwns ·Of Part Ill in respect of latv undt-r article 31C there is no delegation of any power to amend the Constitution-Courts can go_ into th~ g~estion_ '!"heth~r legislation containing declaration has nexus tvtth the directive prinetples in .article 39(b) and (c).The framers of the Constitution envisaged social structure which would .avoid the acquisitive economy of private capitalism and the regimentation . of ·totalitarian State. The Constitution -was framed with the object of effecting social revolution and the core of commitment to social revolution lies in Part Ill and Part IV of the Constitution. The directive principles are also funda-mental and they can be effective only if they arc to prevail over the funda-mental rights of few in order to subscrve the common good and do not allow the economic system result in the common detriment. fundamental right may be regarded as fundamental by one generation; it may be consi--dered to be inconvenient limitation upon legislative power by another. Popu-lar soYcreignty means that the interest which prevails must be the interest of the mass of men. If rights are built upon property· those who have no pro-perty will have no rights. Therefore the state has to balance the interest of the individual with the int<rest of the society. [pp. 441, 445]. The word 'amount' in article 31(2) after the Twenty fifth Amendment is to be read in the entire c~llocation of words. In article 31(2) the use of the word "amount" in conjunctiQn with payment in cash sho\VS that sun1 _ of money is being spoken of. The quantum cannot be matter of judicial re-view. If the legislature docs not fix the amount but specifics the principles for determini~g the amoun~ the relevancy of the principles cannot be irn-pugned nor can the reasonableness of the principles be impeached. Any attempt to find out :as to v.·hy · the particular amount is fixed or how that amount has .been fixed by law will be examining the adequacy which is forbidden by the Constitutional m2.Ildate. The quantum of the amount if directly fixed by the law and the principles for its quantification arc matters for legislative judg-ment. In fixing the amount the legislature will act On the . general nature of the legislative· pD\YCr. _ The principle which may be acted upon by the legisla-ture ,in fixing the -amount may include considerations of social justice. Con-siderations of soc~l justice . will incl1J:dc the relevant directive priiiciple, parti-cularly .under article 39(b) ·a.nd (c). Article 19(1~(£) is excluded from article 31(2) m order to m.ake article 31(2) self contained. The right to hold pro-perty ca.nnot_.~o-cxi.st. with the rig~t of ~e state to acquire property. That is why article 31(2) is to be read with articles 31A, 31B and 31C all the articles being under the h<ading "Right to property". [pp. +17, 448]. '

There w;is_ no flexibili~- of. social interest _in article 31(2) as it originally stood. Every ,c~ncCpt of social. interest became .Irrelevant by the scope of. article n(2}. It is this miSthief which was sought to be remedied by the. 25th Amendmel)-t. Part III an.d IV of the' Constitution touch ,arid modify each other~ They are l)~t parallel to each other. Diflcrent legislation. will bring in different social printiples; ThC.C will not be permi,.il>le without social content operating

in Bex~bl~ manner, That is why in the 25th Amendment article 31(2) is d-ed to ehmmate the concept of market value £or pr ty .,.L . ~den rcquis1t1onc . · · · If compensation tncans an amount de•·· · opcr wuu.:u 11 acqwrc · · '-oJ· social · ti th ·11 be · =mme on prmc1pies o JUS ce ere WI general harmony between Parts Ill and JV, [p. 455].

Dissenting view in the Bank Nationalisation case, affinp.ed.

F. N. Rana v. State of Gujarat, [1964} 5 S.C.R. 294 and S. N. Nantli v. State of West Bengal, A.LR. 1971 S.C. 961, referred to.

The pre.eminent feature of article 31C is that it protccu only law. Law in article 31C must have the same meaning as it bas in other articles, gene~ rally, namely, statute passed by the legislature. The article is inextricably bound up with article 39(b) and ( c) because the purpose and the phraseology in both the articles are essentially identical. Law contemplated in article 31C will operate on the ownership and control of the material resources of the com~ munity to be distributed as best, tcT subservc comrilon good. In order to decide whether statute is within article 31C the Court may examine the nature and character of legislation and the matter dealt with as to whether there is any nexus of the law to the principles mentioned in articles 39(b) and. {c). If .it appears that there is no nexus between the legislation and the Objectives and principles mentioned in article 39(b) and (c), the legislation will not be within the protective umbrella. The Court can tear the veil to decide the real nature of the statute if the facts and circumstances warrant such course. [pp. 450, 451, 452].

The moson for excepting Articles 14, 19 and 31 from article 31C is the same as in article 31A. The exclll9ion of article 14 is to evolve new principla of equality in the light of the directive principles. The exclusion of article 19 is on the footing that laws which ate to 1ive effect to directive principles will constitute reasonable restrictions on the individual's liberty. The exclusion of Article 31(2) is to introduce the consideration of aocial justice in the matter of. acquisition. Directive Principles arc not limited to agrarian rcfomu. · Directiw Principles are necessary for the uplift and growth of industry in the Country. [p. 452].

Article 31C creates legislative field with reference to the object of legisla-tion. The article substantially operates in the same manner in the industrial sphere a• article 31A operates in the agrarian sphere. The problem. arc similar in nature though of di£!i,rent magnitude. The article is an application of the principles, underlying articles 31(4) and 31{6) and 31A to the sphere of industry [p. 453].

Jn removing restrictions of Part Ill in respect of law under articl~ 31C there is no delegation of any power to amend the Constitution. M .....tr of the 25th ;mendment the existing legislative field is £reed from the fetten of some provisions of Part III on the legislative power. class of legislation can be identified and the legislative field can be carved out from the <>peratlolr of fundamental righu or. some of those can be excluded by provision of the Constitution. The entire process of ~ of the legislative field from the orration of some of the articles relating to fundamental righu is the manda• o the Constitution. [pp. 453, 454 ].

The successive amendmenu of the Constitution mordy carried out the principle embodied in article 31 clauses ( 4) and ( 6) that i.pialioa designed to secure public good and to implement the difecti•et unolrt atticle 39(b) and ( c) •hould have priority over individual rights and cltal t1-fcrc fundamenr.i rights were to be suborcfm= to Oit'eCtlves Oii S- ,..U.,.. {p 4~}.

The <onclusivene,. of the declaration ini.·oduccd by the Twenty-fifth Amendment in law unda article 31C is to be appreciated in the entire context of article 31C. The· declaration is for the purpose of excluding the process of evaluation of: legislation on consideration of the virtues and defects with View to seeing if the laws have led to the result intended. If a- question arises as to whether piece of legislation with such declaration has nexus with the directive principles in article 39(b) and (c), the Court can go into the question for the purpose of identification of the legislative measure on consi~ deration of the scope and object and pith and substance of the legislation. [pp. 458, 459)

State of 'West Bengal v. Bela Banerjee, [1954) S.C.R. 558, Dwarkadas Shri-nivas v. Sholapur Spg. & W•g.'Co. Ltd .. [1954) S.C.R. 674, Babu BarkJa Thakur v. State of Bombay, [1961) I S.C.R. 128 and Smt, Somavanti l!t Ors. v. The State of Punjab, [1963) 2 S.C.R. 774, referred to.

The inclusion of Kera/a Act 35 of 1969 and the Kera/a Act 25 of 1971 in the Ninth Schedule by the Constitution Twenty Ninth Amendmrot u valid-Article 31B is independent of article 31A.

(Mathew, )., concurring) : The validity of the Twentyninth Amendment lies within ~ narrow compa9S. Article 31B has lfcn f<"ld by this Court to be valid amendment. It has also been held to be an inllependent provision. The ~rticle has no connection with article 31A and, therefore, the contention cannot be accepted that before the Acts can be included in the Ninth Schedule the require-ments of article 31A arc to be complied with. [p. 460)

Jeeji' Bhoy v. Assistant Collectar, [1965). I S.C.R. 616 and Bihar Li.ntl Reforms ease, [1952) s,C.R. 889.

J•ganmohan Reddy, J.: The Constitution Twenty Fourth Amendment is valid. Section 2 of Constitution Twenty Fifth Amendment is valid. The new article 31C introduced by Constitution Twenty Fifth Amendment is .valid only if the words "inconsistent with or takes away or", the words "Article 14'" and the declaration portion are severed. The Constitudon Twenty Ninth Amondment is valid. [pp. 555, 556)

What the leading majority in Golaknath did not decide was whether article 368 it>Clf could be amended under the proviso of that article conferring power to amend the whole constitution. "The ratio of the decision in· the Goltzknath case is that an amendment under article 368 is 'law' within the meaning of article 13(2) and tllat under Article 368, Parliament could not amend the Constitution to take away or abridge any of the fundamental rights conferred by Part III uf the Constitution. That question will ,assume importance if this Court comes to the conclusion that Parliament cannot amend art. 368 under proviso (e) thereof to take away or abridge any of the fundamental rights or amend article 13(2) making it subject to an amendment under article 368. If such power exists, the question whether an amendment in article 368 is 'law' within the meaning of article 13(2} may not prima faci~ be of significance. There arc, two aspects to this problem. First, whether 'law' in article 13(2} includes an amendment of the COnstitution under article 368; and secondly if this Court holds that 1aw' in article 13(2) does not include' an amendment under article 368, then the question would· be, has the Constitution Twenty Fourth Amcndm.;nt, purported to exercise power not granted under article 368; or, in other words, arc there any implied limitations to the amending power under Article 368. [pp. 462-'180] 3-36 S.C. lndla/13On the construction filaced on articles 12, 13 and other provisions of Part Ill ~nd a;,ti~le 36~, article 1~(2) does. not place an embargo on article 368. !Aw tn artzd~ 13(2) ts that wluch may be made by the ordinary legisla· ttve organs. [p. 480 J

Article 13(2) does not place an embargo on article 368 for amending any rights in Part Ill. To limit the extent and ambit of the power under article 368 in which there is no reference to law, by including within the ambit of the definition of law in article 13(3)(a) for purposes of article 13(2) an amendment effected under article 368, is to restrict the power of amendment by strained construction or to impute to the framers of the Constitution lack of respect to the amending power by making the bar of article 13(2) applicable to it by mere implication when in respect of minor instruments they were careful enough to include them in the definition of 'law'. consideration of the conspectus of the various rights in Part III when read with article 13(2) would prohibit the taking away or abridging of these sights by law made by the Parliament, by the legislature of State, or by executive action. This conclusion v1ill be substantiated if article 13(2) is read along with each of the articles in Patt Ill. The object of incorporating article 13(2) was to avoid its repetition in each of the articles conferring fundamental rights. Jn reading the articles in Part III with article 13(2) the words 1law' 'in accordance with law' or 'authority of law' clearly indicate that 'law' in article 13(2) is that which may be made by the ordinary legislative organs. The assumption of Hidayatullah J. in Golaknath that the word 'State' in article 12 would mean all the agencies of the Govern· ment jointly or separately is not justified. The prohibition in Article 13(2) is against each of them acting separately. The framers of the Constitution distin· guished the 'Constitution' from 'law' or 'laws' making evident their intention by using the word 'law' in contradistinction to the 'Constitution' indicating thereby that the word 'law' wherever referred to mean only, ordinary l.egisla· tive la\v, while 'Constitution' means somCthing distinct from it. Article. 13(2) has .a purpose and that purpose is to emphasize the importance and the commanding position of the fundamental rights. (p. 480]The Court, in constitutional matter, where the intent of the framers of the Constitution as embodied in the written Constitution is to be ascertained, should look into the proceedings and the relevant date including any speech which may throw light on ascertaining it. Unlike statute, Constitutio!1 is working instrument of Government; it is drafted by people who wanted It to be national instrument to subserve successive generations. The various stages of the Constituent Assembly proceedings, while considering the draft articles 8 and 304, corresponding to articles 13 and 368 respectively, woll:ld show t~at attempts were made to introduce amendments to both these articles to danfy that the embargo in article 13(2) does not apply to an amendment. made under article 368. Besides, it would appear from the proviso to draft article 8. before it was deleted, if read with clause (2) of the a.rticle, as also from the note showing the purpose for which it was incorporated that . the law referred to therein was legislative law. It could not by any. stretch of language be co-?s--trUed as including an amendment under draft a.rttde ~04, bc;causc, the proviso was making the restriction in clause (2) of article 8 1nappltcable to the State from making any la~ for the removal. o~ any inequ~lity, ?ispari1[ty, ][~isadvanta~c ]or discrimination arising out of any existing law. If State ~nd law have ~ be given particular meaning in the proviso the same mean.1ng has to be. riv.en to th'em in clause (2) and since the proviso, clearly envisages .a lcgis at.Ive law it furnishes the key to th~ interpretation ?f the _word law 1n cl. (2) of draft article 8 that it is also legislative law that 1s therem referred. (pp. 475-480]

(On ~ view taken and having rzgard to the maJonty decision in Golaknath that the power of amendment is to be found in article 368 itself his Lordship did not consider it necessary to go into the question whether :he leading maiority in Golaknath was right in finding the power of amendment in the residuary entry 97 bf List I of Schedule VII]. [p. 480]

Sankoiri Prasad v. Urtian ff India & State of Bihar (1952] S.C.R. 89; Saijan Singh v. State of RajtMthan; [J96J] (1) S.C.R. 933, Gopalan v. State of Madras (1950 J S.C.R. 87 referred tO.

The word 'amendment' iq Att. 368 docs not include repeal. Parliament could amend Art. 368 and Art. 13 and also all the fundamental rights. Though the power of amendment is wide, it is not wide enough to totally abrogate or cm3sculatc or damage any of the fundamental rights or the essential clements in the basic structure of the Constitution or of destroying the identity of the Constitution. Within· these limits, Parliament can amend every article of the Constitution. Parliament cannot under Art. 368 expand irs power of amendment so as to confer on itself the power to repeal or abrogate the Constitution or damage, emasculate or destroy any of the fundamental rights or essential elements of the basic structure of the Constitution or of destroying the identity of the Constitution. The Twenty fourth Amendment has not changed the nature anQ scope of the amending power as it existed before the Amendment. (pp. 497-512]This Court has during the last over two decades forged an approach of its own and set out the rules applicable to the interpretation of the Con~titution. There is no constitutional matter which· is not in some way or the other involved with political, social or economic questions and if the Constitution makers have vested in this Court power of judicial review, and while so vesting, have given it prominent place describing it as the heart and soul of the Constitution this Court will not be deterred from discharging that duty merely because the validity or otherwise of the legislation will affect the political or social philosophy underlying it. The basic approach of this court has been and must always be, that the legislature has the exclusive power to determine the policy and to translate it· into law, the constitutionality of which is to be presumed. In this regard the legislature, the executive, as well as the judiciary are bound by the paramount instrument. The bona fides of all the three of them has been the basic assumption and though all of them may be liable to error it can be corrected in the manner and by the method prescribed under the Constitution and subject to such limitations as may be inherent in the instrun1ent. When Courts declare law they do not mortgage the future with intent to bind the interest of the unborn generations to come. The Courts have duty and h3.ve indeed the-.power to re-examine and re·state the law vvithin the limits of its interpretative function in the fulness of the experience during \Vhich it was in force so that it conforms with the socio-economic change and the jurisprudential outlook of that generation. The difficulty which foreign cases or even cases decid'ed within the Commonwealth, where the common Law forms the basis of the legal ·structure of that unit, is that they are more often· than not concerned with expounding and interpreting provisions of law which are not in pari materia with those we arc called upon to consider. The problems which confront those courts in the background of the state of the society! the socia~ and. ccopomic set up, tI1C requirements of people with totally different ethic, philosophy, temperament and outlook differentiate them from the problems. and out}ook which confront the courts in this country. It is not case of shutting out hght where that could profitably enlighten and benefit us •. The concern is rather to safeguard against the possibility of being blinded by it. [pp. 4,85-4"87]

In re. The C•ntral Provinces and Berar Act No. XIV of 1938 [1939] F.C.R. 18, Special Reference I of 1964 [1965] I S.C.R. 413, at 487 referred to.

The facts that the Preamble professed in unambiguous terms that it ;., the people of India who have adopted, enacted and "given to themselves tht. Constitution"; that the Constitution is being acted upon unquestioned for the last over twenty three years and every power and authority is purported . to be exercised under the Constitution; and that the vast majority of the people have, acting under the Constitution, elected their representatives to Parliament and the State legislatures in five general elections, make the proposition indisputable that the source and the binding force of the Constitution is the sovereign will of the people of India. 0<1 this assumption no state need have unlimited powet and indeed in federal politics no such doctrine ;., sustainable. [p. 494) ·The amending power is facet of the Constituent power but not the whole of it. The power under article 368 after the amendment ;., still described as amending power. The Twenty Fourth Amendment makes this explicit because it did not want a. doubt to linger that because the same body, namely, Parliament makes both the ordinary law in terms of the grant in article 245 to 348 an.cl an amendment in terms of article 368, it should not be considered that both these are legislative law within the meaning Of art. 13(2). On the view taken that article 13(2) is confined only to the ordin"l)' legislative laws and not one made under article 368, the addition of clause · (1) to article 368 in so far as it declares that when Parliament exercises the power un4cr that provision, it exercises its ccinstitucnt poWer and makes u:plicit what was implicit. The amendmeot, therefore, makes no change in the position which prevailed before the amendment. It is not DCCC"'"')' to consider the q11Cstion of the existence or non-existcnc.c of implied or inherent limitations, bcca\lSC if the amending power is wide and plenary, those limitations can be ovC1ITiddcn as indeed the non-ob slant. clause in the amended clause (I) of article 368 was intended to subserve that <"1d. What has ID be considered is whether the word tamendment' is wide enough tO' confer plenitude Of power including the power to repeal or abrogate. The outstanding question, then is, what is ~e meaning of the word 'amendment' ?-whether it has wide or restricted meaning, whether it includes repeal or revision and whether having regard to the other provisions of the Constitution or the c.ontext of the word 'amendment' in article 368 itself it has restricted meaning, so as not to roofer power to damage or destroy the essential features of the Constitution. If the word 'amendmeot' has restricted meaning, has that power been eolargcd by the use of the word• "amend by way of addition, variation or repeal" or do dtcy mean the same u amendment ? If they arc wider than amendment, could Parliament in cxcrcioe of its amending power in article 368 enlarge that power I [pp. 495, 496]

It is necessary ID ascertain from the background of our national aspirations, the objectives adopted by the Constituent Assembly as translated into worliing organic instrument which established sovereign democratic Republic with Parliamentary system of Government, whcreunder individual rights of citizens, the duties 1Dwards the community which the State wa< enjoined to discharge the diffusion of legislativ< power between Parliament and State Legislatures and the provision for its amendment, etc, are provided tor. All tht:se. aspects were sought to be well balanced as in ship built for fair weather as wcll as for foul, Thi• then will Ix: the proper approach •. The recognition of the trWsia that power corrupts and a~oolutc power corrupts absolutely has been the wt.dam that made practical men of cicpcricnoe in not only drawing up written cons-titution limiting power of the legiolativc organs hut in s«UNnt to all citizens

certain basic rights against the State. If the faith in the rulers is so great and the faith in the people to curb excessive exercise of. power or abuse of it is "" potent, then one needs no elaborate Constitution, because, 11ll that is required is to make Parliament omnipotent and omni-sovereign. This the framers did not do and hence the question will be wheJier by an amendment under Art. 368 Parliament can effect metamorphosis of power by making itself the supreme sovereign. It is against abuse of power that constitutional structure of power relationship with checks and balances is devised and safeguards provided for whether expressly or by necessary implication. The question is whether there are any such in our constitution, and if so, whether they can· be damaged or destroyed by an amending power. (pp. 506, 507]The substitution of the word "'amcndm.cnt' by the expression 1amcnd by way of addition, variation or repeal' maK.Cs no difference as it bears the same meaning as the word "amendment". It is apparent from the meaning of the' word 11amcndment" that it does not include repeal or abrogation nor is it the same as revision. repeal of provision of. law is different from the repeal of the law itself. The Constitution itself has, in various articles, made distinction between the amendment of the law and repeal of .the law. The word 'amend-ment' as used in article 368 does not connote plcntitudc of power. The word, read with the other provisions, indicates that it is used in the sense of empower-ing change in contradistinction to destruction which repeal or abrogation would imply. Art. 368 empowers only change in the Constitution as is evident from the proviso which requires that where the provisions specified in . clauses (a) to (e) have to be amended they have to be ratified by thP resolution of not less than one half of the Legislatures of the States. This proviso furnishes key to the meaning of the word 'amendment' that they can be changed without dcstroving them jusu the same way as the entire Constitution cannot be abrogated :ttid new Constitution substituted therefor. The amplitude of the power of amendment in Art. 368 cannot be enlarged by amending power under proviso ( e) to Art. 368. [pp. 508 to 512]

Goiaknath v. State of Punjab (1967] 2 S.C.R. 762, Queen v. Burah, 1877-78 P.C. 179 referred to; Rhode Island v. Palmer (National Prohibition Case) 64 L. ed. 946 explained.

If the entire Constitution cannot be abrogated, can all the provisions of the Constitution leaving the Preamble, or one article, or few articles of the original Constitution .be repcabl and in . th~ place other prov~sion~ ~placed, v1hcrcby the entire structure of the Coosa.tun.on, the power rclanonsh1p inter se three Departments, the federal character of the ~tau;, "?d the rights .of t.hc citizens vis-a~vis the State arc abrogated and new mstJ.tunons, power relationsh1ps and the fundamental features substituted therefor I Such an attempt would equally amount to abrogation of the Constitution, because any such ,ev;;cise of the ~er will merely !cave the husk and will .amount to the subsl:!tutton of an cnttrely new Constitution which it is not denied, cannot be done under art. 368. (p. 512]

The Preamble to the Constitution dcclareo the purposes and objectives which the Constitution is intended to subservc. The Preamble ~ill furnish guide to the construction of the statute wh<rc the word~ are ~bi~us or elcavend where the words are unambiguous to aid comtruetton which ~ ~O! to absurdity. W)icrc ~·preamble c~vcys c~vcys clcai; and definite ~d'J..i:e w:'~ w:'~ , prevail over the cnact.tng words which are relau~cly oblCUtC or "! which fits the words are capable of more than one constrUCllOll, the constrUction &'I the preamble may be preferred. In in re Beruhari Union ca~ court~ to refer to and consider the view that the p«amble can be to

to absurdity. W)icrc ~·preamble c~vcys c~vcys clcai; and definite ~d'J..i:e w:'~ w:'~

court~

the nature, extent and d1~ applicatio~ of the po~crs or that the preamble can be resorted to prevent obY10UJ absurdity or to direct overthrow of the intention expressed therein. [pp. 512 to 516]

. In Re: Berubari. Union & E~fhange of Enclaves [1961] S.C.R., Saijan Singh v. State of Pun1ab, [1965] 1 S.C.R. 933, Allorn"l.()enerol v. Prince Barnell Augustus of Hanover, [1957] A.C. 436 and Bowell v. Knnpton Park Rac«aum Co. LJJ. [1899] A.C. 143, referred to,

If Constitution is considered as mechanism or an organism or piece of Constitutional engineering it must have structure or composition or base or foundation. The clements of the basic structure arc indicated in the preamble and translated in the various provisions of the preamble. There is nothing vague or unasccrtainablc in the preamble. The edifice of our constitution is built-upcm and stands on several props; remove any one of them, the Constitution collapses. These are: (I) Sovereign Democratic Republic; (2) Justice social economic and political; (3) liberty of thought expression, faith, belief and worship; (4) Equality of status and of opportunity. Each one of these is important and collectively they assure way of life t.o the people of India which the Constitution guaran-tees. If any of these clcrncnts is withdrawn the structure wil not survive and it will not be the same constitution nor can it maintain its identity if something quite different is substitutc:d in iu place which the sovereign will of the people alone can do. What then are the essential features or the basic elcmcnu com-prising t™' structure of the constitution need not be considered in detail as thclc will fall for consideration in any concrete case where they arc said to have been abrogated and made nion-cxistcnt. sovereign democratic republic, parliamcn~ tary democracy and the three organs of the State certainly constitute the basic structure. In the sense in which Sovereign Democratic Republic is understood it cannot be said that the structure of the Constitution as an organic instrument establishing Sovereign Democratic Republic as envisaged in the preamble will remain the same if Part lII and IV or either of them are totally abrogated. [pp. 517, 518]

T~ object of the fundamental rights is to ensure the ideal of political democracy and prevent authoritarian rule, while the object of the Directive Principles of State Poljcy is to establish welfare state where there is econon1ic and social freedom without which political democracy has no meaning. What is ·implicit in the Constitution is that there is duty on the courts to interpret Constitution and the laws to further the Directive Principles which under article 37 are fundamental in the governance of the country. To say that the Directive Principles give directive to take away fundamental rights seems contradic-tion in terms. There is no rationale in the argument that the Direstive Principles can only be given cfftct to if fundamental righu arc abrogated. The interest· cf the community and of the •ociety can be adjusted without abrogating, damaging, emasculating or destroying the fundamental rights in such way 11 to amo\lnt to abrogation of these righu. The guarantee in clause 4 of Article 32 could be conceived of only against amending power, for no ordinary law can suspend right given by the Constitulfon unless permitted by the Constitution itself. When clause 4 of Article 32 does 11ot even permit suspension of the right under Article 32 except as otherwise provided in the Constitution, that is, by Article 359, it is highly unthinkable that by an amendment this right could be abrogated. This pivotal feature of the Fundunental Rights demonstrates that this basic structure cannot be damaged or destroyed. When remedy cannot be abrogated, it should follow that the fundamental rights cannot be abrogated for the reason that tht existence of remedy would be meaningless without the rigku. [pp. 518-520]

Sectir>n· 2 of Twenty Fifth Amendment ;, •a/id

Ever since the Constitution (Fourth Amendment) Act this Court hat con• · sistendy held that where what i' given in lieu of expropriating property of citiun is illusory, arbitrary, or cannot be regarded as compcnation, and bears no reasonable relation to the property acquired, the Coun can go into it, and, secondly, where principles arc Jixed for determining the compensation, it can· examine the quostion whtrhet they arc relevant to the oubject-matter nf the acquiaition. Tlic position has not in any way been alfcctcd by the amendment b1 merely mbstituting the word 'amount' for 'compensation'. If the amount is illusory or arbitrary and is such that it shocks the conscience of any reasonable man, and bears no reasonable relation to the value nf the property acquired, the Court is not precluded from aamining it. The legisla~, even in cases where it Jixci an amount for the acquisition or requisition of property, must be pre· sumcd to have fixed it on some basis, or applied some criteria or principles to detenninc the amount so fixed, and, therefore, where the law is challenged on .the ground of arbitrariness, illusoriness or of having been based on irrelevant principles or any other ground that may be open to challenge by an expropriated owner, the Court will have to go into these questions; this will be so even in respect to the manner of payment. [pp. 523, 524 J

Clause (2B) provides that "nothing in sub.clause (f) of clause (1) of article 19 shall affect any ouch law as is referred to clause (2)"; Docs this mean that the fundamental riglit to reasonable restriction of ploccdural nature under article 19(l)(f) available is abrogated• or dcstroycdl The answer to this would depend upon what is the meaning to be given to the word "affect". Two constructions are possible; one is that article 19(1)(f) will not be available at all to an expropriated owner under law ol acquisition made under article 31(2), secondly cl. (2B) is intended to provide that the law of acquisition or requisi-tion will not be void on the ground that it abridges or affects the right under article 19(1)(£). The second construction is more in consonance with the amendment, because what the amendment provides for is that that ·article 19(1)(£) shall not affect any such law and this would imply that the bar against the application of article 19(l)(f) to ouch Jaw may vary from slight or partial encroachment to total prohibition or inapplicability. But since an amc11dmcnt cannot totally abrogate fundamental right, it can only be read bv the adoption of the doctrine of "sevcrability in application" and accordingly clause (2B) must be held to be restricted only to the abridgement of, as distinct from abrogation, destroying or damaging the right under Article 19{l)(f). That apart there is nothing in cl. (2B) to prohibit principles of natural justice which arc part of the law of the land wherein the rule of law reigns supreme, from being applicable when the liberty of the individual or his property' is affected by law. [pp. 524 to 526]

R. C. Cooper v. Union of India, [1970) 3 S.C.R. 530, Si.u of W111 Bento/ v. Mn. Bela Banerjee, [1954) 3 S.C.R. 558, P. 'Vajrau1lu Mudaliar v. Sp«iol De['flly Collector, MadrGJ & Anr., [1965) 1 S.C.R. 614, Union of India v. Thi Mel41 Corpowion of Indio Lid., onil Anr. [1967] 1 S:C.R. 255, Sldlt of Guj11r111 v. Shanlilal Mon1ald01 & Or1. [1969] 3 S.C.R. 341, Cooptr v. TAI Vlod1wortA Board of Wiirk1, 14 C.B. (N.S.) 180, referred to

New Art. 31C is only valid if the words. "inconsi<tent with or takes away or", the words 11artide 1-t" and the declaration portion "and no law con-taining a" decalaration that it is for giving effect! to "such policy shall be called in question in any court" on the gr:ound that it doc~ not give e~ to "such policy" arc severed, u they arc scvcrabl~. What remains after severing can be

operative and effective on the interpretation given .. to the applicability of Art !' . and 31, so as to enable laws made under Art. 31C to further the directives enshrined in Art. 39 (b) & (c). [p. 553]

The Directives under Art. 39(b) and (c) arc wide and indeterminate. It is !"'ccssary to keep in ~nind the :"'~de field of governmental activity enjoined in article 39(b) and (c) m dctermmmg the racb of the means to achieve the ends and the impact of these means on the fundamental rights which article 31C affects, Though. the Cour~ have no function in the evaluation of the policies of the State or 1n dcterm1.n1ng whether they arc good or bad for the community, they have, however, in examining the legislative action taken by the state in furthering the ends, to ensure that the means adopted do not conflict with the provisions of the Constitution within which state action has to be confined. [pp. 535, 536]

Article 31C has four elements: (i) it permits the legislature to make law giving effect to article 39(b) and (c) incontistnll with any of the rights conferred by arts. 14, 19 and 31; (ii) it permits the legislature to make law giving effect to article 39(b) and Art. 39(c) tak,ing away any of the rights con-ferred by Arts. 14, 19 and 3); (iii) it permits the legislature to make law giving effect to art. 39(b) and (c) abridging any of the rights conferred by articles 14, 19 and 31; and (iv) it prohibits the calling in question in any Court such law, if it contains declaration that it is for giving effect to the policy of State towards securing the principles specified in clauses (b) and (c) of Art. 39, on the ground that it does not give effect to such policy of the State. The first clement would be u/trJJ vim the amending power conferred by article 368 if it compreh..,ds within it th'< damaging or dcJtruction of the fundamental rights. The second, namely, taking aw•y of the fundamental rights would be llhra vim the amending power, for, taking away of these fundamental rights is synonymous with destroying them. The third, namely, abridging of these rights is not the same thing as damaging and the validity will have to be examined and considered separately in respect of each of the fundamental rights. An abridgement ceases to be an abridgement when it tends to af!cct the basic or essential content of the right and reduces it to mere right only in name and in such case it would be ultra vires the power under article 368. In so far as article 31C authorises or permits abridgement of the rights conferred by article 19 it would be intra vires the amending power as thereby damaging or emascula-ting of these rights is not authorised. (pp. 537, 53&]

The guarantee of equality in article 14 has ina>rporated the principle of 'liberty' and 'equality' embodied in the Preamble to the Constitution. Two con· cepts are inherent in this guarantee, one, of 'equality before the law', negative one, and the other, equal protection of the laws, positive one. The i.mpoct of the negative content on the positive aspect has not so far been clearly diicetned in the decisions of this Court which· has been mostly concerned with the pooitiV1' upect. [pp. 538, 539]

The lifting of the embargo of Art. 14 on any law made by. Parliament or the ugislaturc of State under Art. 31C would abrogate that right al~er. It may be that the objective of article 39(b) and (c) may form basis of classification depending on the nature of the !aw1 the ~ for which it was enacted and the impact wliich it has on the rightl of ciazen; but the right to equality before the law and equal protec:tion of laws in article 14 cannot be disembowelled by classification. In so far as the abric!Fncnt of the right con· fierred by article 14 is concerned it would be ""'- ,,;,.,, for the reason that • mere violation of this right amounts to taking away ot damagini the right. It is clear that the very nature of the objectiva in article 39 (b} and (c) is mch

"1-t ltticle 14 ii in•pplicable. The only purpooe which the exclusion of article 14. will serve would be to facilittte arbitrariness, inequality in distribution or to eiiable the conforment of patronage. The right under article 14 will only be avtilable to the .P"rson or clHs of persons who would be entitled to receive 'the benefiu of dutribution under the law. In fact the availability of article 14 in respect of ltws under trticle 31C would ensure 'distributive justice' or -economic justice which without it would be thwarted. In this view of article 31C vis+vis Azt. 14, tny tnalogy between article 31C and art. 31A which is •ough.t to be drtwn is milconceived, bectuse, under the latter provision the -exclusion of Art. 14 was necessary. to protect the subject-matter of legislation permissible thereunder in respec( of compensation payable to the expropriated owner. Further, in article 31A the exclusioh of art. 14 was confined only to .acquisition etc. of the property and not to the distribution aspect which is not the subject-matter of that article, whereas, the exclusion of art. 14 affects distri-'bution which is the subject-matter of article 39(b) and (c). It cannot be presumed that Parliament by exercising its amending power under art. 368 intended to confer right on Parliament and the legislatures of the states to discriminate persons similarly situated or deprive them 0£ equal protection of laws. The objectives sought '-<> be achieved under article 39(b) and (c) can be achieved even if th-. wotds "article 14" is severed. [pp. 540 to 544]

The law under article 31C will only operate on 11matcrial resources" "concen· tration of wealth" and "means of production", therefore, the rights i~ article 19(1)(•) to (e) would have no relevance and arc inapplicable. [p. 549]

In so far as article 31(2) is concerned section 2 of the Twenty Fifth ·Amendment Act has already abridged the right conttined in articles 31(2) and further abridgement of this right authorised by article 31C may trnount in given case to the destruction or abrogation of that right and it may then have to be considered in each c;:asc whether particular law provides for such an ~mount as would constitute an abrogation or the emasculation of the right under article 31(2) as it stood before the Constitution (Twenty Fifth) Amendment. IPP· 549, 550]

[On the fourth element his lordship agreed with the reasoning and con-clusion of Khanna ). in so far it related only to the severence of the part relating to the d«:laration.] [p. 550]

Akdati P~dhan v. Stale of Oriua, [1963] Supp. 2 S.C.R.. 691, The Provincial Trantport Service v. State lndu1tria/ Court, [1963] 3 S.C.R. 650, The State of Bihar v. Maharaiodhiraia Sir Kameshwar Singh & Ors., [1952] S.C.R. 889 at p. 997, State of U.P. v. Deoman Upadhyaya, [1961] 1 S.C.R. 14 at p. 34, Uz&hman D•t on behalf of Firm T11ak Ram Ram Bux v. State of Punjab, [ 1963] 2 S.C.R. 353, Ram Krishna Dalmia v. Shri futtice S. R. Tendolkar & On, [1959] S.C.R. 279, Madhya Pradesh v. G. C. Mandawar, [1955] I S.C.R. 599, Balmadies Plan· llltions Lid. and Others v. Stau of Tamil Nadu, [1972] 2 S.C.R. 133 Nag(1Ur lmprovtment Tf'ust v. Vithal Rao and State of Bombay and Another' v, P. N. llll111ra, {1951] S.C.R. 682. referred to

The first part of article 31 may be held to be intra 111'rts the amending power only if those portions of the article which makes it ultra viret the amend· illg power are severed from the rest of it. The portions that may h;ave to be tevered arc the words 0is inconsiJtcnt with or takes away, or 0 and the words Marticle I 4" and part dealing with declaration by reason of. which judicial review k eK<hded. The oeverability of these portions is permissible in view of the

principles laid down by this Court in R. M. D. Chamerbaugwalla v. Usion of lnd1a. In the result, on the construction of article 31C after severing the portions' indicated, s. 3 of Twenty Fifth Amendment is valid. [p. 550]

Puniszb Province v. Dau/at Singh & Ors., [1945] 73 Indian App.als 59; (1946] F.C.R. 1 RMD. ChamerbaugwaUa v. The Union of India, (1957] S.C.R. 930, In &. The Hindu Woman's Rights to Property Act, [1941 J F.C.R. 12, Cor-poration of Calcutta v. Calcutta Tramways Co. Ltd., [1964] 5 S.C.R. 25, and Kamesluvar Prasad v. State of Bihar, [1962] Supp. 3 S.C.R. 369. referred to

State of Madhya Pradesh v. Ranojirao Shinde & Anr., [1968) 3 S.C.R. 489, distinguished.

[On the view taken, his lordship did not find it necessary to consider the question whether article 31C delegates the power of amendment to the State Legislatures and Parliament.] [p. 537]

The Constitution (Twenty Ninth) Amendment is valid.

But whether the Acts which were brought into the Ninth Schedule by that amc~dmcnt or any provision in any of them abrogate a~y of the basic clements or essential features of the Constitution will have to be examined when the validity of those acts is gone into. Further, the contention that article 31B is intimately connected with article 31A is unacceptable and must be rejected. [pp. 554, 556]

Palekar, /. The Constitution Twenty Fourth, Twenty Fifth and Twenty Ninth Amendment Acts are valid. [p. 632 J

The power and procedure for amendment of the C<>nstitution were con-tained in the unamended Article 368. The proceu which bring about the result of amendment of the Constitution is the exercise of Constituent power. [pp. 561, 566, 632]

The Constitution is n:ot an indigenous product. When our Constitution was framed in 1949 the framers of the Constitution knew that there were two COil· trastcd types of democratic Constifutions in vogue in the world-one the 1Bezible' type which could he amended by the ordinary procedure governing the making of law and the other the 'rigid' type which could be so amended but required special procedure -for its amcniJment, From the special provision made in article 368 for the arri,e:ndment of the Constitution it follows that our Constitution is rigid or controlled constitution because the Constituent Assembly has 'left special direction a1s to how the Constitution is to be amended'. In view of article 368 when the special procedure is successfully followed, the proposed amendment automatically becomes part of the Constitution or, in other words, it writes itself into the Constitution. The Constitution of India gives specine powers of ordinary, legislation to the Parliament and the State legislatures In respect of well demarcated subjects. Since the result of following the special procedure under article 368 is the amendment of the Constitution the process which brings about the result is known as the exercise of constituent power by the bodies associated in th~ ,task of amending the Constitution. Therefore, when the Parliament and the State legislatures function in accordance with. article 368 with view to amend the Constitution, they exercise constituent power as dis- · tinct from ,their ,ordinary legislative power under Articles 245 to 248. Article 3~8 is not entirely procedural, The clear mandate that on the procedure being followed

the proposed amendment shall become part of the Constitution is the substantivc-part of the article. Then:fore, the special power to amend the Constitution is too be sought in article 368 only and not elsewhere. [pp. 558 to 563]

Automobile Tra1"port Ltd. v. State of Roiasthan, [1963) 1 S.C.R. 491 and Mc Cawley v. The King, 1920 A.C. 691, referred to. '"

[The view of the leading majority in Golai{nath that the power to amend the Constitution is to be found in article 248 read with the entry 97 List I held incorrect.) [pp. 565, 566)

By describing the power as 'Sovereign' Constituent power it is not the intcn· tion to declare that legal sovereignty lies in this or that body. The word 'sovereign' is used as convenient qualitative description of the power to high· light its superiority over other powers conferred under the Constitution. The word, therefore, simply stands as description of power which is superior to every one of the .other powers granted to its instrumentalities by the Cons~­tution. The amplitude and effectiveness of the constituent power arc not impaired because it is exercised by this or that representative body or by the people in referendum. And, the power to amend does not become more or less in content according to the nature of the body which makes the amendment. The people thcnisclvcs having withdrawn from the process of amendment and entrusted the task to the Parliament, instead of to any other representative body, it is obvious that the power of the authorities designated by the Constitution for amending the Constitution must be co-extensive with the power of convention or Constituent Assembly, had that course been permitted by the Constitution. The raiton d'etre for making provision for the amendment of the Constitution is the need for orderly change. Between the two coordinatesJ namely, the need for orderly government and the demands for orderly change, boili in accordance with the Constitution., the makers of the Constitution provide for its amendment · to the widest possible limit. Whichever way one looks at the amending power in Constitution there can be hardly any doubt that the exercise of tliat power must correspond with the amplitude of the power unless there are express or necessarily implied limitations on the exercise of that power. The meaning of the wotd 'amendment of the Constitution' cannot be less than '1amcndment" by way of addition variation or repeal, of any provision of the Constitution which is the clarification of that expression accepted by the Constitution Twenty Fourth Amendment. [pp. 567 to 573)

with the Constitution., the makers of the Constitution provide for its amendment ·

Dodge v. Woolsey, (1866] 18 How 331 at 348, United States v. Sprague, 282 U.S. 716, Hawke v. Smith, 253 U.S. 223, British Coal Corporation v. The King, 1935, A.C. 500 and Edwards v. Attarney-Qeneral for Canada, 1930 A.C. 124, 136, referred to.

The grant of power under artitle 368 was plenary, unqualified and without any limitations except as to the special proceJure to be followed. [pp. 603, 604, 632]

.. The range of a!"e~dment was 'this Constitution' 'which meant all the pro-vmons of the Constltutton. If any part of the Constitution was intended to be excluded from the operation of the power to amend it would have normally fonnd place in or below article 368. When the people, through the Con•tituent Assembly, granted the power to amend, they made no reservations in favour of the 'people. When the Constituent Assembly directed that amendments of the Constitution must be made by prescribed method they necessarily excluded CVCl'f other method of amending the Constitution. The grant of power under uticlc-368 is plenary, unquaiified and without any limitations except as to the speeial procedure to be followed. All provisions in Constitution must be conceded the same character and it is not possible to say that one is more, important and the other is less important. If the object of Constitution is orderly government and orderly change in accordance with the law, it must be conceded that all Constitutions whether Bexible or rigid, must have the power to amend the Constitution to the same degree. The amending power in rigid constitution may, therefore reach all provisions whether important or unimportant, essential .or non-essential. Ha"Ving regard to the object of providing an amendment clause in modern Constitution amendment must stand for alteration or change in its provisions. That thi~: was intended is clear from the wording of article 368. The proviso to the article clearly implies that an amendment under the article seeks to make change in the provisions of the Constitution. Having regard to the importance of the ~tmcnding clause in our constitution an amendment contcm~ plates changes in the provisions of the constitution which are capable of being effected by adding, altering or repealing them, as found necessary from time to time. Thus, so far as: the wording of article 368 itself is conccrnC'd there is nothing in it which limits the power of amendment expressly or by necessary implication. Consequences of wrccklcss use of power are political in character with which the court is not <:onccrned. Consequences may be considered in fixing the scope and ambit of power where the text of the statute creating the power is unclear or ambiguous, Where, it is clear and unambiguous courts have to implement the same without regard to consequences good or bad. just or unjust. [pp. 582 to 585]

Edwards v. Lesueur, South Western Reporter Vol. 33, 1130, Livermore v. Waite, 102 Ca, 118, Er-parte Dillon, 262 Federal Reporter 563 decided in 1920, Dillon v. Gloss, 65 Law edn. 994. Er-parte Mrs, D. C. Kerby, 103 Or. 612. Sklte v. Cor, 8 Ark. 436, Downs v. City of Birmingham, 198-Southern Reporter, 231, Schneiderman v. United Skltes of Amef'ica, 87 Law ed. 1796, Rhode ls/and v. Palmef', 64 Law ed. 946, Ullmann v. United Skltes, 100 Law ed. 511, Whitehill v. Elkins, 19 Law ed. 2d. 228, State v. Fulton, 124 N.E. 172 and Vacher's case 1913 A.C. 107, referred to.

Article 13(2) did not operate as an erpress limikltion on the amending power. Amendment of th( Constitution is not 'law' within tAe munint .of artide 13. [pp. 591, 632] i

The· Constitution or its amendment is neidier law ln force within the meaning of article 13(1) continued under article 372(1) nor can it bC regarded as 'law' made by the State within the meaning of article 13(2). The bat under article 13(2) is not merely against law but law made by the State, The de6ni-tion of the word 'state' includes all organs or agencie1 operating under the Constitution owing superior obligation to the Constitution. It would be, therefore, wrong to identify 'state' in article 13(2) with anything more than the instrumentl created or adopted by the Constitution and which are required to work in con-formity with the Consti,tution. By its very definition body or set of bodies .exercising sovereign Constituent power, whether in 'Bexible' or in 'cipf Constitution, is not governmental organ owing supreme obli,-ti.on to the .Constitution. The body or bodies operate not under the Constitution but over the Constitution. They do no~ while amending the Constitution, function u governmental organs and therefore cannot be regarded as the StallO for the put· pose of Part III of the Constitution. If fu~damental rights in Part ,III were, !"'" amendable nothing would have been caner than to make specific pnmnon about it i~ Part XX which dealt specifically with the subject ol amendment of the Constitution. [PP• 586 to 591]

Sri Venkataramana v. The State of Mysore, [1958] S.C.R. 6115 and Rana Singhe's case, [1965] A.C. 172, referred to.

[The decision of the majority in Golaknath that Constitution Amendment is 'law" within the meaning of article 13(2) held incorrect.] [p. 597]

There were no implied or inherent limitations on the amending power under the unamended article 368 in .its operation Ot1er the fundamental n·ghts~ T/kre can be none after its ·amendment. [p. 632]

Th~ Twenty Fourth Amendment docs no more than give effect ta PadiamCnt's acceptance of the view taken in Sank_ari Prasad's case, the majority in Sajjan \Singh's case and the minority in Golak. Nat!l's c:asc with regard to_ the amen<llng power in relation to fundamental rights. It is clarificatory of the orimnal a~tide 368. What was implicit in Article 368 is now made explicit and the, _cs~ncc of Articles 368 is retained. Therefore there can be no objection to the Z4th Amendment on the ground that any essential feature of the C.ons\itution . is affected. Since article 13(2) docs not control an amend-ment of the C:onstitu~n it follows that any an1endment of the Constitution cannot be challenged on that ground and that would be true not only of tht 24th Amendment but also the 25th Amendment and the 29th Amenoment. It may appear as ~ry odd ~at while the framers of the Constitution did not think it necessary to expressty. exclude even one provision of the Constitution from being amended they still i/ltcnded that this Court as the guardian of the Constitution should make pa~s of it unamendable by implying limiu.tions on the amending powct\ This Court cannot constitute itself guardian against change constitutionalq. effccte<l. [pp. 598, 599]

So far as the right to prope:rty is concerned the Constitution in a.rticle· 39(b) and (c) expressly declared ·\ts determination, in the interest of common good, to break up concentration of\~lth and means of production in every form and to arrange for redistribution: ,of ownership and control of the material resources of the community. If anything in the Constitution deserves to be called an essential feature this determination is one. That is the Central issue in this case. In real sense concentration of wealth in the form of agricultural lands was broken and community resources were distributed. Article 31(4)(6) and article 31A clearly show that community interests were regarded as supreme and those articles were only step in the implementation of the Directive Principles in article 39(b) and (c). The object of the 25th amendment is the same viz., implementation of article 39(b) and (c ). In principle there is no difference in article 31A and the new article 31C inserted by the 25th Amendment. From the conclusion that the power of amendmenr I'Clnains unqualified by whomsoever it is exercised it .follows that there can· be no implied or inherent limitations on the amending power. And, where· power is granted to amend the amending power there is DQ limit to the extent this may be done. It may be curtailed or enlarged. Article 368 permits the amendment . of all the provisions of the Constitution expressly and if that power is to be cut down by something that is said in soriie other provision of the Constitution the latter must be clear and specific.· Where the tezt is clear apd unambiguous there can be no recourse to the context or the ochcme of the Act ; nor can the context or the scheme be utilised to makt ambiguous what is clear and unambiguous. The word 'amendment' used in the contcJ:t of Constitution is clear and unambiguous. [pp. 600 to 609J

SUPREME COUllT REPOllTS [ 1973] Supp. s.c.11.

State of Bihar v. Kameshwar Singh, (1952) S.C.R. 889, Rayn v. Lannox, 1935 Jrish Reports, 170, Moore v. Attorney General for the Irish Stai., 1935 A.C. 484, Warburton v. Loveland, [1831) II Dow & Clark, 480, Bttntky v. Routherham, 1876-77, 4 Ch.D 588 (592), Reg v. Burah, [1878) 3 App. (a) 889, Attorney-GenerraZ- for the Province of Ontario v. Attorney.General for Dominion of Canada [1912] App. Cas. 571, Webb v. Outrim [1907) A.C. 81, The Amalga-mated Society of Engineers v. The Adelaide Steamship Company Limii.d and .oth«"s, 28 C.L.R.' 129, The Berubari Union and Exchange of Enclaves, [1960) (3) S.C.R. 250 and Secretary of State v. Maharajah of Bobbili, 43 Madras 529, 536 (P.C.), referred to.

Fundamental rights are not inalienable natural rights. Articles 13 and 32 -show that fundamental rights are rights which the people have 'conferred' upon themselves. Even the rights conferred arc not in absolute· terms. They arc hedged in and .restricted in the interest of the general public> public order, public 1norality, security of the State, and the like which show that social and political considerations are more import.ant in our organised society. The core philosophy of the Constitution lies in social, economic and political justice. The Directive Principles of State policy which the Constitution commands should be fundamental in the governance of the Country require the State. to direct its policy towards securing to tht: citizens adequate means of liveli~ hood. The mandate in article 39 is as importanc for the state ai- to maintain individual freedoms. It is always continuous endeavour of the State having the common good of the people at heart. So to harmonize the Directive Principles and the fundamental rights that so far as property rights arc .ccncerned, the unlirnited freedom to hold it would have to undergo an adjustn1ent to the demands of the State Policy dictated by the Directive Principles. The attribute of 'scaredness' of property vanishes in an egalitarian society. Once this is accepted and deprivation and expropriation arc rcCog· nised as inevitable in the interest of better social organisation in which the reality of liberty and freedom can be more widely achieved the claim made ,on behalf of property that it is an inmutable natural right loses force. Nor is it correct to describe the fundan1ental rights, including the right to property, as rights reserved by the people to themselves. What the Constitution confer~ red was made revoc:i1ble, if necessary by the a1nendatory process. [pp. 593 to 596, 600 to 603]

No implied limitations c:,an be inferred. from the Preamble. The Preamble is part of the Constitution and is amendable under article 368. The sub-n1ission that the fundamental rights arc ..an elaboration of the Preamble is an overstatement and half truth. Most of the fundamental rights may be traced, to the principles of Liberty and Equality mentioned in the Preamble. But ·whereas the concept~· of Liberty and Equality are mentioned in absolute terms in the Preamble the fundamental rights including the several freedoms arc not couched in absolute terms. They reflect the concepts of Liberty and Equality in very attenuated form with several restrictions imposed in the interest of orderly and peaceable Government. The Preamble read as whole docs not contain the implication that in any genuine implementation of the Directive Principles fundamental right will not suffer any diminution. Nor is there anything in the preamble to suggest that the power to amend the fundarncn!al right to property is cut down. The Preamble, it is noW well settled, can neither increase nor decrease the power granted in plain and clear words in the enacting parts of statute. [pp. 609 to 613)

Constitution is an organic instrument continuously growing in utility -and the question of its repeal never arises as long as orderly change is poasible.

(Palekar, J.)

It is the nature and character ·Of the Constitution as growing, organic, penna-11ent iovcrcign instrUmcnt of . government which exclude the repeal of the Constitution as : wqolc and not the nature and character of the amending power. [p. 619] If it is the Court that is · to decide what arc the essential and non-essential provisions, what stable standard will guide the Court in deciding which provision· is -~sscntial and- ·which -is not essential. The difficulty assumes pttr proporti0n when an amendment is challenged on ·the ground that the core ·of an essential feature·· is either damaged or destroyed. Apart from the difficulty in determining where the 'core' of an 'essential feature' lies, fantastic Fults may· follow . in working the Constitution. The Court cannot be .mvitcd to determine the spirit of the Constitution. When concepts of social or economic jD;Sticc arc _ offered for our examination in theii interaction on .provisions rclatirig 'to right to property, mancrs traditionally left to legisla-tive; .policy :and· wisdom, we are bound to flounder 'in labyrinths to the .character of which we· have ncnuflicicnt gilidcs." [pp. 620-022] . . . .On conlideration therefore, of the nature of the amending power and , the unquali6ed mannel' in which it is given in article 368 of the Constitution .it is impossible to imply. any !imitations on the power to amend the fu~da­m:cntal . rights. ·Since there arc no limitations express or implied, on 'the amending power it must be conceded that all the amendments which are in q~on must be deemed to be valid. The Court cannot question their policy 'or tll•ir wisdom. [p. 625]

.. State of Bihizr v. Kameshwar Singh, [1952] S.C.R. 889, Ryan v. Lennox, '[193H Irish J?eports, 170, Moore v. Attorney General for the Irish Stat<, ··[19~5,J1.C. 484, Warburton v. Loveland, [1831] II Dow & Clark, 480 Bentley ~. ;Rptherha,,,, [1876-77] 4 Ch. .. 588, 592, Reg v. Burah, [1878] 3 App. Cas . .-'.8~, . -Attorney.General for the Province of Ontan·o v. Attorney-Gen~al for the Dominion of Canada, [1912] App. Cas. 571, Webb v, Outrim; [1907] A.C. 81, ·The Amalgamated Society of Engineers v. The Adelaide Steamship Company .:·Limited ·rmd Ors., 28 C.L.R. 129, .The Berubari Union and Exchange 'of ·Enclaves, [1960] 3 S.C.R. 250 and Secretary of Staie v; Maharaia of Bobbili, 43 Madras 529, 536 (P.C.), In re: The Initiative and Referendum Act, [1919] A.C. 935; Mangal Singh v. Union of India, [1967] 2 S.C.R. 109 112 and In re.: The National Prohibition cases, 65 Law, Edn., 994, referred to.'

Victoria v; The Corn,monwealth, 45 A.L.J.R, 251, distinguished.

. Don John Francis Douglas Liyanage & Ors v. The Queen, and Rana-·.nng,he's case, [1965] A.C. 172, held inapplicable.

Section of 2 of the Constitution Twenty Fifth Amendment Act is valid. [pp. 625, 626]

A_n :'-mcndm~t to the Constitution cannot become invalid because the ~ns~tutlon auth~nscs th~ legislatures to fix an 'amount' or to specify the principles .on, which t?e. amount' .is .to be detcrmin~d instead of fixing the . compcnsauon or spec1fy1ng the prmc1ples for determining 1compensation'. All that· the amendment has done is to negative the interpretation put by this Court on t?e c:on~ept of co~pcnsation. Whether particular law fixes an amount \Vh1ch. ts illusory . or 1s otherwise fraud on · !X>Wer denying the fundamental nght to receive an amount specifically conferred by clause (2),

will depend upon the law when made and is tested on the basis of clause (2). The possibility of abuse of power given by an amendment of the Consti-tution is not deterrn.inative of the validity of the amendment. The new clause 2R excluding the application of article 19(1)(£) to I.aw referred IC> in clause (2) of article 31 is merely restatement of the law laid down by thif Court after the Constitution came into force. [p. 626]

Bank of Toronto v. Lambe 1887, Vol. XII- Appeal Cases 575, 586-587 and Sitabati Debi & Anr. v. State of w .. ,, Bengal & Anr. (1967] 2 S.C.R. 949, referred to.

Article 3IC included by section 3 of the Constitution Twenty Fiftlt Amendment Act is valid.

\Vhat is saved by article 31C is law i.e. law made by competent legislature and since r.he article comes under the specific heading 'Right to· property' in Pan III the law must involve right to property. The effect of the first part of article 31C is the same as if proviso had been inserted1 below 2rticle 13(2) or each of the several articles 14, 19 and 31 excluding their application to the particular types of law mentioned in article 31C. If the law docs not genuinely purport to give effect to the specified directive principles it will not be secure against the challenge under articles 14, 19 and 31. [pp. 627, 628]

Article 31C docs not prevent judicial review. What the court will have to consider is whether it is law which can reasonably be described as law gi,ing effect to the policy of the state towards securing the aims of article-39(b) or (c). That i~ an issue which is distinct from the other issue whether the law does not -give effect to the policy of the state towards securing the said aims. law reasonably calculated to- serve particular aim or purpose may not actually serve that aim or purpose; and it is this latter issue whicD is excluded from judicial review. In that view of the true nature of· article-31C it cannot be said that the amendment is invalid. [pp. 629 to 631]

Beautharanis v. lllinois 343 U.S . .250, Charles Russell v. The Queen, 188? (VUI) Appeal Cases 829 (838.840) and Attorney-General v. Queen. lns#rtmcr Co. 1878 (3) Appeal Cases, 1090, referred to.

The Constitution Twenty Ninth Ameodment Act is valid. [p. 632)

The argument that unless the Acts included in the Ninth Schedule rela· ted to agrarian reforrns the protection of article 31B will not be available-has been rejected by this Court previously. The T\vcnty Ninth Amendment is Ilot different from several similar amendments made previously by which statutes were added from time to time to the Ninth Schedule and whose validity has been upheld by this Court, [p. 632]

N. B. feeieebhoy "· Assistant Collector, Thana (1965] I S.C.R. 636, refer-red t<J.

Khanna, /. : The Constitution Twenty Fourth Amendment -is valid. The amendment made in article 31(2) by the Constitution Twenty Fifth Amendment is valid. The first part of article 31C introduced by the Constitution Twenty Fifth Amendment is valid. The second part of article 31C viz., :•and no· h'1\V containing declaration that it is for giving effcc~ to such po!tcy 1hall be called in question in any court nn the ground that tt does not give effe~t to stich policy" is invalid and therefore has to be struck down~ The Consn--tution Twenty Ninth Amendment Act is valid. (pp. 759, 760]Article . 368 before Constitution Trve.nty Fourth Amendment eonldio not only the procedure for the amendmeoJ of the Conttitution INt also confers the power of amending the Constitution. [p. 757] The words in Article 368 "The Constitution shall stand amended in accordance with the terms of the bill" clearly indicate that the article provides not 1ncrcly the procedure for amending the Constitution but also contains the power to amend Article 368. By the very nature of things the power to amend the Constitution cannot be in the residuary entry in federal consti-tution, because, the power to amend the Constitution will also include the power to alter the distribution of subjects mentioned in different entries. Such power cannot obviously be legislative power. Irrespective of the source of power the words in Article 368. that "the Constitution shall stand amended" indicate that the process of making amendment prescribed in article 368 is 11elf-exccuting process. The article shows that once the procedure prescribed in that article has been complied with the end product is the amendment of the Constitution. [pp. 646-648[

The word "law" in Artii:le 13(2) does not in<!lude an amendment of tb~ Constitution. [p. 758]

An amendment of the Constitution made in accolldance with Article 368 docs not constitute "law" for the purpose of article 13(2). The word "law", although referred to in .large number of other articles of the Constitu-'tion, finds no mention in article 368. What follows as result of the compliance with Article 368 is an amendment of the Constitution and not law in the ocnse of ordinary legislation. There is clear distinction betw<cn statutory law made in exercise of legislative power and constitufional law made in curcise of _constituent power. Constitution is famdamcntal and basic law and provides the authority under which ordinary law is made. If it had been the intention of the framers of the Constitution that the law in article 13 would also include constitutional law including laws relating to the amendment of the Constitution, it is not explained as to why they did not e>pressly so state in clause (a) of article 13(3). . The Constitution itself contains indications of the distinction between the Constitution and the laws framed under the Constitution. It is difficult to accede to the contention that even though the framers of the Constitution put no express limitation in Article 368 on the power to make amendment, they curtailed that power by im~lica.tion under article, 13(2) .. In. order to find the true scope of article 13(2) m the context of 1ts possible unpact on the power of amendment it should not be read in isolation but should be read along with article 368. The rule of construction is to read the actual words used 11not in vacuo but as occurring in single complex instrument'· ln whiCh ·one part may throw light on another". combined reading of article 13(2) and article 368 clearly points to the condusion that the cxtinguishment or abridgement of fundamental rights contained in Part III of the Constitution is not beyond the amcnda~ry ~wer conferred by article 368. The alleged conflict between ~~ ~ articles ts apparent ~d ~ot real because the two provisions operate m different fi~lds and deal w;th diflc.rc~t ~bjects. Article 368 is independent and self.ainta1ned. If there " any ltm1ta11on on the power of amendment it must be found in article 368 itself which is the sole fountalli-hcad of power to amend, and not in other provisions dcaling with ordinary legislation. [pp. 655 to 660]

Tiie United Pt'Ollin«s v. Mn. Aliqa Begum & On [1940] 2 F.C.R. 110; /.,,us v. Commonwe.W. of Australia, [l9J6i >.£. 578, Rfemd to.

Tiie pou1er of amendment undeir unamended article 368 does not inc/uje the power to abrogate the Constitution nor does it include the (JOwer zo alter the basic structure or frame-work of the Constitution. Subject to the retention of t/Je basic structure or frame-work of the Constitution the power of amendment is plen'11'y and includes within itself the power .to amend the variou! articles of the Constitution, including those relating to fundamental rights as u[1]ell as those which may be said to relate to essential features. No part of fundamental right can claim immunit1 from amendatoty process by being described as the essence ar core of that right. The power- of amendment would also include within itself fhe power to add to alter or repeal the various articles. [pp. 758, 759] There are no words in Article 368 to indicate that limitation was intended on the power of making amendment of Part III with view to take .away or abridge fundamental rights. The words "the Constitution shall stand amended" plainly cover the various articles of the Constitution. It is difficult in the face of those clear and unambiguous words to exclude from their ope_ration the articles relating to fundamental rights. It is an elemental rule of c.onstruction that while dealing with Constitution every word is to be expounded in its plain obvious and cominonsense unless the context furnishes some ground to control, qualify or enlarge it and there li:annot be imposed upon the words any recondite meaning or any extraordinary gloss. It has not yet been erected into legal maxim of Constitutional construction that words are meant to conceal thoughts. It cannot be said that the framers <>f the Constitution deliberately used words which cloaked their real intention \vhen it would have been so simple matter to make the intention clear beyond any possibility' of doubt. There is clear indication that the drafting· Committee was conscious ef the need for having express provision regarding limitation on the power of amendment in case such limitation was desired. This is clear from article 305 of the draft Constitution which immediately followed article 304 corresponding to article 368 of the Constitution as finally ~cloptcd. The speech of Dr. Ambcdkar made on September 17, 1949 while dealing with the provision relating to amendment of the Constitution makes it clear that the divided the various articles of the Constitution into three .categories. There was nothing in his speech to show that apart from the three categories of articles there was fourth category of articles contained in Part III which was not amendable and as such could not be the subicct <if amendment. The Constitution (First Amendment} Act, 1951, which abridged and amended certain fundamental rights contained in article 19, was passed by the provisional parliament which had also acted as the constituent assembly for the drafting of the O>nstitution. The First Amendment is contemporaneous practical aposition of the power of amendment under article 368. The contemporaneous practical exposition furnished considerable ~d in resolving the doubt in construing the provision of the article. [pp. 648 to 653] Queen v. Buran, [1878] 3 Appeal Cam 889 and William Mcpheron v. Robbert R. Blac/r.er, 146 U.S. !. referred to. This Court has now accepted the view in its decisions since Golak Natli'l <ase that the speeches made in the Constituent Assembly can be r;c£errcd to :while dealing with the provisions of the Constitution. The speeches can be referred to for finding the history of the Constitutional provision and the background against which the provisions were drafted. The speeches cannot form the basis for construing the provisions of the Constitution. [p. 654]I. C. Golak Nath & Ors. v. State of 'Puniab, [1967] 2 S.C.R., 762, ?· H. Maharaiadhirai• Mad.hav Rao fiwaii Rao Scindia Bahadur & Ors. v. Union of India, [1971] 3 S.C.R. 9, Union of India v. H. S. Dhillon, (1972] 2 S.C.R. 333.

The amending clause is the most important part of Constitution. Upon. its existence and truthfulness. th3;t is, its correspondence with real and natural conditions, depend• the question as to whether the State shall develop with peaceable continuity or shall suffer alternations of stagnat:ion, retrogression .and revolution. The framers of our Constitution were conscious of the desirability o! rc.:ondling the urge for change with the need for continuity.. They were not oblivious of the phenomenon writ large in human history that change ~ithOut cClntinuity can be anarchy ; change with continuity can mCan progress ; and continuity without change can mean no progress. The Constitution makers have, therefore, kept the balance between the danger of Aaving an unamendable constitution and- constitution which is easily amendable. No generation has monopoly of wisdom nor has any generation right to place fetters -on future gene.rations to mould the machinery of Govern· ment and the laws according to their requirements. The grant of power of amendment is based upon the asswnption that as in other human affairs, so ja. constitutions, there are no absolutes and that the human mind can never reconcile itself to fetters in its quest for better order of things. I£ it is not permissible under article 368 to so amend the constitution as to take away or abridge the fundamental rights in Part III the conclusion would follow that the only way to take away or abridge fundamental rights is to resort to extra constitutional methods like revolution. Between peaceful amendment ·through means provided by the constitution and the extra constitutional .method with it.s dangerous potentialities the former method is to be preferred. [pp. 663 to 670]

The consequences which would follow from the acceptance of the view that there is no power under article 368 to· abridge or take away fundamental rights would be chaotic. It is one of the well settled rules of construction that if the words of statute arc in themselves precise and unambiguous, no more is necessary than to expound those words in their natural and ordinary sense, the words themselves in such case best declaring the intention of the legislature. It is also well settled that where alternative constructions are equally open that alternative is to be chosen which will be consistent with the smooth working ot the system which the statute purports to be regulating; and that alternative is to be rejected which will introduce uncertainty, friction or confusion into the working of the system. These principles of construction apply with greater force 'vhen dealing with provisions of Constitution. As the language of article 368 is plain and unambiguous it is not possible to read therein limita· ti on on the power of Parliament to amend the provisions of ~Part III of the Consutution so as to abridge or take away fundamental rights. It is also not permissible in the face of the plain language of article 368 to ascertain by 3.ny process akin to speculation the supposed intention of the constitution makers. If .the words are plain and free from any ambiguity the constitution makers should be takeh to have incorporated their intention in those words.

Collector of Customs, Baroda v. DigviidJingh;i Spinning & Weavin.f! Mil/J· Ltd .• [1962] l S.C.R. 896, referred to. [pp. 670 to 671]

The argument that an amendment of Part III is possible by making law for convening Constituent .. ssembly or for holding referendum cannot be accepted. If Parliament by two third majority in each house and by follo,ving the procedure laid down. in article 368 cannot am~nd Part III of the Constitution so as to take away- or abridge fundamental rights it is difficult to understand how the same Parliament can by law create body which can make the requisite amendment. If it is not within the power of Parliament to take away or abridge fm!damental rights even by vote of the. two thirds majority in each hou,se, would it be permissible for the same Parliament ·to enaet l•gislation under entry 97 List I of the Seventh Schedule by ·simple

majority for creating Constituent Assembly in order to take away or abridge fundamental rights. body created by Parliament cannot have power greater than those vested in thC'. Parliament. If something is impermissible, it would continue to be so even though two steps are taken instead of one for bringing about the result which is not permitted. Again, the argument that provisions cculd be made for referendum is equally facile. Our oonstitution makcn rejected the method of referendum. In country whctc there arc religious and linguistic minorities, it was not considered proper method of dccidirig vital issues. Thus apart, it is not permissible to resort to the method of refcren. dum unless there be constitutional provision for such course in the amend· mcnt provision. The selection of the method of amendment having been made by the Constituent Assembly it is not for the Court to express preference for another method of amendment. There is no warrant for the proposition that since the amendments under Article 368 arc brought about by the prescribed 111ajority of the two houses of Parliament and in certain cases arc ratified by the State Legislatures and since the amendments arc not brought about through referendum or passed in Convention, the power of amendment under article 368 is on that account subject to limitation:;. [pp. 671-078]

G<t>Tge S. Hawkes v. Hervey C. Smith, 64 L Ed. 871, f?Aode lslanJ v. Mitchell, 64 L Ed. 946 and United States v. Sprague, 282, U.S. 716, referred to.

Parliament cannot be denied the power to· amend the Constitution as te take away or abridge the fundamental rights by complying with the procedure of article 368 because of any supposed fear or possibility ol! the abuse of power. That power may be abwcd furnishes no ground for denial of its existence. The fact that prescribed majority of the peoples' representatives is required for bringing about the amendment is itself guarantee that the power would not be abused. The best safeguard against the abuse or extravagant use of power is public opinion and not fetter on the right of people's rcprcscntatives to change the constitution by following the procedure laid down in the . Consti-tution itself. For seventeen years from 1950 till 1967 when Go/aknath case was decided the accepted proposition was that Parliament had the power 1D amend Part Ill of the C.onstitution so as to take away or abridge fundamental rights. Despite the possession of that power no attempt was made by Parliament to ta.kc away or abridge fundamental rights relating to cherished values like liberty of person and freedom of expression. · If it was not done in the past why should it be assumed that the majority of members ot Parliament, in future, would acquire sudden aversion and dislike for these values-. Then: is vital distinction between vesting of power, the exercise of the power and the manner of its exercise. What is in issue is whctlicr, on true cOnstruction of article 368, Parliament has or .has not the power to ainend the Constitution so as to take away or abridge fundamental 'rights. The answer should be in the affirmative as long as the basic structure of the Constitution is retained. [pp. 678 to 682]

Prividence Bank v. A.lpheus Billings, 29 U.S. 514, /ohn L. Rapier, E:rpart•, IS U.S. 93, Bank of Toronto and Lambe, 12 A.C. 575 Mauouri Kansu ond Texas Railway Co. v. May, 194 U.S. 267, n:ferrcd to.

The power to amend under article 368 docs not include the power to completely abrogate Constitutio'.' and rcplac;c it by an entirely new Consti!"ti?n. -.. An1endment" of the Constituuon necessarily contcmolatcs that the Constitunon has not to be abrogated but only changes have to be made in it. The word "amendment" postulates that the old Constitution survives without loss of its identity despite the change and continues even though it has been subj~ t.o alb:rations. The retention of the old Constitution means retention of the bu1c1tn1ctUre or frame-work of tho old Con1titution. Although it is pumissiblo 11Dder the power of amendment to elJect changes howsoever important and to adapt tho 1ystem to the requiremenu of changing conditiono, it ii not putnissible te touch the foundation or to alter the basic institutional pattern. The words "amendment of tho Con•titution" with ·all their wide sweep and amplitude cannot have the effect of destroying or abrogating tho buic llr\lcturc or frame-work of the Constitution. It would not be competent under the garb of amendment, for ·instance, to change the democratic Government into dicta tot .. ship or hereditary monarchy, nor would it be permissible to abolish the Lok Sabha and the Rajya Sabha. The secular character of the State according to which the State shall not decriminate against any citizen on the ground of religion only cannot likewise be done away with. Provisions regarding the amendment does not furnish pretence for subverting the slr\lcture of the Constitution nor can article 368 be so conslr\led as te embody the death wish of the Constitution or provide sanction for what may perhaps be called iu lawful Hara Kiri. The words "amendment of this Constitution" and "the Constitution shall stand amended", in article 368 show that what is amended , is the existing Constitution and what emerges as result of amendment is not new and different Constitution but the existing Constitution though in an amended form. Subject to the retention of the basic structure or framework of the Constitution the power of amendment is plenary and would include within itself the power to add, alter ot repeal the various article including thOlC relating to fundamental rights. "Amendment" in article 368 has been used to denote change. This is clear from the opening words of the proviso, to ortide 368. The word 'change' has wide amplitude and would necessarily cover case of repeal and replacement of earlier provisions by new provisions of different nature. The denial of such broad and comprehensive power would introduce such rigidity in the Constitution as might break the Constitution must contain ample provision for experiment and trial in the task of administration. It is not document for fastidious dialectics but the means of ordering the life of , people. It has its roots in the past, its continuity is rcftcctcd in the present and it is intended for the unknown future. [pp. 685, 686, 688-690, 693]

The Court in judging the validity of all amendment would not enter into the arena of controversy but would concern itself with the question as to whether the constitutional requirements for making the amendment have been satisfied. An amendment of the Constitution in compliance · with the procedure prescribed by Article 368 cannot be struck down by the Court on the ground that it is change for the worse. [ p. 694]

A. K. Gopa/an v. State of Madras, [1950] S.C.R. 88, British Coal Corpora-lion v. The King, [1935] A.C. 500 Lochn.,. v. New York [1904] 198 U.S. 45 and Ferguson v. Skrupa, [1963] 372 U.S. 726, referred to.

So far as the expression 11essential features" means the basic. structure or irame-work of the Constitution the power to amend does not include within ~f the power to change the basic structure or frame-work of the Constitution. The di!ercntiation between fundamental right and the essence or core of that fun~en~.1 right !• an over-refinement which is not permissible and cannot otand JUd1C1al scrutmy. The essence or core of fundamental right must in ~e nature or things ~ its integral part and cannot claim status or protection di!ercnt from and higher than that of fundamental right of which it ii oupposcd to be the essence or core. There is also no objoctive standard to ':1ctcnninc as to what is the core of fundamental right and what distinguishes It from the periphery. The absence of such standard is bound to introduceuncertainty in matter of so vital an importance .as the amendment of the Coostitution. The provisions of the Constitution "'garding the power of making amendment arc clear and unambiguous and contain no limitation OD that power. [pp. 706, 707]

Thn-e art no implied or inhe1·ent limJ'tations 01J the power of amendmetlt apart from those which inhere anli are impliCit in the tv<lf'd "amendment". The power ca.nnot be re1trictetl by reference to natural cw hUman righ't;.

The power ca.nnot be re1trictetl by reference to natural cw hUman righ't;. [p. 759] So far as the limitation which flows by necessary implication from aa express provision of the. Constitution is concerned, the concept derives its 'force and is founded upon principle of interpretation of statutes. In the absence of any compelling reason it may be said that constitutional provision is not exempt from the operation of such principle. It is not possible to disccr.a in the language of article 368 or other relevant articles any implied limitation on the po,vcr to make amendment contained in that article. So far as the limita· tion based upon higher values which are very dear to the human heart aml arc considered essential traits of civilised existence is concerned, one obviout objection which must strike every one is that the Constitution of India is one of the lengthiest Constitutions of the World. If it was intended that limita· tions should be read on the power of making amendment the question would necessarily arise as to why the framers of the Constitution refrained from txpressly incorporating such limitation on the power of amendment in the Constitution itself. The theory of implied limitation is based on doctrinaire approach and not on what is essential for the purpose of construing and working constitution, viz., pragmatic and practkal approach. As the concept of implied limitations on the power- of amendment based on higher values is not based upon some express provision of the constitution, it must be regarded as el'sentially nebulous. Th~ concept has no definite contours and its acceP" tancc would necessarily introduce an elcmeat of uncertainty and vagueness in matter of so vital an importance as that pertaining to the amendment of the Constitution. It is difficult to accede to the submission that the framers of the Constitution, after having made such detailed provision~ for different sub-jects, left something co be decided by implication, that in addition to what was said there were things which were not said· but which were intended to be as effective as things said. The quest for things not said but which were to be as effective as things said, would take us to the realm of speculation and theorising and must bring in its wake the uncertainty which inevitably is there in all such spe1:ulation and theorising. Natural rights have no proper place outside the Constitution and the statute. Independently of the Constituuon and the laws of the State, natural rights can have no legal sanction and cannot be enforced. The binding force of Constitutional and statutory -provisions can· not be taken away :o.or can their amplitude and width be restricted by irivoking the concept of natural rights. The. rights, as such, cannot be deemed to be supreme or of superior validity to the enactments made by the State and not subject to the amendatory process. The power to amend the provisions of the Constitution relating to fundan1cntal rights cannot, therefore, be denied by describing the fundamental rights as natural rights or human rights. [pp. 695 te 700, 728 to 735JMangal Singh v. Union of India, [1967] 2 S.C.R. 109. Alberta Prm case, [1938] Sup. C~ Reports 100 {Canada), Switmand v. Elbing, [1957] Sup. Ct. &ports 285 (Canada), Attorney General of Novo Scoha v. Attorney Generol of Canada, [1950] Sup. Ct. Reports 31 (Canada) Bribery Commi.,ioner •· Pedrick.. Ran• Singh< [1965] A.G. 172, Mccawley v. The King, 1920 A.G. 691 Attorney Generdz for N.S.W. v. Trethowan, [1932]. A.G. 256 and State of Victoria v. Commonwealth, 45 A.I.J.R. 251·, held mappltcable.

Liya,,.te v. The Qwem, [ 1'66] AU E.ll.. 650, distinpished.

Notionol Prohibition Cose, 65 L. Ed. 994, fermish Ry .. v. Coptain Mich•el Leoon, (1935] A.C. Irish Reports 170 and Moore & Ors v, Attorney Generol for Irish Free Srate, [1935) A.C. 494, re£emd to.

part from the part of the Preamble which relates to the basic structure or frame-worfr. of the Constitution, the Preamble 4oe1 not restrict the power of amen4mmt. [p. 759]

The Preamble docs not control the power of amendment. There is posi-tive evidoncc in the debates of the Constituent Assembly to show that the Pream-ble is part of the Constitution. As preamble is part of the Constitution its provi· lions other than ,those relating to the basic structure or framc·work, it may well be argued, are as much subject to the amendatory process contained in article 368 as other parts of the Constitution. If the Preamble itself is amenda-ble its provision other than those relating to basic structure cannot impose any implied limitation on the power 0£ ·amendment. The principle of construction. is that reference can be made to preamble for purpose of construing when the words of a. statute or constitution arc , ambiguous and admits of two alternative constructions. When the language of section or article is plain and suffers from no ambigriity or obscurity, no gloss can be put on the words of the sec-tion or article by invoking the Preamble. The preamble cannot confer any power per sc : it can never amount, by implication, to an enlargement ot any power expressly given. It can never be the legitimate source of any implied power, when otherwise withdrawn from the Constitution. Its true office is to expound th~ nature a~d CXtcnt and application of the powers actually conferred hv the Constitution and not substantively to create them. [pp. 710-713]

In re. The Berubari Union and Erchange of Enclaves, [1963] S.C.R. 250 and Att<>rney General v. H.R.H. Prin<e Ernest, (1957] A.C. 436, referred to .

. Right to fJroperty doet not pertain to basic structure or frame~work of tlle Constitution. ·

Although the Preamble gives prominent place to securing the objective of socia~ economic and politkal justice to the citizens there is nothing in it which gives primacy to claims of individual right to property over the claims of social, cc.onomic and political justice. There is· no clause ·or indication in the Preamble -which stands in the way of abridgement of right to property for occuring socia~ economic and political justice. Indeed the dignity of the indivi-dual upon which also the preamble . has laid stress can only be assured by . 1eeuring the objective of social, economic and political justice. The Directive Principles embody commitment which was imposed by the Constitution maker~ on the State to bring about economic and social regeneration of the tteminj! millions who arc steeped in poverty, ignorance and social backwardncs1. They incorporate pledge· to the coming generations of what the state would try to u.sher in. The stress in the impugned amendments to the Constitution upon changing the economic structure by narrowing the gap between the rich and the poor is not recent phenomenon. This has been the objective of the national leaders since before the dawn of independence and was one of the undorlying . reasons for the first and fourth Amendments of the Constitution. The approach adopted was that there should be no reluctance to abridge or rcgulat• the fundamental right to property if it wu felt necessary to do so

SUPREME COUP.T REPoRTS [1973] Supp. s.c.R.

f.or changing the economic structure , and to attain the objectives contained ia the Directive Principles. So far u the quCJtion is concerned u to whether the right to property can be said to pertain to ba1ic llructure or frame-woik ef the Constitution the answer should plainly be in the neptive. Basic 11rUC!Ufe or frame-work indicates the broad outlines of ,the Co.Dsatution while the riabt to property is matter of detail. [pp. 716 to 720]

Parliament can by amendment of Ille ConnilUtion enlar1e ill °""' power1.

Amendment of the Constitution, in the very nature of things, can mult jn the conferment of powers on or the enlargement of powers of one of the organs of the State. There is nothing in the Constitution which prohibill or in an} other way prevents the enlargement of powers of Parliament as result of constitutional amendment and such an amendment cannot be held to be impermissible or beyond the purview of article 368. Article 368 itaclf gives, inter .Jia, the power to amend article . 368 . and an amendment of arliclc 368 which has been brought about in the manner prescribed by that .. article would not suffer from any constitutional or tegal infirmity. [pp. 721 to 723]

/ermish Ryan v. Mischael Lennon, [ 1935] Irish Reports 170, referred to.

The Constitution Twenty Fourth Amendment Act 111111 ('llll<d in aecortanu with the pro<edu~ laid down in Artick 368 of .Ille, C0111ti1Ution 111 it existed bef<>re the passing of the said, Act. The Aci doe1 nor suffer from any infirmity and 111 such is valid. [l'P· 737, 759]

The amendmenll in article 31(2) and the addition of d. 2(B) of the Constitution Twenty Fifth Amendment Act are permissibk under tll'#,Z, 368 and are, theref<>re, valid. [pp. 739, 741, 759]

The amendment made in atticle 31(2) by substituting the word "amount" for the word "compensation" is necessarily intended to- get over the difficulty caused by the use of the word "compensation". What.ever may be the connotation ol the word 'amount' it would not affect the validity of the amendment made in article 31(2). There is no infirmity in the changes made in article 31(2). [p. 739]

Bela Banerjee, [1954] S.C.R.'558, Vl>jravelu Mudaliar, (1965] l, S.C.R. 614, Shanll1al Manga/das, [1969] 3 S.C.R. 341 and R. C. Cooper, [1970] 3 S.C.R. 530, referred to. By the addition of cl. (2B) the amendment seeks. to overcome the effect of the decision of this Court in R. C. Cooper v. Union of India, [19701 3 S.C.R. 530 that article 19(1)(£) and 31(2) arc not mutually exclusive. The change made by the addition of clause (2B) in atticle 31(2) is permissible un.dcr article 368 .and cannot be held to be invalid. [ p. 741]

The first part of artick 31C introduced by ConstilUtion Twenty Fifth Amendmeal i1 valid. [p. 759]

The first part of article 31C is similar to article 31A except in respect o! the subject matter. Both articles 31A and 31C deal with right to ptaperty. The objective of article 31C is to prevent concentration of wealth and means of ·production :ind to ensure the dillribution of ownership and the aintrol of the material resources of the community for the common gi>od. Article 31C is thus essentially an extension of the principle accepted in article 31A. Article 31A having been held to be valid during all these years its validity

ainnot now be questioned on account of the doctrine of start Je,isis. The pound which sustained the validity clause (!) of Article 31A would equally .. stain the validity of the first part of article 31C. (pp. 743, 744]

Sankari Prasad v. Union of India, (1952 JS.C.R. 89 and Lmer v. Garnet, 258 U.S. 130 referred to.

The second part of article 31C contains the seed of nau·onal disintegration and is invalid on the grounds: (i) It giv<S carte blanche to the kgislll-ture to make any Jaw (liolotive of artkkt 14, 19 and make it immune from attack by inst1·ting tJie requisite declaration. Article 31C taken along with its second part, gives in effect the power to the legislature, including State Legislature to amend the Constitution in important respects; and (ii) it goes beyond the permissible limits of what constitutes amendment under article 368 since the exclusion of even limited judicial rtview strikes at the basic structure of the Constitution. [pp. 759, 760]

The effect of the second part of article 31C is that even though law is in substance not in fustherence of the objects mentioned in articles 39(b) and (c) and has only a· slender connection with those objects, the declaration made by tile legislature would stand in the way of party challenging it on the ground that it is not for the furthcrcncc of those objects, power is thus conferred to make declaration in rcspcc_t of any law made in violation of the provisions of articles 14, 19 and 31', and, in further ~powering the state legislature to make laws immune from attack on the ground of being violative of articles 14, 19 and 31 by inserting the requisite _declaration, the authority vested with the power to make amendment under Uticle 368 has in cffCct delegated or granted the power of amendment in important respect to state legislature. The power of amendment being of such vital importance c.an neither be delegated nor can those vested with the authority tCJ amend abdicate that power in favour of another body. Article 31C taken along with the second part relating to the declaration departs from the scheme of article 31A, becaui..e, while the protection afforded by article 31A is to laws ma~~ ~or specified subject the immunity granted under article 31C can be a\. ... ucd of even by laws which have not been made for the specified objects. Judicial review is an integral part of the constitutional system. It is open to the authority amending the Constitution to exclude judicial review regarding the , validity of an existing statute. It is like-wise open to the authority to exclude judicial review regarding the validity. of statute which might be enatctcd by the legislature in ~ture in respect of specified subject. In such an event judicial review is not excluded for finding whether the statute has been enacted in respect of the specified subject. Both the above types of Constitutional amendments arc permissible under article 368. What is not permissible is third type of Constitutional amendment according to which the amending authority not merely exclude judicial review regarding the validity of statu~ which might be enacted by the legislature in future in respect of specified ... bjcct, but also exclude judicial review for finding whether the statute enactea by the legislature is in respect of the subject for which judicial review has been excluded. The position under article 31C is that though judicial review has been excluded by the authority making the Constitutional amendment the law in respect of which judicial review has been excluded is one yet to be passed by the legislatures. In view of the conclusive nature of the declaration it would be straining the language of article 31C to hold that court can, despite the requisite declaration, go into the question that it docs not give effect to the policy of the State to\vards securing the principles. specified inclauses {b) or {c) of article 39. Therefore, the second part of article 31C goes beyond the permissible limit of what constitute amendment under arti(:le 368 and strikes at the basic structure of the Constitution, The second par,t of the article and its invalidity will not affect the validity of the remaining part. [pp. 745 to 756]

The Constitution (Twenty Ninth) Amendmmt Act does not •·uf]er from any infirmity and as such is valid. [p. 760]

The oontcntion that articles 31B and 31A arc linked together and that only such enactments can be included in the Ninth Schedule as falf within the ambit of article 31A was repelled by this Court in fuieebhoy v. Assistant Co/. lector, Thana (1965] I S.C.R. 636. There is no cogent ground to take different view. [p. 757] Mathew, f. : The Constitution Twenty Fourth, Twenty Fifth and Twenty Ninth Amendments arc valid. [pp. 856, 857] The dec,Jion .in the Golaknath ca1e that Parliament haJ no power to amend fundamental rights in such way as to take away or abridge them wru wrong. The pow"' to amend under article 368 as it stood before the Twenty Fourth Amendmnit was plenary in character and extended to all provisions •f the Constl:tution. The Twenty Fourth Amendment did not add anything to the content of ortl'cle 368 as it stood before the amendment. The amendment is d«laratory in character except as regards the compulsory nature of the astent of the President to Bill for amendment. Under the article as amended all th1 provisiont of the Con1titution can be amended by way of addition, variall'on or repeal. The only limita#on it that the Constitution cannot be refealed or abrogated in the exercise of the power of Rmendment without substituting • mechanism by which the State is constituted and Mganised. That limitation flowt from the language of the article itself. r p. 857]

Although the word amendment has variety of meanings we have to ascribe to it in the article meaning which is appropriate to the function te be played by it in an instrument apparently intended to endure for ages te rome and to meet the various crises to which the body politic will be subject. The nature of that instrument demands awareness of_ certain presuppositioo. The Constitution has no doubt its roots in the past but was designed prima~ily for the unknown future. No existing constitution has reached its final form and shape and become, as it were, fixed thing incapable of further growth. In interpreting Constitution the Court should avoid narrow and pcndanbc approach. Everything turns upon the spirit in which Judge approaches the question before hiin. The words he must construe arc, generally speaking, mere vessels in which he can pour nearly anything he will. Seeing therefore that it is "Constitution that we arc expounding" and that the Constitution makcn had before them several Constitutions where the word "amendment" « "alteration" is used to denote plenary power to change the fundamentals of the Constitution, the word amendment cannot be given narrow meaning; but being familiar c:xprcssion it was used in its familiar ,.J.cgal sense. The power to amend under that article included the power to add any provision to the-Constitution, to alter any provision, substitute any other provision in its plaoe and delete any other provision. But, when the article said that on tht bill far the amendment of the Constitution receiving the President's assent "the Cou-titution shall stand amended" it seems to be fairly clear that simple repe81 or abrogation of the Constitution without substituting anything in the place of the repealed Constitution would be beyond the soope of the amending power, for it, Constitution were simply repealed it would not st.and amended.Sankari Prasad v. The Union of India, [1952] S.C.R. 89, Saiian Singh •· The State of Rajasthan, [1965] I S.C.R. 93.l, Golaknath v. State of Punjab, (1967] 2 S.C.R. 762, Rhodt Island v. Polmer, 253 U.S. 360, State (At the Prose-cution of Jeremiah Ryan and Others) v. Captain Michsel Lannon and Others, [1935] Irish Reports 170, Re the Central Provinces and Berar Sales of Motar Spirit and Lubricants Taxation· Act, 1938, etc. [1939] F.C.R. 18, The Queen v. Buroh [1878] 3 A.C. 889, 904-905, Attorney General for Ontario v. Attorne7 Gen<ral for Canada (1912] A.C. 571 at 583, referred to.

In rigid Constitution there is limitation upon the power of the legis-lature by something outside itself. There is greater law than the law of dit: ordinary legislature and that i$ the law of the Constitution which is of superior obligation ~nknown to flexible Cons.titution. If special procedure is pres-cribed by the Constitution for amending it, different from the procedure for pas<ing the ordinary law, then the Constitution is rigid. [p. 770]

Arti~le 368 as it stood before the Twenty Fourth Amendment contained not only the procedure but also the substantive power of amendment. As the article laid down procedure different from the· procedure for passing ordinary law our Constitution is rigid one and the power to amend Constituent power. The vital distinction between Constitutional law and ordinary law in rigid Constitution lies in the criterion of the validity of the ordinary law. An ordinary law, when questioned, must be justified by reference to the higher law embodied in the Constitution; but in the case of Constitution its validity is, generally speaking, inherent and lies within itself. Once it is realised that Constitution differs from law in th.at law is valid only if it is in conformity with the Constitution and that the body which makes the ordinary law ii not sovereign, but derives its power from the Constitution, an amendment to the Constitution has the same validity as the Constitution itself, although the question whether the amendment has been made in the manner and form and within the power· conferred by the Constitution is always -justiciable. Just as an ordinary law derives its validity from its conformity with the Constitution, so also, an amendment of the Constitution derives its validity from the Cons· titution. An amendment of the Constitution can be ultra vires just as an ordinary law can be. [pp. 769, 771, 772]

The word law in Article 13(2), in the context could only mean an ordinary law. If the power to amend was to be found within article 368 and not under Article 248 read with entry 97 of List I of the Seventh Schedule, it stands to reason to hold that the Constituent power for amendment of the Constitution .is distinct from Legislative power. The legislative power of Parliament under entry 97 of List I of the Seventh Schedule is exclusive and the power to amend cannot be located in that entry because in respect of the matters covered by the proviso to. article 368 Parlia1nent has no exclusive power to amend the Cont~ titution. Apart, 'the power to amend rigid Constitution not being an ordinary legislative power but Constituent one, it would be strange that the Constitution n1akers put it su/J..silentio in the residuary legislative entry. Article 368 was clear that when the procedure prescribed by the article was followed, wluit resulted was an amendment of the Constitution. The ·article prescribed proce· dure different from the legislative procedure prescribed in article 107 to 111 read with article 100. [pp. m-7751

There is distinction bctwccn general power to legislau: and po-to lcgislat<: by special legislative procedure and the result of the exercise ti the two powers are different. Mc Cawley v. The King and The Bribery Com· missioner v. Pedrick Rana Singhe do not •how that the power to amend tile

<Anstitution is legislative power. The substance of the decision in Ra~• SingAe's case is that though the Ceylon Parliament has plenary power ,. ordinary legislation, in the exercise of its Constituent power it was subject to the special procedure laid down in s. 29{4). The decision therefore makes clear distinction between lcgisl_ativc and Constituent powers. Again, there is no analogy between power of amendment in Omada which is le&islativc in character and the power of amendment under article 368 which is Constituent power. Under Controlled C-onstitution like ours the power to amend cannot. be legislative power; it can only be Constituent power. [pp. 776-779)

The argument that if fundamental righu were intended to be amended in such way as to abridge or taken them away considering the paramount importance of the rights the procedure required by the proviso to article l68 would have been made mandatory overlooks the purpose of the proviso. The purpose of the proviso is that ~ rights, powers and privileges of the States or their status as states should not be taken away or impaired without their participation to some extent in the amending process. [p. 779)

Golaknath case [ 1967] 2 S.C.R. 762, held incorrect.

Mc Cawley v. The King [1920) A. C. 691, The Bribery Commissioner Pedrick Ranasinghe [1964) 2 W.L.R. 1301; [1965) · A.C. 172, explained.

The Bribery Commissioner •·

Contemporaneous practical exposition is valuable aid to the mcllDing of provision of the Constitution or statute. The Constitution (First Amendment} Act amended the Fundamental rights under Article 15 and 19 in such way as to abridge thCJn, Even the strong opponents 0£ the amendments never made whisper of suggestion in their speeches that fundamental rights were not amendable. If the debates in the Constituent Assembly can be looked into to understand the legislative his::ory of provision of the Constitution including its derivation, that is, the various steps leading upto and attending its enact-ment to ascertain the inten~on of the makers of the Constitution, it is difficult to see why the debates arc inadmissible to throw light on the purpose and gmcral intent of the provision. After all, legislative history only tends to reveal the legislative purpose in enacting the provision arid thereby sheds light upon legislative intent. That it was Dr. Ambedakar's view that all the articles could be amended is clear from his speeches in the Constituent Assembly. He refuted the suggestion that fundamental rights should be absolute and unalterable. The framers of the Constitution would have specifically provided for an cxccp-tion in article 368 if they wanted that the fundamental rights should not be amended in such way as to take away or abridge thctn. [pp. n9 to 785]

A. K. Gopalan v. The Stat< of Madras, [1950) S.C.R. 88, StaJ< of Tr•uan-"'..Cochin and Oth'ers v. The Bombay Co. Ltd. etc., [1952) S.C.R. 1112, Golaknath Case, [1967) 2 S.CR. 762, 791 Madhav Rao v. Union of India, [1971) 3 S.C.R. 983, Union of India v. Harbhaian Singh Dhillon, [1971) 2 S.C.C. n9, n:ferrcd to. It was necessary to incorporate article 13{2) in the Constit""'"' to indicate the extent of the invasion of the fundamental right which w·-t•ld make the impugned law void. Every limitation upon fundamental right would ~ot be an abridgement of it. Whether specific law operates to abridge • s1>ecilically given fundamental right cannot be answered by any dogma whcthe~ of • priori assumption or of mechanical jurisprudence. The Court ~ust amvc at value judgment as to what it is that is to be protected from abr1dgc_mcnt and then it must make further value judgment as to whether the law impugnedrally amounts to an abridgancnt of that right. In this process the Court will have to look to the Direclive Principles in Part IV to sec what exactly is the conientof the fundamental right. The Court would generally be more astute to protect personal rights than· property rights. [PP: 785, 786]

.A.. _K. Gopalan v. State of Madras, [1950] S.C.R. 88 .

. .'TAtrt .,., no implied or inA~I limitations upon the power of •"""""""' uildtr .Fticle 368. [p. 857]

. The basic premise of the argument that there are inl¥orcnt and implied limitations is that the ultimate legal sovereignty under the Constitution resides in ·the peaple. The Constitution was framed by an assembly elected indirectly on .. limited ,franchise. and . the Assembly did not represent the vast majority ol the people of the Country. It does not follow that because the people of India dld. not frame the .. Constitution or ratify it, the Constitution has no legal validity. If the legal source for the validity of the Constitution is not that it was framed by the people, the amending provision bas to be construed on its own ~nguagc without reference to any extraneous c.onsidcration as to whet.her tlie people did or did not delegate all their Constituent power to the amending body or that. the people reserved to themselves the fundamental rights. Even on the assumption that it was the people who framed the Constitution could it be said that after the· Constitution was fra.m<d the people still retain and can exercise their sovereign constituent power to amend or modify the basic slriicture or the essential features of the Constitution by virtue of their legal sovereignty I [pp. 78&.790]

Seeing however that the people have no constitutionill or legal powa assigned to than under the Constitution and that by virtue of their political supremacy, they can unmake the Constitution only by method not sanctioned by the ;uridical order, namely, revolution, it is difficult to agree that the kglll soverdgnty under the Constitution resides in the people or that as the ultimate legal sovereign the people can constitutionally change the basic structure of the Constitution even when the Constitution provides for specific mechanism for its amendment. If sovereignty is said to exist in any sense at all it must exist in the amending body. Under the Constitution the people have delegated the power to amend the instrument which they created to the amending body. It was in the exercise of the constituent power that the people framed the COnstitution arid invested the amending body with the power to amend the very instrument they created with superadded power to amend that very 1'9Wer. The instrument they created, by necessary implication, limits the further curcise of the power by them, though, not the possession of it. There is disti~ction between possession of right or power and the exercise of it. The people having delegated the power of amendment that power cannot be esercised in any way other than that prescribed nor by any instrumentality otl\er than that desi~nated for that purpose by the Constitution. The Cons-ti~nt .power is the power exercised in establishing Constitution, that .is, the fundamental decision on tcvolutionary reasons tcr the org:anisation and limita-tion of new. Government. From this Constituent oowcr must be distinguished die. amending ·~~r which_ changes an existing Constitution in form provided bf. the. Constitution itself. for the amending power is itself . constituted aulhority. To. say that nation can still exercise unlimited constituent power • having framed· constitution vesting plenary power of amendment under ir'·in'.•, ... para. te l?od.Y· is only to say that the people have the political power t9 #9se the ei<istiiig order by means of revolution. But this doctrine cannatbe advanced to t"lacc implied limitations upon the amending power provided in written constitution. It is only in revolutionary sense that one can distinguish between Constituent power and amending power. It is based on the assumption that the constituent power cannot be brought within the fram.e-~;ork of the Constitution. The proposition that an unlimited amending authority cannot make any basic change and that the basic change can be made only by revolution is something extra legal nt> Court can countenance. Under the Indian Constitution the original sovereign-the people-crea~d by the amending clause of the Constitution lesser sovereign almost co-extensive in power with itself. It might be open to the amending body to amend article 368 itself and provide for referendum or any other method for ascertaining the will ot ·the people in the matter of amendment of fundamental rights or any other provi-sion of the Constitution. If the basic and essential features of the Constitution can be changed only by the people and not by Constitutional authority like the Amending body, was it open to the amending body, or would it be open to the amending body today to amend article 368 in such way as to invest the people with that power to be exercised by ~ferendum or any otlier popular device ? [pp. 791 to 796]

Mc Cu/loch v. Maryland, [1819] 4 Wheat 316, State of Wen Bmgal "· Union of India, [1961] I S.C.R. 371, 396-398, Chii/iolm v. G<Drgia, [1793] 2 Dallas 419, 470'471, Huth v. Clarks [1890] 25 Q.B.D. 391, 395; Dodge"· Woolsey [1856] 18 How. 331, 348, and Cohens v. Virginia, 6 Wheat (19 U.S.) 264, 381, referred. to.

The Preamble is part of the Constitution. That being so there ;. no valid reason why the preamble cannot be amended. The broad concepts of justico-social, economic and political, equality and liberty thrown large upon the canvas of the preamble as eternal verities are mere moral adjudication with only that content which each generation must pour into them anew in the light of its own experience. An independent judiciary cannot seek to fill them from its own bosom. If it were to do so, in the end it will o:asc to be independent. For country struggling to build up social order for freeing its teeming millions from the yoke of poverty and destitution, the Preamble cannot, afford any due to the priority value of these concepts inter se. And, for makini the experiment for building up the social order which the dominant ~ of the community desires, these delphic concepts can offer no sol11noo in respect of their priority value as among themselves. They olfcr no guide in what proportion should each of them contribute, or which of them sha\dd suffer subordination or enjoy dominance in that social order. How then am one of them operate as implied limitation upon the power of amendsiicllt wbcA lhe object of th<: amendment' is to give priority value to the otbel' Of et.bal , [jip; 796 to ?!leJ

Betubari Case [1960] 3 S.c.R. 250, 281, 282; Aod'1'10fO v. Dful• 6 'Wi. 204; 206 U.S. 1821; referred to.

The theory of implied limitation propounded might .;;,vi~.~ ~ <hat "it is an interpretation of the Constitution depending ,Oil an · ;n,plicldaii which is formed on. vague, .indiyidu";i ~n~ption of the lpirit of the: ~' Whenever the quesaon of unphed limitaaon upon the power of ....,;,,~~· was raised courts have not countenanced the contention.- There is. no ~ tO think that the word 'amendment' was used in any narrow 9CllSC in articlt1l. and that the power to amend un<IQ- that article was in an1 ·wa1 limi. , · . • there is power the fact tha. t it might be. obuse. . cl is 110 ground .fm. cuainJ .~ iti. width. Tb< <~111il>n that if.fh,e ·~. t() ,ainell'I fliil~tal • 14 such way as to take away or abridge them ;. to Vest in Parliament, rt-w.iui.r•ing about ,catastrophic conscqucnus has an air of unreality when tosted In lhe light of what has happened between 1951 when S•nlc.ari PrasaJ's case recog-nised the power of the Parliament to amend the fundamental rights and 1967 ,.bcn the Gol./r..1lllth case was decided. It should be remembered that Parlia-ment when it exercises its power to amend fwidamental rights is as much the pardian of the liberties of the people as the Courts. [pp. 799 to 814]

Rhode Island v. Palmer, 253 U.S. 350, explained.

Leser v. Garnetl, 258 U.S. 130, U. S. v. Sprague, 262 U.S. 716, Sch•eiderman Y, U. S. 320 U.S. 118, 137-145, U. S. v. Dennis, 183 Federal Reporter 2d. 201, Ind Whiuhill v. Elkins, [1967] 189 U.S. 54, 57, referred to.

Ryan's case, [1935] Irish Reports, 170, Moore v. Ateorney General for the lri1h Stat<, [1935] A.C. 448, referred to.

Liyanag< v. The Queen, [1967] 1 A.C. 259, explained.

Web v, Outrim, [1907] A.C. 81 (P.C.) referred to,

Alberta Prm Case, [1938] 2 D.L.R. 81, Saumur v. City Quebec, [1953] 4 D.L.R. 641, &. th< Initiative and Referendum Act, (1919) A.C. 935, 945, A. G. Ontario v. A. G. Canada, [1912] A. C. 571, Shannon v. Lower Mainland D.;ry Products Board, [1936] A.C. 708, Taylor v. Attorney General of Qu=i" lond, 23 C.L.R. 457, held inapplicable.

Mangal Singh v. Union of India, [1967] 2 S.C.R. 109, l\Cld inapplicable.

Victoria v. Commonwealth, 45 Australian Law Journal, 251 and Amalga-••14d Society of Engineers v. Adelaide Suamship Co. Ltd. [1920] 28, C.L.R. 129, referred to.

Queen v. Burah, [1878] 3 A.C. 889, held inapplicable.

Mc Culloch v. Marylanil [1819] 4 Wheaten 316, Essendon Corporation v. Cril<rion Theatres, [1947} 74 C.L.R. 19-22 and State of West Bengal v. Union II/ India, A.I.R. 1963 S.C. 1241, referred to.

Vacher •nd Sons v. London Society. of Compositors, [1913] A.C. 107, at p. 121 & 128, Bank of Tot"onto v. Lambe, [1887] 12 A.C. 575', 586, Ez-parte Crostman, 267 U.S. 120, 12, referred to.

To appreciate the argument that there is inherent limitation on the power oi Parliament to amend fundamental rights it ;. ncceosary to undcrstatld the source from which these rights arise and the reason for their fundamentalness. Natural rights are those rights which arc appropriate to man as rational and moral being and which are necessary for guod life. Although called 'rights' they arc per se enforceable in Courts unless recognised by the positive law of State. The word 'right' has to be reserved for those claims rccog· ailed and protected by law. There arc rights which inhere in human beings .Lcausc they arc human beings; whether you call them natural rights or by lllJle other appellation is imruaterial. As the Preamble indicates, it was to ..auc the basic human rights !\kc liberty and equality that the people gave -thetnse!Yes the Constitution and these basic rights are an essential feature w tho Constitution; the Constitution was also enacted by the people to sc.curc jlistile;, ,,political, .ocial . and economic. Therefore, the moral rights embcidied , in Part IV of the Constitution arc equally an essential feature of it, the onlydiffereace being ·that the moral rights embodied in Part IV arc not spocilically enforceable as against the State by citiun in Court of law in case tho State fails lo implement its duty ; but nevertheless, they are fundamental in tho governance of the country and all the organs of the State, including the judiciary, are bound to enforce tloose directives. The Fundamental Rights themselves haft .no fixed content ; most of them are mere empty vessels into which each ·gene-ration must pour its content in the light of its ~pcricncc. Rcstrictiom, abridgement, curtailment, and even abrogati9n of these rights in circumstanca, not visualized by the Constitution makers might !xcomc ncc.cssary; their claim to supremacy or priority is liable to be overborne at particular stages in the history of the nation by the moral claims embodied in Part IV. Whether at particular moment in the history of the nation, particular Fundamental Right should have priority over the moral claim embodied in Part IV or mWt yield to them is matter which must be left to bC decided by each gencratioa in the light of its experience and its values. And, if Parliament, in its capacilJ as the Amending Body, decides to amend the Constitution in such way. • to take away or abridge Fundamental Right· to give priority value to d!e moral claims embodied in Part IV of the Constitution, the Court cannot adjudge the constitutional amendment as bad for the reason that what was intended to be subsidiary by the Constitution makers has been made dominaat. Judicial review of constitutional amendment for the reason that it gives priority value to. the moral claims embodied in Part IV over the Fundamental Rights embodied in Part III iJ impermissible. Many of the articleJ, whether .ia Part III or Part IV, · represent moral rights which they have recognis<d • .inherent in every human being in this country. Taking for granted that, ..,. and large Fundamental Rights arc the extensions, permutations and· combina-tions of natural rights in the sense explained, ft docs not follow that then: ii any inherent limitation by virtue of their origin or character 'in their bcins taken away or abridged for the common good. The source from which tbao rights derive their moral sanctiOn and transcendental character, namely, IS natural law, itself recognlzes that natural rights are only prim11 fad• rip. liable to be taken away or limited in special circumstances for scCuring higher values in society or. for it.s common good. But. the responsibility ol. Parliament in taking away or abridging Fundamental Right is an aweoomo one and whenever question . of constitutional amendment which will ha.,. the above effect comes up for consideration, Parliament ~wt be aware this they are the guardians of the rights and liberties of the people in 2IU*"' degree than the courts, as the Courts cannot go into the validity o1 diio amendment on any substantive ground. [pp. 814 to 836]

State of W•st B.ntal v. Subodh GopaJ (1954) S.C.R. 58i, 596, Bas•hisNir Nath v. Commission.,. of Jm:om• Tar, Delhi, "'" [1959] Supp. 1 S,C.R. 521, 605, State of Miuiras v. Cham{Nlkam [1951) S.C,R. 525, Rom.,A Tn.fM! J: State of Madras, [1950] S.C.R. 594, State of Bihor v. Shailahala D"1i [l952J ·s.c.R. 654, LJch,,.,. v. New York 198 U.S. 45, State of Madras v. V. G. R..,. [1952] S.C.R. 597, foint Anti-Fascist &fugee Committe• v. Me GraiJ. 341 t/'.S. 123, Munici[Nll Committee v. The State of Punjab [1969) 3 S.C.R,:4471 4~, Collator of CYstoms v. Sampathu [ 1962] 3 S.C.R. 786, 816, Abbqs v. Uni<>*~ India [1971) 2 S.C.R. 446, 470, Quamhi v. S141te of Bih11r. [1959J S.C.R. , Namth v. State of M11Aarasl11ra [1966) 3 S.C.R. 744, C.,.,... v. T'!"'l 177 J.1 442., 447, referred tD.

Thus, there were no apress or implied limitations upon the . poooer Parliament to amend the Fundamental Rights in such ""'Y u tD ~ er damage eYen the core or essence of the ripu. Tbe 24th A""""-t.. " .

its language, makes it clear beyond doubt. Ju the majority decision in the Golaknath case negatived the constituent power of the Parliament to amend the Fundamental Rights in such way as to take away or abridge them which,. according to the Amending Body, was wrong, the Amending Body passed the amendment to make it clear that the power to amend is located in the article, that it is constituent power and. not legislative power as held by the majority decision in the Golaknath case, that the power is plenary in character and that article 13(2) is not bar to the amendment of the Fundamental Rights in such way as to take away or abridge them under article 368. That the object of the amendment was declaratory in character is clear from the statement of Objects and Reasons for the Amendment. - An Amending Body can in the exercise of its power to amend, if the power to amend is plenary, make an amendment in order to make clear what was implicit in the article and correct judicial erri>r in the interpretatioa of the article. [pp. 836, 837]

Even if it be assumed that the actual power for amendment under the arti<:le was limited, the article gave the Amending Body potential power, to cnlarp or contract the limit of the actual power. The potential power, when exe1cise.d by the Amending Body, makes the actual power either enlarged or contracted, (p. 837]

The word 'amount' in article 31(2) as amended by Constitution Twenty Fifth Amendment does not convey the idea of tlflJ norm. The fixation of the amounf or the principle for determining the amoum is 11 matter within the absolute discretion of the Parfument or the State l<gi1latwes. The Court cannot go into the question whether the omount fized by law or the prfn ... ciple; laid down for determining the amount is adequak M relevant. [p. 846]'.

It is mistake to speak of property as jf it were an institution having a. fixed content constantly remaining the same; whereas, in reality it has assumed most diverse forms and is still susceptible to great unforeseen modifications. It is necessary to distinguish at least three forms at private property ; (I) property in durable and non durable consumer goods; (ii) property in the mean• of production worked by their owners; and (iii) property With means of produc=. tion not worked or directly managed liy the ow~rs, especially th<! accumulations. of masses of property of this kind in the band& of relatively narrow class.. While the first two forms of property can be justified as nccesaary conditios. of free and purposeful life, the third =-· For this type of property Hive•. power not only over thing>, but through t:Nngs ovu pc:nons. It is open io.. the charge made that any form of propetty whieh givts man power over nw> is not an instrument of freedom, but, of "'rvitude. AJ>y defence of the right to own and hold property must essentially be the defence of wclJ distributed. property and not an abstract right that can, in practice, be cxerciS<d only by· the few. [pp. 840, 841] ·When· property is acquired for implementing the directive principles under article 39(b) or 39{c), is there an ethical obligation upon the State to pay tlte full market value? AJl adequate theory of social justice should enable one ta. draw the line between justifiable and unjustifiable cases of confiscation. The whole purpose of the amendment is to exclude judicial review of the question·· whether the 'amount' fixed or the principle laid down by law is adequate or relevant. Fixation of the amount or the laying clown of the principles for fixing it is left to the absolute discretion of the Parliament or the St.au: Legislatures ?n .the ~asis of con;;ide:ati~~s of social justice. And, the principle of social JUsllce will not furmsh 1ud1aally manag<able st1ndards either for testing the· adequacy of the amount on the n:levmcy of the principle. [pp. 842 to 846] S-36 S.C. India/71

[His lordship did not find it necessary to go into the question whether law fixing an amount which is illusory or which is fraud on the Constitution can be struck down by Court. [p. 847]

The declaration vizualized by article 31C that the law gives effect to the policy of the State towards securing the principles specified in article 39(b) and (c) of the Constitution would not oust the jurisdiction of the Court to go J·nto the question whether- the law gives effect to the policy. The juris-diction of Parliament or the- State legislatures to incorporate the declaration in law is conditioned upon the circumstance that the law is one few giving ~ffect to the State policy towards securing the aforesaid pn·nciples. [pp. 854, 855]

If the 24th amendment which enables Parliament to make an amendment of the fundamental rights in such way as to take away or abridge them is valid, what is there to prevent Parliament from enacting Constitutional amendment making it possible for Parliament or state ,legJ;latures to pass laws for implementing the Directive Principles specified in article 39(b) and 39(c) which would be immune from attack on the ground that those laws violate articles 14, 19 and 31 I Article 31C is proviso to article 13(2) in that it enables Parliament or State Legislatures to pass laws of particular type which would not be deemed to be void even if they violate the provisions of articles l4, 19 and 31. Artic:le 31C merely carves out legislative field with reference to particular type of law and exempts that law from the ambit of article 13(2) in some respects. Merely because law passed by the Parliament or the State Legislatures to give effect to the policy of the State towards securing the Directive Principles specified in article 39(b) and { c) in pursuance to valid legislative entries in the appropriate lists, might violate the fundamental rights under article 14, 19 and 31 and such law is deemed not void by virtue of article 31C, it would not follow that article 31C has invested Parliament in its legislative capacity or the State Legislatures with power to amend the Cons-titution. It is not for the Court to prescribe for the society or deny the right of experimentation to it within very wide limits. [pp. 854, 855] law which will never give effect to the State policy towards securing the principles in article 39(b) and article 39(c) will enjoy no immunity if any of its provisions violates these articles. The legislative jurisdiction to incorporate declaration that the law gives effect to the policy of the State is conditioned upon the circumstance that the law gives effect to the policy of the State towards securing the directive principles specified in article 39(b) and (c). The declara-tion can never oust the jurisdiction of the court to see whether the law is <inc for giving effect to such policy, as the jurisdiction of the legislature to incorporate the declaration is founded on the law being one to give effect to the policy of the State towards securing these principles. In order k> decide whether law gives. effect to the policy of the State towards Securing the Directive Principles specified in articles 39(b) or (c) Comt will hawe 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 \vith its object and scope. [pp. 855, 856]

Beg. /: Concurring with Ray. Palekar, Mathew and Dwivedi, II: The Constitution Twenty Fourth, Twenty Fifth and Twenty Ninth Amend-ments are valid. [pp. 885, 886]

We should approach the questions placed before us from the pragmatic angle of the changing nC.ds of social and economic orders visualised by those who were or are the final judges of those needs in exercise of the constituent power. [p. 882]

It is clear from lhe Preamble as well as the provisions of Part III and IV uf our constitution that it seeks to express the principle SaluJ Pofuli Supre'ma Lex. In other words, the good ·of the mass of citizens of our country is lilic supreme law embodied in our constitution. The voice of the people ~king through the Constituent Assembly, ·constituted new "Republic" which w'as both "Sovereign and Democratic... It sought to secure the noble objectives laid down in the Preamble primarily through both the fundamental rights foun~ in Part lII and the Directive Principles of State Policy found in Part IV of th¢ Constitution. It would not be correct to ch',aracterisc the fundamental rights 3$: merely the means and the directive principles as the ends of the endeavours of the people. lndecd, from the point of vieVf of the Preamble both fundamental rights and directive principles are means of attaining the objectives which were meant to be served both by the fundamental rights and Directive principles. Perhaps, the best way of describing the relationship between the two would be to look upon the Directive Principles as laying down the path of the country's progress towards the obiectives stated in the Preamble, with fundamental rights as limit of that path, like the banks of flowing river, which could be amended or mended by displacements, replacements or curtailments or enlargements of any part according to the needs of those who are to use that path. careful reading of the debates in the Constituent Assembly leads to this premise or assmuption. If the path needed widening or narrowing or changing the limits could be changed. The nlandate of article 37 is primarily addressed to the Parliament and State legislatures. But in so far as courts of justice can indulge in some judicial law making, within the interstices of the Constitution or any statute before them for construction, the Courts too are bound by th.is mandate. Another valid and significant distinction is that whereas the fundamental rights are 11conferred" upon citizens with corresponding obligations of the State, the Directive Principles lay down specific duties of the State organs. In conferring fundamental rights freedom of individual citizens, reviewed as individuals, were sought to be protected, but in giving specific directives 'to state organs, the needs of social welfare, to ·which individual freedoms may have to yield, were put in the forefront. reconciliation between the two is to be always attempted whenever this is reasonably possible. But there could be no doubt, in cases of possible conflict, which of the two had to be subordinated, when found embodied in laws properly made. [pp. 861 to 865]

Motilal v. Government of the Stale of Ullar Pradesh, A.LR. 1951 S.C. 257, 296; Balwanl Rai v. Union of India, A.I.R. 1968 All. 14, referred to.

There is well known distinction between "political sovereignty" and "legal sovereignty". Legally the British Parliament transferred the whole of its legal sovereignty over the people and territories of this Country to the Cons-tituent Assembly. Thus legal sovereignty was vested in the Constituent Assembly whereas the people of India may be said to be only politically "sovereign". The political sovereign operated outside the ambit of law, yet, made its impact and effect felt upon the legal sovereign, the Constituent Assembly. In recogni-tion of this fact and to bring out that it was really speaking on behalf of the people of India the Constituent Assembly began the Preamble with the words 11we the people of India". This meant nothing more than that the Constituent Assembly spoke for the people of India even though it was vested with the legal authority to shape the destiny of the Country. through the Constitution framed by it. There is not to be found, anywhere in the Constitution, any transfer of legal sovereignty to the people of India. The Constitution is the 'legal sovereign recognised by courts although the ultimate political sovereignty reside in "the people". The sovereignty of the Constitution is "Eca:ture

inherent in genuine whole". It is not vested in all its aspects in any one of the three organs of the State, but, may be divided between them. The Constitu-tion divides or distributes legal sovereignty into three branches or organs of the State-the Legislative, the Executive and the Judicature. The sphere 0£ sovereignty of each is sought to be so demarcated by our constitution that the "genuine whole" appears in the form of three intersecting circles. In. those portions of these circles where the judicial power intersects the legislative and the executive powers, the judicature acts as the supervisor or guardian of the Constitution and can check legislative or executive action. But in the remaining parts of the two intersecting circles of the legislative and executive spht:res, the two other branches are supreme legally just as the judicature is in its own. The judicature is the ultimate testing authority, as the guardian of the Cons~ titution, in so far as the ordinary law making is conceri1ed. In the sphere of primary fundamental law of the Constitution lies also the amending power contained in article 368 of the Constitution over which the control of the judicature is limited to seeing that the form and manner of the amendment is properly observed. [pp. 865-870]

Dicey, Law of the Constitution, Tenth edn. p. 73; Ernest Barker, Principles of Social and Political Theory 59, 61~3; Laski; Grammar of Politics 296-297, referred to.

The Constitqtion is based on the assumption that it is means of progress of all the people of India towards certain goals. The direction towards which the nation is to proceed is indicated but the precise methods by which the goals arc to be attained ar~ left to be determined by the State organs of the future. One generation has no right to tie down future generation to its own vie\vs or laws even on fundamentals. We cannot infer from anything in the language of the unamended article 368 any distinction beyond that found in the more difficult procedure prescribed for amendment of certain articles between mo~e and less basic parts of the Constitution. The function of the amending provision must necessarily be that of an instrument for dynamic and basic [1 ]changes in the future visualized by the Constitution makers. The constitutional function with which the judiciary is entrusted is to see that the chosen vehicle does not leave the chartered course or path or transgress the limits prescribed by the Constitution at particular time. [pp. 871, 872] In Constitution like ours we must strongly lean against construction 1Vhich may enable us to hold that any part of the Constitution is exempt from the scope of article 368 as originally framed. Without express words in article 368 itself to that effect it is not possible to preswne or infer the presence of any causus omisus. Article 13(2) is meant to deal with ordinary laws or the functions of the Parliament and of State legislatures in their ordinary law making capacities. Even if it be assumed that because 'law' is not exhaustively defined by article 13(3) of the Constitution, the term 'law' used there could include the law of the Constitution, another principle of construction apply. Even prior general provision followed by an express provision dealing with particular type of law could reasonably exclude the particular and special from the purview and scope of the general. It is immaterial if the general provision precedes the provision containing special law. [pp. 873 to 877]

Hari Shankar Bagla v. M. P. State, [1955] 1 S.C.R. 380. Mirfin v. Atwood' 1869 L.R. 4 Q.B. 330; Heston lsleworth v. Grout, 1892 2 Ch. 306; Saiian Singh v. State of Raiasthan [1965] 1 S.C.R. 933; Sankari Ptasad v. Union of Indio. [1952] S.C.R. 89 referred to.

[The majority view in Golaknath held erroneous.] [p. 885]

The only 'implied' limitation which can be read into the word 1amcndmcnt' <ls "perhaps" necessarily implied, or, as part of the meaning of the word "''amendment" is the one so characterised by Wanchoo, J. in Golaknath case. In other words it may not include the power of completely abrogating the Constitution at one stroke. It, however, seems wide enough to erode the Cons-titution completely siep by step so as to replace it by another. [p. 877]

We do not today conceive of public good or progress in terms of "'movement from status to contract", but in terms of movement for control -of economic and other kinds of powers of exploitation by individuals. The -emphasis today is upon due performance of their social obligations by individuals before claiming any right, however fundamental or important it may be, because, rights and duties are correlative. [p. 883]

The Constitution is the principal and the source of all constitutionally valid power and authority in the eye of law. Therefore, there can be no question "Of delegation of power of amendment. The declaration contemplated by article 31C is like certificate given after considering the relevancy of the principles •pecified in article 39(b) and (c) and, therefore, the jurisdiction of ihe Court is not ousted. The Courts can still consider and decide whether the declara-tion is really good or mere pretence attached to colourable piece of legisla-tion or to law which has no bearing on or nexus with the principles found in article 39(b) and (c). [pp. 880, 884]

Dwivedi, /.: The Constitution Twenty Fourth, Twenty Fifth and Twenty Ninth Amendments are valid. [p. 938] ·

At bottom the controversy in these cases is as to whether the meaning of the Cons!itution consists in its being or in its becoming. The Court is called upon to decide whether it is prison house or free land or whether it speaks for the few or for the many. TP· 888)

The Constitution of India reflects the hopes and aspirations of the people Qf India, emerging from colonial economy in the second half of the 20th -century. Cons!itutions framed 'in the past for organising political democracy -cannot serve as safe guide in construing the .constitution of India framed for ushering in social and economic democracy. The Constitution bears the imprint <Jf the philosophy of our National Movement for Swaraj. The National Move-ment was committed (1) to wqrk for social ei::onomic and political equality <>f the weaker sections of the people; (2) to disperse concentration of wealth in any form in few hands and ( 3) to acquire property in accordance with law. The men who took leading part in framing the Constitution were animated by these noble ideals. They embodied them in the Preamble to the Constitution; they proliferated them in the Directive Principles of State Policy; they gave ihem ascendency over the rights in Part III of the Constitution (See Articles 15(3), 16(4), 17, 19(2) to (6), 24, 25(a) and (b), 31 (4) (5) and (6)). They made them "fundamental" in the governance of the Country. They are "vital principles" for, when, translated into life, they will multiply the number of owners of fundamental rights and transform liberty and equality from privilege into universal human right. It will be legitimate to bear in mind the pre-emptive significance of Part IV in understanding the Constitution. [pp. 888 to 8921

Ruidence of amending power

Despite the marginal note to article 368 which indicates that Article 368 is prescribing the procedure for amendment, sevc~al considerations clearly sho:w that the amending power is located in article 368. The power cannot reasonably be located in Entry 97 of List I of Schedule Vil read with article 248 of the Constitution. Article 368 provides specifically for procedure for amending the constitution and when the prescribed procedure is followed 11the Constitu-tion shall stand amended in accordance with the terms of the Bill". Who can bring about certain result may truly be said to have the power to produce that result. Power to amend the Constitution is accordingly necessarily implied in article 368. The procedure prescribed in arJcle 368 is the exclusive procedure for amendment of the Constitution. The word 'only' in article 368 rules out all other procedures for amendment. [pp. 892 to 894]

Natur~ of amending power

The amending power conferred by article 368 is constituent power and not legislative power. The framers of the Constitution made distinction between "legislative power" and "constituent power".· Broadly speaking 1cons· tituent power' determines the frame of primary organs of Government and establishes atithoritative standards for their behaviour. In its ordinary sense legislative power means power to make laws in accordance with those authori .. tative standards. Legislative power determines the form of secondary organs of Government and CStfl,blishes subordinate standards for social· behaviour. The ~ubordinatc standards arc derived from the authoritative stindards established by the constituent power. The distinction between constituent power and legifo lativc power in controlled constitution proceeds from the distinction Oetween the law making procedure and the constitution amending procedure. Our Constitution is of hybrid pattern. [t is partly controlled and partly uncontrolled. When any part . of the Constitution is amended by following the legislative procedure the amendment is the result of exercise of the legislative po\vers ; when it is amended through the procedure prescribed by article 368, the> amendment is the result of the exercise of the constituent power. [pp. 894 to 896}

In re: Th< Dtlhi Laws Act, [1951] S.C.R. 787, 812, referred to.

Dominion of amending power

The Phrase "amendment of this Constitution" is the nei've-centre of article 368. It is determinative of the dominion as well as the magnitude of the amending power, The words "this Constitution" embrace the entire Constitu-tion. The Preamble is part of the Constitution. Thus the amending power can amend each and every provision of the Constitution including the Preamble-and Part III. [pp. 896, 897] Magnitude of the Amending Power The framers of the Constitution enacted article 368 for several l't2sons. First, the working of the Constitution may reveal errors and omissions which could not be foreseen by tlicm. Second, the Court's construction of the Constitu· tion may not correspond with the Constitution makers' intention or may make the process of orderly government difficult. Third, the Constituent Assemblr which framed the Constitution was not eleetcd on adult franchise and was in fact not fully representative of the people. The Constitution makers conferred· wry wide amending power on Parliament because it was believed that Parlia~ ment elected on adult .franchise would be fully representative of the entire>

people and that such Parliament should receive right to have fresh look at the Constitution and' to make such changes therein as the entire people whom it represents desire. Fourth, at the apex of all human rights is the right of self preservation. Self preservation implies mutation, that is,. adapta-tion to changing environment. Article 368 is thus shaped by the philosophy that every generation should be free to adapt the Constitution to the social, economic and politicaL conditions of its time. The nature, object and history of the amending power· and the context of article 368 leave little room for doubt that the word jamcndmcnt' includes the power of repcal,ing or abrogating each and every provision of the Constitution. It may be that Parliament may not be able to annihilate the entire Constitution by one stroke of pen. But it can surely repeal or abrogate all provisions of Part III. The amending power in article 368 is unlimited and uncorifincd as the power of Constituent Assembly. Indeed it may truly be <aid that Parliamc.nt acts as Constituent Assembly.

. State of Madras v. Champakam Dorairaian, [1951] S.C.R. 525 and Kamerh-war Singh v. State of Bihat', A.l.R. 1951 Patna n, referred to. [pp. 897 to 903]

Meaning of 'law' in Article 13(2)

11There is distinction between Constitution and law• The context of the word 'law' in article 13(2) docs not show that it includes an amendment of the Constitution made under article 368. The Constitution itself makes distinction between 'Constitution' and 'law'. The functional difference in making legislative law and an amendment of the Constitution likewise'" explains the basic difference in the procedure prescribed in articles I 07 to 111 and in article 368. An expansive construction of the word 'law' in article 13(2) would permanently rule out the lawful making of structural reforms in cl= social, economic and political frame of the Country. The Constitution makers must have intended that when conflict arises between the rights in Part III and the obligation of the State in Part IV that conflict may be resolved by an amendment of the Constitution under article 36a. The provisions of the Constitution show that fundamental rights may be taken away or abridged for the good of the people. The Constitution makers did not regard the rights mentioned in Part Ill as 'sacrosanct' or as 'inalienable' and 'inviolable' or as. immutable. The rights in Part Ill arc down right man made. [pp. 903 to 912]

State of Madras v. Smt. Champakam Dorairaian, [1951 J S.C.R. 525, S. Krishnan v. State of Madras, [1951] S.C.R. 621 and Basheshar Nath v. Commis· sioner of Income Tax, [1959] Supp. I S.C.R. 528, 604, 605, referred to.

There arc no inherent and implied limitations on amending power in article 368. The magnitude of the amending power is to be measured by the purpose which it i1 designed to achieve than by the structure of Parliamcnl. Under the Constitution some legislative powers arc not subject to any inherent end implied limitations. Nor can implied limitations be spelt out of the vague emotive generalities of the Preamble. The Preamble is neither the source of power nor of limitations on power. The- scheme of article 368 is to recreate the primary organs of state and to redefine, rcdcmarcate and rclimit their powers and functions if and when it becomes imperative to do so for the good of the people. Accordingly it must plainly have been the intention of the Constitution makers that article 368 should control ·and condition rather than be controlled and conditioned by other provisions of Constitution. The Cons· titution makers who were familiar with English Constitutional history

could not conceivably have left undetermined the test of distinguishing the ci:scntial features from the non-essential features or their core. The test is writ large in article 368 itself. Every provision of the Constitution which may be amended only by the procedure prescribed in article 368 is an essential feature of the Constitution, for it is more set than legislative laws. The test is the rigid procedure. The more rigid the procedure the more essential the provisions amendable thereby. Thus the provisions specified in the proviso to article 368 are more essential th.an the rights in Part III. Article 368 places no express limits on the amending power. Indeed it expressly provides for its own amendment. It is not permissible to enlarge constructively the limitations on the amending power. Courts are not free to declare an amendment void because in their opinion it is opposed to the spirit supposed to pervade the constitution but not expressed in words. [pp. 912 to 919)

A. K. Gopalan v. The Union of India, [1950] S.C.R. 88, 120, Raia Suriya Pal Singh v. State of U.P., [1952] S.C.R. 1056, 1068, Babu Lal Pavate v. State ·Of Bombay, [1960] I S.C.R. 905, South India Corporation (P) LJd. v. TM Secretary, Board of Revenue, Trivandrum, [1964] 4 S.C.R. 280, 295 and Mangol Singh v. Union of India, [1967] 2 S.C.R. 109, referred to.

Judicial Ret1iew of Constitut£onal amendments

From Gopalan to Golaknath the Court has shifted from one end to the ·other end of the diagonal, from Parliament's supremacy to its own supremacy. At the Centre of the Court's legal philosophy there is the rational free will of the individual. This philosophy has entailed the subservience of the Directive Principles of State Policy to the Fundamental rights. Article 31(4) (5) and (6) -establish beyond doubt that the Constitution makers intended to give ascedancy to the Directive Principles of State Policy over the fundamental rights. The 'Constitution does not recognise the supremacy of this Court over Parliament. The Court may test legislative laws only on the touchstone of authoritative no'rms established by the Constitution. Its procedural limitations aside, neither article 368 nor any other part of the Constitution has established in explicit language any authoritative norms for testing the substance of Constitutional amendment. Structural socio-political value choices involve complex and com-plicated political process. This Court is hardly fitted for performing that function. Judicial review of Constitutional amendments will blunt the peoples vigilance, articulateness and effectiveness. Unhedged amending, power will not ·endanger the interests of the religious, linguistic and cultural ininorities in the Country. Judicial review will only isolate the minorities from the mainstream of the democratic process. The argument of fear is not valid argument. While construing the Constitution it should -be presumed that power will not ·be abused. In the absence of explicit mandate the Court should abstain from strlking down Constitutional amendment which makes an endeavour, to ·"wipe out every tear from every eye". In so doing the court will not be depart· ing from but will be upholding the national tradition, [pp. 919 to 924;

State of Madras v. V. G. Row, [1954] S.C.lt. 591, Virendra Singh and Ori. v. State of Uttar Pradesh, [1955] 1 S.C.R. 415, State of West Bengal v. Subodh Gopal, [1954] S.C.R. 587, 655, Saiian Singh v. State of Raiasthan, [1962] I S.C.R. 933, Sankari Prasad Singh v. Union of India, [1952] S.C.R. 89, De/Ai Laws Act, [1950] S.C.R. 519. State of West Bengal v. Anwar Ali Sarkar, '[1951] S.C.R. 747, 1079. referred to

The Twenty Fourth Amendment

Except as regards the assent of the President to the Bill everything else 1n :the 24th Amendment was already there in the unamended article 368. Accord· ingly the amendment is really declaratory in nature. It removes the doubts a.st on the. amending power by the majority judgment in Golaknath. Even assuming -"that the restrictions imposed by Article 13(2) and inherent and implied limitations were part of the body of article 368 these restrictions are now removed by Parliament, for, they will fall within the an)bit of the word "amendment". The phrase "notwithtsanding anything in this Constitution" on the newly added cl. ( 1) of article 368 . is apt to sweep away all those restric-tions. In the result the amending power is now free of the incubus of article 13(2) and inherent and implied limitations. [pp. 924 to 926]

Section 2 of Twenty Fifth Amendment

As the word compensation found place in the old article 31(2) this Court held that the principles should be relevant to compensation, that is, to the just equivalent of the property acquired. That word is no more there now in ~article 31 (2). The notion of the relevancy of the principles of compensation is jettisoned by section 2. Obviously, where the law fixes the amount it cannot be questioned in any court on the ground that it is oot adequate, that is, not equal to the value of the property acquired or requisitioned. The legis-lative choice is conclusive. It would follow that the amount determined by the principles specified in the law is equally unquestionable in Courts. It is not permissible to import in the amended article 31(2) the notions of 'arbitrary amount' or 'illusory amount' or 'fraudulent amount'. Although the amended article 31(2) will abrogate the right of property it is constitutional as it falls within the scope of the 24th amendment. [pp. 926 to 931]

State of West Bengal v. Mrs. Bela Baneri«, [1954] S.C.R. 558, Vairavelu v. Special Veputy Collector, Madras, [1965] I S.C.R. 614, Union v. Metal Cor· poration, [1965] I S.C.R. 627, State of Guiarat v. Shanti/al Mangaldas, [1969] 3 S.C.R. 341, R. C. Cooper v. Union of India, [1970] 3 S.C.R. 530, referred to.

Section 3 of the Twenty Fifth Amendment

Under article 31C the Court still retains power to determine whether the law has relevancy to the distribution of the ownership and control of the material resources of the community and to the operation of the economic system and concentration of fwealth and means of production. If the court finds that the law has no such relevancy, it_ will declare the law void if it offends the provisions of articles 14, 19 and 31. The second part of article 31C excludes judicial review "on the· ground that [the law] does not give effect to such policy". So, the law cannot be challenged on the ground that • "the means adopted by the law arc not sufficient to subserve the common good and prevent common detriment. In other words, the sufficiency of the law's <:fficacy alone is made non·justiciable. [pp. 931 to 934 J

Assuming that the Parliament may not delegate the Constituent power, Article 31C does not authorise the State legislatures and the Parliament as legislative body to amend any part of the Constitution. The true nature and character of article 31C is that they arc in partial eclipse as regards laws having ~elevancy to the principles specified in article 39(b) and (c). Article 31C is 10 thic nature of saving clause to articles 14, 19 and 31. The effect is brought about directly and immediately by the choice of the Constituent power ex-pressed in article 31C itself and not by the laws which claim its protection. [pp. 934 to 936]

Harishankar Bag/a v. Th• Stat• of Madhya Pradesh, [1955] 1 S.C.R. 380, referred to.

[On the contention that nationalisation of property IS not contemplated by the word 'distributed', his lordship did not express any final opinion on the meaning of word 'distributed' in article 39(b). He observed: [A] nationalised property is vested in the State. Throug1' the State the entire people collectively may be said to own property. It may be said that in this way the ownership of the nationalised property is distributed amongst the people represented by the State.] [pp. 936, 937)

Constitution Ttuenty Ninth Amendment

The argument that article 31B is inextricably connected with article 31A and accordingly any law which is included in the Ninth Schedule sh.ould be connected with agrarian reforms has been rejected by this Court. [pp. 937, 938]

State of Bihar v. Maharajadhiraja Sir Kameshwar Singh, [1952] S.C.R. 889, Visheshwar Rao v. State of Madhya Pradesh, [1952] 1 S.C.R. 1020, 1037, N. N. Jce1bhoy v. Assistant Collector, Thana, (1965] 1 S.C.R. 636, 648, referred to.

Chandrachud, /. : The Constitution Twenty Fourth, Twenty Fifth and Twenty Ninth Amendment Acts are valid. [p. 1000]

The Constitution Twenty Fourth Am~nd,nent merely clarifies what itJas true law. Article 368 before the Twenty Fourth Amendment contained the power as weiJ as procedure for amendment of the Constitution. Article 13(2) took in only ordinary laws, not amendments to the Constitution effected under article 368. The power of amendment of the Constitution conferred by the then article 368 was wide and unfettered; it reached every part and provision of the Const:'tution. The decision in Golaknath that Parliament had no power to amend the Constitution so as to abrogate or take away fundamental rights is incON"ect. There are no inherent Jimita· tions on the amending power in the sense that the amending hotly lacks the power to make amendments so as to damaie or destroy the essential featum or the fundomenta/ principles of th• Constitution. [pp. 999', 1000]

The whole matter before the Court is truly sui gcnms. [p. 940]

The leading majority judgment in Golaknath did not decide whether article 368 itself could be amended so as to confer power to amend every provision of the Constitution. The case was decided on the basis oi the un· amended article 368. The question whether fundamental rights could be taken away by amending article 368 was not before the Court. Abo, the question whether in future Parliament could, by amending article 368 assume the power to amend every part and provilion of the Constitution wa1 not in issue before the Court. The observation in the leading majority judgment putting restraints on .the future power of Parliament to take away fundamental rights cannot, therefore, constitute the ratio of the majority judgment. The view taken by the majority of Judges in Golaknath was that article 368 pm• cribed not merely the procedure for amendment but conferred the power to amend the Constitution and the amending power could not be traCed to the Residuary Entry 97 of List !, Schedule VII read with articles 245, 246 and 248 of the Constitution. [pp. 960, 961 J

(i) The various shades of meaning of the ~ord ·~mendment' may app!y differently in different contexts. In the context 1n whtch that word. ~rs 1n article 3681 it is neither ambiguous nor amorphous but has definite unporl.

The proviso to article 368 furnishes intrinsic evidence to show th•t the word 'amendment' is used in that article, not in narrow and insular sense but is,. intended to ha.ve the widest •mplitudc. The words "such amendment" obviously means '•mendment' referred to in the main body of article 368 and thus the article itself envisages that the amendment may take the form of 'change'. Paragraph 7 of Part of the Fifth Schedule and paragraph 21 of the Sixth Schedule also furnish similar evidence of the meaning of the word 'amendment'. . Two things emerge from these provisions of the Schedules. First, the concept of 'amendment' as shown by ·clause ( 1) of the Schedules takes in 'addition, vuiation or repeal' an,d secondly that an amcndmcntl even by way of "addition, variation or repeal" would fall within the terms of article 368. It is expressly excepted from the scope of that article so that it may not fall within it which it otherwise would. Besides, the legislative history does not justify an inference that the word amendment was used in the draft article 304 in order to curtail the scope of the amending power. It is important that five out of eleven Judges in Golaknath took the view that the word 'amendment' must be given wide meaning. The leading majority did not consider that question on the ground .that so. far as fundamental rights were concerned the question could be answered on narrower basis. Thus the word 'amendment' in article 368 has dear· and definite import and it connotes power of the widest amplitude to make additions, alterations or variations. The power is so wide tliat it. exprellly confers power by clause (e) of the proviso to amend the amending power itself. No restraint having been imposed on the power to am.end the amending power, it is unnecessary to seek better evidence of the width of the power of amendment under our Constitution. The power of amendment i; safety valve and having regard to its true nature and purpose it must be construed . as being equal to the need for amendment. The rule of atri~t construction is out of place in Constitutional Act and "construction most beneficial to the widest possible amplitude" of its powers must be adopted.[pp. 964 to 967] (ii) The Constitution is the fundamental or basic law and it is law of superior obligation to which the ordinary law must conform. Unless cons~ titutional. law was ,expressly· included in article 13(~)~a). it would fall outs.ide the purview of article 13(2). The fundamental d1Stmc11on between Constltu· tional law and ordinary law lies in the criterion of validity. In the case of Constitutional law its validity is inherent; in the case of an ordinary law the Talidity has to be decided on the touch-stone of the Constitution. The majority view in Goloi(nath did not on the construction of art. 13(2), accord due importance to. thi. • s essential distinction between legislative power and the cons-tituent .power.. The distinction between 'Bexible' and 'rigid' constitutions brings Into sharp focus the true distinction between legislative and Constituent power. This is the diltinction which was . not given due importance by the majority ill the .Gola~wA case, .. In rigid Constitution the power ,to make law is the pus,. of which the legislative and constituent powers arc the speci.,, the dilfcrcritia being the procedure for amendment. If the procedure is ordinary the powc~ ia. legislative; if it is special, the pawcr is constituent. Thus, in rigid or · controlled · corutitution like the Indian Corutitution law amending !11C Constitµtion .is made in the exercise of constituent power and partakes ·fully of . the character of constitutional law. Laws passed under the Constitution of which· the· validity is to be tested on the anvil of the Constitution are the only laws which fall within the terms of article 13(2). An· amendment of the . ·Constitution within the terms of article 368, not being law within the meaning . .ol article 13(2), cannot become void on the ground that it take. •way or a!>rid~ the rights oonferred by Pan III. [pp. 970 to 973] MeCafllley v. TAe King, [1920] A.C. 691, referred to.

(iii) 1t is diBicuk to accept the argument that inherent limitations should be read· into the amending power oo the . ground that fundamental rights are natural rights which inhere in every m~n. There is intrinsic evidence in Part III <Jf the Constitution to show that the theory of natural rights was not recognised by the framers of the Constitution, Citizens and non-citizens possess and arc entitled to exercise certain rights of high significance ··for the -sole tcason that they are conferred upon them by the Constitution. The natural rights theory stands, by and large, repudiated today. The notion that societies and govetnments find their sanction on supposeil contract between independent individuals and that such contract is the sole source of political obligation is now regarded as untenable. The Preamble is part and provision of the Constitution. Therefore the cootention that the Constitution cannoJ be amended .o as to <lestroy the pr~amble is untenable. [pp. 973 to 976]

Venkataramana Devaru and Ors. v. The State of M)IStwe, antl Ors. [1958] S.C.R. 895, 919 view contra in Beru Bilri case, [1960j 3 S.C.R. 250, diwnu:d .lf'an.

The absen« of an cxpr.ess prohibition is highly relevant for inferring that there is no implied ptohihitiao. is not open r.o the Cowts to dceLate an Act void O:I?- the ground that it is opposed to 'spirit' supposed to prcvade the constitution, but not manif.csted in words. The importance of the cirCJJ.mll-tance that the language of ar.ticle 368 admits of no doubt or ambiguitJ is that such language leaves no scope for implications unless in the· au~text of. the entire instrument in which it occurs such implications bcromc coropulsi'& The context docs not merely mean the position of word to be COD$l1'UCd jp the collocation of words in which it appears, but it also mcam the cootext of the times in which fundame~tal instrument falls to be construed. An impor· tant rule of construction which has direct bearing on the submiS1ionJ ot die petitioner on .inherent limitation's is that if the text is explicit it is conclusive alike in what it directs and what it forbids. The consequences of particular construction, il the text .be explicit, can !Mvc no impact ·on the construction o!. constitutional· provision. No provision incorporated in 3 Constitution .at t1JP time of its origina1 enactment can ever he struck down as unconstitutiOllll. The same test rnnst apply to what be.comes part of that con.stitution by .' • subsequent axpcndment provided that the conditions on which alone , sucb amendments can be made arc strictly compiled with.. Amendments, in ~ .. nsc, pulsate with the ~itality of the Constitution itself. Trusi in lhc elected representatives is the ~orner-stone of .dcmoqacy. When that trust f~Us ~vcrything £.ails. _ The true .sanction against p0litical c_ t'lmes lies in the _ he~ and minds of men, It is there that liberty is insured. The truo object ~ "the amendments, now under challenge, is to confer upon' the comitnuility . • large the blessings of liberty. The argument is th:.at Par1iament may ~mi:Jl~ the provis.ions of Part Ill, but not_ so as to damage or .destroy the cor'c;.'of 'th!·. rights or the core of the essential principles of the eonstj:~tion. ~'r~ ·~ formidable difficulties in evolving a,n objective standard_ to , ~termine w ''t would constil\ltc the core and what the peripheral layer of die euc~tial ·~rrJ~ip1cf of the Constitution. The two are inscparabte. The cases Qearintt .9r> inlicrcf,t <>r implied limitations cited from the United States, Canada, &str~lia, Sou~ Africa and Ceylon do not show that the .theory of implied and il\hcroDt limiC tations has rcoeived wick recognition. [pp. 977 to 986]

Queen v. BuraA, ~ I.A. 178, 195, Bombay v. Nauratan Das /aitha Bai, fl!m1 2 S.C.R. 51, 81~ Sardar lnder Singh ~· State of RajasJhan, [1957] S.C.11. ~ 616-17, Golapan s case, [1950] 6.C:R. 88, m, ifohau Malhao ll1.mi>n'1 ctur, · {19)1] S.C.R. 228, 231,. V..,:A.,. do Sont "· /..<Jlufon S.O,,y; l/f .~tors,·

[1913] A.C. 107, 112, 117, 121, Attorn<y General for Ontario v. Attorney General for Canada, [1892] A.C. 571, Providence Bank v. Alpheus Billings, L. Ed. 939, 957, Locher v. New Ywk, 49 L. Ed. 937, Bank of Toronto v. Lambe, [1887] A.C. 573, 586, State of .Bihar v. Kameshwar Singh, [1952] S.C.R. 889, 936, 937, Collector of Customs, Baroda v. Digvijaisinghji Spinning & Weaving Mills Ltd., [ 1962] 1 S.C.R. 896, 899, Stati of West Bengal v. Union of India, [ 1964] 1 S.C.R. 371, 407, Essendon Corporation Case, [ 1947] 74 C.L.R. 1, 19, referred to,

(iv) The debat<15 of the Constituent Assembly are not admissible as aid• to construction of constitutional provisions. It is hazardous to rely upon parlia· mentary debates as aids to statutory construction. The safest course is to gather-the intention of the legislature from the language it uses. Therefore Parliamen· tary proceedings can be used only for limited purpose as explained in Gopalan's case. [pp. 998, 999]

Gopalan's case, [1950] S.C.R. 88, 11(), Stat< of Travancore Cochin and Anr. v. Bombay Company Ltd., [1952] S.C.R.113, Priry Purse Cate, [1971] 3 S.C.R. 9, 83 and Uniot1 of India v. H. S. Dhillon, [1971] 2. S.C.R. 779, referred to.

Section 2(a} and (b) of the Twenty Fifth Amendment are ••lid. [p. 1000]

Though Courts have no power to question law described in article 31(2) substituted by s. 2(a) of the Twenty Fifth Amendment Act on the ground that the amount fixed or determined for compufsory acqulsition or rcquisitiol'l is not adequate or that the whole Or any part of such amount is to be- ~vcn otherwise than in caslii, Courts have the power to question such law (i) if the amount fixed is illusory; or (ii) the principles,. i£ 'any are stated, for determining the amount arc wholly irrelevant for fiution of the amount; or-(iii) if the power of compulsory acquisition or requisition is exercised for collateral purpose; or (iv) if the law of compulsory acquisition or requisition offends the principles of the Constitution other than the one. which . is expressly excepted undcc article 31(2B) introduced by secdon 2(b) of the Twenty F'ifth Amendment Act, namely article 19(1)(f); or (v) i£ t1'e law is in tire mlture of fraud on the Constitution. It must be added by way of cxplanatiorr that i£ the fixation of an amount is shown to ·depend ~ principles bearing on social good it rnay not be possible to say that the prmciples arc irrelevant. · [pp. 987 to 989]

SeetiOtJ 3 of t!e Twenty Fifth Amendment Act «>llich mtrorlucetl article 3lC into the C()flstitation is valid.

The Constitution accords place of pride to fundalncntal rights and a. place of permanence to the Directive Principles of State Policy. The basic object of conferring freedoms on individuals is the ultimate achievement of the ideals· set out in Part IV. circumspect use of the freedoms guaranteed by Part III is bound to subscrvc the common good. But, voluntary submission to restraints is phil0sophcr's dream. Therefore article 37 enjoins the state to apply the directive principles in making laws. The freedoms of few have to be abridged in order to ensure the freedoms of all. [pp. 991, 992]

Article 31C operates substantially in the same way as article 31A hal operated in the agrarian sphere. In fact article 31C is logical ,extension al the principles underlying article 31(4) and (6) and article 31A. Article 31C does not dclegal!C the amending power. The true natute and character of article 31C is that it identifies class of legi!lation and cumpts it from the operation of articles H, 19 and 3.1. The lal'l!Or PQit of artide 31C does not exclude the jurisdiction ,f .. Court to dewminc whcthc1 doe law is far

!l'vmg. effect to the policy of the state towards securing the principles specified m arl!cle 39(b) or (c). Laws passed under article 31C can be upheld only and only if there is direct and reasonable nexus between the law and the Directive Principles expressed in article 39(b) or (c). [pp. 994 to 997]

The Twenty Ninth Amendment Act it valid. ·

The validity of article 31B has been accepted in series of dcas1ons of this Court. These cases have consistently held that article 31B is not governed by. article 31A. The Twenty Ninth Amendment must accordingly be held vahd. [p. 997] ·

State of Bihar v. Kameshwar Singh, [1952] S.C.R. 889, Visweshwar Rao v. The State of Madhya Pradesh, [1952] S.C.R. 1020 and N. B. /eejeeQhoy v. Assistant Collector, Thana, Prant, Thana, [1965] 1 S.C.R. 636, referred. to.

A;jliiawata

For the PetitiQflers : The crucial question tor decision is the true ambit of the amending power. The question can be decided either on the ground ·of the meaning of the word 'amendment' in the unamended article 368 or on the ground of inherent and implied limitations or on both the· grounds since they converge on the same point.

The unamended article 368 was subject to article 13(2). Amendment of the Constitution is law and therefore, any law which contravenes ~ndamcntal rights is void. Article 368 did not prevail over or override article 13. The bar in article 13(2) is imposed against the State i.e. against the totality of all the forces of the State. The Preamble makes it clear that the . object of the Constitution is to secure basic human freedoms. This guilrantcc will be meaning· less if the legislature against whom the guarantee is to operate is at liberty to abrogate the guarantees. The various forms of oath in the Third Schedule 'Of the Constitution refer to "Constitution by law established". The Constitution itself was originally established by law and every amendment has likewise to be established by law in order to take effect. Though article 395 repealed the Indian Independence Ac~ 1947, and the Government of India Act 1935, the Constitutional laws of the Indian Princely States were in existence. 'I'h.crefore word "law" is comprehensive enough to include both- ordinarjr law and constitu· tional law. Observations of Kania, C.J. in Gopalan case [1950] S.C.R. ~8 at 100, minority view in Golak,nath case, [1967] 2 S.C.R. 762 at 907, 930, Safian Si111h, [1965] I S.C.R. 937 at 950-51, Madhava Rao Scindia v. U11i011 of India, [1971] 3 S.C.R. 9, 37, 38. McCawley -v. King, [1920] A.C. 691, The Bribery Commis-sioner v. Ranasinghe, [1965] A.C.172, Rajasthan Electricity Board v. Mohan/al, [1967] 3 S;C.R. 377, 385, Behram Kurshid Pesikak.a v. State of Bombay, [1955] I S.C.R. 613, 651, 654. The proceedings before the Constituent Assembly support the petitioner's viewpoint. C.A. Debates, Vol. IV, pp. 415-416, 465, 466, Vol. IX p. 1661". creature of the Constitution cannot poSsibly possess the power to create or recreate the ·Constitution. Therefore, resort could not be had to article 368 to expand the power of amendment. It is imperative to consider the consequence of the plea of limited power and also the plea of limitless power. The test of the true width of power is not hOw probable it is that it may be exercised but what can possibly be done under it. Ma:rwtlls Interpretation of Statutes 12 Edn. 1969 p. 105-106. Where the statute is ambi-guous or susceptible to more than one meaning the c.onstruction which tend to make the statute unreasonable should be avoided. Crawford Oii Comtruction of Statutes 1940 cdn. pp. 286-290. Questions of OOJ1stitutinnal construction arc in the main governed by the same general principles whieh controt-"m uocrtaining the meaning of all written instruments particularly statutes. Comtitutions arc general and many of the essentials whieh Constitutions ttoat are impliedly

K.ESAVANANDA U. KERALA

controlled or dealt with by them and implication plays very important part in constitutional construction. What is implied is as much part of the instrument as what is expressed.· Court may look at the hi,story of tlie times and examine the state of things existing when the Constitution was framed. Proceedings of conventions and debates are of limited value as ex-plaining doubtful phrases. Am.,.ican /urisprudence, 2nd Vol. 16, article 5 pp. 231-232, article 72 p. 251, article 287 pp. 270-71. The word "amendment" may have three meanings: (i) It may mean to improve or better, to remove an error, the quality of improvement being oonsidered from the standpoint of the basic philosophy underlying the Constitution; (ii) it may mean to make changes which may not fall within the first meaning but which do not alter or destroy a~y of the basic or essential features of the Constitution and (iii) it may mean to make changes in the Constitution including changes falling outside the second meaning. The first is to be preferred. The second is possible construction. The third is to be ruled out. Under article 368 as it stood prior: to the amendment there were implied and inherent limitations on the power of amendment. The word "amendment" would preclude the power to alter or destroy the essential ·features and the basic elcmCnts and the fundamental principles of the Constitution. The Constitution is given by the people unto themselves. The power to decide upon amendments is given to the five year parliament which is creature of the constitution. Article 368 docs not start with the non-abstante clause. The itrticlc uses the word 'amendment' simplici'ter. Less significant amendment powers in other parts of the Constitution use the words 04add, alter, . repeal or vary" in addition to the word "amendment" as will appear in article 31B, 35(b), 252{2), 372, 372A(2), Para 7 Schedule 5, Part 21, Schedule 6. On wide construction of the word "amendment" all fundamental rights can be taken away by the requisite majority whereas much Jess significant matters require the concurrenCc of at least half the states under the proviso to article 368. The Preamble is not part or provision of the Constitution. Berubari case, [ 1960] 3 S.C.R. 250. Therefore the preamble cannot be amended under article 368. If the Preamble is unalterable it necessarily follows that those features of the Constitution which arc necessary to give effect to the Constitution arc unalterable. Fundamental rights arc intended to give effect to the Preamble. They cannot therefore be abridged or taken away. The principle of inherent or implied limitations on power to amend controlled Constitution stems from three basic_ features. First, the ultimate legal sovo-rcignty resides in the people. Secondly, Parliament is only creature of the Constitution. Thirdly, the power to amend the Constitution or destroy the essential feature of the Constitution is an application of ultimate legal sove-reignty. The essential features arc· (i) the supremacy of the Constitution; (2) the Sovereignty of India (3) the integrity of the Country; (4) the democratic way of life; (5) the republican form of government; (6) the guarantee of basic human rights elaborated in Part III o£ the Constitution; (7) secular state; (8) free and independent judiciary; (9) dual structure of the Union and the States; (10) the balance between the legislature, executive and the judiciary; ( 11) parliamentary form of government as distinct from the Presidential form of government; (12) article 368 can be amended hut cannot be amended to empower Parliament to alter or destroy any of the essential features of the Constitution, make the Constitution literally unamendable, make it generally amendabk by bare majority in Parliament, confer the power of amendment i:ither· expressly or in effect on the state legislatures, and delete the proviso ii1,1d deprive· the States of the power of ratification which is today available to th~ in regard to certain amendments.• The•• Coiistltutioti Twenty Fourth· amendment is illegal and void on three ~ds : First, by substituting the words "amend by way of addition, variatiOD

SU1'REMI! COURT BEPORTS [ 1973 j Supp. S.c.R.

or. repeal" in place of the word 11amcndmcnt" in article 368 the power is widened. Secondly the 24th amendment makes explicit that when Parliament makes cOnstitutional amendment uqdcr article 368 it acts in exercise of constituent power. Third, it. has provided bY amendment in article 13 and 368 that the power in article 13(2) against abridging or taking away of the fundamental rights. shall not apply to any amendment under article 368. The Twenty Fourth Amendmcir. is therefore to be construed as empowering the Parliament t~ exercise .full cons.tituent power of the people vesting in Par~ ment the ulumatc legal sovcrcignty of the people· and authorising Paruamcnt to alter or destroy all or any of the essential features, bask elcmcnu and funcJa. mental principles of the Constitution. In the alternative, if the Constitution Twenty Fourth Amendment is valid it can only be on reading down of tbc. amended provisions of article 13 and 368 which reading would preserve the original inherent and implied limitations. Even after the 24th amendment Parliament will have no power to alter or destroy the essential feature& of the Constitution.Hindu Women's Right to Property 4e1, [1941) F.c.R. 12, 21).32. R. M. D. Chamarbaugwalla v. Union of India, [1957] S.C.i. 930,. 931).3~. Ked~roath v. Stme of Bihar, (1962) Supp. 2 S.C.R. 769, 810-11, Arora v. s-o/ UP., [1964] 6 S.c.R. 784, 797, Shah & Co. v. Stall of MaAllTashtra, '19671 3 S.C.R. 466, 4n, SeshammaJ ~-State of Tamil Nadu, [19n] 2 S.C.C. 11, 22, 15.

Fundamental rights ate among: ti..- dSential features of the< Corutitudoo; Though the .... ntial features aoold be amended !ht rore of the .,..atial features ooold not be amended. Tlllll dottrine of implied or iabmnr limitatiom has received recognition in dcmo<ra~ constillltions. Ranui•,Ms a.., [1965] A. C. Jn, Taylor v. Attoniey General of Quenuland, 23 c.LJl. ID, l'ktomt Y. Commonw,./th, 45 Aust. I..J. 251, Ryan's case, 1935 Ir. !!<op. 170, Li10nt1t• v. Queen, [1967] 1 A.C. 259, Mangal s;ngh v. Union of lmila,.'[1%7J 2 $.CR; 109, Cooley on Constitutionlll Limitations) PP; 36, 37, Skin.nu, 18 Mich. L. Rev, Marbury William, 33 Harv. L Rev. The' Initiative to IUftrmJum '""' [19191 A.C. 35, Swilzman v. Elbing, [1957] Canada L. !!<op. 285, &it v. Hm [1949) 4 D.L.R. 199, Sa#ml4f v. Cay of (i#/N< 1111d Ammr; a.-aJ of QuNI:, [1953) 4 D.L.R, 6-tl, Chabot v. S<hool Cf1ffJmi1n'oturr, [195&] 12 D.L.IL 796. The Constitution ii giV<n. hr tLt "'°""' in tho ~ of tboir· -..eignty -themselves. [1954) S.C.R. 5~1, 555, [1%0) 3 S;CJl. 250, 281-32. The fnndo. mental rights arc m•rdy the esprasi<!o of the. batic freedoms resenod by the people for r.htmselvcs. T 1967) 2 S.C.R. 762, 7'>2, [1950] S.C.R. 88; 196. If .cbe freedoms arc reserved by the people for thtmsdtts all the fwlctiomrics. aod agencies under the CollStitution bave to rcspt<t t1'ooe boo.duns and jyprnlwils no functionary or agtncy can dentoy those freedoms. ·

Apart from article 13(2} fundamental rights are ba.!Cd on Uni.ersal .. Ikc:-laration of Human Rights. They are inaliellable natural rights. nMnfore mo, are outside the scope of amendment. West Virgina Boartl of EtluellliMJ v~ '8""'* nette, 1943 87 L. Ed. 1628, 1638, Everson v. B-d of Edr1eation, 330 U.S. l; 28, /oint Anti Fa<ist JUf. Comm. v. McGrath, 341 U.S. 123, 1711 ,if,,,.,;,,;,• Comm. Assrx:. v. Douds, 339 U.S. 382. ·

The ground for holding the Twenty Fifth Amendment illeg:d mcf wic! · is that even if the 25th aniCndment is held to be valid it can only be Oil ~ rcstricred interprctatios of the power of amcndmcnt confcmd on, Parlianient by article 368 as altered by 24th amendment<, 'The rcstrid<d initt)>mation would be that even after the 24th amendmcnt, and evcn if the the bot ol arcidc . 13(2) was validly lifted, the inherent and implied limitations continue ID iluach.

would be that even after the 24th amendmcnt, and evcn if the the bot ol arcidc 13(2) was validly lifted, the inherent and implied limitations continue ID iluach. ID Parliament's """"'"'*' po'Rr under Mticilo 368 with die reoulc, tliat (a)

,Parliament would, have no power to alter damage or destroy the essential {oaturcs of the Constitution and (b) each fundamental right being an· csscntial feature of the Constitution, no constitution amendment can damage or dcstreyy the ..,a: ar core of the fundamental rights. The right to property is one of the essential features of the Constitution. The intrinsic value of the right, its necessity for the m<aningful exercise of various other fundamental rights and its importance to the proper functioning of the Constitution as whole leave no doubt that right to property is one of the basic clements of our Constitution • .Article 31(2) as result of Constitution T\Venty Fifth Amendment will empower thC State to fix an amount on basis which. need not be disclosed even to the members of the legislatnrc which posses the law and which may have no relation to ,.the value ;Of the PfOpcrty SQught to be acquired. Since "amount" is not legal concept at all, unlike "Coiµpcnsation", there is no basic norm by re£crenoc to which the relevance or irrelevance of principles can be judged. The amended. article 31 in substance and effect· authorises confiscation of any citizens• property. Such law which has nothing to do with concentration of wealth and pcrtnits any citizens property to be . virtually confiscated involves destruction of the essence or core of the right to property. Article 31(2) has nothing to do with estates, 1.amindaris, Land Reforms or 3:grarian reforms which are specifically dealt with by article 31A and to which article .31(2). is · wholly inapplicable. The other amendment of article 31 (2) that the amount' need not be paid in cash is in effect compounding the injustice. When article 19(5) permits roasonablc restrictions the only object of making article 19( 1) ( f) in· applicable by article 31 (2B) is to enable acquisition and requisition laws to contain restrictions or provisions which arc unreasonable and not in public interest. R. C. Cooper v. Union of India, [1970] 3 S.C.R. 530. This clearly damages the esscnce or core of the fundamental right under article 19(1)(f) to acquire, hold and disposc of property. Article 31C destroys the core or csscnce of scveral esscntial features of the Constitution. There is vital distinction between cases where the fundamental right> arc amended to iicrrnit laws to be validly passcd which would have been 'Toid before the amendment and cases where the fundamental rights' remain unamended but the laws which are void as offending those rights arc validated by legal fiction that they shall not be deemed to be void. The question is not one merely of legislative device. The law in the former case is constitutional in roality whereas in die latter casc the law is unconstitutional in roality but is deemed by fiction not to be void. The result is that laws which violate the Constitution arc validated and there .is repudiation of the Constitution. If article 31C is valid it would be permissible to Parliament to amend the Cons-titutio11 so as to declare all laws to be valid which arc passed by Parliamen: ~r State Legislatures in excess of lCgislativc competence or which violates basic human rights enshrined in Part III or the freedom of inter-slate trade in article 301. Article 31C gives blank charter to Parliament and the State Legislatures to defy the ,constitution or damage or destroy the supremacy of the Constitution. Thc article subordinates fundamental rights to Directive Principles. The Dirtt-tive Principles contained in Part N arc the ends of the endeavours or the people to achieve the constitutionally desired social order; the fundamental rights contained in Part III are ·the permissible means to achieve that end. One of the essential features of the Constitution is that the · right to enforce the fundamental right> is guaranteed (Article 32). The Directive Principles arc not to enforceable. The fundamental rights arc clear cut and precise in contrast to the vague contours of the Directive Principles. To abrogate the fundamental rights when giving effect to the Directive Principles is to destroy one of the ascntial features of the Constitution. When an amendment of single fnnda-1111111tal right would require majority .of at least twl> thirds of the members . 6-36 s.c. lndia175of Parliament present and .voting, law within article 31C which overrides and violates several fundamental rights can be passed by simple majority. Every fundamental right is an essential feature of the Constitution and article 31C purports to take away large number of those fundamental right!. ft provides for the wholesale smothering of various rights which are independent of the right to property and arc totally irrelevant to the Directive Principles laid down in article 39(b) or (c). The essence or core of the right to move the Supreme Court is gone when the fundamental rights arc made uncnfbrcc-ablc for the purpose of giving effect to the Directive Principles and at the same time the Court is precluded from considering whether the law is such as can possibly secure the Directive Principles in question. No State Legislature can amend the fundamental· rights or any part of the Constitution. It is one of the essential features of the Constitution that it can be amended only in the "form and manner" laid down in article 368 and according to that article's basic theme. Trethowan's case, [ 1932) A.C. 526. This. essential feature is repudiated by article 31C which empowers state legislatures to pass laws which virtually involve repeal of the fundamental rights. In substance the power of amend-ment of the Constitution is deelgatcd to all the State legislatures. This is not permissible under article 368. [ 1919] A.C. 935, 945 (P.C.), [ 1967] 2 S.C.R, 650, 653-54, 659-60, [ 1951] Canada Law Reports 31, 37-38. Fundamental rights under articles 14, 19 and 31 which arc sought to be amended by article 31C arc necessary to make n.eaningful specific rights of minorities which arc guaranteed by articles 25 to 30. These guarantees arc essential features of the Constitution. The implication of the proviso to article 31(2) introduced by the 25th amendment is that if property is acquired in cases other than those of minorities an amount can be fixed which restricts or abrogates any of the fundamental rights. If law violates the right of the minorities under articles 25 to 30 such law would be no law. Therefore, deprivation of property under such law would violate article 31(1) .. But the 25th amendment by article 3lC abrogates article 31(1) and minorities can be deprived of their properties, held privately or on public charitable or religious trusts, by law which violates articles 25 to 30. Thus article 31 has built in mechanism for the dissolution of true dcmocracY that India has been so far, cessation of the rule of law. disintegration of the nation and the birth of totalitarian regime.

Article 31B as originally inserted had intimate relation with agrarian reforms because at that stage article 31A dealt --0nly with agrarian reforms: ~fhc words "without prejudice to the generality of the provisions contained in article 31 A" point to this connection. For the Respondents: The central question is whether the 24thi ·amendment' 1s valid having regard to the majority judgment in Golak Nath's case. The case was decided on the unamended article 368. Whether by amending article 368 under cl. ( e) of the Proviso fundamental rights could be amended did not arise for decision. · Therefore the question could not be said to have been decided in Golaknath. Ranchhoddas Atmorom v. Union of Indio, [1961] 1 S.C.R. 718. Madhava Rao Scindia v. Union of India, [ 1971] 3 S.C.R. 9. The observa-tion of the majority in Golaknath about the future exercise of power by Parlia-ment arc clearly abiter. No ratio can be found in Golaknath which is binding on this Court. Salmond's Jurisprudence, 12 ed. 183. The basis of the judgment in Golaknath was the construction. put on the .un~m~nded article 368. That basis having disappeared the reasoning of the ma1onty Judgment cease to apply.

If Golaknath is binding. decision o? the question now before this Court that decision should be rcconS1dered. Articles 304 and 305 of the Draft CoDJ-titution which would have thrown considerable light were not considered in ·

Kl!SAVANANDA f/, KE1lALA-any of the judgments, The decision of the Privy Council in Ranasinghe's case was not cited at the Bar. Subba Rao C.J. used it for the limited purpose of supporting his view that the amendment of the Constitution can he brought about by legislation or by legislative procedure. The majority overlooked that there is in law, no difference or distinction between what is expressly provided and what is necesoarily implied. State of Orissa •· M. A. Tulloch & Co., [1964] 4 S.C.R. 461, 484. There is no distinction between article 13(2) which expressly affirms the doctrine of· ultra vires and the necessary implication of the doctrine which has been applied to every part of the Constitutiori. The proviso to article 368 has vital hearing on the construction of article 368. 'jfhe effect of the .proviSo did not receive full consideration in Golaknath. If the 24th. amend-ment is valid the validity of the subsequent amendments cannot be questioned. The unamended article 368 has to he interpreted according to settled principles -0£ construction. The spirit of the Constitution must be gathered from the language used. Keshava Madhava Menon v. State of Eombay, [1951] S.C.R. 228, 232. Rajasuryapa} Singh v. State of U.P., [1952] S.C.R. 1056, 1067 (Mahajan, J.). broad and liberal spirit must inspire those whose duty it is to interpret the Constitution. The Cou~t cannot stretch the language in the interests of any legal or constitutional theorr. In re: C. P. & Berar Act, XIV of 1938, [1939] F.C.R. 18, 36 (Gwyer, C.J.) referred to with approved in Gopalan's ca«, [1950] S.C.R. at p. 120. The language of article 368 raises no question about the applicability of article 13(2). The words 'amendment of this Constitution' mean amendment of the Constitution of India and would include article 368 itself. The proviso provides :£or such amendment. The <JUestion of location of power of amendment is immaterial. When the prescribed procedure is followed the Constitution stands amended. What results is not 'law' but part of the Constitution. The Court cannot pronounce any part of the Constitution invalid. The expression "amendment of this Constitution" has clear and substantive meaning in the context of written Constitution. It means the power to add, alter or repeal any part of the Constitution. The object of the provision for amendment is to change the fundamental or ha.Sic principles of the Constitution. Otherwise, the Constitution can be changed only by extra constitutional methods or by revolution. Short of substituting new Constitution for the present Constitution all parts of the Constitution can be amended. The words of articlC 368 arc clear and unambiguous. They place no express limitation. Therefore no extrinsic aids to construction arc necessary. To say that the framers of the Constitution could not have intended that fundamental rights should be abrogated or abridged by amendment is to assume supposed intention and then construe article 368 to effectuate that intention. The words "amendment of this Constitution" do not mean repeal or abrogation of the Constitution. The scope of amendment could not be so wide as to create vacuum by abrogating the rest of the Constitution leaving nothing behind to amend. Short of creating such vacuum the power is wide enough to cover replacement of the present Constitution. Constituent power is different from legislative poWer and when constituent power is given it is , exhaustive leaving nothing uncovered. Liyange's case, [1967] 1 A.C. 259. The amending. power under article 368 is constituent power and not ordinary legislative power. W~n constitution is uncontrolled there is no distinction between legislative power and constituent power. McCaw/ey v. The King, [1920] A.C. 691, 703. Our constitution is controlled constitution because the un~ amended article 368 prescribed special procedure for amending the Constitution. Such Constitution is the supreme or fundamental law because an ordinary law made under it cannot amend the Constitution Ranuinghe'1 case [1965] A.C. 194. There can he no standard outside the Constitution by reference to which the validity of its provisions can he judged. Sankari Prasad and Saii•• Singh rightly recognised th~ vital distinction between legislative and constituentpower. They rightly held that 'article 13(2) applied to legislative power and not to cons~tuent power. Ranasinghe's. case on which the leading majority in -Golaknath's case reliCd 'shows the effect of the ·words "subject to -the provisions,/ of the Constitution" when they qualify the power to make laws in the context of a. provision corersponding to article 13(2) and in the context of power to amend the Constitution by special procedure. If the Privy Council in Ranasinghe's case spoke of the power to amend as legislative power or po\.ver of law making, that was because s. 29 of the Constitution of Ceylon appears under the sub-heading "Legislative power and procedure". --The Privy Council noted the marked distinction between an ordinary law and an amendment of the Constitution by distinguishing power to make law by bare majority from power to make law under the Coristitution by different legislative process. Ranasinghe's case bolds that fundamental right could not be taken away by law passed by bare majority; but eould be taken away by amending the Constitution with the requisite majority. On well settled principles of construction an· interpretation which would effectuate the intention of the framers of ·the 'C6nstitution ought to be preferred to that which would defeat that intention. All suggestions as regards implied liffiitations ·on the power -to amend have been brushed aside by the U.S. Supreme Court by observing that where the intention is clear there is no room for construction and no excuse for interpolation or addition. U. S. v. Sprague, 282 U.S. 716, 731, Rhode Island v. Palmer, 253 U.S.· 350, 384 .. · , ·

The language of article 368 is_ clear and unambiguous and requires no extrinsic aids to construction. Questions of policy are not for the courts to decide. Emperor v. Benoari Lal Sarma, 72 I.A. 57, Gopalan's case, (1950] S.C.R. 88, 277. Discussions of the Constituent Assembly are equally im~rmissible aids . to legal construction. Tire Preamble throws no light on the amendability or otherwise of fundamental rights. In· amending the Constitution the amending body acts in the character and capacity of conv_ention expressing the supreme will of the sovereign people and is unlimited in. its power save by the Constitution. Ex parte Kerby, 36 A.L.R. (Ann) 1451. The argument that amendments which touch the rights of the people must be by convention has been rejected by the U.S. Supreme Court .. Article V of the U.S. Constitution is unambiguOus and where the intention is clear there is no room for conStruction. Rhode Island v. Palmer, 253 U.S. 350, U. S. v. Sprague, 282 U.S. 116. Principles of the Constitution can be changed under article V. Schneiderman v. United States, 320 U.S. 118. While the procedure for amending the Constitution is restricted there is no restraint on the· kind of amendment that may be made. Whitehall v. Elkins, 390 U.S. 54. · Just as there are no implied limitations in flexible constitutions there can be no implied limitations in rigid constitution. The difference is only in the method of amendment. If there is any doubt about the meaning and scope of article 368, contemporaneous practical exposition of the Constitution is too strong and obstinate to be shaken or controlled. Mepherson v. Blacker, 146 U.S. 1. · Automobile Transport Rajasthan v. State of Rajasthan & Ors., [1963] 1 S.C.R. 491. The backgrou.nd in which article 368 was enacted by the Constituent Assembly show that any limitation -on the amending power was never in controversy. The only controversy was regarding the degree of flexibility of an amendment of all the provisions of the Constitution. The theory of implied and inherent limitations is based on narrow and restricted meaning of the word 1amendment' to suggest that basic features or the essential features of the Constitution cannot be damaged or destroyed. Preamble is an integral part of the statute .. The Preamble can be repealed. Craies on Statute, 6th Edn. 200.

/Htdsbury 3rd edn. Vol. 36 p. 570. An amendment of the Constitution cannot be held to be void on the ground of repugnancy to some vagu~ ground of inconsistency with Preamble. If tB:~ language of an enactment is clear the Preamble cannot nullity or cut down the enactment. Gopaian's case, [ 1950] S.C.R. 88 .. Cotd Bearing Areas Act case, [1962] 1 S.C.R. 44. State of Raiasthan v. Le;la fam, [1965] 1 S.C.R. 276. Secretary of State for India v. Maharaiah of Bob1/1, l.L.R. 43 Mad. 529. See also Attorney General v. Prince Ernest Augustu.t, [1957] A.C. 436. Power is not conferred by the Preamble but must be found in the Constitution. Since 1951 when Sankari Prasad recognised unlimited power of amendment till the decision in GolaJcnath, in 1967, normal democratic ~roccss of the departments of the State fl!nctioned as provided by the Coo .. tltut1on. The test of the existence 'of unlimited amending power is not the possible abuse of the power. Only if the words are ambiguous regard can be had ~ the .consequences of the exercise of the power. Where more than one meaning ts possible the Court must give the construction which will ensure the harmonious working of the Constitution. Queen v. Burah, [1878] 3 A.C. 889. If the court is to fi~d ~ut each time the essential features or the core of the fundamental rights that w~U introduce chaos. Words conferring legislative power should be given their widest meaning. This rule applies forticri to constituent power. Ryan's case, [1935] Ir. Rep. 170. If the positive power of "amendment of this constitution" in article 368 is restricted by raising th~ walls of essential features or oorc of essential features the clear intention of the Constitution makers will be nullified. None has the power to say that any single provision is more essential than another or that the amending power under article 368 does not operate on any provision on the ground of alleged essentiality. When article 368 provides fo< "amendment of this Constitution" it means the whole constitution including every provision. There is no foundation for the analogy that just as judges test reas.lnableness in law, judicial mind will find out the essential featufcs on the test of reasonableness. Reasonableness is an objective criterion because reason inheres in man as human being. Proviso (e) to article 368 expresses clear and deliberate intention of the Constituent Assembly that apart from providing for less rigid amending formula the Constituent Assembly took care to avoid the controversy in the United States as to whether express limitations on Atticlc V of the U.S. Constitution itself rogarding equal suffrage of the states in the Senate could be amended, or the controversy in Australia as to whether section 28 of the Commonwealth Constitution itself could be amended since there was no express limitation on such amendment. The Constituent Assembly pro-vided in Cl. ( e) to article 368 express and specific power of amendment of article 368 itself. The amending body under article 368 represents the will of the people. The concept of popular sovereignty is well settled in parliamentary democracy. It means that the people express their will through their repre-sentatives elected by them at the general election as the amending body pres-cribed by the Constitution. In democracy the majority has the right to embody its opinion in laws subject to the limitations imposed by the Constitu-tion. It has the unlimited power to remove these limitations. Lochner v. New York, 49 L. ed. 937. The amending power must be coextensive with the Power of Court to invalidate laws. There is intrinsic evidence in Pai: III itself that our Constitution does not adopt the theory that fundamental rights arc natural rights or moral rights which every human being i.s at all times to have. They are only social rights "conferred" on citizens by civilised •oc!cty at given time and are therefore susceptible to change from time to tune (See article 19, 33, 34, 358, 359 and 13(2)). The unambiguous meaning of amendment could not be destroyed to nurse the theory of implied limitations. The theory is repudiation of democratic process. Implications of limitation of power ought not to be imported from general concepts but "!'ly from ~X· press or necessarily implied limitatio~s (i.e. implied limitation without which'

constitution cannot be worked). McCawley v. The Kini, [1920] A.C. 691. The Canadian decisions cited relate only to the legislative competence of provincial legislatures to affect civil liberties like free speech, religion or to legislate in respect of criminal matters. They are not relevant for deter mi n1ng the amending power under the Constitution. So far as civil rights in Canada arc concerned it is noteworthy that the Canadian Bill of Rights, 1960, makes the rights therein dcfeasible by an express declaration that an Act of Parliament shall operate notwithstanding the Bill of Rights. If Shanti/al Mangaldas case had not been overruled in R. C. Cooper v. Union of India there would have been no necessity of amending article 31(2). If the word 1compensation' as it stood prior to the 25th amendment must mean equivalent in value in cash, then, concentration of wealth will remain unchanged and justice, social economic and political amplified in articles 39, 41, 42, 43, 45, 46 and 47 will be thwarted. Directive principles have to be effectively implementtd in order to achieve the readjustment of social order. The Twenty Fifth Amendment protects law in one respect, namely, the amount payable to the owner is no longer to be measured by the standard of equivalent in value of the property acquired. The fixing of the amount or alternatively specifying the principles for determining that amount is entirely within the judgment of the legislature and the whole object of the amendment is to exclude judicial review which had been introduced by the courts on the basis of the concept of compensation. In fixing the. amount the legislature will act on some prin· ciplc. This is not because of any obligation arising frdm art. 31(2) but from the general nature of legislative power itself. Whatever the subject or the nature of legislation, it always proceeds on principle, it is based on legislative policy. The principle may include considerations of social justice. Judicial review on the ground of inadequacy of the 14amount" and the manner of payment is excluded by express language. No other question is excluded.

Article 31C is an application of the principle underlying article 31 ( 4 ), 31(6) and 31A to the sphere of industry.

Article 31C creates legislative field with reference to the object of legisla~ tion. The object of inserting article 31C is to free certain kinds of laws from the limitation on legislative power imposed by conferment of fundamental rights by Part Ill. As those rights arc justiciable under article 32 the only way of doing so is to exclude judicial review of legislation in respect of those la'°''S, The fear of discrimination is allayed by three safeguards. First and foremost is' the good sense of the legislature and the innate good sense of the community. The second is the President's assent. The third is th.at in appropriate case it can be found as to whether there i9 any nexus between the law and the Dircc· tive Principles sought to be achieved. The law enacted under article 31C will operate on "material resources", uconcentration of wealth" and umeans of production". The legislative effort would generally involve (i) nationalisation of the material rcsource·s of the community and (ii) imposition of c.ontrol on the production supply and distribution of the products of key industries and essential commodities. It therefore impinges on particular kind of cconol'IJ.!C system only. Article 31C docs not delegate power to legislatures to amend the constitution. There can ~ implied amendment of the Constitution. Kariapper v. Waie Sinha, [1968] A.C.R. 717, 743.

This case was heard on the following dates : October 31, 1972, November I to 3, 6 to 7, 9, 13 to 16, 22 to 24, 27 to 30, 1972; IJ.ccmbcr 4 to 8, 13 to 14, 18 to 21, 1972; January 8 to 12, 15, 17 t0 19, 22 to 25, 29 to 31, 1973; February 1 to 2, 5, 12 to 13, 15 to 16, 19 to 21, 23, 26 to 28, 1973; March 1 to 2, 12 to 14; 15 to 16, 22 to 23, 1973.

ORIGINAL JURISDICTION: Writ Petition No. 135'of 1970 . •

Petition under Article 32 of the Constitution of India for the en· forcement of fundamental rights.

WITH

Writ Petitions Nos. 351 and 352 of 1972.

WITH

Writ Petitions Nos. 373 and 374 of 1972.

AND

Writ Petition No. 400 of 1972.

For the Petitioner (in W .P. No. 135/70) : M/s, N. A. Palkhivala, C. K. Daphtary, M. C. Chagla, Sol~ Sorabji, Anil B. Divan and K. T. Haridranath, Senior Advocates, (M/s. j. B. Dadachanji, B. G. Murdesh· war, Anwarulla Pasha, Ravinder Narain, 0. C. Mathur, S. Swarup and S. I. Thakore, Advocates with them).

For Respondent No . . I (in W. P. No. 135/70) : Mr. H. M. Seervai, Advocate-General for the State of Maharashtra and Mr. M. M. Abdul Khadar, Advocate-General for the State of Kerala, (M/s. T. R. Andhya-rujina and K. M. K. Nair, Advocates, with them).

For Respondent No. 2 (in W.P. No. 135/70): Mr. Niren De,

Attorney-General of India and Mr. Lal Narain Sinha, Solicitor-General of India, (M/s. R. N. Sachthey, Ram Panjwani and Miss· Sumitra Chakravarty, Advocates, with them).

For the Advocate-General, State of Andhra Pradesh (in W. P. No. 135/70) : Mr. P. Ramachandra Reddy, Advocate-General for the State of Andhra Pradesh, (M/s. T. V. S. Narasimhachari and P. Paramesh-wara Rao, Advocates, with him). ·

For the Adovcate-General, State of Assam (in W. P. No. 135/70) :

Dr. J. C. Medhi, Advocate-General for the State of Assam and Mr. Moinul Haque Chowdhury, Senior Advocate, (Mr. Naunit Lal, Advo-cate, with them).

For the Adovcate-General, State of Bihar (in W. P. No. 135/70) : Mr. Balbhadra Prasad Singh, Advocate-General for the State of Bihar (Mr. U. P. Singh, Advocate with him).

For the Advocate-General, State of /ammu and Kashmir (in W .P_ No. 135/70) : M/s. Y. S. Dharmadlllkari, Advocate-General and J. P. Bajpai, Dy. Advocates.

For the Advocate-General, State of Madhya Pradesh (in W. P. No. 135/70) : M/s. Y. S. Dharmadhikari, Advocate-General and J. P. Bajpai, Dy. Advocate-General for the State of Madhya Pradesh, (Mr. I. N. Shroff, Advocate, w;th them).

For the Advocate-General, State of Maharashtra (in W .P. No. 135/70) : Mr. H. M. Seervai, Advocate-General for the State of Maha-rashtra, M/s. T. R. Andbyarujina and S. P. Nayar, Advocates, with him).

For the Advocate-Genera/, State of Manipur (in W .P. No. 135) : M/s. R. N. Sachthey and S. K. Nancly, Advocates.

For the Advocate-Generd, State of Meghalaya (in W.P. No. 135/ 70) : Mr. Nirendra Mohan Lahiri, Advocate-General for the State of Megha!aya, (Mr. D. N. Mukherjee, Advocate, with him).

For the Advocate-General, State of Mysore (in W .P. No. 135/70) : Mr. R. N. Byra Reddy, Advocate-General, State of Mysore, (M/s. Chandra Kant Urs, Govt. Advocates, Mysore and M. Veerappa, Advocate, with him).

For the Adovcate-General, State of Nagaland (in W .P. No. 135/ 70) : Mr. S. K. Ghose, Advocate-General, State of Nagaland, (M/s. Naunit Lal, H. K. Serna and A. R. Barthakar, Advocates, with him).

For the Advocate-General, State of OriJsa (in W .P. 135/70) : Mr. Gangadhar Rath, Advocate-General, State of Orissa, (M/s. Gobind Das and B. Parthasarathy, Advocates, with him).

For the Advocate-General, the State of Puniab (in W .P. No. 135/ 70) : Mr. R. N. Sachthey, Advocate.

For the Advocate-General, Sta~e of Raiasthan (in W .P. No. 135/ 70) : Dr. L. M. Singhvi., Advocate-General, State of Rajasthan, (M/s. K. Baldcv Mehta and Sobhagmal Jain Advocates, with him).

For the At!tlOCate-General, the State of Tamil Nadu (in W.P. No. 135/70) : Mr. S. Govind Swaminatha, Advocate-General, State of Tamil Nadu, (M/s. A. V. Rangam, N. S. Siram and Miss A. Subha-~hini. Advocates, with him).

For the Advocate-General, State of Uttar Pradesh (in W.P. No. 135/70) : Mr. S. N. Kakkar, Advocate-General, State of Uttar Pradesh. (Mr. 0. P. Rana, Advocate, with him).

For Intervener No. 1 (in W.P. No. 135/70) : Mr. Binaya~ Baner-jee, Senior Advocate, (M/s. Somen Bose, Suprakash Baneqee a.nd G. S. Chatterjee, Advocate, with him).

For the Intervener Nos. 2 anJ 3 (in W .P. No. 135/70) : M/s. G. B; Raikar, S. S. Javali, R. L. Roshan and H. K. Puri, Advocates.

For Intervener Nos. 4 to 6 (in W .P. No. 135/70) : M/s. D. M. iParulekar, C. K. Ratnaparkhi and A. G. Ratnaparkhi, Advocates.

For Intervener Nos. 7 & 8 (in W .P. No. 135/70) : Mr. Mahindra Nath Ghosh, Senior Advocate, (M/s. Sommcn Bose, Soi\endra Sckhar Roy and G. S. Chatterjee, Advocates, with him).

For Intervener No. 20 (in W. P. No. 135/70) : Miss Lily Thomas, Advocate.

For Intervener No. 9 (in W.P. Nos. 135/70 & 373/72) : Mr. Anil Diwan, Senior Advocat:c, (M/s. J. B. Dadachanji, S. I. Thakorc, P. M. Dan~ekar, D. M. Popat, M. L. Bhakta, Ravinder Narain and 0. C. Mathur, Advocates.

For Intervener No. 10 (in W .P. Nos. 135/70 & 373/73f :· MJs.

N. A. Palkhivala and Basudev Prasad, Senior Advocates, (1!K/s., J. 'B. Dadachanji, S. I. Thakore, P. M. Dandekar, D. M. Popat, M. L. Bhakta, Ravinder Narain and 0. C. Mathur, Advocates, with them).

For Intervener Nos. 11 to 19 (in W .P. Nos. 135/70 & "173/72) : M/s. N. A. Palkhivala and Anil Diwan, Senior Advocates, (M/s. S. I. Thakore, P. M. Dandekar, D. M. Popat, M. L. Bhakta, J. B. Dada-chanji, Ravinder Narain, 0. C. Mathur and S. Swarup, Advocates, with them) .

For the Petitioner (in W .P. No. 351/72) : M/s. N. A. Palkhivala, M. C. Chagla and Soli Sorabji, Senior Advocates, M/s. B. G. Murdesh-war, J. B. Dadachanj~ Ravinder Narain, 0. C. Mathur, S. Swarup and A. G. Meneses, Advocates, with them).

For the Petitioner (in 1 W .P. No. 352/72) : Mr. Soli Sorabji, Senior

1 Advocate, (M/s. B. G. Murdeshwar, J. B. Dadachanji, Ravindcr Narain, 0. C. Mathur, S. Swarup and A. G. Meneses, Advocates, with him).

For Respondent No. 1 (in W .P. No. 351/72) : M/s. Nircn De, Attorney-General of India and Lal Narain Sinha, Solicitor-General of India and D. P. Singh, Senior Advocate, (M/s. G. l. Sanghi, R. N. Sachthcy and B. D. Sharma, Advocates, with them),

For Respondent No 1 (in W .P. No. 352/72) : (M/s. Nircn De,

Attorney-General of India, Lal Narain Sinha, Solicitor-General of India and D. P. Singh, Senior Advocate, (M/s. R. N. Sachthcy and B. D. Sharma, Advocates, with them).

For the Advocate-General, State of Andhra Pradesh (in W. P. Nos. 3;1-352/72) : Mr. P. Ramachandra Reddy, Advocat:c-Gcneral, State of Andhra Pradesh, (M/s. G. Narayana Rao and P. Paramcsh-wara Rao, Advocates,. with him).

For the Advocate-General, State of Bihar (in W .P. Nos. 351-352/ i2) : Mr. Balbhadra Prasad Singh,. Advocate-General, State of Bihar,. (M/s. Radha Raman, Jai Narayan and U. P. Singh, Advocates, with. him).

For the Advocate-General, State of Manipur (in W .P. Nor. 351-· 352/i2) : Mr. N. Ibotombi Singh, Advocate-General, State of M~nipur,. (M/s. S. K. Nandy and R. N. Sachthey, Advocates, with him).

For the Advocate-General, State of Orissa (in W .P. Nos. 351-352/ i2) : Mr. Gangadhar Rath, Advocate-General, State of Orissa, (Mr_ G. S. Chatterjee, Advocate, with him).

For the Advocate-General, State of Punjab (in W .P. Nos. 351-352ji2) ~ Mr. R. N. Sachthey, Advocate .

. , For the Intervener No l (in W .P. No. 351/72) : Intervener appear-

. , af in person and later Mr. Basudeo Prasad, Senior Advocate, (Mr .. N. N. Sharma, Mvocate, with him).

For the .Intervener No. 2 (in W .P. No. 351/72) : M/s. Santok: Singh and V. Mayakrish,nan, Advocates.

For the Petitioner (in W.P. No. 373/72) : Mr. C. K. Daphtary,.

Senior Advocate, M/s. R. N. Banerjee, J. B. Dadachanji, Ravinder Narain, 0. C. Mathur, P. C. Bhartari and S. Swarup, Advocates, with, him). '

For the Petitioner (in W.P. No. 374/72) : M/s. M. C. Chagla and C. K. Daphtary, Senior Advocates, (M/s. R. N. Banerjee, J. B. Dada-chanji, Ravinder Narain, 0. C. Mathur, P. C. Bhartari, S. Swarup and' Mrs. N. A. Palkhivala, Advocates, with them).

For Respondent No. 1 (in W .P. No. 373/72) : M/s. Niren De,. Attorney-General of India, Lal Narain Sin~1a, Solicitor-General of India and M. K. Ramamurthy, Senior Advocate, (Mr. R. N. Sachthey, Ad-vocates, with them).

Fo1· Respondent No. 1 (in W.P. No. 374/72) : M/s. Niren De, Attorney-General of India, and Lal Narain Sinha, Solicitor-General of India (M/s. R. H. Dhebar, R. N. Sachthey and B. D. Sharma, Advo-cates, with them).

For the Petitioner (in W.P. No. 400/72) : M/s. N. A. Palkhivala and C. K. Daphtary, Senior Advocates, (M/s. R. N. Banerjee, J. B. Dadachanji, Ravinder Narain, 0. C. Mathur, P. C. Bhartari and S. Swamp, Advocates, with them).

For Respondent No. l (in W.P. No. 400/72) : M/s. Niren De, Attorney-General of lnrlia, Lal Narain Sinha, Solicitor-General of India, (M/s. R. N. Sachthey, S. P. Nayar and S. N. Prasad, Advocates, with. them).

Sna1, C. J. : I propose to divide my judgment into eight parts. Part I will deal with Introduction; Part II. with interpretation of Golakhnath' case ; Part III with the interpretation of the original article 358, as it existed prior to its amendment ; Part IV with · the validity of the Constitution (Twenty-fourth Atnendment) Act; Part V with the validity of s. 2 of the Constitution (Twenty-fifth Amendment) Act; Part VI with the validity of s. 3 of the Constitution (Twenty-fifth Atnendment) Act; Part VII with Constitution (Twenty-ninth Amend-ment) Act; and Part VIII with .conclusions.

PART I-Introduction

All the six writ petitions involve common questions as to the vali-dity of the Twenty-fourth, Twenty-fifth and Twenty-ninth Amend-ments of the Constitution. I may give few facts in Writ fetition No. 135 of 1970 to show how the question arises in this petition. Writ Petition No. 135 of 1970 was filed by the petitioner on Match 21, J.970 under Article 32 of the Constitution for enforcement bf his fundamental rights under Articles 25, 26, 14, 19(1)(£) and 31 of thc-Constitution. He prayed that the provisions of the Kerala Land R~orms Act, 1963 (Act 1 of 1%4) as amended by the Kerala Land Reforms (Atnendment) Act 1969 (Act 35 of 1969) be declared unconstitutional, ultra vires and void. He further prayed for an appropriate writ or order to issue during the pendency of the petition. This Court issued rule' nisi on March 25, 1970.

During the pendency of the writ petition, th~ Kerala Land Re-forms (Amendment) Act 1971 (Kerala Act No. 25 of 1971) was passed which received the assent of the President on August 7, 1'971. The· petitioner filed an application for permission to urge additional grounds and to impugn the constitutional validity of the Kernla Land Reforms (Amendment) Act 1971 (Kerala Act No. 25 of 19'll). ·

In the meantime, the Supreme Court by its judgment datqd April 26, 1971 in Kunjukutty Sahib v. State of Kerala([1 ]) upheld the majority judgment of the Kerala High Court in V. N. Narayanan Nair v. State of Kerala(2) whereby certain sections of the Act were struck d~wn.

(1) {1972] S.C.C. 364 (Civil Appeals Nos. 143, 203-242, 274 & 309 of• 1971). judgment dated April 26, 1971. ( [2 ]) A.LR. 1971 Kerala 98.

The. Constitution (Twenty-fifth Amendment) Act came into force on November 5, 1971, the Constitution (Twenty-fifth Amend-ment) Act came into force on April 20, 1972 and the Constitution {Twenty-ninth Amendment) Act came into force on June 9, 1972. The effect of the Twenty-ninth Amendment of the Constitution was that it inserted the following Aots in the Ninth Schedule to the Consti~ tution :-

"65. The Kerala Land Reforms (Amendment) Act, 1969 (Kera la Act 35 of 1969).

· 66. The Kera la Land Reforms (Amendment) Act, 1971 (Kerala Act 25 of 1971)."

The petitioner then moved an application for urging additional grounds and for amendment of the writ petition in order to challenge the above constitutional amendments.

The Court allowed the application for urging additional grounds .and for amendment of the writ petition on August 10, 1972 and issued notices to the Advocates-General to appear before this Court and take .such part in the proceedings as they may be advised.

When the case was placed before the constitutional bench, it referred this case to larger bench to determine the validity of the impugned constitutional amendments.

Similar orders were passed in the other writ petitions.

The larger bench was accordingly constituted. It was then felt :that it would be necessary to decide whether I. C. Golak Nath v. State .of Punjab(') was rightly docided or not. However, as I see it, the .question whether Golak Nath's(') case was rightly decided or not .docs not matter because the real ·issue is different and of much greater :importance, the issue being : what is the extent of the amending ·power conferred by art. 368 of the Constitution, apart from art. 13(2), on Parliament ?

The respondents claim that Parliament can abrogate fundamental rights such as freedom of speech and expre9Sion, freedom to form .associations or unions, and freedom of religion. They claim that demo-·cracy can even be replaced and one-party rule , established. Indeed, short of repeal of the Constitution, any form ~f Government ~.ith 1_10 freedom to the citizens can be set up by l'arhament by exerosmg its powers under art. 368.

On the side of the petitioners it is urged that the power of Parliament is much more limited. The petitioners say that the Consti-tution gave the Indian citizen freedoms which were to subsi.st for ever

and the Constitution was drafted to free the nation from any future tyranny of the representatives of the people. It is this freedom from tyranny which, according to the petitioners, has been taken away by the impugned art. 31C which has been inserted by the Twenty-fifth ·Amendment. If article 31C is valid, they say, hereafter Parliament and State Legislatures and not the Constituti.on, will determine how much freedom is good for the citizens.

These cases raise grave issues. But however grave the issues may-be, the answer must depend on the interpretation of the words in art. 368, read in accordance with the principles of interpretation which. arc applied to the interpretation of Constitution given by the people to themselves.

I must interpret art. 368 in the setting of our Constitution, in the background of our history and in the light of our aspirations and hopes, and other relevant circumstances. No other constitution in the world is like ours. No other constitution combines under its wings. such diverse peoples, numbering now more than 550 millionsr·with different languages and religions and in different stages of economic development, into one nation, and no other nation is faced with such. vast socio-economic problems.

I need hardly observe that I am not interpreting an ordinary statute, but Constitution which apart from setting up machinery for government, has noble and grand vision. The vision was put in words in the Preamble and carried out in part by conferring funda-mental rights on the people. The vision was . directed to be further carried out by the appl'ication of directive principles.

PART II-Interpretation of, Golak Nath's Cate.

Before proceeding with the main task, it is necessary to ask : what was decided in J. C. Golak Nath v. State of Punjab(') ? In order t<> properly appreciate that case, it is necessary first to have look at Sri Sankari Prasad Singh Deo v. Union of India and State of Bihar(") and Sajjan Singh v. State of Rajasthan(')

The Constitution (First Amendment) Act, 1951, which inserted inter alia Arts. 31A and 31B in the Constitution was the subject matter of decision in Sankari PraraJ' s(') case. The main argument~

(•) (1961] 2 S.C.R. 762. (2) (1952] S.C.R. 89. ( [1]) (1965] I S.C.R. 933.

relevant to the present case wh:ch were advanced in support of the petition before this Court were summarised by Patanjali Sastri, J. as he then was, as .follows :

"First, the power of amending the Constitution provided for under article 368 was conferred not on Parliament but on the two Houses of Parliament as designated body and, therefore, the provisional Parliament was not competent to exercise that power under article 379.

Fourthly, in any case article 368 is complete code in itself and does not provide for any amendment being made in the bill after it has been introduced in the House. The bill in the present case having been admittedly amended in several particulars during its passage through the House, the Amendment Act cannot be said to have been passed in conformity with the procedure prescribed in article 368.

Fifthly, the Amendment Act, in so far as it purports to take away or abridge the righ~s conferred by Part III of the Constitution, falls within the prohibition of article 13(2)".

As stated in the head note, this Court held :

"The provisional Parliament is competent to exercise the power of amending the Constitution under Art. 368. The fact that the said article refers to the two &uses of the Parliament and the President separately and not to the Parliament, docs not lead to the inference that the body which is invested with the power to amend is not the Parliament but different body consisting of the two Houses.

The words "all the powers conferred by the provisions of this Constitution on Parliament" in Art. 379 are not confined to such powers as could be exe.rcised by the provisional Parliament con-sii>ling of single chamber, but are wide enough to include the power to amend the Constitution conferred by Art. 368.''

I may mention that Mr. Seervai contends that the conclusion just mentioned was wrong anil that the body that amends the Constitution under Art. 368 is not Parliament.

The Court further held :

"The view that Art. 368 is eomplete code in itself 'in respect of the procedure providtd by .it and does not contemplate any amend-ment of Bill for amendment of the Constitution after it has

been introduced, and that if the Bill is amended during its passage through the House, the Amendment Act cannot be said to have been passed in conformity with the procedure prescribed by Art. 368 and would be invalid, is erroneous.

Although "law" must ordinarily include constitutional law there is clear demarcation between ordinary law whi<:h is made in the exercise of legislative power and constitutional law, which is made in the exercise of constituent power. In the context of Art. 13, "law" must be taken to mean rules or regulations wade in exercise of ordinary legislative power and not amendments to the constitution made )n the exercise of constituent power with the result that Art. 13(2) does not affect amendments made under Art. 368."

Although the decision in Sankari Prasad' s(') case was not challen· ged in Sajjan Singh' s([2]) case, Gajendragadkar, c. J. thought it fit to give reasons for expressing full concurrence with that decision.

The only contention before the Court was that "since it appears that the powers prescribed by Art. 226 are likely to be affected by the intended amendment of the provisions contained in Part III, the bUI introduced for .the purpose of making such an :unendment, must at!tract the proviso, and as the impugned Act has admittedly not gone through the procedure prescribed by the proviso, it is invalid". Accord-ing to Gajendragadkar, C.J. "that raised the questii>n about the cons-truction of the provisions contained in Art. 368 and the relation between the substantive part of Art. 368 with its proviso."

The Chief Justice came to the conclusion that "as matter of construction, there is no escape from the conclusion that Art. 368 provides for the amendment of the provisions contained in Part Ill without imposing on Parliament an obligation to adopt the procedure prescribed by the proviso."

The learned, Chief Justice thought that the power to amend in the context was very wide power and it could not be controlled by the literal dictionary meaning of the word "amend". He expressed his agreement with the reasoning of Patanjali Sastri,' J. regarding the applicability of Art. 13(2) to Constitution Amendment Acts passed · under Act. 368. He further held that when Art. 368 confers on ' Parliament the right to amend the Constitution, it can be exercised over all the provisions of the Constitution. He thought that "if the Constitutio,1-makers had intende<;l that any future amendment of the

( [1]) [1952] S.C.R. 89. { [2]) [!965] I S.C.R. 933.

provisions in regard to fundamental rights should be subject to Art. 13(2), they would have taken the precaution of making clear provi-sion in that behalf."

He seemed to be in agreement with the following observations of Kania, C.J. in A. K. Gopalan v. The State of Madras(') :

"the inclusion of article 13(1) and (2) in the Constitution appears to be matter of abundant caution. Even in their absence if any of the fundamental rights was infringed by any legislative enact-ment, the Court has a\Ways the power to declare the enactment, to the extent it transgresses the limits, invalid".

He was of the view that even though the relevant provisions of Part III can be justly described as the very foundation and the corner-stone of the democratic way of life ushered in tliis country by the Constitution, it cannot be said that the fundamental rights guaranteed to the citizens are eternal and inviolate in the sense that they can never be abridged or amended.

According to him, it was legitimate to assume that the Cons-titul!ion-makers visualised that Parliament would be competent to make amendments in these rights so as to meet the challenge of the probkms which may arise in the course of socio-economic progre55 and development of the country.

Hidayatullah, J., as he then was, agreed with the Cl\:ief Justice that the 17th Amendment was valid even though the procedure laid down in the proviso to Art. 368 had not been followed. But he expressed his difficulty in accepting the part of the reasoning in Sonkari Prasad's(') case.

He observed as follows :

"It is true that there is no complete defini,tion of the word "law,. in the article but it is significant that the definition does not seek to· exclude constitutional amendments which it would have been easy to indicate in the definition by adding "but shall not inc111Je 1zn amendment of the Constit11tion". (p. 958).

He further observed :

"The meaning of Art. 13 thus depends on the sense in which the word "law" in Art. 13(2) is to be understood. If an amendment can be said to fall within the term "law", the Fundamental Rights become "eternal and inviolate" to borrow the language of the Japanese Constitution. Article 13 i& then on par with Art. 5 of the American Federal Constitution in its immutable prohibition as 1011g as it stands." (p. 958). ·

(1) [ 1950] S.C.R. 88 at p. 100.

According to him "Our Preamble is more akin in nature to the American Declaration of Independence (July 4, 1776) then to the preamble to the Constittµion of the United States. It does not make any grant of power but it gives direction and purpose to the Cons-titution which is reflected in Parts III and IV. Is it !lo be imagined that two-thirds majority of the two Houses at any time is all that is necessary to alter it without even consulting the States ? It is not even included in the proviso to Art. 368 and it is difficult to think that as it has not the protection of the proviso it must be within the main part of Art. 368."

He further observed :

"I would require stronger reason than those given in Sankari Prasad's .case to make me accept the view that Fundamental Rights were not really fundamental but were intended to be within the powers of amendment in common with the other parts of the Constitution and without the concurrence of the States."

He held:,-

"What Art. 368 does is to lay down the manner of amendment and the necessary conditions for the effectiveness of the amend-ment ......................... .

The Constitution gives so many assurances in Part Ill that it would be difficult to think that they were the play-things of special majority. To .hold this would mean prima facie that the most solemn parts of our Constitution stand on the same footing as any other provision and even on less firm ground than one on which the articles mentioned in the proviso stand."

Mudholkar, J. although agreeing that the writ petition should be dismissed, raised various doubts and he said that he was reserving his opinion on the question whether Sankari Prasad's case was rightly· decided. He thought :

"The language of Art. 368 is plain enough to show that the action of Parliiament in amending the Constitution is leg'islative act like one in exercise of its normal legislative power. The only difference in respect of an amendment of the Constitution 'is that the Bill amending the Constitution has to be passed by special majority (here I have in mind only those amedments which do not attract the proviso to Art. 368). The result of legislative action of legislature cannot be other than 'law' and, therefore, it seems to me that the fact that the legislation deals with the amend-ment of provision of the Constitution woul\l not make its result any the less 'law'." 7-36 S. C. Jnd;a/73

He observed :

"It is true that the Constitution does not directly prohibit the amendment of Part III. But it would indeed be strange that rights which are considered to be fundamental and which include one which is guaranteed by the Constitution ( vide Art. 32) should be more easily capable of being abridged or restricted than any of the matters referred to in the prov'is0 to Art. 368 some of which are perhaps less vital than fundamental rights. It is possible, as suggested by my learned brother, that Art 368 merely lays down the procedure to be followed for amending the Constitution and does not confer power to amend the Constitution which, I think, has to be ascertained from the provision sought to be amended or other relevant provisions or the prcimble."

Later, he observed :

"Above all, it formulated solemn and dignified preamble which appears to be. an epitome of the basic features of the Constitution. Can it not be said that these are indica of the intention of the Cons-tituent Assembly to give permanency to the basic features of the Constitution ?"

He posed further question by observing :

"It is also matter for consideration whether making change in basic feature of the Constitution can be regarded merely as an amendment or would it be, in effect, rewriting part of the. Constitution; and if the latter, would it be within the purview ot Art. 368 ?"

He th<>n stressed the prime importance of the preamble :

"The Constitution indicates three modes of amendments and assuming that the provisions of Art. 368 confer power on Parlia-mentt to amend the Constitution, it will still have to be considered whether as long as the preamble stands unamended, that power ~ be exercised with respect to any of the basic features of the .Constitution.

To illustra~ my point, .as long as the words 'sovereign democratic republic' are there,. could the Constitution be atl)ended so as to depart from the democradc form · of Government OF im . republic character? If. that cannot be done, then, as long as ~ W91"dt "JuStlc.e, social, economic and political etc.," arc there. ~d any of the rjghts enumera~ in. Arb. 14 to 19, 21, 25, 31 ;llld. 32 be . taken away ? If they cannot, it will be for consicferatioo :whether· they can . be modified. · · ·

"It has been said, no doubt, that the preamble is not part of our Constitution. But, I think, that if upon comparison of the preamble with the broad features of the Constitution it would appear that the preamble is an epitome of those features or, to put it differently if these features are an amplification or concre-tisation of the concepts set out in the preamble it may have to be considered whether the preamble is not part of the Constitution. While considering this question it would be of relevance to bear in mind that the preamble is not of the common run such as is to be found in an Act of ·a legislature. .It has the stamp of deep deliberation and is marked by precision. Would this not suggest that the framers of the Constitution attached special significance to it?" ·

Coming now to Golak Nath' s case, the petitioner had challenged the valid.ity of the Constitution (Seventeenth Amendment) Act, 1964 which included in the Ninth Schedule, among other acts, the Punjab Security of Land Tenures Act, 1953 (Act 10 of 1953), and the Mysore Land Reforms Act (Act 10 of 1962) as amended by Act 14 I of 1%5.

It was urged before the Court that Sankari Prasad's(') case in which the validity of the Constitution (First Amendment) Act, 1951 and Sajjan Singh's([2 ]) case in which the validity of the Constitution (Seventeenth Amendment) Act was in question had been wrongly decided by this Court. · ·

Subba Rao, C.J. speaking for himself and 4 other Judges summa-rised the conclusions at page 815 as follows :

"The :if oresaid diocussion leads to the following results :

(!) The power of the Parliament to amend the Constitution iB derived from Arts. 245, 246 and 248 of the Constitution and · not from Art. 368 thereof which only deals with procedure. Amendment is legislative process .

(2) Amendment is 'law' within the meaning of Art. 13 of the Constitution and, therefore, if it take$ away or abridges the rights conferred by Part III thereof, it is void.

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

( [1]) (19521 S. C.R. 89.

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

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

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

It must be borne in mind that these conclusions were given in the light of the Constirut:ion as it stood then i.e. while Art. 13(2) subsisted in the Constirution. It was then not necessary to decide the ambit of Art. 368 with respect to the powers of Parliament to amend Art. 13(2) or to amend Article 368 itself. It is these points that have now to be decided.

It may further be observed that the Chief Justice refused to express an opinion on the contention that, in exercise of the power of amend-ment, Parliament cannot destroy the fundamenta \ structure of the Constitution but can only modify the provision thereof within the framework of the original instrument for its better effectuation.

As will be seen later, the first conclusion above, does not survive for discussion any longer because it is rightly admitted on behalf of the petitioners that the Constitution (Twenty Fourth Amendment) Act. 1971, in so far as it transfers power to amend the Constitution from the residuary entry (Entry 97 List 1 ) or Art. 248 of the Constirution to Art. 368, is valid; in other words Art. 368 of the Constitution as now amended by the Twenty Fourth Amendment deals not only with the procedure for amendment but also confers express power on Parliament to amend the Constirution. ·

I will also not discuss the merits of the second conclusion as the

same result follows In this case even if it be assumed in favour of the respondents that an ·amendment of the Constitution is not law within Art. 13(2) of the Constitution.

Hidayatullah, J. as he then was, came to the following conclusions at page 902:

"(i) that the Fundamental R:ights are outside the amendatory process if the amendment seeks to abridge Oii take away any of the rights;

(ii) that Sankari Prasad's case (and Sajjan Singh's case which followed it) conceded the power of amendment over Part III of the Constitution on an erroneous view of Arts. 13(2) and 368. .

(iii) that the First, Fourth and Seventh Amendments being part of the Constitution by acquiescence for long time, cannot now be challenged and they contain authority for the seventeenth Amendment;

(iv) that this Court having now laid down that Fundamental Rights cannot be abridged or taken away by the exercise of amenda-tory process in Art. 368, any further inroad into these rights as they exist today will be illegal and unconstitutional unless it complies with Part lII in general and Arr. 13(2) in particular;

( v) that for abmlging or taking away Fundamental Rights, Constituent body will have to be convoked; and

(vi) that the two impugned Acts, namely, the Punjab Security of Land Tenures Act, 1.953 (X of 1953) and the Mysore Land Reforms Act, 1961 (X of 1962) as amended by Act XIV of !965 are valid under the Constitution not because they are included in Schedule 9 of the Constitution but because they are protected by Act. 31-A, and the President's assent."

I am not giving his reasons for these .conclusions here because they w'ill be examined when dealing with the arguments addressed to us on various points.

Wanchoo, J. as he then was, also speaking on behalf of 2 other Judges held that Sankari Prasad's(') case was correctly decided and the majority in Sajja11 Singh's(') case was correct in following that decision.

Bachawat, J. held :

( 1) Article 368 not only prescribes the procedure but also gives the power of amendment;

(2) Article 368 gives the power of amending each . and every provision of the Constitution and as art. 13(2) 1s part. of ·the Constitution it is within the reach of the amending power;

( [1]) [1952] S.C.R. 89.

(3) Article 368 is not controll!ed by art. 13(2) and the prohibi-. tory injunction in art. 13(2) is not attracted against the amending power;

(4) Constitutional amendment under art. 368 is.not law within the meaning of art, 13(2);

(5) The scale of value embodied in Parts III and IV is not immortal. Parts III and IV being parts of the Constitution arc not immune from amendment under art. 368. Consti-tion-makers could not have intended that the rights con-ferred by Part III could not be altered by giving effect to the policies of Part IV.

(6) The Preamble cannot control the unambiguous language of the articles of the Constitution.

Regarding the amendment of the basic features of the Constitution, he observed :

"Counsel said that they could not give an exhaustive catalogue of the basic features, but sovereignty, the republican form of govern-ment, the federal structure and the fundamental rights were some of the features. The Sevonteenth Amendment has not derogated from the sovereignty, the republican form of government and the federal structure, arid the question whether they can be touched by amendment does not arise for decision. For the purposes of these cases, it is sufficient to say that tho fundamental rights arc within the reach of the amending power."

Ramaswami, J., held :

( l) The amending power under art. 368 is sui generis ;

(2) "Law" in Art. 13(2) cannot be construed so as to include · "L~w" made by Parliament under Arts. 4, 169, 392, 5th Schedule Part and 6th Schedule Para 21.

(3) The expression "fundamental rights" does not lift the funda-mental rights above the constitution itself;

(4) Both the power to amend and the procedure to amend a~ enacted in art. 368.

(5) There were no implied limitations on the amending power and all articles of the Constitution were amendable either under the proviso of art. 368 or under the main part of the article.

(6) The Federal structure is not an essential part of our Consti-tution.

(7) The power of amendment is in point of quality an adjunct of sovereignty. If so, it does not admit of any limitations.

In btjef 6 Judges held that in view of Art. 13(2) Fundamental Rights could not be abridged Qr taken away. Five Judges held that Art. 13(2) was inapplicable to Acts amending the Constitution.

PART III-Interpretation of art. 368

Let me now proceed to interpret Art. 368. Article 368, as originally enacted, read as follows :

;'An amendment of this Constitution may be initiated only by the introduction of Bill for the purpose in either House of Parliament, and when the Bill is passed in each House by majority of the total membership of that House and by majority of not less than two-thirds of the members of that House present and voting, it shall be presented to the President for his assent and upon such assent being given to the Bill, the Constitution shall stand amended in accordance with the terms of the Bill :

Provided that if such amendment seeks to make any change

(a) article 54, article 55, article 73, article 162 or article 241, or

(b) Chapter IV of Part V, Chapter V of Part VI, or Chapter I of Part XI, or·

(c) any of the Lists. in the Seventh Schedule, or

( d) the representation of States in Parliament, or

( e) the provisions of this article,

the amendment shall alio require to be ratified by the Legislatures of not less than one-half of the States specified in Parts and of the First Schedule by resolutions to that effect passed by those Legislatures before the Bill making provision for such amendment is presented to' the President for assent."

It will be noticed that art. 368 is contained in separate part and the heading is "Amendment of the Constitution", but the marginal note reads "Procedure for amendment of the Constitution".

The expression "amendment of the Constitution" is not defined or expanded in any manner, although tn other parts of the Constitution, the word "Amend" or "Amendment" has, as will be pointed out later, been expanded. In some parts they have clearly narrow meaning .. The proviso tht ows some light on t.he problem. First, it uses the CX· pression "if such amendment seeks to make any change in"; it does not add the words "change of ", or omit "in", and say "~i;,ks t<> change" instead of the expression "seeks to make any change m ·

The articles which arc included in the proviso may be now con-sidered. Part V, Chapter I, deals with "the Executive". Articl~2. pro-vides that there shall be President of India, and art. 53 vests the executive power of the Union in the President and provides how it shall be exercised. These two articles are not mentioned in the proviso to art. 368 but arts. 54 and 55 are mentioned.

Article 54 provides :

"54. The President shall be elected by the members of an electoral college consisting of-

( a) the elected members of both Houses of Parliament; and

(b) the elected members of the Legislative Assemblies of the States."

Article 55 prescribes the manner of election of the President.

Why were arts. 52 and 53 not mentioned in the proviso to art. 368 ]f the intention was that the States would have say as to the federal structure of the country i One of the inferences that can be drawn is that the constitution-makers never contemplated, or imagined that Art. 52 wi]ll be altered and there shall not be President of India. In other words they did not contemplate monarchy being set up in India or there being no President.

Another article which has been included in the proviso to art. 368 is art. 73 which deals with the extent of executive powers of the Union. As far as the Vice-President is concerned, the States have been giYen no say whether there shall be Vice-President or not; about the method of his election, etc. But what is remarkable is that when we come to Part VI of the Constitution, which deals with the "States", the only provision which is mentioned in tihe proviso to art. 368 is art. 162 which deals With the extent of executive power of States. The appointment of Governor, conditions of service of Governor, and the constitution and functions of the Council of Ministers, and other provisions regarding the Ministers and the conduct of government business arc not. mentioned at all in the proviso to art. 368. Another article which 1s mentioned in cl. (a) of the proviso to art. 368 is art. 241 which originally dealt with High Courts for States in Part of the First Schcuble.

Chapter IV of Part V of the Constitution which deals with the Union Judiciary, and Chapter V of. Part VI which deals with the High .Courts in the State are included in the proviso to art. 368 but it is extra,ordinary that Chapter VI of Part VI which deals with subor-dinate Judiciary Is not mentioned in clause (b ). Chapter I of Part XI is included and this deals with the Legislative Relations between the

Union and the States, but Chapter II of Part XI which deals with Administrative Relations between the Union and the States, and vari- . ous other matters in which the States would be interested arc not in-cluded. Provisions relating to services under the State and Trade and Commerce arc also not included in the proviso.

This analysis of the provisions contained in clauses (a) and (b) of the proviso to art. 368 shows that the reason for including certain articles and excluding certain other from the proviso was not that all articles dealing with the federal structure or the status of the States had been sclc~ for inclusion in the proviso.

Clause (c) of the proviso mentions the Lists in the Seventh Sche-dule, clause ( d) mentions the representation of States in Parliam.ent, and clause ( c) the provisions of art. 368 itscl£. The provisions of sub-clauses (.c), (d) and (c) can rfghdy be said to involve the . federal structure and the rights of the States.

What again is remarkable is that the fllndamental rights arc not included in the proviso at all. Were not the States interested in the fundamental rights of their people ? The omission may perhaps be understandable because of the express provision of art. 13(2) which provided that States shall not make any law which takes away or abridges the rights conferred by Part IIJ and any law made in contra-vention of this clause shall to the extent of the contravent'ion be void, assuming for the present that Art. 13(2) operates on Constitutional amendments.

In construing the expression "amendment of this constitution I must look at the whole scheme of the Constitution. It is not right to construe words in vacuum and then insert the meaning into an article. Lord Greene observed in Bidie v. General Accident. Fire and Life Asiurance Corporation(') : ·

"The first thing one has to do, I venture to think, in• construing words in section of an Act of Parliament is not to take those words in vacuo, so to speak, and attribute to them what is some-times called their natural or ordinary meaning. Few words in the English language have natural or ordinary meaning in the sense that they must be so read that thcir meaning is entirely independent of their context. ·The method of construing statutes that I prefer is not to take partieular words and attribute to them sort of prirna facie meaning which you may have to displace or modify.

( [1]) (1948] 2 .All E.R. 995, 998.

It is to read the statute as whole ahd ask oneself the question : "In this state, in this context, relating to this subject-matter, what is the true meaning of that word ?"

I respectfully adopt the reasoning of Lord Greene in construing the expres5ion "the amendment of the Constitution."

Lord Greene 'is nor alone in this approach. fo Bourne v. Norwich Crematorium(') it is observed.:

"Engfish words derive colour trom those which swround them. Sentences are not mere .collections of words to be taken out of the sent®ce defined separately by reference oo the dictionary or decided cases, and then put back again into the sentence with the meaning which you have assigned to them as separate words, so as to give the sentence or phrase meaning which as sentence or phrase it cannot bear without distortion of the English language."

Holmes, J. in Towne v. Eigner(') bad the same thought. He observed:

"A word is not crystal, transparent and unchanged; it is the· skin of living thought and may vary greatly in colour and content according to the circumstances and the time in which it is used."

What Holmes J. said is particularly true of the word "Amendment" or "Amend".

I may also refer to the observation of Gwyer C.J. and Lord Wright:

"A grant of the power in general terms, standing by itself, would no doubt be construed in the wider sense; but it may be qualified by other express provisions in the same enactment, by· the implicatio1lf of the context, and even by the considerations ari~ing out of what appears to be the general scheme of the Act". (Per Gwyer C.J.-The Central Provinces and Berar Act, 1939 F.C.R. 18 at 42.)

The question, then, is one of construction and in the ultimate resort must be determined upon tht actual words used, fmti noe in vacuo but as occurring in single complex instrument, in which one part may throw light on another. The constitution has been described as the federal compact, and the construction must hold balance between all its parts''. (Per Lord Wright-Jama "· Commonwealth of Australia-1936 A.C. 578 at 613):'

( [1]) [ 1967] 2 All E.R. 576, 578. (') 245 U.S. 418; 425=62 L. ed. 372; 376.

In the Constitution the. word "amendment" or "amend'' has been wed in various places to mean different things. In some articles, the word "amendment" in the context has wide meaning and in another context it has narrow meaning. In art. 107, which deals with legislative procedure, cl. (2) provides that "subject to the provisions of articles 108 and IO'), Bill shall not be deemed to have betn passed by the House of Parliament unless it has been agreed to by both Houses, either without amendment or with such amendments only as are agreed to by both Houses." It is qui~c .clear that the word "amendment" in this article has narrow meaning. Simila.rL'y, in art. 11 l of the Constitution, whereby the President is enabled to send message requestSng the Houses to consider the desirability of introducing amendments, the "amendments" has narrow meaning.

The opening of art. 4(1) reads:

"4(1) Any law referred to in article 2 or article 3 shall contain such provisions for the amendment of the First Schedule and the Fourth Schedule as may be nccC'Ssary to give effect to the provisions of the law ........................ " ·

Herc the word "amendment'.' has narrower meaning. "Law" under Artides 3 and 4 must "conform to the democratic pattern envisaged by the Constitution; and the power which the Parliament may exercise .... is not the power to over-ride the constitutional scheme. No state can, l!hcrcfore, be formed, admitted or set up by law under Article 4 by the Parliament which has no effective legislative, executive and judicial orgaus". (Per Shah J.~Mangal Singh v. Union of India(') (Emphasis. supplied). . .

Article 169(2) reads :

"Any law referred to in clause (1) shall contain such provisio11s fot the amendment of. this Constitution as may be necessary to give effect to the provisions of the law and may also contain such supplemental, incidental and consequential provisions as Parliament may deem necessary."

Here also the word "amendment" has narrow meaning.

Para 7 of Part D, Fifth Schedule, which deals with amendment of the schedule, reads :

"7. ~mcndment of the Schedule.-(!) Parliament may from time to ttme by law amend by way of addition, variation or repeal any of the provisions of this Schedule and, when the Schedule is so amended, any reference to this Schedule in this Constitution shalt be construed as reference to such schedule as so amended."

(1) [ 1967] 2 S.C.R. 109 at 112.

SUPREME COUJ<T REPORTS [ 1973] Supp.· s.c.R.

Here the word "amend" has been expanded by using the expres.ion ·

"by way of addition, variation or repeal", but even h=, it seems to me, the amendments will have to be in line with the whole Constitu-tion. Similarly, under para 21 of the Sixth Schedule,. which repeats the phraseology of para 7 of the Fifth Schedule, it seems to me, the amendments will have Ito be in line with the Constitution.

I may mention that in the case of the amendments which may be made in exercise of the powers under art. 4, art. 169, para 7 of the Fifth Schedule, and para 21 of the Sixth Schedule, it has been expressly stated in these provisions that they shall not be deemed to be amend-ments of the Constitution for the purposes of art. 368.

It is also important to note that the Constituent Assembly which

adopted· art. 368 on September 17, 1949, had earlier on August 18, 1949, substituted the follow'mg section in place of the old Section 291 in the Government of India Act, 1935 :

"291.. Power of the Governor-General to amend certain provisions of the Act and orders made thereunder-

( l} The Governor-General may at any time by order make such amendments as he considers necessary whether by way of addition, modification or repeal, in the provisions of this Act or of any order made thereunder in relation to any Provincial Legislature with respect to any of the following matters, that is to say-

( a) the composition of the Chamber or Chambers of the Legislature;

Legislature; (b) the delimitation of of elections under this Act. . . . .

(b) the delimitation of territorial constituencies for the 'purpose of elections under this Act.

Here, llhe word "amendment" hasbeen expanded. It may be that there really is no cxpanSion because every.amendment may involve addition, variation or repeal of part of provision.

According to Mr. Scervai, the power of amendment given by art. 4, read with arts. 2 and 3, art. 169, Fifth Schedule and Sixth &hedule, is limited power limited to certain provisions of the Constitutio~, while the power under art. 368 is not limited. It is .true every provi-sion is prima facie amendable under art. 368 but this docs not solve the problem before us.

I may mention that an attempt was made to expand the · word "amend" in ar1i. 368 by proposing an amendment that ''by w~y of vanation, addition, or repeal" be added but the amendment was reiected. (C.A.D. Vol. 9 p. 1663).

Again, in art. 196(2), the wo~d "amendment" has been used in limited sense. Art:. 196(2) reads :

"196(2). Subject to the provisions of articles 197 and 198, Bill shall not be deemed to have been passed by the Houses of the Legislature of State having Legislative Council unless it has been agreed to by both Houses, either without amendment or with such amendments only as are agreed to by both Houses."

Similar meaning may be given to the word "amendment" in art. 197(2), which reads: ·

"197(2). If after Bill has been so pa:ssed for the second time by the Legislative Assembly and transmitted to the Legislative Council-

( a) the Bill is rejected by the Council; or

(b) more than one month elapses from the date on which the Bill is laid before the Council without the Bill being passed by it; or

(c) the Bill is passed by the Council 'l'l'ith amendments to whicb the Legislative Assembly does not agree,

( c) the Bill is passed by the Legislative Assembly does not agree. the Bill shall be deemed to have been passed by the Houses of the Legislature of the State in the form in whicb it wa5 passed by tbc Legislati.ve Assembly for the second time with such amendments, if any, as nave been made or suggested.by the Legislative Council and agreed to by the Legislative Assembly."

Under Art. 200 the Governor is enabled to suggest the desirability of introducing any such amendments as he may recommend in his. message. Here again "amendment" has clearly limited meaning.

In art. 35 (b) the words used are :

"Any law in force immediately before the commencement of this Constitution. . .. . . . . . . . . subject to the terms thereof and to any adaptations and modifications that may be made therein under· article 372, continue in force until' altered or repealed or amended by Parliament."

Herc, all the three words are used giving a,comprehensive mean-ing. Reliance is not placed by the draftsman only on the word "amend".

1 Similar language is used in art. 372 whereby existing laws con-tinue· to be in force until "altered or repealed or amended' by com-. petent Legislature or other competent authority.

. In the original art. 243(2), in conferring power on the President to make regulations for the peace and good government of the territories in part of the First Schedule, it is stated that "any regu-lation so made may repeal or amend any law made by Parliament." Here, the two words together give the widest power to make regu-lations inconsistent with any law made by Parliament.

In art. 252 again, the two words arc joined together to give wider power. Clause (2) of art. 252 reads :

"252(2). Any Act so passed by Parliament may be amended or repealed by an Act of Parliament passed or adopted in like manner but shall not, as respects any State to which it applies, be amended or repealed by. an Act of the Legislature of that State."

In ~he proviso to art. 254, which deals with the inconsistency between laws made by Parliament and laws made by the Legislatures of States, it is 'stated :

"Provided that nothing in this clause shall prevent Parliament from enacting at any time any law with respect to the same matter including law adding . to, amending, varying or repealing the law so made by the Legislature of the State."

In art. 320(5), "all regulations made under the proviso to clause (3)" can be modified "whether .by way of repeal or amendment" as both Houses of Parliament or the House or both Houses of the Legis-lature of the States may make during the session in which they arc so laid.

I have· referred to the variation in the language of the various articles dealing with the' question of amendment or, repeal \n detail because our Constitution was drafted very carefully and I must pre-sume that every word was chosen carefully and should have its pro-per meaning. I may rely for this principle on the following observa-tions of the United Sllltes Supreme Q)urt: in Holmes v. Jenntson(') and quoted with approval in William v. United States(') :

"In expounding the Constitution of the United States, every word must have its due force, and appropriate meaning : for it is evi-dent from the whole instrument, that no word was unncccssarily used, or needlessly added ..... ; .. "

( [1]) (10) L. ed. 579; 594. ( [1]) (77) L. ed. 1372; 1380.

Reference was made to s. 6(2) of the Indian Independence Act, 1947, in which the last three lines read:

" ..... and the powers of the Legislature of each Dominion in-. elude the power to repeal or amend any such Act, order, rule or regulation in so far as it is part of the law of the Dominion."

Herc, the comprehensive expression "repeal or amend" gives power to

have completely new Act different from an existing act of Parliament.

So, there is no doubt from perusal of these provisions that diffe-

rent words have been used to meet different demands. In view of the great variation. of the phrases used all through the Constitution it follows that the word "amendment" must derive its colour from art. 368 and the rest of the provisiDns of the Constitution. There is no <loubt that it is not intended that the whole Constitution could be repealed. This much is conceded by the learned counsel for the res-pom:lcnts.

Therefore, in ordi::r r.o appreciate the real content of the expres-

sion "amendment of this Constitution", in Article 368 I must look at the whole structure of. the COnstitution. The Constitution opens with preamble which reads :

''WE; THE PEOPLE OF INDIA, having solemnly resolved to

constitute India into SOVEREIGN DEMOCRATIC REPUBLIC and to secure to·all its citizens:

JUSTICE, social, economic and politkal;

LIBERTY of thought, expression, belief, faith and wonhip;

EQUALITY of status and of opportunity: and to promote among them all· · ' , ,

FRATERNITY assuriftg the dignity of the individual and the unity of the Nation; ·

IN OUR CONSTITUENT ASSEMBLY this Twenty-sixth day of November, 1949, do HEREBY ADOPT, ENACT AND GIVE TO QURSEL VES nus, CONSTITUTION."

. · This Preamble, and indeed the Constitution, was drafted in the

light and. direction of the Objective Resolutions adopted on January 22, 1947, which runs as follows :

·_(1) _THIS CON~TUENT ASSEMBLY declares its firm . and solemn resolve to proclaim India as an Independent Sovciclgn ~~ublic ~d to draw up for her future governance Consti-

(2) wherein the territories that now comprise British India, the territories that now form the Indian States, and such other parts of India as are outside British India and the States, as well as such other territories as are willing to be constituted into the Independent Sovereign India, shall be Union of them all; and

(3) ~herein the said territories, whether with their present boundaries or with such others as may be determined by the Constituent Assembly and thereafter according to the law of the Constitution, shall possess and retain the status of auto- · nomous units, together with residuary powers, and exercise all powers and functions of government and administration, save and except such powers and functions as arc vested in or assigned to the Union, or as are inherent or implied in the Union or resulting therefrom; and

( 4) wherein all power and authority of the Sovereign Independent India, its constituent parts and organs of government, are derived from the people; and

(5) wherein shall be guaranteed and secured to all people of India justice, social, economic and political; equality of status, of opportunity, and before the law; freedom of thought, ex-pression, belief, faith, worship, vocation, association and action, subject to law and public morality; and

( 6) wherein adequate safeguards shall be provided for minorities backward and tribal areas, and depressed and other backward classes; and

(7) whereby shall be maintained the integrity of the territory of the Republic and its sovereign rights on land, sea, and air according to justice and the law of civilized nations, and

(8) this ancient land attains its rightful and honoured place in the world and makes its full and willing contribution to the promotion of world peace and the welfare of mankind."

While moving the resolution for acceptance of the Objectives Resolution, Pandit Jawaharlal Nehru said :

"!t seeks very feebly to tell the world of what we have thought or dreamt for so long, and what we now hope to achieve in the near future. It is in that spirit that I venture to place this Resolu-tion before the House and it is in that spirit that I trust the . House will receive it and ultimately pass it. And may I, Sir, also with all respect, suggest to you and" to the House tha_t, when the time comes for the passing of this Resolution let it 6e not done

in the formal way by the raising of hands, but much more solemnly, by all of us standing ·up and thus taking this pledge anew."

I may here trace the history of the shaping of . the Preamble because this would show that the Preamble was in conformity with the Constitution as it was finally accepted. Not only was the Constitu-' tion framed in the light of the Preamble but the Preamble was ulti-mately settled in the light of ·rhe Constitution. This appears from the following brief survey of the history of the framing of the Preamble extracted from the Framing of India's Constitution (A study) by B. Shiva Rao. In the earliest draft the Preamble was something formal and read : "We, the people of India, seeking to promote the common good, do hereby, through our chosen representatives, enact, adopt and give to ourselves this Constitution".(')

After the plan of June 3, 1947, which led to the decision to parti· tion the country and to set up two independent Dominions of India and Pakistan, on June 8, 1947, joint sub-committee of the Union Constitution and Provincial Constitution Committees, took note that the objective resolution would require amendment in view of the latest announcement of the British Government. The announcement of June 3 had made it clear that full independence, in the form of Dominion Statm, would be conferred on India as from August 15, 1947. After examining the implications of partition tile sub-committee thought that the question of making changes in the Objectives Reso-lution could appropriately be considered only when effect had actuall1 been given to the June 3 Plan.(") The Union Constitution Committee provisionally accepted the Preamble as drafted by B. N, Rao and reproduced it in its report of July 4, 1947 without any change, with the tacit recognition at that stage that the Preamble would be finally based on the Objectives Resolution. In statement circulated to mem-bers of the Assembly on July 18, 1947 Pandit Jawaharlal Nehru inter alia, observed that the Preamble was covered more or less by the Objectives Resolution which it was intended to incorporate in the final Constitution subject to some modification on account of the political changes resulting from partition. Three days later, moving the report of the Union Constitution Committee for the consideration of the Assembly, he suggested that it was not necessary at that stage to ~onsi~er. the d~aft of th: Prcambl; ~cc the Ass;mbly stood by the basic prmc1plcs laid down m the Obiecttves Resolutton and these could( [1]) Shiva R.ao's-Framing of India's Constiiution-A 11Udy-p. 127.

(') _Special Sub-Commi~ minu11:1 June 9,_ 1947. Later on July 12, 1941, the special 1ub-comm1ttce agam postponed consideration of the matter. Select Documenu II, 20(ii), p. 617. (Shiva 'Rao's-Fruning oi India's Constituti<>n-A study-(p. 127 foetnote).

be incorporated in the Preamble in the light of the changed situation('). The suggestion was accepted by the Assembly and further considera-tion of the Preamble was held over.

We need not ronsidcr the inllcrmcdiatc drafts, but in the meantime the declaration (Sec Constituent Assembly Debates, Vol. 8, page 2) was adopted at the end of April, 1949 by the Government of the various Commonwealth countries and the resolution was ratified by Constituent Assembly on May 17; _1949 after two days' debate.

In the meantime the process of merger and integration of Indian States had been completed and Sardar Vallabhbhai Patel was able to tell the Constituent Assembly on October 12, 1949, that the new Constitution was "not an alliance between democracies and dynasties, but real union of the Indian people, built on the ha~ concept of the sovereignty of the people."(')

The draft Preamble was considered by th~ Asscmbl y on October 17, 1949. Shiva Rao observes that "the object of· putting the Preamble last, the President of the Assembly explained, was to sec that it was in conformity with the Constitution as accepted."(') "Once the trans-fer of power had taken place the question of British Parliament's ~ubscqucnt approval which was visualised in the British Cabinet Commission's original plan of May 1946 could no longer arise. The sovereign character of the Constituent Assembly thus became auto-matic with. the rapid march of events without any controversy, and the words in the Preamble "give to ourselves this Constitution" became .appropriate. The Preamble was adopted by the Assembly without any alteration. Subsequently the words and figure "this twenty-sixth day of November 1949" were introduced in the last paragraph to indicate ·the date on which the Constitution was finally adopted by the <Constituent Assembly".(') (p. 131).

Regarding the use which can .. be made of the preamble in inter-preting an ordinary statute, there is no doubt that it cannot be used to modify the language if the language of the enactment is plain and clear. If the language is not plain and clear, then the preamble may have effect either to extend or restrict the language used in the body of an enactment. "If the language of the enactment is capable of more than one meaning then that one is to be preferred which comes nearest to the purpose and scope of the yreamble." (see Tbibhuban Parkash Nayyar v. The. Union uf India) ( ).

(') Shiva Rao'o-Franiing of Indi&'1 Constitution-A study-pp. 127-128 (also see footnote I p. 128).

(') Shiva Rao's -Framina of India's Constitution-A study,-pp. 130-132. (') [1970] 2 S.C.R. 732-737.

W arc, however, not concerned with the interpretation of an ordinary statute. As Sir Alladi Krishnaswami, most eminent lawyer said, "so far as the Preamble is concerned, though in an ordinary statute we do not attach any importance to the Preamble, all impor-tance has· to be attached to the Preamble in Constitutional statute". (Constituent Asscml;>ly Debates Vol. 10, p. 417). Our Preamble outlines the objectives of the whole constitution. It expresses "what we had thought or dreamt for so long."

In re. Berubari Union and Exchange of Encla11es(') this was said about the Preamble~

"There is no doubt that the declaration made by the people of India in exercise of their sovereign will in the preamble to the Constitution is, in the words of Story, "a key to open the mind of the makers" which may show the general purposes for whic11 they made the several provisions in the Constitution; but neverthe-less the preamble is not . part of the Constitution, and, as Willoughby has observed about the· preamble. to the American Constitution, "it has never been regarded as the source of any substantive power conferred on the Government of the United States or any of its departtnents. Such powers embrace only those expressly granted in the body of the Constitution and such as may be implied from those so granted".

What is true about the power is equally true about the pro.hi-bitions and limitations.''

Wanchoo, J. in Golaknath v. Puniab(') relied on Dcrubari's case and ,said:

"on parity of reai<>ning we arc of opinion that the. preamble cannot prohibit or control in any way or impose any implied prohibitions or. limitations on tl1e power to amend the Constitution contained in Art. 368."

Bachawat, J. in this case observed :

"Moreover the preamble cannot control the unambiguous language of the articles of the Constitution, see Wynes, Legislative Execu-tive and Judicial powers in Australia, third edition pp. 694-5; in Re. Berubari Union & Exchange of Enc/a11es."(' ).

( [1]) [1960] 3 S.C.R. 250, 281-82.

(') [1967] 2 S.C.R. 762; 838 and 914.

With respect, the Court was wrong in holding, as has been shown above, that the Preamble is not part of the Constitution unless the court was thinking of the distinction between the Constitution Statute and the Constitution, mentioned by Mr. Palkhivala. It was expressly voted to be part of the Constitution. Further, with respect, no autho-rity has been referred before us to establish the proposition that "what is true about the powers is equally true about the prohibitions and limitations." As I will show lator, even from the preamble limitations have been derived in some cases.

It is urged in the written submission of Mr. Palkhivala that there is distinction between the Indian Constitution Statute and the Cons-titution of India. He urge. as follows :-

"This Constitution is the Constitution which follows the Pream-ble. It starts with Article 1 and ended originally with the Eighth Schedule and now ends with the Ninth Schedule after the First Amendment Act, 1951. The way the Preamble is drafted leaves no doubt ·that what follows, or is annexed to, the Preamble, is the Constitution of India."

He has also urged that the Preamble came into force on November 26, 1949 alongwith Articles 5, 6, 7 etc. as provided in Art. 394 because Articles 5, 6, 7 and the other Articles mentioned therein could hardly come into force without the enacting clause mentioned in the Pream-ble having come into force. He says that the Preamble is part of the Constitution statute and not part of the Constitution but pre-cedes it. There is something to be said for his contention but, in my view, it is not necessary to base my decision on this distinction as it is not necessary to decide in the present case whether Art. 368 enables Parliament to amend the Preamble. Parliament has not as yet chosen to amend the Preamble.

The Preamble was used by this Court as an aid to construction in Behram Khurshed Pasikaka v. The State of Bombay('). After refer-ring to Part III, Mahajan, C.J., observed :

"We think that the rights described as fundamental rights are necessary consequence of the declaration in the preamble that the people of India have solemnly resolved to constitute India into sovereign democratic republic and to secure to all its citizens justice, social, econrunic and political; liberty of thought, expre~ · sion, belief, f:lidi and worship; equality of status and of oppor-tunity. These fundamental rights have not been put in the Con~ titution merely for individual benefits, though ultimately they(l) [1955) I S.C.R. 613 at p. 653.

come into operation in considering individual rights. They have been put there as matter of public policy and the doctrine of waiver can have no application to provisions of law which have been enacted as matter of constitutional policy."

Similarly in In re. The Kera/a Education Bill(') 1957, Das C.J. while considering the validity of the Kerala Education Bill 1957 observed:

"In order to appreciate the true meaning, impart and implications of the provisions of the Bill which are said to have given rise to doubts, it will ]Je necessary to refer first to certain provisions of the Constitution which may have bearing upon the questions under consideration and then to the actual provision of the Bill. The inspiring and nobly expressed preamble to our Constitution records the solemn resolve of the people of India to constitute .... (He then sets out the Preamble). Nothing provokes and stimu-lates thought and express;on in people more than education. It is education that clarifies our belief and fairh and helps to strengthen our spirit of worship. To implement and fortify these supreme purposes set forth in the preamble, Part III of our Constitution has provided for us certain fundamental rights."

In Sajjan Singh v. State of Rajasthan,([2 ]) Mudholkar, J. after assu-ming that the Preamble is not part of the Constitution, observed :

"While considering this question it would be of relevance to bear in mind that the preamble is not of the common run such as is to be found in an Act of legislature. It has the stamp of deep <lclibcration and is marked by precision. Would this not suggest that the framers of the Constitution attached special significance to it?

Quick and Garran in their "Annotated Constitution of the Austra-lian Commonwealth (1901 p. 283) "adopted the following sentence from Lord Thring's "Practical Legislation, p. 36" :

"A preamble may be used for other reasons to limit the scope of

certain expressions or to explain facts or introduce definitions."

Thornton on "Legislative Drafting"-p. 137~pines that "construc-tion of the preamble may have effect either to extend or to restrict g~neral language used in the body of an enactment."

(') [1965] 1 S.C.R. 933; 968.

In Attorney-General v. Prince Ernest Augustus of Hanover(') the: House of Lords considered the effect of the preamble on the interpre-tation of Princes Sophia Naturalization Act, 1705. It was held that "u matter of construction of the Act, there was nothing in the Act or its preamble, interpreted in the light of the earlier. relevant smtutc:1 • . . . . . . . . . . . . . . . . . . . . . capable of controlling and limiting the plain and ordinary meaning of the material words of the enacting provisions and that the class of lineal descendants "born or hereafter to be born" meant the class of such descendants in all degrees without any limit as to time." The House of Lords further held that "looking at the Act from the point of view of 1705 there was no such manifest absurdity i.'l this;construction as would ontitle the court to reject it."

Mr. Seervai referred tl<l the passage from the speech of Lord Normand, at p. "67. The passage is lengthy but I may quote thc:se sentences :

"It is only when it conveys clear and definite meaning in com-parison with relatively obscure or indefinite enacting words that the preamble may legitimately prevail. . If they admit of only one construction, that construction will receive effect even if it is in-consistent with the preamble, but if the enacting words arc capa-ble of either of the constructions offered by the parties, the cons-truction which fits the preamble may be preferred."

Viscount Simonds put the matter at page 463, thus :

"On the one hand, the proposition can be accepted that "it is sl"ttled rule that the preamble cannot be made use of to control the enactments themselves where they are expressed in clear arid unambiguous terms''. I quote the words of Chitty L. J., which were cordially approved by Lord Davey in Powell v. Kempton Park: Racecourse Col Ltd. [ (1889) A.C. 143, 185]. On the other hand it must often be difficult to say that any terms are clear and un-ambiguous until they have been studied in their context."

This case shows that if on reading Art. 368 in the context of. the Constitution I find the word "Amendment" ambiguous I can refer to the Preamble to find which construction would fit in with the Preamble.

In State of Victoria v. The Commonwealth(') which is discussed in detail later, number of Judges refer to the federal structure of the Constitution. It is in the preamble of the Commonwealth of Australia Constitution Act, 1902 that 'one indissoluble Federal Commoowealth' is mentioned.

There is sharp conflict of opinion in Australia respecting the: question whether an amendment can be made which would be in-consistent with the Preamble of the Constitution Act referring to the "indissoluble" character and the sections which refer to the "Federal"' nature of the Constitution. After referring to this conflict, Wynes• observes:

"Apart from the rule which excludes the preamble generally from consideration in statutory interpretation, it is clear that, when all is said and done, the preamble at the most is, only recital of the intention which the Act' seeks no effect; and it is recital of present (i.e., as in 1900) intention. But in any event the inser-tion of an express reference to amendment in the Constitution itself must surely operate as qualification upon the mere recital of the reasons for its creation."

I am not called upon to say which view is correct but it does show that in Australia, there is sharp conflict of opinion as to whether the Preamble can control the amending power.

Story in hi; Commentaries on the Constitution of the United . States states: [(1883) Vol. 1]

"It (Preamble) is properly resorted to, where doubts or ambigui-ties arise upon the words of the enacting part; for if they arc dear and unambiguous, there seems little room for interpretation, e:<cept in cases leading to an obvious absurdity, or to direct overthrow of the intmtion express in the preamble. (p. +14)

There docs not seem any reason why, in fundamental law or constitution of government, an equal attention should not be given to the intention of the framers, as stated in the preamble. And accordingly we find, that it has been constantly referred to· by statesmen and jurists to aid them in the exposition of its pro-visions." (page 444).

Story further states at page 447-448 :

"And the uniform doctrine of the highest judicial authority has accordingly been, that it was the act of the people, and not of the states; and that it bound the latter, as subordinate to the people. "Let us turn," said Mr. Chief Justice Jay, "to the constitution. The· people therein declare, that their design in establishing it compre-hended six objects: (1) To form more perfect union; (2) to· establish justice; (3) to insure domestic tranquillity; (4) to provide for the common defence; (5) to promote the general welfare;( 6) to secure the blessings of liberty to themselves and their pos-terity. It would," he added, "be pleasing and useful to consider and trace the relations, which each of these objects bears to the others; and to show, that, collectively, they comprise every thing requisite, with the blessing of Divine Providence, to render JX-Ople pro;perous and happy." In Hunter v. Martin (1 Wheat. R. 305, 324), the Supreme Court say, (as we have seen,) "the con-stitution of the United States was ordained and established, not b; the states in their sovereign capacities, but emphatically, as the preamble of the constitution declares, by the people of the United States;" and language still more expressive will be, found used on o;her solemn occasions." ,.

"l'he Supreme Court of United States (borrowing some of the language of the Preamble to the Federal Constitution) has appro-priately stated that the people of the United States erected their cons-titutrons or forms of governm,nt to establish jnstice, to promote the general welfare, to secure the blessings of liberty, and to protect their persons and property from violence". (American Jurisprudence, 2d. Vol. Hip. 184).

In the United States the Declaration of Independence is sometimes referred to in determining constinuional questions. It is stated in American Jurisprudence (2d. 16. p. 189) :

"While statements of principles contained in the Declaration of Independence do not have the force of organic law and therefore cannot be made the basi• of judicial decision as to the limits of right~ and duties, yet it has been said that it is always safe to read the letter of the Constitution in the spirit of the Declaration of Independence, and the courts sometimes refer to the Declaration in determining constitutional questions."

It seems to me that the Preamble of our Constitution is of extreme importance and the Constitution should be read and interpreted in the light of the grand and noble vision expressed in the Pre-amble.

Now I may briefly describe the scheme of the Corutitution. Part I of the Constitution deals with "the Union and its Territory". As originaUy enacted, art. 1 read as follows :

1. India, that is Bharat, shall be Union of States.

2. The States and the territories thereof shall be the States and their territories specified in Parts A, and of the First Sche-dule.

3. The territory of India shall comprise-

(a) the territories of the States;

(b) the territories specified in Part of the First Schedule; and

( c) such other. territories as may be acquired.

Article 2 enabled Parliament to admit into the Union, or establish, ·new States on such terms and conditions a; it thinks fit. Article 3 and ·4 dealt with the formation of new States and alteration of area>, boun--Oaries or names of existing States.

Part II dealt with "Citizenship". The heading of Part III is ·"Fundamental Rights". It first describes the expression "the State" to include "the Government and Parliament of India and the Govern-ment 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." (Art. 12), Article 13 provides that laws incon-sistent with or in derogation of the fundamental rights shall be void. "This applies to existing laws as well as laws made after the coming into force of the Constitution. For the time being I assume that in Art. 13(2) the word "law" includes constitutional amendment.The fundamental rights conferred by the Constitution include right to equality before the law, (Art. 14), prohibition of disc~mina­'tion on grounds of rclig'°n, race, caste, sex or place of birth, (Art. 15), ·equality of opportunity in matters of public employment, (Art. 16), right to freedom of speech and expression, to assemble peaceably and without arms, to form association or unions, to move freely through-out the territory of India, to reside and settle in any part of the territory of India, to acquire, hold and dispose of property; and to practice any profess.ion or lP carry on any occupation, trade or business. (Art. 19). Reasonable restrictions can be imposed on the rights under Art. 19 in respect of various matters.

Article 20 protects person from being convicted of any offence except for violation of law in force at the time of the commission of the act charged as an offence or to he subjected to penalty greater than that which m'ight have been inflicted under the law in force at tht time of the commission of the offence. It further provides that no person shall be prosecuted and punished for the same offence more than once, and no person accused of any offence shall be compelled ,to be witness against himself.

Article 21 provides that no person shall he deprived of his life or persoml liberty except according to procedure established by law.

Article 22 gives further protection against arrest and detention in certain cases. Article 22(1) provides that "no person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest nor shall he be denied the right to consult, and to be defended by, legal practi,tQi.cr of his choice." Article 22(2) provides that "every person who is arrested and detained in custody shall be produced before the nearest magistrate within .. period of twenty-four hours of such arrest excluding the time neces-sary for the journey from the place of arrest to the court of. the magisrrate and no such person shall be detained in custody beyond the said period without the authority of magistrate".

Article 22( 4) deals with Preventive Detention. Article 23 prohibits traffic in human beings and other similar forms of. forced labour. Article 24 provides that "no child below the age of fourteen years shall be employed to work .ln any factory or mine or engaged in any other hazardous emplaymcnt."

Articles 25, 26, 'lJ and 28 deal with the freedom of religion. Article 25 (!) provides that "subject to public order, morality and health and to the other provisions of this Part, all persons arc equally entitled to 'freedom of conocicnce and the right freely to profess, prac-tise and propagate religion." Article 26 enables every religious deno-mination or section thereof, subject to public order, morality and health, to establish and manage institutions for religious and, charitable pur-poses; to manage their own affairs in matters of religion, to own and acquire movable and immovable property, and to administer such property in accordance with law. Article 27 enables prcsons to resist payment of any taxes the proceeds of which are specifically appro-priatrd in payment of expenses for the promotion or maintenance of. any particular religion or religious denomination. . Article 28 deals with, fr~edom as to atrendao.i:e at religious instruction or religious worship in certain educational institutions.

Article 29(1) gives protection to minorities and provides that "any section of the citizens residing in the territory of India or any part thereof having distinct language, script or culture of its own shall have the right to conserve the same." Article 29(2) provides that "no person shall be denied admission into any educational institution maintained by the State or receiving aid out of State funds on grounds only of religion, race, caste, language or any of them.''

Article 30 gives further rights to minorities whether based on religion or language to establish and administi:r educational institutions of their choice. Article 30(2) prohibits the State from discriminating

against any educational institution, in granting aid to educational institutions, on the ground that it is under the management of minority, whether based on religion or language.

As will be shown later the inclusion of special rights for mmorities has great significance. They were clearly intended to be inalienable.

The right to property comes last and is dealt with the art 31. As originally enacted, it dealt wi,th the right to propertiy and prevented deprivation of property save by authority of law, and then provided for compulsory acquisition for public puqJQSes on payment of com-pensation. It had three significant provisions, which show the inten-tion of the constitution-makers regarding property rights. The first is Art. 31(4). This provision was intended llO protect legislation dealing with agrarian reforms. The second provision, Art. 31(5)(a), was designed to protect eXisting le~lation dealing with compulsory acqui-sition. Some' acts, saved by this provision did not provide for payment of full compensation e.g. U.P. Town Improvement Act, 1919. The third provision Art. 31 ( 6) provided protective umbrella to similar laws enacted not more than eighteen months before the commence-ment of the Constitution.

The fundamental rights were considered of such importance that right was given to an aggrieved person to move the highest courr of the land, i.e., the Supreme Court, by appropriate proceedings for the enforctment of the rights conferred by this part, and this right was guaranteed. A1ticlc 32(2) confers very wide powers on the Supreme Court, to issue directions or orders or writs including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate, for the enforcement of any of the rights conferred by this Part. Article 32( 4) further provides that "the right guaranteed by this article shall not be suspended except as otherwise provided for by this Constitution."

Article 33 enables Parliament by law to "determine to what extent any of the rights conferred by this Part shall, in their application to the members of the Armed Forces or the Forces charged with the maintenance of public order, be restricted or abrogated so as to ensure the proper di,charge of their duties and the maintenance of discipline among them."

This articles shows the care with which, the circumstances in which, fundamental rights can be restricted or abrogated were con-templated and precisely described.

Article 34 enables Parliament, by law, to indemnify any person in the service of the Union, or of State or any other person in connection with acts done while martial law was in force in parti-cular area.

Part JV of the Constitution contains directive principles of State policy. Article 37 specifically provides that "the provisions contained in this Part shall not be enforceable by any court, but the principles therein laid down are nevertheless fundamental in the governance oE the country and it shall be rhe duty of the State to apply these prin-ciples in making laws." This clearly sh0ws, a11d it has also been laid down by this Court, that these provisions are not justiciable and cannot be enforced by any Court. The Courts could not, for instance1 issue mandamus directing the State to provide adequate means :fj livelihood to every citizen, or that the ownership and control df tllf. materia: resources of the community be so distributed as best to· sub. 1crve the common good, or that there should be equal pay for equal work for both men and women.

Some of the directive principles arc of i<rcat fundamental impor-· tancc in the governance of the country. But the question ii not whether they arc important; the question is whether they override the fundamental rights. In other words, can Parliament abrogate the fundamental rights in order to give effect to some of the directive principles I

I may now briefly notice the directive principlCI .mentioned in

Part JV. Art. 38 provides t'1at "the State shall strive to promote the welfare of the people by securini< and protecting as effectively "' it may social order in which justice, social, economi.c and political, shall inform all the institutions of the national life.'' Now, this dirco. tivc is compatible with the fundament?al rights because surely the object of many of the fundamental rights is to ensure that there shall be justice, social, economic and political, in the country. Article 39, which giv~s particular directions to the State, reads thus :

"39. The State shall, in particular, di•ect its policy toward• securin11-

(a) that the citizens, men ant! women equally, have the right to an adequate means uf livelihood;

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

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

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

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

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

Article 40 deals with the · orga1iisation of village panchayats. Articles 41 deals with the right to work, to education and to public assistance in certain cases. Article 42 directs that the State shall make proviswns for securing just and humane conditions of work and for matnnity relief. Article 43 direct that "the State shall endeavour to secure, by suitable legislation or economic organisation or in any other way, tD all workers, agricultural, industrial or otherwise, work, living wage, conditions of work ensuring decent standard of life and full e~joyment ot leisure and social and cultural opportunities and, in particular, the State shall endeavour to promoi.= cottage industries 011 an individual or cooperative basis in rural areas."Article 44 enjoins that the "State shall endeavour to secure for the citizens uniform civil code throughout the territory of India." Desirable as it 'is, the Government has not been able to take any effective steps towards. the realisation of this goal. Obviously no Court can compel the Government to lay ,fawn uniform civil code even though it is essentially de··idlle in the interest of the integrity. and unity of the country.

Article 45 directs that "the State shall endeavour to provide, within period of ten years from the commencement of this Cons-titution, for free compulsory education for all children until they com-plete the age of fourteen years." This again is very desirable direc-tive. Although the Government has not been able to fulfil it com-pletely, it cannot be compelled by any court of law IX) provide such education.

Article 46 supplements the directive given above and enjoins the State to promote with special care the educational and economic inte-rests of the weaker sections of the people, and in particular, of the Scheduled Castx:s and the Scheduled Tribes, and to protect them from social injustice and all forms of exploitation.

Article 47 lays down as one of the duties of the State to raise the standard of. living and to improve pub!.¥: health, and to bring about

prohibition. Article 48 directs the State to endeavour to organise agri-culture and animal husbandry on modern and scientific lines, and in particular, to take steps for preserving and improving the breeds, and prohibiting the slaughter of cows and calves and other milch and draught cattle.

Article 49 deals with protection of monuments and places and ob1ects of national importance. Article 50 directs that the State shall take steps to separate the judiciary from the executive in the public services of the State. This objective has been, to large extent, carried out without infringing the fundamental rights.

In his preliminary note on the fundamental Rights. Sir B. N. Rau, dealing with the directive principles, observed :

"The principles set forth in this Part are intended for the general guidance of the appropriate Legislatures and Government in India (hereinafter referred to collectively as 'the State'). The application of these principles in legislation and administration shall be the care of the State and shall not be cognizable by any Court."

After setting out certain directive principles, he observed :

"It is obvious that none of th~ above provisions is suitable for enforcement by the courts. They are really in the nature of moral precepts for the authorities of the State. Although it may be con-tended that the Constitution is not the proper place for moral precepts, nevertheless constitutional· declaration of policy of this kind are now becoming increasingly frequent. (See the Introduc-tion to the I.LO. publication Constitutional Provisions concerning Social and Economic Policy, Montreal, 1944). They have at least an educative value." (pages 33-34-Shiva R:w : Framing of Indian Constitution: Doc. Vol. II).

Then he referred to the genesis of the various articles mentioned in the preliminary note.

One must pause and ask the question as to why did the Constituent. Assembly resist the persistent efforts of Shri B. N. Rau to make funda-mental rights subject to the directive principles. The answer seems plain enough : The Constituent Assembly deliberately decided not to do so.

Sir Alladi Krishnaswami Ayyar, in his note dated March 14, 1947, observed:

"A distinction has necess'lfily to be drawn between rights which are justiciable and rights which are merely intended as guide and directive objectives tc state policy." (page 67 supra).

It is impossible to equate the directive principles with fundamcn· ta! rights though it cannot be denied that they arc very important. But to say that the directive principles give directive to take away fundamental rights in order to achieve what is directed by the direr· rive principles seems to me contradiction in terms.

I may here mention that while our fundamental rights and dircc· rive principles were being fashioned and approved of by the Consti· tuent Assembly, on December 10, 1948 the General Assembly of the United Nations adopted Universal Declaration of Human Rights. The Declaration may not be legally binding instrument but it shows how India understood the nature of Human Rights. I may here quote only the Preamble :

"Whereas recognition of the inherent dignity of the equal and inalienable rights of all members of the human family is the founda-tion of freedom, justice and peace in the world. (emphasis supplied)

Whereas disregard and contempt for human rights have resulted in barbarous acts which have outraged the conscience of mankind, and the advent of world in which human beings shall enjoy freedom of speech and belief and freedom from fear and want has been proclaimed as the highest aspiration of the common people.

Whereas it is essential, if man is not to be compelled to have recourse, as last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law.

Whereas it is essential to promote the development of friendly relations between nations.

Whereas the peoples of the United Nations have in the Charter reaffirmed their faith in fundamental human rights, in the dignity and worth of the human person and in the equal rights of men and women and have determined to promote social progress and better standards .of life in larger freedom.

Whereas Member States have pledged themselves to achieve, in cooperation with the U cited Nations, the promotion of uni versa] res-pect for and observance of human rights and fundament:1! freedoms.

Whereas common understanding of these rights and freedoms is of the greatest importance for the full realization of this pledge·"

In the Preamble to the _International Covenant on Economic and Social and Cultural Rights 1966, inalienability of rights is indicated in the first Para as follows :

·:Considering that, in accordance with the principles proclaimeJ

m the Chartx:r of the United Nations, recognition o£ the inherent

dignity and of the equal and inalienable rights of aU members of the human family is the foundation of freedom, justice and peace in the world."

Do rights remain inalienable if they can be amended out of •'\istmce i The Preamble arts. l, 55, 56, 62, 68 and 76 of the United, Nations Charter had provided the basis for the elaboration in the Universal Declaration of Human Rights. Although there is sharp conflict of opinion whether respect for human dignity and fundamental human rights is obligatory under the Charter (see Oppenheim's International Law; 8th ed. Vol. 1, pp. 740-41; footnote 3), it seems to me that, in view of art. 51 of the directive principles, this Court must interpret language of the Constitution, if not intractable, which is after all municipal law, in the light of the United Nations Charter an<il the solemn declaration subscribed to by India. Article 51 reads :

"51. The State shall endeavour to-

(a) promote international peace and security ;

(b) maintain just anJ honourable relations betwer.n nations ;

( c) foster respect for international law and treaty obligations in the dealings of organised peoples with one another ; and

( d) encourage settlement of international disputes by arbitration."

1\.s opserved by Lord Denning in Corocraft v. Pan American Airways(') "it is the duty of these courts to construe our Legislation so as to be in conformity with international law and not in conflict with it." (Sec also Oppenheim supra, pp. 45-46 ; American Jurisprudence 2nd, Vol. 45, p. 351).

Part V Chapcr I, deals with the Executive ; Chapter II with Parliament-conduct of its business, qualification of. its members, legis-lation procedure etc. Article 83 provides that :

"83. ( 1) The Council of States shall not be subject to dis-solution, but as nearly as possible one-third of the members thereof shall retire as soon as may be on the expiration of every second year in accordance with the provisions made in that behalf by Parliament by law.

(2) The House of the People unless sooner dissolved, shall continue for five years from the date appointed for its first meeting and no longer and the expiration of the said period of five years shall operate as dissolution of the House : .... ~

Un.der the proviso this period can be extended while Proclamation of Emergency is in operation for period not exceeding in any case beyond period of six months after the Proclamation has ceased to operate. It was provided in art. 85 ( 1) before its amendment by the Constitution (First Amendment) Act 1951 that the House of Parliament shall be summoned to meet twice at kast in every year, and six months shall not intervene between thcir last sittings in one session and the date appointed for thcir first sitting in the next session.

Article 123 gives power to the President to promulgate ordinances during recess of Parliament. Chapter IV deals wi\h Union Judiciary.

Part VI, as originally enacted dealt with the States in Part of the First Schedule-the Executive, the State Legislatures and the High Courts. Article 174 deals with the summoning of the House of Legislature and its provisions are similar to that of art. 85. Article 213 confers legislative powers on the Governor during the recess of State Legislature by promulgating ordinances.

Part XI deals with the relation between the Union and the States; Chapter I regulating legislative relations and Chapter II administrative relations.

Part XII deals with Finance, Property, Contracts and Suits. We

need only notice art. 265 which provides that "no tax shall be levied or collected except by authority of law",

Part XIII deals with Trade, Commerce and Intercourse within

the Territory of India. Subject to the provisions of this Chapter, trade, commerce and intercourse throughout the territory of India shall be free (art. 301).

Part XIV deals with Services under the Union and the States. Part XVI contains special provisions relating to certain classes-the Scheduled Castes, the Scheduled Tribes etc. It reserved seats in the House of the People for thes~ classes. Article 331 enables the President to nominate not more than two members of the AnglC>-Indian community if it is not adequately represented in the House of the People. Article 332 deals with the reservation of seats for Scheduled Castes and ScHeduled Tribes in the Legislative Assemblies of the States. In art. 334 it i. provided that the above mentioned reservation of seats and special representation to certain classes shall cease on the expiry of period of ten years from the commencement of this Constitution. Article 335 deals with claims of scheduled casries and scheduled tribes to services and posts. Article 336 makes special provisions for AnglC>-lndian community in certain services, and article 337 makes special 9--36-S. c. India/73provisions in respect of educational grants for the benefit of Anglo-Indian community. Article 338 provides for the creation of Special Officer for Scheduled Castes, Scheduled Tribes, etc. to be appointed by the President, and prescribes his duties. Article 340 enables the President to appoint Commission to investigate the conditions of socially and educationally back.ward classes within the territory of India which shall present repon and make recommendations on steps that should be taken to remove difficulties and improve their condition. Article 341 enables the President to specify the castes, races or tribes or parts of or groups within castes, races or tribes which shall for the purpose,<; of this Constitution be deemed to be Scheduled Castes in relation to that State. Similarly, article 342 provides that the Presidenr may specify the tribes or tribal communities or parts of or groups within tribes or tribal communities which shall be deemed to be Scheduled Tribes in relation to that State.

Part XVII deals with Official Language, and Part XV III with Emergency Provisions. Article 352 is important. It reads :

"352.(1) If the President is satisfied that grave emergency exists whereby the security of India or of any part of the territory thereof is threatened, whether by war or external aggression or internal disturbance, he may, by Proclamation, make declaration to that effect."

Article 353 describes the effect of the Proclamation of Emergency. The effect is that the executive power of the Union shall be extended to the giving of directions to any State as to the manner in which the execu-tive power thereof is to be exercised, and the Parliament gets the power to make laws with respect to any matter including the power to .make laws conferring powers and imposing duties, etc., notwithstanding that it is one which is not enumerated in the Union List. Article 354 enables the President by order to make exceptions and modifications in the provisions of art. 268 to 279. Under art. 355 it is the duty of the Union to protect every State against external aggression and internal disturbance and to ensure that the government of every State is carried on in accordance with the provisions of the Constitution. Article 356 contains provisions in case of failure of constitutional machinery in State.

Article 358 provides for smpension of the provisions of art. 19 during Emergency. It reads:

"358. While Proclamation of Emergency is in operation, nothing in article 19 shall restrict the power of the State as de~ned in Part III to make any law or to take any executive action which

the State would but for the provisions contained in that Part be competent to make or to take. but any law so made shall, to the rx-tent of the incompetency, cease to have effect as soon as the Procla-mation ceases to operate, except as respects things done or omitted to be done before the law so ceases to have effect."

Article 359 is most important for our purpose. It provides that :

"359. (1) Where Proclamation of Emergency is in operation the President may by order declare that the right to move any court for the enforcement of such of the rights conferred by Pan III as may be mentioned in the order and all proceedings pending in any court for the enforcement of the rights so mentioned shall remain suspended for the period during which the Proclamation is

in force or for such shorter period as may be specified in the order.

(2) An order made as aforesaid may extend to the whole or any part of the territory of India.

(3) Every order made under clause (1) shall, as soon as may be after it is made be laid before each House of Parliament."

These two articles, name! y Art. 358 and Art. 359 show that the Constitution makers contemplated that fundamental rights might impede the State in meeting an emergency, and it was accordingly provided that Art. 19 shall not operate for limited time, and so also Art. 32 and Art. 226 if the President so declares by order. If it wac the design that fundamental rights might be abrog~ted surely they would have. expressly provided it somewhere.

I may here notice an argumenMhat the enactment of Articles 358 and 359 showed that the fundamental rights were not treated as inaliena-ble rights. I am unable to infer this deduction from these articles. In an emergency every citizen is liable . to be subjected to extraordinary restrictions.

I may here notice some relevant facts which constitute the back-ground of the process of drafting the Constitution. The British Parlia-ment knowing the complexities of the structure of the Indian people expressly provided in s. 6(6) of the Indian Independence Act, 1947, that "the powers referred to in sub-section ( 1) of this section extends to the making of laws limiting for the future the powers of the legisla-ture of the Dominion." Sub-section (1) of s. 6 reads:

"The legislature of each of.the new Dominions shall have full power to make laws for that Dominion, including laws having extra-territorial operation.''

That s. 6(1) included making provision as to the. Constitution of the Dominion is made clear by s. 8(1) which provided: "In the case of _ each of the new Dominions, the powers of legislature of the Dominion shall for the purpose of making provision as to the onstttution of the Dominion be exercisable in the first instance by the Constituent Assembly of that Dominion, and references in this Act to ·the legisla-ture of the Dominion .shall be construed accordingly. "(Emphasis supplied)".

These provisions of the Indian Independence Act amply demon-strate that when the Constituent Assembly started functioning, it knew, if it acted under the Indian Independence Act, that it could limit the powers of the future Dominion Parliaments.

No similar provisions exists in any of the Independence Acts in respect of other countries, enacted by the British Parliament, e.g., Ceylon Independence Act, 1947, Ghana Independence Act, 1957, Fede-ration of Malaya Independence Act, 1957, Nigeria Independence Act, 1960, Sierra Leone Independence Act, 1961, Tanganyika Independence Act, 1961, Southern Rhodesia Act, 1965, Jamaica Independence Act, 1962.

I may mention that the aforesaid provisions in the Indian Indcpen• dencc Act were enacted in line with the Cabinet Statement dated May 16, 1947 and the position of the Congress Party. Para 20• of the State-ment by the Cabinet Mission provided :

"The Advisory Committee on the rights of citizens, minorities, and tribal and excluded areas should contain full representation of the interests affected, and their function will be to report to the Union Constituent Assembly upon the list of Fundamental Rights,. the clauses for the protection of ffiinorities, and scheme for the administration of the tribal and excluded areas, and to advise whether these rights should be incorporated in the Provincial, Group, or Union constitution."

In clarifying this statement Sir Stafford Cripps at Press Confe-rence dated May 16, 1946 stated :

"But in order to give these minorities and particularly the smal!er minorities lib: the Indian Christians and the Anglc>-Indians and also the tribal representatives better opportunity of influencing minority provisions, we have made provision for the setting up by

•See: Shiva Rao-The Framing of India's Constitution, Vol. I, p. 216.

the constitution-making body of an influential advisory Commi .. lion which will takY: the Initiative in the preparation of the list of fundamental rights, the minority protection clauses and the pro-posals for the administration of tribal and excluded areas. This Commission will make its recommendations to the constitution· making body and will also suggest at whicli stage or stages in the ronstitution these provisions should be inserted, that is whether in the Union, Group or Provincial constitutions or in any two or more of them." (P. 224, Supra).

In the letter dated May 20, 1946, from Maulana Abul Kalam Azad to the Secretary of State, it is stated : ·

"The principal point, however, is, as stated above, that we look upon this Constituent Assembly as sovereign body which can decide as it chooses in regard to any matller before it and can give effect to its decisions. The only limitation, we recognise is that in regard to certain major communal issues the decision should be -by majority of e~ch of the two major communities." (P. 251, Supra). •

In his reply dated May 22, 1946, llhc Secretary of State observed :

"When the Constituent Assembly has completed its labours, His Majesty's Government will recommend to Parliament such action as may be necc.1Sary for the cession of sovereignty to the Indian people, subject only to two provisos which arc mentioned in the statement and which arc not, we believe, controversial, namely, adequate protiilitm for the protection of minorities and willingness to conclude treaty to cover matters arising out of the transfer 'of power." (Emphasis supplied) (P. 252, Supra).

In the Explanatory statement dated May 22, 1946, it was again re. iterated as follows : ·

"When the Constituent Assembly has completed its labours, His Majesty's Government will recommend to Parliament such action as may be !1-ecessary for the cession of sovereignty to the Indian people, subiect only to two matters which arc mentioned in the statement and, ','l'hich, we believe are not ctmtroversial, namely ; adequate provtsttm for the protection of the minorities (paragraph 20 ?f the statement) and willingness to conclude treaty with His Maiesty's Government to cover matters arising out of the transfer of power (paragraph 22 of the statement) (Emphasis supplied) (P. 258, Supra).

· In pursuance of the above, resolution for the setting up of an Advisory Committee on fundamental rights was moved by Govind

Ballabh Pant in the C.Onsllituent Assembly on January 24, 1947. He laid special importance on the issue of minorities. The Advisory C.Om-mittee met on February 27, 1947 to constitute various sub-committees including the Minorities Sub-c.ommittee. The Sub-c.ommittee on Minorities met later the same day. questionnaire was drafted to enquire about political, economic, religious, ,educational and cultural safeguards. In other words all these safeguards were considered.

Divergent views were expressed, and the Minorities Sub-Committee met on April 17, 18 and 19, 1947 to consider this important matter. At these meetings the sub-committee considered llhe interim proposals of the fundamental rights Sub-Committee in so far as these had bearing on minority rights. These discussions covered such important matters as the prohibition of discrimination on grounds of race, religion, caste, etc.; the abolition of untouchability and the mandatory requirements that the enforcement of any cfuability arising out of untouchability should be made an offence punishable according to law ; freedom to profess, practise and propagate one's religion ; the right to establish and maintain institutions for religious and charitable purposes ; the right ro be governed by one's persona\ law ; the right to use one's mother-tongue and establish denominational communal or language schools etc.

Having dealt with the question of fundamental rights for mino-rities, the Minorities Sub-Committee rnet again on July 21, 1947, to consider the political safeguards for minorities and their presentation in the public services.

In forwarding the report of the Advisory Committee on the sub-ject of Minority Rights, Sardar Vallabhbhai Patel, in his report dated August 8, 1947, said :

" ... It should be treated as supplementary to the one forwarded to you with my letter No. CA/24/Com./47, dated the 23rd April 1947 and dealt with by the Assembly during the April session. That report dealt with justiciable fundamental rights ; these rights, whether applicable to all citizens generally or to members of minority communities in particular offer most valuable safe-guard for minorities over comprehensive field of social life. The present report deals with what may broadly be described as poli- · tical safeguards of minorities and covers the following points : (Emphasis supplied) (p. 411, Supra)

(i) Representation in Legislature ; joint versus separate clect<>-rates ; and wcightage.

(ii) Reservation of scats for minorities in Cabinets.

(m) Reservation for minorities in the public services.

(iv} Administrative machinery to ensure protection oi. minority rights.

Sardar Patel, while moving. the report for consideration on August 27, 1947, said :

"You will remember that we passed the Fundamental Rights Committee's Report which was sent by the Advisory Committee ; the major part of those rights has been disposed of and accepted by this House. They cover very wide range of the rights of minorities which give rhem ample protection ; and yet there arc certain political safeguards which have got to he specifically considered. An attempt has been made in this report to enume-rate those safeguards which a•e matters of common knowledge, such as representation in legislatures, that is, joint versus separate electorate." (Emphasis supplied) (p. 424, Supra)

The above proceedings show that the minorities were particularly concerned with the fundamental rights which were the subject-matter of discussion by the Fundamental Rights CommiJttec.

The above brief summary of the work of the Advisory Committee and the Minorities Sub-Commi.ttee shows that no one ever contem-plated that fundamental rights appertaining to the minorities would be liable tn be abrogated by an amendment of the Constitution. The same is true about the proceedings in the Constituent Assembly. There is no hint anywhere. that abrogation of minorities rights was ever in the contemplation oi. the important members of the Constituent Assembly. It seems to me that in the context of the British Plan, the setting up of Minorities Sub-Committee, the Advisory Committee and the proceedings of these· Commi.ttees, as wdl as the proceedings in the Constituent Assembly mentioned above, it is impossible to read the expression "Amendment of the Constitution" as empowering Parliament to abrogate the rights of minorities.

Both sides relied on the speeches made in the Constituent Assembly. It is, however, sound rule of construction that speeches made by mcmbers .. of legislature in the course of debates relating to the enact-ment o( a. statute cannot be used as aids for interpreting any of provisions of the. sta.tute. Th.e sa.me rule has been applied to the provisions of this Constitution by thlS Court in State of Travanco<e-Cochin and Others v. Bombay Co. Ltd! 'Shastri, .C.J., speaking for the Court observed :

'It remains only to point out that the use made by the learned Judges below of t!ic speeches made by the Members of the Constituent Assembly m the course of the debates on the draft Constitutior

( [1]) [1952] S.C.R. 1112, 1121.

is unwarranted. That this form of extrinsic aid to the interpretation of statutes is not admissible has been generally accepted in England, and the same rule has been observed in the construction of Indian statutes-sec Administrator-Genera/ of Bengal v. Prem Nath Mallick.(') The reason behind the rule was explained by one of us in Gopa/an's(') case thus :-

"A speech made in the course of the debate on bill could at best be indicative of the subjective intent of the speaker, but it could not rdiect the inarticulate mental process lying behind the majority vote which carried the bill. Nor is it reasonable to assume that the minds of all those legislators were in record,"

or, as it is more tersely put in an American case-

"Those who did not speaki may not have agreed with those who did ; and those who spoke might differ from each other-United States v. Trans-Missou.ri Freight Association."

This rule of cxclwion has not always been adhered to in America, and sometimes distinction is made between using such · material to ascertain the purpose of statute and using it for ascertaining its meaning. It would seem that the rule is adopted in Canada and Awtralia-sce Craics on Statute Law, 5th Ed. p. 122."

In Golak Nath's(') case,° Subba Rao, C.J., referred to certain por-tions of the speeches made by Panclit Nehru and Dr. Ambedkar but he made it clear at p. 792 that he referred IP these speeches "not with view to interpret the provisions of art. 368, which we propose to do on its own terms, but only to notice the transcendental character givf:n to the fund~mental rights by two of the important architects of the Constitution." Bachawat, J., at p. 922 observed :

"Before concluding this judgment I must refer to some of the speeches made by the members of the Constituent Assembly in the course of debates on the draft Constitution. These speeches cannot be used as aids for interpreting the Constitution-sec State of Travancore Cochin and Ors. v. Bombay Co. Ltd.(') Accordingly I do not rely on·thcm as aids to construction. But I propose to refer to them, a• Shri A. K. Sen relied heavily on the speeches of Dr. B. R. Ambedkar. According to him, the speeches of Dr. Ambed-kar show that he did not regard the fundamental rights as amenda-ble. This contention is not supported by the speeches. . "

(') [1895] 22 I.A. 107-118.

( [2 ]) [1950] S.C.R. 88.

( ') [1967] 2 S.C.R. 762; 792; 922.

(') [1952] S.C.R. 1112.

In H. H. Maharaiadhiraia Madhav Rao v. Union of India(') Shah, J, in •.he course of the judgment made brief reference to what was Slid by the Minister of Home Affairs, who was in charge of the States, when he moved for the adoptiol\ of art. 291. He referred to this portion ·of the speech for the purpos~ of showing the historical background and the rircwmtances which necessitated giving certain guarantees to the former rulers.

It is true that Mitter, J., in the dissentmg judgment, at p. 121, used the debates for the purposes of interpreting art. 363 but he did not dis-cuss the point whether it is'permissjble to do so or not.

In Union of India v. H. S. Dhillon,(') I, on behalf of the majority, before referring to the speeches observed at p. 58 that "we are, however, glad to find from the following extracts from the debates that our inter-pretation accords with what was intended." .There is no harm in finding confirmation of one's interpretation in debates but it is qtiite different thing to interpret the provisions of the Constitution in the light of the ·debates.

There is an additional reason for not referring to debates for the , purpose of interpretation. The Constitution, as far as most of the Indian States were concerned, came into operation only because of the acceptance by the Ruler or Rajpramukh. This is borne out by the following extract from the statement of Sardar Vallabhbhai Patel in the Constituent Assembly on October, 12, 1949 (C.A.D. Vol. X, pp. 161-3) :-

"Unfortunately we have no properly constituted Legislatures in the rest of the States (apart from Mysore, Saurashtra and Travancore and Cochin Union) nor will it be possible to have Legislatures constituted in them before the Constitution of India emerges in its final form. We have, therefore, no option but to make the Consti-tution operative in these States on the basis of its acce'ptance by the Ruler of the Rajpramukh, as the case may be, who will no doubt consult his Council of Ministers." ·

In ~ccor~ance with this st~tement, declarations were issued by the Rulers or .Roipramukhs acceptmg the Constitution.

It seems to me that whei;i Ruler or RajpramukJi or the people of the State accepted the Constitution of India in its final form he did not accept it subject to the speeches made during the C~nstituent Assembly de~ates. The speeches can, in my view, be relied on only in order to see if the course of the progress of particular provision or

(') [1971] 3 S.C.R. 9.

( [2]) f1972 J 2 S.C.R. 33.

provisions throws any light on the historical background or shows that common understanding or agreement was arrived at between certain sections of the people.•

In this connection reference was made to art. 305 of the draft Constitution which provided that notwithstancling anything contained in article 3.o4 of the Constitution, the provisions of the Constitution relating to the reservation of seats for the Muslims etc., shall not be amended during the period of ten years from the commencement of the Consti· tution. Although this draft article 305 has no counterpart in our Consti-tution, jt was sought to be urged that this showed that every provision of the Constitution was liable to be amended. I have come to the conclusion that every provision is liable to be amended subject to certain limitations and this argument does not affect my conclusion as to implied limitations.

very important decision of the Judicial Committee ot the Privy

Council in The Bribery Commissioner v. Pedrick Ranasinghe(') throws considerable light on the topic under discussion. The import of this decision was not realised by this Court in Go!ak Nath's (') case. Indeed, it is not referred to by the minority in its judgments, and Subba Rao, C.J., makes only passing reference to it. In order to fully appreciate the decision of the Privy Council it is necessary to set out the relevant provisions of the Ceylon Independence Order in Council, 1947, herein· after referred to as the Ceylon Constitution.

Part Ill of the Ceylon Constitution deals with "Legislature". Sec-tion 7 provides that "there shall be Parliament of the Island which shall consist of His Majesty, and two Chambers to be known respectively as the Senate and the House of Representatives."

Section 18 deals with voting. It. reaJs:

"18. Save as otherwise provided in sub-section (4) of section 1.9, any question proposed for decision by either Chamber shall be determined by majority of votes of the Senators or Members, as the case may be, present and voting. The President or Speaker or other person presiding sha.11 not vote in the first in!tance but shall have and exercise casting vote in the event of an equali.ty of votes." Section 29 deal; with the power of Parliament to make laws. It reads :

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

.. (See In re. The Regulation and Control of Aeronauti'c1 in Canada) [1932

, \.\..:. 54 at p. 70.

( [1]) [1965] A.C. 172.

(2) No such law shall-

( a) prohibit or restrict the free exercise of any religion, or

(b) make persons of any community or religion liable to· disabilities or restrictions to which persons or other communities or religions are not made liable ; or

( c) confer on persons of any c0mmunity or religi,on any privilege or advantage which is not conferred on persons of other communities or religions ; or

(d) alter the constitution of any religious body except with the consent of the governing authority of that body. So, however,. that in any case where religious body is incorporated by law, no such alteration shall be made except at the request of the governing authority of that body.

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

This prO'Viso shall cease to have effect on date to be fixed by the Governor-General by Proclamation published in the Gazette.

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

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

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

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

1ccording to.Mr. Palkhivala, section 29(1) corresponds to arts. 245 and -46, and section 29( 4) corresponds to art. 368 of our Constitution, _- a!ld sections _29(2) and 29(3) correspond to art. 13(2) of our Constitu-tion, read with fundamental righa,

136 SUPREME· COURT REPORTS (1973] Supp. S.C.L

The question which arose before the Judicial Committee oi the Privy Council was whether section 41 of. the Bribery Amendment Act, 1958 contravened section 29(4) of the Ceylon Constitution, and was consequently invalid. The question arose out of tl).e following facts. The respondent, Ranasinghe, was prosecuted for bribery offence .before the Bribery Tribunal created by the Bribery Amendment Act, 1958. The Tribunal sentenced him to term of imprisonment and fine. The Supreme Court on appeal declared the conviction and orders made against him null and inoperative on the ground that the persol'ls composing the Tribunal were not validly appointed to the Tribunal.

Section 52 of the Ceylon Constitution provided for the appointment of the Chief J us ti cc and Puisnc Judges of the Supreme Court. Section 53 dealt with the setting up of the Judicial Service Commission, consiating of the Chief Justice, Judge of the Supreme Court, and one other person who shal~ be, or shall have been, Judge of the Supreme Court. It further provided that no person shall be appointed as, or shall remain, member of the Judicial Service Commission, if he is Senator or Member of Parliament. Section 55 provided for the appointment of other Judicial Officers. Section_ 55 ( 1) reads :

"55. (1) The appointment, transfer, dismissal and disciplinary control of judicial officers is hereby vested in the Judicial Service Commission."

The Judicial Committee deduced from these provisions thus :

"Thus there is secured freedom from political control, and it'is punishable offence to attempt directly or indirecdy to influence any decision of the Commission (Section 56)." (p. 190).

The Judicial Committee then described the p<ll'lition of the Bribery Tribunal as follows :

"A bribery tribunal, of which there may be any number, is compo-sed of three members selected from panel (section 42). · The panel is composed of not more than 15 persons who arc appointed by the Governor-General on the advice of the Minister of Justice (section 41). The members of the panel arc pitld remw1eration (section 45)." (p. 192). ·

The Judicial Committee held that the members ~£ the Tribooal held judicial office and were judicial officers wi~ S: 55 ~-the Ceylon -COnstit\ltion. They found that there was plain ~ct · bctwwi section 55 of the Constitution and section 41 of the Brilicry Am_cndmcnt Act under which the panel was appointed.

Then the Judicial Committee examined the eficct of this conflict. After setting out section 18, section 29(1) and section 29(2) (a), the Judicial Committee observed :

"There follow (b), (c) and (d), which set out further entrenched religious and racial matters, whidi shall not be the subject of legisla-tion. They represent the solemn balance of rights, between the citizen; of Ceylon, the ftmdamental conditions on which inter se they accepted the ConstitutioH ; and these are, therefore unalterable under the Constitution." (Emphasis supplied) (p. 193).

After making these observations, the Judicial Committee set out sub-sections (3) and (4) of section 29 of the Ceylon Constitution. The observations, which I have set out above, are strongly relied on by Mr. Palkhivala in support of his argument that Part III similarly entrenched various religious and racial and other matters and these represented solemn balance of rights between the citizens of India, rhe· fundamental conditions on which inter se they accepted the Constitution of India and these are, therefore, unalterable under the Constitution of India.

Mr. Seervai, in reply, submitted that the word "entrenched" meant nothing else that than these provisions were subject to be amended only by the procedure prescribed in s. 29(4) of the Ceylon Co.nstitution. But I am unable to accept this interpretation because in that sense other provisions of the Constitution were equally entrenched because no provision of the Ceylon Constitution could be amended without following the procedure laid down in s. 29(4).

The interpretation urged by Mr. Palkhivala dervies support in the manner the Judicial Committee distinguished McCawley's(') case (Mt Cawley v. King). I may set out here the observations of the Judicial Committee regarding M cCawley' s case. They observed :

"It is possible now to state summarily what is the essential difference between the McCawley case and this case. There the legislature, having full power to make laws by majority, except upon one subject that was not in question. passed law which conflicted with one of the existing terms of its Constitution Act. It was held that this was valid legislation, since it must be treated as pro tanto an alteration of the Constitution, which tuas neither fundamental in the sense of being beyond change nor so constructed as to require any special legislative process to pass upon the topic dealt with. (Emphasis supplied). (p. 198).

It is rightly urged that the expression "which was neither funda-mental in the sense of being beyond change" has reference to s. 29(2) of the Ceylon Constitution. I have no doubt that the Judicial Com-mittee held that the provisions of s. 29(2) in the Ceylon Constitution were unamendable. I may mention that Prof. S de Smith in review-ing the book "Reflections on the Constitution and the Constituent Assembly. (Ceylon's Constitution) "by L.J.M. Cooray, reads the obiter dicta in Bribery Commissioner v. Ranasinghe(') ingicating that certain provisions of the Constitution were unalterable by the prescribed amending procedure.

It may be that these observations are obiter but these deserve our careful consideration, coming as they do from the Judicial Committee.

Why did the Judicial Committee say that the provisions of s. 29(2 were "unalterable under the Constitution" or "fundamental in the sens of !J,,ing beyond change" ? There is nothing in the language of s." 29( 4 to indicate any limitations on the power of the Ceylon Parliament. I' could "amend or repeal" any provision of the Constitution, which included section 29(2) and s. 29( 4) itself. The reason could only be an implied limitation on the power to amend under section 29( 4) deducible from "the solemn balance of rights between the citizens of Ceylon, the fundamental conditions on which inter se they accepted the Constitution". Unless there was implied limitation on the exer-cise of the amending power under section 29(4), section 29(4) could itself be amended to make it clear that section 29(2) is amendable.

This case furnishes an exact example where implied limitations on the power to amend the Constitution have been inferred by no less body than the Judicial Committee of the Privy Council.

Mr. Seervai relied on the portion within brackets of the following passage at pp. 197-198:

''These passages show clearly that the Board in M cCawley' s case took the view which commends itself to the Board in the present case, that (a legislature has no power to ignore the conditions of law-making that are imposed by the instrument which itself regu-lates its powers to make law. This restriction exists independently of the question whether the legislature is sovereign, as is the legisla-ture of Ceylon, or whether the Constitution is "uncontrolled," as the Board held the Constitution of Queensland to be. Such Con-stitution can, indeed, be altered or amended by the legislature, if the regulating instrument so provides that if the terms of those provisions are compiled with ancl the alteration or amendment may

(') (1965] A.c. 172, 193-194.

include the change or abolition of those very provisions.) But the proposition which is not acceptable is that legislature, once cstabllihcd, has some inherent power derived from the mere fact of its establishment to make valid law by the resolution of bare majority which its own constituent instrument has said shall not be valid law unless made by different type of majori'ty or by different legislative process. And this is the proposition which is in reality involved in the a.rgument."

The portion, not within br.ackets, which has been omitted in Mr. Seervai's written submissions, clearly shows that the fudicial Com-mittee in this passage was not dealing with the amendment of s. 29(2) of the Ceylon Constitution and had understood McCawlty's(') case as not being concerned with the question of the amendment of provision like s. 29(2) of the Ceylon Constitution. This passage only means that legislature cannot disregard the procedural conditions imposed on it by the constituent instrument prescribing particular majority but may amend them if the constituent instrument gives that power.

The next passage, part of which I have already extracted, which deals with the difference between McCawley's case a.nd Rana.ringhe's(') case shows that the fudicial Committee in the passage relied on was dealing with the procedural part of section 29( 4) of Ceylon Constitution. ft reads :

"It is possible now to state summarily what is the essential dilfe. rence between the Mccawley case and this case. There the legisla-t;ure having full power to make laws by majority, except upon one subject that was not in question, passed law which conflicted with one of the existing terms of the Constitution Act. ·It was held that this was valid legislation, since it must be treated as pro tanto an alteration of the Constitution, which was neither fundamental in the sense of being beyond change nor so constructed as to require any special legislative process to pass upon the topic dealt with. In the present case, on the other hand, the legislature has purported to pass law which being in conflict with section 55 of the Order in Council, must be treated, if it is to be valid, as an implied altera-tion of the Constitutional provisions about the appointment of judicial officers. Since such alterations, even if express, can only be ma~e by law~ whic.h comply with the special legislative proce-dure laid down m section. 29( 4), the Ceylon legislature has not got the_ general l.'o':"er to leg~slate so as to amend its Omstitution by ordrnary ma1onty resolutions, such as the Queensfand legislature was found to have under section 2 of its Constitution Act, but is .

( [1 ]) 1920] A.C. 691.

( [2]) [1965] A.C. 172, 193-194.

rather in the position, for effecting such amendments, that that legislature was held t<> be in by virtue of its section 9, namely,. compelled to operate special procedure in order to achieve the desired result." (p. 198).

I may mention that the Judicial Committee while interpreting the British :North America Act, 1867 had also kept in mind the preservation of the rights of minorities for they say In re The Regulation and Control of Aeronautics in Canada : (') "inasmuch as the Act ~British North. America Act) embodies compromise under which the original Provin-ces agreed to federate, it is important to keep in mind that the preserva-tion of the rights of minorities was conditioin on which such minorities entered into the federation, and the foundation upon which the whole structure was subsequently erected. The process of interpretation as the years go on ought not to be allowed to dim or to whittle down the provisions of the original contract upon which the federation was founded, nor is it legitimate that any judicial construction of the Provisions of ss. 91 and 92 should impose new and different contract upon the federating bodies."The words of the Judicial Committee in Ranasinghe's case, are apposite and pregnant. " They represent the solemn balance of rights between the citizen< of Ceylon, the fundamental conditions on which inter se they accepted the Constitution and these are, therefore unaltera-ble under the Constitution." It is true that the Judicial Committee in the context of minorities and religious rights in Ceylon used the word "unalterable". But the India context is s\ightly different. The guarantee of fundamental rights extends to numerous rights and it could not have been intended that all of them would remain completely unalterable even if Art. 13(2) of the Constitution be taken to include constitutional amendments. more reasonable inference to be drawn from the whole ;cheme of the Constitution is that some other meaning cf "Amendment" is most appropriate. This conclusion is also reinforced by the concession of the Attorney-General and Mr. Seervai that the whole Constitution cannot be abrogated or repealed and new one mbstituted. In other words, the expression "Amendment of this Consti-tution" does not include revision of the whole Constitution. If this is true-I say that the concession was rightly made-1hen which is that meaning of the word "Amendment" that is most appropriate and fits in with the while scheme of the Constitution. In my view 1hat meaning would be appropriate which would enable the country to achieve social and economic revolution without destroying the democratic structure of the Con.ritution and the basic inalienable rights guaranteed in Part III and without going outside the contours delineated in the Preamble.

I come to the same conclusion by another line of reasoning. · In written constitution it is rarely that everything is said expressly. Powers and limitations are implied from necessity or the scheme of the Consti-tution. I will mention few instances approved by the Judicial Com-mittee and this Court and other Courts. I may first consider the doctrine that en<1bles Parliament to have power to. deal with ancillary and subsi-diary matters, which strictly do not fall within the legislative entry with-respect to which legislation is being unde~n.

Lefroy in "A short Treatise on Canadian Constitutional Law" (page 94), puts the matter thus :

"But when it is (Dominion Parliament) is legislating upon the enumerated Dominion subject-matters of sec. 91 of the Federation Act, it is held that the Imperial Parliament, by necessary implica-tion, intended to confer on it legislative power to interfere with, deal with, and encroach upon, matters otherwise assigned to the provincial legislatures under sec. 92, so far as general law relating {O those subjects may affect them, as it may also do to the enent of such ancillary provisions as may be required to prevent the scheme of such law from being defeated. The Privy Council has esta-blished and illustrated this in many decisions."

This acts as corresponding limitation on the legislative power of the Provincial or State legislatures.

This Court has in numerous decisions implied sim'lar powers. (See Orient Paper MiNs v. State of Orissa('); Burmah Construction Co. v~ Stat.: of Ori<Sa('); Navnit Lal Javeri v. Appellate Assistant Commis-sioner('); to mention few).

It often happens that what has been implied by courts in one constitution is expredy conferred in another constitution. For instance, in the Constitution of the United States, clause 18 of section 8 expressly grants incidental powers :

"The Congress shall have power .......... to make all laws which shall be necessary and proper for carrying into execution the fore- ·"' going powers and all other powers vested by this Constitution in the government of the United States, or in any departtnent or officer thereof."

It would not be legitimate to argue from the above express provi-sion in the United States Constitution that if the constitution-makers wanted to giye such powers to the Parliament of India they would have expressly conferred incidental powers.

( [1 ]) [ 1962] !. S.C.R. 549.

( [2 ]) [1962] 1 Supp. S.C.R. 242.

( [3 ]) A.I.R. 1965 S.C. 1375. 10-36 S.C. India/73

sul'&llME couar &UGa'S [Im} .Sapp. ~

J:baa would zaalt from from

Story says that clause 18 import$ no ~. J:baa would zaalt from from necemry implicition (~ pp. 112 and lU. Vol. 3) if it had not been cxpmsly inserted.

In Ram /awaya Kapur v. Sttlle uf .,_;.{') thil Cowl: implied that "the President has thus been made formal or constitutional head of the executive and the real executive powc:n are \ICStcd in the Ministers or the Cabinet. The same provisions obtain in· tqard to the Govern-ment of States ; the Governor or the Rajpnmukh .... "

In Sanieevi Naidu v. State of Madras(") Hedge, J., held that the Governor was essentially constitutional head and the administr~tion of State was run by the Council of Minis~

Both these cases were followed by another constitutioo bench in U.N.R. Rao v. Smt. Indira Gandhi.(')

This conclusion constitutes an implied limitarion oo the powers of the President and the Governors.. The Court further implied in. &zm /awaya Kapur' s(') case that the Government could without spccilic legislative sanction carry on trade aad bwincst.

To save time we did not hear Mr. Sc~ ·on the last 3 cases just cited. I have mentioned them only to give another aample.

It may be noted that what was implied regarding carrying on trade

was made an express provision in the Constit1;l!ion by the Constitution (Seventh Amendment) Act, 1956, when new art. 298 was substituted. The Federal Court and the Supreme Court of India have recognised and applied this principle in other ~ :

(i) "A grant of the power in general terms standing by itself would no doubt be construed in the wider sense ; but it may be qualified by other express provisions in the same enactment, by the implications of the context, and even by considerations arising out of what appears to be the gcneml scheme of the Act." (Per Gwyer C.J. The C.P. & lkr11r Act-1939 F.C.R. 18 at 42).

(ii) Before its amendment in 1955, Article 31(2) was read as con-taining an implied limitation that the State could acquire only

( [1]) [1955] 2 S.C.R. 225; 236-37.

( [2]) [1970] I S.C.C. 443.

<([3 ]) [1971] 2 s.c.c. 63.

for public purpose (the Fourth Amendment expressly enacted this limitation in 1955).

(a) "One limitation imposed upon acquisition or taking pos.1CS-sion of private property which is implied in the clause is that such taking must be for public purpose". (Per Mukherjca J. Chiraniitlal Chowdhuri v. Union of lndi11-1950 SCR 869 at 902).

(b) "The existence of 'public purpose' is undoubtedly an · implied condition of the exercise of compulsory powers of acquisition by the State ........ " (Per Mahajan J. SttZte of Bihar v. Makarajadliiraja of Darbhanga-1952 SCR 889 at 934).

(iii) The Supreme Court has laid down that there is an implied limitation on legislative power : the Legislature cannot dele-gate the essentials of the legislative functions.

" .... the legislature cannot part with its essential legislative func-tion which consists 'in declaring its policy and making it binding rule of conduct. . . . . . . . the limits of the powers of delegation in India would therefore have to be ascertained as matter of con-struction from the provisions of the Constitution itself and as I have said the right of delegation may be implied in the exercise of legislative power only to the extent that it is necessary to make the exercise the power effective and complete. (Per Mukherjea J. in re The Delhi Laws Act-1951 SCR 747 at 984-5).

The same implied limitation on the Legislature, in the field of delegation, has been invoked and applied in :

Raj Narain Singh v. Patna Admin'istration-1955(1) SCR 290. Hari Shankar Bag/a v. State of Madhya Pradesh-1955(1) SCR 380.

V asantilal Sanjanwala v. State of Bombay-1961 ( 1) SCR 341. The Municipal Corporation of Delhi v. Birla Cotton Mills-1968 (3) SCR 251.

Garewal v. State of Punjab-1959 Supp. (1) SCR 792.

(iv) On the power confered by Articles 3 and 4 of the Constitution to form new State and amend the Constitution for that pur-pose limitation has been implied that the new State must-

"conform to tlte democratic pattern envisaged by the Constitution; and the power which the Parliament may exercise ....... -_ is not the power ro over-ride the constitutional scheme. No State can therefore be formed, admitted or set up by law under Article 4 by the Parliament which has no ,ffcctive legislative, executive and

judicial organs". (Per Shah J.-Mangal Singh v. Union of Indi11-1967(2) SCR 109 at 112. (Emphasis supplied).

It would have been unnecessary to refer to more authorities but for the fact that it was strenuously urged that there could not be any implied limitations resulting from the scheme of the Constitution.

Before referring to recent decision of the Australian High Court, observations in certain earlier cases may be reproduced here :

"Since the Engineers" case (1920-28 CLR 129) notion seems to have gained currency' that in interpreting the Constitution no implications can be made. Such method of construction would defeat the intention of any instrument, but of all instruments, written constitution seems the last to which it could be applied. I do not think that the judgment of the majority of the court in the Engineers' case meant to propound such doctrine" (Per Dixon J. West v. Commissioner of Taxation (New South Wales)-56 CLR 657 at 681-2).

"Some implications are necessary from the structure of the Constitution itself, but it is inevitable also, I should think, that thr.se implications can only be defined by gradual process of judicial decision" (Per Starke J., South Attstralia v. Commonwealth-65 CLR 373, 447. (Emphasis supplied).

''The Federal character of the Australian Constitution carries implications of its own ..... , Therefore it is beyond the power of either to abolish or destroy the other". (Per Starke J. Melbourne Corporation v. Commonwealth-74 CLR 31 at 70). (Emphasi• supplied).

"The Federal syst\om itself is the foundation of the restraint upon the use of the power to control the State ...... Restraints to be implied against any exercise of power by Commonwealth against State and State against Commonwealth calculated to destroy or detract from the independent exercise of the functions of the one or the other ...... " (Per Dixon J.-Me/bourne Corpora-tion v. Commonwealth-74 CLR 31 at 81-2).

I may now refer to State of Victoria v. The Commonwealth(') which discusses the question of implications to be drawn from consti-tution like· the Australian Constitution which is contained in the Commonwealth Act. It gives the latest view of that court 01> the subject.

( [1 ]) [1971] 45 A.L.R.J. 251; 252; 253.

· The point at issue was whether the Commonwealth Pariiament, in the exercise of its power under s. 51Cil) of the Constitution (subject to the Constitution, to make laws with respect to taxation, but so as not to discriminate between States or parts of States) may include the Crown in right of State in the operation of law imposing tax or providing for the assessment of tax. ·

Another point at issue was 1he status of the Commonwealth and the States under the Constitution, and the extent to which the Cpmmon· wealth Parliament may pass laws binding on the States, considered generally and historically, and with particular reference to the question whether there is any implied limitation on Commonwealth legislative power. It is the discu;sion on the latter question that is relevant to the present case.

There was difference of opinion among thc~Judgcs. Chief Justice Barwick held as follows :-

"The basic principles of construction of the Constitution were definitively enunciated by the Court in Amalgamated Society of Engineers v. Adelaide Steamship Co. Ltd. (1920), 28 C.L.R. 129 (the Engineers' case) Lord Selborne's language in Reg. v. Burah (1878) 3 App. Cas. 889 at pp. 904-905, was accepted .and applied as was that of Earl Loreburn in Attorney.General for Ontario v. Attorney-General for Canada (1912) A. C. at 583".

According to the Chief Justice, the Court in Engineeres' case un-equivocally rejected the doctrine that there was an "implied prohibition" in the Constitution against the exercise in relation, to State of legislative power of the Commonwealth once ascertained in accordance with the ordinary rules of construction, doctrine which had thereto-fore been entertained and sought to he founded upon some suwoscd necessity of "protection", as it were, "against the aggression of some outside and possibly hostile bo<ly". The Court emphasized that if protection against an abuse of power were needed, it must be provided by the electorate an<Nlot by the judiciary. "The one clear line of judicial inquiry as to the meaning of the Constitution must be to read it natu-rally in the light of the circumstances in which it was made, with kno;.vledge of the combined fabric of the common law, and the statute law which preceded it and then lucet ipM per see" (p 253).

Now this is the 'udgment which is relied on by Mr. Seervai and the learned Attorney (!encral. On the other hand, reliance is placed by Mr. Palkhivala on Menzies J's judgment : · ·

"Docs the fact that the Constitution is "federal" carrv with it implications limiting the law-making powers ,of, the Pir)iamcnt of the Commonwealth with regard to the States ?

SUPBEME COURT BEPORTS [ 1973] Supp. s.C.Il.

To this questi~n I have no doubt, both on principle and on authority, that an affirmative answer must be given. constitution providing for an indissoluble federal Commonwealth must protect both Commonwealth and States. The Stat.cs arc not outside the Constitution. They arc States of the Commonwealth ; s. 106. Accordingly, although the Constitution docs, clearly enough, sub-ject the States to laws made by the Parliament, it does so with some limitation." (p. 262).

After making these observations, the learned Judge examined authorities and he found support in M albourne Corporation v. The Commonwealth('). He then examined various other cases in support of the above principles.

The other passages relied on by the petitioners from the judgments of the other learned Judges on the Bench in that case are as follows :-

Windcyar J.

"In each case an implication means that something not expressed is to be understood. But in the one case, this involves an addition to what is expressed : in the other it explains, perhaps limits, the effect of what is expressed. It is in the latter sense that in my view of the matter, implications have place in the interpretation of the Constitution : and I consider it is the sense that Dixon J. intended when in Auttralian National Airways Pty. Ltd. v. The Commonwealth (1945) 71 C.L.R. 29, he said (at p. 85) : "We should avoid pedantic and narrow constructions in dealing with an instrument of government and I do not sec why we should be fearful about making implications". His Honour, when Chief Justice, repeated this observation in Lamshed v. Lake (1958) 99 C.L.R. 132 at p. 144. I said in Spratt v. Hermes (1965) 114 C.L.R. 226, at p. 272, that it is well to remember it. I 91ill think so. The only emendation that I would venture is that I would prefer not to say "making implications", because our avowed task is simply the revealing or uncovering of implications that are already there.

In Mnibourne Corporation v. The Commonwealth (1947), 74 C.L.R. 31, Starke J. said (at p. 70) : "The federal character of the Australian Constitution carries implications of its own" .... (p. 268). • • • • • •

"The position that I take is this : The several subject matters with respect to which the Commonwealth is empowered by the Consti-tution to make laws for the peace, order and good government of the Conmmonwealth are not to be narrowed or .limited by impli-cations .. Their scope and amplitude depend simply on the words by which they are expressed. But implications arising from the existence of the States as parts of the Commonwealth and as consti-tuents of the federation may restrict the manner in which the Parliament can lawfully exercise its power to make laws with respect to particular subject-matter. These implications, or perhaps it were better to say underlying assumptions of the Consti-tution, relate to the use of power not to the inherent nature of the subject matter of the law. Of course whether or not law promotes peace, order and good government is for the Parliament, · not for court, to decide. But law although it be with respect to designated subject matter, cannot be for the peace, order and good government of the Commonwealth if it be directed to the States to prevent their carrying out their functions as parts of the Commonwealth." •. ;. (p. 269). * .. * .. * *

Gibbs J.

"The ordinary principles of statutory construction do not preclude the making of implications when these are necessary to give effect to the intention of the legislature as revealed in the statute as whole. The intention of the Imperial legislature in enacting the Constitution Act was to give effect to the wish of the Australian people to join in federal union and the purp9se of the Constitu-tion was to establish federal, and not unitary, system for the government of Australia and according! y to provide for the distri-bution of the powers of government between the. Commonwealth and the States who were to be the constituent members of the federation. In some respects the Commonwealth was placed in position of supremacy, as the national interest 'required, but it would be inconsistent with the very basis of the federation tha( the Commonwealth's powers should extend to reduce the States to such position of subordination that their very existence, or at least their capacity to function effectually as independent units, would be dependent upon the manner in which the Commonwealth exercised its powers, rather than on the legal limits of the powers themselves. Thus, the purpose of the Constitution, and the scheme by which. it is intended to be given effect, necessarily giv!! rise to implications as to the manner in whicl1 the Commonwealth and the States respectively may exercise thdr powers, vis-a-vis· each other." ..•. (p. 275).

Wynes• in discussing the· amendment of ·the Constitutions oE the Sillies of Australia sums up the position thus. I may refer only to die propositions which arc relevant to our case.

(1) Every State legislature has by viritue of sec. 5 full powers of amendment of any provision respecting its constitution powers and procedures.

(2) But it cannot (semble) alter its "representative" character. (3} The "Constitution" of Legislature means its composition, form or nature of the House or Houses, and excludes any reference to the Crown. " (6) No Colonial Legislature can forever abrogate its power of amendment and thereby render its Constitution absolutely immutable. law purporting to effect this object would be void under sec. 2 of the Act as being repugnant to sec. 5 thereof.

For proposition (2) above, reference is made in the footnote. to Taylor v. The Attorney-General of Queensland.(') The relevant pass-ages which bear out the second proposition are :

"I take the constitution of legislature, as the term is here used, to mean the composition, form or nature of the House of Legislature where there is only one House, or of either House if the legislative body consists of two Houses. Probably the power does not extend to authorize the elimination of the reprsentative character of the legislature within the meaning of the Act. (p. 468 per-Barton J.).

"I read the words "constitution of such legislatme" as inCluding the change from unicameral to bicameral system, or the reverse. Probably the "representative" character of the legislature is- basic condition of the power relied on, and is preserved by the word "such," but, that being maintained, I can see no reason for ;:uitting down the plain natural meaning of the words in question sb as to exclude the power of self-governing community to say that for State purposes one House is sufficient as its organ of legislation." (p. 474 per-Issacs J.).

(For proposition No. 3, see Taylor v. The Attorney-General of Q11ee11sland(') and Clayton v. Heffron.)(').

Then dealing with the Commonwealth Constitution, he states :

"Another suggested limitation is based upon the distinction between the covering sections of the Constitution Act and the Const:tution

•Wynes Legislati\·e, Executive and Judicial Power in Australia, FOOrth Edn. P' 5o3.

. (') 23 C.L.R. 457.

( [2]) [1960] 105 C.L.R. 214; 251.

itself; it is admitted on all sides that sec. 128 does not penp.it of any amendment to those sections. (And in this respect the Statute of Westminster does not confer any new power of amendment-indeed it is expressly provided that noihing in the statute shall be deemed to confer any power to repeal or alter the Constitution of the Constitution Act otherwise than accordance with existing law.) In virtue of their character of Imperial enactments the covering sections of the Constitution are alterable only by the Imperial Parliament itself. The question is, admitting this principle, how far does the Constitution Act operate as limitation upon the amending power ? It has been suggested th"t any amendment which would be infonsistent with the preamble of the Act referring to the 'indisso!Uble' character and the sections which refer to the "Federal" nature of the Constitution, would be invalid. There has been much conflict of opinion respecting this matter ; the view here taken is that the preamble in no wise effects the power of alteration." (p. 505).

In view of this conflict, no assistance can be derived from academic writing.

Tbe ca<e of The Attorney Genera! of No1Ja Scotia and The .Attorney General of Canada and Lord Nelson Hotel Company Umitcd(') furnishes another example where limitations were impiied. 'The Legislature of the Province of Nova Scotia contemplated passing an act respecting the delegation of jurisdiction of the Parliament of -Canada to the Leg'slature of Nova Scotia and vice verm. The question arose whether, if enacted, the bi\! would be constiutionally valid since ·it contemplated delegation by Parliament of powers, exclusively vested in it by s. 91 of the British North America Act to the Legislature of Nova Scotia, and dc!egation by that Legislature of powers, exclusive!:· vested in Provincial Legislature under s. 92 of the Act, to Parliament.

The decision of the Court is summarised in the headnote as follows:

"The Parliament of Canada and each Provincial Legislature is sovereign body within the sphere, possessed of exclusive jurisdiction to legislate with regard to the subject matters assigned to it under s. 91 or s. 92, as the case may be. Ne:ther is capable therefore of delegating to the other the powers with which it has been Yested nor of the receiving from the other the powers with which the other has been vested."

The Chief Justice observed :

"The· cons~itution of Canada does llQt belong either to Parliament, or to the Legislatures ; it belongs to the country and it is there that the citizens of the country will find the protection of the rights to which they are entitled. It is part of that protection that Parlia-ment can legislate only on the subject matters referred to it by sec-tion 91 and that each Province can legislaite exclusively on the sub-ject matters referred to it by section 92." (p. 34).

He further observed :

"Under the scheme of the British North America Act there were to be, in the words of Lord Atkin in The Labour Convention; Reference (1937) A.C. 326)", "Water,tight compartments which are an essential part of the original structure." (p. 34).

He distinguished the cases of In re Gray(') and The Chemical Reference(') by observing that delegations such as were dealt with in these cases were "delegations to body subordinate to Parliament and were of character different from the delegation meant by the Bill now submitted to the Court."

,. Kerwin, J., referred to the reasons of their Lordships in In Re The Initiative and Referendum(') Act as instructive. After referring to the actual decision of that case, he referred to the observations of Lord Haldane, which I have set out later while dealing with the Initiative & Referendum case and then held :

"The British North America Act divides legislative jurisdiction between the Parliament of Canada and the Legislatures of the Provinces and there is no way in which these bodies may agree to different division." (p. 38).

Taschereau, J., observed :

"It is well settled proposition of law that jurisdiction cannot be conferred by consent. None of these bodies can be vested directly or indirectly with powers which have been denied them by ·the B.N.A. Act, and which therefore are not within their constitutional jurisdiction." (p. '10).

He referred to number of authorities which· held that ntlther the Dominion nor the Province can delegate to each other powers they do not expressly possess under the British North Amerio> Act. He

(') [1918} 57 Can. S.C.R. 150.

(') (1943} S.C.R. I-Canada.

lSl

JCESAVANANDA "· KE11ALA (Sikri, C.J.)

distinguished cases like Hodge v .. The Queen,(') In Re Gray,(') Shannon v. Lower Mainland Dairy Products Board,(') and Chemicals Reference(') by observing :

"In all these cases of delegation, the authority delegated its powers to subordinate Boards for the purpose of carrying legislative enact-. ments into operation." (p. 43)

Justice Rand emphasized that delegation implies subordination and subordination implies duty.

Justice Fauteux, as he then was, first referred to the following obscrvatiooo of Lord Atkin in Attorney General for Canada v. Attorney General for Ontario(') :

"No one can doubt that this distribution (of powers) is one of the most essential conditions, probably the most essential condition, in the inter-provincial compact to which the British North America Act gives effect.''

He then observed :

"In the result, each of the provinces, enjoying up to the. time of the union, within their respective areas, and quoad one another, an independent, exclusive and over...all legislative authority, sur-render to and charged the Parliament of Canada with the respon-sibility and authotity to make laws with respect to what was then considered as matters of common interest to the whole country and retained and undertook to be charged with the responsibility and authority to make laws with respect to local matters in their respective sections. This is the system of government by wlii~h the Fathers of Confederation intended-and their intentions were implemented in the Act-to "protect the diversified interests of the several provinces and secure the efficiency, harmony and per-manency in the working of the union." (p. 56).

In the case just referred to, the Supreme Court of Canada implied limitation on the power of Parliament and the Legislatures of the Provinces to delegate legislative power to the other although there was no express limitation, in terms, in ss. 91 and 92 of the Canadian Corutitution. This case also brings out the point that delegation of law makng power can only be to subordinate body. Apply the ratio of this decision to the present case, it cannot be said that the

( [1]) (1883) 9, App. Cas. 117.

( [2 ]) (57) Can. S.C.R. 150.

( [8]) [1938] A.C. 708.

(') [ 11143 J S.C.l. 1-c.n.da . .

(") [1937] A.C. 326, 35L

State Legislatures or Parliament acting in its ordinary legislative capa-city, are subordinate bodies.to Parliament acting under art. 368 of the Constitution. Therefore it is impermissible for Parliament under art. 368 to delegate its functions of amending the constitution to either the State legislatures or to its ordinary legislative capacity. But I will refer to this aspect in greater detail later when I refer to the case In re the Initiative and Re,ferendum Act.

In Canada some of the Judges have implied that freedom of speech and freedom of the Press cannot be abrogated by Parliament or Provincial legislatures from the words in the Preamble to the Canadian Constitution i.e. "with Constitution similar in principle to that of the United Kingdom." Some of these observations are :

"Although it is not necessarv, of course, to determine this ques-tion for the purposes of the present appeal, the Canadian Consti-tution being declared to be similar in principle to that of the United Kingdom, I am also of opinion that as our constitutional Act now stands, Parliament itself could not abrogate this right of discussion and debate." (Per Abbot ). Switzmen v. Elbling-1957 -Can. S.C. 285 at 328).

"I conclude further that the opening paragraph of the preamble to the B.N.A. Act 1867 which provided for 'Constitution simi-.•ar in principle to that of the Uni,ted Kingdom', thereby adopted the >ame constitutional princ' pies and hence S. 1025A is contrary to the Canadian Constitution, and beyond the competence of Parliament or ~ny provincial legislature to enact so long as our Constitution remains in \ts present from of constitutional democracy." (Per O'Halloran J.A.-Rex v. Hess-1949 4 D.L.R. 199 at 208).

·'in Re Alberta Legislation, (1938) 2 D.L.R. 81, S.C.R. 100, Sir Lyman P. Dutt C.J.C. deals with this matter. The proposed legis-lation did not attempt to prevtnt discussiofl of affairs in news-papers but rather to compel the publication of statements as to the true and exact objects of Governmental policy and as to the difficulties of achieving them. Quoting the words of Lord Wright M. R. in fames v. Commonwealth of Aust1<::1/ia, (1936) A.C. 578 at p. 627 freedom of discussion means " 'freedom governed by law'" he says at p. 107 D.L.R., p. 133 S.C.R. : "It is axiomatic that the practice of this right of free public discussion of public affairs, notwithstanding its incidental mischiefs, is the breath of life for parliamentary mstitutions."

He deduces authority to protect it from the principle that the "powers 1'eq11isit~ for the preservation of the con.rtitution arise by necessary implication of the Confederation Act as whole." (Per Rand J.-Samur v. City of Quebec-(1953) 4 D.L.R. 641 at 671). (Emphasis supplied).

It is, however, noteworthy that the Solicitor-General appearing on

behalf of the Union of India conceded that implications can arise from Constitution, but said that no implication necessarily arises out of the provisions of Art. 368.

I may now refer to another decision of the Judicial Committee in

Iiya11gc's case,(') which was relied on by Mr. Secrvai to show that an .uncndment of the constitution cannot be held to be void on the ground of repugnancy to some vague ground of inconsistency with the preamble.

The Parliament of Ceylon effected various modifications of the Criminal Procedure Code by the Criminal Law (Special Provisions) Act, 1962. The appellants were convicted by the Supreme Court of Ceylon for various offences like conspiring to wage war against the · Queen, etc.

The two relevant arguments were :

"The first is that the Ceylon Parliament is limited by an inability to pass legislation which is contrary to fundamental principles of justice. The 1962 Acts, it is said, arc contrary to such princi-ples in that they not only arc directed against individuals but also Cl' post facro create crimes and punishment, and dcstroy-fair safeguards by which those individuals would otherwise be protected.

The appellants' second coutcntion is that the 1962 Acts offen-ded against the Constitution in that they .amounted to direction to convict the appellants or to legislative plan to secure the con-viction and severe punishment of the appellants and thus consti-tuted an unjustifiable assumption of judicial power by the legisla-ture, or an interference with judicial power, which is outside the legislature's competence and is inconsistent with the severance of power between legislature, executive, and judiciary which the Constitution ordains." (p. 283).

Mr. Sccrvai relics on the answer to the first contention. Accor-

ding to Mr. Sccrvai, the answer shows that constituent.power is diffe-rent from, legislative power and. when constituent power is given, it is exhaustive leaving .nothing uncovered.

The Judicial Committee after referring to passages from ''The Sovereignty of the British Dominions" by Prof. Keith, and "The St~tutcs of Westminster and Dominion Status" by K. C. Whcarc, observed. at page 284 : ·

· ·"Their Lordships cannot accept the view that the lcgislatiirc while' rcmoying the ftttcr of.repugnance to English law, left in Cl'istcncc-

fetter of repugnance to some vague unspecified Jaw of natural justice. The terms of the Colonial Laws Validity Act and especially the words "but not otherwise" in section 2 make it clear that Parliament was intending to deal with the whole question of repugnancy ...... "

The Judicial Committee referred to the Ceylon Independence Act, 1947, and .. the Legislative Power of Cey Ion and observed :

"These liberating provisions thus incorporated and enlarged the enabling terms of the Act of 1865, and it is clear that the joint effect of the Order in Council of 1946 and the Acb of 1947 was intended to and did have the result of giving to the Ceylon Parlia-ment the full legislative powers of sovereign independent State (see lbralcbbe \'. The Q11een-(l%4) A.C. 900)"

Mr. Seervai sought to argue from this that similarly the amending power of Parliament under Art. 368 has no limitations and cannot be limited by some vague doctrine of repugnancy to natural and inaliena-ble rights and the Preambk. We are unable to appreciate that any analogy exists between Mr. Palkhivala's argument and the argu-ment of Mr. Gratien. Mr. Palkhivala relies on the Preamble and the scheme of the Constitution to interpret Art. 368 and limit its operation within the contours of the Preamble. The Preamble of the Constitution of India does not seem to prescribe any vague doctrines like the law of natural justice even if the latter, contrary to many decisions of our Court, be considered vague.

The case, however, furnishes another instance where implied limi-tations were inferred. After referring to the provisions dealing with "judicature" and the Judges, the Board observed :

''These provisions manifest an intention to secure in the judiciary freedom from political, legislative and executive control. They arc wholly appropria.te in Constitution which intends that judicial power shall be vested only in the judicature. They would be inappropriate in Constitution by which it was intended that judicial power should be shared by the executive or the legislature. The Constitution's silence as to the vesting of judicial power is consistent with its remaining, where it had lain for more than century, in the hands of the judicature. It is not consistent with any intention that hence-forth it should pass to or be shared by, the executive or the legislature."

The Judicial Committee was of the view 'that there "exists . separate power in the judicature which under the Constitution as it stands cannot be usurped or infringed by the executive or the legisla-ture." The Judicial Committee cut down the plain words of scc::ion 29(1) thus: '

"Section 29Cl) of the Constitution says:

"Subject to the provisions of this Order. Parliament shall have power to make laws foi the peace order and good government of the Island". These words have habitualJly been construed in their fullest scope. Section 29(4) provides that Parliament may amend the Constitution on two-thirds majority with certificate of the Speaker. Their Lordships however cannot read the words of section 29(1) as entitling Parliament to pass legislation which usurps the judicial power of the judicature-e.g., by passing an Act of attainder against some person or instructing judge to bring in verdict of guilty against someone who is being tried-if in law such usurpation would otherwise be contrary to the Constitution." (p. 289).

In conclusion the Judicial Committee held that there was inter-ference with the functions of the judiciary and it was not only the likely but the intended effect of the impugned enactments, and that was fatal to their validity.

Their Lordships uttered warning which must always be borne in dealing with constitutional cases : "what is done once, if it be allowed, may be done again and in lesser crisis and less serious cir-cumstances. And thus judicial power may be eroded. Such an erosion is contrary to the clear intention of the Constitution." This was in reply to the argument that the Legislature had no such general inten-tion to absorb judicial powers and it had pascd the legislation because it was beset by grave situatipn and it took grave measures to deal with it, thinking, one must presume, that it had power 10 do so and was acting .rightly. According to their Lordships that consideration was irrelevant and gave no validity to acts which infringed the Constitution.

McCau•ley \', The King(') was strongly relied on by Mr. Seervai. The ca~e was on appeal from the decision of the High Court of Australia, reported in 26 C.L.R. 9. Apart from the questions of interpretation of sub-s. (6), s. 6, of the Industrial Arbitration Act, 1916 and the construction of the Commission which was issued, the main question that was debated before the High Court and the Board was whether the Legislature of Queensland could amend provision of the Constitution oi Queensland without enacting legislative enactmco•

directly .amending the Constitution. The respondents before the· Board had contended as follows : ·

"But an alteration. to be valid must be made. py direct legislative .enactment. The Constitution can be altered· but cannot be dis-regarded. So long as it subsists it is the test of the validity of legislation. The High Court of Australia so decided in Cooper'; case('). (p. 695).

The appellants, on the other hand, had . contei;ided that "the Legislature of Queensland has power, by ordinary enactment passed by both houses and assented to by the Governor in the name of the Crown, to alter the constitution of Queensland, including the judicial institutions of the State, and the tenure of the judges ........ All the. laws applying to Queensland which it is competent to the Queensland Legislature to alter can be altered in the same manner by ordinary enactment."

There was ditference of opinion in the High Court. Grit!ith, C.J.,

was of the opinion that the Parliament of Queensland could not merely by enacting law inconsistent with the Constitution Act of 1867 overrule its provisions, although it might be proper formality pass. an Act which expressly altered or repealed it. Isaacs and Rich JJ., with whom the Board found themselves in almost complete agreement, held to the contrary. The F.oarJ, in dealing with the question, first. refer-red to the "distinction between constitutions the terms of which may be modified or repealled with no other formality than is necessary in the case of other legislation, and constitutions which can only be altered with some special formality, and in some cases by spec(ally convened assembly." ·

Then Lord Birkenhead, L.C., observed at page 704 :

"Many different terms have been employed in the .text-boiiks to distinguish these two constrasted forms - of constitution. Their special qualities may perhaps be exhibited as clearly by ca.lling the one controlled and the other an uncontrolled constitution as by any other nomenclature. Nor is constitution debarred from being reckoned as an uncontrolled ·constitution because it is not, like the British constitution, constituted by historic development but finds its genesis in an originating document which may. Con-tain some conditions which cannot be altered except by the pawci which gave it birth: It. is of the gr":3test miportance ~· notice that . . where the comtitutmn 1• uncontrolled the q>nseqµences .. of its. frci:-. dom admit of no qnalification whatever. The diictrine,1is.91Tdcd to ey~ry .proper consequer1ce with ~ca~ and inel'Ol'.Jlblc.pr,cdSiOft, Thus when one of the learned Judges m the Court . ' below said . ?

(') [ 1907] 4 C.L.R. 130'

that, according to the appellant, the constitution could be ignored as if it were Dog Act, he was in effecn merely expressing his opinion that the constitution was, in fact, controlled. If it were uncontrolled, it would be an elementary commonplace that in the eye of the law th~ legislative document or documents which defined it occupied precisely the same position as Dog Act or any other Act, however humble its subject-matter."

Then, the Judicial Committee proceeded to deal with the Comli-tution oi Queensland and held that it was an uncontrolled constitu-tion. Later, their Lordships observed :

"It was not the policy of the Imperial Legislature, at any relevant period, to shackle or control in the manner suggested the legisla-tive powen of the nascent Australian Legislatures. Consistently with the genius of the British people what was given was given completely, and unequivocally, in the belief fully justified by the event, that these young communities would successfully work out their own constitutional salvation." (p. 706).

Mr. Seervai sought to deduce the following propositions from thiJ case:

Firstly-(!) Unless there is special procedure prescribed 'foe amending any part of the Constitution, the constitution was un-controlled and could be amended by an Act in the manner pres-cribed for enacting ordinary laws, and therefore, subsequent law inconsistent with the Constitul!on would f>rO tnto repeal the Constitution ;

Seeondly-(2) constitution largely or generally uncontrolled may contain one or more provisions which prescribe different procedure for amending them than is prescribed for amending an ordinary law, in which case an ordinary law cannot amend them and the procedure must be strictly followed if the amendment is to be effected ;

!hird~(3) Implications oc limitation of power ought not be imported from grneral co11cepts but only from express or neces-sarily implied limitations (i.e. implied limitation without which constitution cannot be worked) ; and

Fourtlily-(4) The British Parliament in granting the colonial legislatures power of legislation as far back as 1865-s. 2~&efuscd to put limitations of vague character, like general principles of. law, but limited those limitations to objective standards like statutes and provisions of any Act of. Parliament or order or regu-lation made under the Aro of. Parliament.• · lt-!6S.C.1Ddl1/73

I agree that the first and the second propositions are deducible from McCawley's case but I am unable_ to agree with the learned counsel that the third proposition enunciated by him emerges from the case. The only implied limitation which was urged by the learned counsel for the respondents was that the Queensland legislature should first .directly amend the Constitution and then pass an act which would <Jtherwise have been inconsistent if the constitution had not been amen-,ded. It appears from the judgment of Isaac, J., and the Board that two South Australia Judges had earlier held that the legislation must be "with the object of altering the constitution of the legislature". Lord :Selborne, when Sir Roundell Palmer, and Sir Robert Collier expressed dissent from their view and recommended the enactment of statute like the Colonial Laws Validity Act, 1865.

The fourth proposition states fact. The fact that British Parlia-ment in 1865 refused to put so ~ailed vague limitations does not assist us in deciding whether there cannot be implied limitations on the .amending power under Art. 368.

I shall examine little later more cases in which limitations on lawmaking power have been implied both in Australia, U.S.A., and in Canada. McCawley's case is authority only for the proposition that if the constitution is uncontrolled then it is not necessary for the .legislature to pass an act labelling it as an amendment of the constitu-tion; it can amend the constitution like any other act.

Attorney-General for New South Wales v. Trethowan(') was con-cerned really with the interpretation of s. 5 of the Colonial Laws Validity Act, 1865, and its impact on the powers of the legislature of the New South Wales. The Constitution Act, 1902, as amended in 1929, had inserted s. 7 A, the relevant part of which reads as follows :

"7A.-(1) The Legislative Council shall not be abolished nor, subject to the provisions of sub-s. 6 of this section, shall its consti-tution or powers be altered except in the manner provided in this section. (2) Bill for any purpose within sub-s. 1 of ~his section shall not be presented to the Governor for His Majesty's assent until the Bill has been approved by the electors in accordance with this section. (5) If majority of the electors voting approve the Bill, it shall be presented to the Governor for His Majesty's assent. (6) The provisions of this section shall extend to any Bill for the repeal or amendment of this section, but shall not apply to any Bill for the repeal or amendment of any of the.following sections of this Act, namely, ss. 13, 14, 15, 18, 19, 20, 21 and 22."

( [1 ]) [1932] A.C. 526.

Towards the end of 1930 two bills ~ passed by both Housca of the New South Wales lcgis1ature. The first Bill enacted that s. 7A above referred to was repealed, and the second Bill enacted by clause 2, sub-s. I. "The Legislative Council of New South Wales is abolished."

The contentions advanced before the Judicial Committee were :

"The appellants urge: (1) That the King, with the advice and consent of the Legislative Council and the ·Legislative Assembly, had full power to enact Bill repealing s. 7 A.

(2) That sub-s. 6 of s. 7 of the Constitution Act is void, because :

(a) The New South Wales Legislature has no power to shaclcle or control its successors, the New South Wales constitution being in substance an uncontrolled "cons4tution"; (b) It is repugnant to s. 4 of the Constitution Statute of 1855 ; (c) It is repugnant to s. 5 of the Colonial Laws Validity Act, 1865.

For the respondents it was contended: (1) That s. 7A was valid amendment of the constitution of New South Wales, validly enacted in the manner prescribed, and \\'.as legally binding in New South Wales.

(2) That the legislature of New South Wales was given by Imperial statutes plenary power to alter the constitution, powers and procedure of such legislature.

(3) That when once the legislature had altered either the

constinition or powers and procedure, then the constitution and powers and procedure as they previously existed ceased to exist, and were replaced by the new constitution and powers.

( 4) That the only possible limitations of this plenary power

were : (a) it must be exercised according to the manner and form prescribed by any Imperial or colonial law, and (b) the legisla-ture muat continue representative legislature according to the definition of the Colonial Laws Validity Act, 1865.

(5) That the addition of s. 1A to the Constitution had the ' effect of : , (a) making the legislative .body consist thereafrer of the King, the Legislative Council, the. Assembly and the people for the purpose of the constitutional enactments. therein described, ox (b) imposing i manner and form of legislation in reference to :these cbnstitutional enactments ·:which 'thereafter became binding on the legislature by virtue of the colorilal Laws Validity Act, 1865, until. repealed in the manner and mode .prescribed.

('6) lfhat the pawer of alttring the constitution ·conferred by

1, 4 of the Constitution Stattrt:e; ·1855, unmt be read subject to the

Colonial Laws Validity Act, 1865, and that in particular the limita-tion as to manner and form prescribed by the 1865 Act must be governed by subsequent amendments to the constitution, whether purporting to be made in the earlier Act or not." (p. 537).

The I udicial Committee considered the meaning and effect of s. 5 of the Act of 1865, read in conjunction with s. 4 of the Constitution Statute. It is necessary to bear in mind the relevant part of s. 5 which reads as follows :

"Section 5. Every colonial legislature. . . . . . and every representa-tive legislature shall, in respect to the colony under its jurisdiction, have, and be deemed at all times to have had, full power to make laws respecting the constitution, powers, and procedure of such legislature ; provided that such laws shall have been passed in such manner and form as may from time to ,time be required by any Act of Parliament, letters patent, Order in Council, or colonial law, for the time being in force in the said colony."

Tbe Judicial Committee interpreted sec. 5 as follows :

"Reading the section as whole, it gives to the legislatures of New South Wales certain powers, subject to this, that in respect of certain laws they can only become effectual provided they have been passed in such manner and form as may from time to time be required by any Act still on the statute book. Beyond that, the words "maimer and form" arc amply wide enough to cover an enactment providing that Bill is to be submitted to the electors and ,that unless and until majority of the electors voting approve the Bill it shall not be presented to the Governor for His Majesty's assent"

The Judicial Committee first raised the qucstio~ : "could that Bill, repealing Bill, after its passage through both chambers, be lawfully 'presented for the Royal assent without having first received the appro-val of the clcctors in the prescribed manner I", and answered it thus :

"In their Lordships' opinion, the Bill could not lawfully be so presented. The proviso in ,the second sentence of s. 5 of the Act of 1865 states condition which must be fulfilled before the legisla-ture can validly exercise its power to make the kind of. laws which arc referred to in that sentence. In order that s. 7 may be repealed (in other words, in order that that particular law "respecting the constitution, powers and procedure" of the legisla-ture may be validly made) the law for that purpose most have been passed in the manner required by s. 7 A, colonial law for the rime being in force in New Sooth Wales."

This case has no direct relevance to any of the points raised before us. There is no doubt that in the case before us, the impugned consti-tutional amendments have been passed according to the form and man-11cr prescribed by art. 368 of our Constitution. It is, however, note-worthy that in contention No. (4), mentioned above, it was urged that notwithstanding the plenary powers conferred on the Legislature possible limitation was th•t the legislature must continue representa-tive legislature according to th~ definition of the Colonial Laws Validity Act 1865. This is another illustr,ation . of limitation implied on amending power.

I may also refer to some of the ins.tances of implied limitations which have been judicially accepted in the United States; It would suffice if I refer to Cooley on Constitutional Limitations and Constitution of the United States of America edited by Corwin (1952).

After mentioning express limitations, imposed by the Constitution upon the Federal power to tax, Cooley on 'Constitutional Limitations' (page 989) states :

" ...... but there are some others which are implied, and whicla under the complex system of American government have the effect to exempt some subjects otherwise taxable from the scope and reach, according to circumstances, of either the Feclcral power to tax or the power of the several States. One 'of the implied limitations is that which precludes the States from taxing the agencies whereby the general government performs its functions. The reason_ is that, if they possessed this authority, it would be within their power to impose taxation to an extent that might cripple, if not wholly defeat, the operations of the national authority within its proper and constitutional sphere of action."

Then he cites the passage from the Chief Justice Marshall in McC111/ock v. Maryland.(')

In "Constitution by the United States of America" by Corwin (1952)-page 728-729 it is stated :

"Five years after the decision in McCullock v. Maryland that State may not tax an instrumentality of the Federal Government, the Court was asked tQ and did re-examine the entire question in Osborn v. Bank of the United States. In that case counsel for the State of Ohio, whose attempt to tax the Bank was challenged, put forward the arguments of great importance. In the first place it was "contended, that, admitting Congress to possess the

SUPREME COUU REPOR1S [ 1973} Supp. S.C.L

power, this exemption ought to have been expressly assented in the

act of incorporation ; and not being expressed, ought not to be implied by the Court." To which Marshall replied that: "It is no unusual thing for an act of Congress to imply, without expres-sing, this very exemption from state control, which is said to be so objectionable in this instance. Secondly the appellants relied greatly on the distinction between the bank and the public insti-tutions, such as the mint or the post-office. The agents in those olliccs arc, it is said, officers of Government, • • • Not so the directors of the bank,. The connection of the government with the bank, is likened to that with contractors." Marshall accepted thiJ analogy, but not to the advantage of the appellants. He simply indicated that all contractors who dealt with the Government wercr entitled to immunity from taxation upon such transactions. Thill not only was the decision of McCullock v. Mary/anti reaffirmed but the foundation was laid for the vast expansion of the principle of immunity that was to follow in the succeeding decades."

We need not examine the exact extent of the doctrine at the present day in the United States because the only purpose in citing these instances is to refute the argument of the respondents that there can-JIOt be anything like implied limitations.

The position is given at p. 731, as it existed in 1952, when the book was written. Corwin sums up the position broadly at p. 736 :

"Broadly speaking, the immunity which remains is limited to activities of the Government itself, and to that which is explicitly created by statute, e.g. that granted to federal securities and to fiscal institutions chartered by Congress. But the term, activities, will be broadly construed."

Regarding the taxation of States, Cooley says at pp. 'R5-'RJ :

"If the States cannot tax the means by which the national govern-ment performs its functions, neither, on the other hand and for the same reasons, can the latter tax the agencies of the State govern-ments. "The same supreme power which established the depart-ments of the general government determined that the local govern-ments should also exist for their own purposes, and made it impos-sible to protect the people in their common interest without them. Each of these several agencies is confined to its own sphere, and all are strictly S11bdrdinate to the constitution which limits them;· .and independent of other agencies, except as thereby made dcpenqcnt. There is nothing in the Conuitution of the United States which can be made to admit of any interference by Congress with the secure existence of any State authority within its la'wful baunds.

And any such interference by the indirect means of taxation is quite as much beyond the power of the national legislature as i£ the intederence were direct and extreme. It has, therefore, been held that the law of Congress requiring judicial process to be stamped could not constitutionally be applied to the process of the State courts.; since otherwise Congrm might impose such restrictions upon the State courts as would put and end to their effective action, and be equivalent practically to abolishing them altogether. And simiiar ruling has been made in other analogous cases. But "the tx~mption of State agencies and instrumentalities from national taxation is limited to those which arc of strictly governmental character, and does not extend to those which are used by the State in the carrying on of an ordinary private business." "

I may mention that what has been implied in the United ,States i~ the subject-matter of express provisions under our Constitution (see arts. 285, 287, 288 and 289).

It was urged before us that none of these cases dealt with implied limitations on the amending power. It seems to me that four cases are directly in point. I have referred already to :

1. The Bribery Commissioner v. Pedrick Ranasinghe(')

2. Mangal Singh v. Union of lndia([2])

3. Taylor v. The Attorney-General of Queensland(') and I will be discussing shortly In re The Initiative and Referendum Act(').

What is the necessary imprication from all the provisions of the Constitution ?

It seems fo me that reading the Preamble, the fundamental im-portance of the freedom of the individual, indeed its inalienability, and the importance of the economic, ·social .and political justice men-tioned in the Preamble, the importance of directive principles, the non-inclusion in art. 368 of provisions like arts. 52, 53 and various other provisions to which reference has already been made an irresis-tible conclusion emerges that it was not the intention to use the word "amendment" in the widest sense.

( [1]) [1965] Af:.. 172.

( [2]) [1967] 3 S.C.R. 109-112.

(') 23 C.L.R. 457.

(') (1919) Af:.. 935.

SUPUMK COUJ.T llPOITS ( 1973) Supp. [0]S.C.L

· It was the common understanding that fundamental rights would remain in substance as they are and they would not be amended ?'1t of existence. It seems also to have been common understan~mg that the fundamental features of the Constitution, namely, sccul~1s'!1, democracy and the freedom of the individual would always· subsist m the welfare state.

In view of the above reasons, necessary implication arises that there arc implied limitations on the power of Parliament that the expression "amendment of this Constitution" has consequently limit-ed meaning in oiir Constitution and not the meaning suggested by the respondents.

This conclusion is reinforced if I consider the consequences of the contentions of both sides. The respondents. who appeal fervently to democratic principles, urge that there is Iio limit to the' powers of Par-liament to amend the Constitution. Art. 368 .can itself .be amended to make the Constitution completely flexible or extremely rigid and un-amendablc. If this is so, political party with tw<>-third majority in Parliament for few years coula so amend the Constitution as to debar any other party from functioning, establish totalitarianism, enslave the people, and after having effected these purposes make the Constitution unamendable or extremely rigid. This would no doubt invite extra-constitutional revolution. Therefore, the appeal by the respondents to democratic princip!Cs and the necessity of having absi> lute amending power to prevent revolution to buttress their conten-tion is rather fruitless, because if their contention is accepted the very democratic principles, which they appeal to, would disappear and revolution would also become possibility.

However, if the me~ning I have suggested is accepted sociaL and economic revolution can gradually take place while preserving the freedom and dignity of every citizen.

For the aforesaid reasons, I am driven to the conclusion tl1at the expression "amendment of this Constitution" in art. 368 means any addition or change in any of the provisions of the Constitiution within the broad contours of the Preamble and the Constitution to carry out the objectives in the Preamble and the Directive Principles. Applied to fundamental rights, 'it would mean that. while fundamental rights cannot be abrogated reasonable abridgements of fundamental rights can be effected in the public interest.

It is of course for Parliiament to decide whether. an ~ent is •ecessary. The Courts will not be concerned with wls!1om. of the amendment.

this meaning is g1vcn it would enable Parliament to adjust fundamental rights in order to secure what the Directive Principles direct to be accomplished, while maintaining the freedom and dignity every citizen.

It is urged by Mr. Seervai that we would be laying down very unsatisfactorv test which it would be diflicult for the Parliament to comprehcnci' and follow. He said that the constitution-makers had <liscarded the concept of "due · process" in order to have something certain, and they substituted tho words "by authority of law" in art. 21. I am unable to sec what bearing the dropping of the words "due process" has on this question. The Constitution itsel:f has used words' like "reasonable restrictions" in art. 19 which do not bear an ex;;// meaning, and which cannot be defined with precision to fin in all cases that may come before the courts; it would depend upon the facts of each case whether the restrictions imposed by the Legislature arc reasonable or not. Further, as Lord Reid observed in Ridge v. Baldwin(') :

"In modern times opinions have sometimes been expressed to the effect that natural justice is so vague as to be practically meaning-less. But I would regard these as tainted by the perennial fallacy that because something cannot be cut and dried or nicely weighed or measured therefore it does not exist. The idea of negligence is equally insusceptible of exact definition, but what reasonable man would regard as fair procedure in particular circumstances and what he would regai-d as negligence in particular circumstances are equally capable of serving as tests in law, and natural justice as it has been interpreted in the courts is much more definite than that." (emphasis supplied).

It seems to. me that the concept of amendment within the contours the Preamble and the Constitution cannot be said to be vague and unsatisfactory idea which Parliamentarians and the public would not be able to understand.

The learned Attorney-General said that every provision of the Con-stitution is essentiah; otherwise it would not have. been put in the Constitution. This is true. But this docs not place every provision the Constitution in the same position. The true position is mat every provision of the Constitution can be amended provided in die result the basic foundation and structure of the constitution remains the same. The basic structure may be said to consist of the following features : -.

{l) Supremacy of. the Constitution;

(2) Republican and Democratic form of Government.

{ [1]) (1964] A.C. 40; ~.

(3) Secular character of the Constitution;

( 4) Separation of powers between the Legislature, the executive· and the judiciary;

(5) Federal character of the Constitution.

The above structure is built on the basic foundation, i.e., the dignity and freedom of the individual. This is of supreme importance. This cannot by any form of amendment be destroyed.

The above foundation and the above basic features are easily di$-cernible not only from the preamble but the whole scheme of the Constitution, which I have already discussed.

In connection with the question of abrogation of fundamental rights, Mr. Seervai boldl'y asserted .that there was no such thing as natural or ina!'ienable right$ because the scheme of Part III itself shows that non-citizens have not been given all the fundamental freedoms; for example, art. 19 speaks of only citizens. He says that if there were natural rights, why is it that they were not conferred on non-citizens. The answer seems to be that they arc natural rights but our country does not think it expedient to confer these fundamental rights, men-tioned in art. 19, on non-citizons. Other rights have been conferred on non-citizens because the constitution-makers thought that it would not be detrimental to the interests of the country to do so.He then said that even as far as citizens arc concerned, there is power to modify those rights under art. 33 of the Constitution, which enables Parliament to modify rights in their application to the Armed Forces. This power has been reserved in order to maintain discipline among the armed forces, which is essential for the security of the country. But it does not mean that the rights cease to be natural or human rights. He then said that similarly art. 34 restricts fundamental rights while martial law is in force in any area. This again is case where the security of the country is the main consideration. Citizens have to undergo many restrictions in the interest of the country.

He then pointed out arts. 358 and 359 where certain rights arc suspended during Emergency. These provisions are again based on the security of the country.

He also relied on the words "rights conferred" in art. 13(2) and "enforcement of any right< conferred by this Part" to show that they were not natural or inalienable and could not have been claimed by them. There is no question of the sovereign people claiming them from an outside agency. The people acting through the Constituent

Assembliy desired that the rights mentioned in Part III sha~ be guar; anteed and therefore · Part III was enacted. In the context conferred docs not m~an that s~me superior power had gran_ted the~ right~. I~ is very much like King bestowing the title of 'His Iropcnal Ma1esty on himself. I am unable to hold that these provisions show that some rights are not natural or inalienable rights. As matter of fact, India was party to the Universal Declaration of Rights which I have already referred to and that Dedaration describes some fundamenal rights as inalienable. ·

Various decisions of this Court describe fundamental rights as 'natural rights' or 'human rights'. Some of these decisions arc extract-ed belpw.

"There can be no doubt that the people of India have in exercise of their sovereign will as expressed in the Preamble, adopted the democratic ideal, which assures to the citizen the dignity of the individual and other cherished human values as means to the full evolution and expression of his personality, and in delegating to the legislature, the executive and the judiciary their respective powers in the Constitution, reserved to themselves certain funda-mental rights so-ca/Jed, I apprehend, because they have been retain-ed by the people and made paramount to the delegated powers, as in the American Model." (Per Patanjali Sastri, J., in Gopalan v. State of Madras(')) (emphasis supplied).

(ii) "That ~rticle (Article 19) enumerates certain freedoms under the caption "right to freedom" and deals with those great and basic rights which are recognised and guaranteed as the natural rights inherent m the status of citizen of free country." (Per Patan-jali Sastri, C. J., in State of West Bengal v. Subodh Gopal Bose(2)) (emphasis s~pplied).

"I have no doubt that the framers of our Constitution drew the same distinction and classed the natural right or capacity of citi-z~n 'to acquire, hold and dispose of property' with other natural rights and freedoms inherent in the status of free citizen. and cmOO?ied them in article 19(1) ........ (ibid, p. 597)" (emphasis supplied).

( [1]) [1950] S.C.R. 88; 198-199.

( [2]) [1954] S.C.R. 587; 596.

"For all these reasons, I am of opinion that under the scheme of the Constitut'ion, all those br<>ad and basic freedams inherent in the stat#! of citizen as free man are embodied and protected from invasion by the State under clause (1) of article 19 ......... " (ibid p. 600) (emphasis supplied).

(iii) "The people, however, regard certain rights as paramount, because they embrace liberty of action to the individual in matters of private life, social intercourse and share m the Government of the country and other spheres. The people who vested the three limbs of Government with their power and authority, at the same time kept back these rights of citizens and also sometime1 of non-.citizens, and made them inviolable except under certain conditions. The rights thus kept back are placed in Part III of the Constitu-tion, which is headed 'Fundamental Rights', and the conditions under which these rights can be abridged are also indicated in that Part." (Per Hidayatullah J., in Ujjambai v. State of U. P.(')) .(emphasi.! supplied).

The High Court of Allahabad sas described them as follows :

-(iv) " ........ man ha,, certain natural or inalienable rights and that it is the function of the State, in order that human liberty might be preserved and human personality developed, to give re-cognition and free play to those rights .......... "

"Suffice it to say that they represent trend in the democratic thought of our age." (Motilal v. State of VJ'.(')) (emphasis supplied).

Mr. Seervai relied on the observations of S. K. Das, J., in Basheshar Nath v. CJ.T(') :

"I am of the view that the doctrine of 'natural rights' affords noth-ing but foundation of shifting sand for building up thesis that the doctrine of waiver does not apply to the rights guaranteed in Part III of our Constitution."

I must point out that the learned Judge was expressing the mino-rity opinion that there could be waiver of fundamental rights in cer-tain circumstances. Das, C.J., and Kapur, J., held that there could be no waiver of fundamental rights founded on art. 14 of the Constitution, while Bhagwati and Subba Rao, JJ. held that there could be no waiver not only of fungamental rights enshrined in art. 14 but also of any other fundamental rights guaranteed by Part III of the Constitution.

(') (1963] I S.C.R. 778; 926-7.

( [2]) J.L.R. [1951] I All. 269; 387-8.

(') [1959] Supp. (!) S.C.R. 528; 605.

Article 14 has been described variously as follows :

{l) "as the basic principle of republicanism" (per Patanjali Sastri C. J. in State of West Bengal v. Anwar Ali Sarlf..!Ir(') )

(2) "as principle of republicanism" (per Mahajan, J., Ibid. p. 313)

(3) "as founded on sound public policy recognised and' valued in all civilized States" (per Das C. J., : Basheshar Nath v. C. I. T.('))

( 4) "as necessary corollary to the high concept of the rule of law" (per Subba Rao, C.J., in S11twant Singh v. Passport Officer('))

(5) "as vital principle of republicat' institutions" (American , Jurisprudence, Vol. 16, 2d. p. 731, art. 391)

How would this test be operative vis-a-vis the constitutional amend-ments made hithertp ? It seems to me that the amendments . made by the Constitution (First Amendment) Act, 1951, in arts. 15 and 19, and insertion of art. 31A (apart from the question whether there was delegation of the power to amend the Constitution, and apart from the question as to abrogation), and the amendment made by the Constitution (Fourth Amendment) Act in art. 31(2), would be within the amending power of Parliament under art. 368.Reference may be made to Mohd. Maqbool Damnoo ·v. State of /ammu and Kashmir(') where this Court repelled the argument of the learned counsel that the amendments made to ss. 26 and 27 of the Constitution of Jammu and Kashmir were bad because they destroyed the structure of the Constitution. The arguments of the learned counsel was that fundamentals of the Jammu and Kashmir State Con-stitution had been destroyed. This argument was refuted in the fol-lowing words :

"But the passage cited by him can hardly be av>;iled. of by ~im for the reason that the amendment impugned by him, m the hght of what we have aheady •lated about the nature of the explanation to Article 370 of our Constitution, dnes not bring about any altera-tion either in the framework or the fundamentals of .the J~u and Kashmir Constitution. The State Governor s.ttll OOl_l~nues to be the head of the Government aided by council of mm1sters

(') [1952] S.C.R. 284, 293.

(') [1959] S11pp. (I) s.c.R. 528, 551.

(') [1967] 3 S.c.R. 525; 542.

(') [1972];1 s.c.c. 536; 546.

and the only change affected is in his designation and the mode of his appointment. Ir is not as if the State Government, by such change, is made irresponsible to the State Legislature, or its funda-mental character as responsible Government is altered. Just as change in the designation of the head of that Government was earlier brought about by the introduction of the office of Sadar-i-Riyasat, so too change had been brought about in his designa, tion from that of Sadar-i-Riyasat to the Governor. That was neces-sitated by reason of the Governor having been substituted in place of Sadar-i-Riyasat. There is no question of such change being -0ne in the character of that Government from democratic to non-democratic system." '

Before parting with this topic I may deal with some other argu-ments addressed to us. Mr. Seervai devoted considerable time in expounding principles of construction of statutes, including the Con-stitution. I do not think it is necessary to review the decisions relating to the principles of interpretation of legislative entries in art. 245 and art. 246 of the Constitution. The Federal Court and this Court in this connection have followed the principles enunciated by the Judi-cial Committee in interpreting ss. 91 and 92 of the Canadian Constitu-.tion. I have no quarrel with these propositions but I am unable to ·see that these propositions have any bearing on the interpretation of art. 368. The fact that legislative entries are given wide interpreta-tion has no relevance to the interpretation of art. 368. The second ·set of""ases referred to deal with the question whether it is legitimate to consider consequences of particular construction.

He referred to Vacher & Sons v. London Society of Compo-sitors('). This decision does not support him in the proposition that consequences of particular construction cannot be considered, for Lord Machaghten observed at p. 117 :

"Now it is "the universal rule," as Lord Nensleydale observed in Grey v. Pearson(') that in construing statutes, as in construing all other written instruments "the grammatical and crdinary" sense of the words is to be adhered to, unless that would lead to some absurdity, or some repugnance or inconsistency with the rest of the instrument, in which case the grammatical and ordinary sense of the words may be modified, so as to avoid that absurdity and inconsistency, but no further."

Then he observed at p. 118 :

"In the absence of preamble there can, I think, be only tw( cases in which it is permissible to depart from the ordinary an(

( [1 ]) [1913] A.C. 107; 117-118.

( [2]) [1857] 6 H.L.C. 61; 106.

natural sense of the words of an enactment. It must be shown either that the words taken in their natural sense lead to som~ absurdity or that there is some other clause in the body of the Acr inconsistent with, or repugnant to, the enactment in question construed in the ordinary sense of the language in which it is expressed."

Lord Atkinson observed at pp. 121-122 :

"It is no doubt well established that, in construing the words of statute susceptible of more than one meaning, it is legitimate to consider the consequences which would result from any particular construction for, as there are many things which the Legislaturr is presumed not to have intended to bring about, construction which would not lead to any one of these things should be prr-ferred to one which would lead to one or more of them. But, as Lord Halsbury laid down in Cooke v. Charles A. Vog6ler Co.('), Court of Law has nothing to do with the reasonable-ness or unreaisonablencss of provision of statute, except so far as it may help it in interpreting what the Legislature has said. 'If the language of statute be plain, admitting of only one mean-ing, the Legislature must be taken to have meant and intended what it has plainly expressed, and whatever it has in clear terms enacted must be enforced cl:iough it should lead to absurd or mis-chievous results. If the language of this sub-section be not con-trolled by some of the other provisions of the statute, it must, since it.S language is plain and unambiguous, be enforced, and your Lordship's House sitting judicially is not concerned with the question whether the policy· it embodies is wise or unwise, or whether it leads to consequences just or unjust, beneficial or mis-chievous."

The next case referred to is Banf of Toronto v.·Lambe([2]), but this .case is explained in Attorney-General for Alberta v. Attorney-General for Canada('). The Judicial Committee first observed :

"It was rightly contended on behalf of the appellant that the Supreme Court and the Board have no concern w;th the wisdom , of the Legislature whose Bill is attacked ; and it was urged that it would be dangerous precedent to allow the views of members of the Court as to the serious consequences of excessive taxation on banks to lead to conclusion that the Bill is ultra vires. Their Lordships do not agree that this argument should prevail in GS'C where the taxation in practical business sense is prohibitive.~

( [1]) [1901] A.C. 102 at p. 107.

( [2]) fl887] 12 A.C. 575; 586.

(') [1939] A.C. 117; 132; 133.

Then their Lordships made the following observations on the decision of the Judicial Committee in Bank of Toronto v. Lambe(') :

"That case seems to have occasioned difficulty in the minds of some of the learned Judges in the Supreme Court. It must, how-ever, be borne in mind that the Quebec Act in that case was attacked on two specific grounds, first, that the tax was not "taxa· tion with the Province," and secondly, that the tax was not "direct tax." It was never suggested, and there seems to ·have been no ground for suggesting, that the Act was by its effect cal-culated to encroach upon the classes of matters exclusively within the Dominion powers. Nor, on the other hand, was there any contention, however faint or tentative, that the purpose of the Act was anything other than the legitimate one of raising revcnu~ for Provincial needs. . . It was never laid down by the Board that if such use was attempted to be made of the Provincial power as materially to intcrlcre with the Dominion power, the action of the province wouW be intra vires."

This case further shows that serious consequences can be taken into consideration.

I agree with the observations of Lord Eshcr in Queen v. fudge of City of London Court,(') cited by him. These observations are:

"If the words of an Act are clear, you must follow them, even though they lead to manifest absurdity. The Court has oothing to do with the question whether the legislature has committed an absurdity. In my opinion the rule has always been this-if the words or an Act admit of two interpretations, then they arc nor clear; and if one interpretation leads to an absurdity, and the other does not, the Court will conclude that the legislature did net intend. to lead to an absurdity, and will adopt the other interpre-tation."

He then relied on the observations of Lord Greene, M.R.. in Grundt v. Great Boulder Proprietary Mines Ltd.(') :

'There is one rule, I think, which is very clear-and this brings me back to where I srartcd, the doctrine of absurdity-that al-though the absurdity or the non-absurdity oE one eonclusio? as compared with another may be of assistance, and V":f often 1~ of assistance, to the court in choosing between two possible n;i~gs of ambiguous words, it is doctrine which has to be applied with

( [1]) [1887] 12 A.C. 575; 586.

(') [1892] 1 Q.B. 273-290.

( [1]) [1948] 1 Ch. HS; 159.

great care, remembering that judges may be fallible in this ques-tion of an absurdity, and in any event must not be applied so as to result in twisting language into meaning which it cannot bear ; it is doctrine which must not be relied upon and must not be used to re-write the language in way different from that in which it was originally framed."

Earlier, he had. said at p. 158 :

" "Absurdity" I cannot help thinking, like public policy, is very unruly horse ... "

As I read Lord Greene, what he meant to say was that "absur-

dity" was an unruly horse, but it can be of assistance, and very often is of assistance, in choosing between two possible meanings of ;ambiguous words, and this is exactly the use which this Court is en-titled to make of the consequences which I have already mentioned.

Mr. Seervai referred to State of Punjab v. Ajaib Singh('). Das, J., observed:

"We are in agreement with learned counsel to this extent only that if the language of the article is plain and unambiguous and admits of only one meaning then the duty of the court is to adopt that meaning irrespective of the inconvenience that such con-struction may produce. If however two constructions are possible, then the court must adopt that which will ensure smooth and harmonious working of the Constitution and eschew the other which will lead to absurdity or give rise to practical inconvenience or make well established yr0visions of existing law nugatory."

He also referred to the £ofiowing passage in Collector of Customs, Baroda v. Digvijaysinghi Spinning & Weaving Mills Ltd.(') :

"It is one of the well established rules of construction that "if the words of statute are in themselves precise and unambiguous no more is necessary than to expound those words in their natural and ordinary sense, the words themselves in such case best declar-ing the intention of the legislature." It is eq~ally well sct_tled principle of construction that "Where altt\fnattve constructtons are equally open that alternative is to be chosen wh!ch .will be consistent with the smooth working of the system which the sta-tute purports to be regulating ; and that alternative is to be reject-ed which will introduce uncertainty." ·

( [1 ]) (1953] S.C.R. 254, 264.

( [2]) [1962] 1 S.C.R. 896-899.

12-36 S. C. lndia/73

What he urged before us, relying on the last two cases just referred to, was that if \Ve construed the y.,.•ord "amendmt:nt'' in its narrow sense, then there would be uncertainty, friction and confusion in the working of the system, and we should therefore avoid the narrow sense.

If Parliament has power to pass the impugned amendment acts .• there is no doubt that I have no nght to question the wisdom of the policy of Perliament. But if the net result of my interpretation is to prevent Parliament from abrogating the fundamental rights, and the basic features outlined above, I am unable to appreciate that any uncer-tainty, friction or confusion will nesessarily result.

He also drew our attention to the following observations of Hegde, J. in Budhan Singh v. Nabi Bux(') :

"Before considering the meaning of the word "held'', it is neces-sary to mention that it is proper to assume that the law-makers who are the representatives of the people enact laws which the society considers as honest, fair and equitable. The object of every legis-lation is to advance public welfare. In other words, as observed by Crawford in his book on Statutory Construction the entire legis-lative process is influenced by considerations of justice and reason. Justice and reasorr constitute the great general legislative intent in every piece of legislation. Consequently where the suggested con-struction operates harshly, ridiculously or in any other manner contrary to prevailing conceptions of justice and reason, in most instances, it would seem that the apparent or suggested meaning of the statute, was not the one intended by the law-makers. Jn the absence of some other indication that the harsh or ridiculous effect was actually intended by the legislature, there is little reason to believe that it represents the legislative intent."

I am unable to appreciate how these observations assist the respon-dents. If anything, these observations are against them for when I come to the question of interpretation of the 25th amendment I may well approach the interpretation keeping those observations in mind.

Both Mr. Seervai and the learned Attorney General have strongly relied on the decisions of the United States Supreme Court, Federal Courts and the State Courts on the interpretat;on of Article V of the Constitution of the Unite<l States and some State Constitution. Mr. Pal· khiwala, on the other hand, relied on some State decisions in support of his submission~.

Artide V of the Constitution of the United States differs greatly from Art. 368 of our Constitution· For facilitv of reference Article V is reproduced below : ·

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

It will be noticed that Article V provides for two steps ro be taken for amending the Constitution. The first step is proposal of an amend-ment and the second step is ratification of the proposal. The proposal can be made either by two thirds of both Houses of Congress or by convention called by the Congress on the application of the legislatures of two thirds of several States.

Congress determines which body shall ratify the proposal. It can either be the legislaturns of three fourths of the States or by conven-tions in three fourth of the States.

If proposal is made by Convention and ratified by three fourth of the States. in conventions it can hardly be doubted that it is amend-ment made by the people. Similarly if proposa~ 'is made by the Congress and ratified by conventions there cannot be any doubt that it is the people who have amended the Constitution. Proposal by Con-gress and ratification by three fourth legislatures of the States can in this context be equated with action of the people. But what is impor-tant to bear in mind is that the Congress, federal legislature, does not itself amend the Constitution.

In India,. the position is different. It is Parliament, federal legis-lature, wliich is ·given the power to amend the Constitution except in matters which are mentioned in the proviso. I may repeat that many important provisions including fundamental rights are not mentioned in the proviso. Can we say that ·an amendment made by Parliament is an amendment made by the people ? This is one of the matters that has to be borne in mind while considering the proper meaning to be given to the expression "amendment of ibis Constitution" in Art. 368 as it stood before its amendment by the 24th Amendment.

Article V of the U.S. Constitut'ion differs in one other respect from Art. 368, There are express limitations on amending power. The first, which has spent its force, was regardihg the first and fourth clauses in the ninth section of the first article and the second relates to depn-vation of State's suffrage in the Senate without its consent. Apart from the ahove broad differences in Art. V as compared to Art. 368, the Constitution of India 'is different· in many respects which has bearing on the extent of the power of Parliament to amend the Con-stitution. In brief they are : the background of the struggle for free-dom, various national aspirations outlined <luting this struggle, the national objectives as recited in the Objectives Resolution dated January 22, 1947 and the Preamble, the complex structure of the Indian nation consisting as it does of various peoples with, different religions and lan-guages and in different stages of economic development. Further the U.S. Constitution has no Directive Principles as has the Indian Consti-tution. The States in U.S. have their own Constitutions with the right to modify them consistently with the Federal Constitution. In India the States have no power to amend that part of the Indian Constitution which lays down their Constitution. They have legislative powers on certain specified subjects, the residuary power being with Parliament.

I may before referring to the decisions of the Supreme Court of the United States say that that court has hitherto not been confronted with •the question posed before us : Can Parliament in exercise of its powers under Art. 368 abrogate essential basic features and one funda-mental right after another including freedom of speech, freedom of religion, freedom of life ? The American decisions would have been of assistance if this fundamental question had arisen there and if the power to amend the Federal Constitution had beeri with two third majority of the Congress.The question before the Court in Hawke v. Sminth(') was whe-ther the States while ratifying proposals under Article V of the. Con-stitution were restricted to adopt the modes of ratification mentioned in Article V, i.e. by the legislatures or by conventions therein, as de-cided by Congress, or could they ratify proposed amendment in accordance with the referendum provisions contained in .State ~n­stitutions or statutes.

The Court held that "the determination of the method of ratifi-cation is the exercise of national power specifically granted bv ~ Constitution" and "the language of the article is plain, and admits of no doubt in its interpretation.'' The Court also held that the power

was conferred on the Congress and was limited to two methods : by action of the legislatures of three fourths of the states, or conventions in like number of states.

The Court further held that the power to ratify proposed amend-ment to the Federal Constitution had its source in the Federal Con-stitution and the act of ratification by the state derived its authority from the Federal Constitution to which the state and its people had alike assented.

This case is of no assistance to us in interpreting art. 368 of the Constitution.

I may now refer to decision of the Supreme Court Rhode Island v. Palmer('). This case was concerned with the validity of the 18th Amendment and of certain general features of the National Prohibi-tion Law known as Volstead Act. No reasons were given by the Court for the conclusions arrived at. The conclusions which may have some relevance for us are conclusion 4 and 5. The learned counsel sought to deduce the reasons for these conclusions· from the arguments ad-dressed and reported in 64 L. Ed. and for the reasons given by the learned Judge in 264 Fed. Rep. 186 but impliedly rejected by the - Supreme Court by reversing the decision.

Counsel sought to buttress this argument by citing views of learn-ed Ameriqn authors that the arguments against the validity of the 18th Amendment were brushed aside although no reasons are given. I have great respect for the judges of the Supreme Court of United States, but unless the reasons are given for judgment it is difficult to be confident about the ratio of the decision. Apart from the deci-sion, I would be willing to hold the 18th Amendment valid if it had ,been enacted by our Parliament and added to our Constitution, for I would ~iscern no such taking away of Fundamental rights or altering the baSic structure of the Constitution as would place it outside the contours of the Preamble and the basic features of the Constitution.

United States of America v. William H. Sorague(') was concern-ed with the validity of the 18th Amendment. The District Court had held(') that the 18th Amendment had not been properly ratified so as to become part of the Constitution. It was the contention of the respondents before the Supreme Court that notwithstanding the plain language of Article V, conferring upon the Congress the choice of

( [1 ]) 64 L. Ed. 946.

( [2]) (75) L. Ed. 640.

( [8]) 44 F. (2d) 967.

method of ratification, as between action by legislatures and by con-ventions, this Amendment could only be ratified by the latter. The respondents urged that there was difference in the kind of amend-ments, as, e.g. "mere changes in the character of federal means or machinery, on the one hand, and matters affecting the liberty of the citizen on the other." There was no question as to ambit of the power of amendment. In other words, there was no question that the subject-matter of amendment, namely, prohibition, fell within Article V of the Constitution. ·

The Court held that the choice of the mode rested solely in the discretion of the Congress. They observed :

"It was submitted as part of the original draft of the Constitiition to the people in conventions assembled. They deliberately made the grant of power to Congress in respect to the choice of the mode of ratification of amendments. Unless and until that Article be changed by amendment, Congress must n,mction as the dele-gated agent of the people in the choice of the method of ratifi-cation."

The Court further held that the 10th Amendment had no limited and special operation upon the people's delegation by Article V of certain functions to the Congress. ·

I am w1able to sec how this case helps the respondents in any manner. On the plain language of the article the Court came to the conclusiion that the choice of the method of ratification had been entrusted to the Congress. We are not concerned with any such quc.<-tion here.

~fr. Seervai urged that the judgment of the Dist~ict Court showed that the invalidity of the 18th Amendment to the Constitution could be rested en two groups of grounds ; group consisted of grounds relating to the meaning of the word "amendment" and the impact of the 10th Amendment or the nature of the federal system on Art. V of the Constitution, and that Article V by providing the two alter, native methods of ratification by convention and legislature showed that the convention method was essential for valid ratification when the amendment affected the rights of the people. Group consisted cf the grounds on which the District Court declared the 18th amend· ment to be invalid and those were that "the substance of an amend· ment, and therefore of course, of an entirely new Constitution, might have to conform •to the particular theories of political science, socio. logy, economics, etc. held by the current judicial branch of the Government."

He then pointed out that grounds mentioned in Group B, which were very much like Mr. Palkhiwala arguments, were not even urged by counsel in the Supreme Court, and, therefore we must regard these grounds as extremely unsound. I, however, do not find Mr. Palkhi. wala's arguments similar to those referred to in Group B. It is true articles like Marbury's "The Limitations upon the Amending Power, -33 Harvard Law Rev. 232'', and Mc Goveney's "ls the Eighteenth Amendment void because of its content ?" (20 Col. Law Rev. 499), were brought to our notice but for different purpose. Indeed the District Judge criticised these writers for becoming enmeshed "in consideration of ·the constitutionality of the substance of the amend-ment"-the point before us. As the District Judge pointed out, he was concerned with the subject-matter of the 18th Amendment because of the relation between that substance or subject-matter and the manner of its adoption. (p. %9).

I do not propose to decide the validity of the amendment on the touchstone of any particular theory of political science, sociology, eco-nomics. Our Constitution is capable of being worked by any party having faith in democratic institutions. The touchstone will be the intention of the Constitution makers, which we can discern from the constitution and the circumstances in which it was drafted and enacted.

number of decisions of State Courts were referred to by both the petitioners and the respondents. But the State Constitutions are drafted in such different terms and conditions that it is difficult to derive any assistance in the task before us. Amendments of the Con-stitution are in effect invariably made by the people.

These decisions on the power to amend Constit1.ftion are not very helpful because "almost without exception, amendment of state constitution is effected, ultimately, by the vote of the people. Proposed amendments ordinarily reach the people for approval or 'disapproval in one of two ways ; by submission from convention of delegates chosen by the ·people for the express purpose of revising the entire instrument, or by submission from the legislature of propositions which the legislature has approved, for amendment of the constitu-tion in specific respects. However, in some states constitutignal amendments may be proposed by proceedings under initiative and referendum, and the requirements governing the passage of statutes by initiative and referendum are followed in making changes in the state constitutions." (American furispr1ulence, Vol. 16, 2d., p. 201). In footnote 9 it is stated :

"Ratification or non-ratification of constitutional amendment is vital element in the procedure to amend the constitution."

(Towns v. Suttles-208 Ga 838, 69 SE 2d 742). The question whether the people may, by the terms of the constitution, delegate their power to amend to others-for example, to constitutional convention-is one on which there is notable lack, of authority. An interesting question arises whether this power could be dele-gated to the legislature, and if so, .whether the instrument 'which the legislature would then be empowered to amend would still be constitution in the proper sense of the term."

This footnote brings out the futility of referring to decisions to interpret constitution. wherein power to amend has been delegated to Parliament.

That there is distinction between the power of the people to amend Constitution and the power of the legislature to amend the same was noticed by the Oregon Supreme Coun in Ex Parte Mrs. D. C. Kerby('), one of the cases cited before us by the respondent. McCourt, J. speaking for the Court distinguished the case of Eason v. State in these words :

"Petitioner cites only one authority that has any tendency to sup-port the contention that provision in the bill of rights of con· stitution cannot be amended-the case of Eason v. State, supra. Upon examination that case discloses that the Arkansas Constitu-tion provided that the legi5lature might, by the observation of prescribed procedure, amend the Constitution without submitting the proposed amendment to vote of the people of the state, and the Bill of Rights in that Constitution contained provision not found in the Oregon Constitution, as follows : "Everything in this article is excepted out of the general powers of government."

The court held that the clause quoted exempted the provi-sions in the Bill of Rights from the authority delegated to the legis-lature to amend the Constitution, and reserved the right to make any such amendment to the people themselves, so that the case is in fact an authority in support of the right of the people to adopt such an amendment.

The case is readily distinguished from the ins.tant case, for every proposed amendment to the Oregon Constitution, in .order to become effective, must be approved by majority vote of the people, recorded at state election, and consequently, when ap-proved and adopted, such an amendment constitutes direct CX· pression of the will of the people in respect to the subject elri· braced by the particular measure, whether the same be proposed by initiative petition or by legislative resolution."

No report of the decision in Eason v. State is available to me but it appears from the annotation at page 1457 that it was conceded that constitut;onal provis10n might bt repealed if done in the proper man-ner viz. by the people, who have the unqualified right to act in the matter. The Court is reported to have said :

"And this unqualified right they can constitutionally exercise by means of the legislative a-ction of the general assembly in providing by law for the call of convention of the whole people to recon-struct or reform the government, either partially or entirely. And such convention, when· assembled and invested with the entire sovereign power of the whole people (with the exception of such of these powers as have been delegated to the Federal government), may rightfully strike out or modify any principle declared in the Bili of Rights,' if not forhidden to do so by the Federal Constitu-tion/'

Both sides referred to number of distinguished and well-known authors. I do not find it advantageous to refer ro them because the Indian Constitution must be interpreted according to its own terms and in the background of our history and conditions. Citations of comments on the Indian Constitution would make this judgment cumbersome. I have had the advantage of very elaborate and able arguments on both sides and. I must apply my own mind to the inteipretation.

The learned Attorney-General brought to our notice extracts from 71 Constitutions. I admire the research undertaken but I find it of no use to me in interpreting Art. 368. First the language and the setting of each Constitution is different. Apart from the decisions of the Courts in United States there are no judicial decisions to guide us as to the meaning of the amending clauses in these constitutions. Fur~her, if it is not helpful to argue from one Act of Parliament to another (see Commissionei· of Stamps, Straits Settlements v. Oei Tjong Swan('))· much less would it be helpful to argue from one Constitution to another different Constitution (see Bank of Toronto v. Lambe(')).

During the course of the arguments I had drawn the attention of the Counsel to the decision of the Supreme Court of Ireland in The State (at the prosecution of Jeremiah Ryan) v. Captain Michael Lennon and ~thers('), and the respondents place great reliance on it. I may m~ntton that this case was not cited before the Bench hearing Golak

( [1]) [1933] A.C. 378; 389.

( [2]) [1887] 12 A.C. 575-787.

([1]) [1935] lrUb Reports 170.

Nlllh's case. On careful consideration of this case, however. I find that this case is disninguishable and does not afford guidance to me in interpreting art. 368 of the Constillltion.

In order to appreciate the difference between the st!ructure of art. .. 50 of the Irish Constitution of 1922 and Art. 368 of the Indian Con-stitution, it is necessary ro set out art. 50 before its amendment. It reads:

"50. Amendments of this Constitution within the terms of the Scheduled Treaty may be made by the Oireachtas. but no such amendment, passed by both Houses of the Oireachtas. after the expiration of period of eight years from the date of the coming into op~ration of this Constitution. shall become law. unless the same shall, after it has been passed or deemed to have been passed by the said two Houses of the Oireachtas, have been submitted to Referendum of the people, and unless majority of the voters on the register shall have recorded their votes on such Referendum, and either the votes of majority of the voters on the register, or two-thirds of the votes recorded, shall have been cast in favour of such amendment. Any such amendment may be made within the said period of eight years by way of ordinary legislation, and as such shall be subject to the provisions of art. 47 hereof."

It will be noticed that af~r the expiry of the period of eight years mentioned in the article, the amending power was not with the Oirea-chtas as every amendment had to be first passed by the two Houses ~ the Oireachtas and then submitted to referendum of the people, and the condition of the referendum was that majority of the votes on the register shall have recorded their votes on such referendum, and either the votes of majority of the votes on the register, or two-t!.irds of the votes recorded shall have been cast in favour of such amend-ment. So, in fact, after the expiry of the firs~ eight y~ars, the amend-ments had to be made by the people themselves. In our art. 368 people as such are not associated at all in the amending process.

Further, the Irish Constitution differed from the Indian Constitu-tion in other respects. It did not have Chapter with the heading of fundamental rights, or provision like our art. 32 which is guaranteed. The words "fundamental rights" were deliberatcly omitted from the Irish Constitution (see foot note 9 page 67, The Irish Constitution by Barra O' Briain, 1929). At the same time, there was no question of any guarantee to any religious or other minorities in Ireland.

It will be further noticed that for the first eight years on an;end-ment could be made by way of ordinary legislation, i.e., by ordmary legislative proc;edure. The sixth amendment had deleted from the end

of this article the words "and as such shall be subject to the provisions of Article 47 which provided for referendum hereof. In other words, for the first eight years it was purely flexible constitution, constitu-tional amendment requiring no special procedure.

With these differences in mind, I may now approach the actual decision of the Supreme Court.

The High Court and the Supreme Court were concerned with the validity of the Constitution (Amendmenn No. 17) Act 1931 (No. 37 of 1931) having regard to the provisions of the Constitution. The vali~ dity of that Act depended on the validity of the Constitution (Amend-ment No. 10) Act, '1928, No. 8 of 1928, and of the Constitution (Amend-ment No. 16) Act, 1929, No. 10 of 1929.

The Oonstitution (Amendment No. 17) Act 1931 was passed as an Act of the Oireachtas on October 17, 1931 i.e. some 11 months after the expiry of the period of 8 years mentioned in Article 50 of the Con-stitution, as originally enacted. It was not submitted to referendum of the people. It was described in its long title as an "Act tlO, amend the Constitution by inserting therein an Article making better provi-sion for safeguarding the rights of the people and containing provisions for meeting prevalence of disorder." But there is no doubt that it affected various human rights which were granted in the Irish Con-stitution.

The Constitution (Amendment No. 10) Act No. 8 of 1918 removed articles 47 and 48 of the Constitutioa and also the words "aad as such shall be subject to the provisions of Article 4i thereof" from the end of Article 50 as originally enacted. Constitution (Amendment No. 16.\ Act No. 10 of 1929 purported to amend Article 50 of the Constitution by deleting the words "eight years" and inserting in place thereof the words "sixteen vears" in that Article.

The impugned amendment was held valid bv the High Court. Sullivan P., J. interpreted the word "amendment" in Art. 50 widely relying on Edwards v. Attorne.v General of Canada('). Meredith ]. relied on the fact that the width of the power of amendment for the period during the first eight years was co-extensive wi.th the period· after eight years and he could find no distinction between Articles of primary importance or secondary imporrance. O' Bvrne J. could not see any· distinction between the word "amendment" and the \VIOrd> "amend or repeal."

In the Supreme Court, the Chief Tustice first noticed "that the· Constitution was enacted bv the Third Dail. sitting as Constituent Assembly, and not by the Oircachtas. which. in fact, it created ." He

l"Cad three limitations in the Constitution, The fust, he described aJ the over-all limitatioin: Thus:-·

"The Constituent Assembly declared in the forefront OE 'th~··con­stitution Act (an Act which it is not within the power of the Oir-eachtas to alter, or amend, or repeal). that all lawful authority comes from God to the people, and it is declared by Article 2 of the Constitution that "all powers of government and all authority, legislative, executive and judicial. in Ireland arc derived from the people of Ireland. (p. 204) ••• " "

The limitation was deduced thus : "It follows that every ;act, wh'-ther legislative, executive or judicial, in order to be lawful under the Constitution, must be capable of being justified under the authority thereby declared to be derived from God." ·

Now this limitation in so far as it proceeds from or is derived from the belief in the Irish State that all lawful authority comes from God to the people, can have no application to our Constitution. · ..

The second limitation he deduced from section 2 oi the Irish Frtt State Act and Article 50 of the Irish Constitution. It was that any amendment repugnant to the Scheduled Treaty shall be void and :inoperative.

The third limitation was put in these words :

"The Third Dail Eireann has, therefore, as Constituent Assembly, of its own supreme authority, proclaimed its acceptance of and declared, in relation to the Constitution which it enacted, certain principles, and in language which shows beyond doubt that they are stated as governing principles which are fundamental and ·ab-solute (except as expressly qualified), and, so, necessarily, immu-table. Can the power of amendment given tq the Oireachtas be lawfully exercised in such manner as to violate these principles which, as principles, the Oireachtas has no power to change ?. In my opinion there can be only one answer to that question, namely, that the Constituent Assembly cannot be supposed to have in the same breath declared certain principles to be fundamental and immutable, or conveyed that sense in other words, as by declara-tion of inviolability, and at the same time to have conferred upon the Oireachtas power to violate them or to alter them. In my ·opinion, any amendment of the Constitution, purporting to be made under the power given by the Consiituent Assembly, which would be violation of, or be inconsistent with, any fundamental . J>rinciple· so declared, is necessarily outside the scope of the power and invalid and void." (p. 209)

He further said that these limitations would apply even after the · expiry of eight years. He said :

"I have been dealing with limitations of the power of amendment in relation to the kinds -0f amendment which do not fall within the scope of the power and which arc excluded from it always, irrespective of the time when, i.e. within the preliminary period of eight years or after, or the process by which, the amendment is attempted." . (p. 209)

He then. approached the validity of the 161lh Amendment in these words:

"Was, then, the Amendment No. 16 lawfully enacted by Act

No. 10 of 1929 ? There are two princi;:ial grounds for impeaching its validity; the first, the taking away whether validly or not, in any case the effective removal from use, of the Referendum and the right to demand Referendum ; the second, that the Amend-ment No. 16 is not within the scope of the power of amendment, and therefore the Oireachtas was incompetent to enact it." (p. 212)

He thought:

"The Oireachtas, therefore, which owes its existence to the Con-stitution, had upon its coming into being such, and only such, power of amendment (if any) as had been given it by the Consti-tuent Assembly in the Constitution, that is to say, the express power set out in Article SO, and amendments of the Constitution could only be validly made within the limits of that power and in the manner prescribed by that power." (p. 213)

He then observed :

"Now, the power of amendment is wholly contained in single· Article, but the donec of llhe power and the mode of its exercise· arc so varied with regard to point of time as to make it practically two separate powers, the one limited to be exercised only during the preliminary period of eight years, the other. wholly different and permanent power, to come into existence after the expiry of that preliminary period and so continue thereafter." (p. 213)

After referring to the condition (it shall be subject to the provisions of Article 47) he thought : '

"The Constituent Assembly, even during the preliminary period, would not relax the ultima~ authority of the people, and expressly reserved to the people the right to intervene when they considered it necessary to restrain the action of the Oircachtas affecting the Constitution. The frame klf this provision makes it clear to my mind that, even if, by amendment of the Constitution under the·

' SUPREME COURT REP\)11.TS (1973) Supp. S.C.R.

power, Article 47 might cease to apply to ordinary legislation of the Oireachtas, the provisions of that clause were declared, dcli-beratdy, expressly and in mandatory way, to be kept in force and operative for the purpose of amendments of the Constitution during the preliminary period of eight years." (p. 213)

According to him "the permanent power of amendment, to ame at the expiry of the period of eight years, is wholly different thing both as to the donee of the power and the manner of its exercise."

He held that it was not competent for the Oireachtas to remove

from the power granted to it by the Constituent Assembly the requisites for its exercise attached to it in the very terms of donation of the power. He observed :

· "That provision of the Statute, No. 8 of 1928, was bad, in my opi-nion as being what is called in the general law of powers 'an exces-sive execution.' It was outside the scope of the power. We have not been referred to, nor have I found, any precedent for such use of power. I do not believe that there can be precedent be-cause it defies logic and reason. It was, therefore, invalid in my opinion.'' (p. 216)

Regarding the substitution of "sixteen years" for the words "eight years" he said : •

"If this amendment is gJOOd there is no reason why the Oireachtas should not have inserted or should not even yet insert, very much larger term of years or, indeed, delete the whole of Article 50 from the words "by the Oireachtas" in the second line to the end of the Article." (p. 216)

Later he observed :

"The attempt to take from the people this right, this exclusive power and authority and to confer on the Oireachtas full and uncontrolled power to amend the Constitution without reference to the people (even though for period of yea~s, whether it be until 1938 or Tibb's Eve, matter of indifference in the circumstances) was described by counsel in, I think, accurate language, as usur· pation, for it was done in. my opinion without legal authority." (p. 217)

He then repelled the argument that section 50 conferred the power to amend the Article itself. His rea90ills for this conclusion. arc sum-marised thus at page 219 :

"In my opinion, o!1 the true interprcta~i~~ of th~ ~ow.er before us, -upon consideratton of express proh1b1t1an, hm1tat1ons apd re-quirements of the clause containing it, the absence of any express

authority, the donation of the effective act in nhc exercise of the power to the people as whole, the relevant surrounding circum· · stances to which I have already referred and the documents and their tenor in their entirety, there is not here, either expressly or by necessary implication, any power to amend the power of amend· mcnt itself."

I cannot agree with the learned Attorney-General that the sole basis

of Kennedy C. J.'s decision was that Article 50 did not contain an ex-press power of amending the provisions of Article 50 itself. He gave various reasons which I have referred to above.

FitzGibbon J. held that the :word "ame..-idmcnt" was wide enough to include power to amend or alter or repeal and there is no express prohibition in Article 50 itself that any article of the Constitution inclu-ding Article 50 could not. be amended. The only limitation that he could find· was that the provision's of the Scheduled Treaty could not be .all'lcndcd. He observed :

"I sec no ground for holding that either of these Articles could not have been amended by the Oircachtas subject to Referendum of the people after the period of eight years, and, if so, it follows that the same amendment, e.g., the deletion oi the word "no" in . . Article 43 could be made "by way of ordinary legislation" within that period, or within sixtcC11, years, after eight had been altered to sixteen.'' (p. 228)

In other words, according tci ·him, if the Oircachtas subject to r~­

fcrcn~um of the people mentioned in Article 50 could .amend any Aniclc, so could Oircachtas .du,ring the period of eight years. But he noticed that in other Constitudons, there arc articles, laws. or provisions which ·arc: specifically dcseribcd as "Fundamc111al" e.g., Sweden, or '.'~nspWc tiol!al" e.g., Austria, Czcchosloyakia:,:i:nd Frahcc, in rcspcct·of \Vhid1 'the Constit11tion express! y restricts the power of amendment, but in Consti· tution . of the Sac:>rnat there is no such segregation,. and the power of amendment which applies to any Article appears to me to be equally applicable t?- all others, subject, of cou.r.sc, to the rchriction in respect of .the_ SchCdulccl, Treaty. He, later observed :,

·"UnlCis, therefore, thcsc·rights appear' plainly from the express pro-visions of our Constituti!lll to be inalienable, and incapable of being modified or taken a\vay byi any lcgislati.ve act, I cannot accede tO the arglllnentthat the Oircachtai•cannot alter, modify, or ri:pesil them. The framer of our Constitution may have intended "to bind man down from mischief by the chains of the Constitiit'ion,"

but if they did, they defeated their object by banding him the key of the padlock in Article 50." (P. 234)

Murnaghan J. stressed the point that "this direct consultation of tile people's will docs indicate that all matters, however fundamental, might be the subject of amendment. On the other hand the view con-tended for by the appellants must go to this extreme point, viz., that certain Articles or doctrines of the Constitution arc utterly incapable of alteration at any time even if demanded by an absolute majority of the voters.''

'Fhis observation really highlights the distinction between Article 50 of the Irish Constitution and Art. 368 of the Indlian Constitution. As J have already observed, there is no direct consultation of the people's will in Article 368 of our Constitution.

The only limitation he could find in Article 50 was that the amend-. ment to the Constitution must be within the terms of the Scheduled Treaty. As I h\lvc observed earlier, I find Article 50 of the Irish Constitu-tion quite different in structure from Article 368 of the Indian cOnstitu-tion and I do not think it is permissible to argue from Article 50 of the Irish Constitution to Art. 368 of the Indian Constitution. Be that as it may, if I had to express my concurrence, I would express concur-rence with the view of the learned Chief Justice in so far as he said that the Oireachtas could not increase its power of amendment by sub-stituting sixteen years for the words "eight years".

I had also invited a1tcntion of Counsel to Moore <l1ld Others v. Attorney-General for the Irish Free State and Others(') and the res-pondents rely heavily on it. In this case the validity of the Constitu-tion (Amendment No. 22) Act, 1933 (Act 6 of 1933) was involved. It was alleged that this amendment was no bar to the maintenance by the petitioners, who were the appellants, of their appeal before the Judicial Committee, as it was void.

On May 3, 1933, the Oircachtas passed an Act, No. 6 of 1933, entitled the Constitution (Removal of Oath) Act, 1933. That Act, by 1. 2, provided that s. 2 l>f the Constitution of the Irish Free State (Saorstat Eireann) Act!, !922, should be repealed, and, by s. 3, that Art. 50 of the Constitution should be amended by deleting the words "with-in the terms of the Scheduled Treaty.''

Finally, on November 15, 1933, the Oireachtas, enacted the Consti. tution (Amendment No. 22) Act, 1933, amending art. 66 of the Consti-tution so as to terminate the right of appeal to His Majesty in Council.

The Validity of the last amending Act depended on whether the earlier Act, No. 6 of 1933, was valid, namely, that which is directed to removing from art. 50 the condition that there can be no amendment of the Constitution unless it is within the terms of the Scheduled Treaty. ·

It appears that Mr. Wilfrid Greene, arguing for the petitioners, conceded that the Constitution (Amendment No. 16) Act, 1929 was regular and that the validity of the subsequent amendments could not be attacked on the ground that they had not been submitted to the peo-ple by referendum.

It is true that the Judicial Committee said that Mr. Greene rightly conceded this point but we do not know the reasons which impelled the Judicial Committee to say that the concession was rightly made. In view of the differences between art. 50 of the Irish Constitution and art. 368 of our Constitution, this concession cannot have .my importance in the present case. The actual decision in the case is of no assistance to us because that proceeds .on the basis that the Statute of Westmin-ster had removed the restriction contained in the Constitution of the Irish Free State Act, 1922.

Mr. Greene challenged the validity of Act No. 6 of 1933 by urg-ing :

''The Constitution derived its existence not from any legislature of the Imperial Parliament but solely from the operations of an Irish body, the Constituent Assembly, whiCh is called in Ireland the Third Dail Eireann. This body, it is said, though mentioned in the Irish Free State (Agreement) Act, 1922, was in fact elected pursuant to resolution passed on May 20, 1922, by the Second Dail Eireann, an Irish Legislative Assembly. The Third Dail Eireann was thus, ii was alleged, set up in Ireland by election of the people of Ireland of their own authority as Constituent Assembly to create Constitution, and having accomplished its work went out of existence, leaving no successor and no body in autho-rity capable of amending the Constituent Act. The result of that argument is that Constitution was established which Mr. Greene has described as semi-rigid Constitution-that is, "one capable of being amended in detail in the different articles according to their terms, but not susceptible of any alteration w far as concerns the I ~36 S. C. India/73

Constituent Act, unless perhaps by the calling together of new Constituent Assembly by the people of Ireland. Thus th~ articles of the Constitution may only be amended in accordance with An. SO, which limits amendments to such as arc within the terms of the Scheduled Treaty. On that view Mr. Greene arguc9 that the law No. 6 of 1933 is ullra vires and hence that the amendment No. 22 of 1933 falls with it." (p. 496)

Mr. Greene referred their Lordships to State (Ryan and Others) v. Lennon and Others('). In that case Chief Justice Kennedy is reported to have expressed ·a view which corresponds in substance to that contended for by Mr. Greene.

Now it is these contentions which I have just set out and which their Lordships could not accept. They observed :

"In thciir opinion the Constituent Act and the Constitution of the Irish Free State derived their validity from the Act of the Imperial Parliament, the Irish Free State Constitution Act, 1922. This Act established that the Constitution, subject to the provisions of the Constituent Act, should be the Constitution of the Irish Free State and should come into operation on being proclaimed by His Majesty, as was done on December 6, 1922. The action of the House of Parliament was thereby ratified." (p. 497)

The position was summed up as follows :

"(1) The Treaty and the Constituent Act respectively form parts of the Statute Law of the U nitcd Kingdom, ca~h of them being parts of an Imperial Act. (2) Before the passing of the Statute oE Westminster it was not competent for the Irish Free State Par-IWnent to pass an Act abrogating the Treaty because the Colonial Laws Validity Act forbade dominion legislature to pau law repugnant to an Imperial Act (3) The affect of the Statute of Westminster was to remove the fetter which lay uj>on the Irish Free State Legislature by tt.1son of the Colonial Laws Validity Act. That Legislature can now pass Acts repugnant to an Imperial Ii.ct. In this case they have done so.'' (p. "98) ·

I think that summary makes it quite cleat that it was because of the Statute .of Westminster that the Irish Free State Parliament was enabled to amend the Constitution Act.

(') (1935) Irish .Repcrla 170.

P~TIV

,,;.;; Validity of 241h Ammdmeal

Now I may deal with the question whether the Constitution (Twenty-Fourth Amendment) Act, 1971 is Valid. It. reads thus:

(2) In article 13 of the Constitution, after clause (3), the fol-

lowing clause shall be inserted, namely' :-

"( 4) Nothing in this article shall apply to any amendment of this Constitution made un4cr article 368." ·

(3) Article 368 of the Constitution shall be i:c-nuinbcrcd as clause (2) thereof, and-

( a) for the margirial heading to that article, the following marginal hcadin~ shall ~ ~cd, ~y :-•

"Power of Parliament to 111D.end the Constitution and prOCC.: dure therefor.";

(b) before clause (2) as .O,rc..numbercd, the following clause shall be inserted, namely :- •

"(1) Notwithstanding .~g in this Constitution, Par-liament may in exercise cifjp" ..<;Qllstitucnt power amend by way ·of ~dition, variation or ~pilal any provi.!ion, of this Constitu-tion in accordance witl?tbF• procedure laid down. in this article."; 1 ~.. ~j."' "

(c) in clause (2) as '° ~lll!lbued, " for the words uit shall

be presented to the President f!>l',his aascnt and upon such amnt being given to the Bill,"; tht·,i.,.l)[lb "it shall be pmcnted to the President who shall give his aPcnt to the Bill Jllld thereupon" shall be substituted;

. ( d) after clause (2) ·as ft: ~numbered, the forlowin.IJ shall

be inJcrtcd, namely :-·· •·,,. .. ..

"(3) Nothing in articlc'lfSbal apply to any amendmcrtt' made under this article." ~...,:{..'.! , ... • According to the petitioner, t1ic·~ • -i .. .Amendment has sought IO achieve five results : .-<!'

(i) It has inserted an exp~ ~Qn. in Article 368 to indicate that the source of the ..... jng power will be found in tlm Article itself.

(ii) It has made it obligatory on the President to give his assent to any Bill duly passed under that Article.

(iii) It has substituted the words "amend by way of addition," varia-tion or repeal. ............. " in place of the bare concept of l'amcndmcnt" in the Article 368.

(iv) It makes explicit that when Parliament makes constitutional amendment under Article 368 it acts "in exercise of its consti-tuont power."

(v) It has expressly provided, by amendments in Article 13 and 368, that the bar in Article 13 against abridging or taking away any of the fundamental rights should not apply to any amend-ment made under Art. 368."

Mr. Palkhivala did not dispute that the amendments covered by (i) and (ii) above were within the amending power of Parliament. I do not find it necessuy to go into the question whether Subba Rao, C.J., rightly decided that the amending power was in List I entry <n, or Art. 248, because nothing turns on it now.

Mr. Palkhivala rightly conceded that Parliament could validly amend art. 368 to transfer the source of amending power from List I entry <n to art. 368.

Mr. Palkhivala however contended that "if the amendments cover-

ed by (iii) and (iv) above arc construed as empowering Parliament to ,exercise the full constituent power of. the people themselves, and as vesting in Parliament the ultimate legal sovereignty of the people, and as authorising Parliament to alter or destroy all or any of the essential features, basic elements and fundamental principles of the Constitution (hereinafter referred to "essential features"), the amendments must be held. to be illegal and ~oid." He further urges that "if the arncnd-mtnt covered by ( v) is construed as authorising Parliament to damage or destroy the essence of all or any of the fundamental rights, the amendment must be held to be illegal and void." He says that the 24th Amendment is void and illegal· for the following reasons : creature of the Constitution, as the Parliament is, can have only such amending power as is conferred by the Constitution which is given by the people unto themselves. While purporting to exercise that amend-ing power, Parliament cannot increase thar very power. No doubt, Parliament had the power to amend Article 368 itself, but that doct1 not mean that Parliament could so amend Article 368 as to change its own amencfing power beyond recognition. creature of the Constitu. tion cannot enlarge its own power over the Constitution, while pur-porting to act under it, any more than the creature of an ordinary law

can enlarge its own power while purporting to act under that law. The power of amendment cannot possibly embrace the power to en-large that very power of amendment, or to abrogate the limitations, inherent or implied, in the terms on which the power was conferred. The contrary view would reduce the whole principle of inherent and implied limitations to an absurdity."

It is contended on behalf. of the respondents that the 24th Amend-ment does enlarge the power of Parli~ent to amend the Constitution, if Golak Nath's case !united it, and as Art. 368 clearly contemplates · amendment of Art. 368 itself, Parliament can confer additional powers of amendment on it.

Reliance was placed on Ryan's(') case and Moore's(') case. I have already dealt with these cases.

It seems to me that it is not legitimate to interpret Art. 368 in this manner. Clause ( e) of the proviso does not give any different power than what is contained in the main article. The meaning of the ex-pression "Amendment of the Constitution" does not change when one reads the proviso. If the meaning is the same, Art. 368 can only be amended so as not to change its identity completely. Parliament, for instance, could not make the Constitution uncontrolled by changing the prescribed two third majority to simple majority. Similarly it cannot get rid of the true meaning of the expresSion "Amendment of the Constitution" so as to derive power to abrogate fundamental rights.·If the words "notwithstanding anything in the Constitution" 'arc designed to widen the meaning of the word "Amendment of the Con-stitution" it would have to be held void as beyond the amending power. But I do not read these to mean th.is. They have effect to get rid of the argument that Art. 248 and Entry <fl List I contains the power of amendment. . Similarly, the insertion of the words "in exercise of its constituent power" only serves to exclude Art. 248 and Entry <fl List I and emphasize that it Is not ordinary legislative power that Parliament is exercising under Art. 368 but legislative power of amending the Constitution.

It was said that if Parliament cannot increase its power .of amend-ment clause ( d) of Section 3 of the 24th Amendment which makes Article 13 inapplicable to an amendment of the Constitution. w_ould be bad. I see no force in th.is contention. Article 13(2) as existing prr-vious to th~ 24th Amendment as interpreted by the majority in Golak, Nath' s case prevented legislatures from taking away or abridging the

rights conferred by Art. 13. In other words, any law which abridged . fundamental right even to small extent was liable to be struck down under Art. 368 Parliament can amend every article of the Con-stitution as long as the result is withiii the limits already laid down by me. The amendment of An..13(2) does not go beyond the limits laid down because Parliament cannot even after the amendment abro-gate or authorise abrogation or tM taking away of fundamental rights. After the amendment llOW law which has the effect of merely abridging right while remaining within the limits laid down would not be liable to be struck down.

In the result, in my <>pinion, the 24th Amendment as interpreted by me is valid.

PART V.-V alitlity of SeC'liot1 2 oA tM Constitution (Twenty-fifth Anttndmenl) 'Act, 1971. .

Section 2 of the Corutitution (Twenty-fifth Amendment) Act, 1971 enacted as follows :- .

(a) for clause (2), the following clause shall be substituted, namely :-

"(2) No property' shall be compulsorily acquired or requisi-

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

Provided that in making any law providing for the compul-sory acquisition of. any property of. an educational institution esta-blished and administered by minority, referred to in clause (1) of article 30, the State shall ensure that the amount fixed by or determined under such law for the acquisition of such property is such as would not restrict or abrogate the right guarantetd under that clause."

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

. "(2B) Nothing in sub.clause (f) of clause (l) of article 19 shall affect any such law as is referred to in clause (2)."

There cannot be any-doubt that the object of the amendment is to modify the decision given by this COun in Rustom Cavas;ee Cooper v. Union of India(') where it was held by ten Judges that the Banking Companies (Acquisition and Transfer of Undertakings) Act violated the guarantee of compensation under an. 31 (2) in that it provided for Jtiving certain amounts determined according to principles which were not relevant in the determination of compensation of the under-taking of the named Banks and by the method prescribed the amounts so declared could not be regarded as compensation.If we compare art. 31 (2) as it stood before and after the 25th Amendment, .the following changes seem to have been effected. Where-as before the amendment, an. 31 (2) required the law providing for acquisition to make provision for compensation by either fixing the amount of compensal'.Jon or specifying the principles on which and the manner in which the compensation should be determined after the amendment art. 31 (2) requires such law to provide for an "amount" which may be fixed by the law providing for acquisition or reqliisi-tioning or which may. be determined in accordance with such pri11ciples and given in such manner as may be specified in such law. In other words, for the idea that compensation should be given, now the idea is that an "amount" should be given. This amount can be fixed directly by law or may be determined in accordance with such principles as may be specified.

It is very difficult to comprehend the exact meaning which can be ascribed to the word "amount". In this context, it is true that it is being used in lieu of compensation, but the word "amount" is n~t legal concept as "compensation" is. .

According to Shorter Oxford English Dictionary, Third Edn. p. 57, the word "amount" has the following mearung :

"Amount (amount sb. 1710, (f. the vb.) 1). The sum total to which anything amounts up; spec. the sum of th' principal and interest· 1796. 2. fig. The full value, effect, or significance 1732. 3. quan-tity or sum viewed as total 1833."

According to Webster's Third New International Dictionary, p. 72, uamount" means :

"~mount la : the total number of quantity; AGGREGATE (the. amount of the line is doubled); SUM, NUMBER (add the same amount to each column) (the amount of the policy is 10,000 dollars) : the sum of individuals (the unique amount of

worthless IOU's collected during each day's business - R.L. Taylor) : the quantity at hand or under consideration (only small amount of trouble involved) (a surprising amount of patience) 2 : the whole or final effect, significance, or import! (the amount of his remarks is that we are hopelessly beaten) 3 : accounting : principal sum and the interest on it syn see SUM."

I have also seen the meaning of the word "amount" in the Oxford English Dictionary, Volume 1 p. 289, but it does not give me much guidance as to the meaning to be put in art. 31(2), as amended. The figurative meaning, i.e., the full value, I cannot give because of the deli!Y:rate omission of the word "compensation" and substitution of the word "amount" in lieu thereof.

Let us then see if the other part of the article throw' any. light on the word "amount". The article postulates that in some cases princi-ples may be laid down for determining the amount and these princi-ples may lead to an adequate amount or an inadNuate amount. So this show that the word "amount" here means something to be given in lieu of the property to be acquired but this amount has to and· can be worked out by laying down certain principles. These principles must then have reasonable relationship to the .property which is sought to be acquired, if this is so, the amount ultimately arrived at by applying the principles 'must have some reasonable rela-tionship with the property to be acquired; otherwise the principles of the Act could hardly be principles within the meaning of art. 31(2). If this meaning is given to . the word "amount" namely, that the amount given in cash or otherwise is of such nature that it has been worked out in accordance with the prini:.iples which have relationship to the property to be acquired, the question arises : what meaning is to be given to the expression "the amount so fixed". The amount has to be fixed by law but the amount so fixed by law must also be fixed in accordance with •ome principles because it could not have been inten-ded that if the amount is fixed by law, the legislature would fix the amount arbitrarily. It could not, for example, fix the amount by lottery.Law is enacted by passing bill which is introduced. The Consti-tution and legislative procedure contemplate that there would be discus-sion, and in debate, the Government spokesman in the legislature would be able to justify the amount which has been fixed. Suppose an amendment is moved to the amount fixed. How would the debate pr<><;eed ? Can the Minister say-"This amount is fixed as it is the gov-er\iment's wish." Obviously not. Therefore, it follows that the amount,

if fixed by the legislature, h:is also to be fixed according to some principles. These principles cannot be different from the principles which the legislature would lay down.

In this connection it must be borne in mind that art. 31 (2) is still fundamental right. Then, what is the change that has been brought about by the amendment ? It is no doubt that change was intended, it seems to me that the change effected is that person whose property is aquired can no longer claim full compensation or just compensation but he can still claim that the law should lay down principles to dete-rmine the amount which he is to get and these principles must have rational relation to the property sought to be acquired. If the law were to lay down principle that the amount to be paid in lieu of brick of gold acquired shall be the same as the market value of an ordi-nary brick or bric~ of silver it could not be held to be principle at all. Similarly if it is demonstrated that the amount that has been fixed for the brick of gold is the current value of an ordinary brick or brick of silver the amount fixed would be illegal. If I were to interpret Art. 31 (2) as meaning that even an arbitrary or illusory or grossly low amount could be given,which would shock not only the judicial conscienc~ but the conscience of every reasonable human being, seri-ous question would arise whether Parliament has not exceded its amending power under art. 368 of the Constitution. The substance of the fundamental right to property, under art. 31, consists of thre~ things: one, the property shall be acquired by or under valid law; secondly, it shall be acquired only for publicpurpose; and, thirdly, the,, person whose property has been acquired shall be given an amount in',, lieu thereof, which, as I have already said, is not arbitrary, illusory or',, shocking to the judicial conscience or the conscience ri. mankind. I , have already held that Parliament has no power under art. 368 to abrogate the fundamental rights but can amend or regulate or adjust them in its exercise of amending powers without destroying them. Applying this to the fundamental right of property, Parliament can-not empower legislatures to fix an arbitrary amount or illusory amount or an amount that virtually amounts to confiscation, taking all the relevant circumstances of the acquisition into consideration. Same cgnsiderations apply to the manner of payment. I cannot interpret this to mean that an arbitrary manner of payment is contemplated. To give an extreme example, if an amount is determined or fixed at Rs. 10,000 legislature cannot lay down that payment will be made at the rate of Rs. I 0 per year or Rs. 10 per month.

Reference may be made to two cases that show that if discretion is conferred it must be exercised reasonably.

In Roberts v. Hopwood,(') it was held that the discretion confer-

red upon the Council· by s. 62 of the Metropolis Management Act, 1855, must be exercised reasonably. The following observations of Lord Buckmaster are pertinent :

"It appears to me, for the reasons I have given, that they cannot have brought into account the consideration which they say influ-enced them, and that they did not base their decision upon the ground that the reward for work is the value of the work reason-ably and even generously measured, but that they tooki an arbit-rary principle and fixed an arbitrary sum, which was not real exercise of the discretion imposed upon them by the statute."

I may also refer to Lord Wrenbury's observation at p. 613 :

"I rest my opinion upon higher grounds. person in whom is vested discretion must exercise his discretion upon reasonable grounds. discretion does not empower man to do what he likes merely because he is minded to do so -he must in the exercise of his discretion do not what he likes but what he ought. In other words, he must, by use of his reason, ascertain and follow the course which reason directs. He must act reasonably."

In fames Leslie Williams v. Haines Thomas(') the facts are given in the headnote as follows :-

"Under s. 4 of the New South Wales Public Service Superannua-tion Act, 1903, the plaintiff was awarded by the Public Service Board gratuity of 23 £ JO$, 1 d. per mensem, calculated for each year of service from December 9, 1875, the date of his permanent employment, upto December 23, 1895 ;. and upon his claiming to have his service reckoned up to August 16, 1902, was awarded further gratuity of one penny in respect of each year subse-quent to December 23, 1895, up to August 16, 1902, the date of the commencement of the public Service Act of that year."

The Judicial Committee held the award to be illusory. The Judi-cial Committee observed :

" ........ it seems to their Lordships to be quite plain that an illusory award such as this -an award intended to be unreal and unsubstantial -though made under guise of exercising discretion, is at best colourable performance, and tantamount to refusal bv the Board to exercise the discretion entrusted to them by Parlia-ment." (p. 385)

(') [1925] A.C. 578; 590.

(') [ 1911 J A.C. 381.

Although I am unable to appreciate the wisdom of inserting clause (2B) in art. 31, the effect of which is to make art. 19(1) (f) inappli-cable, I cannot say that it is an unreasonable abridgement of rights under art. 19(l)(f). While passing law fixing p,inciples, the legislatures are bound to provide procedure for the determination at the amount, and if the procedure is arbitrary that provision may well be struck down under art. 14.

In view of. the interpretation which I have placed on the new art. 31(2), as amended, it cannot be said that Parliament has exceeded its amending power under art. 368 in enacting the new art. 31 (2).

For the reasons aforesaid I hold that s. 2 of the Constitution

(Twenty-fifth Amendment) Act, 1971, as interpreted by me, valid.

Part VI-Validity of S. 3 of the Constitution (Twenty-Fifth Am-endment) Act, 1971.

Section 3 of the twenty-fifth amendment, reads thus :

"3. After article 31B of the Constitution, the following arti.de shall be inserted, namely :-·

"31. C. Notwithstailding anything contained in article 13, no law giving effect to the polic-y of the State towards securing the princi-ples specified in clause (b) or clause ( c) of article 39 shall be deem-ed to be void on the ground that it is inconsistent with, or takes away or abridges any of the rights conferred by article 14, article 19 or article 31; and no law containing 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 bv the iegislature of State, the provisions of this article shall not apply thereto unless such law, having been reserved for the consideration of the Presi-dent, has received his assent."

It will be noted that art. 31C opens with the expression "notwith-

standing anything contained in article 13". This however cannot mean that not only fundamental rights like art. 19(1) (f) or art. 31 are ex-cluded but all fundamental rights belonging to the minorities and reli-gious groups are also excluded. The article ourpo!'tS to save laws which State may make towards securing the principles specified in els. (b) or ( c) of art. 39 from being chal!lenged on the ground that it is inconsistent with, or takes away or abridges any of the rights confer-red by arts. 14, 19 or 31. This is the only ground on which they can-not be challenged. It will be noticed that the article provides tha~ if the law cont.ains declaration that tt is for giving effect to such policy, it shall not be called in question in any court on the ground tha: it does not give effect to such policy. In other words, once declaration

js given, no court can question the law on the ground that it has nothing to do with givmg effect to the policy; whether it gives effect to some other policy is irrelevant. Further, law may contain some provisioru dealing with the principles specified in els. (b) or (c) of Art. 39 while other sections may have nothing to do w'ith it, yet on the language it ·denies any court power or jurisdiction to go into this question.

In the face of the declaration, thi• Court. would be unable to test the validity of incidental provisioru whlch do not corutirutc an essen-tial and integral part of the policy directed to give effect to art. 39(b) .and art. 39(c).

In Akadasi Padhan v. State of Orissa(') Gaiendragadkar, C. J., speaking for the Court, observed :

"A law relating to" State monopoly cannot, in the context, include all the provisions contained in the said law whether they have direct relation with the creation of the monopoly or not. In our opinion, the said expression should bt construed to mean. the law relating to the monopoly in its absolutely essential features. If law is passed creating State monopoly, the Court should enquire what are the provisions of the said law which are basically and ·essentially necessary for creating the State monopoly. It is only those essential and basic provisions which are protected by the latter part of Art. 19( 6). If there are other provisions made by the Act which are subsidiary, incidental or helpful to the operation of the monopoly, they do not fall under the said part and their validity must be judged under the first part of Art. 19(6).

These observations were quoted with approval by Shah, J., speak-ing on behalf of larger Bench in R. C. Cooper v. Union of India('). After quoting the observations, Shah, J., observed :

"This was reiterated in Rashbihar' Panda and Others v. The State of Orissa,(') M/s. Vrailal Mam?al & Co., and Another v. The State of Madhya PradeJh & Others(') and Municipal Committee, Amrit-sar and Others v. State of Punjab"(').

While dealing with the validity of the Bombay Prohibition Act (XXV of 1949), ,this Court in State of Bombay v. F. N. Balsara (•) struck down two provisions on the ground that they conflicted with

( [1]) [1963] Supp. 2 S.C.R. 691-707.

( [2]) [1970] 3 S.C.R. 530-582.

( [3]) [ 1969] 3 S.C.R. 374. (') [1970] 1 S.C.R. 400.

(') [1969] 3 s.c.R. 447.

{') [1951] S.C.R. 682.

the fundamental rights of freedom of speech and expression guarante-ed by art. 19(l)(a) of the Constitution. These provisions were sec-tions 23(a) and 24(1) (a), which read

"23. No person shall-

(a) commend, solicit the use of, offer any intoxicant or hemp,. or ........

24(1). No pcrson·shall print or publish in any newspaper news.-sheet, book, leaflet, booklet or any other single or pcriod'ical publication or otherwise display or distribute any advertise-ment or other matter-'

(a) which commends, solicits the use of, or offers any intoxi-cant or hemp ............ "

.Section 23(b) was also held to be void. It was held that "the words. "incite" and "encourage" are wide enough to include incitement and encouragement by words and speeches and also by acts and .the words used in th~ section arc so wide and vague that the clause must be held to be void in its entirety." ·

Section 23(b) reads as follows :

"23. No person shall-,

(a) ........

(b) 'incite or encourage any member of the publi~ or any cbss of individuals of the public generally to commit any act, which frustrates or defeats the provisions of this Act, or any rule, regulation or order made thereunder, or ........

Mr. Palkhivala contends, and I think rightly, that this Court woul~ not be able to strike these provisions dawn if similar declaration wcrr inserted now in the Bombay Prohibition Act that this law is for giving' effect to Ary 47, which prescribes the duty of the State to bring about prohibition of the consumpllion of intoxicating drinks. If similar provision were inserted in the impugned Kerala Acts making it a-criminal offence to criticise, frustrate or defeat the policy of the Acts,. the provisions would be protected under Art. 31 ( C).

The only so-called protection which is given is that if the legisla-ture of State passes such law it must receive the President's assent. It is urged before us that it is no protection at all because the President would give his assent on the advice of the Union Cabinet.

Article 31C in its nature differs from art. 31A, which was inserted by the Fourth Amendment.

"31A. (1) Notwithstanding anything contained in article 13, no law providing for-

(a) the acquisition by the State of any estate or of any rights therein or the extinguishment or modification of any such rights, or

(b) the taking over of the management of any property by the State for limited period either in the publiic interest or in order to secure the proper management of the property, or

( c) the amalgamation of two or more corporations either in the public interest or in order to secure the proper management of any of the corporations, or

(d) the extinguishment or modification of any rights of manag-ing agents, secretaries and treasurers, managing directors, directors or managers of corporations, or of any voting rights of shareholders thereof, or

( e) the extinguishment or modification of any rights accruing by virtue of any agreement, lease or licence for the purpose of searching for, or winning, any mineral or mineral oil, or the premature termination or cancellation of any such agree-ment, lease or license,

~hall be deemed to be void on the ground that it is inconsistent with, or takes away or abridges any of the rights conferred by articl~ 14, article 19 or article 31 : Provided that .............. "

In Ar~. 31A the subject-matter of the kg'islation is clearly provided, namely, the acquisition by the State of any estate or any rights therein, (art. 31A(a) ). Similarly, the subject-matter of legislation is specifically provided in els. (b), (c) and (d) of art. 31A., But in arll. 31C the ~ky is the limit because it leaves to each State to adopt measures towards securing the priniples specified in els, (b) and ( c) of art. 39. The wording of arts. 39(b) and 39(c) is very wide. The expression "eco-nomic system" in art. 39( c) may well include professional and other services. According to Encylopedia Americana (1970 Ed. Vol. 9p, p.· '600) "economic systems arc forms of social organization for producing goods and services and determining how they will be distributed. It would be difficult to resist the contention of the .State that each provi-sion in the law has been taken for the purpose of giving effect to the policy of the State.

It was suggested that if the latter part of art. 31C, dealing with declaration, is regarded as unconstitutional, the Court will be entitled to go into the question whether there is any nexus between the im-pugned law and art. 39(b) and art. 39(c). I find it difficult to appre-ciate this submission. There may be no statement of State policy in

law. Even if there is statement of policy in the Preamblie, it would not control the substantive provisions, if unambiguous. But assuming that there is clear statement it would be for the State legislature to decide whether provision would help to secure the objects.

The Courts will be unable to separate necessarily incidental provi-sions and merely incidental. Further, as I have pointed out above, this question is not justiciable if the law contains declaration that it is for giving effect to such policy. According to Mr. Palkhivala, Art. 31C has four features of totalitarianism: (1) There is no equality. The ruling party could favour its own party members, (2) There need not be any freedom of speech, (3) There need be no personal liberty which is covered by Art. 19(1)(b), and (4) The property will be at the mercy of the State, In other words, confiscation of property of an individual would be permissible.

It seems to me that in effect, art. 31C enables States to adopt any policy they like and abrogate arts. 14, 19 and 31 of the Constitution at will. In other words, 'it enables the State to amend the Constitution. Article 14, for instance, would be limited by the State · 'according to its policy and not the policy of the amending body, i.e., the Parliament, and so would be arts. 19 and 31, while these fundamental rights remain in the Constitution. It was urged that when an Act of Parliament or State Legislature delegates legisla-tive power within permissible limits the delegated legislation derives its authority from the Act of Parliament. It was· suggested that simi-larly the State law would derive auvhority from Art. 31C. It is true that the State law would derive authority from Art. 31C but the differ-ence between delegated legis!ation and the State law made under Art. 31C is this : It is permissible, within limits, for legislature to delegate its functions, and for the delegate to make law. Further the delegated legislation would be liable to be challenged on the ground of violation of fundamental rights regardless of the validity of the State Act. But State legislature cannot be authorised 1o amend the Constitution and the State law deriving authority from Art. 31C cannot be challenged on the ground that it infringes Articles 14, 19 and 31.It will be recalled that art. 19 deals not only with the right to property but it guarantees varioos rights : freedom of speech and ex· pression; right to assemble peaceably and without arms; right to fomi associations or unions; right to move freely throughout the territory of India; rightr to practice any profes~ion or to carry on any occupa-tion, trade or business. I am unable to appreciate the reason for giv-ing such powers to the State legiskiture to abrogate the above freedoms. In effect, Parliament is enabling State legislatures to declare that "a citizen shall not be free; he will have no freedom of speech to criticise

the policy of the' State; he shall not assemble to protest against the policy; he shall be confined to town or district and shall not move outside his State; residen~ .of another state shall not enter the State whi~ is legislating; he shall not, if lawyer, defend people who have violated the law. It could indeed enable legislatures t'? apply one law co political opponents of the ruling party and leave members of. the party outside the purview of the law. In 'short, it enables State Legis... lature to set up complete totalitarianism in the State. It seems'_ that its implications were not realised by Parliament though Mr. Palkhiwala submits that every implication was deliberately intended.

I have no doubt that. the State legislatures and Parliament in itJ ordinary legislative capacity will not exercise this new power confC!Ted on them fully but I am concerned with the amplitude of the . power conferred by art. 31C and not with what the legislatures may or may not do under the powers so conferred. ·

I have already held that Parliament cannot.under .art. 368 abrogate fundamental rights. Parliament equally cannot enable the legislatures to abrogate them. This provision thus enables legislatures to abrogate fundamental rights and therefore must be declared unconstitutional.

It has been urged before us that s. 3 of the 25th amendment Act i.~ void as it in effect delegates the constituent amending power to State legislatures. The question arises 'whether art. 368 enables Parlia-ment to delegate its function of amending the Constitution to another body. It seems to me clear that it docs not. It would be noted that art. 368 of this Constitution itsc1£ provides that aniendment may be initiat-e<l only by the introduction of bill for the. purpose in either House of Parliament. In other words, art. 368 docs not contemplate any other mode of amendment by Parliament and it docs not equally ~on· 1 template that Parliament could set up another body to · amend the Constitution. ·

It is well-settled in India that Parliament cannot delegate .its essential legislative functions.

See: (1) Per Mukherjea J. in re The Delhi l.Aws Act, 1912. (1951) · SCR 747 at 984-5. · · '

(2) Ra; Narain Singh v. Patna Administration 1955 (I) SCR 290. " (3) Hari Shankar Bag/a v. State of Madhya Pradesh -1955 (lj SCR 380. · · .

~SAVANANDA V. KEMLA (Sikri, C.J.)

(4) Vasa11tlal Sanjanwala v. State of Bombay -1961 (1) SCR 341.

(5) The Municipal Corporation of Delhi v. Bir/a Cotton Mills -1968 (3) SCR 251.

(6) Gar1wal v. State of Punjab -1959 Supp. (1) SCR 792. ·

It is also well-settled in countries, where the courts have taken ·position different than in Indian courts, that legislature cannot create another legislative body. Reference may be maac here to In re lnilkztive and Referendum Act(') and Attorney-General of No11Q Scoitia v. Attorney-General of Canada('). I have discussed the latter case while dealing with the question of implied limitation. Initiative and Referendum case is strongly. relied on by Mr. Palkhivala to csta· blish that an amending power cannot be delegated. In this case the Judicial Committee of the Privy Council was concerned with the interpretation of s. 92, head 1. of the British North America Act, 1867, which empowers Provincial Legislature to amend the Constitution of the Province, "excepting as regards the office of the Lieutenant· Governor". The Legislative Assembly of Manitoba enacted the Initia-tive and Referendum Act, which in effect would compel the Licute· nant Governor to submit proposed law to bodv of voters totally distinct from the legislature of which he is the constitutional head, and would render him powerless to prevent ·it from becoming an actual law if approved by these voters.

1'he judgment of the Court of Appeal is reported in 27 Man. L.R.

1, which report is not available to me, but the summary of the reasons . of the learned Judges of the Court of Appeal arc given at page 936 of (1919) A.C. as follows :

"The British North America Act, 1867, declared that for· each Province there should be Legislature, in which s. 92 vested the · power of law-making; the legislature could not confer that power upon body other than itsclf1 The procedure proposed by the Act in question would not be an Act of Legislature within s, 92, would be wholly opposed to the spirit and principles of the Canadian constitution, and would override the Legislature thereby provided .. Further, the power to amend the Constitution given by s. 92, head 1, expressly expected "the office of the :t.ieuteruirit-Gov-ernor". Sect. 7 of the proposed Act, while preserving the power ' of veto and disallowance by the Governor-General provided for by ss. 55 and 90 of the Act of 1867, dispensed with the assent of the Lieutenant-Governor provided for by ss. 56 and 90 of that

(') (1919) A.C. 935.

Act; even if s. 7 was not intended to dispense with that assent, s. 11 clearly did so. The proposed Act also violated the provisions of s. 54(inconjunction with s. 90) as to money bills."

Their Lordships of the Judicial Committee held at page 944 :~

"Their Lordships are of opinion that the language of the Act can-not be construed otherwise than as intended seriously to affect the position of the Lieutenant-Governor as an integral part of the Legislature, and to detract from rights which arc important in the legal theory of that position. For if the Act is valid it compels him to submit proposed law to body of voters totally distinct from the Legislature of which he is the Constitu-tional head, and renders him powerless to prevent it from becom-ing an actual law if approved by majority of these voters. It was argued that the words· already referred to, which appear in s. 7, preserve his powers of veto and disallowance. Their Lord-ships are unable to assent to this contention. The only powers pre- · served are those which relate to Acts of the Legislative Assembly, as distinguished from Bills, and the powers of veto and disallow-ance referred to can only be those of the Governor-General under s. 90 of the Act .of 1867, and not the powers of the · Lieutenant-Governor, which are at an end when Bill has become an Act. Sect. 11 of the Initiative and Referendum Act is not less difficult to reconcile with the rights of the Lieutenant-Governor. It pro-vides that when proposal for repeal of some law has been ap-proved by the majority of the electors voting, that law is auto-matically to be deemed repealed at the end of thirty days after the clerk of the Executive Council shall have published in the Manitoba Gazette statement of the result of the vote. Thus the Lieutenant-Governor appears to be wholly e_Juded from the new legislative authority."

I have set out this passage in extenso because this deals with one pan of the reasoning given by the Court of Appeal. Regarding the <ithcr part i.e. whether the Legislature could confer that power on body other than its~lf, the Judicial Committee observed at page 945:

"Having said so much, their Lordships, following their usual prac-tice of not deciding more than is strictly necessary, will not deal finally with another difficulty which those who contend for the validity of this Act have to meet. But they think it right, as the point has been raised in the Court below, to advert to it. Sect. 92 of .the Act of 1867 entrusts the legislative power in Province to its legislature, and to that Legislature only. No doubt body, with power of legislation on the subjects entrusted to it so ample as that enjoyed by Provincial LcgiSlature in Canada, could, while

preserving its own capacity intact, seek the assistance of subordi-nate agencies, as had been done when in Hodge v. The Queen(') the Legislature of Ontario was held entitled to entrust to Board of Commissioners authority to enact regulations relating to taverns; but it does not follow that it can create and endow with its own capacity new legislative power not created by the Act to . which it owes its swn existence. Their Lordships do no more than draw attention to the gravity of the constitutional questioos which thus arise. (Emphasis supplied)

It is interesting .to note that this position was indicated by Sir A. Hobhouse, member of the Judicial Committee, while Hodge v. The Queen(') was being argued. This appears from Lefray on Canadian Federal System at p. 387 :

"Upon the argument before the Privy Council in Hodge v. The Queen, Mr. Horace Davey contended that under this sub-section, (Sec. 92(1) of Canadian Constitution) provincial legislatures "could do what Lord Selborne, no doubt correctly, said in The Queen v. Burah,(') the Indian legislature could not do,-abdi-cate their whole legislative functions in favour of another body." But, as Sir 4".<Hobhouse remarked, this they cannot do. "They remain init(S.~ with responsibility. Everything is done by them, and such officers as they create and give discretion to."

The learned Attorney-General submitted that this case decided only that in the absence of clear and unmistakable language in s. 92, head 1, the power which the Crown possesses through person directly representing the Crown cannot be abrogated. It is true that this -s the actual decision but the subsequent observations, which I have set out above, clearly show that the Judicial Committee was prepared to imply limitations as the Court of Appeal had done on the amending power conferred on the Provincial Legislature by s. 92, head 1.

The Attorney General said that the scope of this decision w:u referred to in Nadan v. The King,(') where at page 495 reference is made to this case in the following words :

"In the case of In re Initiative and Referendum Act Lord Haldane, in declaring the judgment of the Board referred to "the impro-priety in the absence of clear and unmistakable language of con-struing s. 92 as permitting the abrogation of any power which the Crown possesses through person directly representing it"; an

( [1]) 9 A.C. 117.

( [2]) [1878] 3 A.C. 905.

( [8]) (1926) A.C. 482.

observation which 'applies with equal force to s. 91 of the Act al 1867 and to the abrogation of power which remains vested in the Crown itself."

But this passage again dealt with the actual point decided and . not the obiter dicta. ·

The first para of the head note in Nadan's([1]) case gives in brief the actual decision of the Privy Council as follows :

"Sect. 1025 of the Criminal Code of Canada, if and so far as it is intended to prevent the King in Council from giv'ing effective leave to appeal aga~ an order of Canadian Court in crimj. nal case, is invalid. The legislative authority of the Parliament of Canada as to criminal law and procedure, under s. 91 of the Bri· tish North America Act, 1867, is confined to action to be taken in Canada. Further, an enactment annulling the royal prerogative to grant special leave to appeal would be inconsistent with the Judicial Committee Acts 1833 and 1844, and therefore would be invalid under s. 2 of the Colonial Laws Validity Act, 1865. The royal assent to the Criminal Code could not give validity to an enactment which was void by imperial statute; exclusion of the prerogative could be accomplished only by an Imperial statute."

For the aforesaid reasons I am unable to agree with the Attorney General and I hold that the Initiative and Referendum Act case shows .that limitations can be implied in an amending power. Mr. Scervai kCks · to distinguish this case on another ground. According to him, these observations were obiter dicta, but even if they are treated as considered obiter dicta, they add nothing to the principles governing ddcgated legislation, for this passage merely repcai.S what had been laid down as far back as 1878 in The Queen v. Burah([1]), where the Privy Council in classical passage, observed :"But their Lordships are of opinion that the doctrine of the majo-rity of the Court is erroneous, and that it rests upon mistl!kcn view of the powers of the Indian Legislature, and indeed of the nature and principles of legislation. The Indian Legislature has powers expressly limited by the Act of the Imperial Parliament which created it, and it can, of course, do nothing beyond the limits which circumscribe these powers. But when acting within those limits, it is not in any sense an agent or delegate of the Im-perial Parliament, but has, and was intended to have, plenary powers of legislation, as large, and of the same nature. as those of

(l) (1926) A.C. 482.

(") 5 I.A. 178=(1878) 3 A.C. 889; 904: 905.

Parliament itself. The established Courts of Justice, when a_ ques-tion arises whether the prescribed limits have been cxccecJed.· must of necessity determine that question; and the only way in which they can properly do so, is,. by looking to the terms of. the instrument by which, affirmatively, the legislative powers were created, and by ;which, negatively, they are restricted. If what. 1w been done is legislation, within the general scope of the aflli'ma-tive words which give the power, and if it violates no cxpreu condition or restriction bycwhich that power is limited (in which category would of course be included any Act of the Imperial Parliament at variance with it), it is not for any Court of Justice to inquire further or to enlarge constructively those conditiolll_ and restrictions."

Mr~ Seervai further says that having laid down the law as . set alit above, the Privy Oluncil added : ·

"Their Lordships agree that the Governor-General in Coundr could not, by any form of enactment; create in India, and arm with general legislative authority, .a new legislative power, nOl created or authorised by the Council's Act."

We are unable to agree with him that the obiter dict.i of the Judi-· cial Olmmittee deals with the same subject as Burah's(') c;ase.· Burah's· case was not concerned with the power to amend the. Consti-tution but was concerned only with legislatiOn enacted by the Indian Legislature. This clearly appears from the passage just cited from Lefroy. The Governor-General in Council had no power to amend the Government of India Act, under which it functioned.

Reference was also made to the observations of one of us in Delhi Municipality v. B. C. & W. Mills([2]) where I had observed as fol-fows :-

"Apart from authority, in my view Parliament has full power . to delegate legislative authority to subordinate bodi~. This power Bows, in my judgment, from Art. 246 of the Constitution. The word "exclusive" mean.~_ exclusive _of any other legislation and not exclusive of any subordinate body. There is, however, one restric--tion in this respect and that is also contained in Article 246 .. Parli-.ament must pass law in respect of an item or items of the rele-vant list. Negatively this means that Parliament cannot abdicate its Junctions."

( [1]) S I.A. 178-(1878) 3 A.C. 889.

( [1]) A.I.I!.. (1968) S.C. 1232 at p. 1266.

Reference was also invited to another passage where I had ob-served:

"The case of 1919 AC 935 provides an instance of abdication of functions by legislature. No inference can be drawn from this case that delegations of the type with which we are concerned amount to abdication of functions."

It is clear these observations are contrary to many decisions of. this Court and, as I said, I made these observations apart from autho-rity.

But neither this Court nor the Judicial Committee in Queen v. Burah(') were concerned with an amending power, and the import-ance of the obiter observations of the Privy Council lies in the fact · that even in exercise of its amending power the legislature could not "create and endow with its own capacity new legislative power not created by the Act to which it owes its own existence," and the fact that in Canada the doctrine of limited delegated legislation does not prevail as it does in India.

It has been urged before us that in fact there has been no delega-tion of the amending powers to the State legislatures by art. 31C. and what has been done i" that art. 31C lifts the ban imposed by Part III from certain laws. I am unable to appreciate this idea of the lifting of the ban. Fundamental rights remain as part of the Constitution and on the face of them they guarantee to every citizen these fundamental rights. But as soon as the State legislates under art. 31C, and the law abrogates or takes away these constitutional rights, these fundamental riglits cease to have any effect. The amendment is then made not by Parliament as the extent of the amendment is not known till the State legislates. It is when the State legislates that the extent of the abroga-tion or abridgement of the fundamental rights becomes clear. To all intents and purposes it seems to me that it is State legislation that effects an amendment of the Constitution. If it be assumed that Art. 31C does not enable the States to amend the Constitution then art. 31C would be ineffective because the law which in effect abridges or takes away the fundamental rights would have been passed not in the form required by art. 368, i.e. by 2/3rd of the majority of Parlia-ment but by another body which is not recognised in art. 368, and would be void on that ground.

The learned Solicitor General, relying on Mohamed Samsudem Kariapper v. S. S. Wijesinha([2]) urged that there can be implied ameridment of the constitution and art. 31C may be read as an implied amendment of art. 368. What the Judicial Committee decided in this

( [1]) 5 I.A. 178=(1878) 3 A.C. 889.

(2) (1968) A.C. 717; 743.

case was that bill having received certificate in the hands of the Speaker that the number af votes cast. in favour thereof in the HDUSC of Representatives amounted to no kss than two-thirds of the wlimt number of Members of the House in effect amounted to bill for the amendment or repeal of any of the provisions of the order, and the words "amendment or repeal" included implied amendment.

Menzies; J., spca,king for th~ Judicial Committee, observed :

"Apart from the proviso to sub-section (4) therefore the board has found no reason for not construing the words "amend or re-peal" in the earlier part of section 29( 4) as extending to amend-ment or repeal by inconsistent law . . . . . . . . . . . . . bill which, if it becomes an Act, docs amend or repeal some provision of the order is bill "for the amendment or repeal· of provision of the order." (p. 743)

Later, he _observed :

"The bill which became the Act was bill for an amendment of section 24 of the Constitution simply because its terms were in-consistent with that section. It is the operation that the bit! will have upon becoming law which gives it its constitutional chuac• ter, not any particular label which may be given to it. bill des, cribed as one for the amendment of the Constitution, which con-. tained no operative provision to amend the Constitution would not require the prescribed formalities to beci>me valid law whereas bill which upon its passing into law would, if valid, alter the Constitution would not be valid without compliance with those formalities."We are not here concerned with the question which was raised before the Judicial Committee because no one has denied that art. 31C is an amendment of the Constitution. The only question we are con-cerned with is whether art. 31C can be read to be an implied amend-ment of art. 368, and if so read, is it valid, i.e., within the powers of Parliament to amend art. 368 itself.

It seems to me that art. 31C cannot be read to be an implied amendment of art. 368 because it opens with the words "notwi.th-standing anything contained in art. 13" and Art. 31C does not say that "notwithstanding anything contained in art. 368.'' What art. 31C does is that it empowers legislatures, subject to the condition laid down in art. 31 itself, to take away or abridge rights conferred by arts. 1'1, 19 and 31. At any rate, if it is deemed to be an amendment of art. 368, it is beyond the powers conferred by art. 368 itself. Article 368 d~ l'lOt enable Parliament to- constitute another legislature to amend die Constitution, in its exercise of the power to amend art. 368 itself.

For the· aforesaid reasons I hold that s. 3 of the Constitution (Twenty-fifth Amendment) Act 1971 is void as it delegates power to legislatures to amenq the Constitution.'

PAll.T-VII.- Twenty-Ninth Amendment

The Constitution (Twenty-Ninth Amendment) reads:

"2. Amendment of Ninth Schedule

. "In the Ninth Schedule to the Constitution after entry. 64 and be· fore the Explanation, the following entries shall be inserted, namely: -

"65. The Kerala Land Reforms (Amendment) Act, 1969 (Kcrala Act 35 of 1969).

66. The Kerala Land Reforms (Kerala Act 25 of 1971)."

(Amendment) Act.

The effect of the insertion of the two Kerala Acts in the Ninth

Schedule is that the provisions of art. 31-B get attracted. Article 31-B which was inserted by s. 5 of the Constitution (First Amendment) Act, 1951, reads :

· "Insertion of new article 31B.

5. After article 31A of the Constitution as inserted by s-.-cticn 4. the following article shall be inserted. namelv :-

"31B. Validation of certain Acts and Reg11lations ·

Without prejudice to the generality of the provisions contained in article 31A, none of the Acts and Regulations specified in the Ninth Schedule nor any of the provisioqs thereof shall be dee111~Q to be void, or ever to have become vole!, on the ground that such Act, Regulation or . provision is inconsistent with, or takes ~way or abridges any of the rights conferred .. hy, any provisions of thiJ Part, and notwithstanding any judgment, decree or order of, any court or tribunal to the contrary, each of the said Acts and Regu-lations shall, subject to the power of any com JXh!llt Legislatwe to repeal or amend it, continue in f91:cc."

The First Amendment h•d also ir.sertt-d art. 31..;\ and the N\otli $cheduk including 13 State enactmcnli . dealing "'.ith agrarla!t.. J'h. forms. .

Before dealing with the points debated before us. it is necessary to mention that new art. 31-A was substituted bv the Constitution (Fourth Amendment) Act, 1955, for the original article with retrospective effect. The new article contained original art. 31A(l) as dause (a) and added clauses. (b) to ( e) and also changed the nature of the protective umbrella. The relevant part of art. 31A(l) as substi-tuted has already been set out .

. Under art. 31-A as inserted bv the First Amendment law was protected even if it was it)consistent with or took away or abridged any rights conferred by any provisions of Part III. Under the Fourth Amendment the protective umbrella extended to only art.· 14, art. 19 or art. 31. The Seventeenth Amendment further amended the defini-tion of the word "estate" in art. 31A. It also added seven Acts to the Ninth Schedule.

The argument of Mr. Palkhivala. on this part of the case, was two.fold. First, he contended, that art. 31B, as originally inserted, had intimate relations with agrarian reforms, because at that stage art. 31-A dealt only with agrarian reforms. The words "without prejudice to the generality of the provisions contained in art. 31A'', according to him, pointed to this connection. He, in effect, said that art. 31-B having this original meaning did not change the meaning or its scope when new art. 31cA containing clauses (b) to (e) were included.

I am unable. to ~ccede to these contentions. The ambit of art. 31-B has been determined by this Court in three decisions. In State of Bihar v. Maharajadhiraia Sir Kameshwar Singh('), Patnjali Sastri, C.J., rejected the limited meaning suggested above by Somayya, and observed:

"There is nothing in article 31-B to indicate that the specific men-tion of certain statutes was only intended to illustrate the applica-tion of the general words of article 31-A. The opening words of article 31-B are only intended to make clear that article 31-A should not be restricted in its application by reason of anything contained in article 31-B and are in no wav calculated to restrict the application of the latter article or of the enactments referred to therein to acquisition o~ "estates,"

He held that the deci.-ion in Sibnath Banerji' s([2]) case afforded no useful analogy.

In Visweshwar Rao v. State of Madhya Pradesh(') Mahajan, J., repelled the argument in these words :

"In my opinion the observations in Sibnath Banerji' s case far from supporting the contention raised negatives it. Article 31-B speci-fically validates certain acts mentioned in the Schedule despite the provisions of art. 31-A and is not illustrative of art. 31-A. but stands independent of it."

In H. ·B. /eejeebhoy v. Assistant Collector, Thana('), to which decision I was party, Subha Rao, C. J., observed that "art 31-B is not governed by art. 31-A and that art. 31-B is constitutional device to place the specified statutes beyond any attack on the ground that they infringe Part III of the Constitution."

I may mention that the validity of the device was not questioned before the Court then.

But even though I do not accept the contention that art. 31-B can

be . limited by what is contained in art. 31-A, the question arises wh~

ther the Twenty-Ninth Amendment is valid.

I have held that art. 368 does not enable Parliament to abrogate

or take away fundamental rights. If this is so. it does not enable Parlia• ment to do this by any means, in.eluding the device oE art. 31-B and the Ninth Schedule. This device of art. 31-B and the Ninth Schedule is bad insofar as it protects statutes ·even if they take away fundamental rights. Therefore, it. is necessary to declare that the Twenty-Ninth Amendment is ineffective to protect the impugned Acts if they take-away fundamental rights.

In this connection I may deal with the argument that the device of art. 31B and the Ninth Schedule has uptill now been upheld by this Court and it is now too late to impeach it. But the point now raised before us has never been raised and debated before. As Lord Atkin ob-served in Proprietary Articles Trade- Association. v. Attamey.-GeneraJ for Canada('). ·

"Their Lordships enl:crtain no efE>uf!lt that time akmc will not vali· date an Act which when ci'tallcnged is f61md to be ulll'a vires; nor will history of gradual series of advances till this boun-dary is finally crossed. avail Ill) protect the ultiJnat.e ¢11~m<1ch.il!em."

(') (1952) S.C.R. 1020-1037.

(') (1%5) 1 S.C.R. 636-648.

( [8 ]) {1931) A.C. 310; 317.

If any further authority is needed, I may refer to Attorney-Gene-ral for Australia v. The Queen and the Boilermakers' Society of Aus-tralia('). The Judicial Committee, while considering the question· whether certain sections of the Conciliation and Arbitration Act, 1904-1952 were ultra tlires inanmuch as the Commonwealth Court of Con-ciliation and Arbitration had been invested with the executive powers alongwith the judicial powers, referred to the point why for quarter of century no litigant had attacked the validity of this obviously ille-gitimate union, and observed :

"Whatever the reason may be, just as there was patent invalidity in the original Act which for number of years went unchalleng-ed, so far greater number of years an invalidity which to their Lordships as to the majority of the High Court has been con-vincingly demonstrated, has been disregarded. Such clear convic-tion must find expression in the appropriate judgment." . .

We .had decided not to deal with the merits of individual cases and' accordingly Counsel had not addressed any arguments on the im-pugned Acts passed by the Kerala State Legislature. It would be for the Constitution Bench to decide whether the impugned Acts take· away fundamental rights. If they do, they will have to be struck down. If they only abridge fundamental rights, it would be for the Constitu-. tion Bench to determine whether they are reasonable abridgements essential in the public interest.

Broadly speaking, constitutional amendments hitherto made in, art. 19 and art. 15 and the agrarian laws enacted by various State• furnish illustrations of reasonable abridgement of fundamental rights in the public interest.

It was said during the arguments that one objecr of art. 31-B was to prevent time-consuming litigation, which held up implementation of urgent reforms. If petition is filed in the High Court or suit is. filed in subordinate court or point raised before magistrate chal-lenging the validity of an enactment. it takes years before the v~lidity of an enactment is finally determined. Surely, this is not good reason to ~eprive persons of their fundamental rights. There are other ways available to the Government to expedite the decision. It may for example propose ordinary legislation to enable parties to approach the Supreme Court for transfer of such cases to the Suoreme Court for dct;rmmation of substantial questions of interpretation of the Consti-tution.

PART VIII: Conclusions

To summarise, I hold that :

(a) Golak Nath's(') case declared that constitutional amend-ment would be bad if it infringed art: 13(2)1 as thil111pplled. not only to ordinary legislation but also to an amendment of the Constitution. ·

(b) Golak Nath' s(') case did not decide whether art, . 13(2) can be amended under art. 368 or determine the exact. mean-ing of the expression "amendment of this Constitution" in art. 368.

(c) The expression "amendment of this <Anstitution~ 'docs not enable Parliament to abrogate or take away. fundamental rights or to completely change the fundamental features of the Constitution so as to destroy its identity. Within these limits Parliament can amend every article.

{d) The Constitution (Twenty-fourth Amendment) Act, 1971, as interpreted by me, has been validly enacted.

{ e) Article 368 does not enable Parliament in its constituent capacity to delegate its function of amending the Constitu-tion to another legislature or to itself in its ordinary legis-lative capacity. ·

(f) Section 2 of the Constitution (Twenty-fifth Amendment) Act, 1971, as interpreted by me, is. valid.

(g) Section 3 of the <Anstitution (Twenty-fifth Amendment) Act, 1971 is void as it delegates power to legislatures to amend the Constitution. ·

(h) The Constitution (Twenty-Ninth Amendment) Ai:t, 1971 is ineffective to protect the impugned Acts if they abrogate or take away fundamental rights. The Constitution Bench will decide whether the impugned Acts take away funda-mental rights or only abridge theni; and in the latter case whether they effect reasonable abridgements in the public interest. · ·

The Constitution Bench will determine the validity of the Consti-'tlltion (Twenty-sixth Amendment) Act, 1971 in. accordance wi!;h this judgment, and the law.

The cases are remitted to the Constitution Bench to be decided in> accordance with this judgment, and the law. The parties will bear their own costs.

SHEi.AT & GRoviR, JJ. :-All the six writ petitions involve com• mon questions as to the validity of the 24th, 25th and 29th amend· ments to the Constitution. It is not necessary to set out the facts which have already been succinctly stated in the judgment of the learned Chief Justice.

It was considered, when the larger bench was constituted, that the decision of the questions before us would hinge largely on the correctness or otherwise of the decision of this court In I. C. Golak Nath & Others v. State of Punjab & Anr.('), according to which it was held, by majority, that Art. 13(2) of the Constitution was applicable to constitutional amendments made under Art. 368 and that for that reason the fundamental rights in Part III could not be abriged in any manner or taken away. The decision in Golak Nath has become academic, for even on the assumption that the majority decision in that case was not correct, the result on the questions now raised be-fore ns, in our opinion, would just be the same. The issues that have been raised travel far beyond that decision and the main question to be determined now is the scope, ambit and ,extent of the amending power conferred by Art. 368. On that will depend largely the deci-sion of the other matters arising out of the 25th and the 29th amend-ments.

The respective positions adopted by learned counsel for the par-ties diverge widely and are irreconcilable. On the side of the peti-tioners, it is maintained inter alia that the power of the amending body (Parliament) under Art. 368 is of limited nature. The Consti-tution gave the Indian citizens the basic freedoms and polity or form of government which were meant to be lasting and permanent. Therefore, the amending power does not extend to alteration or des-truction of all or any of the essential features, basic elements and fundamental principles of the Constitution which power, it is said, vests in the Indian people alone who gave the Corutitution to them-selves, as is stated in its Preamble.

The respondents, on the other hand, claim an unlimited power for the amending body. It is claimed that it has the full constituent power which legal sovereign can exercise provided the conditions laid down in Art. 368 are satisfied. The content and amplitude of the power is so wide that, if it is so desired, all rights contained in Part III

\Fundamental Rights) such as freedom of speech and expression; the freedom to form associations or unions and the various other free-doms guaranteed by Art. 19( 1) as also the right to freedom of religion as contained in Arts. 25 to 28 together with the protection of interests -0f minorities (to mention the most prominent ones) can be .abrogated and taken away. Similarly, Art. 32 which confers the right to move this court, if any fundamental right is breached, can be repealed or abrogated. The directive principles in Part IV can be altered dras-tically or even abrogated. It is claimed that democracy can be replaced by any other form of government which may be wholly undemocra-tic, the federal structure can be replaced by unitary system by abolish-ing all the States and the right of judicial review can be completely taken away. Even the Preamble which declares that the People of India gave to themselves the Constitution, to constitute India into Sovereign Democratic Republic for securing the great objectives men-tioned therein can be amended; indeed it can be completely repealed, Thus, according to the respondents, short of total abrogation or repeal of the Constitution, the amending body is omnipotent under Art. 36!\ and the Constitution can, at any point of time, be amended by way of variation, addition or repeal so long as no vacuum is left in the governance of the country.

These petitions which have been argued for very long time raise momentus issues of great constitutional importance. Our Consti-tution is unique, apart from being the longest in the world. It is meant for the second largest population with diverse people speaking diffe-rent languages and professing varying religions. I~ was chiselled and shaped by great political leaders and legal luminaries, most of whom, had taken an active part in the struggle for freedom from the British yoke and who knew what domination of foreign rule meant in· the way of deprivation of basic freedoms and from the point of view of exploitation of the millions of Indians. The Constitution is an organic document which must grow and it must take stock of the vast socio-economic problems, particularly, of improving the lot of the common man consistent with his dignitly and the unity of the nation.

We may observe at the threshold that we do not propose to exa-mine the matters raised before us on the assum)?tion that Parliament will exercise the power in the way claimed on behalf of the respon-dents nor did the latter contend that i~ will be so done. . But while interpreting constitutional provisions it is necessary to determine their width or reach in fact the area of operation of the power, its mini-mum and maximum dimensions cannot be demarcated or determined without fully exallllning the rival claims. Unless that is done, the ambit, content, scope and extent of the amending power cannot be properly and correctly decided.Fimr owr p11tpascs it is not 111Ccess11ry to g1lil ptim- ·to the year 1934 . . lt was in that year that the Inclian NatiGnal Congress made the de-mand for Constiruent Assembly as part! of i;ts policy. This demand WllS 11epcated in the Central LegiS!ative Assembly in 1937 by the rc-presc:statives of the Congress. By what is koown as the Simla Confer-ence 1.945 the Congress repeated its sttmd that India could only accept the Go!llll'liturion dr.nm by the people. After the end ef World War II the demand was put forward very strongly by the Indian leaders in-cluding Mahatma Gandhi. Sir Strafford Cripps representing Britain had ca:ls<> accepted the idea that an elected body of Indians should frame the Indian Constirution. (') In September 1945 the newly elected British Labour Government annowiccd that it favoured the creation of wnstituent ,body in India. Elections were to be held so that the· newly elected provincial legislatures could act as electoral bodies for the C(onstituent Assembly. parlianient~y delegation was sent to India in January 1946 and this was followecf by what is known as the Cabinet Mission. There were great deal of difficulties owing to the differences between the approach of the Inclian National Congress and the Muslim League led by Mr. M. A. Jinnah. The Cabinet Mission devised plan which was announced on May 16, 1946. By the end of June, both the Muslim League and the Congress had accepted it with reservations. The Constituent Assembly was cl:ected between July-August 1946 as result of the suggestion contained in the statement of the Cabinet Mission. The Attlee Government's efforts to effect an agreement between thi: Congress and the Muslim League having failed, the partition of the country came as consequence ci. the declaration of the British Governinent on June 3, 1947. As re.ult of that de-claration certain changes took place in the Constituent Assembly. There was also readjustment of representation of Indian States from · time to time between December 1946 and November 1949. Many Smaller States merged into the provinces, many united to from union of States and some came to be administered as commissioner's pr<>-vinces. There was thus gradual process by which the Constituent· Assembly became fully representative of the various communities and interests, political, intellectual, social and cultural. It was by virtue of s. 8 of the Indian Independence Act 1947 that the Constituent Assembly was veHed_ with the legal authority to frame Constitution for India.

The .first meeting of the Oonstituent Assembly took place on December 9, 1946 when the swearing in of members and election df temporary president r.o conduct the business until the installation of permanent head, took place. On December 13, 1946 Pandit Jawahar Lal Nehru moved the famous "Objectives Resolution" giving an out-

(') The facts have been taken mainly from the Indian Constitution, Corner-stone of Nation, by Granville Austin.

line, aims and objects of the Constitution. This resolution was actually passed on January 22, 1947 by all members of the Constituent Asseni. bly (standing) and it declared among other matters that all power and authority of the S101Vereign Independent India, its constituent parts and organs of Governmen~ are derived from the people. By November 26, 1949 the deliberations of the Constituent Assembly had concluded and the Constitution had been framed. As recited in the Preamble it was· on that date tihat the people of India in the Consti-tuent Assembly adopted, enacted and gave to themselves "this Consti-tution" which according to Art. 393 was to be called "The Constitu· ti on of India". In accordance with Art. 394 that Article and the other Articles mentioned therein were to come into force at once but the remaining provisions of the Constitution were to come into force on the 26th day of January 1950.Before the scheme of the Constitution is examined in some detail it is necessary to give the pattern which was followed in framing it. The Constituent Assembly was unfettered by any previous commit· ment in evolving constitutional pattern "suitable tlO the genius and requirements of the Indian people as whole". The fusembly had before it the experience of the working of the Government of India Act 1935, several features of which could be accepted for the new Constitution. Our Constitution borrowed great deal from the Con-stitutions of other countries, e.g. United Kingdom, Canada, Australia, Ireland, United States of America and Switzerland. The Constitution being supreme all the organs and bodies owe their existence to it. None can claim superiority over the other and each of them has ·to function within the four-corners of the constitutional provisions. The Preamble embodies the great purposes, objectives and the policy underlying its provisions apart from the basic character of the State which was to come into existence i.e. Sovereign Democratic Repub-lic. Parts III and IV which embody the fundamental rights and directive principles of state policy have been described as the consci-ence of the Constitution('). The legislative power distributed between the Union Parliament and the State Legislatures cannot be so exer-cised as to take aw~y or ab.idge the fundamental rights contained in Part III: Powers of the Union and the States are further curtailed by conferring the right to enforce fundamental rights contained in Part III by moving the Supreme Coun for suitable relief('), Art. 32 itself has been constituted fundamental right. Part IV containing the directive principles of Stal!e policy was inspired largely by similar provisions in the Constitution of the Eire Republic (1937). This

( [1]) The Indian Constitution by Granville Austin p. 50.

·.Part, according.to Jl..'N,,Raoi'is ~can Instrumen~ ·of Instructions .from the ull,ina:ate sovereign, namely, the people of India ( [1]). The -Constitution h:is· all the essential .clements of federal structure as was the case in the Government· oflndia Act 1935, the essence offederalism being. the distribution . of 'powers betWeen the federation or the Union and th~ ·S(3.tes o~, the provinces;· All the 'l!cgislatures have plenary powers but these arc controlled, by the basic concepts of the Constitu-ti~n it~lf and thty function within the. limits laid down in it('). All the functronaries, be they legislators, members of the executive or tihe judiciary take oath of allegiance to the Constitution and derive their authority and jurisdiction fro Di ·its provisions. : The Constitution has entrusted to the judicature in this country the task of construing the provisions of the Constitution and of safeguarding the fundamental . rights('). It is written and controlled Constitution. It can be amended only to the extent of and in accordance with the provisions contained therein, the pnncipa1 provision being Art. 368. Although our Consti• tution is federal in its structure it provides system modellec) on the British parliamentary systc;m. It is the executive that has the main responsibility for formulating the governmental policy by "trans-mitting it into ·taw" whenever necessary. '.'The executive function comprises both the, determination of the. policy as well as carrying it into execution. This evidently includes the inilliation of legislation, the maintenance of order, the promotion of social and economic wel-fare, the direction of foreign policy, in fact the carrying on or super-vision of the general administration of the State."(') With regard to the civil services and the position of the judiciary the British model has been adopted inasmuch as the appointment of judges lioth of the Supreme Court of India and of the High Courts of tihe States is kept free from political controversies .. Their independence has been assured. But the doctrine of parliamentary sovereignty as it obtains in England docs not prevail here except to the extent provided by the Constitu-tion. The entire scheme of 1!he Comtitution is such that it ensures the sovereignty and integrity of the country as Republic and the deme>-cratic way of -life by parliamentary institutions based on free and fair elections.

India is secular State in which there is no State religion. Special provisipns have been made in the Constitution guaranteeing the free-dom of conscience and free profession, practice and propagation of

( [1 ])- B. N. Rao, India's Constitution in the Making p. 393.

(') Per Gajcndragadkar C.J, in Special Rcfcrcncc No. 1 of 1964, [1965]

1 S.CJt 413 at p. 445.

( [1]) Ibid p. 446.

(') R. S. Ram Jawaya Ka[1Ur l!r Othb-s v. The Stak of Punjab (1955) . 2 S.C.R. 225 at p. 236. IS-36 S. C. Indial73

religion and the freedom to manage religious affairs as also the protec-tion of interests of Minorities. The interests of scheduled castes and the scheduled tribes have received special trcatmenn. The Rule of Law has been ensured by providing for JUdicial review. Adult suffrage, the "acceptance of the fullest implications of democracy" is one of the most striking features of the Constitution. According to K. M. Panni-kar, "it may well be claimed that the Chnstitution is solemn pro-nlise to the people of India that the legislature will do everything pos-sible to renovate and remnstitute the society on new principles(')".

We may now look at the Preamble.

It reads:-

"We, THE PEOPLt OF !Nb!A, having solemnly resolved tp constitute India into SOVEREIGN DEMOCRATIC REPUB-LIC and to secure to all its citizens :

JUSTICE, social, economic and political;

LIBERTY of thought, expression, belief, faith and worship;

EQUALITY of status and of opportunity; and to promote among them all;

FRATERNITY assuring the dignity of the individual and the uniry of the Nation;

IN OUR CONSTITUENT ASSEBML Y this twenty-sixth day of November 1949, do HEREBY ADOPT, ENACT AND GIVE TO OURSELVES THIS CONSTITUTION".

It may be mentioned that this Preamble and indeed the whole Consti-tution was drafted in the light of and directions .contained in the "OBJECTIVES RESOLUTION" adopted on January 22, 1947.

According to Granville Austin('), directive principles of State policy set forth the humanitarian socialist precepts that were the aims of the Indian social revolution. Granville Ausnin, while summing up the interrelationship of fundamental rights and directive principles, says that it is quite evident that the fundamental rights and the direc-tive principles were designed by the members of the Assembly to be the chief instruments in bringing about the great r~forms of the social revolution. He gives the answer to the question whether t11ey have helped to bring the Indian society closer to the Constitution's --------

( [1]) Hindu Society at crossroads (,By K. M. Pannikar) at pages 63-64.

( [2]) Cornerstone •f nation (Indian Constitution) by Granville Austin, p. 75.

1!(>111 of social, economic and political justice for all in the affirma-tive ([1]) Das C. J. in Rt: Kera/a Ed#cation Bill 1957(') made the 'following observations with regard to Parts III and IV :-

' "While our Fundamental Rights arc guaranteed by Part Ill o1 the Constitution, Part IV of it on the other hand, lays down cer-tain directive principles of State policy. The provisions contained in. that Part arc not enforceable by any court but the principles therein laid down are, nevertheless, fundamental in the govern· ance of the country and it s~all be the duty of the State to apply these principles in making laws. Art. 39 enjoins the State to. direct its policy towards securing, amongst other things, that the citizens, men. and women, equally, have the right to an adequate means of livelihood."

Although in the previous deci<;ions of this Court in Stak of Madras v. Smt. Champakam Doraira;an(') and Mohd. Hanit Qureshi & Ot!iers v. The State of Bihar(') it had been hdd that the directive principles of State policy had to conform to and run subsidiary to the Chapter of Fundamental Rights, the learned Chief Justice was of the view which may he stated in his own words :-

"Nevertheless in dete(rnining the scope and ambit of the funda-mental 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 con.~truction and should attempt to give effect to both as much as po5sible".

The first question of prime importance involves the validity of the Constitution Amendment Act 1971 (hereinafter called the 24th Amendment). It amended Art. 368 of th~ ConstitJUtion for the first time. According to the Statement of Objects and Reasons in the Bill relating to the 24th amendment. the result of the judgment of this Court in Golak Nath's(') case has been that Parliament is considered to have no power to take away or curtail any of the fundamental rights guaranteed by Part III of the Constitution even if it becomes necessarv to do so for giving effect to the Directive Principles of State Policy and

(') Indian Constitution (Cornerstone of nation) by Granville Austin

p: 113.

(') [1959) S.C.R. 995 at p. 10~

(") [ 1951] S.C.R. 525 at p. 531,

(') [1959) S.C.R. 629.

{') [1967] 2·~.C.R. 762.

for. attainment of the Objectives set out in the Preamble to the Consti-rution. It became, therefore, necessary to provide expressly that Parlia-ment has the power to amend any provi•ion of the Constitution. in-cluding the provisions contained in Part III.

. Article 368 is in separate Part i.e. Part XX. Its marginal note before the 24th Amendment was "Procedure for amendment of the Constlitution''. It provided in the substantive portion of the Article how the Constitution "shall stand amended" when "An Amendment of this Constitution" was initiated by the introduction of Bill in either House of Parliament. The following oonditions had to be satis-fied: -

(i) The Bill had to be passed in each House by majority of the total membership of that House and by majority of not less than two-thirds of the members of that House present and voting.

(ii) The Bill had to be presented for the assent of the President and his assent had to be obtained.

Under the proviso, it was necessary to obtain ratification of legislatures of not less than one half of the States by Resolutions before presenting the Bill to the Preooent for assent if the amendment sought to make any change in the Articles, Chapters eoc. mentioned in clauses (a) to (e). Clause (e) was "the provisions of this Article".

The 24th Amendment made the following changes :

(i) The marginal heading has been substituted by "Power of Parliament to amend the Constitution and procedure there-for".

(ii) Art. 368 has been re-numbered .• as clause (2) .

(iii) Before clause (2), the following clause has been inserted :-

''Notwithstanding anything in this Constitution, Parliament may i.n exercise of the Constituent power amend by way of addition, variation or repeal any provision of this Constitution in accord-ance with the procedure laid down in this article".

(iv) In clause (2) as renumbered, for the words "it shall be pre-sented to President for his assent and upon such assent being given to the B~I" the words "it shall be presented to the Presi-dent who shall give his assent to the Bill and thereupon" have been substituted.

(v) new clause (3) has been inserted, namely:

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

Ia may be mentioned that by the 24th amendment clause ( 4) has been inserted im Article 13 itself. It is :

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

On behalf of the petitioners, Mr. Palkhivala stated that he need not for the purposes of this case dispute the 24th Amendment in so far as it leads to the following results :-

(i) The insertion of the express provision in Art. 368 that the source of the amending power is the Article itself.

(ii) The President is bound to give assent to any Bill duly passed under that Article.

The following three results have, however, been the subject of great l!lcal of argument : -

(i) The substitution of the words in Art. 368 "amend by way of addition, variation or r~peal. . . ...... " in place of the concept 'amendment'.

(ii) Making it explicit in the said Article that when Parliament makes constitutional amendment under the Article it acts "in exercise of its constituent power".

(iii) The express provi.ion in Article 13 and 368 that the bar in the former Article against abridging or taking away any of the fundamental rights should not apply to an amendment made under the latter Article.

In the judgment of Chief Tustice Subba Rao with whom four learned judges agreed in Golak Nath's case the source of the amending power was held to reside in Art. 248 read with entry <J7 of List I to the Seventh Schedule. Whether r11at view is sustainable or not need not be considered here now owing to the concession made by Mr. Palkhi-vala that by amendment of Art. 368 such power could be validly located in that Article even if it be assumed that it did not originally reside there. The real attack, therefore, is directed against the validity of the 24th Amendment in so far as the three results mentioned above arc concerned. It has been maintained that if the effect of those results is that the Parliament has clothed itself with legal sovereignty which thi!>-People of India alone possess, by taking the full constituent power,

and if the Parliament can in exercise of that power alter or destroy all or any of the 'essential .featlll'es' of the -Constitution, the 24th Amend· ment will be void. The fundamental rights embodied in Part III arc part of the 'essential features' and if their essence or core can be damaged or taken away, the 24th amendment will be void and illegal.

The position taken up on behalf of the respondents is that' so far as Article 368 's concerned, the 24th Amendment has merely clarified the doubts cast in the majority judgment in Colak Nath. That Araclc, as it originally stood, contained the constituent power by virtue . of which all or any of the provisions of the Constitution including the Preamble could be added to, varied or repealed. In other words, the power of amendment was unlimited and unfettered and was not cir-cumscribed by any such limitations as have been suggested on behalf of the petitioners. Therefore, the crux of t!he matter is the cktermina-tion of the true ambit, scope and width of the amending provisions contained in Art. 368 before the changes and alterations made in it by the 24th Amendment. If the Article conferred the power of the amplitude now covered by the 24th Amendment nothing new has been done and the amendment cannot be .challenged. If, however, the original power though having the constituent quality was limit· ed one, it could not be increased. In other words the amending body cannot enlarge its own powers.

What then is the meaning of the word "amendment" as used in Art. 368 of the Constitution. On behalf of the respondents it has been maintained that "amendment" of this Constitution" can have only one meaning. No question, can arise of resorting to other aids in the mat-ter of interpretation or construction of the expression "amendment." On the other hand, the argument of Mr. Palkhivala revolves on the expression "amendment"• which can have more than one meaning and for that reason it is essential to discover its true import as well as ambit by looking at and taking into consideration other permissible aids of construction. No efforts have been spared on both sides to give us all the meanings of the words "amendment" and "amend" from the various dictionaries as also authoritative books and opinions of authors and writers.

It is more proper, however, to look for the true 'meaning' of the word "amendment" in the Constitution itself rather than in the dk· tionaries. Let us first analyse the scheme of Art. 368 itself as it sl'OOd before the 24th Amendment.

(i) The expression "amendment of the ConstitUtion" is not de-fined or explained in any manner although in other Parts ti the Constitution the word "amend" as will be noticed ·later,

has beon expanded by 11sc of th~ expr~ssion "~Qlend by way of addition, variation ar rcpe\11."

(ii) The power in res~cc of amendment has not been conferred in express terms. It can be spelt out only by necessary im- . plication.

(iii) The proviso uses the W(ll"ds "if such amcnd!llcnt seeks to make any change j.n". It. dOC$ not use the words "change of" or "change" s;mpliciter. .

(iv) The provisions of the Constitution mentioned in the proviso do not show that the basic structure of the Constitution can be changed if the procedure lai4 down therein is followed. For instance, cl. (a) in the proviso refers to Articles S4 and S5 which relate to the election of the President. It is noteworthy that Article S2 which provides that there shall be President of India and Art. 53 which vests the power of the Union in the President and provides how it shall be exercised are not included in clause (a). It is incomprehensible that the Consti-tution makers intended that although the ratification of the legislatures of the requisite number of States should be ob-tained if any changes were to be made in Articles S4 and SS but that no such ratilication was necessarv if the office of the President was to be abolished 'Ind the ex~cutive power of the Union was to be exercised by same other person or authority.

(v) Another Article which is mentioned in cl. (a) is Art. 73 which deals with the extent of the executive power of -the Union. So far as the Vice-President is concerned there is no mention of the relev:int Articles relating to him.· In other words the States h~ve been given no voice in the question whether the ofliee of the Vice-President shall be continued or abolished or what the method of his election ·would be.

(vi) The neict Article mentioned in cl. (a\ is 162 which deals with the extent of the executive power of the States. The Articles relating to the appointment and conditions pf service of Governor, Constitution and functions of his council of minis-ters as also the conduct of business are not mentioned in cl. (a) or any other part of the proviso. (vii) Along with Articles S4, S5, 73 and 162. Article 241 is men-tioned in cl. (a) of the proviso. This Article dealt originally only with the High Courts for States in Part of the First Schedule.

(viii) Chapter IV of Parr V of the Constitution deals with the Union Judiciary and Chapter V of Part VI with the High Courts in

the States. Although these have been included in cl. (b) of the proviso it is surprising !'hat Chapter VI of Part VI which relates to Subordinate Judiciary is not mentioned at all, which is the immediate concern of the States.

(ix) Chapter I of Par' XI which deals with legislative .relations between the U ruon and the States is included in cl. (b) oi. th~ proviso but Chapter II of that Parn which deals with Adminis-trative Relations between the Uruon and the States and vari-ous other matters in which the States would be vitally in-terested are not included.

(x) The provisions in the Constitution relating to services under the State as also with regard to Trade and Commerce are not included in the proviso.

(xi) Clause (c) of the proviso mentions the lists in the Seventh Schedule. Clause (d) relates to the representation of States in Parliament and clause ( e) to the provisions of Art. 368 it-self.

The net result is that the provisions contained in els. (a) and (b) of the proviso do not throw any light on the logic, sequence or syste-matic arrangement in respect of the inclusion of those Articles which deal with the whole of the federal structure. These clauses demons-trate that the reason for including certain Articles and excluding other from the proviso was not that all Articles dealing with the federal structure or the States had been selected for inclusion in the proviso. The other unusual result is that if the fundamental rights contained in Part III have to be amended that can be done without complying with the provisions of the proviso. It is difficult to understand that the Constitution makers should not have thought of ratification by the States if such important and material rights were to be abrogated or taken away wholly or partially. It is also interesting that in order to meet the difficulty created by the omission of Articles 52 and 53 which relate to there being President in whom the executive functions of the Union would vest, the learned Solicitor General sought to read by implication the inclusion of those Articles because according to him, the question of election cannot arise with which Articles 54 and 55 are concerned if the office of President is abolished

We may next refer to the use of the words "amendment" or "amended" in other articles of the Constitution. In some articles ·these words in the context have wide meaning and in another context they have narrow meaning. The group of articles which expressly confer power on the Parliament to amend arc five including Art. 368.

The first is Art..4. It relates to laws made under Arts. 2 and 3 to pro.. vid~: for amendment of the First and the Second Schedules and sup-plemental, incidental and consequential matters. The second Article is 169 which provides for abolition or creation of Legislative O:>Uncils in States. The third and the fourth provisions are paras 7 and 21 of the 5th and 6th Schedules respectively which have to be read with Art. 244 and which deal with the administration of Scheduled Areas 211d Tribal Areas. The expression used in Arts. 4 and 169 is "amend-ment". In paras 7 and 21 it is the expanded expression "amend by way of addition, variation or repeil.I" which has been employed. Parlia-ment has been empowered to make these amendments by law and it has been expressly provided that no such law shall be deemed to be an amendment of the Constirution for the purpose of Art. 368.

It is apparent that the word "amendment" has -been used in narrower sense in Art. 4. The argument that if it be assumed that Parliament is invested with wide powers under Art. 4 it may con-ceivably exercise power to abolish the legislative and the judicial -Ocgans of the State altogether was refuted by this court by saying that State cannot be formed, admitted or set up by law under Art. 4 by the Parliament which docs not conform to the democratic pattern envisaged by the Constitution('). Similarly any law which contains provisions for amendment of the Constitution for the purpose of aboli-tion or creation of legiS!ative .councils in States is only confined to that purpose and the word "amendment". has necessarily been used in narrow sense. But in Paras 7 and 21 the expanded expression is em-ployed and indeed an attempt was made even in the Constituent Assembly for the insertion of new clause before cl. (1) of draft Art. 304 (Present Article 368). The amendment(') (No. 3239) was pro.. posed by Mr. H. V. Karnath and it was as follows :-

"Any provision of this Constitution may be amended, whether by way of variation, addition or repeal, in the manner provided in this article''. ·

Mr. Karnath had· moved another amendment in draft Art. 304 to suh-~titute the words "it shall upon presentation to the President receive his assent''. Both these amendments were negatived by the Constituent Assembly('). It is noteworthy that the 24th amendment as now insert-.ed has. introduced substantially the same amendments which were not accepted by the Constituent Assembly,

( [1]) MimgalSingh & Anr. v. Union of India, [1967] 2 S.C.R. 109 at p. 112. i18 ar pp. 96-ifl. . · .(~) Constituent Assembly Debates Vol. 9, p. 1663.

The C!lllstituent Assembly, must be presumed to be fully aware

of the expanded expression, as on September 17, 1949 it had substituted the following section in place of the old s. 291 of the Government of India Act 1935 by means of Constituent Assembly Act 4 of 1949 :-

"291. Power of the Governor General to amend certain prof.lisions of the Act and order made thereunder.-

"(l) The Governor General may at any time by Order make such

amendments as he considers necessary whether by way of addi-tion, modification, or repeal, (emphasis supplied) in the provisions of this Act or of any Order made thereunaer in relation to any Provincial Legislature with respect to any of the following mat-ters, that is to say,-

(a) .................... "

The word "amendment" has also been used in certain Articles like Art. 107 dealing with legislative procedure and Article lll which enables the President to send message requesting the Houses to con-sider the desirability of introducing amendments etc., "Amendment''' as used in these Articles oould only have limited meaning as is ap-parent from the context. On behalf of the petitioners great deal of reliance has been placed on the contrast between the use of the word "amendment" in Article 4 and 169 and paras 7 and 21 of the 5th and 6th Schedules which use the composite expression "amend by way of addition, variation or repeal." It is pointed out that in Article 368 it is only the word "amendment" which has been used and if the Constitu-tion makers intended that it should have the expanded meaning then there was no reason why the same phraseology would not have been employed as in paras 7 :ind 21 or as has been inserted now by the 24th amendment. The steps in this argument are :

(i) The contrast in the language 'employed in the different provi-sions of the Constitution in respect of amendment ;

(ii) conferment of the wider power for the purpose of the 5th and 6th Schedules which empower the Parliament to alt~r and repeal the provisions of those Schedules relating to the institutions contemplated by them, the law making authority set up under them and the fundamental basis of administra-tion to be found in the two Schedu\es.

(iii) the wide language used in paras 7 and 21 of the two Sche. dules was meant for the purpose that at proper time in the future or whenever considered necessary the entire buic struc-ture of the Schedules could be repealed and the areas and tri-bes covered by them could be governed and administered like the rest of India.

(iv) the use of the word "amendment" simpliciter in Article 368 must have narrower meaning than the composite expression "amend" or "amendment" by way of addition, variation or repeal and must correspond to the meaning of the word "amend" or "amendment" in Articles 4 and 169 .

( v) The power of amending the Constitution is not concentra~ in Article 368 alone but it is diffused as it is to be found m the other Articles and provisions mentioned. The reason why it was added that no law passed by the Parliament under those provisions shall be deemed to be an amendment of this Constitution for the purpose of Article 368 was only meant to clarify that the form and manner prescribed by Article 368 was not to be followed and the Parliament could, in the ordi-nary way, by following the procedure laid down for passing legislative enactments amend the Constitution to the extent mentioned in those Articles and provisions.

The learned Advocate General of Maharashtra, who appears for respondent No. 1, has laid great deal of emphasis on the fact that Article 368 is the only Article which is contained in separate Part having the title "Amendment of the Constitution". It is under that article that all other provisions including Aricles 4, 169 and paras 7 and 21 of the Sth and 6th Schedules respectively can be amended. The latter group of articles contain limited power because those Articles are subordinate to Article 368. This is illustrated by the categorical statement contained in each one of those provisions that no such law amending the Constitution shall be deemed to be an amendment there of for the purpose of Article 368. As regards the composite ex-pression "amend by way of addition, variation or repeal" employed in paras 7 and 21 of the two Schedules, it has been pointed out that clause (2), in which the words "Amendment of this Constitution" are used clearly shows that addition, variation or repeal of any provision would be covered hy the word "amendment". According to the learned Attorney General the word "amendment'' must mean, variation addi-tion or repeal. He has traced the history behind paras 7 and 21 of Schedules S and 6 to illustrate that the expression "amend by way of addition, variation or repeal" has no such significance and does not enlarge the meaning of the word "amendment". Our attention has been invited to number of Articles in the Consnitution itself out of which ~ention may be made of Articles 320(5) and 392(1) where the expressions used were "such modification, whether by way of repeal or amendment" and "such adoption whether by way of modification addition or omission". It has been urged that the expression "amend: ment of this Constitution" has acquired substantive meaning over the

years in the context of written Constitution and it means that any part of the Constitution can be amended by changing the same either by variation, addition or repeal.

Dr. B. R. Ambedkar who was not only the Chairman of the Drafting Committee but also the main architect of the Constitution made it clear(') that the articles of the Constitution were divided into diiferent categories; the first category was the one which consisted of articles which could be amended by the Parliamenn by bare majo-rity; the second set of articles were such which required the two-third majority. This obviously had reference to the group of articles consisting of Articles 4, 169 and paras 7 and 21 of the two Schedules and Article 368 respectively. The scheme of the amending provisions outlined by Dr. B. R. Ambedkar seems to indicate that the Constitu-tion makers had in mind only one distinction between the amending power conferred by the other Articles and Article 368. No such dis-tinction was present to their mind of the nature suggested by the learned Advocate General that the amending power conferred by Arti-cles other than Art. 368 was of purely subordinate nature. In one sense the power contained in the first group of Articles can be said to he subordinate in those Articles themselves could be amended by the procedure prescribed by Article 368. But that Article itself could be amended by the same procedure. It would not, therefore, be wrong to say that the amending power was of diffused kind and was con-tained in more than one provision of the Consti11Ution. It appears that the statement in the articles and provisions .containing the amending power other than article 368 that any amendment made under those articles would not amount to an amendment under article 368 merely embodied the distinction emphasised by Dr. B. R. Ambedkar that one category could be amended by the Parliament by bare majority· and all the other articles could be amended by the said body but only by following the form and manner prescribed by article 368. Although pnma facie. it would appear that the Constitution makers did not em-ploy the composite expression in Article 368 for certain reasons and even rejected Mr. Kamath's amendment which pointedly brought to their notice that it was of material importance that the expanded ex-pression should be used, it may not be possible to consider this aspect as c~nclusive for the purpose of determining the meaning of the word "amendment" in. Article 368.

According to Mr. Palkhivala there can be three possible meanings of amendment :-

(i) tq Improve or better; to remove an error, the question of im-provement being considered from the standpoint of the basic

philosophy underlying the Constitution but subject to its essential features.

(ii) tq lllake changes which may not tall within (i) but which do. not alter. oc destroy any of the basic features, essential ele-ments or fund;µuental princip!~s of the Constitution. (iii) to make aiiy change whatsoever including· changes falling outside· (ii); ·

He claims that the preferable meaning is that whidi is contained in (i) but what is stated in (ii) is also possible constructio~: Category (iii) shoulfl be ruled out altogether. Category (1) and (n) have common factor, namely that the essential features cannot be damaged or destroyed.

On behalf of the respondents ·in is not disputed that the words "amendment of this Constitution" do not mean repeal or abrogation· of this constitution. The amending power, however, is claimed <ln• behalf of the respondents to extend to .addition, alteration, substitution, modification, deletion of each and every. provision of the constitution. The argument of the Attorney General. is that the amending power in Art. 368 as it stood before the 24th amendment and as it stands now has always been and continues to be the constituent power, e.g., the power to deconstitute or reconstitute the Constitution or any part of it. Constitution at any point of time cannot be so amended by way of variation, addition or repeal as to leave vacuum in the government of the country. The whole object and necessity of amending power is to enable the Constitution to continue and such constituent power, unless it is expressly limuted in the Constitution itself, can by its very· nature have no limit because if any ·such limit is assumed, although· not expressly found in the Constitution, the ~hole purpose of an amending power will be nullified. It has been pointed out that in the Constitution First Amendment Act which was enacted soon after the Constitution of India came into force, certain provisions were inserted, . others substituted or omitted and all these were described as amend-ments of the article mentioned therein. In the context of the constitu-tion, ~endmem. re~ches every pro~ision including the Preamble ana ~ere 1s n~ amb1gmty about 1t which may justify having resort to etther looking at the other Articles for determining the ambit of the amendatory power or taking into consideration the Preamble or the scheme of the Consti11Ution or other permissible aids to construction.

g?D<1 deal of reliance h~ ":en placed on behalf of the respondents on Article 5 of the Constitution of the United States hereinafter ~ll~d the 'A?lerican Constiiiu?on' whlch deals with amendment and its mt~~retat:tOn by the American courts. Reference has been made to· the wntmgs of authors and writers who have dealt with the meaning-

of the word "amendment" in the American Constitution. It has been .argued that in Art. 5 of that Constitution the word used is "amend-ments" and our Constitution makers had that word .in mind when they employed the expression "amendment of this constitution" in Article 368. We propose to refer to the decision from other countrios including those of the Supreme Court of the United States later. We wish to observe, at this stage, that our founding fathers had primarily the Constitutions of Canada, Australia, Eire, U.S.A. and Switzerland 1n view apart from that of Japan. The whole scheme and language of Article 368 is quite different from the amending provisions in Consti-tutions of those countries. For instance, in U.S.A., Eire, Australia, Switzerland and Japan the people are associated in some manner or the other directly with the amending process. It would be purely specu-lative or conjectural to rely on the use of the word "amend" or "amendment" in the Constitution of another country unless the entire scheme of the amending section or article is also kept in mind. In India Parliament is certainly representative of the people but so are •imilar institutions in the countries mentioned above and yet there is ~ provision for ratification by convention or referendum or submission ·of the proposed law to electors directly. Another way of discovenng the meaning on which both sides relied on is to refer to the various speeches in the Constituent Assembly by the late Prime Minister Pan--Oit Jawahar Lal Nehru and late Dr. B. R. Ambedkar the Chief Archi-tects of the Constitution. The position which emerges from an exami-nation of their speeches does not lead to any clear and conclusive result. Their speeches show that our constitution was to be an amend-cable one and much rigidity was not intended. Pandit Nehru time and .again emphasised that while the Omstitution was meant to be as solid and as permanent structure as it could be, nevertheless there was no permanence in the ce>nstitution and there should be certain flexibility; otherwise it would stop a' nation's growth. Dr. Ambedkar, while dealing with draft Article 25 corresponding to the present arti-cle 32, said that the most important Article without which the Consti-tution would be nullity and which was the very soul of the constitu-tion and the heart of it was that Article. But what he said at later stage appears to suggest that that article itself could he amended and according to the respondents even abrogated. This illustration shows . that nothing conclusive can emerge by referring to. the speeches for the purpose of interpretation of the word "amendment''.

It is not possible to accept the argument on behalf of the respon-dents that amendment can have only one meaning. This word or expression has several meanings and we shall have to determine its ·true meaning as used in the context of article 368 by taking assistance from the other permissible aids to construction. We shall certainly

beat in milld the well known ptinciplcs of interpretation and cOllstruc-tion, particularly, of an instrument like Oinstitution. Constitution is nOt to be construed in any narrow and pedantic sense. broad and liberal spirit should inspire those whose duty it is to interpret it. Gwyer C. J.(') adopted the words of Higgins J., of the High Coult of Australia from the decision in Att()l'ney Generlll f()I' New South Wales v. Tlze Brt:wery Employees Union of New South Wales etc.([2]) according to which even though the words of constitution arc to be interpreted on the same principles of interpretation as arc applied to any ordinary law, these very principles of interpretation require taking into account the nature and scope of the Act remembering that "it is constitution, mechanism under which laws are tO be made and not tntre Act which declares what the law is._ to be".(') The decision must depend on the words of the Constitution as provisions of no two· constitutions are in identical terms. The same learned Chief Justice said that the "grant of the power in general terms standing by itself would no doubt be construed in the wider sense, but it may be quali-fied by other express provisions in the same enactment, by the implica-' tion of the context, and even by considerations arising out of what appears to be the general scheme of the Act.".(') The observations o{ Lord Wright in James v. Commonwealth of Australia(") were also quoted in the aforesaid judgment of the Federal Court of India at page 73 :-

"The question, then, is one of construction and in the ultimate resort must be determined upon the actual words used rr:at/ not in vacuo but as occurring in single cotnplex instrument, in which one part may throw light on another. The constitution has been described as the federal compact, and the construction must hold balance between all its parts."

Apart from the historical background and the scheme of the Consti-tution the use of the Preamble has always been made and is permis-sible if the word "amendment" has more than one meaning. Lord Green in Bidis v. General Accident. Fire and Life Assurance Cor-poration (6) pointed out that the words should never be interpreted in vac~o because _few. words in the English language have natural or orpmary mearung m the sense that they must be so read that their

( [1]) In Re. C. P. & Berar Sales of Motor Spirit & Motor Lubricants Taxa tion Act 1938 [1939] F.C.R. 18.

Act 1938 [1939] F.C.R. 18. ( [2 ]) [1908] 6 CL.R. 469 at pp. 611-612.

( [3]) [1939] F.C.R. 18, 37.

(') ibid p. 42.

(') [1936] A.C. 578 at p. 613.

( [6]) [1948] 2 AU. E.R. 998.

meaning is entirely independent of their context. The method which he preferred was not to take the particular words and attribute to them sort of prima facie meaning which may have to be displaced or modified. To use his own words "it is to read the statute as whole and ask oneself the question.

In this state, in this context, relating to this subject matter, what is the true meaning of that word I"

We shall first deal with the Preamble in our Constitution. The Con-stitution makers gave to the preamble the pride of place. It embodied in solemn form all the ideals and aspirations for which the country had struggled during the British regime and constitution was sought to be enacted in accordance with the genius of the Indian people. Jt certainly represented an amalgam of schemes and ideas adopted from the constitutions of other countries. But the constant strain which runs throughout each artd every article of the constitution is reflected in the Preamble which could and can be made sacrosanct. It is not without significance that the Preamble was passed only after draft articles of the constitution had been adopted with such modifications as were approved by the Constituent Assembly. The preamble was, therefore, meant to embody in very few and we11 defined words- the key to the understanding of the const!itution.

It would be instructive to advert to the various stages through which the Preamble passed before it was ultimately adopted by the Constituent Assembly. In the earlier draft of the Union Constitution the Preamble was somewhat formal affair. The one drafted by B. N. Rau said: -

"We, the People of India, seeking ro promote the common good, do hereby, throughout chosen representatives, enact, adopt and give to ourselves this Constitution."

The Union Constitution Committee provisionally accepted the draft Preamble of B. N. Rau and reproduced it in its report of July 4, 1947 without any change with the tacit recognition, at than stage, that the Preamble would finally be based on the Objectives Resolution.

On July 18, 1947, Pandit Nehru in statemenn observed that the Preamble was covered more or less by the Objectives Resolution which it was intended to incorporate in the final Constitution. Three days later, while moving the report of the Union Constitution Committee, he suggested that it was not at that stage necessary to consider the Preamble since the Assembly stood by the basic principles laid down in the Objectives Resolution and these could be incorporated in the Preamble later. The suggestion was accepted and further considci'a-~~!l of the Preamble was held over.

The Drafting Committee considered the Preamble at number of its meetings in February 1948. The Committee omittJed that part of the Objectives Resolution which declared that the territories of India would retain the status of automonous units with residuary powers. By this time the opinion had veered round for strong centre with residuary powers. The Drafting Committee felt. that the Preamble should be restricted "to defining the essential features of the new State and its basic socio-political objectives and that the other matters dealt . with in the Resolution. could be more appropriat;ely provided in the substantial parts of the Co1,1stitution". Accordingly it drafted the Preamble, which subsnantially was in the presen\ form.

Meanwhile important developments had taken place in regard to the Indian States. With the completion of the process of merger and integration of the Indian States the principle had been accepted (i) of sovereign powers being vested in the people, and (ii) that their con-stitutions should be framed by the Constituent Assembly and should form integrated part of the new constitution. On October 12, 1949, Sardar Patel declared in the Assembly that the new Constitution was "not an alliance between democracies and dynasties, but real union of the Indian people, built on the basic concept of the sovereignty of the people."The draft preamble was considered by the Assembly on October 17, 1949. The object of putting the Preamble last, the President of Assembly explained, was to see that it was in conformity · with the Constitution as accepted. Various amendments were at this stage sug-gested, but were reiected. One of such was the proposal to insert ,into it the words "In the name of God". That was rejected on the ground that it was inconsistent with the freedom of faith which was not only promised in the Preamble itself but was also guaranteed as funda-mental right. ( [1])

An amendment was moved in the Constituent Assemblv to make it clear beyond all doubt that sovereignty vested in the people. It was not accepted on the short ground that "the Preamble as drafted could convey no other meaning than that the Constitution emanated from the people and sovereignty to make this Constitution vested in them(').

The history of the drafting and the ultimate adoption of the Pre-amble shows : -

(1) that it did not "walk before the Constitution" as is said about the preamble to the United States Constitution ;

( [1]) Constituent Assembly Debates Vol. 10, pp. 432-442.

(') The Framing of India's Constitution by B. Shiva Rao, p. 131.

16-36 S. C. lndia/73

(2) that it was adopted last as part of the Constitution ;

(3) that the principles embodied in it were taken ma.inly from the Objectives Resolution ;

( 4) the Drafting Committee felt, it should incorporate in it "the essential features of the "new State" :

(5) that it embodied the fundamental concept of sovereignty be-ing in the people.

In order to appreciate how the preamble will assist us in discover-ing the meaning of the weird "amendment" employed in Article 368. we may again notice the argument presented by the respondents that the amending body can alix:r, vary or repeal any provision of the Con-stitution and enact it and apply that process to the entire Constitution short of total repeal and abrogation. It is maintained on behalf of the Respondents that by virtue of the amending power even the preamble can be varied, altered or repealed. Mr. Palkhivala, however, relies great deal on the· preamble for substantiating the conix:ntion that "amendment" does not have the widest possible meaning as claimed by the respo11dents and there are certain limitations to the exercise of the amending power and, therefore, the expression "amendment" should be construed in the lighn of those limitations. All the elements of the Constitutional structure, it is said, are to be found in the pre-amble and the amending body cannot repeal or abrogate those essen-tial elements because if any one of them is taken away the edifice as erected must fall.

The learned Advocate General of Maharashtra, says that the pre-amble itself is ambiguous and it can lie ci no assistance in that sit:ua-. tion. It has furth~r been contended that the concepts recited in the preamble, e.g., human dignity, social and economic justice are vague; different schools of thought hold different notions of their concepts. We are wholly unable to accede to this contention. The preamble was finalised aftet long discussion and it was adopted last so that it may embody the fundamentals underlying the structure of the constitution. It is true tha~ on concept such as social and economic justice there may be different schools of thought but the Constitution makers knew what they meant by those concepts and it was with view to imple-ment them that they enacted Parts III (Fundamental Rights) and Part IV (Directive. Principles of Stare Policy) -both fundamental in character-on the one hand, basic freedoms to the individual and on the other social security, justice and keedom from exploitation by laying down guiding principles for future governments.

Our court has consistently looked to the preamble for guidanc&

and given it transcedental position while interpreting the Constitu-tion or other laws. It was so referred in Behram Khurshid Pesi-kaka' s(') case. Bhagwati J., in Basheshar Nath v. Commissioner of Income-tax(') Rajasthan when considering the question of waiver of fundamental right referred to the preamble and to the genesis of declaration of fundamental rights which could be traced to the report of the Nehru Committee of 1928. He proceeded to' say "the object sought to be achieved was, as the preamble to the Constitution states ................ " In Re Kera/a Education· Bill 1957(') this court rc.-ferred to the preamble extensivcly and observed that the fundamental rights were provided for "to implement and fortify the supreme pur-pose set forth in the preamble". The court also made use of the "ins-piring and nobly expressed preamble to our Constitution" while ex-pressing opinion about the legality of the various provisions of the Kerala Education Bill 1957. It is unnecessary to multiply citations from judgments of this Court in which the preamble has been treated al-most as sacrosanct and has been relied on or referred to for the pur-pose of interpreting legislative provisions. In other countries also fol-lowing the same system of jurisprudence the preamble has been re-ferred to for finding out the Constitutional principles underlying Constitution. In Rex v. Hess(') it was said :-

'I conclude further that the opening paragraph of the preamble to the B. N. A. Act 1867, which provided for "Constitution simi-lar in principle to that of the United Kingdom" thereby adopted the same constitutional principles and hence s. 1025A is contrary to the Canadian Constitution and beyond the competence of Parli-ament or any provincial legislature to enact so long as our Consti-tution remains in its present form of constitutional democracy."

In John Switzman v. Freda Elbling & Attorney General of the ·Province of of Quebec('), Abbot J., relied on the observations of Duff C. J., relied on the observations of Duff C. relied on the observations of Duff C. of Duff C. Duff C. C. J., in an earlier decision in Re Alberta Statutes(") which was affirmed in Attorney General for Alberta v. Attorney General for Canada(7)-that view being that the preamble of the British North America Act showed plainly enough that the Constitution of the Dominion was to be similar in principle to that of the United Kingdom. The statute

·Province of of Quebec('), Abbot J., relied on the observations of Duff C. J., relied on the observations of Duff C. relied on the observations of Duff C. of Duff C. Duff C. C. J.,

( [1 ]) [1955] 1 S.C.R. 613 at p. 653.

( [2]) [1959] Suppl. 1 S.C.R. 528.

( [8]) [1959] s.c.R. 995.

(') [1949] Dom. L.R. 199 at p. 208.

(') [1957] Canada L.R. 285 at p. 326 (Supreme Court).

(') [1938] S.C.R. 100 (Canada).

(') [1939] A.C. 117.

contemplated Parliament working under the influence of public Qpinion and public discussion. In McCawley v. The King Lord Birkenhead (1) (Lord Chancellor) while examining the contention that the Constitution Act of 1867 (Queensland, Australia) enacted certain fundamental organic provisions of such nature which rendered the Constitution sterotyped or controlled proceeded to observe at page 711:-

"It may be premised that if ~ change so remarkable were contem-plated one would naturally have expected that the legislature would have given some indiqtion, in the very lengthy preamble of the <\ct, of this intention. It has been seen that it is impossible to point to any document or mstrument giving to, or imposing upon the Constitution of Queensland this quality before the year 1867. Yet their Lordships discern nowhere in the preamble the least indication that it is intended for the first time to make provi-sions which are sacrosanct or which at least can only be modified by methods never previously required."In re. Berubari Union and Exchange of Enclaves(') an argument had been raised that the preamble clearly postulated that the entire territory of India was beyond the reach of Parliament and could not be affected either by ordinary legislation or even by constitutional amendment. The Court characterized that argument as extreme and laid down the following propositions :-

I. preamble to the Constitution serves as key to open the minds of the makers, and shows the general purposes for -which they made the several provisions in the Constitution;

2. The preamble is not part of our Constitution;

3. It is not sourte of the several powers conferred on govern-ment under the provisions of the Constitution;

4. Such powers embrace those expressly granted in the body of the Constitution "and such as may be implied from those granted";

5. What is true about the powers is equally true about the prohi-bitions and limitations;

6. The preamble did not indicate the assumption· that the firsr part of preamble postulates very serious limitation on one of the very important attributes of sovereignty, viz., ceding

(1) [1920] A.C. 691 at p. 711. (') [1960] 3 S.C.R. 250.

territory as result of the exercise of the sovereign power of the State of treaty-making and on the result of ceding part of the territory.

On behalf of the respondents reliance has been placed on this

case for the propooition that no. ~mitation was read by virtue of the preamble. careful reading of the judgment shows that what was rejected was the contention that the preamble was the source of ! power. Indeed, it was held that the preamble was not even partl of 1 the Comtitution and that one rn,ust se.ek power and its scope in ·the provisions of the Constitution. The premise for the conclusion was that preamble is not the source of power since it is not part of the Constitution. The learned Advocate General of Maharashtra has him-self disputed the conclusion in the aforesaid judgment that the pre-amble is not part of the Constitution. It is established that it was adopted by the Constituent As~emblv after the entire Constitution had been adopted. ·

Mr. Palkhivala has given an ingenious explanation as to why the preamble cannot be regarded as part of our Constitution. He makes distinction between the concept of the Constitution and the concept of the Constitution's statutes. The last words in the preamble "This Constitution is the Constitution which follows the preamble, "accord-ing to Mr. Palkhivala. It starts with Arr. 1 and ended originally with the Eighth Schedule and now ends with the Ninth Schedule after the First Amendment Act 1951. It is sought to be concluded from this that . the way in which the preamble has been draftt:d, indicates that what follows or is annexed to the preamble is the Constitution of India. It is further argued that :

"The Constitution statute of India consist of two parts-one, the preamble and the other the Constitution: The preamble is part of the Constitution statute, but is not part of the Constitution. It precedes it; The preamble came into force on Nov. 26, 1949 and not 26th January 1950 as contended on behalf of Respondent No. l"

There is. clear recital in the preamble that the people of India gave to themselves this Constitution on the 26th day of November . 1949. Even if the preamble was actually adopted by the Constitutent Assembly at later date, no one can question the statement made in the Preamble that the Constitution came into force on the date men-tioned therein. The preamble itself must be deemed by legal fiction ro have come into force with effect from 26th November 1949. Even if this-is plausible conclusion, it does not appear to be sufficient to sup-port the observation in the Berubari case that the preamble was not part of the Constitution. To our mind, it hardly makes any substan-tial difference whether the preamble is part of the Constitution or not. The preamble serves several important purposes. Firstly, it indi· cates the source from which the Constitution comes viz. the people of India. Next; it contains the enacting clause which brings into force the Constitution. In the third place, it declares the great rights and freedoms which the people of India intended to secure to all citirzen• and the basic type of government and polity which was to be esta-blished. From all these, if any provision in the Constitution had to be interpreted and if the expressions used therein were ambiguous, the preamble would certainly furnish valuable guidance in the matter, particularly when the question is of the correct ambit, scope and width of power intended to be conferred by Art. 368.

The stand taken up on behalf of the respondents that even the preamble can be varied, altered or repealed, is an extraordinary one. It may be true about ordinary statutes buti it cannot possibly be SU$-tained in the light of the historical background, the Objectives Resolu-tion which formed the basis of the preamble and t;he fundamental position which the preamble occupies in our Constitution. It consti-tutes land-mark in India's history and sets out as matter of histo-rical fact what the people of India resolved to do for moulding their future destiny. It is unthinkable that the 'Constitution makers ever conceived of stage ~hen it would be claimed that even the preamble could be abrogated or wiped out.

If the preamble contains the fundamentals of our Constitution, it has to be seen whether the word amendment in Art. 368 should be so construed that by virtue of the amending power the Constitution can be made to suffer complete loss of identity or the basic element• on which the constitutional structure has been erected, can be eroded or taken away. While dealing with the preamble to the United States, Constitutio'.l it was observed by Stqry ( Comment)lries on the Consti-tution of the United States, 1833 edition, Volume I), that the preamble was not adopted as mere formulary; but as solemn promulgation of fundamental fact, vital to the character and operations of the Government. Its true office is to expound the nature and extent and application of the powers actually conferred by the Constitution and not substantially to create them(').

Now let us examine the effect of the declarations made and the statements contained in the preamble on interpretation of the word "amendment" employed in Art. 368 of the Constitution. The first thing which the people of India resolved to do was to constitute tlheir

country 'into Sovereign Democratic Republic. No one can suggest that these words and expressions are ambiguous in any manner. Their true import and connotation is so well known that no question of any ambiguity is involved. The question ·which immediately arises is whether the words "amendment or amended ... as employed in Art. 368 can be so interpreted as to confer power on the amending body to· take away any of these three fundamental and basic characteristics of our polity. Can it be said or even suggested that the amending body can make institutions created bv our Constitution undemocratic as opposed to democratic; or aboli;h the office of the President and, instead, have some other head of the Stalle who would not fit into the conception of "Republic" The width of the power claimed on behalf of the respondents . has such large dimension that even the above part of the preamble can be. wiped out from which it would follow that India can cease to be Sovereign Democratic Republic and can have polity denuded of sm-ereignty, democracy and Republican character.No cme has suggested-it would be almost unthinkable for any-one to suggest-that the amending body acting under Art. 368 in our country will ever do any of the things mentioned above, namely change the Constitution in such way that it ceases to be Sovereign Democratic Republic. But while examining the width of the power, it is essential to see its limits, the maximum and the minimum; the entire ambit and magnitude of it and it is for that purpose alone that this aspect is being examined. While analysing the scope and width of the power claimed by virtue of constitutional provision, it is whollv immaterial whether there is likelihood or not of such an evenu;ality arising.

Mr. Palkhivala cited example of one country after another in re-cent history where from democratic constitution the amending power' was so utilized as to make that country wholly undemocratic resulting in the negation of democracy by establishment of rule by one party or small oligarchy. We are not the least impressed by these instances and illustrations. In the matter of deciding the que>-tions which are before us. we do not want to be drawn into the poli-tical arena which, we vent:ure to think, is .. out of bounds" for the judiciary and which . tradition has been cons;stently followed by this Court. [See Wanchoo J, as he then was in Golak Nath(')].

Since ·the respondents themselves claim powers of such wide magnitude that the results which have been briefly mentioned can flow apart from others which shall presently notice, the coniequences

( [1]) (1967) 2 S.C.R. 762 at p. 850.

and effect of suggested construction have to be taken into account as 'has been. frequently done by this Court. Where two wnstructions arc: possible the court must adopt that which will ensure smooth and harmonious working of the Constitution and eschew the other which will lead to absurdity or give rise to practical inconvenience or make well-establmshed provisions of existing law nugatory(').

In Don John Francis Douglas Liyange & Ors. v. The Queen('), Lord Pearson declined oo read the words of s. 29( I) of the Ceylon Constitution as entitling the Parliament to pass legislation which usurped the judicial power of the judicature by passing an Act of Attainder against some persons or instructi11g judge . to bring in verdict of guilty against someone who is being tried-if in law such usurpation would otherwise be contrary to the Constitution.

In Maxwell's Interpretation of Statutes (12th Edition), Chapter 5 deals with restrictive construction and the very first section contains discussion on the question whether the consequences of particular construction being adopted can be considered and examples have been given from cases decided in England with reference t!O the conse-quences. According to American Jurisprudence, Vol. 50, 1962 Reprint at pp. 372, 373 there are cases in which consequences of particular construction are in and of themselves, conclusive as to the correct solution of the question.

The learned Advocate General of Maharashtra has contended that the proper way of construing an amending provision · is not to take into consideration any such speculation that tihe powers conferred by it, would be abused. It has also been,said that any coun deciding the valirlity of law cannot take into consideration extreme hypothetical examples or assume that responsible legislature. would make extra-vagant use of the power(').

According to Mr. Palkhivala, the test of the true width of power is not how probable it is that it may be exercised but what can pos-sibly be done under it; that the abuse or misuse of power is entlirely irrelevant; that the question of the extent of the power cannot. be mixed up with the question of its exercise and that' when the real question is as to the width of the power, expectation that it will never

( [1]) State of Punjab v. Ajaib Singh and Anr. [1953] S.C.R. 254 at page 264; Director of Custon1s, Baroda v. Dig Vijay Singhji Spining & Weaving Mills Ltd. [ 1962] I s.c.R. P• 896.

( [2 ]) [1967] (I) A.C. 259.

(') Th< Bank of Toronto v. Lambe (1887) 1'2 A.C. 575 at pp. 586-587.

be used is as wholly irrelevant as an imminent d~nger o(its use. The <:ourt does not decide what is the best what is the worst. It merely decides what can possibly be done under power if the words con-ferring it are so construed as to have an unbounded and limitles< width, as claimed on behalf of the respondents.

It is _difficult to accede to the submission on behalf of the respon-dents that while considering the consequences with reference to the width of an amending power contained in Constitution any ques-tion of its abuse is involved. It is not for the courts to enter into the wisdom or policy of particular provision in Constitution or sta-tute. That is for the Constitution makers or for the parliament or the legislature. But that the real consequences can be taken into account while judging the width of the power is well settled. The Court can-not ignore the consequences to which . particular construction can lead while ascertaining the limits of the provisions granting the power. According to the learned Attorney General, the declaration in the preamble to our Constitution about the resolve of the people of India to constitute it into Sovereign, Democratic Republic is only decla-ration of an intention which was made in 1947 and it is open to the amending body now under Art. 368 · to change the Sovereign Demo. aatics Republic into some other kind of polity. This by itself shows the consequence of accepting the construction sought to be put on the material words in that article for finding out the ambit and width of the po~ver conferred by it. : · . . -

The oth~r part of the Preamble may next be examined. The Sove-reign Democratic Republic has been constituted to secure to all the <:itizens the objectives set out. The attainment of those objectives forms the fabric of and permeates the whole scheme of the Constitution. · \Vhile most cherished freedoms and rights have been guaranteed the government has been laid under solemn duty to give effect to the Directive Principles. Both Parts III and IV which embody them have to be balanced and harmonised-then alone the dignity of the indivi-dual can be 'achieved. It was to give effect to the main objectives in the Preamble that Parts III and IV were enacted. The three main organs of government legislative, executive and judiciary and the entire mechanics of their functioning were fashioned in the light of the ob-jectives in the Preamble, the nature of polity mentioned therein and the grand vision of unjted and free India in which every individual high or low will partake of all that is capable of achievem~nt. Vie must, therefore, advert to the background in which Parts III and IV came to be enacted as they essentially form basic element of the Constitution without which its identity will completely change.· It is not possible to go back at any length to the great struggle for freedom from British Rule and the attainment of independence. The British executive's arbitrary acts, internments and deportations without trial and curbs on the liberty of the press and individuals are too well known to every student pf Indian history to be specificallv mentioned. This was before some essential rights based on British Common law and jurisprudence came to be embodied in various · Parliamentary enactments. According to B. N. Rau('), human rights, with few exceptions, were not guaranteed by the Constitution (Gov-ernment of-India Act). 'Shiva Rao has in his valuable study(') given the various stages beginning with 1895 Constitution of India Bill framed by the Indian National Congress which envisaged Constitution guaranteeing number of freedoms and rights. Two events at later stage exercised decisive influence on the Indian leaders. One was the inclusion-Of list of fundamental rights in the Constitution of Irish Free State in 1921 and the other, the problem of minorities. ( [3])

The next steps were the report of the Nehru Committee in 1928, the reiteration of the resolve at the session of the Indian National Congress at its Karachi Session in March 1931 and omitting some de-tails, the deliberations of the Sapru Committee appointed by the All India P~rties Conference (1944-45). The British Cabinet Mission in 1946 recommended the setting up of an Advisory Committee for reporting inter alia on fundamental rights. Before reference is made to the Objectives Resolu-::ion adopted in January 22, 1947 it must be borne in mind that the post war period in Europe had witnessed fundamental orientation in juristic thinking, particularly in West Germany, characterized by farewell to positivism, under the influ-ence of positivist legal thinking. During the pre-war period most ol the German Constitutions did not provide for judic;al review which was conspicuously absent from the Weimar Constitution even though Hugo Preuss, often called the Father of that Constitution, insisted on its inclusion. After World War II when the disastrous effects of the positivist doctrines came to be realized there was reaction in favour of making certain norms immune fron1 amendment or abroga!1orL This was done in the Constitution of the Federal Republic of G<r-many. The atrocities committed during Second World \Var anc' t'.ic world wide agitation for human rights ultimately embodied ;n ti:<' U. N. Declaration of Human Rights on which number of the proq-sions in Parts Ill and IV of our Constitution are fashioned mnst net be forgotren while considering these matters. Even in Great Briroin.

( [1 ]) Year Book of Human Rights 1947.

( [2]) Framing of India's Constirution (B. Shiva Rao).

( [3 ]) Ibid p. 172.

where the doctrine of the legal sovereignty of Parliament has prevail-ed since the days of Erskine, Blackstone, Austin and lastly Dicey, the new trend in judicial decisions is to hold that there can be at least procedural limitations (requirement of form and manner) on the legislative powers of the legislature.(') The Objective's Resolution declared, inter alia, the firm and the solemn resolve to proclaim India as Independent Sovereign Republic and to draw up for her future governance Constitution. Residuary powers were to vest in the States. All power and authority of the Sovereign Independent India, its constituent parts and organs of government. were derived from the people and it was stalled :-

"(5) wherein shall be guaranteed and secured to all the peo-ple of India, justice, social, economic and political; equality cl status, of opportunity, and before the law; freedom of thought,. expression, belief, faith, worship, vocation, association and acaon, subject to law and public morality; and

( 6) wherein adequate safeguards shalil. be provided for miner. rities, backward and tribal areas, and depressed and other back-ward classes; and

(7) whereby shall be maintained the integrity of the territory of the Republic and its sovereign rights on land, sea, and air ac-cording to justice and the law of civilised nations, and"

It may be recalled that as regards the minorities the Cabinet Mis-sion had recognised in their report to the British Cabinet on May 6, 1946 only three main communities; general, muslims and sikhs. Gene-ral community included all those who were· non-muslims or non-•ikhs. The Mission had recommended an Advisory Committee to be set up by the Constituent Assembly which was to frame the rights of citizens, minorities, tribals and excluded areas. The Cabinet Mission statement had actually provided for the cession of sovereignty to the· Indian pee>ple subject only to two matters which were; ( 1) willing-ness to conclude treaty with His Ma'esty's Government to cover matters arising out of transfer of power and (2) adequate provision, for the protection of the minorities. Pursuant to the above and paras 5 and 6 of the Objectives Resolution the Constituent Assembly set ur an Advisory Committee on January 24, 1947. The Committee was to consist of represent:atives of muslims, ti1e depressed classes or the scheduled castes, the sikhs, christains, parsis, anglo-Indians, tribals and excluded areas besides the Hindus('). As historical fact it is safe

(1) This follows from the dccisioos in Moor< v. Th< Attorn<y G<n<ral fo1• th< Irish Pre< Stal< (1935) A.C. 484; Attorney Gen<ral for New South Wale~ v. Trethowan {1932) A.C. 526.

to say that at meeting hdd on May 11, 1949 resolution for the abolition of all reservations for minorities other than the scheduled castes found whole hearted suppon from an overwhelming majority of the members of the Advisory Committee. So far. as the scheduled <:astes were concerned it was felt that their pecuHar position would necessitate special reservation for them· for period of ten years. It would not be wrong to say that the separate representatik>n of mino-rities which had been the feature of the previous Constitutions and which had witnessed so much of communal tension and strife was given up in favour of joint electorates in consideration of the guarantee of fundamental rights and minorities rights which it was decided to incorporate into the new Constitution. The Objectives Resolution can be taken into account as hisl)Ofical fact which moulded its nature and character. Since the language of ~e Preamble was taken from the resolution itself the declaration in the Preamble that India would be Sovereign, Democratic Republic which would secure to all its citizens justice, libeny and equality was implemented in Parts III and IV and other provisions of the Constitution. These formed not only the essential features of the Constitution but also the funda-1 mental conditions upon and the basis on which the various groups and in!ICrests adopted the Oonstitution as the Preamble hoped to create one uIDlied integrated community. The decision of the Privy Council in the Bribery Commissioner v. Pedrick Ranasinghe(') will require more detailed discussion in view of the elaborate arguments addressed on both sides based on it. But for the present all that need be pointed out is that the above language is borrowed mainly from the judgment of Lord Pearce who, after setting out s. 29 of the Ceylon Constitu-1 tional Order which gave Parliament the power to make laws for the peace, order and good government of the island, said· with regard to d. (2) according to which no law could prohibit or restrict the free exercise of any religion,

"There follow (b), (c) and (d), which set out further entrenched religious and racial matters, which shall not be the subject of legislation. They represent the solemn balance of rights between the citizens of Ceylon, the fundamental conditions on which inter se they accepted the Constitution; and these arc therefore unalterable under the Constitution".

Another opposite observation in this connection was made in In re the Regulation and Control of Aeronautics in Canada(') whilt inter-preting the British North Amcriea Act 1867. It was said that inas-much as the Act embodied cnmpromisc under which the original

(') (1965] A.C. 172 at pp. 193-194.

provinces agreed to federate, in is important to keep in mind that the preservati_on of the rights of minorities was condition on which such minorities entered into the federation and the foundation upon which the whole structure was subsequently erected.

Our Constitution is feder:i! in character and not unitary. In federal structure the existence of both the Union and the Statics is indispensable and so is the power of iudicial review. According to Dicey:(')

"A federal State derives. its existence from the Constitution, just as corporation derives its existence from the grant by which it is created. Hence every power, executive, legislative or judicial, whether it belong 1Xl the nation or to the individual States, is subordinate to and controlled by the co.'.lstitution".(')

The object for which federal State is formed involves division of: authority between the national government and the separate States.([2]) Federalism can flourish only among communities imbued with legal spirit and trained to reverence the law. Swiss federalism, according to Dicey, "fails, just where one would expect it to fail, in maintaining that complete authority of the courts which is necessary to the perfect federal system".(') The learned Advocalle General of Maharashtra while relying great deal on Dicey's well known work in supl¥'rt of his other points, has submitted that although he was one of the grea-test writers on the law of English Constitution, his book was concerned with two or three guiding principles which pervade the modern Con-stitution of England. The discussion of federal government in his book was subordinate part and the discussion was designed to bring out sharply the two or rhree guiding principles of the English Constitution by contrast with the diff~rent principles underlying the Constitution of the federal government. Reliance has been placed on Professor Wheare' s statement in his book(') that the Swiss Courts are reqnircd by the Constitution to treat all laws passed by the federal assembly as valid though they may declare Cantonal laws to be void and that: docs not constitute such departure from the federal principle that the Swiss people cannot be regarded as having federal Constitution and federal government. Switzerland is probably the only country having federal Constitution where full-fledged right of judicial review is not provided. We are unable to understand how that can have any relevancy in the presence of judicial review having been made an. integral part of our Constitution.

( [1 ]) Law of the Constitution by A. V. Dicey p. 144.

(') Ibid P· 151.

( [1]) Ibid p. 180.

(') Federal Governmcn~ 4th Edn. (1963).

It is pointed out on behalf of tlhe petitioners that the scheme of Art. 368 itself contains intrinsic pieces of evidence to give limited meaning to the word "amendment". Firstly, Art. 368 refers to "an amendment of this ConstitJUtion", and the result of the amendment is to be that "the Constitution shall stand amended". As the Constitution has an identity of its own, an amendment, made under power how-·soever widely worded cannot be such as would render the Constitu-tion to lose its character and nature. In other words, an amendment cannot be such as would denude the Constitution of its identity. The amending power is conferred on the two Houses of Parliament, whose identity is clearly established by the provisions in the Constitution. It must be the Par liamcnq of the Sovereign Democratic Republic. It is llOt any Parliament which has the amending power, but only that Parliament which has been created by the Constitution. In other words, it must continue t!O be the Parliament of sovereign and .democratic republic. The institution of States must continue to exist in order that they may continue to be associated with the amending power in the cases falling under the proviso. If the respondents arc right, the proviso can be comp'. ,,.,y deleted since Art. 368 itself can be amended. This would be wh• '. contrary to the scheme of Art. 368 because two agencies are providt for amending the provisions covered by the proviso. One agency caru 1t destroy llhc other by the very exer-·cise of the amending power. T .c effect of limitless amending power in relation to amendment of Art. 368 cannot be conducive to the sur-vival of the Constitution because the amending power can itself be taken away and the Constitution can be made literally unamendable -Or virtually unamcndablc by providing for an impossible majority.While examining clie above contentio.ns, it is necessary to consider the da.im of the respondents that the amending body under Art. 368 has the full constituent power. It has been suggested that on every occasion the procedure is followed as laid down in Article 368 by the two Houses of Parliament and the assent of the President is given there is the reproduction of the functions of Constituent Assembly. In other words, the Parliament acts in the same capacity as Constituent Assembly when exercising the power of amendment under the said Article. This argument docs not take stock of the admission made on behalf of the respondents that the entiro Constitution cannot be re-pealed or abrogated by the amending bo<ly. Indisputably, Consti-tuent Assembly specially convened for the purpose would have the power to completely revise, repeal or abrogate the Constitution. This shows that the amending body under Article 368 cannot have the same powers as Constituent Assembly. Even assuming that there is reference on the nature of power between enacting law and making an amendment, both the powers are derived from the Constitution.

The amending body has been created by the Constitution itself. It can only exercise those powers with which it has been invested. And if that power has limits, it can be exercised only within those limits.

The respondents have taken up the position that even if the power was limited to some extent under Art. 368, as it originally stood, that power could be enlarged by virtue of clause ( e) of the proviso. It must be noted that the power of amendment lies in the first part of Art. 368. What cl. ( e) in the proviso docs is to ·provide that if Art. 368 is amended, such an amendment requires ratification by the States, besides the larger majority provided in the main part. If the amending power under Art. 368 has certain limits and · not unlimited Art. 368 cannot be so amended as to remove these limits nor can it be amended so as to take away the vdice of the states in the amending process. If the Constitution makers were inclined to confer the full power of Constituent Assembly, it could have been easily provided in suitable terms. If, however, the original power wa~ limited to some extent, it could not be enlarged by the body possessing the limited power. That being so, even where an amending power is ex-pressed in wide terms, it has to be exeocist'd within the framework of the Constitution. It cannot abrogate the Constitution or frame new Constitution or alter or change the essential clements of the con-stitutional structure. It cannot be overlooked that the basic theory of our Constitution is that "Pouvoir Constituent", is vested in the people and was exercised, for and on other behalf by the Constituent Assem-bly for the purpose of framing the Constitution.

To say, as has been said on behalf of the respondents, that there are only two categories of Constitutions, rigid or controlled and flexible or uncontrolled and that the difference between them lies only in the procedure provided for amendment is an over-simplification. In certain Constitutions there can be procedural and or substantive limitations on the amending power. The procedural limitations could be by way of prescribed form and manner without the satisfaction of which no amendment can validly result. The form and man-ner may take different forms such as· higher majority either in the houses oi the concerned legislature sitting jointly or separately or by way of convention, referendum etc. Besides these limitations, there can be limitations in the content and scope of the power. To illust-rate, although the power to amend under Art. 5 of the U. S. Constitu-tion resides ultimately in the people, it can be exercised in either of the modes as might be prescribed by the Congress viz. llhrough ratification by the State legislatures or through conventions, specially convened for the purpose. The equal suffrage in the Senate granted to each of the States, cannot be altered without the consent of the State. Thetrue distinction between controlled and an uncontrolled Constitution lies not mere! y in the difference in the procedure of amendment, but in the fact that in controlled Constitutions the Constitution has a. higher status by whose touch-st.one the validity of law made by the legislature and the organ set up by it is subjected to the process of judicial review. Where there is written Constitution which mpts the preamble of sovereignty in the people there is firstly no question of the law-making body being sovereign body for that body posses-ses only those powers which are conferred on it. Secondly, however representative it may be, it cannot be equated with the people. This is especially so where the Constitution contains Bill of Rights for such Bill imposes restraints on that body, i.e. it ncga~ the equation of that body with the people.

Before concluding the topic on the inllerpretation or construction of the words "amendment of this Constitution" in Article 368, it is necessary to deal with some Ameri~ decisions relating to Art. 5 of the American Constitution on which great deal of reliance wa~ placed on behalf of the respondents for establishing that the word "amendment" has precise and definite meaning .which' is of the widest amplitude. The first relates to the 18th amendment. known · as the National Prohibition cases in the St4Je of Rhode Island v. A·. Mitchel Palmer('). In that case and other cases heard with it, elaborate arguments were addressed involving the validity of the 18th amend· ment and of certain features of the National Prohibition Law, known as Volstead Act, which was adoplled to enforce the amendment. The relief sought in. each case was an injunction against the execution of that Act. The Gourt merely stated its conclusions and did not give any reasons-a !\tatter which was profoundly regretted by Chief Jus-tice White. From the conclusions stated and the opinion of the Chief Justice it appears [1].that good deal of oontroversy centered on section 2 of the amendmel/.t which read "Congress and the several States shall have concurrent p<hvet to enforce this Article by .appropriate legisla· tion". In the dissenting opinion of Mr. Justice Mckenna it was said that the constitutional validity of the 18th amendment had also been attacked and although he dissented in certain other m.atters he agreed that the 18th amendment was part of the Constitution of the United States. The learned Advocate General of Maharashtra has placed great deal of reliance On this decision. His argument is that though the judgment in the Rhode lslatul ~ gives no reasons, yet it is per-missible to look at the elaborate briefs filed by the courucl in several cases and their oral arguments in order to underst1a11d what was argued and what was decided. One of the m.ain contentions raised was that the 18th amendment was not in fact an amendment, for an

amendment is an alteration or llllprovement of that which is already· there in the Constitution and that term is not intended to include any addition of new grant of power. The judgment shows that this argument was not regarded even worth consideration and was reject· ed outright. Now it is significant that most of the justices including the Chief Justice who delivered judgments dealt only with the ques-tions which had nothing to do with the meaning of the word "amend· ment". It is not possible to derive much assistance from this judg-ment.In J. J. Dhillon v. R. W. Gloss(-1) it was observed that an exami-nation of Art. 5 discloses that it was intended to invest Congress with wide range of power in proposing amendments. However, the follow-ing observations are noteworthy and have been relied upon in support of the case of the petitioners that according to the United States Con-stitution it is the people who get involved in the matttt of amend-ments. "A further mode of proposal-as yet never invoked-is pro-vided, which is, that on application of two-third of the Statcs, Con-gress shall call convention for the purpose. When proposed in either mode, amendments, to be effective must be ratified by the legislatures or by convention in three fourths of the States as the one or the other mode of ratification may be proposed by the Congress". Thus the people of the United States, by whom the Constitution was ordained and established, have made it condition for amending that instru-ment that the amendment be submitted to representativ~ assemblies in the several States and be ratified in three-fourths of them. The plain meaning of this is (a) that all amendments must have the sanc-tion of the people of the United States, the original fountain of power, acting through representative assemblies, and (b) that ratificatibn by these assemblies in three-fourths of the States shall be taken as deci· sive expression of the people's will and be binding on all.

Although all the amend_ments were made by the method of rati-fication by the requisite number of Statie legislatures, the convention mode was adopted when the 18th amendment was repealed by the 21st amendment Another case, United States of America v. William H. Sprague & William f. Howey('), will be discussed more fully while considering the question of implied limitations. All that it establishes for the purpose of meaning of amendment is that one must look to thr plain language of the Article conferring the power of amendment and not travel outside it. Article 5, it was said, contained procedural provi-sions for constitutional change by amendment without any present limitation whatsoever except that no State might be deprived of equal representation in the Senate without its consent. Mr. Justia

Douglas while delivering the opinion of the court in Howard /oseph Whitehill v. Wilson Elkins(') stated in categorical terms that the Constitution prescribes the method of "alteration" . by amending pro-cess in Article 5 and, while the procedure for amending it is restricted there is no restraint on the kind of amendment that mav be offered. Thus the main submission on behalf of the counsel for ·the respon-dents has been that Article 5 of the United StatlCs Cbnstitution served as model for Article 368 of our Constitution.

Article V provides different modes of amendment. These may be analysed as follows :

The proposals can be made-,

(1) By two thirds of both Houses of the Congress or

(2) By Convention for proposing amendments to be called by the Congress on the application of legislatures of two-thirds of the States.

The ratification of the proposals has to be made by

(1) Legislatures of three fourths of th~ StatlCs or

(2) by Conventions in three fourths thereof (as one of the other mode of ratification may be proposed by the Con-gress).

In Hawke v. Smith('), the question raised was whether there was any conflict between Article 5 of the U. S. Constitution which gave power to the Congress to provide whether the ratification should be by State Legislatures or Conventions and the Constitution of Ohio as amended. The Supreme Oiurt held that Article 5 was grant of authority by the people to Congress. The determination of the method of ratification was the exercise of the national power specilically granted by the Constitution and that power was limited to two methods, by the State Legislatures or by Conventions. The method of ratification, however, was left to the choice of Congress. The language of the Arti-cle was plain and admitted of no doubt in its in11erpretation. In that case the Constitution of Ohio even after amendment which provided for referendum vested the legislative power primarily in General Assembly oonsisting of Senate and House of Representatives. Though the law making power of State was derived from the peo-ple the power to ratify proposed amendment to the Federal Consti-tution had its source in that Constitution. The act of ratificatiion by

the State derived its authority from the federal Constitution. There-. '-0re, in order to find out the authority which had the power to ratify, it was Article 5, to which one had. to turn and not to the State Consti-tution. The choice of means of ratificatloo was wisely withheld from conflicting action in the several States.

On behalf of the respondents it is claimed that these decisions establish that the power of amendment conferred by Article 5 was of the widest amplitude. It could be exercised through the representatives of the people, both in the Congress and the State Legislatures. Jn the case of Article 368 also Parliament consists of representatives of the people and the same analogy can be applied that it is grant of auth<>-rity by the people to the Parliament. This argument loses sight of the fact that under the American theory of government, power is inherent in the people including the right to alter and amend the organic instrument of government. Indeed, practically all the State Constitu· tions associate the people with the amending process. The whole basis of the decisions of the Supreme Clourt of the United States and of some of the State Supreme Courts is that it is the people who amend the Constitution and it is within their power to make the federal Constitution or unmake it. The reason is quite obvious. So far as Article 5 of the American Constitution is concerned, out of the alter-native methods provided for amendment, there is only one in which the people cannot get directly associated, whereas in the others they are associated with .the amending process, e.g., proposal of amend-ment by two-thirds of both Houses of Congress and its ratification by conventions in three-fourths of the States or proposal of amendment by convention called on tihe application of ·two-thirds of the State Legislatures and its ratification by either convention in three-fourths of the States or by the Legislature of the same number of States.The meaning of the words "amendment of this constitution" as used in Article 368 must be such which accords with the true intention of the Constitution makers as ascertainable from the historical back· ground, the Preamble, the entire scheme of the Constitution, its struc-ture and framework and the intrinsic evidence in various Articles in-cluding Art. 368. It is neither possible to give it narrow meaning nor can such wide meaning be given which can enable the amend-ing body to change substantially or entirely the structure and identity of the Constitution. Even the concession of the learned Attorney General and the Advocate General of Maharashtra that the whole Constitution cannot be abrogated or repealed and new one substitut· ed supports the conclusion that the widest possible meaning cannot be given to it. ·

Coming to the question of what has been called 'inherent and implied limitations' to the amending power in Article 368 of OH' Constiwtion Mr. Palkhivala has maintained that inherent limitations are those which inhere in any authority from its very nature, character and composition whereas implied limitations are those which are not expressed bu1 are implicit in the scheme of the Constitution conferring the power. He maintains that the "rule is established beyond cavii that in construing the OJnstitutUin of the United States, what is im-plied is as miach part of the instrument as what is expressed".(') Although the courts have rejected in various cases plea that parti-cular inherent or implied limitation should be put upon SQJile specific constitutional J'!OWer, no court, says Mr. Palkhivala, has ever rejected the principle that such limitations which are fairly and properly de-ducible from the scheme of the Constitution should be read as restric-tions upon power expressed in general terms. Se~eral decisions of our court, of the Privy OJuncil, Irish courts, Canadian and Australian courts have been cited in support of the contention advanced by him. The approach to this question has essentially to be to look at our own decisions firs.t. They fall in two categories. In one category are those cases where limitations have been spelt out of constitutUinal provisions; the second category consists of such decisions as have laid down that there is an implied limitation ori legislative power.

Taking up the cases of the first category, before 1955, Art. 13(2) was read as containing an implied limitation that the State could . acquire property only for public purpose. (The Fourth Amendmen1 expressly enacted this limitation in 1955). It was observed in Chirafl-#J Lal Chowdhauri v. The Union of India & others(') that one limita-tion imposed upon acquisition or taking possession of private property which is implied in the clause is that such taking must be for • public purpose. Mahajan J., (later Chief Justice) said in the State of Bihar v. Maharaiadhiraja Sir Kameshwar Singh of Darbhanga & Ors(") that the existbnce of public purpose is undoubtedly an· impli-ed oondition of the exercise of compulsory power of acquisition by the State. The power conferred by Arts. 3 and 4 of the <Anstitutinn to form new State and amend the Coristitution for that purpose has been stated to contain the implied limitation that the new State must conform IP the democratic pattern envisaged by the Constitution and the power which Parliament can exercise is non the power to override the constitution scheme.(') It may be mentioned that so far . :•s ,Art. 368 is concerned there seems. to have been good deal of

~~ ~~~~~~~~-

(') American Jurisprudence (2d), Vol. 16, p. 251.

(•) (1950) S.C.R. 869 at p. 902.

(I) (1952] S.c.R. 889 at p. 934.

(') M""gal Singh & Anr. v. Union of lnJi• [1967] 2 S.C.R. 109 at p. 112.

debate in Golak Nath's case on the question whether there were any inherent or implied limitations. Dealing wi.th the argument that in exercise of the power of amendment Parliament could not destroy the structure of the Constitution but it could only modify the provisions thereof within the framework of its original instrument for its better effectuation, Subba Rao C. J. observed that there was no necessity to express any opinion on this all important question owing to the view which was being taken with regard IP the meaning of the word "law" in Art. 13(2). But it was recdgni.sed that the argument had consi-derable force. Wanchno J. (as he then was) considered the question of implied limitations at some length but felt thaa if any implied limitation that basic features of the Constitution cannot be changed or altered, were to be put on the power of amendment, the result would be that every amendment made in the Consitution would inVPlve legal wrangle. On the clear words of Art. 368 it was not possible to infer any implied limitation on the power of amendment. Hidayatullah J~ (later Chief Justice) discussed the question of implied limitations and referred to the spate of writings on the subject. He expressed no opinion on the matter because he felt that in our Constitution Art. 13(2) took in even consitutional amendments. Bachawat J., disposed of the matter by saying that the argument overlooked the dynamic character of the Constitution. Ramaswami J., clearly negatived the argument based on implied limitations on the ground that if the amending power is an adjunct of sovereignty it does not admit of any limitation. ·

The cases which fall in the second category are decidedly nume-

rous. It has been consistently laid down that there is an implied limita· tion on the legislative power; the legislature cannot delegate the essentials of the legislative function. Mukherjea J. (who later became Chief Justice) in Re. Delhi l.Aws Act 1912 case(') stated in clear language that the right of delegation may be implied in the exercise o£ legislative power only to the extent that .it is neccs.~ary to make the exercU!e of the power effective and complete. The same implied litni-tation on the legislature, in the field of delegation, has been invoked in Raj Narain Singh v. Patna Administration('); Hari Shankar Bag/a v. State of Madhya Pradesh('); VasantJal Sanjanwala v. State of Bom· bay('); The Municipal .Corporation of Delhi v. Bir/a Cotton Mills(') •nd Grewal D. S. v. State of Punjab('). Implied limitations have also

( [1]) (1951) S.C.R. 747 at pp. 98+985.

( [2]) [1955) 2 S.C.R. 290.

(') [1955) I S.C.R. 380.

(') [1961) I S.C.R. 341.

(') [1968) 3 S.C.R. 251.

(') [1959] Supp. I S.C.R. 792.

been placed upon the legislature which invalidates legislation usurping the judicial power: See for instance Shri Prithvi Cotton Mills Ltd v. Broach Borough Municipality & Ors.(') and Municipal Corporation of the City of Alimedabad Etc. v. New Shorock Spg. & Wvg. Co. Ltd. etc(').

Before we go ro cases decided by the courts in other countries ir may be useful to refer to some of the constitutional provisions which are illustrative of the concept of implications that can he raised from the language and context thereof. The first provision in point is Art. 368 itself. It has been seen at the stage of previous discussion that the power to amend is to be found in that Article only by implication as there is no express conferment of that power therein. The learned Solicitor General made concession that various Articles are included by implication in the clauses of the provision by reason of the neces-sity for giving effect to the express power contained therein, e.g., Arts. 52 and 53 must be so read as to impliedly include the power to amen!! Arts. 54 and 55 which are not expressly mentioned in clause (a) of the proviso. It has been implied that the President has been made formal or constitutional head of the executive and the real executive power vests in the council of ministers and the Cabinet('). Article 53 declares that the executive power of the Union shall be vested in the President; Art. 74 provides for council of ministers headed by the Prime Minister to aid and advise the President in exercise of his func-tions. Article 75 says that the Prime Minister shall be appointed by the President and the other ministers shall be appointed by him on the advice of the Prime Minister. The ministers shall hold office during the pleasure of the President and the council of ministers shall be collectively responsible to the House of the People. Although the executive power of the President is apparently expressed in unlimited terms, an implied limitation has been placed on his power on the ground that he is formal or constitutional head of the executive and that the real executive power vests in the council of ministers. This conclusion which is based on the implications of the Cabinet System of government can be said to constitute an implied limitation on the power of the President and the Governors.

It may be mentioned in all fairness to the Advocate General of Maharashtra that the court did not desire him to address in detail about the President or the Governor being constitutional head and the implications arising from the system of Cabinet Government. The decisions thereon are being referred to for the purpose of noticing

( [1 ]) (1970) I S.C.R. 388 at pp. 392-393.

( [2]) ( 1971) I S.C.R. 288 at pp. 294-297.

( [8 ]) R. S. Ram /awaya Kapur & Ors. v. The State of Puniab [1955] 2 S.C.R. 225.

that according to them the President or the Governor though vested with full executive powers cannot exercise them personally and it is only the council of ministers which exercises all 11he executive func-tions. This is so, notwithstanding the absence of any express provi-sions in the Constitution to that effect.

Next, reference may be made to the decisions of the Privy Coun-cil relied on by one side or the other for deciding the question under consideration. The Advocate General of Maharashtra laid much stress on the principle enunciated in Queen v. Burah('), which according to him, has been consistently followed by the Federal Court and this court. The principle is that when a· question arises whether the pres-cribed limits have been exceeded the court must look to the terms of the instrument "by which affirmatively, the legislative powers were created and by which, negatively, they were restricted. If what has been done is legislation within the general scope of the affirmative words which give the power, and if it violates no express condition or restriction by which that power is limited . . • . . . . . . . . . . . . . . it is not for ariy court of justke to inquire further, or to enlarge constructively those conditions or restrictions". The ratio of that decision is that conditional legislation is to be distinguished from delegation of legis-lative power and that conditional legislation is within the power of the legislature in the absence of any express words prohibiting condi-tional legislation. The oft-quoted words about the affirmative confer-ment of power and absence of exp~ess restriction on the power are used only ro repel the contention that conditional legislation was barred by 1mplication. It is significant that if Queen v. Burah(') is to be treated as laying down the principle that the powers in Constjtu-tion must be conferred only in affirmative words the argument of the respondents itself will suffer from d1e infirmity that it is only by neces-sary implication from the language of Art. 368 (before the 24th Amendment) that the oource of tlie amending power can be said to reside in that Article. There were no such words in express or affirma-tive terms which conferred such power. Indeed in Golak Nath's(') case there was sharp divergence of opinion on this point. Subba Rao C. J. with whom four oilier judges agreed held that die source of the amending power was to be found in the provisions conferring resi-duary provisions, namely, Art. 248 read with Entry 97 in the Seventh Schedule. The other six judges including Hidayatullah J. were of die . view that the power was to be found in Art. 368 itself.

In The Initiative and Referend11m Act(') the position briefly was tliat the British North America Act 1867, s. 92, head I, which cm· powered Provincial Legislature to amend the Constitution of die

( [1]) (1878) 3 A.C. 889 at pp. 904-5.

( [2 ]) (1967) 2 S.C.R. 762.

(') [1919] A.C. 935.

Province, "excepting as regards the odlice of the Lieutenant-Governor: excluded the making of law which abrogated any power which the Crown possessed through the Lieutenant Governor who directly re-presented the Crown. The Legislative Assembly of Manitoba passed the Initiative and Referendum Act. It compelled llhe Lieutenant Gov-ernor to submit proposed law to body of voters totally distinct from the legislature of which he was the constitutional head. The Privy Council was of the opinion that under the provisions of that law the Lieutenant Governor was rendered powerless to prevent prop>sed law when passed in accordance with the Act from becoming actual law. The language of the Act could not be construed otherw.ise than as intended, seriously affecting the position of the Lieu11=nant Gover-nor as an integral part of the legislature and to detract from the rights which were important in the legal theory of that position. Sec-tion 92 of the Act of 1867 entrusted the legislative power in Province to its legislature and that legislature only. body llhat has power of legislation on the subjects entrusted to it, the pPWer being so ample as that enjoyed by Provincial legislature in Canada, could while "pre-serving its own capacity intact seek the assistance of subordinate agency . . . . . . . . . . . . . . . . but it does not follow that it can create and endow with its own capacity new legislative power not created by the Act to which it owes own existence".(').

This case is more in point for consideration of validity of that part of the 25th Amendment which inserted Art. 31-C but it illustrat.cs that an implied limitation was spelt out from the constitutional pro-visions of the British North America Act 1867 which oonferred legis-lative power on the legislatures of provinces as constituted by that Act.

McCawley v. The King("> was another case involving.constitutional questions. The legislature of Queensland (Australia) had power · to include in an Act provision iJ1J1t within the express restrictions con-tained in the Order in Council of 1959. But inconsistent with the term of the Constitution of Queensland, without first anrending the term in question under the powers of amendments given to it, the Indus-trial Arbitration Act of 1916 contained provisions · authorising the Government in Council to appoint any Judge of tlhe Court of Indus-trial Arbitration to be Judge of the Supreme Court of Queensland.

KESAVANANDA fl. KERALA (She/at & Grover, JJ.)

Mter explaining the distinction between controlled and an uncon-trolled Constitution, their Lordships pr'Xeeded to examine the con-tmtion that the Constitution of Queensland could not be altered merely by enacting legislation inconsistent with its article; it coultl Gily be altered by an Act which in plain and unmistakable language merred to it; asserted the intention of the legislature to alter it, and consequentially gave effect to that intention by its operative provisions. That argument was repelled by saying(').

"It was not the policy of the Imperial Legislature at any relevant period t.o shackle or control in the manner suggested, the legisla-tive power of the Nascent Australian Legislations".

Sccilion 5 of the Colonial Laws Validity Act 1865 was held to have clearly conferred on the colonial legislatures right to establish courts m judicature and to abolish and reconstitute them. question had been raised that the Constitution AcU of 1867 enacted certain funda-mental organic provisions of such nature as to render the Constitu· lion controlled. It was said that if change of that nacure was con-templated, there would have been some indication in the very lengthy preamble of the Act, that intention. Their Lordships could observe nowhe1e in the preamble the least indication that it was intended for the first time to make provisions which were sacrosanct, or which at least could only be modified by methods never previously required. It was finally held that the legislature of Queensland was the master of. its own household except in so far as its power had in special cases been restricted. No such restriction had been established and none in fact existed.

The Advocate General of Maharashtra has sought to deduce the following propositions from the dissenting judgment of Issacs and Rich JJ of the Australian High Court which was apprµved by the Privy Council in the above case :

(1) Unless there is sp~ial procedure prescribed for amending any part of the Constitution, the Constitution is uncontrolled and can be amended by the manner laid down for enacting ordinary law and, therefore, subsequent law inconsistent with the Oanstitution would pro-tanto repeal the Constitu· ti on.

(2) Constit!Ution largely or generally uncontrolled may con· tain one or more provisions which prescribe different pro-cedure for amending them. In that case an ordinary law can-not amend them and the procedure must be strictly followed if the amendment is to be effected.

262 SVPIU!Ml! COVB.T UPOB.TS [ 1973] Supp. s.c.a.

(3) The implication on limitation oi power ought not to be im· ported from general concepts but only from express or neces-sarily implied limitations (emphasis supplied).

( 4) While granting powers to the colonial legislatures, the British Parliament as far back as 1865 refused to put limitations of vague character, but limited those limitations to objective standard!. e.g., statutes, statutory regulations, etc. to objectiw: standards.

We have already repel!led at an earlier stage(') the contention that the only distin.:tion between controlled and an uncontrolled Con,. stitution is that in the former the procedure prescribed for amending any part of the Constitution has to be strictly followed. The second proposition is of similar nature and can hardly be disputed. As re· gards the third and fourth proposition all that need be said is that im· plied limitation which was sought in McCawley's case by counsel for the respondents was that the Queensland legislature should first amend the Constitution and then pass an Act which would otherwise have been inconsistent, for the Constitution had not been amended. That con,. tention in terms was rejected. The Constitution in M cC awley' s case was uncontrolled and therefore the Queensland legislature was fulley em-powered to enact any Constitution breaking law. Moreover Lord Birkenhead in an illuminating passage in McCawley's(2) case has him-self referred to the difference of v'icw among writers upon the subject of constitutional law which may be traced "mainly to the spirit and genius of the nation in which particular Constitution has its birth". Some communities have "shrunk from the assumption that degree of wisdom and foresight has been conceded to their generation w_hich wiII be, or may be, wanting to their successors". Those who have adopted the other view probably believed that "certainty and stability were in such matter the supreme desiderata". It was pointed out that different terms had been employed by the text book writers to dis-tinguish between those who contrasted forms of Constitution. It was added:

"Their special qualities may perhaps be exhibited as clearly by calling the one controlled and the other. an uncontrolled Consti-tution as PY any other nomenclature".

Lord Birkenhead did not make any attempt to define the two terms "controlled" and "uncontrolled" as precise legal terms, but mere· ly used them as convenient expressions.

( [1 ]) Pp. 70-71.

( [2]) [1920] A.C. 691 at pp. 703-704.

The next case of importance is Attilrney General for New South ·Wales v. Tretfiowan.([1]) The Constitution Act, 1902 enacted by the legi&. lature of New South Wales, was amended in 1929 by adding s. 7-A which provided that no Bill for abolishing the Legislative Council should be presented to the Governor for His Majesty's assent until it had been approved by majority of the electors voting upon submis-sion made in accordance with the section. The same provision was to apply to Bill for repealing that section. In 1930 two Bills were passed by the Legislature. One was to repeal s. 7-A and the other to abolish the Legislative Council. Neither of the two Bills had been approved in accordance with s. 7-A. Reference was made to s. 5 of the Colonial Laws Validity Act 1865, which conferred on the Legislature of the State full power ro make laws inter alia in respect of the Con-stitution in such "rnanner,'and form" as might from time to time be provided by any Act of Parliament Letters Patent, Colonial law in force in the colony etc. It was held that the whole of s. 7-A was within the competence of the legislature of the State under s. 5 of the Colonial Laws Validity Act. The provision that the Bills must be approved by the electors before being presented was provision as to form and 'manner and accordingly the Bills could not lawfully be presented un-less and until they had been approved by majority of the electon voting. number of contentions were raised, out of which the follow-ing may be noted :

(a) The Legislature of New South Wales was given by the Impe-rial Statutes plenary power to alter the Constitution, powers and procedure of such Legislature.

(b) When once the Legislature had altered either the Constitu-tion or powers and procedure, the Constitution and powers and procedure as they previously existed ceased to exist and were replaced by the new Constitution and powers.

According to their lordships the answer depended entirely upon consideration of the meaning of s. 5 of the Colonial Laws Validity Act read with s. 4 of the Constit'Ution statute assuming that the latter sec-tion still possessed some operative effect. The whole of s. 7-A was held to be competently enacted. The Privy Council, however, held that the repealing Bill after its passage through both Chambers could not be lawfully presented for the Royal assent without having first received . the approval of the electors in the prescribed manner. In order to be validly passed, the law must be passed in the manner prescribed by $. 7-A which was in force for the time being. Trethowan's case (supra) fully illustrates how the Privy Council enforced such limitations even

though they were of procedural nature which had been provided in constitutional statute relating to the form and manner in which any such statute could be altered or repealed.

These decisions, in particular, (Trcthowan's case) illustrate that the Privy Council has recognised restriction on the legislative powers of sovereign legislature even though that is confined only to the form and manner laid down. in Constitution for amending the Constitu-tion Act. In country which still sticks 'to the theory of Parliamentary 10Vereignty, limitations of any other nature would be regarded as some-what non-conformist and unorthodox.

The decision of the Privy Council in the Bribery Commissioner v. Pedrick Ranasinghe(') has been heavily relied on by both sides. On be-half of the petitioners support has been sought from the observations relating to rights regarded as fundamental, being unalterable. What hai happened there was that by virtue of s. 41 of the Bribery Amendment Act 1956, provision was made for the appointment of Bribery Tribu-nal which was in conflict with the requirement in s. 55 of the Ceylon C'.onstitution (Order in Council 1946), hereinafter called the ·'Ceylon Constitution Act', according to which the appointment of Judicial Offi-cer~ was vested in the Judicial Sc·rvice Commission. Section 29 of the Ceylon Constitution Act provided by suh-s. (1) that subject to the provisions of the Order, the Parliament had the power to make laws for the peace, order and good government of the island. By suh-s. (2) it was provided that no such law shall (a) prescribe or restrict the free exerci'se of any religion etc. This was followed by clauses (b), (c) and (d) which set out further religious and racial matters, which accQrding l'o their Lordships, could not be the subject of legislation. In the words of their Lordships "they represent the solemn balance of rights between the citizens of Ceylon, the fundamental conditions on which inter se they accepted the Constitution; and ·these are therefore unalterable under the Constitution". By suh-s. (3) any law made in contravention of sub-s: (2) was to be void to the extent of such contravention. Suh-scction ( 4) may be reproduced below :-

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

Provided that no Bill for the amendment or repeal of aay of the provisions of this Order shall be presented for the Royal Assent unless it has endorsed on it certificate under the hand of the Spe~ker that the number of votes cast in favour thereof in the

House of Repr~cntatives amounted to not less than tw<>-thirds fl. the whole number of Members of the House (including those not present).

Every certificate of the Speaker under this sub-section shall be

conclusive for all purposes and shall not be questioned in any court of law".

The Bribery Amendment Act 1958 had not been enacted in accord-

ance with the provisions contained in suh-.section ( 4) of s. 29 of the Ceylon Constitution Act. As it involved conflict with the Constitu-tion, it was observed that certificate of the Speaker as required by sub-section ( 4) was necessary part of tihe Act ma.king process. The 1 point which engaged the serious attention of the Privy Council was that when sovereign Parliament had purported to enact Bill and it had · received the Royal, Assent, could it be valid Act in course of whose passing there was procedural defect, or was it an invalid Act which Parliament had no power to paS5 in that manner ? distinction was made while examining the appellant's arguments between s. 29(3) 'which expressly made void any Act passed in respect of the matters entrenched in and prohibited by s. 29(2); whereas s. 29( 4) made no such provisions, but merely couched the prohibition in procedural terms. Reliance had been place on behalf of the appellant Bribery Commissioner on the decision in McCawley's case. It was pointed out that Mccawley'! case, so far as it was material, was in fact opposed to the appellant's reasoning. It was distinguished on the ground that the Ceylon legislature had purported to pass law which being in conflict with s. 55 of the Ceylon Constitution Act, must be treated, if it was to be valid, as an implied alteration of the constitutional provisions about the appointment of judicial officers. It was held that such alterations, even if expressed, could only be made by laws which complied with the special legislative procedure laid down ins. 29(4). The Ceylon Legislature did not have the general power to legislate so as to amend its Constitution by ordinary majority resolutions such as the Queens-land Legislature was found to have under s. 2 of its Constitution Act

The learned Advocate General of Maharashtra has referred to tht. arguments in Ranasinghe' s case and has endeavoured to explain the olj>servations made about the entrenched provisions being unalterable by · saying that the same were obiter. According to him it was not tht respondent's case that any provision was unamendable. The referen~ to the solemn compact etc. were also obiter because the appeal did nO! raise any question about the rights of religion protected by sub-s. (2) of • s. 29 and the issues were entirely different. It is claimed that this deci-sion supports the position taken up on behalf of the respondents that it is rmly the form and manner which is material in controlled Constitu-tion and that the above decisi:Qn is an authority for the proposition thatin exercise of the amending power con.trolled Constitution can be converted into an uncontrolled one. Any implied limitations on Parliament's amending power here can be abrogated by an amendment of Art. 368 itself and the amending power can be enlarged by an exer-cise of that very power. According to Mr. Palkhivala this argument is wholly fallaeiotts. Firstly, the observations of the Privy Council(') is merely on the form and manner of amendment and has nothing to do with suhstantive limitations on the power of amendment. Placing limits on the amending power cannot be confused with questions of special legislative process which is also referred to by their Lordships.(') Secondly, the Ceylon Constitution authorised the Parliament to amend or repeal the Constitution, which power is far wider than the power of amendment sim pliciter conferred by Art. 368. It is suggested that Ranasinghe's case is direct authority against the respondent1 since it held the religious and racial rights to be unalterable, which clearly im-plies that Parliament had no competence to take away those rights even in exereise of its power to amend the Constitution by following the prescribed form and manner in sub-s. ( 4) of s. 29 of the Ceylon Con-stitution Act. The material importance of this case is that even though observations were made by the Lordships which may in sense be obiter those were based on necessary implications arising from sec-tion 29 of the Ceylon Constitution Act and were made with reference to interpretation of constitutional provisions which had good deal of similarity (even on the admission of the Advocate General of Mahara·· shtra) with some parts of our Constitution, particularly those which relate to fundamental rights.

Don John Francis Douglas liyange v. The Queen([3 ]) is another decision on which strong reliance has been placed on behalf of the peti-tioners. The Ceylon Parliament passed an Act which substantiallv modified the Criminal Procedure Code inter alia by purporting· to legalise an ex-post facto detention for 60 days of any person suspected of having committed an offence against the State. This class of offences for which trial without jury by three Judges nominated by the Minis-ter for Justice could be ordered was widened and arrest without warrant for waging war against the Queen could be effected. New minimum penalties for that offence were provided. The Privy Coun-eil held that the impugned legislation involved usurpation and in-fringement by the legislature of judicial powers inconsistent with the written Constitution of Ceylon which, while not in terms vesting judi-cial functions in the judiciary, manifested an intention to secure in the judiciary freedom from political, legislative and executive control and

( [[2 ]]) Ibid portions to &

in effect left untouched the judicial system established by the Charter of Justice of 1833. The legislation was struck down as void. Their Lord-ships observed inter alia that powers in case of countries with 'lritten Constitutions must be exercised in accordance with the terms ci. the Constitution from which they were derived. Reference was made to the provisions in the Constitution for appointment of Judges by the Jwdicial Service Commis.si.on and it was pointed out that these provi-sions manifested an intention to secure in the judiciary freedom from political, legislative and executive control. It was said that these provi-sions were wholly appropriate in Constitution which intended that judici•l power shall vest only in the judicature. And they would be inappropriate in Constitution by which it was intended that judicial power should be shared by the executive or the legislature.There seems to be good deal of substance in the submission of Mr. Palkhivala that the above decision is based on the principle of im-plied limitations; because otherwise under section 29(1) of the Ceylon Constitution Act Parliament was competent to make laws for the peace, order and good government of the island subject to the provisions of the Order. Strong observations were made on the true nature and pur-pose of the impugned enactments and it was said that the alterations made by them in the functions of the judiciary constituted grave and deliberate incursion in the judicial sphere. The following passage is noteworthy and enlightening :

"If such Acts as these were valid the judicial power could be wholly absorbed by the legislature and taken out of the hands of the judges. It is appreciated that the legislature has no such gene- · ral intention. It was beset by grave situation and it took grave measures to deal with it, thinking, one mmt presume, that it had power to do so and was acting rightly. But that consideration is irrelevant, and gives no validity to acts which infringe the Con-stitution. What is done once, if it be allowed, may be done again and in lesser crisis and less serious circumstances. And thus judi-cial power may be eroded. Such an erosion is contrary to the clear intention of the Constitution."

Mohamed Samsudden Kariapper v. S.S. Wiiesinha and Anr.(') has been cited on behalf of the S!:tte of Kerala for the proposition that judicial power could, by an amendment of our constitution, be trans-ferred to the legislature thus negativing the principle of implied limita-tion. In that case report had been made under the Commission of Inquiry Act. abou~ certain allegations of bribery having been proved against some members of the Parliament of whom the appellant was one. Under cert:aln Act civil disabilities on persons to whom the Act

applied were imposed. It also contained provision that in the eYcnt of inconsistency with existing law, the Act should prevaiL The appel-lant challenged the validity of that Act on the ground that it was inconsistent with the Constitution and was usurpation of the judicial power. It may be mentioned that the Speaker had, in accordance will the proviso to s. 29( 4) of the Constitution of Ceylon, endorsed cer:ti-ficate under his hand on the bill for imposition of civic disabilities (Special Provisions) Act. The Privy Council held that the said ~ was an exercise of legislati.ve power and not the usurpation of judicial power. The Constitution of Ceylon was controlled constitution and the Act was an inconsistent law; the Act was to be regarded as amend-ing the constitution unless some provisions. denying the Act constitu-tional effect was to be found in the constitutional restrictions imposed on the power of amendment. Apart from the proviso to ·s. 29(4) of the Consti.tution Act, there was no reason for not construing the words "amend or repeal" in that provision as extending to amendment or re-peal by inconsistent law. The Act, therefore, amended the constitution. Finally upon the merits it was observed that in view of the conclusion that the Act was law and not an exercise of judicial power it was not necessary to consider the question whether Parliament could, by law passed in accordance with the proviso to s. 29( 4), both assume judicial power and exercise it in the one law.The above decision can certainly be invoked as an authority for the proposition that even in controlled constitution where the form and manner had been followed of amending it, an Act, which would be inconsistent with it and which did not in express terms state that it was an amending Act, would have the effect of altering the constitution. But it does not suppon any suggestion, as has been made on behalf ci the respondents, that judicial power could, by an amendment of our constitution, be transferred to the legislature. Moreover, as expressly stated by their lordships, the Ceylon Constitution empowered the Parliame,nt "to amend or repeal" the constitution and, therefore, t)lcrc can be no comparison between the scope of the Ceylon Parliament's amending power and that of the amending body under article 368.

We may next deal with the Australian decisions, because there ms been good deal of discussion in them about implied limitations which can arise in the absence of express limitations. The subject matter cl most of the decisions has been the Commonwealth's taxing power. Sec-tion 51 of the Australian Constitution grants power to legislate with regard to taxation to the Commonwealth in wide terms but with cer-tain express reservations, viz., that duties of customs should be unifomi. that the taxing laws must not discriminate between States, nor · must revenue laws give preference to one State over. another State. Section lH

bars the Commonwealth from taxing property of any kind belonging to State. In Amalgamttted Society of Engineers v. Adelaide Steam-ship Co. Ltd.(1) the High Court of Australia accepted the principles of construction of constitution laid down by the Privy Cowicil in Reg v. Burah(') and Att. Gen. of Ontario v. Att. Gen. of Canada([8 ]) viz., that the onl\y way in which court can determine whether the prescribed limits of legislative power had been exceeded or not was "by looking to the terms of the instrument by which affirmatively, the legislative powers are created, and by which negatively, they are restricted"; noth-ing was to be read into it on ground of poticy of necessity arising or supposed to arise from the nature of the federal form of government nor were speculations as to the. motives of the legislature to be entered into by the Court. These words would appa.:ently appear to reject any pro-position as to implied limitations in the constitution against an exercise of power once it is ascertained in accordance with the ordinary rules of construction. Such an interpretation of the Engineers' case(') supposed to have buried for ever the principle of implied limitations, has not been unanimously accepted nor has the above criterion laid down been adhered to. In Att. Gen. of New South Wales v. Brewery Employees Union('), Higgins, J. cautioned that "although the words of the con-stitution are to be interpreted on the same principles of interpretation as are applied to any ordinary law, these very principles of interpretation compel us to take into account the nature and scope of the Act-"to remember that it is constitution, mechanism wider which laws are to be made, and not mere Act which declares whav the law is to be". Sir Owen Dixon in Australian Railways Union v. Victorian Railway Commissioni:rs([6 ]) and later in West v. Commissioner of Taxation(') formulated what in his view was the basic principle laid down in Engineers' case (Supra) and made observations relating to reservations of qualifications, which he thought had been made, concerning the prima facie rule of interpretation which that decision laid down. In Ex-parte Professional Engineers Association(") he once again adverted to the Engineers' case and suggested that perhaps "the reservations and quali-fications therein expressed concerning the federal power of taxation and laws dircted specially to the states and also perhaps the prerogative of the Crown received too little attention." The question as to implied

( [1]) [1920) 28 C.L.R. 129.

( [2]) [1878) 3 A.C. 889.

(•) [1912] A.C. 571.

(') [ 1920] 28 C.L.R. 129.

(") [1908] 6 C.L.R. 469 at pp. 611-612.

(') [1930] :44 C.L.R. 319, 390.

( [7]) [1937) 56 C.L.R. 657, 682.

(•) [1959) 107 C.L.R. 208, 239.

18-36 S.C. India/73

limimtions was directly raised and decided in the Melbourne Corpora-tion v. Commrmwealth.(1) It was held that s. 48 of the Banking Act, 1945, prohibiting banks from conducting banking business for state and for any authority of the state, including local government authority was 'invalid. Two contentions were raised in that case: (1) that the im-pugned Act was not law on banking wiithin s. 51(xiiii) because it was llQt law with respect to banking, and (2) that the grant of power in s. 51(xiii) must be read subject to limitations in favour of the State be-cause it appears in federal constitution, so that even if s. 48 could be treated as .law with respect to banking, it was still invalid since its operation interfered with the states in the exercise of their governmental functions. The second contention was accepted by the majority. Latham C. J. stated that laws which discriminated against states or which unduly interfered with states in the exercise of their functions of government were not laws authorised by the constitution, even if they were laws with respect to subject matter within the legislative power of the Commonwealth Parliament. Rich J., held that the constitution expressly provided for the continued existence of the States and that, therefore, any action on the pan of the Commonwealth, in purported exercise of its constitutional powers, which would prevent State from continuing to exist or function as such was necessarily invalid because of inconsistency with the express prowsions of the Constitution. Stark, J. said that the federal character of the Australian constitution carried implications of its own, that the government was dual system based upon separation of organs and of powers and, consequently, maintenance of the States and their powers was as much the object of the constitution as _maintenance of the Commonwealth and its powers. Therefore, it was beyond the power of either to abolish or destroy the other.

The same contention was raised in recent case of Victoria v. The Commonwealth('), where the Pay-roll Tax Act, 1941 and the Pay-roll Tax Assessment Act, 1941-1969 were impugned. These Acts were passed by the Commonwealth Parliament for financing the provisions of the Child Endowment Act, 1941 and casting the burden on employers bv taxing wages paid by them. The Crown in right of State wa• in each State considerable employer of labour, and in some States of ind us· trial labour. The Crown in right of State was included in the defini-tion of 'employer' for the purpose of the Act. The question raised for decision was about the constitutional validity of the Act in so far as it • purported to impose upon the State of Victoria an obligation ;o pay-roll tax rated to the amount of salaries and wage.- paid to its public ser-l'ants employed in certain department named in its statement of cl•im.

(') [1947] 74 C.L.R. 31.

( [2]) [1971] 45 A.L.J. 251.

The contention raised by the State of Victoria as summarised by Bar-wi'ck, C.J. was that though the impugned Act fell under the enumerat-ed power of taxation in s. 51 of the Constitution Act, that section did not authorise the imposition of tax upon the Crown in the right of State because there was an implied constitutional limitation upon that Commonwealth power operating universally, that is to say, as to all the activities of State. The point most pressed, however, was in somewhat limited form, viz., that the legislative power with respect to taxation did not extend to authorise the imposition of tax upon "any =ntial governmental activity" of State and therefore, at the least, the power under s. 51 did not authorise tax upon the State in respect of wages paid to its civil servants. In other words such limitation, whether of universal or of Ii.mired operation, was derived by implica-tion from the federal nature of the constitution, and therefore, to levy tax rated to the wages paid to its servants employed in departments of governments, so trenched upon the governmental functions of the State as to burden, impair and threaten the independent exercise of those functions. All the seven judges agreed, firstly, that the Act was valid, and secondly, upon the proposition laid down in the Engineers' case (Supra) as also in certain otht:r decisions that where power was granted to the Commonwealth by specific provision such ass. Sl(ii), the Commonwealth could pass law which would bind the States as it would bind individuals. The difference amongst the judges, how-ever, arose as regards the question of implied limitation on such power, however, expressly granted. Barwick C.J. and Owen J. were of the view that law which in substance takes State or its powers or functions of government as its subject matter is invalid because it can-not be supported upon any granted legislative power but there is no implied limita•tion on Commonwealth legislative power under the constitution arising from its federal nature. McTiernan J. was also of the view that there was no necessary implication restraining the Com-monwealth from making the law. However, Menzies, Windever, Walsh and Gibbs JJ. held in categorial terms that there is an implied limitation on Commonwealth legislative power under the Constitution on account of its federal nature. According to Menzies J. constitution providing for indissoluble federal Commonwealth must protect both Commonwealth and State& The States were not outside the Constitu-tiOn. Accordingly although the Constitution clearly enough subjected the States to laws made bv Commonwealth Parliament it did so wi:h some limitation. Windeyer J., read the Melbo11rne Corporation case (Supra) as confirming the principle of implication and added that the eourt in reading the Constitution "must not shy away from the word 'implication' and disavow every concept that it connotes." Walsh T. rejected the contention that it was inconsistent with the principles of construction laid down in Engineers' case that the ambit of power with respect to enumerated subject matter should be restricted in any w•y

otherwise than ·by an express provision specially imposing some defin-ed limitati?n upon it and ob,,erved :

"there is substantial body of authority for the proposition that the federal nature of the Constitution does give rise to implications by which some limitations are imposed upon the extent of the power of the Commonwealth Parliament to subject the States to its· legis-lation".

According to Gibbs J., the ordinary principles of ~tatutory interpreta-tion did not preclude the making of implications when they were necessary to give effect to the intentiop. of the legislature as revealed in the statute as whole. The intention of the Imperial Parliament in enacting the Constitution was to give effect tQ the wishes of the Austra-lian people to join in federal union and to establish federal and not unitary sy~em. In some respects the Commonwealth was placed in position of supremacy as the nation~! interest required but it would be inconsistent with the very basis of federation that the Common-wealth's power should extend to reducing the states to such positron of subordination that their very existence as independent units would be dependent upon the manner in which the Commonwealth exercises its powers, rather than on the legal limits of the powers themselves. He proceeded to say :-

'Thus, the purpose of the Constitution, and the scheme by which it is intended to be given effect,· necessarify give rise to, implica-tions as to the manner in which the Commonwealth and the States respectively may exercise tbeir powers, vis-a-vis each other".

The Advocate General of Maharashtra does not dispute that there are necessary implications in federal constitution such as, for example, that any law violating any provision of the Constitution is voitl everi in the absence of an express declaration to that effect. Aga.in it is neces- · sary implication of republican constitution that the sovereign of foreign State-United Kingdom cannot place Indian territory in groups by Orders in Council a.s provided in the Fugutive Offenders Act, and, therefore, that Act is inconsistent with the. Republican Constitution of India, and is not continued in force by Art.' 372; see State of Madras v. G. C. Menon('). But he maintains that the principle of Queen v. Burah is not in any way displaced. Burah's case, according to him, laid down principles of interpretation and in doing so the Privy Council itself enunciated the doctrine of ultra vires which is nece5sary implication of an Act of the British Parliament creating bodks or authorities with limited powers. An attempt has been made to show that the judgment of Chief Justice Barwick in the above Australian decision stated the

( [1]) ( 1955] I S.C.R. 280.

basic principle of construction correctly and those principles are appli. cable to our constitution also since the decision was based on Queen v. Burah([1 ]) which has been consistently followed by tihis Court. We have already dealt with that decision and we arc unablo to agree that Queen v. Burah stands in the way of drawing implications where the purpose of the constitution and the scheme by which it is intended to be given effect, necessarily give rise to certain implications.

Turning to the Canadian decisions we need refer only to those which have material bearing on the questions before us. In T lie Attorney General af Nova Scotia v. The Att. Gen. of Canada(°) the constitutionality of an Act respecting the delegation of jurisdiction from the Parliament of Canada to the Legislature of Nova Scotia and vice versa was canvassed. The Supreme Court of Canada held that since it contemplated delegation by Parliament of powers exclusively vested in it by s. 91 of the British North America Act to the Legislature of Nova Scotia; and delegation by that Legislature of powers, exclusively vested in Provincial Legislature under s. 92 of the Act to Parliament, it could not be constitutionally valid. The principal ground on which the deci-sion was based was that the Parliament of Canada and each Provincial Legislature is sovereign body within its sphere, possessed of exclusive jurisdiction to legislate with regard to the subject matter assigned to it under s. 91 or s. 92 as the case may be. Neither is capable, therefore, of delegating to the other the powers with which it has been vested nor of receiving from the other the power with which the other has been vested. The learned Chief Justice observed that the constitution of Canada "does not belong either to the Parliament or to the Legisla-tures; it belongs to the country and it is there that the citizens of the country will find the protection of the rights to which they are entitl· ed."

Although nothing was expressly mentioned either in s. 91 or s. 92 of the British North America Act limitation was implied on the power of Parliament and the Provincial Legislatures to delegate legisla-tive power. Mention may also made of fohn Switzman v. Freda Elbling([3 ]) (to which we have already referred while dealing with the question of the use of the preamble.)· In that case the validity of the Act respecting communistic propaganda of the Province of Quebec was held to be ultra vires of the Provincial LegiSlaturc. Abbot J., after re-ferring to various decisions of the Privy Council as also the Supreme Omrt of Canada(') said that the Canada Election Act, the provisions of

( [1]) [1878] 3 A.C. 889.

( [1]) [1951] Can. L. Rep. 31.

· ( [8]) (1957) Can. L R. (Supreme Court) 285 at p. 327.

(') See in particular the observation of Duff C.J. in Alberta Statutes Case {1938) SCR (Canada) 100 at pages 132-133.

the British North A1ncrica Act which provtidCd for Parliament meeting at least once year and for the election of new Parliament :it least every five years and the .Senate and House of Commons Act, were cxa· mples of enactments which made specific statutory provisions for ensur· ing the exercise of the right of public debate and public discussion. "Implicit in all such legislation is the right-of candidates for Parliament. or for Legislature and of citizens generally, to explain, to criticize, debate and discuss in the freest possible manner such matters JS the qualifications, the policies, and the political, economic and social princi-ples advocated by such candidates or by the political parties or groups of which they may be member". That right could not be abrogated by Provincial Legislature and its power was limited to what might be necessary to protect purely private rights. He was further of the opinion that according to the Canadian Constitution, as it stood, Parlia-ment itself could not abrogate this right of discus.sion and debate.The Advocate General of Mahariishtra has pointed out that thett decisions relate to the legislative competence of provicial legislatures to effect civil liberties like freedom of speech, religion or to legislate in respect of criminal. matters. They arc not relevant for the purpose of determining the amending power under the Constitution. So far as the civil rights are concerned in Canada it is noteworthy, according to the Advocate General, that the Canadian Bill of Rights 1960 makes the rights therein defeasible by an express declaration that an Act of Parlia-ment shall operate notwithstanding the Canadian Bill of Rights. It has also been submitted that the well known writers of constitutional law both of Australia and Canada have not attached any signficancc or accepted the principle of implied limitations.(') The opinions of authors and writers have been cited before us so extensively, by both sides, that we find great deal of conflict in their expression of opinion and it will not be safe to place any reliance on them. The judges who have read limitations by implication are well known and of recognised eminence and it is not fair to reject their views for the reasons suggested by the Advocate General.

We need hardly deal at lengllh with . the Irish decisions. The principle emerging from the majority decision in The Stm (Ill the prosecution of /ermiah Ryan v. Captain Michael Lenons & Others(') that under s. 50 of the 1922 constitution (which provided for constitu-tional amendment by ordinary legislation during the first period of 8 years which was subsequently extended to 16 years) an Ordinary la'ir inconsistent with the provisions of the constitutj.on. had the clfec:r. of amendment of the constitution, caused considerable .debate. Di!rin1, die

( [1]) See W. A. Wynes, Legislative, Excaitivc ind' Judicial powers in Australia and Bor1 Laskin, The Canadian Constitutioaal Law; · ' ( [1]) (1935) frish Reports 170.

controversy it was strongly urged that the power of constitlltional amendment was not identical with pouvoir const.itutent; that it was not within the competence of agencies invested with the power of constitu-tional amendment to drastically revise the structural organisation of State, to change monarchlcal into republican and representative into direct form of government. The argument was based on the conception underlying Art. 2 of the French Law of 1884 which provided that the republican form of government could. not be made subject of constitutional amendment. · Section 50 of that constitution, in partic cular, was criticized as being too pliant for the first period of 8 years and too rigid for the period following it.(') After the 1937 constitu-tion which became model for our constitution makers the trend of judicial thinking underwent transformation and instead of treating an Act inconsistent with the constitution as having the effect of im-pliedly amending the constitution such an Act was regar.ded as invalid to the extent of its inconsistency with the constitution. See Ed rnund Burke v. Lenon(') and Margaret Buckley v. Att. Gen. of Eire('). The 1922 Constitution was considered to be of such "light weight" that there were no fewer than 27 Acts expressed to be Acts impliedly amending that Constitution(') within period of 15 years. During the period 1922-27 the judges were used to the British idea of sovereignty of Parlia-ment and notions of fundamental: law were foreign to their training and tradition. The 1937 Constitution is more rigid than its predecessor though Article 51 permits the Oireachtas to amend the Constitution during the first three years by ordinary legislation. Such legislation, however, is expressly excepted unlike Art. 50 of the 1922 Constitution from the amending power. Mention may be made of The State v. The Min;ster for fustice etc.(') in which it was held that rhe provisions of s. 13 of the Lunatic Asylums (Ireland) Act 1875 which prevented an accused person from appearing before the District Court on the return date of his remand constituted interference with an exercise of judicial power to admini.-ter justice. This case and similar ca5es e.g., Margaret Buckley v. Att. Gen. of Eire(') may not afford much assistance in deter-mining the question about implied limitation to the amending power in constitution because they deal with the question mostly of repug-nancy of ordinary legislation to constitutional provisions. The main decision however, was 'in Ryan's(') case in which Kennedy C.J. drew

( [1]) Leo Kohn, The Constitution of the Irish Free State pp. 257-259.

( [2]) (1940) Ir. Reports 136.

(') (1950) Ir. Reports 67,

(') Sec ~cnerally J. M. Kelly, Fundamental Rights on the Irish Law and Constitution (1968) I-17.

(') [1967] Ir. Rep. 106.

(") [1950] Ir. Rep. 67.

( [7]) [1935] Ir. Rep. 170.

vari<;>us implications from the Constitution but the majority of judges declined to do so and read the word "amendment" as wide enough to allow the repeal of number of articles, however important in sub-stance they might be.

It is equally unnecessary to deal with the argument on behalf of the respondents that the Privy Council in Moore v. Attorney General of Irish Free State(') rejected the contention of the counsel based on the reasoning of Kennedy C.J. Moore's case was decided principally on tbe effect of the passing of the statute of Westminster as is clear from the summing up of the position by their Lordships. ([2])

As regards the position in the United States of America great deal of reliance has been placed on behalf of the respondents on United States of America v. William H. Sprague.(') According to that decision the choice between submission of proposed amendment to the federal Constitution to State Legislatures and submission to State Conventions under Article 5 of the Constitution was in the sole discretion of Cong-ress irrespective of whether the amendment was one dealing with the machinery of government or with matters affecting the liberty of the citizen. It was argued that amendments may be of different kinds, e.g., mere changes in the character of federal means of machinery on the one hand, and matters affecting the liberty of the citizen, on the other. It was said that the framers of the Constitution accepted the former sort t:O be ratified by the legislature whereas they intended that the latter must be 1 cf erred to the people because not only of lack of power in the legislature to ratify but also because of doubt as to their truly re-presenting the people. The Court observed that where the intention was clear there was no room for construction and no excuse for inter-polation or addition and it had been repeatedly and consistently declar-ed in earlier decisions that the choice of mode rested solely in the dis-cretion of the Congress. It is sought to be concluded from this decision that the Supreme Court of the United States refused to read ~ny impli-cations of the nature argued in that case.

Mr. Palkhivala says that the decision in U. S. v. W. H. Spragr1e (Supra) has no relevance to the questions before us. All that it laid down was that the Congress had the sole discretion to decide whether proposed amendment should be submitted to State Legislatures or to the State conventions. The language of Article 5 itself shows that sole discretion in th.is matter is conferred on the Congress irrespective of whether the amendment deals with the machinery of government or with matters affecting the rights and liberties of the citizen. Sprague's

case it is suggested, wns merely fresh attempt after the decision of the Supreme Court in the State of Rhode Island v. A. Mitchell Palmer(1) to argue that the 18th amendment which introduced prohibition was un· constitutional since it was ratified by the State Legislatures and the attempt rightly faitlcd. For the reasons suggested by Mr. Palkhivala, which appear to have iOod deal of substance we are unable: to derive any help from U.S. v W. H. S/lf'lli"'·

The Advocate General of Maharashtra has invoked another prin· ciple to the effect that unlc.!$ the power of amendment is co-extensive with the judicial power of invalidating laws made under the Constitll· tion the judiciary would be supreme; therefore, the power of amend-ment should be c~tensive with judicial power. This follows from what has been repeatedly held by this Court that under our Constin1-tion none of the three great departments of the State is supreme and it is only the Constitution which is supreme and which provides for government of laws and not of men. The reply of Mr. Palkhivala is that if the constitution is supreme, as it i.!, it necessarily follows that there must be limitation on the amending power because if there arc 'no limitations the legislature would be supreme and not the Constitu· tion. If the legislature's power of amending Constitution were co-extensive with the judicial power of invalidating laws made under the Constitution, the legislature can bend the Constitution to its wheel in every way which will lead to result contrary .to what has been provid'. ed in the Constitution, namely, that there are three great departments of the State and no one can have supremacy over the other. When the. judiciary places limitation on the amending powers, says, Mr. Palkhi-vala, only as matter of true construction the consequence is n~t that the judiciary is supreme but that the Constitution is supreme. It is claimed that on his arguments, the legislature,. executive and judiciary remain coordinate which is the correct position under the Constitution. If the respondent's argument is accepted the amending power is abso-. lute and limitless. It can make the judiciary and the executive com-pletely subordinate to it or take over their powers.

We are unable to see how the power of judicial review makes the judiciary supreme in any sense of the word. This power is of para-mount importance in federal Constitution. Indeed it has been said that the heart and core of democracy lies in the iudicial process; (per Bose j., in Bidi Supply Co. v. The Union of India()). The observations of Patanjali Sastri C.j. in State of Madras v. V. G. Row(') which ha,·e become locus classicus need alone be repeated in this connection. Judi-cial review is undertaken by the courts "not out of any desire to tilt at

( [1]) 6-4 L. Ed. 9-46.

(2) [1956] S.C.R. 267.

(') [19;I] S.C.R. 597.

~tive. authority in crusador' s spirit, but in discharge of duty pbinly laid upon them by the Constitution." The respondents have a!M> contended that to let the court have judicial review over const:itu-~ amendments would mean involving the court in political ques-tlions. To this the answer may be given in the words of Lord Porter in Commonwealth of Australia v. Bank of New South Wales(') :-

'The problem to be solved will often be not so much legal as political, social or economic, ycc it muse be solved by court of law. For where the dispute is, as here, not only between Commonwealth and citizen but between Commonwealth and intervening States on the one hand and citizens and States on the other, it is only the Court that can decide the issue, it is vain to invoke the voice of Parliament."

There is ample evidence in the Constitution itself to indicate that it creates system of checks and balances by reason of which powers are· so distributed that none of the three organs it sets up can become so pre-dominant as to disable the others from exercising and discharging powers and functions entrusted to them. Though the Constitution does not lay down the principle of separation of powers in all its rigi-dity as is the case in the United Constitution but it envisages such separation to degree as was found in Ranatinghe's case. The judicial review provided expressly in our Constitution by means of Article 226 and 32 is one of the features upon which hinges the system of checks and balances. Apart from that, as already stated, the necessity for judicial decision on the competence or otherwise of an Act arises from the very federal nature of Co~tution (per Haldane, L.C. in · Att. Gen. for the Commonwealth of Australia v Colonial Sugar Refining Co.(") and Ex parte Walsh & fohnson, In re Yates.(") The functlop of interpretation of Constitution being thus assigned to the judicial power of the State, the question whether the subject of law is within the ambit of one or more powers of the legislature conferred by the constitution would always be question ci interpretation of the Con-stitution. It may be added that at no suage the respondents have con-tested the proposition that the validity of constitutional amendment can be the subjece of review by thia Court. The Advocate General of Maharasthra has. characterised judicial review as undemocratic. That cannot, however, be so in our Constitution because of the provmons relating to the appoi!ntment of judges, the specific. restrictim,i, to ~hieh the fundamental rights are made subject, the dehberate exclUSion of the due process clause in Art. 21 and the affinnataon in Article 141 that

(1) [1950] A.C. 235 at 310. (') [1914] A.C. 237. (•) (1925) 37 C.L.R. 36 at p. 58.

iudles ckclare but not.make law. To this may be added the none two' rigid amendatory process which authorises amendment by means of' 2/3 majority and the ;dditional requirement of ratification. ':

According to the learned Attorney General the entire argument on the basis of implied limitation,9 is fundamentally wrong. He has also relied greatly on the deciSion.in Burah's case and· other similar deci-sions. It is pointed out that there can be no inherent limitation on the power of amendment having regard to the purpose for which the power is needed. The argument! about the non-amendability of the essential frapJ.cwork of the Constitution is illusive because every part of Constitutional document admits ·of the possi\>ility of imperfect drafting or ambiguity. Even basic concepts or ideals undergo progres-sive changes. It has been strenuously urged that the constitution read . as whole did not contemplate the perpetuation of •the ~ting social and economic inequalities and duty has been c~ on the State to organise new social order. The Attorney General quoted the opinion of. ~cral. writers .and authors in support of his contention that there must be express words of limitation in provision which provides for amendment of the Constitution from w.hich it follows th~t no implied !imitations can be read therein.Tho correct approach to the question of limitations which may be . implied in any lcgi5lative provisions including Constitutional docu-ment has to be made from the point of view of interpret!a~on. It is not nove1 theory or doctrine which has to be treated as an innovation of th06C who evolve heterodox methods to substantiate their own thesis. The argument that there are no implied limitations because there arc ilo express limitations is contradiction in terms. Implied limitations can only arise where there are no express limitations. The contention of the learned Att0rney General that no implications can be read in an amending power in Constitution must be repelled in the words of Dixon J. in West v. Commissi<mer of Taxatli:m (N.S. W,) (1):

... Since the Engineer/ case notion seems to have gained cunency that in interpreting the Constitution no implications can be made. Such method of construction would defeat the intention of any lnstrumcnt, but of all instruments written Constitutiori seems the last to which it could be applied"

· W arc equally unable to hold that in the light of the Preamble, the entire scheme of the Constitution the Iclevant; 'provisions thereof and the context . in which the material expressions arc used in Art. 368 no implied limitations arise to the exercise of the power of amendment. T~ respondents do not disj>µtc. ~at, . certain. limitations arise by

(l) [1936-37] S6 CL.R. 657.

necessary implication e.g., the Conititution cannot be abrogated or rcpcal.:d in its entirety and that the India's polity has to be Sovereign Democratic Republic, apart from several other implications arising from Art. 368 which have been not!Ced.

The ar~ument that the Nation cannot grow and that the objectiYes set out in the Preamble cannot be achieved unless the amending power has the ambit and the width of the power of Constitutent Assembly itself or the People themselves appears to be based on grounds which do not have solid basil. The Conititution makers provided for develop-ment of the country in all the fields social, economic and political. The structure of the Conititution has been erected on the concept of an egalitarian society. But the Constitution makers did not desire that it should be society where the citizen will not enjoy the variious free-doms and such lights ai arc the basic clements of those freedoms,. e.g., the right .to equality, freedom of religion etc., so that his dignity as an indivi'dual may be maintained. It has been strongly urged on behalf of the respondents that citizen cannot have any dignity i£ he is economi-cally or socially backward. No one can dispute ~uch statement but the whole scheme underlying the Constitution is to bring about econo-mic and social changes without taking away the dignity of the indivi-dual. Indeed, the same has been placed on such high pedestal that to ensure the freedoms etc. their infringement has been made justiciable by the highest court in the land. The dictum of Das C.J. in Kera!• Education Bill case paints the true picture in which there must be harmony between Parts III and IV; indeed the picture will get distort-ed and blurred if any v~tal provision out of them is cut out or denuded of its identity.

The basic structure of the Constitution is not vague concept and the apprehensions expressed on beh~lf of the respondents that· neither the citizen nor the Parliament would be able to understand it arc un-founded. If the historical background, the Preamble, the entire scheme of the Constitution, the relevant provisions thereof including Art .. 368 are kept in mind there can be no difficulty in discerning that the follow-ing can be regarded as the basic elements of the constitutional structure. (These cannot be catalogued but can only be illustrated).

1. The supremacy of the Constitution.

2. Republican and Democratic form of Government and sove-reignty of the country.

3. Secular and federal character of the Constitution.

4. Demarcation of power between the legislature, the executiv( and the judiciary.

5. The dignity of the individual $ecured by the various freedoms. "nd basic rights in Part III and ,the mandate to build welfare State. contained in Part IV. · '

6. The unity and the integrity of the nation.

The entire discussion from the point of view of the meaning of the expression "amendment" as employed in Art. 368 and the limitations. which arise by implications leads to the result that the amending power under Art. 368 is neither narrow nor unlimited. On the footing on which we have proceeded the validity of the 25th amendment can be sustained if article 368, as it originally stood and after the amendment, is read in the way we have.read it. The insertion of Arts. 13(4) ·and 368(3) and the other amendments made will not affect the resulr, namely, that the power in Art. 368 is wide enough to permit amendment of each and every Article of the Constitution by way of addition, varia-tion or repeal so long as its basic elements are not abrogated or denud-ed of their identity.

We may next deal with the validity of the Constitution (25th Amendment) Act. Section 2 of the Amending Act provides:-

"2. In Article 31 of the Constitution,~

(a) for clause (2), the following clause shall be substituted~ namely:-

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

Provided .......•...• "

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

(2B) Nothing in sub-clause (£) of clause (1) of Article 19

shall affect any such law as is referred to in clause (2)".

As stated in the Statement of Objects and Reasons to the Bill (No. 106 of 1971) the word "compensation" was sought to be omitted from Article 31(2) and replaced by the word "amount". It was being clari-fied that the said "amount" may be given otherwise than in cash. It

. was also provided that Article 19 ( 1) ( f) shall not apply to any law relating to acquisil!on or rcquisi.llioning of property for pub-lic purpose. The position of the respondents is that "compen-sation" had been given the meaning of market value or the just equi-valent of what the owner had been deprived of according to the deci-sions of this Court.(') That had led to the 4th Amendment Act 1955. 'The later decisions([2]) had continued ti> uphold the concept of "com-pensation" i.e. just equivalent of the value of the property· acquired in spite of the amendments made in 1955. In State <>f Guiarat v. Shanti/al Mangaldas & Others(") the decision in Metal C<>rp<>ration of India(•) was overruled which itself was virtually overruled by R. C. Cooper v. Ilnion <>f India.([0 ]) According to the Advocate General of Maharashtra, if Shantilal Mangaldas etc. had not been overruled by R .• C. Cooper v. U nz"on <>f India there would have been no ncces.ity ·of ·amending Art. 31(2).

The first question that has to be determined is the meaning of thr -word "amount". Unlike the word "compensation" it has no legal con-nota$n. It is neutral, colourless word. The dictionary meanings do not help in arriving at its true import as used in constitutional provi-sion. It can be anything from one pan.a to an astronomical figure m rupees. Its meaning has, therefore, to be ascertained by turning to the .context in which it is used and the words preceding it as well as follow-ing it.

The scheme of Art. 31 (2) now is :-

(1) The property has to be compulsorily acquired or requisition-

(2) It has to be for public purpo.se.

(3) .It has to be by law.

( 4) The law must provide for an amount which may be-

( i) fixed by such law or

(ii) which may be determined in accordance with such principles as may be specified in such law.

-~~~~~~~-

(') Sec State of Wm Bengal v. Mrs. Bela Bannerji & .Others (1954) S.C.R. 558.

( [2]) Vajravelu Mudaliar v. Special Depuiy Collector, Madras (1965) S.C.R.

614 and Union of India v. Metal Corporation of India & Anr. [1967] 1 S.C.R . . 255.

(') [1969] 3 S.C.R, ~l.

(') [1967] 1 S.C.R. 255.

(") [1970] 3 S.C.R. 530.

(5) The law shall not be questioned in Court on the ground :

(i) The amount so fixed or determined is not adequate or

(ii) the whole or any pan of 1ruch amount is to be given otherwise than in cash. '

It is significant that the amount can be determined in accordance with specified principle51 if ir is not fixed by the law itself. Morcovet, its / adequacy cannot be questioned in court. The use of the word "prin-ciples" and the question of inadequacy can only arise if the amount has some norm. If it has no norm no question of specifying any, principles ariSCl! nor can there be any occasion for the determination of its ade-quacy. The very fact that the coun is debarred from going into the question of adequacy shows that the "amount" can be adequate or in-adequate. Even if it is inadequate, the fixation or determination of that amount is immune from any challenge. It postulates the existence of some standard or norm without which any enquiry into adequacy becomes wholly unnecessary and irrelevant. Moreover, either method, of giving an amount must bring about the same result. In other words, ! if Rs. 1000 is the amount to be given for acquisition of property, it: must be either fixed or must be determinable by the principles specified in the event of its not .being fixed. It could not be intended that the two alternative modes should lead to varying results, i.e, it could be fixed at Rs. 1000 but if the principl~ are specified they do not yield that,! figur~ '

The Advocate General of Maharashtra says that tlie right of the owner is just what the government determines it to be. It can· give what it pleases and when it choses to do so. Such an argument is untenable and introduces an element of arbitrariness which cannot be attributed to the Parliament.

In Shanti/al Mangal Dar, whicb, on the ~ubmission of the Advocate General, enunciated the correct principles relating to Article 31 (2) as it then stood, it was laid down that something fixed or determined by the application of specified principles which was illusory or could in no sense be regarded as compensation was not bound to be upheld by the' Courts, "for to do so would be to grant charter of arbitrariness and permit device to defeat the constitutional guarantees". It was added that the principles could he challenged on the ground that they were irrelevant to the determination of compensation but not on the plea that what was awarded was noi just or fair compensation. Thus it was open to the courts to go into the question of arbitrariness of the amount fixed or its being illusory even under the law laid down in Shanti!a/!1 Mangaldas (supra). The relevance of the principles had also been held to he justiciable. R. C. Cooper'; case did not lay down different'principles. But the observations made therein were understood to mean that the concept of just equivalent not accepted in Shanti/al' s case was restored. The amendment now made is apparently aimed at removing that concept and for that rearon the word "amount" has been substitu-ted in place of "compensation". This is particularly so as we find no reason for departing from the well-settled rule that in such circum-stances· the Parliament made the amendment knowing full well the ratio of the earlier decisions.

The Advocate General of Maharashtra has submitted that the fix-ing of the amount or alternatively specifying the principles for deter-mining that amount is entirely within the judgment of the legislature and the whole object of the amendment is to exclude judicial review which had been introduced by the courts on the basis of the concept of compensation. But even then the members of the legislature must have some basis or principles before them to fix the amount as the same can-not be done in an arbitrary way. He, however, gave an unusual ex-planation that in the Cabinet svstem of government it is for the govern-ment to deterrnine the amount or specify such principles as it choses to do. The legislators belonging to the ruling party are bound to sup-port the measure whether the basis on which the amount has been determined is disclosed to them or not. It is wholly incomprehensible how there can be any legislative judgment or decision unless there is room for debate and discussion both by members of the ruling party and the opposition. For any discussion on the "amount" fixed or the· principles specified the entire basis has to be disclosed. There can be no basis if there is no standard or norm.

The learned Solici.tor General agrees that Article 31 (2) after amendment still binds the legislature to provide for the giving to. the owner sum of money either in cash or otherwise. In fixing the "amount", the legislature has to act on some principle. This is not be-cause of any particular obligation arising out of Article 31(2), but from the general nature of legislative power itself. Whatever, the subject or the nature of legislation it always proceeds on principle it is based on legislative policy. The principle may include considerations of social justice: Judicial review on the ground of inadequacy of the "amount" and the manner of payment is excluded by express language. No other question is excluded. The expropriated owner still continues to have fundamental right. This argument is not quite the same as that of the learned Solicitor General.

It is true that the "amount" to be paid to an owner may not be the market value. The price of the property might have increased owing to various factors to which no contribution has been made by the owner. The element of social justice may have to be taken into

coruideration. But still on the learned Solicitor General's argument, the right to receive the "amount" continues to be fundamental right. That cannot be denuded of its identity. The obligation to act on some principle while fixing the amount arises bOth from Art. 31(2) and from l!he nat.ure of the legislative power. For, there can be no power which permits in democratic system an arbitrary use of power. If an aggriev-ed owner approaches the court alleging that he tis being deprived of that right on the grounds now. open to him, the Court cannot decline to look into the matter. The Court will certainly give due weight to legislative judgment. But the norm or the principles of fixing or deter-mining the "amount" will have to be disclosed to the Court. It will have to be satisfied that the. "amount" has reasonable relationship with the value of the property acquired or requisitioned and one or more of the relevant principle5 have been applied and further that the "amount" is neither illusory nor it has been fixed arbitrarily, nor at such figure ~t ii: means virtual deprivation of the right under' Article 31 (2). The qucStion of adequacy or inadequacy, however, cannot be gone into.As to ·the mode of payment, there is nothing to indicate in the amend-ed Article that any arbitrary manner of payment is contemplated. It is well known thar discretion has to be exercised reasonably.

As regards cl (2B) inserted in Article 31 which makes Article 19 (l)( f) inapp~ble, there is no reason for assuming that procedure will be provided which will not be reasonable or wiJI be opposed to the rules of natural justice. Section 2 of the 25th amendment can be sus-tained on the construction given to it above.

We now come to the most controversial provision of 25th Amend-

. mcli.t, namdy, section 3 which inserted the following Article :-

"31 C. Notwithstanding anything contained in Article 13, no law giving effect to the policy of the State towards securing the princi-ple$ specified in clause (b) or clause ( c) of Article 39 shall be deemed io be void on the ground that it is incoruistent with, or takes way or abridges any of the rights conferred by Article 14, Article 19 or Article 31; and no law containing decl,ration 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 · thar where such law is made by the Legislature of State, the provisions of. this Article shall not apply thereto unless such law, having been reserved for the consideration of the Presi-dent, has received his assent".

Accoromg to the Statement! of Objects and Reasons contained in Bill No. 106 of 1971, the new Article has been introduced to provide that if any law is passed to give effect to the Directive Principles contained in 19-36 S.O. India7S

clauses (b) and ( c) of Article 39 and contains declaration to that effect, such law shall not be deemed to be void on the ground that it takes away or abridges any of the rights· colltlined in Articles 14, 19 or 31 and shall not be questioned on the ground that it does not give effect to these principles. For this provision to apply in case of laws made by State legislatures, it is necessary that the rele\lant Bill should be reserved for the consideration of the President and reccive his assent

Article 39 contains certain principles of policy to be followed by the State. It enjoins the State inter al.ia to direct its policy towards securing:

"39 '(b) that the ownership and control of the material re-sources of the community are so.distributed as best to sub. serve the common good ;

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

These provisions together with the other provisions of the Consti-tution contain one of the main objectives, namely, the building of welfare State and an egalitarian social order in our country. As stated before, the fundamental rights and the directilve principles have been described as the "conscience of our Constitution". The Constitution makers had, among others, one dominant objective in view and that was to ameliorate and improve the lot of the common man and to bring about socio.economic transformation based on principles of social justice. While the Constitution makers envisaged development in .the social, economic and political fields, they did not desire that it should be society where citizen will not have the dignity of the individual. Part III of the Constitution shows that the founding fathers were equal-ly anxious that it should be society where the citizen will enjoy the various freedoms and such rights as arc_ the basic elements: of those free.. doms without which there can be no dignity of individual. Our Constitution makers did not contemplate any disharmony between, the fundamental rights and the directive principb. They were meant to supplement one another. It can well be 6'lid that the directive princi-ples prescribed the goal to be attained and the fundament;il righ~ laid down the means by which that goal was to be achieved. While ,on behalf of the petitioners greater emphasis has been laid on t:hc funda-metal rights, counsel for the respondents say that the fund;lmental rights .should be subordinate to the directive principles. The Consti-tuent Assembly did not accept such proposal made by B. N·. Rau. It has· been suggested thar stage has been reacbal where it has become necessary to abrogate some of the basic freedoms and rights providrd the end justifies the means. At an ~lier stage in the devdopmem of

our constitutional law view was taken that the Directive Principles of State Policy had to conform and run subsidiary to the Chapter on Fundamental Rights, but Das C. J. in Kera/a Education Bill, 1957, laid down the rule of harmonious construction and observed that an attempt should be made to give effect to both the fundamental rights and the directive principles.

According to Mr. Palkhivala, Article 31C destroys several essential features of the Constitution. He says that there is vital distinction between ~o cases (a) where fundamental rights are amended to per-mit laws to be validly passed which would have been void before the amendment and (b) the fundamental rights remain unamended, but the laws which are void as offending those rights are validated by legal fiction that they shall not be deemed to be void. He further points out that on the analogy of Article 3l(C) it would be permissible to have an omnibus Article that notwitbst'anding anything contained in the Constitution no law passed by Parliament or any State legislature shall be deemed to be void on any ground whatsoever. Article 31 ( C) according to him, gives blank charter not only to Parliament but all the State Legislatures to amend the Constitution. On the other hand, the argument on behalf of the respondents is that Article 31(C) is similar to Articles 31(A) and 31(B) and that the object of inserting the Article is to free certain kinds of laws from the limitation on legi.sfa-tive power imposed by conferment of fundamental rights by Part III of the Constitution. As those rights were justiciable under Art. 32, says the Advocate General of Maharashtra, the only way of doing so was to exclude judiciai review of legislation in respect of those laws. If Article 31 (A) is valid, there is no reason or justification for saying that Article 31(C) suffers from all the vices pointed out by Mr. Palkhi-vala.

According to the Solicitor General, Article 31(C) protects only law and nor mere eirecutive action. Law can be_lJlade by cither Parlramcnt or the State Legislatures. Article 3l(C) has been enacted for the pur-pose of achieving the objectives ~t out in clauses (b) and ( c) of Arti-cle 39. The law enacted under it will operate on "material resources", concentration of wealth and "means of productil>n". The legislative effort would generally involve (i) nationalisation of material resources of the community and (ii) imposition of control on the production, supply and distribution of the products of key industries and essential commodities. It, therefore, impinges on particular kind of economic system only.

The question of the validity of Article 3l(C) to our mind has to be examined mainly from two points of view; the first is its impact on the various freedoms guaranteed by Article 19, the abrogation of the right of equality guaranteed by Article 14 and the right to property contained in Article 31. The second is whether the amending body

under Article 368 could delegate its amending power to the legislatures of the Union and the States. Alternatively, whether the Parliament and the State Legislatures can, under Article 3l(C), amend the Constitu-tion without complying with the form and manner laid down in Arti-cle 368. Now it is quite obvious that under Article 31(C) law passed by the Parliament or the State Legislatures shall not be deemed to be void on the ground that it is inconsistent with or takes away or abridges any.of the rights conferred by Articles 14, 19 and 31 so long as the law is declared to be one for giving effect to the policy of the State towards securing the principles specified in clause (b) and clause ( c) of Arti-cle 39. If Art 3l(C) is aimed at the removal of particular economic system, as suggested by the Solicitor General, it is difficult to under-stand why the freedoms contained in clauses (a) to (d) of Art. 19 as also the right of equality under Art. 14 had to be taken away. The power of enacting Constitution breaking laws has been entrusted even to small majority in State Legislature. Mr. Palkhivala points out that the freedom of the Press, for instance, can be destroyed under Article 3l(C) as the respondents claim the right to nationalise any industrial or economic activity. Moreover, person can be put in prison for. commending policy contrary to the government's policy. Such legislation cannot be challenged as Article 19(1)(a) will not apply and Article 21 permits deprivation of per.oonal liberty according to pro-cedure established by law. The case in the State of Bombay & Another v. F. N. Balsara([1 ]) is in point. Commending- the use of an intoxicant had been made an offence. It was struck down by this Court as violative of Article 19(1)(a). If Article31(C) is constitutional, such provision made in law enacted under it relating to matters falling within Arti-cle 39(a) and (b) would be valid. As matter of fact no cogent or convincing explanation has been given as to why it was necessary to take away all the freedoms guaranteed by Article 19 and for the abroga-tion of the prized right of equality under Article 14 of which has been described as the basic principle of republicanism.{') This Article com-bines the English doctrine of the rule of law and the equal protection clause of the 14th Amendment to the American Constitution.(') I1 follows, therefore, that Article 31 (C) impinges with full force or several fundamental rights which are enabled to be abrogated by the Parliament and the· State Legislatures.

As regards the question of delegation of amending power, it is noteworthy that no amendment has been made in Article 368 itself to eriabk delegation of constituent power. The delegation of such power

( [1]) [1951] S.C.R. 682.

(•) State of West Bengal v. Anwar Ali S11rkar (per Patanjali Sastri C.J.) [1952] S.C.R. 284 at pp. 293, (Ibid p. 313 Mahajan J.).

(') Basheshar Nath v. The Commissjoner of Income Taz, Delhi l!r Rajasthan (per Das C.J.) [1959] Supp. 1 S.C.R. 528 at 551.

to the State Legislatures, in particular, involves serious consequence1. It is well settlrd that one legislature cannot create another leai1lative body. This has been laid down very clearly in two deciaiolu oi the Privy Cow1c:il. In the lniti4li11e 11ntl Refmnd11m Act(') which lw al-ready been discumd~1) by us no doubt wu en~ed that body that had the power of le8Jalation on the tubjectt entrusted to it, evC.11. thoup, the power was to ample u that enjoyed by provincial leaitlature i.n Canada, could not create and endow with its own capacity new legi1-lative power not created by the Act to which it owed itt own exittence. Attorney General of No1111 Scoli11 v. The Attorney Genertd of C1111111l11([1]) is another direct authority for the view that the Parliament of Canada · or any of the legislatures could not abdicate their powers and, invest for the purpose of legislation bodies, whlch by the very terms of the British North American Act were not empowered to accept such delegation and to legislate on such matters. The distinctipn made by counsel on behalf of the respondents and the cases relied on by them have been fully discus.iicd in the judgment of the learned Chief Justice and we need not go over the same ground.

The only way in which the Constitution can be amended, apart from Articles 4, 169 and the relevant paras in Schedules V and VI of the Constitution, is by the procedure laid down by Article 368. If that is the only procedure pmcribcd, it is not poesdble to understand how by ordinary Jaws the Parliament or the State Legislatures can amend the Constitution, particularly, when Ar.tide 368 does not contemplate any other mode of amendment or the setting up of another body to amend the Constitution. The other difficulty which immediately pre-sents itself while examining Article 31 ( C) is the effect of the declara-tion provided for in the Article. It is· possible to fit in the scheme of Article 31 ( C) any kind of social or economic legislation. If the courts are ,debarred from going into the question whether the laws enacted are meant to give effect to the policy set out in Article 39(b) and ( c), the Court will be precluded from enquiring even ;mo the incidental en-cr011chment on rights guaranteed under Artides 14, 19 and 31. This is not possible with regard to laws enacted under Article 31(A). Those laws can be sustained if they infringe the aforesaid Articles only to the extent necessary for giving effect to them. Although on behalf of the respondents it is said that the Court can examine whether there is any nexus between the laws made under Article 31(C) and Article 39(b) and (c), there would hardly be any law which can be held to have no nexus with Article 39(b) and (c), the ambit of which is so wide.

( [1]) (1919] A£. 935. ( [1]) See page 88. ( [1]) (1951 J Cao. L. R. 31.

The essential distinction between Article 31(A) and 31(C) is. that the former is limited ro sper.ified topics,; whereas the latter does not give the particular subjects but leaves it to the )cgislatures to select any topic .. that may purport to have some nexus with the objectives iii Arti-cle 39(b) and (c). In other words, Article 31(C) deals with Qbjects with unlimited scope. .

· The argument that Article 31 ( C) lifts the ban placed on State L:Cgislature .and Parliament under Articles 14, 19 and 31 aud futther that it ttiay be considered as an amendment of Ariicle 368, has beCil discti!Sed by the learned Chief Justice in his judgment delivered today :ind . we adopt, witli respect, his reasoning for repelling them.

In OW' judglnent Article 31(C) suffers from two kinds of Vice which scrioU&ly affect its validity. The first is that it enables !Ota! abrogation of fundamental rightt contained in Articles 14, 19 and 31 and, secondly, the. power of amend~t contained in Article 368 is of special nature which has been exclusively conferred on the Parliament and can be exercised only in the manner laid clown in that Article. It was never intended that the same could be delegated to any other legislature including the State Legislatures.

The purpose sought to be achieved by Article 31(C) may be highly laudable as pointed ()m by the !carried Solicitor General, but the same must be achieved by appropriate laws which can be constitu· tionally upheld. We have tto option, in view of what has been s:l,id except to hold that the validity of Article 31 ( C) cannot be sustained. .

The last matter for determination is the validity of the 29th Amend-ment Act, 1m. The challenge is only against the lnc!U&ion of t:Wo. Acts, namely. the Kerala Land Reforms (Amendment) Act 1969 and similar Kerala Act of 1971 in the Ninth Schedule to the Constitu. tion.

The main argument on behalf cl. the petitioners ms betn tonfintd to the relationship between Article. 3l(A} and Article 3l(B); It hat been contended that Artkle 3I(B) is intimately llnked With Art. 31(A) arid, therefore, only those legislatite enactments which fall undeT Atti-cle 3l(A) can be included in the 9th Schedule under Article 3l(B). This matter is no longer open to argument as the same stands settled by · series of ,decisions of this Court. See State of Bih~ v .. Mah11ra;rulhira; Sir Kameshwar Singh of Darbhanga & OthN"s;(') 1'ilw~1!11Vl11' .R«tJ v.

The State of Madhya Pradesh(') and N. B. fee;eebhoy v. Assistant · Collector, T hana Prant, T hana.(') In all these cases it wu held that Article 31 (B) was independent of Article 31(A). matter which has been settled for all these ye:irs cannot be re-opened now. It will still be open, however, to the Court· to decide whether the Acts which were included in the Ninth Schedule by 29th Amendment Act or any provi-sion thereof abrogates any of the bask clements of the constitutional structure or denudes the1n of their identity.

Our conclusions may be sumtnariscd as follows :

1. The- decision in Golak Nath has beco:tne academic, for even if it be assumed that the majority judgment that the word 'law' in Article 13(2), covered constitutional amendrtients was not correct, the result on the questions, wider than those raised in Golak Nath, now raised before us would be just the same.

2. The discussion on the 24th Amendment leads to the result that-

( a) the said amendment does no more than to clarify ib. express language that which was implicit in the unamended Article 368 and that it does not or cannot add to the power origi-nally conferred thereunder;

(b) though the power to amend cannot be narrowly construed and extends to all the Articles it is ilot unlimited so as to include the· power to abrogate or change the identitv of the Constitution or its Qasic features;

( c) even if the amending power includes the power to amend Article 13(2), question not decided in Golak Nath, the power is not so wide so as to include the power to abrc.gate or take away the fundamental freedoms; and

( d) the 24th Amendment Act, read as aforesaid, is valid.

3. Clause (2) of Article 31, as substituted by s. 2 of the 25th Amendment, does not abrogate any basic clement of the Constitution nor does it denude it of its identity because-

(a) the fixation or determination of "amount" under that Article has to be based on some norm or principle which must be relevant for the purpose of arriving at the amount payable in respect of the property acquired or requisitioned;

(b) the amount need not be the market value but it should have reasonable relationship with the value of such property;

( [1]) [1952] S.C.R. 1020.

( [2]) [1965] 1 S.C.R. 636.

(c) the amount should neither be illusory nor fixed arbitrarily; and

(d) though the courts arc debarred from going into the ques-tion of adequacy of the amount and would give due weight to le!PJlativc judgment, the examination of all the matters in (a), (b) and ( c) above ia open to judicial review.

4. Aa regards clawe (2B) inserted in Article 31 which makes Article 19(1)(£) inapplicable, there is no reason to suppose that for determination of the amount on the principles laid down in the law any such procedure will be frovided which will be unreasonable or opposed to the rules o natural justice.

S. On the above view section 2 of the 25th Amendment is valid.

6. The validity of section 3 of the 25th Amendment which intro-duced Anicle 31C in the Constitution cannot be sustained because the said Article suffers from two vices. T~ first is that it enables abrogation of the basic elements of the Cons-titution inasmuch as the fundamental rights contained in Articles 14, 19 and 31 can be completely taken away and, secondly, the power of amendment contained in Article 368 is of special nature which has been exclusively conferred on Parliament and can be exercised only in the manner laid down in that Article. The same could not be delegated to any other legislature in the country. Section 3, therefore, must be declared to be unconstitutional and invalid.

7. The 29th Amendment is valid. However, the question whether the Acts included in the Ninth Schedule by that amendment or any provision of those Acts abrogates any of the basic elements of the constitutional structure or denudes them of their identity will have to be examined when the validity of those Acts comes up for consideration.

The petitions are remitted to the· Constitution Bench to be decided in accordance with this judgment and the law. The Constitution Bench will also decide the validity of the 26th Amendment in the light of our judgment.

HEGDE AND MuKHERJEA JJ.-In these writ petitions questions of great constitutional importance have arisen for consideration. Herein we are called upon to decide the constitutional validity of the 24th, 25th, 26th and 29th Amendments to the Constituaon. We have had the ac!Yantage of hearing long and illuminating arguments cov~~ing over 65-working days. We have been referred to numerous dec1S1ons of this Court and of the courts in England, United States, Canada,

Australia, Germany, Ireland and Ceylon. Our attention has also been invited to various writings of jurists, present and past, of several countries. For paucity of time, we have not taken up the question of the validity of the 26th Amendment. That question can be convenient-ly considered later after this bench decides certain fundaniental ques-tions of law arising for decision. For the same reason we have also refrained from going into the merits of various wcit · petitions at this stage. At present we are merely deciding the scope and validity of the 24th, 25th and 29th Amendments to the Constitution.In order ·to decide the validity of the Amendments referred to earlier, it is necessary to go into the scope of the power conferred on Parliament under Article 368 of the Constitution as it stood prior to its amendment by the 24th Aniendment Act which. came into force on November 5, 1971. Article 368 is the only article found in Part XX of the Constitution. The title of that part' is "Amendment of the Constitution." Its marginal note as it originally stood read ''Procedure for amendment of the Constitution". The Article read thus:

"An amendment of this Constitullion may be initiated only by the introduction of Bill for the purpose in either House of Parlia-ment, and when the Bill Is passed in each House by majority of. the total membership of that House and by majority of not less than twe>-thirds of the members of that House present and voting, it shall be presented to the President for his assent and upon such assent being given to the Bill, the Constitution shall stand amended in accordance with the terms of the Bill :

Provided that if such amendment seeks to make any change

in.,.._

(a) article 54, article 55, artick 73, article 162 or article 241, or

(b) Chapter N of Part V, Chapter V of Part VI, .or Chapter I of Part XI, or

(c) any of the Lists in the Seventh Schedule, or

(d) the represent:ition of States in Parliament, or

( e) the provisions of this article,

the amendment shall also require to be ratified by the Legis-latures of not less than one half of the States by resolutions to that effect passed by those Legislatures before the Bill making provision for such amendment is presented to the President for assent."

The petitioners' learned Counsel, Mr. Palkhivala, advanced twe>-fold arguments as to the scope of that Article. His first contention was that in the exercise of its powers under. Article 368 as it stood

before its amendment, it was impermissible for Parliament to take away or abridge any of the rights conferred by Pan III of the Cons-titution. His second and more comprehensive argument was that the power conferred on the Parliament under Art. 368 did not permit it to damage or destroy any of the basic or fundamental features or ossential clements of the Constitution. The arguments on these two aspects naturally ran into each other. But for prQjJCr legal approach, it is necessary to keep them apart as far as possible. Heru:c while considering the correctness of the first contention, we shall not take into consideration the importance of the Fundamental Rights. On this aspcc.t, our approach to Article 368 will be p11rely baStd on the language of Article. 368 and Article 13. 'rh.e importance or transcen-dental character of the Fundamental Rights as well as the implied or inherent fimitations on the amending power, if any, will be cmuidered wltlle dealing with the second of the rwo altcthative contentions advanced by Mr. Palkhivala.We shall first take up the question whether by the exercise of the powet of amendment conferred by Article 368, as it originally stood, Parliament could have taken away any of the Fundamental Rights conferred by Part III. According to Mr. Palkhivala, Article 368 as 'tt stood before its amendment merely laid dciwn !the procedure for amendment; the power to amend the Constiiution must be found somewhere else in the Consllitution; the power to be exercised by Parliament under Article 368 in legislative in charaoter and the result-ing product is 'law', hence such law, in view of Article 13(2) which says "The State shall not make any law wltlch takes away or abridges the ·rights conferred by tltls Part and any law made in contravention of tltls clause shall, to the extent of the con!travention, be void", cannot validly ·take away or abridge any of the Fundamental Rights. He further contended that the word 'law' in Article 13(1) means and includes not merely legislative enactments but also constitutional measures. The Counsel urged, there is no reason why different meaning should be given to the· word 'law' in Atticle 13(2). more impo!1tant argument of his was that the power to amend the Cons-tilturion, even if, it is assumed to be contained in Article 368, is by no means an exclusive power because in ecrntin respects and subject to certain conditions, the Constitution can also be amended by Parlia-ment by simple majority by enacting law in the same manner as other legislative measures are enacted. In this connection he drew our attention to Articles 4, 169, Paragraph 7 of the Vth Schedule and Paragraph 21 of the VIth Schedule. Counset urged that'if the amend-ment of the, provisions of the Constitution referred to therein is con-sidered as the exercise of constituent power and comequcntly such an amendment is not "law" within the meaning of that expression ill Article 13, then Parliament by simple majoi'ity of the meinber!

present and voting if the rule regarding the quorum is satisfied, can take away or abridge any of the Fundamental Rigtits of certain sections of the public in this country.

On the other hand, the learned Attorney General, the learned Advocate General fo~, the State of Maharashtra, appearing for the State of Kerala and the other Counsel appearing for the various States contended that plain reading of Article' 368 shows that ~he power · to amend the Constitlltion as weU as the procedure of amendment are both contained in that Article; once the form and the manner laid down in that Article have been complied with, the r~t is the amendment of the Constitution. According to them, the expression "an amendment of this Constiltution" in Article 368 means an amend-ment of each and every provision or. part of the Comaitution; once the-form and manner provided in Article 368 have been complied with, the amended Article is as effective as the original Article itself; and, therefore, as in the case of the original Article, the validlty of the amended Article also cannot be cha~engcd. They further contended that 'law' in Article 13 means only legislative enactments or ordinances, or orders or bye-laws or rules or regulations or notific:(tions or cus-toms or usages having the force of law in the territory of India and that expression does not include constitutiooal law, though in comprehensive sense, constitutional law is also law. They further contended that the word 'law' in Article 13 muSlt be harmoniously construed with Article 368 and, if 'it is so construed, thero is no room for doubt that the expression 'law' in Article 13 does not include a, constitutional law. They repudiated the contention of Mr. Palkhivala that there was any constitutional law as such in force when tthe Cons-titution came into force. Hence according to them the expression 'law' in Article 13(2) does not take in the amendment of the Consti-tution. According to them, laws enacted under Article 4, Article 169, Paragraph 7 of Schedule V and Paragraph 21 of Schedule VI are not to be deemed as amendments to the Consitituttion as is laid down in those provisions, though in fact they do amend the Constitution in certain respects and they are no different from ·the other kgislative· measures enacted by Parliam~nt; hence the laws enacted under those provisions cannot take away or abridge any of the Fundamentaf Rights. We have now to see which one of those lines of reasoning is· acceptable.

The question wheth~r Fundamental Rights can be abridged by Parliament by the exercise of its power under Article 368 in accordance with the procedure laid down therein came up for consideration before this Court very soon after the Constitution came into force., The validity of the Constitution (1st 'Amendment) Act 1951 came up for the consideration of this Court in Sankari Prasad

Singh Deo v· Union of India and State of Bihar('). In that case the

scope of Article 368 vis-a-vis Article 13(2) was debated. This Court rejecting the contention of the pctiitioners therein that it was impcr-missibk for Parliament to abridge any of the Fundamental Rights under Article 368, held that "although 'law' must ordinarily include constitu6onal law, there is clear demarcation between ordinary jaw which is made in exercise of legislative power, and constitutional law, which is made in exercise of constituent power". This Cow:t held 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 powei;, with the result that Article 13(2) does not affe~ the amend-ments made under Article 368". In the case this Collilt also opined that the power to amend the Constitution was explicitly conferred on Parliament by Article 368 and the requirement of different majority was merely procedural. It rejected the contention that Article 368 is complete code by itself and upheld the contention of the Govern-ment that whik acting under Article 368, Parliament can adopt the procedures to be adopted, except to the extent provided in Article 368, in enacting other legislative measures.

The power of Parliament to abridge Fundamental Rights under Article 368 was again considered by this Court in Sajian Singh v. State of Raiasthan ('). In that case two questions were considered viz. < 1) Whether the amendment of tlhe Constitution in so far as it purported to take away or abridge the rights conferred by Part Ill of the Constitution was within the prohibition of Article 13(2) and (2) Whether Articles 31-A and 31-B (as amended by the li'th Amend-ment Act) sought to make changes in Article 132, Article 136 and Article 226 or any of the Lists in the VI!th Schedule and therefore the condit'ions prescribed in the prov!iso ID Article 368 had to be satisfied. It is clear from the judgment of the Court that the first question was not debated before the Court though the majority judges as well as the minority judges did consider that question ev·idently without any ass1ttance from, the bar. On both those questions Chief Justice Gajen-dragadkar speaking for himself and Wanchoo and Raghubar Dayal JJ. concurred with the view taken by this Court in Sankari Prasad's case. But Hidayatullah J. (as he then was) and Mudholkar J. doubted the correctness of that decision on the first question but concurred with the view taken by the majority ·of judges on the second question. Hidayatullah and Mudholkar JJ. agreed in dismissing the writ peti-tions as the petitioners had not challenged the correctness of the deci-sion of this Court in Sankari Prasad's case on the first question.

( [1 ]) [ 1952] S.C.R. 89.

( [2]) [1965] 1 S.C.R. 933.

The question whether any of the Fundamental Rights can be abridged or taken away by Parliament in exercise of its power undtr Article 368 again came up for consideration before this Court in I. C. Golaknath and ors. v. State of Puniab('). This case was heard by full court of eleven judges. In t!hat case by majority of six to five this Court came to the conclusion that Sankari Prasad's case as well as Saiian Singh' s case were not correctly decided. The majority held that the expression 'law' in Article 13(2) includes constitutional amendments as well. The minority agreeing with the earlier decisions held that the expression 'law' in Article 13(2) does not include cons-· ·titutional amendments. Five of the majority judges namely . Subba Rao C.J., Shah, Sikri, Shellit and Vaidia1ingam JJ. held that;.Article 368 in terms only prescribes the various steps in the mater .of. a.mend-ment and that the Article assumes tihe existence of the power. to~amend somewhere else in the Constitution. Accord'ing to them the mere com-pletion of the procedural steps mentioned in Article 368 cannot bring about valid amendment of the Constitution. In their opinion, the power to amend cannot be implied from Article 368. They declined to infer such power by .implication in Article 368 as they thought it was not necessary since Parliament has under Article 248 read with Item 97 of List I of the VIIth• Schedule plenary power to make any law incliuding the law to amend the Constitution subject to the limi-tations contained therein. They observed that the power of Parliament to amend the Constitution may be derived from Article 245, Article 246 and Article 248 read wiith Item 97 of List I. The remaining six judges held that the power of amendment is no~ derived from Art. 248 read with Entry 97 of List I of the VII1ih Schedule. Wanchoo J. (as he then was) and Bhargava, Mit1ter and Bachawat JJ. held that the power to amend is to be found in Article 368 and Ramaswami J. held that Article 368 confers on Parliament the right (power) to amend the Constitution. Hidayatullah J. (as he then was) held that Article 368 outlines process, which, if foUpwed striotly, results in the amendment of the Constitullion; that article gives the power to no particular person or persons, and ·that the power of amendment, if it can be called power at all, is leglslati.ve power but ic is sui generis and exists outside the three Lists in Schedule VII of the Constitution. This reasoning of Hidayatuulah J. may be reasonably read to suggest that the power of amendrnen~ is necessarily implied in Article 368. The ~jority of the judges who held that it was impermissible for Parliament to take. away or abridge any of the Fundamental Rights by an amendment of the Constitution did not proceed to striko down the the 1st, 4th and 17th Amendments. Five of them relied on the doc-trine of. "Prospective Overruling" (Subba Rao C.J., Shah, Sikri, Shclat · and Vaidialingam JJ.) and Hidayatullah J. relied on the doctrine of (1) (1957) 2 S.C.R. 7Q.

acquiescence to save those amendments. Evidently in an attempt to get over the effect of the decision in Golak Nath' s case, Parliament has enacted the 24th Amendqient Act, 1971, and the same has been ratlified by more than one half of ,the Legislatures of the States.

Now, turning back to the contentions :idvanced on behalf of the partiei, we shall first deal with the cQntention of the Union and s<>me of the States that once the "form and manner" prescribed in Artick 368 are complied with, the Constitution stands amended and thereafter the validity of the amendment is not open to challenge. This contention d6es not appear to be tenable one. Before Cons-titution can be validly amended, two requirements mUSll be satisfied. Firstly, there must be the power to amend the provision sought to be amended; and secondly, the "form and the manner" prescribed· in J).rtide 368 must be satisfied. lf · the power to amend the Article is wanting, the fact that Parliament has adhere;:! to the form and manner prescribed in Article 368 becomes immaterial. Hence !he primary question is whether Parliament has power to abridge or take away any of the Fundamental Rights prescribed in Part III of the Cons-titution ?

In order to find out whether Parliament has the power to take away or abridge any of the Fundamental Rights in exercise of its power under Article 368, we must first ascertain the true scope of that Article. As seen earlier in Sankari Prasad' s case, this Court ruled that the power to amend the Constitution is to be found in Article 368. The same view was ·taken by the majority of judges in Saiian Singh's case as well as in Golak Nath's case. We respectively hold that view to be the correct view· As mentioned earlier, Part XX of the· Constitution which purports to dc;tl with amendment of the Cons-titution cont:!ins only one Article, i.e. Article 368. The title of that Part is "Amendment of the Constililltion." The fact that separate part of the Constitution is reserved for the amendmellltl of the Cons-titution is circumstance of great significance-see Don John Francis Douglas uyanage and ors. v. The Queen(') and State of UP. v. Manbodhan Lal Srivastava([2]). The provisions relating to the amend-ment of the Constitution are some of the most important features of any modern Constitution. All modern Constitutions assign an impor-tant place to the amending provisions. It is difficult to accept the view expressed by Subba Rao C. J, and the learned judges who agree<l with him that the power to amend the Constitution is not to be found even by necessary implication in Article. 368 but must be found

( [1]) (1967] I A.C. 259 at 287.

' [2]) [1958] S.C.R. 533 at 544.

elsewhere. In their updoubtedly difficult task of finding out that power elsewhere they had to fall back on Entry 97 of List I. Lists I to III of the V!Ith Schedule of the Constitution merely divide the topics of legislation among the Union and the S11ates. It is obvious that these Lists have been very carefully prepared. They are by and large exhaustive. Entry 9Z,in List I was included to meet some unexpected and unforeseen contingencies. It is difficult to believe that ollr Cons-titution-m;ikers who wiere keeply conscious of the impor1!.a!l.ce of the provision relating to the amendment of the Constitution and debated that question for sever:il days, would have left .this important power hidden in Entry 97 of J.,iSll I leaving it to the off chance of the courts loca6iig that power in th;tt Entry. We are unable to agree witli those learned ju<)ges when they sought to place reliance on Article 245, Article 246 and Article 248 and Entry 97 of List I for the purpose of lo~ating ~ power of ammdment in the residuary power conferred on the Union. Their reasoning in that regard fails to give due weight tp the fact that the exercise of the power under those ariticles · is "subject tQ the provisi1>ns of this Constirution". Hardly few amend-ments to the Constitutil>n can be made subject to the existing provi-~ions of the Constitution. M:ost amendments of the Constitution must necessarily impinge on one or the other of the existing provisions of the Constitutiol}. W r; have no doubt in our minds that Article 245 to Artie&! 248 as well as the Lists in the Vllth Schedule merely deal with the legislative power and not with the amending po~er.

Now coming back to Ar.;..!e 368, it may be noted that it has tluee components; firstly, it deals with the amendment of the Cons-titullion; secondly, it designates the body or bodies which can amend the Constitution, and lastly, it prescibes the form and the manner in which the amendm-=nt of the Constitution can be effected. The Article does not expressly confer power In amend; the power is necessarily implied in the Article. The Atticle makes it clear that the amendment of the Constitution can only be made by Parliament but in cases fallipg under the proviso, ratification by legislatures of not less than one-half of the States is alro necessary. That Artitle stipulates various things. To start with, the amendment to the Constitution must be initiated only by the introduction of Bill for that purpose in either House of Parliament. It must then be passed in each House by majority of the total membership of that House and by majority of not less than twO'thirds of the members of that House present and voting and if the amendment seeks to make any change in the pro-visions mentioped in the proviso, it must be ranified by not less than one-half of the State Legislatures. Thereafter, it should be presented to the President for his assent. It further says tihat upon such assent be\ng given to the Bill "the Constillution shall stand amended in accordance with the terms of the Bil!l". To restate the position, Anicle

368 deals with the amendment of the Constitution. The Article con-tains both the power and the procedure for amending the Constitution. No undue importance should be attached to the marginal not.e which . says "Procedure for amendment of the Constitution". Marginal note plays very little part in the construction of stautory provision. It . should have much less importance in construing constitutional pro-vision. The language of Article 368 to our mind is plain and unanioi-guous. Hence we need not call into aid any of the rules of construc-tlion about which there was great deal of debate at the hearing. As the power to amend under the Article as it originally stood was only implied, the marginal note rightly referred to the procedure of amend-ment. The reference to the procedure in the mar~ not.e does not negative the existence of the power implied in the Article.; The next question is whether the power conferred under Art. 368 is available for amending each and every provision of the Constitution. The Article opens by s~.ying "An amendment of this Constitution" whidi means an amendment of each and every provision and part ot the Constituti!>n. We find nothi.ng in that Article to restrict its scope. If we read Article 368 by itself, there can be no doubt that • the pomr of amendm~t implied in that Article can reach each and every Article as well as every . part of the Constitution.

Having ascertained the '"true scope of Article 368, let us now turn to Article 13. great deal of rel'iance was pliaced by the learned Counsel for the petitioners on the expression 'law' found in Articlo 13(1) and (2). As seen earlier, the two judges in Saiian Singh's case as well as the majority of judges in Golak Nath's case opined that 'law' in Article 13(2) also includes constitutional law i.e. law which amends the Constitution and we sec no substance in the contention that the amendment ·of Constitution is not 'law'. The Constitution is amended by enacting Amendment Acts. The Constitution is not oniy law but the paramount Jaw of the country. An amendment of that law must ru:ifcSsarily be law. The fact that the word 'law' is .not used in Article 368 is of little significance. For than matlter Article 110 also does not provide that Bill when assented to by the President becomes law. The amendment of Constitution is initiated by Bill and itt goes through the procedure laid down tin Article 368, supple-mented wherever necessary by the yrooedurc prescn1icd in Article 107; soe Siznkari PrasaJ's case. The Billl when passed by both the Houses of Parliament and, in matters coming under the proviso to Article 368, after securing the necessary ra.6fication by the State Legislatures, is prescnt.ed to the President for his assent. The procedure adopted is the same as that adopt.ed in c:nacting an ordinary statlltc except to the extent provided in Article 368. Even if it had been different, there can be hardly any doubt that the amendment of Constitution is 'law'.

In Sank,.ari Prasad's case, Patanjali Sastri J. (as he then was) speaking for the Court had no doubt in ruling thaa the expression 'law' must ordinarily include 'constitutional law'. The same view was taken by all the judges in Saj;an Singh's case and also by most of the judges in Golak.. Nath' s case •

But the question still remains whether our Constitution makers by using the expression 'law' in Article 13(2) intended that that expression should also include the exercise of Parliament's amending ' power under Article 368. W have earlier &plained the scope and extent of Article 368. In understanding the meaning of the word 'law'; in Article 13(2) we should bear in mind the scope of Article 368. The· two Arti.clcs w'ill have to be construed harmoniously. The expression 'law' may mean one of two things, namely, either those measures which are enumerated in Article 13(3) as well as staliUtcs passed by legislatures or in addition thereto constitutional laws (amendments) as wc!L In this connection reference may be made to passage in Corpus Juris Secundum (Vol. XVI-Title Constitutional Law· Article 1, p. 20), which says :

"The term 'Constitution' is ordinatily employed to designate the organic law in contradistinction to the terms 'law' which is generally used to dcsignaac statutes or legislative enactments. Accordingly, the term 'law' under this distinction does not include constitutional amendment. However, the term 'law' may, in accordance with the context in which it is used, comprehend or include the Constitution or constitutional provision or amend-ment."

Ii is true that Article 13(3) contains an inclusive definition of the term 'law' and, therefore, the question whether it includes constitu-tional amendment also cannot be answered with reference to that clause. All the same, since the expression 'law' can have two meanings, as mentioned earlier, we must take that meaning which harmonises with Articlle 368. As mentioned earlier, Article 368 is unambiguous, whereas Article 13 is ambiguous because of the fact that the word 'law' may or may not include const\tutional amendment. Further, when we ~peak of 'law' we ordinarily refer to the exercise of legisla-tive power. Hence, 'law' in Article 13(2) must be construed as refer-ring to the exercise of an ordinary legislative power.

Ari. examination of the various provisions of our Constitution shows that it has made distinction between "the Constitution" and "the laws". The two arc invariably treated separately-sec Article 60, 61, proviso to Article 73 ( 1), Article 75 ( 4) read with the Third Sch~dule, Article 76(2); · Article 124(6) read wifu the Third Scheduk, Article 148(5), Article 159 and Article 219 read with the 20-36 S. C. India/73

Third Schedule. These provisions clearly establish that the Constitution-~ers have not used the expression 'law' in the Constitution as in-dudmg constitutional law.

Mr. Palkhivala contended that the term 'law' in Article 13(1) includes constl:tutional law also. Wanchoo J. speaking for himself and on behalf of two otlher judges in Golaknath' s case held that on the day the Constitution came into force, no constitutional law was in force. Therefore in his view, the term 'law' in Article 13(1) can only refer to legislative measures or ordinances or bye-laws, rules, regu-lations, notifications, customs and usages. Mr. Palkhivala contended that the said finding is not correct. In that connection he referred to the treaties and agreements entered into between the former Rulers of the Indian States and the Central Government as well as to certain other measures which were in force when the Constitution came into force which, according to him, are 'constitutional law' and, on that basis, he contended that certain constitutional laws were in force on the day when the Constitution came into force. We are not satisfied that this contention is correct. Under Article 395, the Indian Inde-pendence Act, 1947 as well as the Government of India Act, 1935, were repealed. The laws whkh were continued under Article 372 after the Constitution came into force did not operate on their own strength. For their validity they had to depend on Arricle 372 and that Article made it clear that those laws will continue to be in force "subject to the other provisions of .the Constitution". Anyway it is not necessary to decide the question whether those laws are cons-titutional •laws. Article 13( 1) does not refer to 'laws' as such. It refors to "laws in force in the territory of India immediately before the commencement of this Constitution". It identifies certain laws and determines the extent of their validity. The scope of Article 13 ( 1) does not bear on the interpretation of the expression 'law' in Article 13(2).We shall now examine the contention of Mr.' Palkhivala based on Articles 4, 169, Paragraph 7 of Schedule V and Paragraph 21 of Schedule VI. He contended and we have no doubt that he did so rightly,-that the Constitution can be amended not only under Article 368 but al~o under Article 4, Article 169, Paragraph 7 of Schedule V and Paragraph 21 of Schedule VI. Amendments under these provi-sions can be effected by Parliament by simple majority vote of the members present in the House and voting, if the prescribed quorum is there. If the two Houses do not agree on any amendment under those provisions, the same has to be decided by Joint sitting of the two Houses as provided in Article 108. That is because of the exprCM exclusion of the application of Article 368 to the amendments made under those provisions. According to Mr. PalkhiTala, by the exercise of its power under the aforementioned

prnvisions, Parliament can in certain respects take away or abridge the Fundamental Rights of section of the people of this country. He painted gloomy picture as to what can happen by the exercise of power by Parliament under those provisions. It is true that the power conferred under the aforementioned provisions is amending power but those provisions make it clear that the exercise of the power under those provisions shall not be "deemed to be the amend· ment of the Constitution for the purpose of Arlick 368".

This brings us to consideration, wha~ exact~y is the intent of the expression "No such law as aforesaid shall be deemed to be an amendmen~t of this Constitution for the purpose of Article 368". There can be little doubt that these words merely mean that the form and manner prescribed in Art:icle 368 need not be compiled with. Once this position is accepted any law made under those provisions takes the character of an ordinary law and that law becomes subject to the other provisions of the Constitution including Article 13(2).

Counsel either side took us through the debates of the Cons-tituent Assembly relating to Article 368. Naturally each one of them relied on those passages from the speeches of the various members who took part in the debate and, in particular, on the speeches of late Prime Minister Nehru and the then Law Minister Dr. Ambedkar, which supported their contention. Having gone through those speeches, we feel convinced that no conclusive inference can be drawn from those speeches as to the intention of those speakers. Hence, we need not go into the question at this stage whether it is permissible for us to place reliance on' those speeches for finding out the true scope of Article 368.

Mr. Palkhivala placed great deal of reliance on the stages through which the present Article 13 passed. It is seen from the Constituent Assembly records that when the Constituent Assembly was considering the provision which resulted in Article 13(2), Mr. Santhanam one of the members of the Constituent Assembly moved an amendment to make it clear that the expression 'law' in Article 13(2) does not include an amendment of the Consiitution under draft Article 304 (present Article 368) and that the amendment was accepted by Sardar Patel, Chairman of the Advisory Committee. On the basis of that deci&ion, Sir jl. N. Rau, the Constitutional Adviser redrafted the concerned provision by specifically excluding from its operation amendments of the Constitution. When this matter went before the Drafting Committee consisting of emient lawyers, they redrafted the clause thus :

"The State shall not make any law which takes away or abridges the rights conferred by this part and any Jaw made in contraven-tion of this clause shall to the extent of contravention be void."

In other words, the drafting committee deleted from Sir B. N. R:m's draft those words which specifically excluded from the opera-tion of the clause amendments of the Constitution. From these cir-cumstances, Mr. Palkhivala seeks to draw the inference that the Constituent Assembly finally decided to bring within the scope of Article 13(2) constitutional amendments also. We are unable to accept this contention. It is not ckar why the drafting .committee deleted the reference to the amendment of the Constitution in Article 13(2). It is possible that they were of the opinion that in view of the plain language ot the provision relating to the amendment of the Constitu-tion i.c· draft Article 304, it was unnecessary to provide in Article 13(2) that the amendment of the Constitution does not come within its scope.

It is true that this Court has characterised the Fundamental rights as "paramount" in A. K. Gopalan v. Slate of Madras('), as "sacro-sanct'' in State of M.Jras v. Smt. Champakam Dorairaian,('), as "rights served b¥ the people" in Pandtt M. S. M. Sharma v. Shn" Sri Knshna Sinha,( ) as "inalicnabk and inviolable" -in Smt. Uiiam Bhai v. State of U J'.(') and as "transcendental" in several other cases. In so descnbing the Fundamental Rights in those cases, ·this Court could not have intended to say that the Fundamentaf Rights alone arc the basic elements or fundamental features of the Constitution. Mr. Palkhiwala conceded that the basic clement;, and fundamental features of the Constitution arc found not merely in Pan III of the Constitu-tion but they arc spread out in various other parts of the Constitution. They arc also found in some of the Directive Principles set out in Part IV of the Constitution and in the provi&ons relating to the sovereignty of the country, the Republic and the Democratic character of the Constitution. According tx> the Counsel, even the provisions relating to tho unity of the country arc basic clements of the Constitiltion. ·

It was urged that since even amcndmcnll of several provisions of minor significance requires the concurrence of the legislatures of the majority of the States it is not likcliy that the Constitution makers would have made the amendment. of the provisions relating to Fundamental Rights plaything of the Parliament. Th'.is argument, however, does not lead to any definite conclusion. It is not unli1'~lv that the Constitution-makers thought that the states arc specially interested in the provisions mentioned in the proviso l'O . Article 368,

( ') [ 1950] S.C.R. 88 at 198. ( [2]) (1951] S.C.R. 525. (') .[1959] Supp. 1 s.c.R. 806. (') [1963] 1 S.C.lt 778.

so that the amendment of those provisions should require ratification by the legislatures of the majority of the States. When the language of Article 368 is plain, as we think it is, no question of construction of than Article arisei. There is no need to delve into the intention of the Constitution-makers.

Every Constitution is expected to endure for long time. There-fore, it must necessarily be . elastic.. It is not possible to place the society in straight jacket. The .society grows, its requirements change. The Constitution and the laws may have to be changed to suit those needs. No single generation can bind the course of the generation to come. Hence every Constitution wisely drawn up provides for its own amendment. We shall separatdy consider the contention of Mr. Palkhivala that our Constitution embodies certain features which arc so basic that no free and civilised society can afford to discard them and in no foreseeable future can those features become irrelevant in this country. For t'he present we shall keep apart, for later considera-tion. Mt. Palkhivala's contention that the Parliament which is only constituted body cannot damage or destroy the essential features of ·the Constitution. Up till now we have merely confined our attention to the question as to the scope and reach of Article 368. This Court has always attached great importance to the Fundamental Rights guarant-eed under our Constitution. It has given no less. imporotance to some of the Directive Principles set out in Part IV. The Directive Principles embodied in Part IV of the Constitution or at any rate most of them are as important as the rights of individuals. To quote the words of Graville Austin (The Indian Constitution-Corner Stone of Nation, page 50) :

"The Indian Constitution is first and foremost social document. The majority of its provisions are either directly aimed at further-ing the goals of social revolution by establishing the conditions necessary for its achievement yet despite the permeation of the entire Constitution by the aim of national renaissance, the core of the commitment to the social revolution lies in Parts III and IV, in the Fundamental Rights and the Directive Principles of State Policy. These are the conscience of the Constitution."

Therefore to implement the duties imposed on the States under Part IV, it may be necessary to abridge in certain respects the rights conferred on the citizens or individuals under Part III, as in the case of incorporation of clause 4 in Article 15 to benefit the backward classes and Scheduled Castes and Scheduled Tribes and the amendment of Article 19(2) with view to maintain effectively public order and friendly relations with foreign States. Hence we are unable to construe the amending power in narrow or pedantic manner. That power,

under any circumstance, must receive broad and hbcral interpreta-tion. How large it should be is question that requires closer exami-nation. Both on principle as well as on the language of Article 368, we are unable to accede to the contention that no right guaranteed by Part III can be abridged.

This Court is al'ways reluctant to overrule its earlier decisions. There inust be compelling reasons for overruling an earlier decision of this Court. As seen earlier, there are already conflicting decisions as to the scope of Article 368. As far back as 1951, in Sankari Prasad' s case, thls Court took the view that the power of amendment conferred Wlder Arlicle 368 included ·withiin itself the power to abridge and take away the Fundamental Rights incorporated in Part III of the Cons-titution. The correctness of that view was not challenged in several other decisions. The same view was taken in Saiian Singh's case. That view was negatived in Golakhnath's case by very narrow majority. Bearing in mind the disastrous effect that decision would have had on many important laws that had been enacted by the Union and the States between the years 1951 to 1967, this Court by relying on the doctrines of prospective overruling and the doctrine of acquiescence did not invalidate those laws.

One other circumstance of great significance is that the !st Amendment to the Constitution was carried out by the provisional Parliament whlch consisted of the very members who were the mem-bers of the Const'ituent Assembly. It should be remembered that mem-bers of the Constituent Assembly continued as the members of the provisional Parliament till the General Election in 1952. They must have been aware of the intention with which Article 368 was enacted. These are important circumstances. The interpretation we place on constitutional provision, particularly on provision of such great importance as Article 368 must subserve national interest. It must be such as to further the objectives intended to be achleved by the Cons-titution and to effectuate the philosophy underlying it. To quote the memorable words of Chief Justlice Marshall we !IlUSt not forget that we are expounding Constitution.

We now come to the second contention of Mr. Palkhlvala that the word 'amendment' has limited meaning and Article 368 docs not permit any damage to or destruction of the basic or fundamental features or essential elements of the Constitution. Mr. Palkhivala urged that the word "amendment" or "amend" ordinarily means 'to make certain changes or effect some improvements in text'. Those words do not, according to him, except under special circumstances mean the widest power to make any and every change in docu-ment, including power to abrogate or repeal the basic features ofthat document. The same,. he contended, is true of power to amend statute or Constitution. In support of his contention, he invited our attention to the various meanings given to the word "amendment" or "amend" 'in several dictionaries. He further urged that in cons-truing the meaning of the word "amendment" 'in Article 368, we must take into consideration the donee oo whom the power to amend the Constitution is granted, the atmosphere in which the Constitution came to be enacteci, the consequences of holding that power is un-limited in scope as well as the Sf:heme of the Constitution. He urged that in the final analysis, the duty of the Court is to find out the true intention of the founding fathers and therefore the question before us is whether the founding fathers intended to confer · on Parliament, body constituted under the Constitution, power to damage or destroy the very basis on which our Conscitution was erected. On the other hand it was contended on behalf of the Union of India, State of Kerala as well as the other States that the power of amend!J1ent conferred under Article 368 is of tho widest -amplitude. It brooks no limitation. It is power which can be used to preserve the Constitution, to destroy the Constitution and to re-create new Cons'itution. It was contended that the society can never be static, social ideals and political and economic theories go on changing and every Constitution in order to preserve itself needs to be changed now and then to keep in line with the growth of the society. It was further contended that no generation can impose its w'ill permanently on the future generations. Wise as our founding fathers were, wisdom was not their sole monopoly. They themselves realised it. They knew that in changing world, there can be nothing permanent and, there-fore, in order to attune the Constitution to the changing concepts of politics, economics and social ideas, they provided in Article 368 machinery which is neither too flexible nor too rigid and makes it possible to so reshape the Constitution as to meet the requirements of the time. According to them by following the form and manner pres-cribed in Article 368, Parliament can exercise the same power which the Constituent Assembly could have exercised. We have now to consider which one of the two contentions is acceptable.

While interpretating provision in statute or, Constitution the primary duty of the court is to find out the legislative intent. In the present case our duty is to find out the intenfion of the founding fathers in enacting Article 368. Oridnarily the legislative intent is gathered from the language used. If the language employed is plain and unambiguous, the same must be given effect to irrespective of the consequences that may arise. But if the language employed is reasonably capable of more meanings than one, then the Court will have to call into aid various well settled rules of construction and in particular, the history of the legislation-to find out the evil that was sought to

be remedied and also in some cases the underlying purpose of the legis-lation-:-the legislative scheme and the consequences that may possibly flow from accepting one or the other of the interpretations because no/ legislative body is presumed to confer power which is capable ·of misuse.

It was conceded at the bar that generally speaking, the word "amendment" like most words in English or for that matter. in any language, has no precise meaning. Unllke "sale" or "exercise", it is not term of law. Ir is capable of receiving wide meaning as well as . narrow meaning. The power to amend Constitution in certain con-text may include even power to abrogate or repeal that Constitution. It may under certain circumstances mean power to effect. changes within narrow 1:1mits. It may sometime mean power that is quite large but yet subject to certain lim1tations. To put it shortly, the word .,amendment" without more, is colourless word. It has· no precise meaning. It takes its colour from the context in which it is used. It ·cannot be interpreted in vacuo. Few words in English language have .a natural or ordinary meaning in the sense that they must be so read ·that their meaning is entirely independent of the context. As observed . ·by Holmes J. in Towne v. Eiser.(') "A word is not crystal, transpa-. rent and unchanged; it is the skin of f1ving thought and may vary ,greatly in colour and content according to circumstances and the time :in which it is used". We must read the word "amendment" in Article 368 not in isolaion but as occurring in single complex instrument, Article 368 is part of the Constitution. The Constitution confers vari-·cius powers on legislatures as well as on other authorities. It also imposes duties on those authorities. The power conferred under Article 368 :is only one such power. Unless it is plain from the constitutional scheme that the power conferred under Article 368 is super power and is ·capable of destroying all other powers, as contended on behalf of the Union and the States, the various parts of the Constitution must be .construed harmoniously for ascertaining the true purpose of Article 368.

In our Constitution unlike in the Constitution of the United States -of America the words "amendment" and '.'amend" have been used to ·convey different meanings in different places: In some Articles they are used to confer narrow power, power merely to effect changes within prescribed limtts-see Articles 4, 107(2), 111, 169(2), 1%(2), 197(2) and 200. Under Paragraph 7 of the Fifth Schedule as well as Paragraph 21 of the Sixth Schedule to the Constitution, much larger power to amend those Schedules has been conferred on Parliament. That power includes power to amend "by way of addition, variation or repea£''. Similar is the position under the repealed Article 243(2),.Article 252(2) and 350(5). !tis true that the power to amend con· 'fcrred under the Fifth and Sixth Schedules is merely power to amend th<ll!e Schedules but if the Constitution-makers were of the opinion that ·the word "amendment'' or "amend" included within its scope, unless limited otherwise, ·a power to add, vary, or repeal, there was no pur-POl!C in mentioning in th= Articles or parts "amend by way of addi-tion, variation or repeal". In this connection it may also be remembered that the Constituent Assembly amended s. 291 of the Government of India Act, 1935 on August 21, 1949 just few days before it approved .Article 368 i.e. on September 17, 1949. The amended s. 291 empowered the Governor-General to amend certain provisions of the 1935 Act "by way of addition, modification or repeal". From these circumstances, there is prima facie reason to believe that our Constitution makers made distinction between mere power to amend and power to amend by way of "addition, modification or repeal". It is one of the accepted rules of construction that the courts should presume that ordinarily the legislature uses the same words in statute to convey the same meaning. If different words arc used in the same statute, it is reasonable . to assume that, unless the context otherwise indicates, the legiislature in-tended to convey different meanings by those words: This rule of interpretation is applicable in construing Consnitution as well.

Now that we have come to the conclusion that the word "amend-ment" in Article 368 is not word .of precise import and has not been used in the various Articles and parts of the Consti.tution to convey always the same precise meariing, it is necessary to take the aid of the other relevant rules of construction to find out the intention of the Constitution makers.

The question whether there is· any impliied limitation on the amending power under Article 368 has not been decided by th'is Court till now. Tha~ question did not come up for consideration in Sankari Prasad's case. In Sajjan Singh's case neither the majority speaking through Gajendragadkar C. J. nor Hidayatullah J; (as he then was) went into that question. But Mudholkar J. did foresee the importance <>f that aspect. He observed in the course of his judgment : ·

"We may also have to bear in mind the fact that ours is written Constitution. The Constituent Assembly which was the repository of sovereignty could well have created sovereign Parliament on the British model. But instead it enacted written Constitution, created three organs of State, made the Union executive responsible to Parliament and the State executive to the State legislatures, erected federal structure and distributed kgislative power between Parliament and the State Legislatures; recognised certain rights as fundamental and provided for their enforcement, prescribed forms of oaths of office br affirmations which require those who subscribe

to them to owe true allegiance to the Constitution and further require the members of the Union Judiciary and of the Higher judiciary in the States, to uphold the Constitution. Above all, it formulated solemn and dignified preamble which appears to be an epitome of the basic fearut:es of the Constitution. Can it not be said that these are indicia of the intention of the Constituent Assembly to give premanency to the basic features of the Cons-titution ?

It is also matter for consideration whether making change in basic feature of the Constitution can be regarded merely as an amendment or would it be, \n effect, rewriting part of the Cons-titlution ; and if the latter, would it be withfo the purview of Arti-cle 368" ?

For the first time in Golak Nath's case, the contention that the power of amendment under Article 368 is subject to certain inherent and implied limitations was urged. Subba Rao C.J. speaking for him-self and four of his colleagues, while recognising 'the force of that con-tention refrained from pronouncing on the same. Wanchoo J. (as he then was) speaking for himself and two other judges opined that the· power under Art4cle 368 is very wide power but it may not include power to abrogate the Constitution. He did explain what he meant by "abrogate the Constitution''. HidayatuLlah J. (as he then was) did not address himself to that question. Bachawat J. side-stepped that question by saying that the impugned amendments did not destroy any basic feature of the Constitution. The only judge who rejected the contention that there are 'inherent or implied limitations on the amending power was Ramaswami J. From the above discussion it is seen that in cases that came up for consideration before this Court in the past several judges did consider the possibility of having some limitation on the amending power under Article 368 though they did not definitely pronounce on that question.

One of the well-recognised rules of construction is the rule laid down 'in Heydon's case. What was the mischief that the Constitution-makers intended to remedy? What was the purpose intended to be achieved by the Constitution? To answer this question it is necessary to make brief survey of our Nationalist movement ever since 1885 ~nd the objectives sought to be achieved by that movement.

The objectives underlying our Constitution began to rake their shape as result of the forces that operated in the nati?nal struggk during the British rule when the British resorted to a~b1t;ary acts of oppression such as brutal assaults on unarmed satyagrah1s, internments, deportations, detention without trial and muzzling of the press. The

harshness with which the executive. operated its repressive measures strengthened the demand for constitutional guarantees of Fundamental Rights. As far back as 1895, the Const!itution of India Bill, prepared by some .eminent Indians, envisaged for India Constitution guaranteeing to everyone of. our citizens freedom of expression, inviolability of one's ' house, right to property, equality before the law, equal opportunity of admission to public offices, right to present claims, petitions and com-plaints and right to personal liberty. After the publication of the Montague-Chelmsford Report, the Indian Nanional Congress at its special session held in Bombay In August 1918 demanded that the new Government of India Act should contain "Declaration of Rights of the people of India as British citizens". The proposed declaration was to embody among other things, guarantees in regard to equality before the law, protection in respect of life and liberty, freedom of speech and press and right of association. In its Delhi Session in December of the same year, the Congress passed another resolution demanding ' the immediate repeal of all' laws, regulations and ordinances restricting the free discussion of political questions and conferring on the execu-tive the power to arrest, detain, intern, extern or imprison any British subject in India outside the process of ordinary Civil or Criminal law and the assimilation of the law of sedition to that of England. The Corrunonwealth of India Bill, finalised by the National Convention in 1926 embodied specific declaration of rights visualising for every person certain rights in terms practicaUy identical with tbe relevant provisions of tbe Irish Constitution. The problems of minorities in India further strengthened the general argument in favour of inclusion of Fundamental Rights in the Indian Constitution. In its Madras Session in 1927, the Indian National Congress firmly laid down th~t the basis of the future Constitution must be declaration of Funda-mental Rights. In 1928, the Nehru Committee in its report incorporated provision for enumeration of such rights, recommending their adop-· Ilion as part of the future Constitution of India. The Simon Commis-siorn rejected the demand on the plea that an abstract declaration of such rights was useless unless there existed "the will and the mean5 to make them effective". In 1932, in its KaracHi Session, the Indian National Congress reiterated its resolve to regard written guarantee of Fundamental Rights as essential in any future constitutional set up in India. The demand for the incorporation of 'the Fundamental R'ights in the constitutional document was reiterated by the Indian leaders at the Round Table Conferences. The Joint Select Committee of the British Parliament rejected those demands. The Sapru Com-mittee (1944-45) was of the opinion that in the peculiar circumstances of India, the Fundamental Rights were necessary not only as assurance and guarantees to the minorities but also prescribing standard of conduct for the legislatures, governments and the courts. The Com-mittee felt that it was for the Constitution-making body to enumerate

· fust the list of Fundamental Rights and then to undertake their further &vision into justiciable and non-justiciable rights and provide suitable .machinery for their enforcement.

The atrocities committed during the Second World War and the , world wide agitation for human rights, the liberties guaranteed fn the Atlantic Charter, the U. N. Charter and the Declaration of Human Rights by the Human Rights' Commission strengthened the demand for the incorporation of Fundamental Rights in our Constitut.ic>n. The British Cabinet Mission in 1946 recognised the need for . written guarantee of Fundamental Rights in the Constitution of India. It accordingly recommended the setting up of an advisory committee for reporting, inter alia, on Fundamental Rights. By the Objectives Reso-lution adopted on January 22, 1947, the Constituent Assembly solemnly , pledged itself to draw up for India's future governance Cons.t'itution wherein "shall be guaranteed and secured to alil the people of India justice, social, economic and political, equality of status, of opportunity :and before the law; freedom of. thought, expression, belief, faith, wor-• 'ship, vocation, assoc!.iation and action subject to law and public mora-. r. : ' lity and wherein adequate safeguard would be provided for minorities, "'.';, backward and tribal areas and depressed and other backward classes", · The close association between political freedom and social justice has 'become common concept since the French Revolution. Since the end •of the first World War, it was increasingly recognised that peace in ·the world can be established only if it is based on social justice. The :most modern Constitutions contain declaratlion of social and economic principles, which emphasise, among other things, the duty of the State to strive for social security and to provide work, education and proper condition of omployment for its citizens. In evolving the Funda-mental Rights and the Directive Prihciples, our founding fathers, in addition to the ~xperience gathered by them from the events tltat took :place in other parts of the world, also drew largely on their experience ~,, .in the past. The Directive Principlos and the Fundamental Rights mainly proceed on the basis of Human Rights. Representative dern<>--cracies will have no meaning without economic and social justice to 1 .the common man. This is universal experience. Freedom from foreign ' ' rule can be looked \lpon only as an opporl'Wlity to bril\g about economic .and social advancement. After all freedom is nothing else but chance to be better. It is this liberty to do better that is the theme of the Direc-tive Principles of State Policy in Part IV of the Constitution.

The Objectives Resolution passed by the Constituent Assembly in January 1947, is definite landmark. It is precursor to the preamble to our Constitution. It sets out in detail the objeclives .that were before

our Constitution-makers. Those objectives have now been incorporated in the preamble to our Constitution whlch reads : . . THE resolved to

. "WE, THE PEOPLE OF INDIA, having solemnly resolved to constitute India into SOVEREIGN DEMOCRATIC REPUBLIC and to secure to all its citizens :

JUSTICE, social, economic and political;

LIBERTY of thought, expression, belief, faith and worship;

EQUALITY of status and of opportunity;

and to promote among them all

FRATERNITY assuring the dignity of the individual and the unity of the Na ti on;

IN.OUR CONSTJTI)ENT ASSEMBLY this twenty-sixth day of November, 1949 do HEREBY ADOPT, ENACT AND GIVE. TO OURSELVES THIS CONSTITUTION".

From the preamble it is quite clear that the two primary objectives. that were before the Constituent Assembly were (1) to constitute India into Sovereign Democratic Republic and (2) to secure to its citizens the rigllts mentioned therein. Our founding fathers, at any rate, most of them had made immense sacrifices for tho; sake of securing those objectives. For them freedom from British rule was an essential step to render social justice to the teeming millions in this country and to. secure to one and all in this country the essential human rights. Their constitut'tonal plan was to build welfare state and an egalitarian _ society.

Now that we have set out the objectives intended to be achieved by our founding fathers, the question arises whether those very persons· could have intended to empower the Parliament, body constituted under the Constitution to destroy the ideals that they dearly cherished and for which they fought and saccificed.

If the nature of the power granted is clear and beyond doubt the fact that it may be misused is wholly irrelevant. But, if there is reasonable doubt as to the 'nature of the power granted then the Court has to take into consideration the consequences that might ensue by interpreting the same as an unlimited power. We have earlier come to the .conclusion that the word "amendment" is not an expression having precise cannotation. It has more than one meaning. Hence it is necessary to examine ·the consequence of accepting the contention of the Union and the States. Therefore let us understand the conse-quences of conceding the power claimed. According to the Union and the States that power inter alia, includes the power to (1) destroy thesovereignty of this country and make this count!I"y satellite of any other country; (2) substitute the democratic form of government by monarchical or authoritarian form of government; (3) break up the unity of this country and form various independent States; (4) destroy the secular character of this country and substil\lte the same by the<>-.cratic form of government; (5) abrogate completely the various rights conferred on the citizens as well as on the minorities; ( 6) revoke the mandate given to the States to build Welfare State; (7) extend the life of the two Houses of Parliament indefinitely; and (8) amend the amending power in _such way as to make the Constitution legally or at any rate pract:lcally unamendablt. In fact, their contention was that the legal sovereignty, in the ultimate analysis rests only in the amending power. At one stage, Counsel for the Union and the States had grudgingly conceded that the power conferred under Article 368 cannot be used to abrogate the Constitution but. later under pressure of questioning by some of us they ch:rngod their position and said that by 'abrogation' they meant repeal of the Constituliion as whole. When they were asked as to what (hey meant by saying that tlhe power conferred under Article 368 cannot be used to repeal the Constitution, all that they said was that while amending the Constitution, at least one clause in the Constirution must be retained though every other clause or part of the Constitution including the preamble can be deleted and some other provlsions substituted. Their submission in short was this that so long as the expression the "Constitution of India" is retained, every other article or part of ot can be replaced. They tried to tone down the effect of their claim by saying that, though legally, there is no limitation on the amending power, there are bound to be political compulsions which make it impermissible for Parliament to exercise its amending power in manner unacceptable to the people at large. The strength of polit'ieal reaction _is uni:ertain. It depends upon various factors such· as the poliitical consciousness of the people, their level of education, strength of the various political organizations in the country, the manner in which the mass media is used and finally the capacity of.. the government to suppress agitations. Hence the peoples' will to resist an unwanted amendment cannot be taken into considera-tion in interpreting the ambit of the amending power. Extra legal forces work in different plane altogether.

We find it difficult to accept the contention tli:i.t our Constitution-makers after making immense sacrifices for achieving certain ideals made provision in the Constitution itself for the destruction of those ideals. There is no doubt as men of experience and sound political knowledge, they must! have known that social, economic and political changes are bound to come with the passage of time and the Co!llltitu-tion must be capa~ of boing so adjusted as to be able to respond to those new demands. Our Constitution is not mere political<locument. It is essentially social document. It is based <Jn social philosophy and every social philosophy like every religion has two main features, namely, basic and circums-tantial. The former remains constant but the latter is subject to change. The core of religion always remains constant but the practices asso-ciated with it may change. Likewise, Constitution like ours contains certain features which are so essential that they cannot be changed or destroyed. In any event it cannot be destroyed from within. In other words, one cannot legally use the Constitution to destroy itself. Under Article 368 the amended Constitution must remain 'the Constitution' which means the original Constitution. When we speak of the 'abroga.-tion' or 'repeal' of the Constitution, we do not refer to any form but to substance. If one or more of the basic features of the Constitution are taken away to that extent the Constitution is abrogated or repealed. If all the basic features of the Constit!ution are repealed and some other provisions inconsistent with those features arc incorporated, it cannot still remain the Constitution referred t.o in Article 368. The personality of the Constitution must remain unchanged.

It is also necessary to bear in mind that the power to amend the Constitution is conferred on Parliament, body constituted under the Constitution. The people as such are not associated with the amendment of the Constitution. From the preamble we get that it 'is the people of this country who conferred this Constitution on themselves. The statement in the preamble that the people of this country conferred the O;>nstitution on themselivcs is not open t.o challenge before this Coun. Its factual correctness cannot be gone into by this Court which again is creature of the Constitution. The faats set out in the preamble have to be accepted by this Court as correct. Anyone who knows the composition of the Constituent Assembly can hardly dispute the claim of the members of that Assembly that their voice· was the voice of the people. They were truly the representatives of the people, even though they had been elected under narrow franchise. The Constitu-tion framed by them has been accepted and worked by the people for the last 23 years and it is too late in the day now to quesfion, as was sought to be done an one stage by the Advocate-General of Maharashtra, the fact, that the people of th.is country gave the Con"6tution to themselves.

When power to amend the Constitution is given to the people, its contents can be construed to be larger than when that power is given to body constituted under that Consltution. Two-thirds of the members of the l!Wo Houses of Parliament need not necessarily represent even the majority of the peopk of this country. bur dcctoral system is such that even minority of voter~ can elect more than two-thirds of the members of the either House of Parliament. That is seen from our

experience in the past. That apart, our Constitution was framed nn the basis of consensus and not on the basis of majority votes. It provides for the protection of the minorities. If the majority opinion is taken as the guiding factor then the guarantees given to the minorities may become valueless. It is well known that the representatives of the mino-rities in the Constituent Assembly gave up their claim for special pro-tection which they were demanding in the past because of the guaran-tee of Fundamental Rights. Therefore the contention on behalf of the Union and the States that the two-thirds of the members in th'~ two Houses of Parliament are always authorised to speak on behalf of the entire people of this country is unacceptable.The President of India under Article 60 of the Constitution is required to take an oath before he assumes his office to the effect that he will "to the best of llis ability preserve, protect and defend the Constitution". Somewhat similar oaths have to be taken by the Gover-nors of States, Ministers at the Centre and in the States, Judges of the superior courts and other important functionaries. When the President of India is compelled to give assent to constitutional amendment which might destroy the basic features of the Constitution, can it be said that he is true to his oath to "preserve, protect and defend the Constitution" or does his oath merely mean that he is to defend the amendmg power of Parliament ? Can the amending power of Parlia-ment be considered as the Constitution? The whole scheme and the \ structure of our Constitution proceeds on the basis that there are certain basic features which are expected to be permanent.

Implied limitations on the powers conferred under statute cons-titute a' general feature of all statutes. The position cannot be different in the case of powers conferred under Constitution. grant of power in generaV terms of even in absolute terms may be qualified by other express provisions in the same enactment or may be qualified by the implications of the context or even by considerations arising out of what appears to be the general scheme of the statute. Zn Re The Central Provinces and Berar (Central Provinces and Berar Act No. XIV of 1938(1 ), Sir Maurice Gwyer C. J. observed at p. 42 :

"A grant of the power In general terms, standing by itself, would no doubt be construed in the wider sense; but it may be qualified by other express provisions in the same enactment, by the implica-t;ons of the context, and even by considerations arising out of what appears to be the general scheme of the Act."

1.ord Wright in James v. Commonwetilth '1f Australia(') stated the·law thus: •

'.",The· questi<m, then,. is one of construction, and in the ultimdtC rc:oort must be determined upon the actual words . used, read not in t1QCt10 but as occurting in Single complex instrument, in which one part may throw ]light on another. The Constitution has b~ described as the federal compact, . and the construction must hold balance between all its parts."

Several of the powers conferred under. our Constitution have been held to be subject to implied limitations though thooc powers arc ex-pressed in general -terms or even in absolute terms. The executive power of the Union is ves!M in the President and he is authorised to exercise the same either directil y or through officers subordinate to him in accord-ance with the Constitution. Under Art. 75, it is the PreSident who can appoint the Prime Minister and the Ministers are to hold office during his pleasµre. Despite this conferment ci power in general and absolute terms, because of the scheme of the Constitution, its underlying prin-ciph and the implications arising from the other provisions in the Constitution, this Court has held in several cases that the President is constitutional head and the real executive power vests in the Cabinet. Similarly though plenary powers of legislation have been conferred on the Parliament and the Stat.e legislatures in respect of the legislative topics allotted to them, yet this Court has opined that by the exercise of that power neither Parliament nor the State legisla1!Ures can dele-gate to other authorities their essential legislative functions nor could they invade on the judicial power. These limitations were spelled out from the nature of the J>OWer conferred and from the scheme of the Constitution. But, it was urged on behalf of the Union and the States that, though there. might be implied limitations on other powers con-ferred ·under the Constitution, there cannot be any implied limitations on the amending power. W see no basis for this distinction. The amending power is one of the powers conferred under the Constitution whatC-Ver the· nature of that power might be. That apart, during the course of hearing the learned Solicitor-General had to concede that there are certai.1' Implied limitations .on the amending power itself. The. amending power of Parliament ·in certain respects is subject to the express limitations placed on it bythe proviso to Article 368. Article 368 -prescribes that if Parliament wants to amend Article 54, thr: Artl.cle dealing with the election of the President, the amendment in question must be ratified by the legislatures of not less than one half of the States. No such express limitation is placed on the amending power of Parliament in respect of Artide 52 which provides that there shall be President of India. If it be held that Atticlc 52 can be amend•

'al without romplying with the requirements of the proviso to A¢clc 368, the ljmitation placed on Parliament in respect of the amendment of Article 54 betomes meaningless. When this incongruity was pointed out to the learned Solicitor-Genera~ he conceded· that in view of the fact that before Article 54 can be amendetl, the forI!l and the manner laid down In proviso to Articlie 368 has to be followed, it follows as matter of implication that the same· would be the position for the amendment of Article 52. The only other alternative inference is that Article 52 can never be amended ar all. It is not necessary to go into the other implications that may arise from the language of Aiticle 368.From what has betn said above, it is clear that the amending power under Article 368 is also subjeot to implied limitations. The contentio.1 rhat power to amend Constitution cannot be subject to any implied limitation is negatived by the observations of the Judicial Committee in The Bribery Commissioner v. Rana Singhe.(1) The decision of the Judicial Committee in Liyange's case (supra) held that Ceylon Parlia-ment was incompetent to encroach upon the judicial power also lends support to our conclusion that there can be implied limitations on the amending power. '

In support of the contention that there can be no implied limitations on the amending power, our attention was invited to writings of various jurists of eminence. Most of the writings rebte to the amend-ing power under Article 5 of .the United States Constitution. It is true that in the United States most of the writers,are of opinion that there is no implied limitation on the amending power under the United States Constitution. The Supreme Court of the United States has not spccilicall.y pronounced oo th'is question. The only case in which the question of implied limitation on the amending power under the United States Constitution came up for consideration was Rhotle ls/and v. Palmer.(') In that case the Supreme Court of United States rejecting the contention that the 18th Amendment-National Prohibition Amendment-was outside the amending power under Article 5 because of implied limitations on that power, held that the Amendment was valid. The Supreme Court, however, did not discuss the question of jmplied limitations on rli.e amending power as such· In fact the judg-ment that was rendered in that case gave no reasons. Only certain questions were formulated and answered. It is not clear from the judgment whether the particular limitation pleaded was rejected. or ·whether the plea of implied limitation on the ameJ:i.ding power was rejected though writers of most text books have taken the view that the court rejected the plea of implied limitations on the amending power. It may be noted that in the United States not single humanright has been taken away or even its scope narrowed. There the con-troversy centred round two questions viz. (1) abolition of slavery and (2) prohibition of sale and consumption of liquor. We w"11 not be justified in expounding our Constitution on the basis of the controver-sies relating to those issues. Article 5 of the U.S. Constitution is not similar to Article 368 of our Constitution. In the former Article, there is an express limitation on the amending power i.e. regarding the representation of the States in the Senate. Further the amendment under Article 5 of the. United States Constitution can be proposed either by the Congress or by State Conventions. They may be ratified either by minimum of 3/4th of the State Legislatures or by Conven-tions held in at least 3/4th of the States. Whother particular amend-ment should be ratified by the State Legislatures or by the State Con-ventions is entirely left to the discretion of the Congress. As held by the United States Supreme Court, the deciSion of the Congress on that question is final. The Constitution makers must have proceeded on the basis that the Congress is likely to require the amendment of basic elements or fundamental features of the Constitution to be ratified by State Conventions. The scheme of no two Constitutions is similar. Their provisions are not similar. The language employed in the amend-ing clauses differ from Constitution to Constiitution . The objectives lying behind them ·also are bound to differ. Each country has its own needs, its own philosophy, its own way of life and above all its own problems. Hence in our opinion, we will be clouding the issues, if we allow ourse~es ID be . burdened either by the writings of the various writers on other Constitutions or by the decisions rendered on the basis of the provisions of the other Constittuions, though Counset on either side spared no efforts to place before us various opinions expressed by various writers as well as the decisions renderod by several courts in-cluding the State Courts in United States of America.

The rule laid down by the Judicial Committee 'in R. v. Burah(') that "'if what has been done is legislation, within the general scope of the affirmative words which give the power, and if it violates no ex-press condition or restriction by which that power is limited it is not for any court of Justice to inquire further, or to enlarge constructively those conditions and restrictions" was hcaviliy relied on by Mr. Seervai. That decision, however, has been confined to the interpretation of conditional legislations and the rule that it laid down has not been applied while considering the question whether there are any implied limitations on any of the powers conferred under statute or Constitu-tion.

It was strenuously urged on behalf of the Union and the States that if we come to the conclusion that there are implied or inherent

limitafions on the ·amending power of Parli,iament under Article ·368, it would.be: well nigh impossible for Parliament to decide before hand as to what' amendments it could make and what amendments it is forbidden to make. According to the Counsel for the Union and the States, the conceptions of basic elements and fundamental features are illusive conceptions and their determination may differ from judge to judge and therefore we would be making the task of Parliament im-possible if we uphold the content>ion that there are implied or inherent limitations on the amending power under Article 368. We are unable to accept this contention. The broad contours of the basic elements. or fundamental features of our Constitution are clearliy delineated in the preamble. Unlike in most of the other Constitutions, it is compara-tively easy in the case of our Constitution to discern and dett:rmine the basic clements or the fundamental features of our Constitution. For doing so, one has only to look to the preamble. It is true that there are bound to be border line cases where there can be difference of opinion. That is so in all important legal: questions. But the courts generally proceed on the presumption of constitutionality of all legisla-tions. The presumption of the consoitutional validity of statute will also apply to constitutional amendmenm. It is not correct to say that what is difficult to decide does not exist at all. For that matter, there are no clear guidelines before the Parliament to determine what arc essential legislative functions which cannot be delegated, what legisla-tions do invade on the judicial power or what restrictions are reasonable restrictions in public interest under Article 19(2) to 19(6) and yet by arid large the legislations made by Parliament or the State ~slatures in those respects have been upheld by courts, No doubt, there were. occasions when ·courts were constrained to strike down some legisla-tions as ultra vires the Constitution. The position as regard the ascer-tainment of the basic elements or fundamental features of the Consti-tution can by no means be more difficuh than the difficulty of the legislatures .to "determine before hand the constitutionality of legisla-tions made under various other heads. Arguments based on the diffi-culties hikely to be faced by the legislatures are of very little importance and they are essentially arguments against judicial review.

Large number of decisions rendered by collrts in U.S.A., Canada, Australia, United .Kingdom, C.cylon and Ireland, dealing with the question of 'implied limitations on the · amending power and also as regards the meaning of the word "amendment" were read ·to us at the hearing. Such of those that are rclevan~ have been considered by the learned Chief Justice in the judgment just now delivered. We entirely agree with the views expressed by him and we cannot usefully add to the same.

It was contended on behalf of the Union and the States t.bat, the Constitution should not be treated as something sacred. It should be regarded just in the same way as we regard other human institlitions.

It should be possible tb alter every part of it from time to time so as to bring it in harmony with the new and changed conditions. In support of this contention we were invited to the writings of the vari-ous writers such as Burgess, Bryce, Willis, Orfield, Weaver Livingston etc. It was further urged that the Constituent Assembly knowing that, it will disperse, had arranged for tho recreation of Constituent A;sembly, under Article 368 in order to so shape the Constitution as to meet the demands of the time. However, al!tractive these theories may sound in the abstract, on closer examination, it will be seen that they are fallacious, more part'icularly in constitutionat set up like ours. We have earlier noticed ~hat under our electoral system, it is possible for par'.y to get 2/3rd majority in the two Houses of Parliament even if that party does not get an absolute majority of votes cast at the .electlion. That apart, when party goes to election, it presents to the electoiate diverse programmes and holds out various promises. The programmes presented or the promises held out need not necessarily include proposals for amending the Constitution. During the General Elections to Parliament in 1952, 1957, 1962 and 1967. no proposal to amend the Constitution appears to have been placed before the electorate. Even when proposals for amendment of. the Constitution arc placed before the electorate as was don~ by the Congress Party in 1971, the proposed amendments are not usually placed before the .. electorate. Under these circumstances, the claim that the electorate had .given mandate to the party to amend the Constitution in any parti-.cular manner is unjustified. Further Parliiamentary Democracy like ours functions on the basis of the party system. The n:iechanics of operation of the parry. system as well as the system of Cabinet govern-ment are such that the people as whole can have little control in the matter of detailed law-making. " ........ on practically every issue 'in the modern State, the serried millions of voters cannot do more . than accept or reject tl1e solutions offered. The stage is too vast to permit of the nice shades of quantitative distinction impressing them-selves upon the public mind. It has rarely the lieisure, and seldom the .information, to do more than indicate the general tendency of its will. It is. in the process of law-making that the subtler adjustments must be dfectcd." (Laski: Grammar of Politics; Fifth Edn. pp· 313-314).

The assertion t11at either the majority of. members of Parliament 'or even 2/3rd members of Parliament speak on behalf of t11e nation has no basis in fact. Indeed 'it may be possible for the ruling party to carry through important constitutional amendments even after it has lost the confidence of the electorate. The members of Lok Sahha are ekcted for term of five years. The ruling party or its memb~rs may -or may not enjoy the confidence of the electorate throughout their tm!'s <if office. Therefore it· will not be correct to say that whenever Parha-.ment amends the Constitution, it must be held to have don~ it as desired by the people.

There is further fallacy in the contention that whenever Consti-tution is amended, we should presume that the amendment in question was made in order to adapu the Constitutlon to respond to the growing needs of the people. We have earlier seen that by using the amending power, it is theoratically p0ssible for Parliament to extend its own life indefinitely and also, to amend the. Constitution in such manner as to make it cither legally or practically unamcndable ever afterwards. power which is capable of being used against the people themselves cannot be considered as power exercised on behalf of the people or in their interest. ·On careful consideration of the various aspects of the case, we are convinced that the Parliament has no power to abrogate or emas-culate the basic clements or fundamental features of the Constitution such as the sovereignty of India, the democratic character of our polity, the unity of' the country, the essential features of die individual free-doms secured to the citizens. Nor has the Parliamen11 'the power to revoke the mandate to build Welfare State and egalitarian society. These limitations arc only illustrative and not exhaustive. Despite these limitations, however, there can be no question that th~ amending power is wide power and it reaches every Article and every part of the Constitution. That power can be used to reshape the Constitution to fulfil the obligatiOhS imposed on the State. It can also be used to reshape the Constitution within the limits mentioned earlier, to make it an effective instrument for social good. We are unable to agree with the contention that in order to build W e.lfare State, it is neces-sary to destroy some of the human freedoms. That, at any rate is not the perspective of our Constitution. Our Constitution envisages that the States should without delay make available to all the citizens of this country the real benefits of those freedoms in democratic way. Human freedoms are lost. gradually and impcrecpti"bly and their des-truction 'is generally followed by authoritarian rule. That is what history has taught us. Struggle between liberty and power is eternal. Vigilance' is the price that we like every other democratic society ha"re to pay to safeguard the democratic values enshrined in our Constitution. Even the best of governments are not averse to have more and more power to carry out their plans and programmes which they may sin-cerely believe to be in public interest. But freedom once IPst is hardly ever regained except by revolution. Every encroachment on freedoms sets pattern for further encroachments. Our rorutirutional plan is to eradicate poverty without dcstructi-On of individual freedoms.

In the result we uphold the contention of Mr. Palkhivala that the word "amendment" in Article 368 carries with it certain limitation and, further, that the power conferred under Article 368 is subject to certain implied limitations though that power is quite large.

Next, we shall take up for consideration the contentions of Mr. Palkhivala regarding the validity of the 24th, 25th and 29th Amendments.

It was contended· on behalf of the petitioners that in enacting the 24th Amendment Aot, the Parliament has exceeded its powers. It has purported to enlarge its limited power of amendment into an unlimited power, by the exercise of which it can damage or destroy the basic clements or fundamental features of the Constitution. It was said that such an exercise is an unla..yfu\ usurpation of power. Consequently, the 24th Amendment Act. is liable to be struck down. To pronounce on that contention, it is necessary to examine at the very outset whether the 24th Amendment Act has really enlarged the powers of the Pa11ia-ment. If we come to the conclusion that it has not enlarged the power of the Parliament, as we think it has not, the various contentions of Mr. Palkhivala do not arise for consideration.

Now let us sec what is the true effect uf the Constitution 24th

Amendment Act, 1971. That Act amended Article 13 and Article 368. By that Act one more sub-article has been added to Article 13 viz. sul>-article ( 4) which reads thus :

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

Section 3 of that Act which amends Article 368 reads .

"Article 368 of die Constitution shall be renumbered as clause (2} thereof, and-

( a) for the marginal heading to. that article the following mar-ginal heading shall be substituted, namely :-

"Power of Parliament to amend the Constitution and proce-dure therefor".

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

"Notwithstanding anything in the Constitution, Parliament may in exercise of its constituent power amend by way of addition, variation or repeal any provision of this Constitu' tion in accordance with the procedure laid . down in this article."

(c) in clause (2) as so re-numbered, for the words "it shall be presented to the President for his assent and upon such as..cnt being given to the Bill", the words "it shall be present-ed to the President who shall give his assent to the Bill and thereupon" shall be substituted;

.324 SUPREME couu REPOP.TS [1973] Supp. s.c.11..

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

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

The material changes effected under this Act are :

l. Addition of clause ( 4) to Article 13 and clause (3) to Article 368;

2. Change in the marginal heading;

3. Specific mention of the fact that the power is conferred on the Parliament to amend the Constitution;

4. The power conferred on the Parliament is claimed to be constituent power;

5. That power is described as power to "amend by way of addition, variation or repeal of any provision of this Constitu-tion" and

6. Making it obligatory for the President to give assent to the Bill amending the Constitution.

In our opinion the 24th Amendment has nor made any material change in Article 368 as it stood originally. It is true the original Article did not say specifically that the power to amend rested with Parliament. On the other hand, while setting out the procedure of amendment, it referred to the functions of the two Houses of Parliament and the President. Because of the fact that Parliament was not specifically referred to in Article 368, as it originally stood, the learned Advocate General of Maharashtra wanted us to spell out that the power con-fefred under Article 368, as it originally stood was not conferred on Parliament as such but on the two Houses of Parliament. We have earlier rejected that contention. We agree with the learned Attorney General that the power in question had been conferred on Parliament. Article 79 says that "There shall be Parliament for the Union, which shall consist of the President and two Houses to be knownrespeetively as the Council of States and the House of the People". Whether an enactment refers to the three components of Parliament separately or whether all the three of them are compendiously referred to as Parlia-ment, in law it makes no difference. In Sankari Pr1uad's case, in Sajja11 Singh's case as well as in Golak11ath's case, each one of the Judges who delivered judgments specifically mentioned that the power to amend the Constitution was vested in Parliament though there was difference of opinion on the question whether that power could be traced to Article 368 or Article 248 read with Entry 97 of List I. There is no ground for taking different view.We have already come to the conclusion that Article 368 as it originally stood comprehended both power as well as procedure to :imend the Constitution. Hence the change effected in the marginal note has no signilicance whatsoever. The marginal note as it stood earlier was in sense incomplete. The expression 'constituent .power' is used to describe only the nature of the power of amendment. Every amending power, however large or however small it might be, is fact of constituent, power. The power, though described to be 'constituent power', still continues to be an 'amending power'. The scope irid ambit of the power is essentially contained in the word 'amendment'. Hence, from the fact that the !)CW article specifically refers to that power as constituent power, it cannot be nnderstood that the contents of the power have undergone any change. ·The power conferred under the original Article being limited power to amend the Constitution, the constituent power to amend the Consti-tution referred to in the amended· Article must :ilso be held to carry with it the limitation to which that power was '1!bject earlier. There is also no signilicance in the substitution of the expression "amend by way of addition, variation or' repeal of any provision of. this Constitution" · found in the amended Article in th,e place of· the expression "amendment of the Constitution" found in the. original Article. Every power to amend statute must necessarily include within itself some power to make addition, variation or repeal of any provision of the statute. Here again, the power conferred under the original Article being limited one, that limitation will continue to operate' notwitflstanding the change in the phraseolc:>gy. The words 'addition, variation or repeal' only prescribe the modes or . manner by' which an 'amendment' may be made, but they do not determine the scope of the . p0wer of 'amendment'. The original Miele 368 mentioned that after the bill for amendment of the Co.nstitution is passed. by· the two HoUses of Parliament in the manner prescribed in Article 368 "it shall be presented to the President for .his. assent and upon such assent being given io the Bill, the Constitution slµJJ stand amended in accordance with the terms of the bill". The amend-ed Article makes • change. It prescribes that when the Bill is presen-ted to the Pre~d,ent, ,he "shall give his assent to the Bill". Some com-ment was made ~t the bar abounhc inappropriateness of commanding the President to. give his assent. to the Bill. That is 'a question of propriety. ·The substance of the matter is that when the Bill is presen-ted to. the President, he shall not withhold his assent. This change cannot be said to have damaged or destroyed any basic element of the ConstitutiGn. In fact Article 111 which deals with the assent to' the Bills specificall~ prescribes that· when money Bill, after having been passed by the HoUses of. Parliament is presented to the President he "shall not withhold. assent therefrom". Hence it cannot be said that the change made in. Article 368 relating to the assent of the Presicjenr

has any great importance in the scheme of our Constitution. In fact under our Constitution the President is only constitutional head. Ordinarily he has to act on the advice of the cabinc-t. There is no possibility of the Constitution being amended in opposition to the wishes of the cabinet. The only change that remains to be considered is as to the exclu-sion of the application of Article 13 to an amendment of the Constitu-tion. We have earlier come to the conclusion that Article 13 as it stood earlier did not bar the amendment of the Constitution. Arti-cle 13(~) and 368(3) make explicit what was implicit.It was contended that by means of the 24th Amendment Parlia-ment intended to and in fact purported to enlarge its amending power. In this connection reliance was placed on the statement of objects and reasons attached to the Bill which resulted in the 24th Amendment. The power of Parliament docs not rest upon its professed intention. It cannot acquire power which it otherwise did not possess. We are unable to accept the contention that clause ( e) to the proviso to Article 368 confers power on Parliament to enlarge its own power. In our judgment the power to amend the Constitution as well as the ordinary procedure to amend any pan of the Constitution was and is contained in the main part of the Article. The proviso merely placts further restrictions on the procedure to amend the articles mentioned therein. Clause ( e) to the proviso stipulates that Article 368 cannot be amended except in the manner provided in the proviso. In the absence of that clause, Article 368 could have been amended by following the procedure laid down in the main part. At best clause ( e) of the proviso merely indicates that Article 368 itself comes within its own purview. As we have already seen, the main part of Article 368. as it stood earlier, expressly lays down only the procedure to be fol-lowed in amending the Constitution. The power to amend is onl:r implied therei11.

It is difficult to accept the contention that an implied power was impliedly permitted to be enlarged. If that was so, there was no meaning .in limiting that power originally. Limitation on the power to amend the Constitution would operate even when Article 368 is amended. limited power cannot be used to enlarge the same power into an absolute power. We respectfully agree with the observation of Hidayatullah J. (as he then was) in Golaknath's case that what Parliament cannot do directly, it also cannot do indirectly. We have earlier heW that the "amendment of this Constitution" means the amendment of every part of the Constitution. It cannot be denied that Article 368 is but part of the Constitution. Hence, the mere fact

that the mover of the Z4th Amendment Act, in the Statement of Objects and Reasons laid claim to certain power docs not go to show that Parliament either endorsed that claim or could have conferred on itself such power. It must be deemed to have exercised only such power as it possessed. It is well-accepted rule of construction that if provision is reasonably capable of two interpretations the Court must accept that interpretation which makes the provsion valid. If the power conferred on Parliament to amend the Constitution under Article 368 as it stood originally is limited power, as we think it is, Parliament cannot enlarge the scope of that power-sec Attorney General for the State of New South· Wales v. The Brewery Employees Union of New South Wales;(1) Ex Parte Walsh and fohnson; In Re Yates;(") and Australian Communist Party v. The Commonwealth.(')

For the reasons mentioned heretofore, the scope of Parliament's power to amend the Constitution or any part thereof must be held to have remained as it was before the 24th Amendment notwithstanding the alterations made in the phraseology of Article 368. The 24t11 Amendment made explicit, what was implicit in the unamended Article 368. In this view of the matter the .24th Amendment must be held to be valid.

This takes us to the validity of the Constitution 25th Amendment Act. It is necessary to examine the scope and effect of that Act for deciding the question whether that Act or any one of its provisions can be held to be outside the amending power of the Parliament. That Act has three sections. We are not concerned with the first section which sets out the short title. Clause (a) of the second section amends Article 31(2). Clause (b) of that section incorporates into the Consti-tution Article 31(2B). Sectibn 3 introduces into the Constitution new Article viz. Article 31C.Let us first take up the newly substituted Artie.le 31 (2) in the place of the old Article 31(2) and examine its scope. To do so, it is necessary to examine the history of that Article.

Article 31 (2) has undergone several changes. As originally enacted it read thus :

"No property, movable or immovable, including any interest in,. or in any company owning, any commercial or industrial under-taking, shall be taken possession of or acquired for public pur-poses under any law authorising the taking of such possession or

( [1]) 6, C.L.R. 469.

( [2]) 37, CL.R. 36 at p. 67.

( [1]) 83, c.LR. p I.

such acquisition, unless the law provides for compensation for the property taken possession of or acquired and either fixes the amount of the compensation, or specifies the principles on which, and the manner in which, the compensation is to be determined and given."

That Article was amended first by the Fourth Amendment Act 1955 and, thereafter by the Twenty-fifth Amendment Act, 1971. At later stage, it will be necessary for us to compare Article 31 (2) as it stood after the Fourth Amendment Act and as it stands after the Twenty-fifth Amendment Act. Hence we shall quote them side by side.

Article 31 (2) as substituted by the 4th Amendment Act 1955

Article 3 (2) as susbtituted by the 25th Amendment. Act 1971

No pnperty shall be compulsorily acquired or requisitioned save for public purpose and save by autho-rity of law which provides for .compen"1tion for the property so acquired or requisitioned and either fixes the amount of the compensa-tion or specifics the principles on which and the manner in which, the compensation is to be dctcr-Iliined and given; and·no such law shall be called in question in any court on the ground that the com-pensation provided by that law is not adequate.

No property ~hall be compul•orily acquired Or requisitioned save for public purpose and save by authority of law' which pro-vides "for acqui1ition Oi'· reqtiisi· tioning of the property for an amount which may be fixed by such iaw or which may be deter-mined in accordance with ruch principles and given in such·mal)ner as may be specified in such law; and no such law shall be called in question in any court on the ground that the amount so fixed or determined is n0t adequate or that the whole or any part of such amount is to be given otherwise than in ~ash:

Provided that in making any law providing for the compulsory acqui-sition of any property of an ed ... catioanl institution established an,d administered by i minority, refer-red to clause (I) of article SO, the State shall eusure that the amount fixed by or determined under such law for the acquisition of such property is such as would not restrict or abrogate the right guaranteed uder that clause.

For finding out the true Scope of Atticle 31(2), as it stands now, the learned Advocate General of Maharashlra as wdl as the Solicitor General has taken \Is duough the history of this Article. Accordllig to them the· .Article as it stand~ nOIV truly represents the intr.ntiou ci the Constitution makers. In support of that contention.· we were asked to go through the Constituent Assembly debates relating to that article. In particul:u-, we were invitied to go through the speeches niade by Pandit Nehru, Sir Alladi Krishnaswami Ayyar, Dr. Munshi and Dr. Ambcdkar. In our opinion. it is impermissible for us to do so. It is wdl settled rule of construction that speeches made by members of kgislaturc m the course of debates rdating to the enactment of statute cannot be used as aids for. interpreting any of the provisions of the statute. The same rule is applicable when we arc called upon to interpret the provisions of Constituticn. ~ Court ruled in Stllte of Trtltlflllcort: Cochin (JfZd ors. v. Bombay Co. Ltd.(') that speeches made by the members of the Constituent Assembly in the coorsc of ·the debates on the draft Constitution cannot be used as aid for interpreting the Constitution. In the course of his judgment Patanjai Sastri C.J. speaking for the Constitution Bench observed at p. 1121 af. the Report :

"It remains only to point out that the use made by the learned Judges below of the speeches made l>y the members of the Consti-l;Ucnt Assembly in the course of the debates on the draft Consti-tution is unwarranted. That this form of extrinsic aid to the interpretation of statutes is not admissible has been generally accepted in England, and the same rule has been observed in the construction of Indian Statutes-sec Administrator-General of Bengal v. Prem Nath Mallick [(1895 22 I.A. 107, 118]. The reason behind the rule was explained by one of us in Gopalan's case(') thus:

"A speech made in the course !If the debate on bill could at best be indicative of the ·subjective intent of the speaker, but it could not reflect the inarticulate mental process lying behind the majority vote which carried the Bill. Nor is it reasonable to assume that the minds of all those legislators were in accord", or as it is more tersely put. in American case-

Those who did not speak may not have agreed with those who did; and those who spoke might differ from each other-U nited States v. Trans-Missouri Freight Association."(')

( [1 ]) [1952] S.C.R. 113.

( [2 ]) [1950] S.C.R. 88, at 144.

(') 169. U.S. 290, 318.

No deci;ion of this Coun dissenting from the view taken in the above case was brought to our notiec. But it was urged that this Court bad ignored the rule laid down in Bombay Co.'s case (supra) in Go/aknath's case as well as in what is popularly known as the Priuy Purse(') case. We do not think that this statement is accurate. In Golaknath's case, Subba Rao C.J. referred to certain portions of speeches made by Pandit Nehru and Dr. Ambedkar. But he made it clear at p. 792 of the Report, the specific purpose for which he was referring to those speeches. This is what he stated :

"We have referred to the speeches of Pandit Jawaharlal Nehru and Dr. Ambedkar not with view to interpret the provisions of Art. 368 which we propose to do on its own terms, but only to notice the transcendental character given to the fundamental rights by two of the important architects of the Constitution."

Bachawat J. in the course of his judgment also referred to some -0f the speeches made during the debates on Article 368. But before doing so this is what he observed at p. 922 of the report :

"Before concluding this judgment I must refer to some of the speeches made by the members of the Constituent Assembly in the course of debates on the draft Constitution. These speeches can-not be used as aids for interpreting the Constitution-see State of Travancore Cochin and Ors. v. The Bombay Co. Ltd. Accor-dingly I do not rely on them as aids to construction. But I propose to refer to them, as Shri A. K. Sen relied heavily on the speeches of Dr. B. R. Ambcdkar. According to him, the speeches of Dr. Ambedkar show that he did not regard the fundamental rights as amendable. This contention is not supported by the speeches .. "

From these observations, it is cleai that the learned judges were not referring to the speeches as aids for interpretin~ any of the provi-sions of the Constitution.

Now, let us turn to this Court's Judgment in the Privy Purse casi:. Shah J. (as he then was) in the course of his judgment {at p. 83 of the report) quoted portion of the speech of the Home Minister Sardar Patel not for the purpose of interpreting any provi->ion of the Constitution but for showing the circumstances which necessitated the giving of certain guarantees to the former ruler. That speech succinctly sets out why certain guarantees had to be given to the rulers. Hence it is not correct to say that Shah J. speaking for himself and six other Judges had used the speech of Sardar Patel

in aid of the construction of any of the articles of the Constitution It is true Mitter J. in his dissenting judgment (at p. 121 of the report) used the speech of Shri T. T. Krishnamachari i.n aid of the con.struc-tion of Art. 363 but the learned judge no where in his judgment dis-cussed the question whether the speeches made by the members of the Constituent Asembly were admisible in aid of interpreting any provision of the Constitution.

Before concluding the discussion on this topic, it is necessary to refer to one more decision of this Court i.e. Union of India v. H. S. Dhillon.(') In that case this Court was called upon to decide whether the provision in the Wealth Tax Act, 1957 providing for the levy of tax on the capital value of agricultural property were constitutionally sustainable. By majority of four against three, this Court upheld the levy. Sikri C.J. who spoke for himself and two other judges after sustaining the validity of the provision on an examination of the relevant provisions of the Constitution as well as the decided cases refer-red to some of the speeches made during the debates in the Constituent Assembly in support of the conclusion already reached by him. Before referring to those speeches this is what the learned judge observed at p. 58:

"We are, however, glad to find from the following extracts from the debates that our interpretation accords with what was intended."

From this it is clear that the learned Judge did not seek any aid from the speeches for the purpose of interpreting the relevant provi-sion. It is necessary to note that the learned judge did not dissent from the view earlier taken by the Court in Bombay Co. Ltd.'s case (supra). Hence the law as laid down in Bombay Co.' s case is binding on us and its correctness was not challenged before us.

The learned Advocate General of Maharashtra is right in his con-tention that for finding out the true scope of Article 31(2), as it stands at present, it is necessary for us to find out the mischief that was intended to be i:emedied by the present amendment. In other words, we must find out what was the objective intended to be achieved by that amendment. The original Article 31 (2) first came up for consideration by this Court in State of West Bengal v. Mrs. Bela Bannerjee and ors.,([2]) wherein Patanjali Sastri C.J. speaking for the Court observed :

"While it is true that the legislature is given the discretionary power of laying down the principle which should govern the determination of the amount to be given to the owner for the

( [2]) [1954) S.C.R. 558.

property appropriated, such principles must ensure that what is

determined as payable niust be compensation, that is, a. just equivalent of what the owner has been deprived of. Within the limits of this basic requirement of full indemnification of the expropriated owner, the Constitution allows free play to the legis-lative judgment as to what principles should guide the determina-tion of the amount payable. Whether such principles take into account all the clements which make up the true value of the property appropriated and exclude matters which are to be neglected is justiciable L.sue to be adjudicated by the Court. This, indeed, was not disputed."

We are told that Article 31(2) came to be amended by means of the 4th Amendment Act in view of the decision of this Court in Mrs. Bela Banerjee's ease. The scope of the article as amended by the 4th Amendment Act was considered by this Court in P. Vazraydu Mudaliar v. Spedal Deputy Collect<>r, Madras and anr.(') Therein Subba Rao J. (as he then was) speaking for bench consisting of him-self, Wanchoo, Hidayatullah, Raghubar Dayal and Sikri JJ. observed (at p. 626) :

"The fact that Parliament used the same expressions namely "compensation" and "Principles" as were found in Article 31 before the Amendment is clear indication that it accepted the meaning given by this Court to those expressions in Mrs. Bela Banerjee' s case. It follows that Legislature in making law of acquisition or requisition shall provide for just equivalent of w~ the owner has been deprived of or specify· the principles for the purpose of ascertaining the "just equivalent" of what the owner has been deprived of. If Parliament intended to enable Legislature to make such law without providing for compen-sation so defined, it would have used other expressions like "price", '' coruideration" etc."

Proceeding further the learned judge observed :

"The real difficulty is, what is the effect of ouster of jurisdiction of the court to question the law on the ground that the "compen-sation" provided by the law is not adequate ? It will be noticed that the law of acquisition or requisition is not wholly immune from scrutiny by the Court. But what is excluded from the court'• jurisdiction is that the said law cannot be questioned on the ground that the compensation provided by that law is not adequate. It will further be noticed that the clause excluding the jurisdiction

( [1 ]) [1965] I S.C.R. 614.

of the Court also used the word "compensation" indicating thereby that what is excluded from the court's jurisdiction is the adequacy of the compensation fixed by the legislature. The argument that the word "compensation'' means just equivalent for the property acquired and, therefore, the court can ascertain whether it is "just equivalent" or not makes the amendment of the Constitution nugatory. It will be arguing in circle. Therefore, more reasonable interpretation is that neither the principles prescribing the "just equivalent" nor the "just equivalent" can be questioned by the court on the ground of the inadequacy of the compensation fixed or arrived at by the working of the principles. To illustrate ; law is made to acquire house, its value at the time of acquisi-tion has to be fixed ; there arc many modes of valuation namely estimate by the engineer, value reflected by comparable sales, capitalisation of rent and similar others. The application of different principles may lead to different results. The adoption of one principle may give higher value and the adoption of another principle may give lesser value. But nonetheless they arc· principles on which and the manner in :which compensation is determined. The court cannot obviously say that the law should· have adopted one principle and not the other, for it relates only to the question of adequacy. On the other hand, if law lays down principles which are not relevant to the property acquired' or to the value of the property at or about the time it is acquired, it may be said that they are not principles contemplated by Article 31(2) of the Constitution .... In such cases the validity of the principles can be scrutinized. The law may also prescribe com-pensation which is illusory it may provide for the acquisition of property worth lakhs of rupees for paltry sum of Rs. 100. The question in that context does not relate to the adequacy of the compensation for it is no compensation at all The illustrations given by us are not exhaustive. There may be many others falling· on either side of the line. But this much is clear. If the compensa-tion is illusory or if the principles prescribed are irrelevant to the value of the property at or about the time of its acquisition, zt can be said that the legislature committed fraud on power, and there-fore, the law is bad. It is use of the protection of Article 31 in manner which the Article hardly intended." (emphasis supplied).

The principles that emerge from the decision in Vairavelu's case are: (I) compensation means iust equivalent of the value of the property acquired ; (2) principles prescribed must be principles which provide for compensation ; (3) adequacy of compensation fixed or to. 22-36 s. c. India/73

be determined on the basis of the principles set out cannot be gone into by the court ; ( 4) the principles fixed must be relevant to the property acquired or to the value of the property at about the time it is acquired ; (5) the compensation fixed should not be illusory and (6) courts have power to strike down law on the ground of fraud on power if the principles fixed are irrelevant or if tbe compensation granted is illusory.

The next decision cited to us is the decision of this Court in Union of India v. Metal Corporation of India Ltd. and anr.([1 ]) It is decision of Division Bench consisting of Subba Rao C.J. and Shelat J. As that decision was overruled by this Court in State of Guiarat v. Shanti/al Mangaldas and ors.,(') it is not necessary to refer to its ratio.

This takes us to the decision of this Court in Shanti/al' s case. This case related to the acquisition of some landed property on behalf of the Borough Municipality of Ahmedabad for maloing town planning scheme under the Bombay Town Planning Act, 1955. Sections 53 and 57 of that Act fixed certain principles for the determination of compensation for the land acquired. The High Court of Gujarat decl~red that those provisions were ultra vires in so far as they autho-rised the local authority to acquire land under Town Planning Scheme and as corollary to that view declared invalid the City Wall ImpNvm;tent Town Planning Scheme No. 5 framed in exercise of the powers conferred under the Act. In doing so they purported to follow the decis,ion of this Court in Vajravelu M uda/iar' s case. Consti-tution Bench of this Court reversed the decision of the Gujarat High Court. In that case Shah J. speaking for the Court elaborately reviewed the earlier decisions of this Court bearing on Article 31(2). After doing so, he observed at p. 365 of the report :

"Reverting to the amendment made in cl. (2) of Article 31 by the Constitution (Fourth Amendment) Act, 1955, it is clear that adequacy of compensation fixed by the Legislature or awarded according to the principles specified by the Legislature for deter-mination is not justiciable. It clearly follows from the terms of Article 31 (2) as amended that the amount ' of compensation payable if fixed by the Legislature, is not justiciable, because the challenge in such case, apart from plea of abuse of legislative power, would be only challenge to the adequacy of compensa-tion. If compensation fixed by the Legislature-and by the use of the expression "compensation" we mean what the legfrlature

(1) (1967) 1, S.C.R. p. 255.

( [2]) (1969) 3, S.C.R. 341.

iustly regards as proper and fair recompense for compulsory ex-propriation of property and not something which by abuse of legislative power though called compensation is not recompense at all or is something ·illusory-is not justiciable, on the plea that it is not just equivalent of the property compulsorily acquired is it open to the courts to enter upon an enquiry whether the princi-ples which are specified by the Legislature for determining compen-sation do not award to the expropriated owner just equivalent ? In our view, such an enquiry is not open to the Court under the statutes enacted after the amendments made in the Constitution by the Constitution (Fourth Amendment) Act. If the quantum of compensation fixed by the Legislature is not liable to be canvassed before the Court on the ground that it is not just equivalent, the principles specified for determination of compensation will also not be open to challenge on the plea that the compensa(ion determined by the application of those principles is not just equivalent. The right declared by the Constitution guarantees that compensation shall be given before person is compulsorily expropriated of his property for public purpose. What is fixed as compensation by statute, or by the application of principles specified for deter-mination of compensation is guaranteed ; it does not mean how-ever that something fixed or determined by the application of speci-fied principles which is illusory or can in no sense be rega,.ded as compensation m11st be upheld by the Co11rts, for, to do so, would be to grant charter of arbitrariness and permit device to defeat the constitutional guarantee. But compensation fixed or deter-mined on principles specified by the Legislature cannot be permit-ted to be challenged on the somewhat indefinite plea that it is not just or fair equivalent. Principles may be challenged on the ground that they are irrelevant to the determination of compensa-1ion, but not on the plea that what is awarded as result of the application of those principles is not iust or fair compensation. challenge to statute that the principles specified by it do. not award just equivalent will be in clear violation of the constitu-tional declaration that inadequacy of compensation provided is not justicabk". (emphasis supplied)

. 'fhc Advocate Ge~era) of Maharashtra contended that if only this dec1s!On had not been md1rectly overruled by the Bank Nationalisation case (R. C. Cooper v. Union of India},(') there would have been no occasion to further amend Article 31(2). That being so, it is necessary to find out dearly as to what 'are µie p~inciplcs enunciated in this

decision. This decision firmly laid down that any arbitrary fixation of recompense is liable to be struck down by the court as an abuse of legislative power. It further laid down ·that the principles laid down may be challenged on the ground that they are not relevant for the purpose of determining the recompense payable to the owner of the property acquired. If the recompense fixed or determined is either not arbitary or illusory or if the principles fixed are relevant to the purpose of acquisition or requisition of the property in question, the courts cannot go into the question of adequacy of the payment.

Then came the Bank Nationalisation case. The majority judgment in that case was delivered by Shah J. (~ he then was). In that judgment he referred somewhat extensively to the decision in Shanti-/al Mangaldals case and other cases rendered by this Court. He did not purport to deviate from the rule laid down in Shantt'lrd's case. The ratio of that decision relating to Article 31 (2) is found at p. 598 of the report. The learned judge observed :

"Both the lines of thought (in Vajravclu's case and Shantilal's case) which converge in the ultim~tc result, support the view that the principle specified by the law for dC':l"llllination of compensa-tion is beyond the pale of challenge, if it is relevant to the deter-mination of compensation and is recognised principle applicable in the determination of compcnsa.tion for property compulsorily acquired and the principle is appropriate in determining the value of the class of property sought to be acquired. On the application of the view expressed in P. Vajravclu Mudaliar's case or in Shaoti-lal Mangaldas' s case, the Act in our judgment is liable to be struck down as it fails to provide Ii<> the expropriated banks compensation determined according to relevant principles".

Proceeding further the !carnal judge observed at p. 599 :

''We arc unable to hold that principle specified by the Parliament for determining compensation of the property to be acquired is conclusive. If that view be expressed, the Parliament will be invested with charter of arbitrariness and by abuse of legislative process, the constitutional guarantee of the right to compensation may be severely impaired. The principle specified must be appro-priate to the determination of compensation for the particular class of property sought to be acquired. If scvcral principics are appropriate and one is selected for determination of the value of. the property to be acquir.:d, sc:kction of that principle to the exclusion of other principles is not open to the challenge foe the selection must be left to the wisdom of the Parliament"

It is clear from the passages we have quoted above that this case also emphasised that the power of the Parliament to fix the compensa-tion for the property acquired is not an arbitrary power. Further, the principles prescribed for determining the compensation must be relevant to the subject matter of acquisition or requisition. That deci-sion also laid down that both the questions whether the compensation has been fixed arbitrarily or whether the principles laid down. are irrelevant are open to judicial review.

Let us now examine Article 31 (2) as it stands now in the light of the decisions already referred to. The only material changes made in that Article under the 25th Amendment Act are :

(1) in place of the word 'compensation', the word 'amount' has been used and

(2) an additional clause viz. "or that the whole or any part oc such amount is to be given otherwise than in cash" has been added.

We are not concerned in this case as to the effect of the additional clause. No arguments were advanced on that aspect. All that we are concerned with is as to what is the effect of the substitution of the word "amount" in place of the word "compensation". As seen earlier, the word "compensation" has been interpreted in the various decisions referred to earlier as "just equivalent" of the value of the property taken. That concept has now been removed. In other respects, the Article has not been altered. It remains what it was. We have earlier noticed that the decisions of this Court have firmly laid down that while examining the validity of law made under Article 31(2) as it stood after it was amended under the 4th Amendment Act, it was open to the Court to go into the questions whether the compensation had been fixed arbitrarily and whether the same was illusory. Those decisions further ruled that the Court can go into the relevant of the principles fixed. Parliament would have undoubtedly known the ratio of those decisions. That is also the lt'gal presumption. Hence if the Parliament intended to take away the judicial review in · any respect other than relating to the adequacy of the amount fixed, it would have expressed its inten-tion by appropriate words. We find no such words in the Article as it stands. Therefore, it is reasonable to assume that it has accepted the interpretation placed by this Court in all respects except as regards the concept of compensation. That this is the mischief which the 25th Amendment seeks to remedy by amending Article 31 (2) is also cle:ir from the language of the amended Article itself. It says that the law shall not be called in question on the ground that the amount fixed

or determined is not adequate. What is an adequate amount ? AD amount can be said to be adequate only when the owner of the property i.s fully compensated, that is when he is paid an amount which is equivalent in value to the property acquired or requisitioned. And that is also what is connoted by the concept of 'compensation' as interpreted by this Court. Therefore, stated briefly, what the 25th Amendment makes non-justiciable is an enquiry into the question whether the amount fixed or determined is an equivalent value of or 'compensation' for the property acquired or requisitioned.

The word "amount" is neutral word. Standing by itself, it has no norm and is completely colourless. The dictionary meaning of the word appropriate to the present context is "sum total or figure". We have to find out its connotation from the context. In so doing, we have to bear in mind the fact that Article 31 (2) still continues to be fundamental right. It is not possible to accept the contention of the learned Advocate General of Maharashtra and the learned Solici-tor General that the right of the owner at present is just to get what-ever the Government pleases to give, whenever it pleases to give and however it pleases to give. position so nebulous as that cannot be considered as right much less fundamental right, which Article 31 (2) still claims to be.

It is difficult to believe that Parliament intended to make mockery of the fundamental right conferred under Article 31(2). It cannot be that the Constitution while purporting to preserve the fundamental right of the citizens to get an "amount" in lieu of the property taken for public purpose has in fact robbed him of all hit right.

Undoubtedly Article 31 empowers the legislature to acquire or requisition the property of citizen for an "amount". What does the word "amount" mean in that Article ? As we have already said, that word by itself does not disclose any norm. But then the word "amount" is followed by the words "which may be fixed by such law or which may be determined in accordance with such principles and given in such manner as may be specified in such law and no such law shall be called in question in any court on the ground that the amount so fixed or determined is not adequate."

If the expression "amount" has no norm and is just what the Parliament stipulates, there can be no question of prescribing principles for determining that "amount" ; nor is there any scope for finding out its adequacy. The legislatures are pcrmitt.ed under the amended Article 31 (2) either to fix the "amount" to be paid in lieu of the

property acquired or to lay down the princi pies for determining that "amount". These two alternative methods must bring about nearly the same result. If the relevancy of the principles fixed can b~ )~d1-cially reviewed-as indee~ they must be-in vi~w of the "d1c1S10~~ referred to earlier, we fail to see how the fixation of the amount which is the alternative method of determining the recompense to be paid in lieu of the property taken is excluded from judicial review·

The word "fixed" in Article 31 (2) connotes or postulates that there must be some standard or principle by the application of which the legislature calculates or ascertains definitely the amount. In Bouviar's Law Dictionary (1946) at p. 421, the word 'fix' is defined thus : "To determine ; to settle. Constitutional provision to the effect that the General Assembly shall fix the compenS11tion of officers means that it shall prescribe or 'fix' the rule by which such compen-sation is to be determined". (See also Fraser Henlein Pvy. Ltd. v. Cody(') cited in Saunders, Words and Phrases: Legally Defined Vol. 2, p. 258 ( 1969). This being the meaning of the word 'fix' it would be necessary for the legi$lature to lay down in the law itself or otherwise indicate the principles on the basis of which it fixes the amount for the acquisition or requisitioning of the property. If this construction is placed on the first mode of determining the amount, then there would be no difference between this method, and the other method whereby the legislature lays down the principles and leaves it for any other authority to determine the amount in accordance with such principles. Whether the legislature adopts one or ·the other method, the requirement of Article 31 (2) would be the same, namely, there must be principles on the basis of which the amount is deter-mined. Such an amount may be determined either by the legislature or by some other authority authorised by the legislature. The content of the right in Article 31 (2) is not dependent upon whether the legis-lature chooses one or the other method of determining the amount. There is no contradiction between these two methods. It is true that in both cases, the judicial review is necessarily limited because it cannot extend to the examination of the adequacy of the amount fixed or to be determined. It was conceded on behalf of the contesting respondents that the court can go into the question whether the "amount" fixed is illusory. This very concession shows the untenability of the conten-tion advanced on behalf of the Union. For determining whether the "amount" fixed is illusory ·or not, one has first to determine the value of the property because without knowing the true value of the property, no court can say that the "amount" fixed is illusory. Further, when Article 31 (2) says that it is not open to the court to examine whet~er the "amount" fixed or determined is adequate or not, it necessanly

( [1]) (194;) 70, C.L.R. 100 at 128.

means that the "amount" payable has to be determined on the basis or principles relevant for determining the value of the property acquired or requisitioned. There can be no question of adequacy unless the "amount" payable has been determined on the basis of certain norms and not arbitrarily, without having regard to the value of the property.

Further, Article 31 (2) provides for fixing or determining the amount for the acquisition or requisitioning of the property. The S~te action is still described as 'acquisition or requisition' and not 'confiscation'. Therefore, the principles for fixing or determining the amount must be relevant to the 'acquisition or requisition', and not to 'confiscation'. The amount fixed or determined should not make it appear that the measure is one of confiscation. The principles for fixing or determining the amount may be said to be relevant to the acquisition or requisition when they bear reasonable relationship to the value of the property acquired or requisitioned.Further there is practical difliculty in accepting the contentiol\ that · the word "amount" in the context in which it is used, has no norm. The amount has to be fixed by the legislatures which means by the members of the legislatures. When law for acquisition of certain types of property is enacted, it is not as if the members of the legisla. tur~ch and every one of them who participates in the making ol the law would first go and inspect the property to be acquired and then assess the value of that property. In the .,ery nature of thingw, the "amount" payable has to be determined on the basis of certain · principles. If that be so, as it appears to us to be obvious, then the legislators must have some principles before them to determine the amount. In this connection the 'Advocate-General of Maharashtra tried to give an explanation, which appears to us to be unsatisfactory and unacceptable. His contention was that our democracy is worked on the basis of party system. The ruling party has the majority of the m=bcrs of the legislature behind it. Therefore, the members. of the opposition party need not know the basis of fixation af the value of the. property acquired. Even the members of the ruling party need not be told .about .the basis on which the value is fixed. The option before them is either to accept the amount fixed by the cabinet or by the ?dinistu concerned or to reject the proposal and face the conse-quences. If this is the true position, it is, in our opi~ion, negation . of parliamentary ?cm?'racy. OUr dcmocraq µkc all tru~ parliamentary democracies ts ~ased , ~~ t~c pnnc1ples of debate and discussion. As far as possible, decmons m the legislatures arc arrived at on the basis of consensus. · Our Constitution docs not provide for one party rule where there is no room for opposition.

Opposition parties have an important role to play under our Constitu· tion •. Members belonging to the opposition parties have as much right to participate in making laws as the members belonging to the ruling party. Further the learned Advocate General is not correct in his assumption that the function of the members belonging to the ruling party is to blindly support measure sponsored by the executive. They also have right, nay, duty to mould every measure by debate and discussion. If the question of fixation of "amount" under Article 31 (2) is considered as the exclusive function of the executive, then, not only the judicial review will be taken away, even the legislature will not have the opportunity of examining the correctness or appropriateness of the "amount" fixed. power so arbitrary as that can speedily dege· nerate into an instrument of oppression and is likely to be used for collateral purposes. Our Constitution has created checks and balances to minimise the possibility of power being misused. We have no doubt that the theory propounded by the Advocate General of Maharashtra will be repudiated by our legislatures and the cabinets as something wholly foreign to our Constitution.If we bear in mind the fact that the "amount" in question is to be paid in lieu of the property taken, then, it follows that it must have reasonable relationship ·with the value of the property taken. It may not be the market value of the property taken. The market value of property is the result of an inter-action of various forces. It may not have any reasonable relationship with the investment made by its successive owners. The price of the property acquired might have shot up because of various contributions made by the society such as improvements effected by the State in the locality in question or the conversion of rural area into an urban area. It is undoubted! y open to the State to appropriate to itself that part of the market .value of property which is not the result of any contribution made by its owners. There may be several other relevant grounds for fixing particular "amount" in given case or for ·adopting one or more of the relevant principles for the determination of the price to be paid. In all these matters the legislative judgment is entitled to great weight. It will be for the aggrieved party to clearly satisfy the Court that the basis adopted by the legislature has no reasonable relationship to the value of the property acquired or that the "amount" to be paid has been arbitrarily fixed or that the same is an illusory return for the property taken. So long as the basis adopted for computing the value of the property is relevant to the acquisition in question or the amcunt fixed can be justified on any such basis, it is no more open to the court to consider whether the amount fixed or to be determined is adequate. But it is stilt open to the coun to consi· der whether "amount'' in question has been aribtrarily determined or whether the same is an illusory return for the property taken. It is

also open to the court to consider whether the principles laid down for the determination of the amount are irrelevant for the acquisition or requisition in question. To put it differently, the juclicial review under the amended Article 31 (2) lies within narrow limits. The court cannot go into the question whether what is paid or is payable is compensation. It can only go into the question whether the "amount" in question was aribtrarily fixed as illusory or whether the principles laid down for the purpose of determining the "amount" payable have reasonable relationship with the value of the property acquired or requisitioned.

If the amended Article 31 (2) is understood in the manner as laid down above, the right to property cannot be said to have been damaged or destroyed. The amended Article 31 (2) aceording to us fully protects the interest~ of the individual as well as that of the society. Hence its validity is not open to challenge.

Now,- let us rum to Article 31(2B). It says that ''Nothing In sulxlause (£) of cl. (1) of Article 19 shall affect any such law as is referred to in cl. (2)". This provision has no real impact on the right conferred under Article 31(2). Article 31(2) empowers the State to compulsorily acquire or requisition property for public purpose. When property is acquired or requisitioned for public pur-pose, the right of the owner of that property to hold or dispose of that property is necessarily lost. Hence there is no anti-thesis between Article 19(1}(f) and Article 31(2). That being so, the only assistance that the owner of the property acquired or rcquisitiioned would have obtained from Article 19(1)(f) read with sub-article (5) of that article would be the right to insist that the law made under Article 31 (2) as it stood before its recent amendment, should have to conform to some reasonable procedure both in the matter of dispossessing him as well· as in the matter of determining the "amount" payable to him. In way, those rights are protected by the principles of natural jwtice.

For the reasons mentioned above, we are unable to accept the £-On-tention urged on behalf of the petitioners that s. 2 of the 25th Amend-ment Act, 1971 is invalid.

This takes us to s. 3 of the 25th Amendment Act which now stands as Article 31C of the Constitution. This Article empowers the Parlia-ment as well as the Local Legislatures to enact law• giving elfect to, the policy of the State towards securing the principles •pecificd i'1 clause (b) or clause ( c) of Article 39, completely ignoring in the pracess, Articles 14, 19 and 31. Further it lays down that if the law in question contains declaration that it is for giving effect to such policy, that law shall not be called in question in any court on the ground that it does not give effect to such policy. The proviso to that Article prescribes that where such law is made by the legislature of State, the provisions of Article

31C shall not apply thereto unless such law, having been reserved for the consideration of the President has received his assent. This Article has two parts. The first part says that laws enacted by Parliament as well as by the Local Legislatures for giving effect to the policy of the State towards securing the principles specified in clause (b) or clause (c) of Article 39 shall not be deemed to be void on the ground that it is in. consistent with or takes away or abridges any of the rights conferred by Articles 14, 19 and 31 notwithstanding anything contained in Article 13 and the second part provides that no law containing declaration that is for giving effect to such poli~y shall be called in question in any court on the ground that it does not give effect to such policy. Clauses (b) and ( c) of Article 39 do not prescribe any subject matter of legislation. They contain certain objectives to be achieved. The methods to be adopted to achieve those objectives may be numerous. Those clauses cover very large field of social and economic activities of the Union and the States. Clause (b) of Article 39 says that the State shall direct its policy towards securing that the ownership and control of the material resources of the community are so distributed as best to subserve the common good and clause ( c) of that Article says that the State shall direct its policy towards securing that the operation of the economic system does not result in the concentration of wealth and means of production to the common detriment. These two provisions lay down particular political philosophy. They in conjunction with some other provisions of the Constitution direct the State to build Welfare State.

No one can deny. the importance of the Directive Principles. The Fundamental Rights and the Directive Principles constitute the 'conscience' of our Constitution. The purpose of the Fundamental Rights is to create an egalitarian society, to free all citizens from coercion or restriction by society and to make liberty available for all. The purpose of the Directive Principles is to fix certain social and economic goals for immediate attainment by bringing about non-violent social revolution. Through such social revolution the Constitution seeks to fulfil the basic needs of the common man and to change the structure of our society. It aims at making the Indian masses free in the positive sense.

Part IV of the Constitution is designed to bring about the social and economic revolution that remained to be fulfilled after indepen-dence. The aim "Of the Constitution is not to guarantee certain liberties to only few of the citizens but for all. The Constitution visualizes our society as whole and contemplates that every member the society should participate in the freedoms guaranteed. To ignore Part IV is to ignore the substance provided for in the Constitution, the hopes held out to the Nation and the very ideals on which our Constitution is built. Without faithfully implementing the Directive Principles, it is

not possible to achieve the W clfarc State contemplated by the Constitu· tion. society like ours steeped in poverty and ignorance satisfying the minimum economic needs of every citizen of this country. Any Government which fails to fulfil the pledge taken under the Constitution cannot be said to have been faithful to the Constitution and to its commitments.

Equally, the danger to democracy by an over emphasis on duty · cannot be minimised. Kurt Reizler, German Scholar, from his experience of the tragedy of the Nazi Germany warned :

"If. . . . these duties of man should be duties towards the "public welfare" of the "society" and the State, and rights are made condi-tional on the fulfilment of these duties, the duties will uproot the rights. The rights will wither away ... (the) State can use the alle-gedly unfulfilled duties to shove aside rights.-Any Bill of Rights that makes the rights conditional on duties towards society or the State, however strong its emphasis on human dignity, freedom, God or whatever else, can be accepted by any totalitarian leader. He will enforce the duties while disregarding the right".

Indeed the balancing process between the individual rights and the social needs is delicate one. This is primarily the responsibility of the "State" and in the ultimate analysis of the courts as interpreters of the Constitution and the laws.

Our founding fathers were satisfied that there is no anti-thesis between the Fundamental Rights and the Directive Principles. One supplements the other. The Directives lay down the end to be achieved and Part III prescribes the means through which the goal is to be reached. Our Constitution does not subscribe to the theory that end justifies the means adopted. The Counsel for the petitioners urged that the Fundamental Rights are not the cause of our failure to implement the Directive Principles. According to him, it is not the Constituion that has failed as ; but we have failed to rise up to its expectaiions. He 1.1rged that the attack against Fundamental Rights is merely an alibi and an attempt to find scape-goat on the part of those .. who . were µnable or willing to implement the Directives. These allegations are /denied on behalf of the Union and the States. It was urged on their behalf that interpretations placed by the courts on some of the Articles in Part III of the Constitution have placed impediments in the way of States, in implementing the Directives. These controversies arc not capable of being decided by courts.

There is no doubt that the power conferred under Article 31C, if in!'erpreted in the manner contended on behalf of the Union and . the States would result in denuding substantially the contents of the nght

to equality, the right to the seven freedoms guarantced under Article 19 and the right to get some reasonable return by the person whose property is taken for public purpose. Unlike Article 31A, Article 31C is not confined to some particular subjects. It can take in very wide area of human activities. The power conferred under it, is an arbitrary power. It is capable of being us.:d for collateral purposes. It can be used to stifle the freedom of speech, freedom to assemble peaceably, free-dom to move freely throughout India, freedom to reside and settle in any part of India, freedom to acquiie, hold and dispose of prop~rty and freedom to practise any profession or carry on any occupation, trade or business. The power conferred under that provision is blanket power. Even small majority in legislature can use that power to truncate or even destroy democracy. That power can be used to weaken the unity and integrity of this country. That Article is wholly out of tune with our Constitution. Its implications arc manifold. There is force in the contention of the petitioners that this Article has the poten-tiality of shaking the very foundation of our Constitution.What is the nature of the power conferred under Article 31C? It is claimed to have empowered Parliament and the State Legislatures to enact laws pro tanto abrogating Articles 14, 19 and 31. power to take away directly or indirectly right guaranteed or duty impo-sed under Constitution, by an ordinary law, is power to pro tanto abrogate the Constitution. If the legislature is empowered to amend the Constitution by ordinary legislative procedure, any law enacted by it, even if it does not purport to amend the Constitution, but all the same, is inconsistent with one or more of the provisions of the Constitution has the effect of abrogating the Constitution to the extent of inconsistency. That position is clear from the judgment of the Judicial Committee in McCawley v. The King.(') In other words, the power conferred under the Article is power to amend the Consa-tution in certain essential respects while enacting legislations coming within the purview of that Article. It is power not merely to abridge but even to take away the rights guaranteed under Articles 14, 19 and 31 by ordinary law. Further that power is conferred not only on the Parliament but also on the State Legislatures.

Article 368 specifically provides that amendment of the Consti-tution can be done only in the manner provided therein. It is true that there arc provisions in the Constitution under which the Parlia-ment can amend some parts of the Constitution by ordinary law-see Article 2 to 4, Article 169, Paragraph 7 of Schedule V and Paragraph 21 of Schedule VI. But these provisions clearly provide that the laws enacted under those provisions "are not to be deemed as amendments (~) [1920] A.C. 691.

to the Constitution for the purpose of Article 368". There an: also some transitional provisions in the Constitution which can be changed by the Parliament by law. Leaving aside for separate consideration Article 31-A, which was first introduced by the 1st Amendment Act, 1951, there is no provision in the Constitution apart from Article 31 ( 4) which permitted the State Legislatures to enact laws contravening one or more of the provisions in Part III. Article 31(4) relates to legisla-tions pending before the State Legislatures at the time the Constitu-tion came into force. Their scope was known to the Constitution. rhakers. That provision was enacted to protect certain Zamindari Abolition laws which were on the anvil. But it must be remembered that the original provisions in the Constitution were not controlled by l\rticle 368. That Article is as much creature of the Constitution as the other Articles are. The form and manner prescribed in Article 368 did not govern the procedure of the Constituent Assembly. The mandates contained in Article 368 are applicable only to the amend-ments made to the Constitution. The power to amend the Consti-tutio11 was exclusively given to the Parliament and to no other body. The manner of exercising that power is clearly prescribed. Article 31C gives very large power to the State Legislatures as well as to Parlia-ment to pro tanto amend . the Constitution by enacting laws coming within its ambit. To put it differently, Article 31C permits the State Legislatures and the Parliament to enact Constitution-breaking laws by simple majority vote of the members present and voting, if the rule regarding quorum is satisfied.

It cannot be said that Article 31C is similar to Articles 4, 169, Paragraph 7 of Schedule V and Paragraph 21 of Schedule VI. Each one of those Articles makes it clear that the laws passed under those Articles are not to be deemed to be an amendment of the Constitution for the purpose of Article 368. Those laws cannot affect the basic features of the Constitu!ion. They operate within narrow fields.

The learned Advocate-General of Maharashtra contended that Article 31C lifts the ban placffioo the State Legislatures and Parliament under Articles 14, 19 and 31. It is true that there are several provisions in the Constitution which lift the ban placed by one or the other Article of the Constitution on the legislative power of the State Legislatures and Parliament e.g. Articles 15(4), 16(3), 16(4), 16(5), 19(2) to 19(6), 22(3), 22(6), 23(2), 28(2), 31(4), 31(6) etc. Each one of these Articles lifts the limitations placed on the legislative power of the legislatures by one or more of the provisions of the Con-stitution particularly those contained in Part III. But when the limitation is so lifted, there will be no conflict between the law enacted and Article 13. In such situation, there is no occasion for providing that the law enacted will not be deemed to be void notwith-standing anything contained in Article 13. The laws made under the

provisions set out earlier cannot in their very nature take away any of the fundamental features of the Constitution. They can merely modify one or other of those features. Article 31C proceeds on the basis that the laws enacted under that Article arc in conflict with Article 13 and ate prima facie void. Otherwise there was no purpose in providing in that Article "Notwithstanding anything contained in Article 13, no law giving effect to the policy of the . State towards securing the principles specified in clause (b) or clause (c) of Article 39 shall be deemed to be void on the ground that it is inconsistent with or takes away or abridges any rights conferred by Article 14, Article 19 or Article 31 .... " Hence the contention that limitations imposed by Articles 14, 19 and 31 on the legislative power of the Union and the States are lifted to the extent provided in Article 31C cannot be accepted.

It is true that there is some similarity between the laws made under Article 31A and those made under Article 31C. The fiCOpe of the latter article is much wider than that of the former. The character of the laws made under both those Articles is somewhat similar. It was urged that if laws made under Article' 31-A, withoqt more, are valid even if they take away or· abridge the rights conferred under Articles 14, 19 and 31, for the same reason, laws made under Article 31C must also be held valid. It was contended, now that this Court has upheld the valiclity of Article 31-A, we should also uphold the validity of Article 31C. In that connection, reliance was placed on the following observations of Brandies J. of the United States Supreme Court in Lesser v. Garnett : (')

''This Amendment (19th Amendment) is in character and phraseology precisely similar to the 15th. For each the same method of adoption was pursued. One cannot be valid and the other invalid. That the 15th is valid .... has been recognised and acted upon for half century ... The suggestion that the 15th was incorporated in the Constitution not in accordance with law, but practically as war measure which has been validated by acquie-scence cannot be entertained."

These observations do not lay down any principle of law. The validity of the 19th Amendment was upheld on various grounds and not merely because the 15th amendment was upheld.

The laws enacted under Article 31A by their very nature can hardly abrogate the rights embodied in Articles 14, 19 and 31. Those laws can encroach upon the rights guarant.eed under Articles i4, 19 and 31 only to the extent necessary for giving effect to them. The laws

(') 66 L. Ed. p. 595(511)=258 U.S. 13.

made must be those made under the topics of legislation mentioned in Article 31A. Hence the encroachment of the rights guaranteed under Article 14, 19 and 31 must necessarily be incidental. If the encroachment is found to be excessive, the same can be struck down. In this connection reference may be usefully made to the decision of this Court in Akadasi Padhan v. State of Oris;a.(') Therein the validity of provision of statute enacted under Article 19(6) (ii) i.e. law providing for State monopoly in Kendu Leaves, came up for amsideration. The question for decision before the Court was whether that Jaw can unreasonably encroach upon the right guaranteed under Article 19(1)(g). That question was answered by Gajendragadkar J. (as he then was) speaking for the Court, thus :

" "A law relating to" State monopoly cannot, in the context include all the provisions contained in the said law whether they have direct relation with the creation of the monopoly or not. In our opinion, the said expression should be construed to mean the law relating to the monopoly in its absolutely essential feature. If law ls passed creating State monopoly, the Court should enquire what are the provisions of the said law which are basically and essentially necessary for creating the State monopoly. It is only those essential and basic provisions which are protected by the latter part of Article 19(6). If there are other provisions made by the Act which are subsidiary, incidental or helpful to the operation of the monopoly, they do not fall under the said part and their validity must be judged under the first part of Article 19( 6). In other words, the effect of the amendment made in Article 19( 6) is to protect the law relating to the creation of mono-poly and that means that it is only the provisions of the law which are integrally and essentially connected with the creation of the monopoly that are protected. The rest of the provisions which may be incidental do not fall under the latter part of Article 19(6) and would inevitably have to satisfy the test of the first part of Article 19(6)."

The same principle was reiterated by the full Court in the Bank Nationalisation ease.

As far back as in 1951 this Court ruled in State of Bombay and anr. v. F. N. Balsara(") that merely because law was enacted to implement one of the Directive Principles, the same cannot with impu-nity encroach upon the Fundamental Rights. The ratio of Akadasi

( [1]) [1963] Supp. 2 S.C.R. 691

Padhan's case would be equally applicable in respect of the laws mad~ under Article 31A which speaks of the "law providing for the" topics mentioned therein. But that ratio cannot be effectively applied when we come to Jaws made under Article 31C. The reach of Article 31C is very wide. It is possible to fit into the scheme of that Article almost any economic and social legislation. Further, the Court cannot go into the question whether the laws encted do give effect to the policy set out in· Article 39(b) and (c). We were told on behalf of the Union and the States that it is open to the courts to examine whether there is nexus between the laws made uncfer Article 31C and Article 39(b) , and ( c) and all that the courts are precluded from examining is the effectiveness of the law in achieving the intended purpose. But, such power in its very nature is tenuous. There can be few laws which can be held to have no nexus with Article 39(b) and (c). At any rate, most laws may be given the appearance of aiming to achieve the objectives mentioned in Article 39(b) and (c). Once that facade is projected, the laws made can proceed to destroy the very foundation of our Constitution. Encroachment of valuable constitutional guarantees generally begins imperceptibly and is made with the best of intentions but, once that attempt is successful further encroachments follow as matter of course, not perhaps with any evil motives, and may be, out of strong convictions regarding the righteousness of the course adopted and the objectives intended to be achieved but they may all the same be wholly unconstitutional. Lord Atkin observed in Proprietary Articles Traders Association and ors. v. Attorney General for Canada and ors.(')

"Both the Act and the sections have legislative history which is relevant to the discussion. Their Lordships entertain no doubt that time alone will not validate an Act which when challenged is found to be ultea vires; nor will history of gradial series of advances till this boundary is finally crossed avail to protect the ultimate encroachment."

The observation of Lord Atkin "nor will history of gradual series of advances till this boundary is finally crossed avail to protect the ultimate encroachment" is extremely apposite for our present purpose. The First Amendment Act permitted enactment of Consti-tution breaking Laws in respect of one subject ; the Fourth Amend-ment Act enlarged that field and permitted the Legislatures to make laws ignoring Articles 14, 19 and 31 in respect of five subjects. Now the Twenty-Fifth Amendment has finally crossed the boundary.

It cannot be said that under Article 31C Parliament me.rely dele-gated its own amending power to State Legislatures and such delega-tion is valid. The power conferred on Parliament under Article 368 in its very nature is one that cannot be delegated. It is special power to be exclusively exercised by Parliament and that in the manner pmcribcd in Article 368. The State Legislatures arc not institutions subordinate to Parliament. Parliament as well as State Legislatures in their respective allocated fields arc supreme. Parliament cannot delegate its legislative powers-much less the amending power-to the State Legislatures. The question whether the legislatures can confer power on some other independent legislative body to exercise its legislative power came .up for consideration before the Judicial Committee in re The Initiative and Referendum Act(') Therein Viscount Haldane speaking for the Board observed: "S~ction 92 of the Act of 1867 (British North American Act) entrusts the legislative power in Province to its legislature and to that legislature only. No toubt body with power of legislation on the subjects entrusted to it so ample as that enjoyed by Provincial Legislature in Canada, could, while pre-serving its own capacity intact, seek the assistance of subordinate agencies, as had been done in Hodge v. The Queen(') the Legis-lature of Ontario was held entitled to entrust to Board of Com-missioners authority to enact regulations relating to Tavcrnes ; but it docs not follow that it can create and endow with its own capacity new legislative power not created by the Act to which it owes its own existence. Their Lordships do no more than draw attention to the gravity of the Constitutional questions which thus arise."

In Queen v. Burah,([8 ]) the Judicial Committee observed :

"Their Lordships agree that the Governor General in Council could not, by any form of enactment, create in India, and arm with general legislative authority, new legislative power, not created or authorised by the Councils' Act."

We respectfully agr<e with these observations. From these obser-vat ons it follows that Parliament was incompetent to create new power-a power to ignore some of the provisions of the Constitution-and endow the same on the State Legislatures. That power was exclusively conferred on Parliament so that the unity and integrity of this country may not be jeopardised by parochial considerations. The Constitution make.rs were evidently of the opinion that the sovereignty

(') [1919] A.C. p. 935 at 945 P.C.

(") 19 App. Cas. 117.

(') (1878) 5 I.A. 178 at 194.

of the country, the democratic character of the polity, and the indi-vidual liberties etc. would be better safeguarded if the amending power is exclusively left in the hands of the Parliament. This exclu-sive conferment of amending power on the Parliament is one of the basic features of the Constitution and the same cannot be violated directly or indirectly. Article 31A made small dent on this feature and that went unnoticed. That provision is now protected by the principle of stare decisis. Public interest will suffer if we go back on these decisions and take away the protection given to many statutes, Now, to use the words of Lord ·Atkin in the Proprietary Articles Traders Auociation's case, the 'boundary line has been crossed' and challenge to the very basic conceptions of the Constitution is posed. Hence the neglect or avoidance of the question in previous cases can-not be accepted as sound argument.

In Queen v. Kirby and ilrs. (') Dixon C. J. observed :

"These cases, and perhaps other examples exist, do no doubt add to the weight of the general con.siderations arising from lapse of time, the neglect or avoidance of the question in previous cases and the very evident desirability of leaving undisturbed assump-tions that have been accepted as to the validity of the provisions in question. At the same time, the Court is not entitled to place very great reliance upon the fact that, in cases, before it where occasions might have been made to raise the question for argument and decision, this was not done by any member of the Court and that on the contrary all acceptcd the common assumption of the parties and decided the case accordingly. Undesirable as it is 'that doubtful questions of validity should· go by default, the fact is that, the court usually acts upon the presumption of validity until the law is specifically challenged.''

Similar was the view expressed by Viscount Simonds speaking for the Judicial Committee in Attorney-General of Commonwealth t1f Australia v. The Queen and ors.(')

"It is therefore asked and no one can doubt that it is tormidable question, why for quarter of century no litigant has attacked the validity of this obvwusly illegitimate unions. Why in Alcxanndc~'s case (1918) 25, C.L.R. 434) itself was no challenge made ? How came it that in series of cases, which arc enume-rated in the majority and the dissentient, judgments it was assum-ed without question that the provisions now impugned were valid ?"

lt is clear from the majority judgment that the learned Chief Justice and the Judges who shared his opinion were heavily pressed by this consideration. It could not be otherwise. Yet they were impelled to their conclusion by the clear conviction that con-sistently with the Constitution the validity of the impugned provi-sion could not be sustained. Whether the result would have been different if their validity had previously been judicially deter-mined after full argument directed to the precise question and had not rested on judicial dicta and common assumption it is not for their Lordships to say. Upon question of the applicability of the doctrine of stare decisis to matters of far reaching consti-tutional importance they would imperatively require the assistance of the High Court itself. But here no such question arises. What-ever the reason may be, just as there was patent invalidity in the original Act whlch for number of years went unchallenged, so far greater number of years an invalidity whlch to their Lordships as to the majority of the High Court has been convin-cingly demonstrated, has been disregarded. Such clear conviction must find expression, in the appropriate judgment."

The contention that Article 31C may be considered as an amend-ment of Article 368 is not tenable. It does not purport to be so. That Article does not find place in Part XX of the Constitution. It is not shown as proviso to Article 368, the only Article which deals with the amendment of the Constitution as such. Article 31 does not say that the powers conferred under that Article are available "notwithstanding anything contained in Article 368" or "notwith-standing anythlng in this Constituion". There is no basis for holding that the Parliament intended that Article 31C should operate as an amendment of Article 368. We have earlier come to the conclusion that the State Legislatures cannot be invested with the power to amend the Constitution.If the purpose of Article 31C is to secure for the Government, the control of means of production in certain economic spheres exclu-sively or otherwise, the same can be achieved by the exercise of legis-. lative power under Article 31 (2) or under Article 31 (2) read with Article 19(6) (ii). I£ on the other hand, the object is to reduce the existing economic disparity in the country, that object can be achleved by exercising the various powers conferred on the legislatures under the Constitution, in particufar by the exercise of the power to tax, power of the largest amplitude. That power can be exercise4 witho~t discriminating against any section of the people. One of the baste underlying principles of our Constitution is that ev~ry governmental power, which includes both the power of t~e executives as well .as of the legislatures, must be so exercised as to give no room for !eg1t1matc complaint, that it was exercised with an evil eye or an uneven hand.

For the reasons mentioned above, we hold that Article 31C pcrmi!I the destruction of some of the basic features of our Constitution and consequently, it is void.

Lastly, we come to the validity of the 29th Amendment Act, 1972.

Contentions relating to the 29th Amendment Act of. the Constitution lie within narrower limits. The only plea taken was that if any of the provisions in the two Acts included in the IXth Schedule to the Constitution by means of the 29th Amendment A't does . not satisfy the requirements of Article 31A(l)(a), the said provision docs not get the protection of Article 31-B.

& result of. the 29th Amendment Act, tire Kcrala Land Reforms (Amendment) Act, 1969, (Kcrala Act 33. of 1969) and Kerala Land Reforms (Amendment) Act, 197°1 (Kcrala Act 25 of 1971) were added as ittms 65 and 66 in the IXth Schedule of the Constitution. The IXth Schedule is an appendage to Article 31-B, which says :

"Without prejudice to the generality of the provisions contained in . article 31A none of the Acts and Regulations specified in the Ninth Schedule nor any of the provisions thereof shall be deemed to be void, or ever to have become void, on the ground that such A.ct, Regulation or provision is inconsistent with or takes away or abridges any of the rights conferred by, any provisions of this Part and notwithstanding any judgment, decree or order of any court or tribunal to the contrary, each-of the said Acts and Regu-lations shall, subject to the power of any competent Legislature to repeal or amend it, continue in force."

The learned Counsel for the petitioners did not challenge the validity of Article 3IB. Its validity has been accepted in number of cases decided by this Court. His only contention was that before ~y Act or any provision in an Act, included in the !Xtb Schedule can get the protection of Artide 31B, the A.ct or the provision in question must satisfy the requirements of one or the other of the provisions in Article 31A. For this contention of his, he relied on the opening words of Article 31B namely "without prejudice to the gen~­rality of the provisions contained in Article 31A". He urged thot, if Article 31B had been an independent provision having no connection whatsoever with Article 31A as contended on behalf of the conte1ting respondents, there was no occasion for using the word~ referred t? ·earlier in Article 31B. He also attempted to trace the history of Arti-cles 31A. and 31B and establish that there is link between those two Articles. Though there is some force in those contentions, the qu~stion of law raised is no more res integra. It ls concluded by series of decisions of this Court and we see no justification to reopen that question.

In Sta~ of Bihar v. Maharajatlhiraja Sir Kamethwar Singh of Darbhanga_ and orJ.(') contention similar to that advanced by Mr. Palkh1vala was advanced by Mr. Somayya. That contention was rejected by Patanjali Sastri C.J. speaking for the Court with th= observations :

~Mi. Somayya, however, submitted that the opeAing words of Article 31-B, namely "Without prejudice to the generality of the provision~ contained in Article 31A" showed that the mention of particular statutes in Article 3L-B read with the Ninth Schedule was only illustrative, and that, accordingly, Article 31-B could not be wider in scope.. Reliance was placed in support of this argument upon the decision of the Privy Council in Sibnath Banerp's case (1945) F.C.R. 195). I cannot agree with that view. There is nothing in Article 31-B to indicate that the specific intention of certain statutes was only intended to illustrate the application of the general words of Article 31-A. The opening words of Article 31-B are only intended to make clear that Article 31-A should not be restricted in its application by reason of anythi"ng contained in Article 31-B and arc in no way calculated to restrict the applica-tion of the latter article or of the enactments referred to therein to acquisition ot "estates".

In Vishweshwar Rao v. The State of Madhya Pradesh(') Mahajan

v. J. (as he then was) reiterated the same view. He observed:

"It was contended that Article 31-B was merely illustrative· of the rule stated in Article 31-A and if Article 31-A had no application, that article also should be left out of consideration ..... .

On the basis of the similarity of the language in the opening part of Article 31-B with that of sub-sectiOn (2) of section 2 of the Defence of India Act "without prejudice to the. generality of the provisions contained in Article 31-A'', it was urged that Article 31-B was merely illustrative of Art. 31-A and as the latter was limited in its application to estates as defined therein, Article 31-B was also so limited. In my opinion, the observations in Sibnath Bannerjee's case far from supporting the contention raised, nega-tives it. Article 31-B specifically validates certain Acts mentioned in the Schedule despite the provisions of Article 31-A, but stands independent of it. The impugned Acts in this situation qua the acquisition of the eight malguzari villages cannot be questioned on the ground that it contravenes the provisions of article 31(2) of the Constitution or any of the other provisions of Part Ill."

(I) II 9521 S.C.R. 889.

(') (1952) S.C.R. 1020.

similar view was cxpresed by this C.Ourt in N. B. /eeieebhoy v. Assi!Pant Colkct<>r, ThatA:J Prant, Thana(') Therein Sobba Rao J. (as he then was) speaking for the C.OUrt observed thus :

"The learned Attorney General contended that Article .3l·A and Article 31-B should be read together and that if so read Article 31-B would only illustrate cases that would otherwise fall under Article 31.A and, therefore, the same construction as put upon ArtU:le 31-B should also apply to Article 31-A of the Constitut'on .. This COl1$truction was sought to be based upon the opening words of Article 31-B, namely "without prejudice to the generality of the provisions contained in Article 31.A". We find it difficult to accept this argument. The words "Without prejudice to the generality of the provisions" indicate that the Acts and regulations specified in the Ninth Schedule would have the immunity even if they did not attract Article 31-A of the Constitution. If every Act in the 9th Schedule would be covered by Article 31-A, this article would become redundant. Indeed, some of the Acts mentioned therein, namely, items 14 to 20 and many other Acts added to the · 9th Schedule, do not appear to relate to estates as defined in Article 31-A(Z) of the Constitution. We, therefore, hold that Article 31-B is not governed by Artkle 31A and that Article 31B is constitutional device to place the specified statutes beyond any attack on the ground that they infringe Part III of the C.Onsti-tution . .. "

Several other decisions of this Court proceed on the basis that ArtiCle 31-B is independent of the Article 31A. It is too late in the day to reopen that question. Whether the Acts which were brought into the IXth Schedule by the 29th Amendment Act or any provision in any of them abrogate any of the basic elements or essential features of the C.Onstitution can be examined when the validity of those Acts is gone into.

For the foregoing reasons, we reject the contention of the petitio-ners that before an Act can be included in the !Xth Schedule, it must satisfy the requirements of Article 31-A.

In the result we hold:

(1) The power to amend the Constitution under Article 368 as it stood before its amendment empowered the Parliament by following the form and manner laid down in that Article, to amend each and every Article and each and every Part of the C.Onstitution.

---------·-

(') [1965] I, S.C.R. 636.

(2) The expression "law" in Article 13(2) even be.tore Article 13 was amended by the 24th Amendment Act, did not include amendments to the Constitution.

(3) Th~gh the ~er to amend the Constitution under ,\rticl~ 368 1s very wide power, it does not yet include the power to destroy or emasculate the basic elements or the fundamental features of the Constitution.

(4) The 24th Amendment Act did not enlarge the amendmg power of the Parliament. It mcrdy made explicit what was implicit in the original Article. Hence it is valid.

(5)(A) The newly substituted Article 31(2) does not destroy the right to property becau»-

(i) the fixation of "amolll'lt" under that Article should have reasonable relationship with the value of the property acquired or requisitioned ;

(ii) the principles laid down must be relevant for the purpo1c of ardving at the "amount" payable in respect ii the property acquired or requisitioned;

(iii) the "amount" fixed should not be illusory and

(iv) the same should not be fixed arbitrarily.

5(B) The question whether the "amount" in question has been fixed arbitrarily or the same is illusory or the principles laid down for the determination of the same arc relevant to the subject matter of acquisition or requisition at about the time when the property in question is acquired or requisitioned are· open to judicial review. But it is no more open to the court to consider whether the "amount" fixed or to be determined on the basis of the principles laid down is adequate.

(6) Claus, Z(b) of the 25th Amendment Act which incorporated Article 31 (2B) is also valid as it did not damage or destroy any essential features of the Constitution.

(7) Clause (3) of the 25th Amendment Act which introduced into the Constitution Article 31C is invalid for two reasons i.e. ( 1) it was beyond the amending power of the Parliament in so far as the amendment in question permits destruction of several ba:sic clements or fundamental features of the Consti-tution and (2) it empowers the Parliament and the State Legislatures to pro tanto amend certa!n human. free?oms guaranteed to the citizens by the exemse of their ordinary legislative power.

(8) The 29th Amendment Act is valid but whether the Acts which were brought into the IXth Schedule by that Amend-ment or any provision in any of them abroaatc any of the basic clements or essential features of the Constitution will have to be aamincd when the validity of those Acts is gone into.

In the circumstances of the case we direct the parties to bear their own costs in these cases uptill this stage.

RAY, J.-The validity of the Consti.tution 24th, 25th and 29th .Amendment Acts is challen,.•ed. The Constitution 24th Amendment Act amended Article 368. Article 368 in the unamended form siieaks -0f "Amendment of this Constitution" and how the Constitution shall $tand amended. The Constitution 24th Amendment Act enacts that Parliament may in exercise of its constituent power amend by way of addition, variation or repeal any provision of this Constitution in accordance with the procedure laid down in that Article. The other part of the amendment is that nothing in Article 13 shall apply to .any amendment under Article 368. The Constitution 25th Amend-ment Act has amended Article 31 (2) and also Article 31 (2A ). The effect of these two amendments with regard to Articles 31(2) .and 31(2A) is two-fold. First, no property shall be compulsorily .acquired or requsitioned save for public purpose and save by autho-rity of law which provides for an amount which may be fixed by law ·or which may be determined in accordance . with such principles. Secondly, nothing in Article 19(1) (f) shall affect any law as is reter-red to in Article 31(2). The second pan of the Constitution 25th Amendment Act is introduction of Article 31C which enacts that notwithstanding anything contained in Article 13 no law giving effect to the policy of the State towards securing principles prescribed in clauses (b) and ( c) of Article 39 shall be deemed to be void on the ground that it is inconsistent with or takes away or abridges any -of the rights conferred by Articles 14, 19 and 31; and no law con-taining _declarat!on _that it is for giving effect to such policy shall be called m question m any court on the ground llhat it does not give effect to such policy, By the Constitution 29th Amendment Act the Kerala Land Reforms Amendment Act 1969 and the Kerala Land Re-forms Amendment Act 1971 have been introduced into the Ninth Schedule of the Constitution.

The principal question which falls for determination is whether the power to ~me~d is _under any express limitation of Article 13("). ~nother question 1s whether there are implied and inherent limita-tion on the power of amendment. Can there be any implied or inherent limitation in the face of any express power of amendment

without' any exception? Question· have been raised that esscn~l fca-· tures of the Constitution cannot be amended. Does the Constitu-tion admit of distinction between essential and non-essential features ? Who is to determine what the essential featw-es arc? . Who is the authority to pronounce as to what features are essential?· The pre-eminent question is whether the power of amendment is to be c~il-\ ed or restricted, though the Constitution does not contain any excep-tion to the power of amendment. The people gave ihe Constitution to the people. The people gave the power of amendment to Parlia-ment. Democracy proceeds on the faith and capacity of the people to elect their representatives and faith in the representatives to re-present the people. Thoroughout the history· of man-kind if any motive· power . has been more potent than another it is that of faith in themselves. The ideal of faith in ourself is of the great.est help to us. Grote the historian of Greece said that the diffusion of constitutional morality, not merely among the majority of any community but throughout the whole, is the indispcnsible condition of government at once free a11d peaceful. By constitutional morality Grote meant paramount reverence for the forms of the Constitution, with perfect conlidcnee in the bosom of every citizen amidst the bitterness of party contest that the forms of the Constitution will not be less sacred in the eyes of opponents than in his own. The question is "He that planted the car, shall he nor hear? or he that made the eye, shall he no sec''.

The real question is whether there is any power !P amend the< Constitution and if so whether there is any limitation on the power. The answer to this question depends on these considerations. First, what is the correct ratio and effect of the decision in I. C. Golak Nath & Ors. v. State af Punjab & Anr. (1967) 2 S.C.R. 762. Second, should that ratio be upheld. Third, is there any limi!tltion on the power to amend the Constitution. Fourth, was the 24th Amendment validly enacted. If it was, is there any inherent and implied limitation on that power under Article 368 as amended.

The scope and power under Article 368 as it stood prior to the Constitution (24th) Amendment Act to amend the Constitution folk for consideration.

Two principal questions arise. First, is the Constitution as well as an amendment to the Consti·tlltion law within the meaning of Article 13(2). Second, is there any implied and inherent limitation on the power a{ amendment apart from Article 13(2).

Mr. Palkhivala contends that the unamended Article 368 was subject to Article 13(2). It is said that amendment of the Constitu-tion is law, 3nd, therefore, any law which contravenes fundamental

rights is void. It is also said that Article 368 does not prevail over or override Article 13. The four bars under Article 13 arc said to be these. The bar is impoocd against the State, that is to say the totality of all the forces of the State. Second, all categories of law arc covered by the bar, whether they are constitutional amendments or bye-laws or executive Orders <111d Notifications. Third, all laws in force under Article 372 and all laws to be brought into force at any future date arc brought within the scope of this bar. Fourth, the effect of the bar is to render the law void.Mr. Palkhivala said that the preamble makes it clear that the object of the Constitution is to secure basic human freedom, and this guarantee will be meaningless if the Legislature against whom the guarantee is to operate is .ak' liberty to abrogate the guarantees. It is ~id that law is comprehensive enough t.o include both ordinary law and constitutional law. The various forms of oath in the Third Schedule of the Constitution refer 1!o "constitution as by law esta-blished". It is, therefore, submitted by the petitioner that the Consti-tution itself was originally established· by law and every amendment has likewise to be established by law in order to take effect. It is emphasised that the constitutional amendment is law, and, there-fore, the word "law" in Article 13(2) includes constitutional amend-ments.

The Attorney General and Mr. Scervai said that the Constitution is the supreme higher law. An amendment to the Constitution is in exercise of constituent power. The amending power is not legis-lative power. Law in Article 13(2) embodies the doctrine of ultra vires to render vaid any law enacted under the Constitution.

This Court in Shankari Prasad Singh Deo v. Union of India and State of Bihar (1952) S.C.R. 89 and Sajjan Singh v. State of Rajasthan ( 1965) 1 S.C.R. 933 examined the power to amend the Constitution.

In Shankari Prasad case the Constitutipn First Amendment Act was challenged. The principal contention was that the First Amend-ment in so far as it purported to take away ar abridge the rights conferred by Part Ill of the Constitution fell within the prohibition of Article 13(2) of the Constitution.

The unanimous view of this Court in Shankari Prasad case was thnt although law must ordinarily include constitutional law there is clear demarcation between ordinary law which is made in exer-cise of legislative power and constitutional law which is made in exercise of constituent power. In the absence of clear indication

to •he contrary it is difficult to hold that the framers of the Oonsti" tution intended to make the fundamental rights immune of constitu-tional amendment'.. The terms of Article 368 are general to empower Parliament to amend the Constitution without any exception. Article 13(2) oonstrued in the context of Article 13 means Uhat law in Article 13(2) would be relateable to exercise of ordinary legislative power and not amendment to the Constitution.

The Constitution Fourth Amendment Act came ·mo existence on 5 October, 1963. The Constitution Seventeenth Amendment Act came into llorce on 20 June, 1964. By the Seventeenth Amendment Act Article 31A clause (1) was amended by inserlling one more pro-viso. fresh sul>-clause (a) was substituted for original sub.clause (a) of clause (2) of Article 31 retrospectively. 44 Acts were added in the Ninth Schedule. The validity of the Seventeenth Amendment was challenged before this Court in Saijan Singh case.

The main contention in Sajjan Singh case was that the power prescribed by Article 226 was likely to be affected by the Seventeenth Amendment, and, therefore, it was necessary that the special proce-dure laid down in the proviso to Article 368 sliould have been follow-ed. The Seventeenth Amendment Act was said to be invalid because that procedure was not followed.

The majority view of this Court in Sajjan Singh case was that Article 368 plainly and unambiguously meant amendment of all the provisions of the Constitution. The word "law" in Article 13(2) was held not to take in the Constitution Amendmenn Acts passed under Article 368. It was also said that fundamental rights in Article 19 could be regulated as specified in clauses (2) to ( 6) and, t!herefore, it could not be said to hav~ been assumed by the Constitution makers that fundamental rights were static and incapable of expansion. It was said that the concept of public interest and other important con-siderations which arc the basis of clauses (2) to ( 6) in Article 19 "may change and may even expand". The majority view said that "The Constitution makers knew that Parliament could be competent to make amendments in those rights (meaning thereby fundan1ental rights) so as to meet the challenge of the problem which may arise in the course of socio economic progress and the development of the country".

The minority view in Sajjan Singh case doubted the corr~ctncss of the unanimous view in Shankari Prasad case. The doubt was on question as to whether fundamental rights could be abridgeJ by

exercise of power under Article 368. The minority view in Sajjan Singh case was that the rights of . society are made paramount and arc· placed above those of the individual. But the minority view was abo that though fundamental rights could be restricted under clause (2) to (6) of Article 19 there could be no "removal or debilitation" of such rights.

In Golak Nath case the Punjab Security of Land Tenures Act, 1953 was challenged as violative of fundamental rights and· as not being protected by the Constitutikm. First Amendment Act, 1951, the Constitution Fourth Amendment Act, 1955 and the Constitution Seventeenth Amendment Act, 1964. The validity of the Mysore Re-forfus Act, 1962 as amended by Act 14 of 1965 was also challenged on the same grounds. The Punjab Act and the Mysore Act were in-cluded in the Ninth Schedule. It was common case that if the Seven-teenth Amendment Act adding the Punjab Act and the Mysore Act in the Ninth Schedule was valid the two Acts could no~ be impugned on any ground.

The majority decision of this Court in Golak Nath case was that an amendment of the Constitution was law within the meaning of Article 13(2). There were two reasonings in the majority view arriv-ing at the same conclusion. The majority view where Subba Rao, C.J., spoke was as follows : The power to amend the Constitution is derived from Articles 245, 246 and 248 of the. Constitution and not from Article 368. Article 368 deals only with procedure. Amend-ment is legislative process. Amendment is law wilthin the meaning of Article 13. Therefore, if an amendment !lakes away or abridges rights conferred by Part III of the Constitutiion it is void. The Cons-·tiitution First Amendment Act, the Constitution Fourth Amendment Act· and the Constitution Seventeenth Amendment Act abridged the scope of fundamental rights. On the basis of earlier decisioos of this Court the Constitution Amendment Acts were declared oo be valid. On the application of the doctrine of prospecllive over-ruling the amendments will continue to be valid. Parliamen~ will have no power from the date of this decision (meaning thereby the decision in G.olak Nath case). to amend any of the prov1).ions of Part III of the Constitution ~ as o:i take away or abridge the fundamental rights. The Constitution Seventeenth Amendment Act holds the field. There-fore, the .Punjab Act and the Mysore Act cannot be questioned.The concurring majority view of Hidayatullah, J. was this. The fundamental rights arc outside the amcndatory proccS& if the amend-ment seeks to abridge or take away any of the rights. The First, the Fourth and the Seventh Amendment Acts being Part of the Cons-titut'Oll by acquiescence for long time cannot be chcllcngcd. These·

Oxistitution Amendment Acts contain authority for the Seventeenth Amendmei;it Act. Any further iinroad into fundamental i;ights as they exist on the date of the deci.~ion will be illegal and unconsti-tutional unless it complies with Part Ill in general and Article 13(2) in particular. The constituent body will have oo be convened for abridging or taking away fundamental rights. The Punjab Act and the Mysore Act are valid not because they are included in the Ninth Schedule of the Cpnstitution but because they are protected by Article 31A and the assent of the President.

The two views forming the majority arrived at the same conclu-sion that an amendment of the Constitution being law within Qhe ·meaning of Article 13(2) would be unconstitutional if such an amendment abridged any fundamer.tal right. The leading majority view did not express any final opinion as to whether fundamental rights could be abridged by Parliament exercising its residuary power and calling Constituent Assembly "for making new Constitution . or radically changing it". The concurring majority view held that the fundamental rights could be abridged by suitably amending Article 368 to convoke Constituent Assembly. The concurring majo-rity view was that Constituent Assembly could be called by passing Jaw under Entry 97 of List I and llhen that Assembly would be able .to abridge or take away fundamental rights.

The minority view of five learned Judges expressed n 3 judg-ments as against the majority view of six learned Judges in Golak Nath case was this.

Wanchoo, J. spoke for himself and two com:urring learned Judges -as follows. Article 368 contains both the power and the pro-.ccdure for amendment of the Constitution. It is incomprehensible that the residuary power of Parliament will apply to amendment of the Constitui:icm when the procedure for amendment speaks of amend-ment by ratification by the States. When an entire part of the Constitution is devoted to amendment it will be more approp~iate to read Article 368 as containing the power to amend because there is no specific mention of amendment in Article 248 or in any Entry of List I. The Constitution is the fundamental law and without .express power to affect change legislative power cannot effect· any change in the Constitution. Legislative Acts are passed under ihe power conferred by the Constitution. Article 245 which gives power to make law for the whole or any part of India is subject to the pro-visions of the Constitution. If, however, power to amend is in Article 248 read with the residuary Entry in List I that power is to be acrciscd subject to the Constitution and it can1*Jt change the Constitution which is the fundamental law. It is because of the

<lilference between the fundamental law and the

legislative power

under the Constitution that the power lP amend cannot be located in the Residuary Entry which is law making power under the Cons-titution.

Article 368 confers power on P~rliament subject lP the procedure provided therein for amendment of any provision of the Constitution, It is impossible to introduce in the concept of amendment, any idea of improvement. The word "amendment" must be given its full meaning. This means . that. by amendment an existing Constitution or law can be changed. This change can take the form either of addition to the existing provisions, or alteration of existing provisions and their substitution by others or deletion of certain provisions altogether. An amendment of the Cons:itution is not an ordinary law made iinder the powers conferred und,er Chapter I of Part XI of the Constitution, and therefure, it cannot be subject to Article 13(2). It is strange that the power conferred by Article 368 will be limited by putting an interpretation on the word "law" in Article 13(2) which will include constitutional law also. The possibility of the abuse of any power has no relevance in considering the ques-tion about the existence of the power itself. The power of amend-ment is the safety valve which to large extent provides for stable growth and makes violent revolution more or less unnecessary.

The two other supporting minority views were these. Bachawat, J. arrived at these conclusions. No limitation on the amending power can be gathered from the la!lgllllge of Article 368. Therefore, each and every part of the Constitution may be amended under Article 368. The distinction between the Constitution and the laws is so fundamental that the Constitution is not regarded as law or legis-lative Act. It is because Constitution Amendment Act can amend the Constitution that it is not law a•,d Article 368 avoids all refer-ence to law making by Parliament. As· soon as Bill is passed in cqnformity with Article 368 the Constitution stands amended in ac-cordance with the terms of the Bill. Amendment or change in certain Articles does not mean necessarily improvement.

Ral)laswami, J. expressed these views. The definition of law in Article 13(3) docs include in terms constitutional amendn~ent though it includes any ordinance, order, bye-law, rule, regulation, norilica.t:ion, custom or usage. The language of Article 368 is perfectly general and empowers Parliament to amend the Constitution without any exception whatever. If it had been intended by the Constitution maken that the fundamental righas guaranteed under Part III should be completely outside the scope of Article 368 it. !s reasonable to assume that they would have made an express proviSwn to that effect.

The expression "fundamental" does not lift the fundamental rights above the Constitution illself. In matter of constitutional amend-ment it is not permissible to assume that there will be abuse of power and then utilise it as test for finding out the scope of amending power.

The majority view in Golak Nath case was that au amendment of the Constirution pursuant to Article 368 is law within the meaning of Article 13(2), and, therefore, an amendment of the Constirution abridging fundamental rights will be void. The majority view was on the basis that there was conflict between Article 13(2) and Artit1e 368 and this basis was the result of the narure and quality of funda-mental rights in the scheme of the Constitution.

It is, therefore, to be seen at the threshold as to whether there is any conflict between Article 13(2) and Article 368, namely, whether amendment of Constitution is law within the meaning of law in Article 13(2). Article 368 provides in clear and unambiguous terms that an amendment bill after compliance with the procedure stated therein and uppn the President giving assent to such bill the Consti-tution shall stand amended in accordance with the terms of the bill. This constitutional mandate does not admit or provide any scope for any conflict with any other Article of the Constitution. This is the fundamental law. No other Artick of the Constitution has limit-ed its scope. The moment the President gilves his assent to an amendment bi:ll the amendment becomes part of the Constitution. There cannot be law before the assent of the President. Therefore, the validity of any such supposed law cannot arise. An amendment of the Constitution becomes part of the fundamental law. The legality of an amendment i!s no more open to attack than of the Constitution itself. The opening part of amended Article 368, l!i11., "An Amendment of this Constitution may be initiated" and its con-cluding part before the proviso, vi111., "The Constitutlion shall stand amended" show clearly that the whole Constitution can be amended and no part of the Constirution is excluded from the amendment. Herein lies the vital distinction between the ConstitlUtion and the ordinary law. ·

The distinction lies in the criterion of validity. The ~111idity of an ordinary law can be questioned. When it is questioned it must be justified by reference to higher Jaw. In the case of the Constitution the validity is inherent and lies within itself. The validity of cons-titutional law cannot be justilied by reference to another higher law. Every legal rule or norm owes its validty to some higher legal rule or norm. The Constitution iS the basic norm. . The Constirution

generate$ its own validity. It is valid because it exist!!. The Constitution is binding because it is the constitution. Any other law is binding only if and in so far as it is in conformity with the Cons-titution. The validity of the Constitution lies in the social fact of its acceptance by the community. The constitutional rules are themselves the basic rules of the legal system. The Constitution pre-. vails over any other form of law not because of any provision to that effect either in the Constitution or else where bug because of the underlying assumption to that effect by the community. If Parlia-ment passes law under any of the items in the Union List :bridg-ing fundamental right and also provides in that law itself that it shall not be invalid notwithstanding anything in Article 13 or Part III of the Constitution, yet the law made by Parliament will be in-valid to the extent of: its inconsistency with Part III of the Constitu-tion. It will be invalid because Arti!;le 13 occurs in the Constitution which is supreme. The impugned Act cannot enact that it will be valid notwithstanding the Constitution.The real distinction is that Constitutional law is the source of al1' legal. validity and is itself always valid. Ordinary law on the other hand must derive its validity from higher legal source, which is ultimately the Constitution. Law in Article 13(2) of the Consti-tution could only mean that law which needs validity from higher source and which can and ought ID be regarded as invalid when it comes in conflict with higher law. It cannot possibly include law which is self validating and which 1, never invalid. The definition al: law in Article 13 enum.eralles more or J.css exhaustively all forms of law which need validation from higher source and which arc invalid when they arc in conflict with the Constitution. The dcfi-nitim docs not mention constitutional amendment. In is because an amendment being the Constitution itself can never be invalid. An amendment is made if the procedure is complied with. Once the procedure is complied With it is part of the Constitution.

!'he expression "I.aw" has been used in several Articles in Part

III cl. the Constitution. These a:re Articles 17, 19 clauses (2) to (6),. 21; 22, 25, 26, 31; 33, 34 and 35. To illustrate, Article 17 states that untouchability is abol!)!hcd ap~ its practice in any form is furbiddcn. Atr;icle 17 also states that the enforcement of any disability arising out oE untouchability shall be an offence punishable iii accordance with I.aw. The word "I.aw" in Article 17 docs not mean the Consti-tution. The Constitution leaves the mat1ICr cf enforcement and punish-ment to I.aw,

The foundation. of the majority view in Golak Nlllh case that Article 13(2) takes in constitu~ law within its purview is that an amendment is legjsl.ative process and is .an exercise of legislative power. The majority relied on the decision in McCawley v. The King 24-36 S. C. Indla/73

(1920) A.C. 69! and the Bribery Commissi®er v. Pedrick Rana-singhe 1965 A.C. 172 in suppon of the view that there is no distinc-tion between ordinary legislation and constitutional amendment. The basis of the unanimous decision in Shankari Prasad case was on the distinction between legislative power and the . constituent 'power. Therefore, the majority view in Golak Nath case overruled the view in Slwnkari Prasad case. Article 13(2) expressly d·!clares that law taking away or abridging the rights conferred by Part Ill shall be void. This principle embodies the doctrine of ultra vires in written Constitution. The observation of Kania, C.J. in A. K. Gopalan v. The State of Madras 1950 S.C.R. 88 that Article 13(2) was introduced ex maiore cautela because even if Article 13 were not th~re any law abridging or taking away fundamental rights would be void to the extent of contravention or repugnancy with fundamental rights in Part Ill refers to the doctrinie of ultra vires which i5 necessary implication of our Constitution. Therefore, there is no distinction between Article 13(2) which expressly affirms the doctrine of. ultra oires and the necessary impliCation of the doctrine of. ultra llires which has been applied to every part of our Constitution.. If the express doctrine of ultra vires prevented an amendment of Part III of the Constitution contrary to its terms, equally an amendment oE other parts of the Constitution contrary to their terms would be prevented by the implied doctrine of 14/tra vires. The result would be that an amendment of the Constitution which contravened the tCll'JDS oE the -existing Constitution would be void. This would result in absurdity. That is why Article 368 expressly provides for the amendment of the Constitution.Mr. Palkhivala on behalf of the petitioner submitti:d that C90sti-tution amendment was law. within Article · 13(2) . and was void to the extent to which it contravened · the fvnd:ltncnta! rights aud Article 368 did not prevail o~er or override Article 13 for these rea-wns. Reference was made to the form of oath in the Third Schedule which uses the words "Constirotion as by law established". This is said to mean that our Constitution was originally established lif l:lw and, therefore, every amendment thereto was likewise to be establish-ed by law. Article 13(1) is also said to rover constitutionallav( be-cause though Article 395 repealed the Indian Independence Act, 1947 and the Government of India Act 1935 the constitutional laws or the Indian Princely States or some other constitutional. laws cf llritish India were in existence. Therefore, the word "Law'~ in' Article 13(2) will also include constitutional law. · The word "law" in · Article 13(2) will in its ordinary sense embrace constitutional -law, and there is no reason for reading the word "law", in restricted sense io confine it to ordinary laws. The real question i$ not whether there arc any words of limitation in Articles 36&-but whether .there arc any .

words of limitation in Article 13(2). It was amplified to mean if limitation has to be read in either .of the two Articles 368 and 13(2) there is no reason why it should be read in such way as to enable parliament to take away or abridge fundamental rights.

In Article 368 the word "law" is not used at all. Chnsequently

the language of Article 368 raises no question about the applicabi-lity of Article 13(2). It is inconceivable that constitutional laws of Indian Princely States or Constitutional laws of British India exist as constitutional laws after the coming inl!l existence of our Consti-tution. Our Constitution is the only fundamental law. All other laws which continue under our Constitution are ordinary laws. The fundamental error in including amendment of the Constitution in law under Article 13(2) is by overlooking the vital difference between the constituent and the legislative powers and in wrongly equating these powers. The definition of "State" in Article 12 includes Par-liament. Part V of the Constitution cont.ailns provisions relating to the powers of the three organs of the Union Government, Chapter II of Part V relates to the legislative power of Parliament. Under Article 79 Parliament is the Union Legislature provided fior by the Constituti'on. Therefore, law in Article 13(2) must mean ~w of Parliament functioning under Chapter II of Part. V; It cannot 111ean the Constitution itself or an amendment of the Constitution. The reason is that the Constitution with its amend=nt is the supreme authority and the three organs of the State derive their powers from this supreme authority.

The word "law" when used in relation to constitutional law

which is fundamental law and ordinary law is not mqe homonym. If the word "law" here .is not mere homonym then it is mistake to, think that all the instances. to which it . is applied must possess either single quality or single set of qualities in c0mmon. There is some general test or criterion whereby the· rules of the fundamen· tal law or the rules of the system of ordinary laws are tested and identified. When the word "law" is spoken ;111 connecti'on with rons-titutional law it cannot have the same meaning as ordinary law. It is not ~trary to use the WIOrd "law" in relation to constitutional Jaw in spite of itlS difference from ordinary law ..

Mr. Palkhivala contended that coostitutional laws o{ Princely

States and of British India prior tn our Constitution survived as· laws · in force under Article '572. Article 372 became necessary to make provision similar to section 292 of the Government of India Act, 1935 following the repeal of the 1935 Act and the Indian Indepen-dence Act, 1947. The purpose of Article 372 is to negative the possi~ bility of any existing law in India being held to be no longer in force by reason of the repeal of the. law authorising its enactment.

saving clause of the type of Article 372 is put in to avoid challenge to laws made under the repealed Constitution. The total volume of law in the then British India had the legal authority up to 14 August 1947 by reason of the Government of India Act 1935. The Govern-ment of India Act 1935 with adaptations and the Indian Indepen-dence Act 1947 preserved the authority of those laws upto 25 January 1950. In so far as it iis indisputable that the Government of India Ar.t, 1935 and the Indian Independence Act, 1947 were repealed, the re-peal of those Acts was repeal of the constitutional law represented by those Acts. By our Constitution there was repeal of all other oonsti· tutional laws operating in our country. There was repeal of "Constitu• tion" in Princely States.

distinction arises between the provisions of Constitution which are described as constitutional law and provisions of statute dealing with statute which is treated to have constitutional aspects. An example of the latter type is statute which proviides for the judicature. Mr. Seervai rightly said that the two distinct senses of constitutional law are mixed up in the contention of Mr. Palkhi-vala. In the first sense, constitutional law is applicable to provi-sion of the Constitution, and in the second sense, to law enacted under the Constitution dealing with certain classes of subject matter. Laws of the second class fluctuate. An amendment of the Constitu-tion becomes part of the Constitution itself. Mr. Scervail rightly contended that in order to show that law in Article 13(2) includes amendment of the Constitution it is also necessary tn show that the expression "laws · in force" in Article 13( 1) includes constitution amendment or the Constitution itself. It is impossible to accept the submission that the word "law" in Article 13(2) includes the Cons-titution. The Constitution itself cannot include the Constitution. It is the Constitution which continues the laws in force. Therefore, law in Article 13 is law other than the Constitution and fortiori it is other than amendment to tl1e Constitution.

In non-British territory on the Constitution coming into force the Constitution of Princely States lost its character as constitutional law in the strict sense. 'It is in that strict sense that Wanchoo, J. rightly said in Golak Nath case that on our Constitution coming into exis-tence no other constitutional law survived. Article 393 of our Cons. titution says that the Constitution may be called the "Constitution of India". The Preamble recites that the People in the ConstitucnO Assembly gave this Constitution meaning thereby the Constitution of India. Therefore, the people gave themselves no other Constitution. All other laws whatever their previous status as swict constitutional law became subordinate laws subject to the provisions of our Consti-tution and this position is clear from the language of Artiicle m .In broad sense law may include 11he Constitution and the law enacted by the legislature. There is however dear demarcation between ordinary law in exercise of legislative power and constitutional law which is made in exercise of constituent power. Therefore, power to amend the Constitution is different from the power to amend ordinary law. It was said by Mr. Palkhivala that legislative power is power to inake law and constituent power is the power to make or amend constitutional law and since law in its ordinary sense, includes constitutional law the legislative power is the genus of which the constituent power is the species. The difference between legislative and constit~~nt power in flexibk or uncontrol\ed Constitution is con-ceptual depending upon the subject matter. Dog A!Ot in England is prima facie made in exercise of legislative ,power. The Bill of Rights was made in the exercise of constituent power as modifying the existing <i>nstitutional arrangement. But this conceptual difference docs not produce different legal consequences, since the provis'ions of Dog Act inconsistent with the earlier provisions of the Bill of Rights would repeal those provisions pro tanto. In rigid or controlled Constitution the distinction between legislative power and constituent power is not only conceptual but material and vital ' in introducing legal consequences. In aontrolled Constitution it is not correct to say that legislatiye p0wer is the genus of which constituent power is the species. The queston immediately arises as to what the differ-entia is which distinguishes that species from other species of the same genus. It would be correct to say that the law making power is the genus of which leg~lative power and constituent power are the species. The differentia is found in the different procedure prescribed for the exercise of const'tuent power as distinguished from that pres-cribed for making ordinary laws. The distinction between legislative power and constituent power is vital in rig'd or controlled Consti-tution, because it is that distinction "'.hich brings ;n the doctrine that law ultra vires the Constitution is void, since ·the Constitution is tlx touchstone of validity and that no provision of the Constitution can be ultra vires.

The legislatures constituted under our Constitution have the power to enact laws on the topics indicated in Lists I oo III in the Seventh Schedule or embodied specifically in certain provisions of the Constitution. The power to enact laws carries with it the power to amend or repeal them. But these powers of legislatures do not in-clude any power to amend the Constitution, because it is the Co~sti­rucnt Assembly which enacted the Constitution and the status g11·en by Article 368 to Parliament and the State legislatures, is the status of Constituent Assembly. The distinction between the power ta

amend the Constitution and the ordinary power to enact laws is fundamental to all federal Constitution. When Parliament is engag-ed in the amending process it is not legislating. It is exercising particular power which is ;ui generi; bestowed upon it by the amend-ing clause in the Constitution. Thus an amendment of the Constitu-tion under Article 368 is constituent law and not law within the meaning of Article 13(2) and law as defined in Article 13(3)(a).

The procedure that Bill for amendment of the Constitu:ion has to be introduced in either House of Parliament and passed by both Houses does not alter the sta11us of Parliament to amend the Consti-tution as Constituent Assembly and does not assimilate it to that of the Union legislature. At this stage it may be stated that in Shankari Prasad case it was said that law in general sense may include the Constitution and the procedure of amendment is assimilated to ordi-nary legislative procedure. Assimilation of procedure does not make both the procedure same. Nor are the two separate powers to be lost sight of. The Comtituent Assembly which has summoned on 19 December, 1946 to frame Constitution was also invested after in-dependence with legislative power. It framed the Constitution as the Co1tstituent Assembly. It enacted ordinary laws as legislature. Under Article V of the American Constitution the Congress functions not as legislature but as Constituent Assembly. In Australia when Bill for amendment has to be passed by Commonwealth Parliament and then has to be submitted to the verdict of the electorate the pro-cess is not' ordinary legislative process of the Commonwealth Parlia-ment. In our Constitution when the amendment falls within the proviso to Article 368 it requires that the amenclment must be rati-tie.J by at least one half of the State legislatures and the process is radicaHy different from ordinary legislative procedure. The Union legislature acting under Chapter II of Part V has no connection with the State legislatures. Therefore, when amendment is affected under the proviso to Article 368 Parliament does not act as Union legisla-ture. The feature that in the passage of the bill for amendment of the Constitution the Hlouse of Parliament has to adopt the procedure for ordinary legislation has little bearing. If the intention of the framers of the Constitution was to leave to the Union legislature the power to effect amendments of the Constitution it would have been sufficient to insert provision in Chapter II of Part V in that behalf without enacting separate part and inserting provision therein for amendment of the Constitution.

Under clause (e) of Article 368 the Article itself can be amend-ed. Therefore, an amendment of Article 368 providing that provi-sions in Part III can be amended will be constitutional. If it was in-tended by Article 13(2) ro exclude Part III altogether from the

operation of Article 368 clause (e) would not have been enacted. The Constituent Assembly thus enacted Article 368 so that the power tD amend should not be too rigid nor too flexible. Clause ( s) of Article 368 requires an amendment to be ratified by not less than half the nti,mber of States. The title of Part XX and the opening words of Article 368 show that provision is being made for "amendment of .Ws Constitution" which in its ordinary sense means every part of the Constitution. This would include Article 368 itself. There is no limitation imposed upon or exception made to the amendments which can be made. · I~ is not permissible to add to Article 368 words. of limitation which are not there.

The initiative for an amendment of the Constitution is with Par-liament and oot with the States. bill for amendment is to be introduced in either House of Parliament. Again, bill must be passed by each House by not less than two thirds of the members present and voting, the requisite quorum in each House being lll:!jority of its total membership. In cases coming under the proviso the amendment must be ratified by the legislatures of not less rhan half the number of States. Ordinary legislative process is very differ-ent; bill initiating law may be passed by majority of members present ~nd voting at sitting of each House and at joint sitting of. House, the quorum for the meeting of either House being one tenth .of the total members of the House.

The legislative procedure is prescribed in Articles 107 to 111 read with Article JOO. Article 100 states "save as otherwise provided in the Constitution all questions at any sitting of either House or joint sitting shali be determined by majority of votes of the members pre-sent and voting". Though Article 368 falls into two parts of the Article is one integral whole as is clear from the words "the amend-ment shall also require to be ratified''. The first part of Article 368 requires that bill must be passed in each House (I) by majority of the total membership of that House and (2) by majority of not less than two thirds of the members of that House present and voting. These provisions rule out joint sitting of either House under Article 108 to resolve the disagreement between the two Hlouses. Again the majority required to pass bill in each House is not majority of members of that House present and voting as in Article 100 but majority of the total membership of each House ancl majority 10f not less than two thirds of the members of that House present and voting. These provisions are not only important safeguards when amending the Constitution, but also distinguishing features of C'.ons-tituent power as opposed to legislative power. U n<ler the first part of unamended Article 368 when bill is passed bv requisite majority of each House the bill must be presented for the President's assent.

Parliament's power to enact laws is not dependent on State legis-lature, nor can it be frustrated by majority of State legislatures. The provisions in the proviso to Article 368 for ratification by the legislatures of the State constitute radical departure from the ordi-nary legislative process of Parliament, State legislative process of ratification cannot possibly be equated with ordinary legislative pro-cess. If the bill is not ratified the bill fails. If it is ratified it is to be presented to the President for his assent. If the President assents the procedure prescribed by Article 368 comes tX> an end and the consequence prescribed comes into operation that the . Constitution shall stand amended in accordance with the bill. But the result is not law, but part of the Constitution and no court can pronounce any part of the Constitution to be invalid.

The exercise of the power of ratification by the State legislatures is constituent power and not ordinary law making power. It cannot be said that Article 368 confers constituent power under its proviso but not under the main part. If the procedure has been followed the invalidity of an amendment cannot arise.

The provisions in Article 4, 169, paragraph 7(2) of the Fifth Schedule and paragraph 21(2) of the Sixth Schedule were referred to for the purpose of showing that the word "law" is used in those. pro-visions relating to amendments ro the Constitution. It is, therefore, said that similar result will follow ih the case of all amendments. These four provisions confer on Parliament limited power of amend-ment. There are two features common to all these provisions. First, they confer on Parliament power to make law which inter alia provides for the specific class of amendments. Second .. each of these provisions states that "no such law as aforesaid shall be deemed to be an amendment of the Constitution for the purpose ot Article 368". The power to amend under any of ·these four provisions is specific power for specific amendments and not legislative power contained in the Legislative List or Residuary Legislative List.

The amendment under Article 4 follows law providing for the formation of new States and alteration of areas, boundaries and names of existing States. It is obligatory on Parliament to make amendment . of Schedules I and 4 and it is necessary to make amendments which are supplemental, incidental and consequential. In making such law in so far as it affects the State but not Union territory special procedure has to be followed.

Under Article 169 which provides for the abolition or creation of State legislative Council Parliament has power to make necessary law on resolution being passed by the State Legislative Assembly for such abolition or creation by majority of the membership

of the Assembly and by majority of not less than two thirds of the members present and voting. It Parliament makes snch law that law must make the necess~ry amendments to the Consti<tution.

Schedules 5 and 6 pmvide for the administration of the Scheduled and Tribal areas which are governed by Part X and not by Part XI by which the Union and States are governed. The Scheduleds provide mode of governance of those areas which is radically different from the Government of the Scates and the Union. Part X of the Consti-tution unlike Part XI is not "subject no the provisions of this Consti-tution". Paragraph 7 of Schedule 5 and paragraph 21 of Schedule 6 confer on Parliament power to amend the schedules by law but no special procedure is prescribed for making such law.

No question relating to those four provisions, however arises in the present case. In Article 368 the word "law" is not based at all. These four provisions for amendment deal with matters in respect of which it was considered desirable not to impose requirements of Article 368, and, therefore, it became necessary expressly to provide that , such amendments shall not be deemed to be amendments of the Constitution for the purpose of Article 368. These four provisions indicate the distinction between the ·constituent power and the legis-lative power. If the power of amendment was located in the residuary Entry No. 97 in the Union List it would not have been necessary to grant that power of amendment again in these four provisions. These four provisions indicai.: that the Constitution makers intended to con-fer on Parliament power to make amendments in the. provisio11s of the Constitution and having provided for particular procedure to be followed in respect of matters covered by those four provisions it conferred general power on Patliament to make an amendment to the other Articles after complying with the requirements of Article 368.The majority view in Golak Nath case said that Parliament could rail Constituent Assembly either directly under the residuary po·wer <>r pass law under the Residu•ry Entry to call Constituent Assem-bly for amendment of fundamental rights. Of the two views form-ing the majority one view did not express any opinion as to whether such Constituent Assembly could take away or abridge fundamental rights but the other view expressed the opinion that such Constitu· ent Assembly oould abridge fundamental rights. The majority view in Golak Nath case was that Parliament is constituted body and not constituent body and constituted body cannot abridge or take .away fundamental rights. The majority view indicates that com-tituent power was required to amend the fundamental rights.

The majority view has totally ignored the aspect that constituent ·power is located in Article 368, and, liherefore, amendment under the

Article is not law within the meaning of Article 13(2). If Parlia-ment is constituted body as was said by the majority view in Golak Nath case it would be difficult to hold that such body could bring about Constituent Assembly. The well-known principle that what cannot be done directly cannot be achieved indirectly will establish the basic infirmity in that majority view. If fundamental rights can be abridged by Parliament calling Constituent Assembly under the Residuary Entry such Constituent Assembly will be body different from Parliament and will frame its own rules of business and Article 368 cannot have any application. That will have strange and start-ling result.

In the scheme of the Constitution containing Article 368 Cons-tituent Assembly will be called extra constitutional means and oot one under the Constitution. constitution can be amended only in accordance with the process laid down in the Constitution. No other method is constitutionally possible than that indicated in the provision for amendment of the Constitution. Once the Constitution has vested the power to amend in the bodies mentioned therein that is the only body for amending the Constitution. The people who gave the Constitution have expressed how it is to be changed.

The distinction between constituent and· legislative power is brought out by the feature in rigid Constitution that the amend-ment is by different procedure than that by which ordinary laws may be altered. The amending power is, therefore, said to be re-creation of the Constituent Assembly every time Parliament amends. re-creation in accordance with Article 368.

The two decisions in McCawley v. The King Im A.C. 691 and The Bribery Commissioner v. Pedrick Ranasinghe 1965 A.C. 172 on which the majority view in Golak Nath case relied II'.) hold that amendment to the Constitiut1on is an ordinary legislative process do not support that conclusion. The difference between flexible or un-controllr.d and rigid or controlled Constitutions in regard to amend-ment is that there may be special methods of amendment in rigid or controlkd Constitution. In rigid Constitution amendment is not b1' exercise of ordinary legislative power. The power to amend is, therefore, described in rigid Constitution as constituent .power be-cause of the nature of the power. · In flexible Constitutron the pr<>-cedure for amendment i; the same as that of making ordinary law. :\ Constitution being uncontrolled the distinction between legislative-and constituent powers gets obliterated because any law repugnant to the Constitution pro tanto repeals Constitution as wa> held in McCawley case. Dicey in his Law of the Constitution (10th Ed.)

illustrates the view by his opinion that if the Dentisrs Act said any-thing contrary to the Bill of Rights which can be described as cons-titutional document the Dentists Act would prevail. In flexible or unwritten Constitution the word constitutional law is imprecise as it is used in respect of subject matter of law, e.g. law dealing wi:th the legislature. In rigid or written ConstitutiPn whatever is in the Constitution would be the law of the Constitution.

In M cCawley case the validity of the appointment of Mccawley as Judge of the Supreme Coun of Queensland was challenged as void on the allegation that section 6 sub-section (6) of the Industrial Arbitration Act of 1916 was contrary to the provisions of the Consti-tution of Queensland 1867. The Industrial Arbitration Act of 1916 by section 6 sub-section ( 6) authorised the Governor to appoint any Judge of tl1e Court of Industrial Arbitration to be Judge of the Supreme Court of Queensland and provided that Judge so appointed shall have the jurisdiction of both offices and shall hold office as Judge c>f ilie Supreme Coun during good behaviour. The sub-section further provided that Judge of the Court of Industrial Arbitration shall hold office for seven years. The Governor in Counci<l by com-mission reciting section 6 sub-section (6) appointed Mccawley who was Judge and the President of the Court of Industrial Arbitration to be Judge of the Supreme Court during good behaviour. By sec-tions 15 and 16 of the Oonstitution of 1867 the period during which Judges of the Supreme Court were to hold office was during good behaviour. The oontention was that the appointment of Mccawley under the Industrial Arbitration Act 1916 for limited period of seven years was invalid since the Act was inconsistent with the Consti-tution Act 1867 and further that the Act of 1916 could not repeal or modify the provisions of the Constirution Act.

The Privy Council held that the Legislature of Queensland had power both under the Colonial Laws Validity Act 1865 section 5 and apan therefrom under clauses 2 and 22 of the Order-in-Council of , 1859, section 7 of the Act 18 & 19 Viet. c. 54 and sections 2 and 9 of the Constitution Att of 1867 to authorise the appointment of Judge of the Supreme Court for limited period. Section 7 of the Act 18 & 19 Viet. c. 54 intended an order in Council to' make provi-sion for the government of ilie Colony and for the establishment of legislature. The Order-in-Council 1859 by clause 2 gave full power to ilie legislature of the Colony to malce further provision in iliat bee half. The Order-in-Council of 1859 by clause 22 gave the legislarure full power and auiliority from time to time to make laws altering or repealing all or any of ilie provisions of this Order in the same manner as any other laws for the good Government of the colnny.

Section 5 of the Colonial Laws Validity Act gave the legislature full power to alter the Constitution.

Section 2 of the Constitution Act of 1867 gave the legislature power to make laws for the peace, welfare and good government of the Oolony. Section 9 of the Constitution required two thirds maiority of the legislative Council antl Legislative Assembly as con-dition precedent of the validity of legislation altering the Constitution qf the Legislative Council. Section 6 sub-section (6) which authoris-ed an appointment as Judge of the Supreme Court only during the period during which the person appointed was Judge of the Court of Industrial Arbitration was found to be valid legislation. It was found that the Constitution of Queensland was flexiable as distinct from rigid Constitution. Power to alter the Constitution by ordinary law was also said to exist both in virtlUe of the Colonial Laws Vali-dity Act, 1865 section 5 and independently of that Act in virtue of dause 22 of the Order in Gouncil 1859 and sections 2 and 9 of the Constitution Act of 1867.The decision in McCawlay case shows that unless there 1.s special procedure prescribed for amending any part of the Constitu-tion tht Constitution is uncontrolled and can be amended bv the man-ner prescribed for enacting an ordinary law and therefo;e subse-quent law inconsistent with the Constitution would pro tanto repeal the Coustitution. The decision also established that Constitution largely or generally uncontrolled may contain one or more provisions which prescribe different procedure for amending the provisions of the Constitution. If this is prescribed the procedure for amendment must be strictly followed.

The legislature of Queenslaml was found to be master of its own household except in so far as its powers were restricned in special cases. No such restriction was established in the case before the Privy Council. The legislature had plenary power there. The legis-lature was not required to follow any particular procedure or to com-ply with any specified conditions before it made any law inconsistent with any of the provisions of constitutional document.

The contention of the respondent in Mccawley case was that the Constitution of Queensland was controlled and that it could not be altered merely by enacting legislation inconsistent with its Articles but tlut it could be altered by an Act which in plain and unmistakable in-tention of the legislature to alter consequently gave effect to that intention by C1perative provisions. The Judicial Committee thought this Constitution would amount to Constitution which was neither

controlled nor uncontrolled. It was not controlled because the future generation could by merely formal Act correct it at pleasure. It was said to be not uncontrolled because the framers prescribed to their successors particular mode by which they are allowed to effect cons-titutional changes. Section 22 of the Order in Council conferred· power and authority in legislature from time to time to make laws altering or repealing all or any of the provisions of the Order in Council in the same manner as any other laws for the good govern-ment of the country. The Constitution Act of 1867 was contended to enact certain fundamental organic provisions of such nature as to render the Constitutioo controlled. It was found impossible to point to any document or instruction giving or imposing on the Constitu-tion of Queensland such quality. The decision in McCawley case related to uncontrolled Constitution which gave the legislature full power to make laws except on one subject and, therefore, law made by the legislature under such Constitution could pro tanto conflict with and repeal the Constitution. That is not our Constitution.

In Ranasinghe case the validity of the appointment of Bribery Tri-bunal was challenged. The Supreme Court of Ceylon took the view that the Bribery Tribunal was not appointed by the Judicial Service Commission in accordance wicli the provisions of section SS of the Ceylon Constitution Order in Council. It was, therefore, not lawfully appointed. It was common ground that the appointment of the Bribery Tribunal was not in accordance with section SS of the Ceylon Constitution Order in Council, 1946. Section SS vested in the Judicial Service Commissioner the appointment, dismissal and disciplinary control of JudiciaU Officers, viz., Judges of lesser rank. The removal of Judges of the Supreme Court could be by the Governor General on an address of the Senate and the House of Rep~esentatives.

Section 29 of the Ceylon (Ooostitution) Order in Council provid-ed in sub-sections (1), (2), (3) and (4) as follows:-

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

(2) No such law shall-(a) prohibit or restrict the free exercise of any religion;_

(3) Any law made in contravention of sub-section (2) of this

section shall, to the extent of such contravention, be void.

( 4) In the exercise of its powers under this section Parliament

may amend or repeal any of the provisions of this Order, or of

any other Order of Her Majesty in Council in its application to the I.sland:

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

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

The Judicial Committee found that there was conflict betwe{n section 55 of the Ceylon Constitution Order and section 41*1the. Bribery Amendment Act. The Privy Council found that section (4) of the order was attracted but the requirements of section 29 had not been complied with and, therefore, the appointment of the Bribery Tribunal was invalid. The certificate of the Speaker under .the proviso to section 29(4) of the Ceylon Constitution Order was an essential part of the legislative process. There was no such certificate in the case of the legislation under which the appoinltmcnt of the impugned Tribunal was made. The Judicial Commi~ee said that .a legislature has no I".>wer to ignore the conditions of law niaking that are imposed by the regulating instrument. This restriction exists independently of the question whether the legislature is sovereign as the legislature of Ceylon or whether the Constitution is uncontrolled as happened in M cCawley case with regard to the Constitution Queensland.

The Judicial Committee said "A Constitution can, indeed, be altered or amended by the legislature, i£ the regulating instrument so provides and if the terms of those provisions arc complied with; and the alteration or amendment may include the change or abolition of these provisions. But the proposition which is not acceptable i~. thar .a legislature, once established, has some inherent power derived from the mere fact of its establishment to make valid law by the reso-lution bare majority which its own constituent instrument has s:iid shall not be valid law unless made by different type of maj()rity or by different legislative process".

It was contended that just as the legislature of the Colony of Queensland had power by mere majority voile to pass an Act that was inconsistent with the prpvisions of the existing Constitutiol). of. that Colony as oo the tenure of Judicial Office so the legislature of Ceylon had no less power to depart from the requi'rcments of section such

as section 55 of the Ceylon Omstitution, notwithstanding the wording of sections 18 and 29(4). Section 18 in effect says that legislation can be passed by majority of votes subject to the provisions in section 29(4) ri. the Constitution. The Judicial Committee said that in A..-Cawley case the legislature had full power to make laws by ma-jority except upon one subject that was not in question and the legis-lation was held to be valid because it was treated as pro tanto an alternation llf the ConstitutilOO which was neither fundamental i,,the sense of being beyond change nor so constiltUted as to require any special process to pass law upon the topic dealt with. The word "fundamental" in the sense of "being beyond change" refers to ex-press limitations as to power or manner and form of change. These words do not mean as Mr. Palkhivala contended that there are funda-mental features of the Constitution which cannot be amended.

The legislature purwrted to pass law which being in conflict with section 55 of the Order in Council must be treated if it is to .be valid;as an implied alteration of the consti~utional provisions about the appointment of judicial officers. Such alterations could only he made by laws which complied with the special legislative procedure laid down in section 29( 4). The provisions in section 29( 4) were found not to confer on the Ceylon legislature the general power ti> legMature so as to amend the Constitution by ordinary majority res<>-lution which the Queensland legislature was found to have under sec-tion 2 of the Queensland Constitution Act.

Rantuinghe case shows that Parliament which by its own Act imposed procedural conditions upon the legislative process is no more limited or non-sovereign than legislature which has such conditions imposed on it by the constitutional instrument. constitutional ins-trument which places procedural restraints upon the forms of law making places the legislature under compulsion to obey them. In McCawley case it was said that the Colonial Legislature with plenarv powers could treat the constitutional document which defined its powers as if it were Dog Act. This proposition as result of Ranasinghe case is narrowed to the extent that where provisions for procedural special majority are laid down in the constitutional docu-ment they cannot be treated as provision in the l)()g Act might be.

These decisions indicate the distinction between procedural and .substantive limitations on the legislative process. In Ranafinghe case the· issue was one of personal liberty in the sense that the respondent claimed the right not to be imprisoned except by valid law. No question was raised about the right of religion protected by sections 29(2) and (3) of the Ceylon Constitution. It was also not the respon-dent's case there that any provision was unamendable. It would be

unusual for the Privy Council to say by way of an obiter dictum that provision was not amendable contrary to the respondent's submis-sion. Though the Privy Council did nl>o use the words "legislative and constituent" in distinguishing ordinary law from law amending the Constitution, the Privy Council in referring to. the Ceylon Consti-tution instrument showed that the familiar distinction is the basis of the judgment.

The Privy Council is dealing with section 29 took note of the special heading under which section 29 appears in the Constitution. That special heading is "legislative power and procedure". The open-ing words of section 29 are that subject to the provisions of this order Parliament shall have powers to make laws. These are similar to the opening words in Article 245 of our Constitution. Section 18 of the Ceylon Constitution prescribes the ordinary legislative proce-dure for making laws by bare majority unless otherwise provided for by the Constitution, which I.< to be found in section 29( 4) of the Ceylon Constitution. Our Constitution in Article 100 makes an identical provision for ordinary legislative procedure. Section 29(2) confers rights of freedom of religion and section 29(3) states that no laws shall be made prohibiting or resoricting such freedom. Part III of our Constitution contains among other fundamental rights, rights to freedom of religion. Section 29(3) expressly makes laws in con-travention of section 29(2) void to the extent of contravention. Article 13(2) of our Can,titution expressly makes law which takes away or abridges fundamental rights void to the extent of the QC>n!'ravention. Section 29( 4) of the Ceylon Constitution dealing with the amend-ment of the Constitution does not expressly make void law amend-ing the Constitution.

It follows from McCawley case and Ranasinghe case that legis-lature has no power to ignore the conditions of law making imposed upon it which regulate its power t.o make law. The Ceylon legisla-ture had no general power to legislate so as IKl amend its general· po-wer by ordinary majority resolution such as Queensland legislature was found to have under section 2 of the Queensland Constitution. Pe>ce, order and good government in sectibn 29(1) of the Ceylon Constitution is not the same as amendment contemplated in section 29(4) of the Ceylon Constitution. In Ranasinghe case the Judicial Committee referred to the social compact. The compact is this. The inhabitants of Ceylon accepted the Ceylon Constitution on the foot-ing that the various rights conferred, liabilities imposed and duties prescribed under the law cannot be altered in the ordinary course of legislation by bare majority. But if all these were to be changed then such change could only be made under the strongest safeguard of the amending process which in the case of Ceylon was not less

than two-third of the absolute membership. These rights arc the solemn compact. These valuable rights are conferred on the people. Under ordinary law by ordinary majority they cannot be taken away.

The absence of an express provision in section 29(4) of the Cey-lon Constitution that an amendment of the Gmstitution in contraven-tion of the terms of that sub-section shall be void need not support the conclusion that such an amendment was valid. Section 29(1) of the Ceylon Constitution is expressed to be "subject to the provisions of this Order" and any power under section 29(4) is expressly subject to the proviso there. The Privy Council held that the opening words of section 29 introduced into the Constitution of Ceylon the necessarily implied doctrine of ultra virefi· The proposition will apply directly to the same opening words of our Article 245. The Privy Council accepted the distinction made in McCawlay case between controlled and uncontrolled Constitutions by emphasising the observation in McCawley case with reference to section 9 of the Queens-land Constitution. The description of section 29(2) of the Ceylon Constitution as an entrenched provision means that it can be amended bun only by special procedure in section 29(4). That is the meaning of the word "entrenched". This mean-ing alone is consistent with the clear language of the amending power and also with the decision. Section J:l( 4) docs not limit the sove-reignty of the Ceylon legislature because the legislature can always pass the amendment after getting tw<>-thirds majority and the certi-ficate.

C'..ounsel for the respondent in Ranasinghe case stated that there was no limitation except the procedure and even that limitation could be removed by amendment complying with sub-section ( 4). The Privy Council affirmed that position. There is nothing to prevent by ap-propriate amendment deletion of section 29( 4) of the Ceylon Cons-titution which would then empower Parliament to achieve the power to amend by an ordinary majority. Section 29(1) is not legislative power alone but composite power when read along with section 29( 4) in the context of the Ceylon Constitution. It includes both legislative and constituent power. Sub-sections ,(2) and (3) of section 29· ace not. the grant of power but limitation on power. Its terms show that limitation is at any rate on the legislative power of enacting laws contrary to sub-sections (2) and (3) ,of sectibn 29. If sec-tion 29(1) is composite legislative and constituent power and sub-section (2) and (3) arc restraint on legislative power the cons-tituent power under sub-section ( 4) remains unaffected. The seqni· ter is that section 29( 4) is consisrcnt ooly with the view that so far as amendment of sub-sections (2) and (3) is concerned amendment is permited and there is no limitation on constituent power under section 29( 4). The Privy Council took the widest view of the amend-ing power. In fact the narrower view was not argued. 2S-36 S. C. India/73

Our Constitution in Article 13(2) by its express declaration with reference to law and the State widely defined has no higher dlicacy in rendering law in contravention of its terms void than the opening words of Article 245 have in rendering Jaw void in contravention of term mentioned therein. Therefore, in treating Article 13(2) as having that effect in regard to constitutional amendment the majority judg-ment in Golak Nath case was inept. In rejecting the distinction bet-ween legislative and constitutent powers the leading majority view in Gola!( Nath case was induced by the absence of the use of the labels but the same concept.- were clearly indicated by the Privy Council by wholly describing the characteristic features of legislative and consti-tuent powers.If Article 368 had begun with non-0bstantc clause it could not have been said that amendment under Arti<:le 368 would be law within the meaning of Article 13(2). The Attorney General rightly said that there is no non-0bstante clause in Arti<:le 368 because of the quality of amending power and because the amending power is constituent power and not ordinary legislative power. This is the position of the amending clause in written Constitution. When the power under Article 368 is exercised Parliament acts as recreation of Constituent Assembly. Therefore, such power cannot be restricted by or widened by any other provi.<ion. As soon as an amendment is made it becomes part of the Constitution. An amendment prevails over the Article or Articles amended. The fact that Article 368 confers constitutent powers is apparent from the special conditions prescribed in the Article. Those conditions are different from ordinary Jaw making process. Article 368 puts restraints on the ordinary law making process and thus confers constituent power. The Constituent Assembly was fully aware that if any limitation was to be put on the amending power the limitati<Jn would have to be expressly provided foi.- Arti<;Je 305 .,f the Draft Con-stitution provided reservation of seats for certain sections of people in the legislature for 10 years. This reservation was not accepted by the Constituent Assembly. This shows that if the Drafting Committee or the Constituent Assembly wanted to exclude fundamenal rights from the operation of Article 368 corresponding to Article 304 jn the Draft Constitution they could have expressly done so.

In Ghulam Sarwar v. Union of India (1967 2 S.C.R. 271 it was $aid there was distinction between deprivation of fundamental rights by force of constitutional provision itself and such deprivation by an order made by President in exercise of power conferred on him under constitutional provision. The dissenting view in Ghulam Sarwar case was that an order of the President was not law within the meaning of Article 13(2). In Mohd. Yakub v. State of fammu & Kashmir (1968) .2 S.C.R. 227 the majority view of the Constitution Bench was that an

order of clie President under Article 359 was not Jaw within the mean-ing of Article 13(2). There is no distinction between Article 358 ~nd Article 359(1). Article 358 by its own force suspends the fundamental rights guaranteed by Article 19. Article 359(1) on the other hand does not suspend any fundamental rights of its own force but it gives force to order by tbe President declaring suspension of tbe enforcement of any fundamental right during the period of emergency. In Mohd. Y akub case it was said that it could not mean tha.t an order under Article 359(1) suspending the enforcement of particular fundamental right had still to be tested under· the vary fundamental right which it suspended. Mohd. Yakttb case establishes that tbe expression "law" in Article 13(2) is not all embracing in spite of the exclusive definition of law in Article 13(3) (a).

The word "law" appears in various Articles of our Constitution but not in Article 368. The reason is that the power under Article 368 is not power to make ordinary laws under the Constitution but is the constituent power. There could be no law within tbe meMing of Article 13(2) at any stage before the amendment became part of the Constitution under Article 368. There is no hiatus between an amend-ment being law and thereafter part of tbe Constitution. Immediate· ly upon the passage of the Bill for tbe amendment the Constitution stands amended.The historical background of Article 13(2) throws some light on the question as to whether Article 13(2) prevails over Article 368. On 17 March, 1947 tbe Constitutional Advisor Sir B. N. Rau had addressed letter to the members of Central and Provincial legislatures. ques-tio1U1aire was annexed to that letter. Question No. 27 was "What provi-sions should be made regarding amendments to the Constitution". note was appended to that question which will be found in Shiva Rao Framing of India's Constitution referred to as Shiva Rao Vol. II pp. 44~451. The methods of amendment of Constitution in the United Kingdom, Canada, Australia, United States of America, Switzerland and Ireland were elucidated in that note. The note also drew attention that the fact that in various Constitution express limitations were put on amending certain provisions of tbe Constitution. The portion of the note relating to the Constitution of Australia indicated such limitations.

The draft report of the sub-Committee on fundamental rights dated 3 April 1947 contained an annexure which dealt with funda-mental rights. See Shiva Rao Vol. II p. 137 seq. Clause 2 of the an-nexure was as follows :

"Any law or usage in force within tbe territories of the Union im-mediately before the commencement of this Constitution and anv law which may hereafter be made by the State inconsistent witb

the provisions of this Chapter/Constitution shall be void to the extent of such inconsistency".

The Constitutional Adviser suggested that the word "Constitution" was preferable to the word "chapter" because the entire Constitution was to prevail over law.

On 23 April, 1947 the Advisory Committee on Fundamental Rights presented an interim repon addressed to the President of the Con. f'tituent Assembly containing an a.nnexure providing for justiciable fundamental rights. See Shiva Rao Vol. II pp. 294-296 seq. Clause 2 of the Annexure to that repon was as follows :

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

Clause 2 of the annexure to the interim report was discussed in the Constituent Assembly on 29 April, 1947. Shri K. Santhanam moved an amendment to clause 2. The amendment was as follows : In clause 2 for the words "nor shall the Union or any unit make any law taking away or abridging any such right" the following be substituted: "Nor shall any such right be taken away or abridged except by an amend-ment of the Constitution". The amendment was accepted as will ap-pear in Constituent Assembly Debates Vol. III p. 416.

In October, 1947 the Draft Constitution was prepared by the Con-stitutional Advi:SOr. Clause 9(2) of the said Draft Constitution which later on corresponded to Anicle 13(2) of our Constitution was as follows:

"Nothing in this Constitution s)lall be taken to empower the State to make any Jaw which cunails or taking away any of the right~ conferred by Chapter II of this Pan except by way of amendment of this Constitution under section 232 and any law made in contra-vention of this sub-section shall, to die extent of the Contraven-tion, be void''.

It will be seen that clause 9(2) in the Draft Constitution included the qualification "except by way of amendment of the Constitution under 6C(:tion 232". Clause 232 in the Draft Constitution prepared by the Constitutional Advisor became Article 304 in the Constitution pre-pared by the Drafting Committee and eventually became Article 368 of our Constitution. In Shiva Rao, Vol. III p. 325 it appears that the Drafting Committee on 30 October, 1947 at meeting gave note

forming the minutes of that meeting that clause 9(2) should be revis-ed as follows :-

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

No reason is recorded in these minutes as to why the resolution adopted by the Constit!Uent Assembly by passing Shri Santhanam's amendment was disregarded. No indication was given in the forwarding letter of Dr. Ambcdkar in the Note appended thereto as to why the amendment of Shri Santhanarn which had been accepted by the Constituent Assembly was deleted. Nor docs the Draft Constitu-tron indicate either by sidelines or in any other manner that the deci-sion of the Constituent Assembly had been disregarded.

This history of the formation and framing of Article 13(2) shows that the intention of the Constitutent Assembly was that Article 13(2) does not control the Article relating to the amending of the Constitu-tion. It must be assumed that the Drafting' Committee consisting of eminent men considered that an expres.< exclusion of the amending Article from the operation of the clause corresponding to Article 13(2) was u=cssary and the fear that that Article would cover the amend-ing Article was groundless. It also appears that no discussion took place after the Draft Constitution had been presdlted to the Constituent Assembly by Dr. Ambcdkar o~ the deletion or disregard of Shri Santha· nam's amendment. The history of Article 13(2) shows that the Con-stituent Assembly clearly found that it did not apply to an amendment of the Constitution.

The distinction between constitutent and legislative power in written Constitution is of enormous magnitude. No provision of the C..onstitution can be declared void because the Constitution is the touch-stone of validity. There is no touchstone of validity outside the Con-stitution. Every provision in controlled Constitution is essential or So thbught by the fr~ers because of the protection of being amendable only in accordance with the Constitution. Every Article has that protec-tion. The histnrical background of Article 13(2) indicates that the Constitution-makers dealt separately with legislative power by provid-ing for the same in Part XI and entrusted the constituent power to authoritic$ mentioned in Article 368 and that authority has the same power as the Constituent Assembly because it has not put any fetter upon it. The draft Article 305 which provided for limitation as to time for amendment of certain matters was eventually d~ted. If the framers of the Constitution wanted to forbid something they .would say so.

The vitality of the constituenr power not only indicates that the Constitution is in the words of Maitland the suprema potestas but also the fact that the amending power is put in separate Article and Part of the Constitution establishing that it deals with topic other than legislative power and the power is meant to be exhaustive leaving nothing uncovered. The vary fact that amending power is not put in any legislative power or is not attached to subject which is the subject matter of legislative power leaving aside the four sets of provisions, namely, Articles 4, 169, paragraph 7 Schedule 5 and paragraph 21 Schedule 6 containing specific power of amendmenr shows that that amending power was meant to be exhaustive and plenary. If power of amendment without any express limitation was given it was because legal constitutional way of bringing change in the Constitution was desirable or necessary. Otherwise there would be no legal way of effecting the change, It cannot be attributed to the framers of the Constitution that they intended thar the Constitution or any part of it could be changed by unconstitutional or illegal methods.If an amendment of the Constitution is made subject to Article 13 (2) the necessary conclusion then is that no amendment of the Consti-t11tion is possjble. The opening words of Article 245 which deals with legislative power indicate that any law made under Article 246(1) read with List I of the Seventh Schedule is subject to the limitations on legislative power imposed by all the Articles in the Constitution. These limitations cannot be altered or amended in exercise of legislative power, if the power of amendment is ..aid to be located in the Residuary Entry 97 in List I. The history of residuary power in the Government of India Act, 1935 whose scheme was adopted in the Constitution shows that the topic of amendment was not only present to the mind of the Constitutent Assembly but also that the Constituent power could not reside in the residuary power.

The conclu.ions on the question as to whether Article 13(2) over-rides Articles 368 are these. Article 13(2) relates to laws under the Constitution. Laws under the Constitution arc governed by Article 13 (2). Article 368 relates to power and procedure of amendment of the Constitution. Upon amendment of the Constitution the Constitution shall stand amended. The Constitution is self validating and self cxo. cuting. Article 13(2) does not override Article 368. Article 13(2) is not fundamental right. The Constitution is the touchstone. The constituent power is sui generis. The majority view in Gola!{ Nath case that Article 13(2) prevails over Article 368 was on the basis that there was no distinction between constituent and legislative power and. an amendment of the Constitution was law and that such law attracted the opening words of Article 245 which in its turn atiractcd the provi-sions of Article 13(2). Parliament took notice of the two conflicting

view$ which had been taken of the unamended Article 368, took notice of the fact that the preponderating judicial opinion, namely, the deci-sions in Shankari Prasad case Saiian Singh case and the minority views of live learned Judges in Golak Nath case were in favour of the view that Article 368 contained the power of amendment and that power was the constituent power belonging to Parliament. Wanchoo, J~ rightly said in Golak Nath case that the power under Article 368 is constituent power to change_ the fundamental law, that is to say, the Constitution and is distinct from ord.inary legislative power. So long as this distinction is kept in mind Parliament will have power under Article 368 to amend the Constitution and what Parliament does under Article 368 is not ordinary law making which is subject to Article 13(2) or any other Article of the Constitution. This view of W anchOO, J. was adopted by Parliament in the Constitution 24th Amendment Act which made explicit that under Article 368 Parliament has the consti-tuent power to amend this Constitution.

In order to appreciate and assess Mr. Palkhivala's other contention of implied and inherent limitations on the amending power, it is neces-sary to find out the necessity and importance of die amending power to arrive at the true meaning of the expression "amendment".

Mr. Palkhivala made these submi.s.<ions. The word "amendment" mea;1s on the one hand not the power to alter or destroy the essential features and on the other there are inherent and implied limitations on the power of amendment. It is imperative to consider the consequences of the plea of limited power and also of the pica of limitless power. The test of the true width of power is not how probable it is that it may be exercised, but what can possibly be Jone under it. The hope and expectation that it will never be used is not relevant. Reliance is placed on the observations in Maxwell on the Interpretation of Statutes, 12th Ed. (1969) pp. 103-106 that it is important to consider the effect• or consequences which would result from it, for they often point out the real mean.ing of the words, before adopting any proposed construc-tion of passage susceptible of more than one meaning. The reasonablc-ncis of the consequences which follow from particular construction on the one hand and the unreasonable result on the other are the two alternatives in the quest for the true intention of Parliament. Craw-ford Construction uf Statutes (1940 Ed.) pp. 286-290 was referred to for the proposition that where the statute is ambiguous or susceptible to more than one meaning, the construction which tends t'I make the statute unreasonable should be avoided. Uncertainty, friction or confu-sion on construction is to be avoided becall,!C preference is to be given to the smooth working of the statute. The Court adopts which is jmt reasonable and sensible rather than that which is none of these things.

It is not to be presumed that the legWarure intended the legislation to produce inequitable results. Usurpation of power contrary to the Con-stitution is to be avoided,

Reliance was placed by Mr. Palkbivala on American Jurisprudenc~ 2d. Vol 16 Article 59 at pp. 231-232, Article 72 at p. 251, Article 287 at pp. 270-71 and Article 88 at pp. 273-74 in support of these propositions. First, questions of constitutional construction are in the main governed by thc same general principles which control in ascertaining the me'dn-ing of all written instruments particularly statutes. External aids or arbitrary rules applied to the construction of Constitution are of uncer-tain value and should be used with hesitation and circumspection. Second, Constitutions are general and many of the essentials with which Constitutions treat are impliedly controlled or dealt with by them and implication plays very important part in constitutional construction. What is implied is as much part of the instrument as what is express-ed. Third, Court may look to the history of the times and examine the state of things existing when the Constitution was framed and adopted. The Court should look to the nature and object of the parti-cular powers, duties and rights in question with all the light and aid& of the contemporary history. Fourth, proceedings of conventions and debates are of limited value as explaining doubtful phrases. Similarly, the opinions of the individual members are seldom considered as of material value.

Mr. Palkhivala said that the word "amend" may have three mean-ings. First, it may mean to improve or bettJcr to remove an error, the quality of improvement being considered from the stand point of the basic philosophy underlying the Constitution. Second, it may mean to make changes which may not fall within the first meaning but which do not alter or destroy any of the basic essential or any of the essential fcarures of the Consti~tion. Third, it may mean to make any changes in the Constitution including changes falling outside the second mean-ing. The first meaning was preferred: The second was said to be pos-sible construction. The third was ruled out.The crux of the matter is the meaning of the word "amendment" The Oxford Dictionary meaning of the word is to make professed im-provements in measure before Parliament; formally, to alter in detail, though practically it may be to alter its principle, so as to thwart it. The Oxford Dictionary meanings are also alteration of bill before Parliament; clause, paragraph, or words proposed to be substituted for others, or to be inserted in bill (the 'result of the adoption of which may even be to dcfeam the measure). In Words and Phrases Permanent Edition, Volume 3 the meaning of the word "amend" and "amend-ment" arc change or alteration. Amendment involves an alteration or

if""•,...,_'

change, as by addition, taking away or modification. broad defiru-tion of the word "amendment" ;vill include any alteration or change. The word "amendment" when used in connection with the Constitu-tion may refer to the addition of provision on new independent subject, complete in itself and wholly disconnected from other provi-sions, or to some pai:ticular article or clause, and is then used to indi-~ an addition to, the striking out, or some change in that particular article or clause.

The contention that the word "amendment" iq Article 368 should bear limited meaning in view of the expressioo "amend by way of addition, variation or repeal any of the provisions of this Schedule" occurring i.n paragraphs 7 and 21 in Schedules 5 and 6, is unsound for the following reasons.

First, the power of amendment conferred by the four pravisions, namely, Article 4 read with Articles 2 and 3, Artie! ! 169, paragraphs 7 and 21 in Schedules 5 and 6 is limited power. It is limil:ed to specific subjects. The exercise of the power of amendment under those four provisions, if treated by Articles themselves,. is an uncontrolled power since the power can be exercised by an ordinary law. But as part of the Constitution the power is subordinate power because these Arti-cles themselves are subject to the amending provisions of Article 368. Article 368 is the only provision of the Constitution which provides for the amendment of this Constitution which means the Constitution of India and every part hereto. It may be mentioned that in construing Article 368 the title of the part "Amendment of the Constitution" is an important aid to construction. The marginal note which speaks of the procedure of amendment is not complete by itself because the procedure when followed results in the product, namely, an amendment of the Constitution which is not only matter of procedure.

Second, these four provisions which are in the same terms, namcl y, "no such law shall be deemed to be an amendment of this Constitution for the purpose of Article 368" show that but for these terms the ;amendment would have fallen within Article 368 and was being taken out of it. This is an important consideration particularly in connection with Schedules 5 and 6 which provide that Parliament may, from time to time by law, amend by way of addition, variation or repeal my of the provisions of this Schedule. These provisions show that an amendment by way of addition, variation or repeal will also fall within the amendment of the Constitution provided for in Article 368 but is being taken out of Article 368. This express exclusion contains intrinsic evidence that the meaning of the word "amendment" in Article 368 includes amendment by way of addition, alteration or repeal.Third, paragraphs 7 and 21 in Schedules 5 and 6 which provide that Parliament may from time to time by law, amend by way of addi-tion, variation or repeal indicate the necessity of amendments from time to time. The expression "by way of" does not enlarge the meaning of the word "amendment" but clarifies. The expression "by way of" shows that the words addition, variation or repeal are substitutes of the word "amendment" and are forms of intention. The whole Schedule cannot be repealed either by paragraph 7 or by paragraph 21, because Arti-cle 244 provides for the administration of Scheduled Areas and tribal areas on the applica,tion of the two respective Schedules. The words "from time to time" also indicate that because of subject matter amend-ments may be from time to time. The history behind the two Sche-dules originates in section 91 and 92 of the Government of India Act. 1935 dealing with excluded areas and partially excluded areas.

Fourth, reference was made to section 9(1)(c) of the India Jn. dependence Act 1947 which empowered the Governor General to make omissions from, additions to and adaptations and modification to the Government of India Act, 1935. The Government of India Third · Amendment Act 1949 amended section 291 of the 1935 Act and em-powered the Governor General to make such amendments as he con-$iders necessary whether by way of addition, modification or repeal. It was, therefore, said that when our Constitution did not use the cxpres-sicm "by way of addition, modification or repeal" the word "amend-ment" in Article 368 will have narrower meaning. The expression "amendment" has been used in several Articles of the Constitution. Thcie are Articles 4(1) and (2), 108(4), 109(3), and 4, 111, 114(2), 169(2), 196(2), 198(3) and (4), 200, 201, 204(2), 207(1), (2), 240(2), 274(1), 304(b) and 349. In every case amendment is to be by way of variation, addition or rqpeal. Again, different expression have been used .in other Articles. In Article 35(b) the words ate alter, repeal. In Article 243(1) the words are repeal or amend. In Article 252(2), the expression is amend or repeal. In Article 254(2) proviso the words are add to, amending, variation or repeal. In Article 320(4) the words are such modifications whether by way of repeal or amendment. In Arti-cle 372(1) the words are altered or repealed or amended. In Article m (2) the words are such adaptations and modifications by way of repeal or amendment. In Article 392(1) the expression is such adaptations by way of modifica6on, addition or commission. Again, in Article 241(2) the words are modification or exceptions. In Article 364 the words used are exceptions or modifications. In Article 370(l)(d) and (3) the words arc modifications and exceptions. Again, in Schedule 5 para.. graph 5(1) and Schedule 6 paragraphs 12(a), (b), 19(l)(a) the words used are exceptions or modifications. Modifications in Article 370(1)> (d) must be given.the widest meaning in the context of Constitution

and in that sense it includes an amendment and it cannot be limited to such modifications as do not make any radical transformation.

The several Constitution Amendment Acts show that amendments to the Constitution arc made by way of addition, substitution, repeal. The Attorney General is right in his submission that the expression "amendment of this Constitution" has clear substantive meaning in the context of written Constitution and it means that any part of the Constitution can be amended by changing the same either by variation, addition of repeal. ·

The words "Amendment of this Constitution may be initiated" and the words "Constitution shall stand amended in accordance with the terms of the Bill" in Article 368 indicate that the word "amend-ment" is used in an unambiguous and clear manner. The Attorney General said that our Constitution is not the first nor is the last one to u:>'!! the word "amendment". The American Constitution in 1787 used. the word "amend". Several Constitutions of other countries have used the word "amend". The word "amend" is used in Constitution to mean any kind of change. In some Constitutions the words alteration or revision have been used in place of the word amend or along with the word amendment. Some times alteration and revision of the Con-stitution arc also spoken of as amendment of the Constitution.

Constitutional provisions are presumed to have been carefully and deliberately framed. The words alterations or amendments, the words amendments or revisions, the words revision and alteration arc used together to indicate that these words have the same meaning in relation to amendment and change in Constitution.

The qieaning and scope of amending power is in the object and necessity for amendment in written. Constitution. •.

The various amendments which have already been carried out to our Constitution indicate that provisions have been added, or varied or substituted. The Attorney General gave two correct reasons for ' the object and necessity of the power of amendment in written Constitu-tion. First, the object and necessity of amendment in written Con-stitution means that the necessity is for changing the Constitution in an orderly manner, for otherwise the Constitution can be changed only by an extra constitutional method or by revolution, Second, the very object of amendment is to make changes in the fundamental law or organic law to make fundamental changes in the Constitution, to change the fundamental or the basic principles in the Constitution. Otherwise there will be no necessity to give that importance to the high amending power to avoid revolution.

1he object of amendment is to see that the Constitution is prescrv· ed. Rebellion or revolution is an illegal channel of giving expression to change. The "con.sent of the governed" is that each generation has right to establish its own law. Conditions change. Men Change, Op-portunities for corresponding change in political institutions and prin-ciples of Government therefore arise. An unamendable Constitution was the French Constitution which by an amendment to the Constitu-tion adopted in 1884 declared that the National Assembly shall never entertain proposal for abolition of the republican form of Govern-ment. The United States Constituti!)ll provided that no amendment could be made prior to 1808 affecting the First and Fourth Clauses of section 9 of Article 1 relative to .the prohibition of the importation of slaves, and that no State without its consent shall be deprived of equal suffrage in the Senate. These are examples of limiting the sovereign power of the people to change the Constitution.

An unarnendable Constitution is said to be the worst tyranny of time. Jefferson said in 1789 that each generation has right to deter-mine law under which it Lives. The eartlh belongs in usufruct to the living; the dead have neither powers nor.rights over it. The machinery of amendment -is like safety valve. Ir should nor be used with tbo great faciliry nor should be too difficult. That will explode and erode the Constitution.

Most Constitutions are rigid in .the sense that they are amendable only by different process than t!hat by which ordinary laws may be 'lltered. Thus they distinguish cl.early between the constituent power :and the legislative power, each being exerc~ble by different organs according to different processes. Chief Justice Marshall said that the -0pponents of change want changes just as much as any one else. They want however to determine what the 'changes shall be.

Amendment is form of growth of the Constitution inasmuch_ as amendment means fundamental changes. The Constitution devises special organs or special methods to amend or change the fundamental principles thar cre,,.te the Government. The methods of amendment may be by ordfuary law making body as in Great Britain or by the ordinary law making body with special procedure or. unusual majority or loy special organs of government created for the purpose such as constitutional convention or by the electorate in the form af referendum or cof initiating referendum. In case written Constitution makes no provision for amendment it is usually- held that the national law making body by ordinary procedure may amend the Constitution. If Constitution provides the method of amendment that method alone is legal. Any other method of amendment would be revolution. The

KESAVANANDA ti. KJ!RALA (Ray, J.)

deliberative and restrictive processes and procedure ensure change in the Constitution in an orderly fashion in order ro give the expression to social necessity and to give permanence to the Constitution.

The people expressed in the Preamble to our Constitution gave the Constitution including the power ~o amend the Constitution to the bodies mentioned in Article 368. These bodies represent the people. The method to amend any part of the Constitution as provided for in Article 368 must be followed. Any other method as for example conven-ing Constituent Assembly -or Referendum will be extra constitutional or revolutionary. In our Constitution Article 368 restricts only rhe procedure or the manner and form required for amendment J:me not the kind or the character of the amendment that may be made. There are no implied limitations to the amending powet_ The Attorney General summed up pithily that tho Constitution Acts not only for the people but on the people.The Attorney General relied on several American decisions in sup-port of these propositions. First, the word "amendment" does not mean improvement. The view in Livermore v. Waite 102 Cal. 118 of single learned Judge that amendment means improvement was not accepted in Edwards v Lesseur South Western Reporter Vol. 33, p. 1130. Second, ratification by people of States would be void when federal amendment proposed by Congress is required to be ratified by the legis-latures of the States. Ex-pa.rte Dillon Federal Reporter No. 262 p. 563. The legi<lature is mere agency for ratification of praposed amend-ment. Ex-parte Dillon did not accept the view of the learned single· Judges in Livermore v Waite that amendment means only improve-ment. Third, the argument that the word "amendment" carries its own Jimitatioll5 regarding fundamental principles or power of State or con-trol of the conduct of the individuals by devising method .of referen-dum by State legislatures is adding new method of amendment. This is not permissible. Feigenspan v Bodine 264 Federal Reporter 186. The only method of amendment is that prescribed by the Constitution. The theory of referendum by State legislatures is not valid. Fourth, the assumption that ratification by State legislatures will voice the will of the people is against the prescribed method of amendment and grant of a,uthority by the people to Congress in the manner laid down in Article V of the American Constitution. It is not the function of Courts or legislative bodies to alter the method which the Constitu.tion has fixed. Ratification is not an act of legislation. fo derives its authe>-rity from the Constitution. Hawke v Smith 253 U.S. 221; Dillon Y Gloss 256 U.S. 358, Leser v Garnett 258 U.S. 130. Fiftli, the powet of amendment extends to every part of the Constitution. In amending the Constitution the General Assembly acts in the character and capacity .,[ . convention expressing the irupreme will or the sovereign poople and.

is unlimited in its power save by the Constitution. Ex-parte Mrs. D. C. Kerby American Law Reports Annotated, Vol. 36, p. 1451. Sixth, the argument that amendments which touch rights of the people must be by convention is rejected by Supreme Court in American Article V of the American Constitution is clear in statement and meaning and con-tains no ambiguity. Where the intention i.'l clear there is no room for construction. Rhode Island v Palmer 253 U.S. 350; U.S. v Sprag11e 282 U.S. 716. Seventh, principles of the Constitution can be changed under Article V Schneiderman v United States of America 320 U.S. 118. Eight, the Constitution provides the method of alteration. While the procedure for amending the Constitution is restricted here is no restraint on the kind of amendment that may be made. W hiteh11ll v Elkins 389 U.S. 54.

Except for special methods of amendment in rigid or controlled Cowtimtion although the methods may vary in different Constitutions and except for express limitations, if any, in rigid or controlled Con-stitutions, the meaning and scope of the amending power is the same in both the flexible and rigid forms.

The flexible Constirution is one under which every law of every description can be legally changed with the same case and in the same manner by one and the same body. Laws in flexible Constitution .are called constitutional because they refer to subjects supposed to affect the fundamenal inst.1'tutions of the State, and not because they are legal-ly more sacred or difficult to change than other laws.

rigid Constitution is one under which certain laws gencrally known as cowtitutional or fundamental laws cannot be changed in the same manner as ordinary laws. The rigidity of the Constitution con-sists in the absence of any right of the legislatures when acting iii its ordinary capacity to modify or repeal definite laws termed constitu-J:ional or fundan1ental. In rigid Constitution the term "Constitution" means particular enactment belongi]Jg to the Articles of the Constitu-tion which cannot be legally changed with the same ease and in the same manner as ordinary laws.

The special machinery for constitutional. amendment is the limita-tion of the power of the legislature by greater law than by the !aw of the ordinary legislation. The Constituent Assembly knowing that it · will disperse and leave the actual business of legislation to another bodv, attempts to bring into the Constitution that it pro~ulgates as many guides to future action as possible. It attempts to arrange for the "re-creation of constituent assembly" whenever such matters are in future to be considered, even though that assembly be nothing more than the ordinary legislature acting under certain restrictions. There may be some elements of the Constitution which the constituent assembly wants

to remain unalterable. These elements are to be distinguished from the rest. The Fifth Clause in the United States Constitution is that no State without its own consent shall be deprived of its equal suffrage in the Senate. The Attorney General rightly said that just as there are no implied limitation in flexible Constitutions similarly there are no im-plied limitations in rigid Constitunion. The difference is only in the method of amendment. Amendment can be made by ordinary legisla-ture under certain restrictions, or by people through referendum or by majority of all the units of federal State or by special convention.

In rigid Constitution the legislatures by reason of their well matured long end deliberate!iy formed opinion represent the will of the undoubted majority. But even such will can be thwarted in the amend-ment of the organic law by the will of the minority. In ~ase where the requisite majority is not obtained by the minority thwarting an amend-)nent, there is just as much danger to the State from ;evolution and violence as there is from what is said to be the caprice of the majority. The safeguards against radical changcy thus represent better way alld natural way of securing deliberation, maturity and clear consciousness of purpose without antagonising the actual source of power in the democratic state.

The term "amendment" connotes definite and formal process of constitutional change. The force of tradition and custom and the judi-cial interpretation may all affect the organic structure of the State. These processes of change are the evolution of Constitution.

The background in which Article 368 was enacted by the Consti-tuent Assembly has an important aspect on the meaning and scope of the power of amendment.

On 12 November, 1946 Sir B. N. Rau Constitutional Adviser pre-pared brochure containing Coruititution of the British Commonwealth Countries and the Constitutions of other countries. Different countries having different modes of amendments were referred to. In the same volume the fundamental rights under 13 heads were extracted from 13 · selected countries like U.S.A., Switzerland, Germany, Russia, Ireland, Canada, Australia. Two features follow from that list. First, there is no absolute standard as to what .constitutes fundamental right. There is no such thing as agreed fundamental rights of the world. Second, fundamental. rights which are accepted in our Constitution are not superior to fundamental rights in other Constitutions nor can it be said that the fundamental rights are superior to Directive Principles in our Constitution.

On 17 March, 1947 questionnaire was circulated under the sub-ject as to what provisions should be made regarding the amendment of ..he Constitution. The draft clause of amendment to the Constitution

prepared by the Constitutional Adviser at that time indicates that an amendment may be initiated in either House of the Union Parliament and when the proposed amendment is passed in each House by majo-rity of not less than two thirds of the total number of members of that House and is ratified by the legislatures of not less than two thirds of the units of the Union, excluding the Chief Commissioners' Provinces, it sha11 be presented to the President for his assent; and upon such assent being given the amendment shall come into operation. There were two explanations to that clause.

On 29 April, 1947 Shri Santhanam' s amendment to the draft clause was accepted. The amendment was "that this clause also if necessary may be amended in the same way as any other clause in the Constitu-tion". In June, 1947 the drafting of the amending cla= started. Originally it was numbered 232. Eventually, Articles 304 and 305 came into existence in place of draft Article 232. The first draft of the amend-ment clause was given by Sir B. N. Rau in March, 1947. By June, 1947 and thereafter he recommended the procedure favoured by Sir Alladt Krishnaswami Ayyar and Sir Gopalswamt Ayyangar, namely, passage by two thirds majority in Parliament and ratification by like majority of Provincial legislatures. On .21 February, 1948 the draft Constitution w311 ready. Draft Articles 304 and 305 related to amendment. Arti-cle 305 provided for reservation of seats.for minorities for ten years un-less continued in operation by an amendment of the Constitution.

The following features emerge. First, the Constituent Assembly made no distinction between essential and non,essential features. Secondly, no one in the Constituent Assembly said that fundamental righ1"1 could not be amended. The framers of the Constitution did not have any debate on that. Thirdly, even in the First Constitution Amendment debate no one doubted change or amendment of funda-mental rights. At no stage it appeared that fundamental rights are absolute. While Constitution should be made sound and basic i~ should be flexible and for period it should be possibae to make neces-sary changes with relative facility.Certain amendments to Article 304 were proposed. One proposed amendment No. 118 was that amendment was 1X> be passed in two Houses by clear majority of the total membership of each House. Another proposed amendment No. 210 was that for period of three years from the commencement of the Constitution, any amendment certified by the President to be not one of substance might be made by simple majority. This also stated that it would include any formal amendment recommended by majority of the Judges of the Supreme Court on the ground of removing difficulties in the administration of the Constitution or for the plll'pOl'ilC of carrying out the Constitution in

public interest. The third proposed amendment No. 212 was that no amendment which is calculated to infringe or restrict or diminish the scope of any individual rights, any rights of person or persons with respect to propertv or otherwise, shall be permissible and any amend-ment which is or is Ekely to have such an effect sholl be wid and ultra vires of any legislature. It is noteworthy that this amendment was withdrawn. See Constituent Assembly Debates Vol. IX p. 1665.

In the first category the framers devised amendment by Parliament by .a simple majority. These are Articles 2 and 4 which deal with States. As far as creation or re-constitution of States is concerned, it is left to Parliament to achieve that by simple majority. Again, draft Arti-cle 148A which eventually became Article 169 dealing with Upper Chambers in the States gave Parliament power to abolish the Upper Chambers or to create new Second Chambers. Schedules 5 and 6 were left to be amended by Parliament by simple majority. The second category of amendment requires two thirds majority. It is in that con-nection that the statement of Dr. Ambedkar "If the future Parliament wishes to amend any particular Article which is not mentioned in Part Ill or Article 304 all that is necessary for them is to have the two thirds majority then they can amend it" was i11\'0ked by Mr. Palkhivala to support his submission that Part III was unamendable. That is totally _ misreading the speech. The speech shows that some Articles wou1d be amendable by bare majori·ty, others would require two thirds majority and the third category would require two thirds majority plus ratifica-tion by the States.

Proceedings in the Constituent Assembly 'how that the whole· Constitution was taken in broad prospective and the amendments fell under three categories providing for simple majority, or two thirds-majority or two thirds majority and ratification by the States. These-diiferent procedures were laid down to avoid rigidity:

The Constitution First Amendment Act which added Article 15 (4), substituted words in Articles 19(2) and Article 19(6), inserted Article 31A indicates interesting features. The two criticisms at that time were as to what was the hurry and ~econdly that the Government was trying to take more power to itself. The answers are that Con-stitution which is responsive to the people's will and their ideas and which can be varied here and there, will command respect and people will not fight against change. Otherwise, if people feel that it is un-changeable and cannot be touched, the only thing to be done by those who wish to change it is to try to break it. That is dangerous thing and bad thing.

26-36 S. G. lndia/73

In. this background there is no doubt about the meaning and scope of Article 368. The Attorney GeneraL rightly said that if there be any doubt contemporaneous practical exposition of the Constitution is too strong and obstinate to be shaken or controlled. In Mopherson v. Blacker 146 U.S. 1 = 36 L.Ed. 869 it is said that where plain and dear words occur there is no difficulty but where there is doubt and ambiguity con-temporaneous and practical exposition is great weight. In The Auto-mobile Transport (Raiasthan) Ltd. v. The State of Raiasthan tr Or,. (1%3) 1 S.C.R. 491 this Court took notice of the feature that Constitu-tion makers had deep knowledge of Constitutions and constitutional problems of other countries.

Mr. Seervai relying on British Coal Corporation v. King (1935) A.C. 500 submitted that in interpreting constituent or organic statute that construction most beneficial to the widest possible amplitude of powers must be adopted. strict construction applicable tP penal or taxing Statute will be subversive of the real intention of Parliament if applied to an Act passed to ensure peace, order and good government. Lar-gest meaning is given to the a!Iocated specific power. If there are no limitations on the wwer it is the whole power. Grant of power df amendment cannot be cut down except by express or implied limita-tions. The conclusion is that the meaning of the word amendment is wide and not restricted.

The contention of Mr. Palkhivala on behalf of the petitioner is that under Article 368 as it stood prior to the amendment there were implied and inherent limitations on the power of amendment. It was said that the word "amendment" would preclude the power to alter or destroy the essential features and the basic element); and the fundamental principles of the Constitution. This contenvion was amplified as follows. The Ooostitution is given by the people unto themselves. The power to decide upon amendment is given to the 5 year Parliament which is ·creature of the Constitution. Article 368 does not start with the non-obstante clause. Article 368 uses the word "amendment" simpliciter. Less significant amendment powers in others parts of the Constitution use the words "add, alter, repeal or vary" in addition to the word "amendment", as will appear in Articles 31B, 25(b), 252(2), 372, 372A(2), paragraph 7 Schedule 5, paragraph 21 Schedule 6. Article 368 talks of an amendment of this Constitution and does not extend the amending power to "all or any of nhe provisions of this Constitution". On wide construction of the word "amendment" all fundamental rights can be taken away by the requisite majority whereas much less significant matters require the concurrence of at least half the States under the proviso to that Article.

The basic human freedom are all of the most fundamental impor-tance to all the States and all the citizens. Arlicle 32 is no less impor-tant to the citizens of States than Article 226. The Preamble is not part or provision of the Constitution. Therefore, the Preamble can-not be a)llended under Article 368. The nature and the contents of the Preamble are such that it is incapable of being amended. If the Preamble is unalter~ble it necessarily follows that those features of the Constitution which are necessary to give effect 110 the Preamble are unalterable. Fundamental rights are intended tlO give effect to the Preamble. They cannot, therefore, be abridged or taken away. The provisions of Artide 368 themselves can be amended under that very Article. If the word "amendment" is read in the widest sense Parliament will have the power to get rid of the requisite majority required by Article 368 and make any constitutional amendments possible by bare majority, Parliament <:an provide that hereafter the COnstitution shall be unamendable. Parliament can reduce India to status which is neither sovereign nor democratic nor republic and where the basic human rights are conspicuous by their absence.Mr. Palkhivala submits that the principle of inherent or implied limitations on power to amend the controlled Constitution stems frc-m three basic features. First, the ultimate legal sovereignty resides m the people. Second, Parliament is only creature of the Constitution. Third, power to amend the Constitution m destroy the essential fea-tures of the Constitution is an application of ultimate legal sovereign-ty. Mr. Palkhivala enumerated 1:1 essential features. These were as follows : (I) The supremacy of the Constitution. (2) The sovereignty of India. (3) The integrity of the country. (4) The democratic way of life. (5) The republican form of Government. (6) The guaran-tee of basic human right:s elaborated in Part III of the Constitution. (7) secular State. (8) free and independent judiciary. (9) The dual structure of the Union and the States. (10) The balance bet-ween the legislature. the executive and the judiciary. (11) Parlia-mentary form of Government as distmct from the presidential form of Government. ( 12) Article 368 can be amended but cannot be amended to empower Parliament to alter or destroy any of the essen-tial features of the Constitution, make tlhe Constitution literally or practically unamendable, make it generally amendable by bare ma-jority in Parliament, confer the power of amendment either expres-. sly or in effect on the State Legislatures ,and delete the proviso and deprive the States of the power of ratification which is today available to them in certain broad area1.

T'ie GJnstitution 24th .nendment Act was impeached by Mr. Palkhivala un three grounds. First by substituting the words ·•amenJ by way of addition, variaticn 01 repeal" in place of the word "amend-ment" in Article 368 the power was widened. Second, the 24th Amend-ment made explicit that when Parliament makes constitutional amendment under Article 368 it acts in exercise of constituent power. T!urd, it had provided by amendment in Articles 13 and 368 that the power in Article 13(2) agamst abridging or taking away af the funda-mental rights shall not apply to any amendment u:ider acle 36S. The Constitution 24th Amendment Act is, therefore, to ]e construed as empowering Parliament to exercise full constituent power of the peoole and to vest in Parliament the ult\imate legal sovereignty of the people as authorising Parliament tci alter or destroy all or any of the essential features, basic elements and fundamental principles of the Ooinstitution. Likewise, Parliament is construed by the Constitution 24th Amendment Act to be authorised to damage or ,~stroy the essence of all or any of the fundamental rights. Therefore, the amendment must be illegal and invalid.

In the alternative it was submitted on behalf of the petitioner that if the Constitution 24th Amendme11t is valid it cap. be only on read-ing down of the amended provisions of Article 13 and 368 which reading would preserve the angina! inherent and implied limitations. Even after the Constitution 24th Amend"ment Act Parliament will have no power to alter or destroy the essential features of the Consti-tution and secondly, fundamental rights are among the essential fea-tures of the O>nstitution and, therefore, the ;sence of any of the fun, damental rights cannot be altered or destroyed or damaged even when they are sought to be abridged.The Attorney General stressed the background in which Article 368 was enacted by the Constituent Assembly to show tliat any li"mita-tion on the amending powei was never in cont:roversy. The only con-troversy was regarding the degree of flexibility of an amendmem of all the provisions of the Constitution. Our Constitution has adopted three methods of amendment of the Constitution. Gert,in provisions of the Constitution may be amended by simple majority in Parlia-ment. Others may b~ amended by tw0-thirds majority. The third category relates to provisions where amendments must be ratified by o'lc half of the States. This scheme strikes good balance by protect-ing the rights of the States while leaving the remainder c:/ the Consti-tutio'l easy to amend. Of the three ways of amending the Constitu-tion tWC> are laid down m Article 368 itself and the third is provided for in about 24 other Articles.

The Constitutional Adviser incorporated in his draft Constitution prcnared by lum in October, 1947 recommendation contained in the suppleme'ltary Report of •he Union Gonstitutien Committee.

Following the recommendauon of the Advisory Committee he includ-ed proviso that the provisions in the Constitution relating to the reservation of seats for the Muslims, nhe Scheduled Castes, the Schedul-ed Tribes, the rndian Christians and the Sikhs, either in the Federal Parliament <Yr in any Provincial Legislatu,e, should not be amended before the expiry of ten years from the commencement of the Consti-tution.

The Drafong Committee in Februory, 1948 considered the provi· s1ons for amendme.ot. It made three n 4terial changes in the provisions made by the Constitution Adviser. First, the Committee framed self contained and independent Art1clr regarding the reser.vation of seats in the legislatures fo.r minorities. These provisions could not be amended· for period of ten years an<l would then cease to have effect unless continued in operation by an amendment of the Constitution. The sec,,nd proposed change gave limited power of initiating cons-titutional amendments ro the State legislatures. This power related to two matters. Thece were the methods ol choosing Governors and the establishment or abolition of Legislative Councils in the States. The third amendment suggested was that chonges in any of the legislative lists (not merely federal List) should receive ratification of at least <me half of the Provincial le~islatures and one third of the legislatures of Indian States.

The entire history of the power of amendment of 1he Constitu-tion shows first that the Draft Constitution eliminates the elaborate and difficult procedures such as decision by convention °or rete-rendum. The powers of amendments are left with the legislatures of the Union and the States. Secondly, it is only for amendments of specific matters that the ratification by the State legislatures is requir-ed. All other Articles are left to be amended by Parliament with only limitation of majority of not less than two-thirds of the members of each House pr~sent and voting and the majority of the total membership of each Bouse. Thirdly, the provisions for amend-ment of the Constitution were made simple and not difficult when comparison is made with the American and the Australian Constitu-tions.

The theory of inherent and implied limitations on the amending power is ba<ed on the assumption of narrow and restricted mean-ing of the word amenciment to suggest that the basic features or the essential features and the democratic republican character of the Constitution cannot be damaged and destroyed. Emphasis is laid on the Preamble of the Constitution to suggest that inherent and implied limitations all spring from the Preamble. The .Preamble is said not

to be part of the Constitution. The Preamble is said to be unalter-able. Therefore, it is contended that other provisions which gave effect to the Preamble cannot be amended.

Reliance is pllleed on the decision of this Court in Berubari case (1960) 3 S.C.R. 250 in support of the proposition that the Preamble is not part of the Constitution. The conclusion drawn is that no amendment of the Constitution inconsistent with the Preamble can be made. The Preamble is said to be an implied limitation on the power of amendment. This Court in Berubari case said that the Preamble has never been regarded as the source of any ,ubstantive power, because such powers arc expressly granted in the body of the Constitution. This Court said "what is true about the powers is equally true about prohibitions and ·limitations". In Berubari case it was suggested that the Preamble to the Constitution postulated that like democratic republican form of clie Government the entire terri-tory of India was beyond the reach of Parliament and could not be affected either by ordinary legislation or even by constitutional amend-ment. The Preamble was invoked to cut down the power to cede territory either by ordinary law or by amendment of the Constitu-tion. This Court said that the Preamble is, in the words of Story "a key to open the minds of the makers, but nevertheless the Pream-ble could not be said to postulate limitation on one of the very impor-tant attributes of sovereignty". This Court rejected the theory that the Preamble can impose serious limitations on the essential attribute of sovereignty. The suggested limitation that the Preamble affirmed the inviolability of the territory of India so that the power of amend-ment should be implied limited to exclude the ceding territory, is negatived by this decision.

The petitioner's contention that the Preamble is not part of the Constitution is nullified by the petitioner's reference ta and re-liance on the Preamble as the source of all inherent limitations. The Berubari case held that Article I could be amended under Article 368 and part of the territory of India could be ceded by such amend-ment. The Preamble did not limit the power to cede territory by amendment of Article I.

In the Berubari case there is an observation that the Preamble is not part of the Constitution. The Preamble was taken up by the Constituent Assembly at the end as it had to be in conformity with the Constitution. The Preamble was debated and voted upon and the motion "The Preamble stand part of the Constitution" was adopted. Therefore, Mr. Seervai rightly contended that the Preamble is an integral part of the status. The Preamble can be repealed (See Craics on Statute 6th Ed. page 200 seq. and Halsbury Laws of Eng-land, 3rd Ed. Vol 36 ·p. 370).In Gopalan case (1950) S.C.R. 88 an argument was advanced on the Preamble that the people gave themselves guaranteeing to the citi-zens fundamental righ11S, and, therefore, the provisions of Part III must be construed as beirig paramount to the legislative will as otherwise the fundamental rights to life and personal liberty would have no protection against legislative action. Patanjali Sastri, J., said that th¢ high purpose and spirit of the Preamble as well as the cons-titutional significance of declaration of Fundamental Rights should be borne in mind. The language of the provisions, in was said there, could not be stretched in disregard of the cardinal rule of interpreta-tion of any enactment, constitution or other, that its spirit no less than its intendment should be collected primarily from the natural mean-ing of the words wed. The words "procedure established by law" in Article 21 must be taken to refer to procedure which had statutory origin. The word "law" was said not to mean the immut-able and universal principle of natural justice. The reasoning given by Patanjali Sastri, J. was "no procedure is known or can be said to have been established by such vague and uncertain concepts as the immputable and universal principles of natural justice". This Court in Gopalan case refused to read due process as an implication of the Constitution.

Jn the K<ra/a Education Bill 1957 case (1959) S.C.R. 995 Das, C.J. referred to the Preamble and said "to implement and fortify the $Upreme purpose set forth in the Preamble, Part Ill of our Constitu-tion has provided for us certain fundamental rights". In the same case, Das, C.J. said "so long as the Constitution stands as it is and is not altered, it is inconceiveably the duty of this Court to uphold the fundamental rights and thereby honour our sacred obligation to the minority community who are of our own". This observation shows that fundamental rights can be amended and the Preamble does not stand in the way.

In Basheshar N<Jth v. The CJ.T. Delhi (1955) Supp. 1 S.C.R. 528 Bhagwati, J. referred to the Preamble i:n discussing the question -Of waiver of fundamcrual right and compared our Preamble to the Preamble ta the United, Sta'P.· Constitution;. The. Prcamhle to the. ~erican Constitution ·is without the Bill of Righu and the Bill of Blghts which be~c pan of the United States Constitution substan· tially altered .its ehara£~r and. broadly speaking, diJfered. in no way, in principle, from our fundamental right&.

The Prcamble is properly resorted to where doubts or ambiguities arise upon the words of the enacting part. If the enacting words arc clear and unambii!JOUS, there is· little room for interpretation, except the cases leading to an obvious absurdity, or IX> direct overthrow of

the intention expressed in the Preamble. Tills ·is the view of Story. The Pr=ble can never be resorted to eplarge the powers confided to the general government. The Preanible can expound the nature, extent and application of the powers actually conferred by the Con~ti­tution and not substantively create them.

The decision of this Court in Gopalan case, the Coal Bearing t1.reas Act case (1962) 1 S.C.R. 44, and S/Jate of Rajasthan v. Leela Jain (1965) 1 S.C.R. 276 are that if the language of the enactment•is clear the Preamble cannot nullify or cut down the enactment. The Judi-cial Committee in The Secretary of State for India in Council v. Maha-rajah of Bobbili I.L.R.. 43 Mad. 529 8aid that the legislature may well intend that the enacting part should extend beyond the apparent ambit of the Preamble or the immediate mischief. See also Attorney General v. Prince ErneJt Augustus of Haneyar 1957 A.C. 436. The American decision in Henning /acobsan v. Commonwealth of Massa-chusetts 197 U.S. 11 indicates that power is not conferred by the Preamble but must be found in the Constitution.The Preamble may be relevant in the case of an ambil!'lity in an enactment in statute. statute does not contain an amending power for the .simple reason that the statute can be amended under legisla-tive power. The Attorney General tightly said that the Prear:ible in Constitution refers to the frame of the Constitution at the time of the Preamble, and, therefore, it can possibly have no relevance to the constituent power in llhe future, when that Constitution itself can be changed. The position. would be the same so far as the Preamble is concerned whether the constituent power is exercised by the amend-ing body provided for by the people themselves in the Constitution or by referendum if so provided for in the Constitution. The Attorney General supported his submission by relying on the views of Can-away and Wynes on the similar interpretation of section 128 of the Australian Constitution.

Canaway in the Failure of Federalism in Australia in discussing section 128 of the Australian Constitution under the heading "Altera-tion of the Constitution" expresses. the view that the section must be read as substantive grant of power to alter the Constitution and that the negative form of the section pi no way ·de-, tracts from the amplitude of that power. Canaway further says that it is not permissible ro refer to· the Preamble in connection with the effect of section 128 and if nevertheless such reference is made there is nothing adverse to the collclusion that there is full power of amendment. The Preamble recires preliminary agreement to unite in one indissoluble Federal Commonwealth. Section 128 of the Australian Constitution forms an integral part o£ the Constitution •.

As from the time o! the agreement it m~t have been contemplated that the Constitution should be alterable to the full extent of power conferred by that section. Therefore, the word "alter" in section 128 of the Arntralian Constitution is not restricted· by any reference to the Preamble.

Wynes in Legislative, Executive and Judicial Powers in Australia 4th Ed. at pp. 505-506 expresses the view that apart from the rnle which excludes the Preamble generally from consideration in statu-tory interpretation it is clear that, when all is said and done, the Preamble at the most is only recital of present intention. The in-sertion of an express reference to an amendment in the Constitution itself is said tJo operate as qualification upon the mere recital of the reasons for its creation.

At the second reading of the Draft Constitution in the Constituent Assembly res0lution was adopted that the Preamble do form part of our Constitution. The Preamble is part of the Constitution. On 26 November, 1949 certain Articles of the Constitution were brought into force. Article 393 did come into force on 26 November, 1949. Therefore, the Preamble did oot come into force on 26 November, 1949. As regards general laws the position is that the Preamble has been treated as part of the statute.

Clear constitutional provisions are imperative both on the legisla-tures a11d the Courts. Where constitutional provision is comprehen-sive in scope and leaves no ~oom for interpretation the Court i! without power to amend, add to or detract from constitutional pro-vision or to create exceptions thereof by implication (See Corpus Juris Secumdum Vol. 16 p. 65). Where rhe people express themselves in carecul o~d measured terms in framing the Constitution and they leave as little as possible to implications, amendments or cli.anges in the existing order or conditions cannot be left to insert;ng implications by reference to the Preamble which is an expression of the intention at the time of the framing •Of the Constitution. Therefore, the power to amend the Constitution is not restricted and controlled by the Preamble.The contention that essential features are not amendable under Article 368 as it stood before the Constitution 24th Amendment Act is not only reading negative restrictions on the express power of amendment but is also putting the clock back. One of the salutarv principles of construction of statute is to be found in R . .V· B''."a(' 3 A. C. 889. It was case to determine whether the prescnbed hm1-tations of colonial legislature had been exceeded. T.he Judicial Committee said that duty must be performed by looking to the

terms of the instrument by which affirmatively legislative powers are created, and by which, negatively, they are restricted. "If what has been done is legislation within the geheral scope of the affirmative words which give power, and if it violates no express condition or restriction by which that power is limited, it i.• not for, any aoort of justice to enquire further or to tnlarge constructively those conditions and restrictions". The maxim Expressum facit cessare taciturn was similarly applied in Webb v. Outrim 1907 A.C. 89. The clieory of implied and inherent limitations can be best described as subtle attempt to annihilate the affirmative power of amendment. L'Oi'd Halsbury in Fielding v. Thomas 1896 A.C. 600 said that if the legis-lature had full power to make laws it was difficult to see how the power was taken away. The power is alvyays sufficient for the pW'-pose. Lord Dunedin in Whiteman v. Sadler 1910 A.c; 514 said "express enactment shuts the door to further implication".

It was said that the essential features could be amended by way of improvement but could not be damaged or destroyed. It was said India could not be converted into totalitarian dictatorship. The en-tire approach of the petitioner to the power of amendment contained in Article 368 ignores the fact that the object of the Constitution is to provide for the organs of State like the judicature, legislature and the executive for the governance of the country. Apart from the essential functions of defence against external aggression and of main-tenance of internal order modern State is organised to secure the welfare of the people, India is sovereign democratic republic which means that Parliament and State legislatures are elected on adult u~ versa! suffrage, The country is governed by the Cabinet sy~m of government with ministries responsible to the House of the People and ro the Legislative Assemblies respectively. In democracy the determination of policies to be pursued can only be determined by majority vote cast at election and then by majority o£ the elected representatives in the legislature, Holmes, J., said "In ~acy the people have the right to embody their opinion iD law".

The argument that if unbridled power were conferred the.. Coi:wii tution could be subverted or destroyed is not supported by actual ex· perience in India Mr. Scervai cmpha.siscd that sim;c 1951 when Shankari Prasad cas¢ rcoognised. 11nlimited power of amendmcDt till Golak Nath case in 1967 die normal dcmocr~ proceu ci W: depart-ments of the State functioned as provided. by the Constiucion. Elec· tions have been held as provided by the Constitution. Ii allJ' .bad¥ or organised party were bent upon subverting our free Canst:i&til'.'n, then even if there were no power af amendmel!l.t, Parliament has powers which would enable such Jestruction to be brought about Great· and wide powers are conferred for the governance of greatsovereign countries and such powers cannot be withheld on the ground that they may be used externally or oppressively. Well settled prin-ciples of construction in interpreting constitutions preclude limiting the language of the Constitution by political, juristic or social con-cepts independently of the language of the Qi.nstitution to be inter-preted. This Court in Deep Chand v. State of Uttar Pradesh & Others (1959) Supp. 2 S.C.R. 8 relied on the test laid down in Queen v. Burah (1878) 5 I.A. 179 that the terms of the instrument by which affirmatively the powers are created, and by which they are negative· ly restricted are to be looked into. The Judicial Committee in Attor-ney General for Ontario v." Attorney General for Canada 1912 A.C. 571 tersely stated the legal principles as follows : "If the text is ex-plicit the text is conclusive, alike in what it directs and what it for-bids". This is the golden rule of construction of written Consti-tution.

In Gopalan case 1950 S.C.R. 88 this Court was invited to read inlD the Constitution implications derived from the "spirit of the Constitution". Kania, C.J. said that to strike down the law on an assumed principle of construction would be "llO place in the hands of the judiciary powers too great and too indefinite either for its own security or the protection of private rights". Kania, C.J. also said that large and liberal in~rpretation should be given to the Consti-tution. That does not mean that Court is free to stret<:h or pervert the language of the Constitution in the interest of any legal or cons-titutional theory. This Court in Keshavan Madhavan Menon v. The State of Bombay 1951 S.C.R. 228 rejected the contention that the spirit of the Constitution should be invoked in interpreting die Constitu-tion. In Benoari Lal Sharma case 72 I.A. 57, the Privy Council re-versed the judgment of the Federal Court observing that questions of jurisprudence or policy were not relevant to the construction of po-wer conferred in an affirmative language and not restricted in any negative terms.

constitution is essentially frame of government laying down governmental powers exercisable by the legislature, executive and the judiciary. Even so other provisions are included in the Constitu-tion of country which provisions are considered by the framers of that Constitution to have such special importance that those "1ould be included in the Constitution or 'organic law. Thus all provisions of the Constitution are essential and no distinction can be made bet-ween essential and non-essential features from the point of view of amendment unless the makers of the Constitution make it expressly clear in the. Constitution itself. The Attome)! General rightly said that if the positive power of "amendment of this Constitution" in

Article 368 is restricted by raising the walls of essential features or core of essential features, the clear intention of the Constituent Assem-bly will be nullified and that "•ould make mockery of the Constitu-tion and that would lead to destruction of the Constitution by pav-ing the way for extra constitutional or revolutionary changes in the Constitution. The theory of implied and inherent limitations cannot be allowed to act as boa constrictor to the clear and unambiguous power of amendment.

If the«: is no express prohibition against amendment in Article 368 the ommission of any such restriction did not intend to impose any restriction. When certain restrictions are im-posed it is not intended that other undefined restrictions shou'ld be imposed by implication. The general rule is not to import into statutes words which are not found there. Words are not to be added by implication into the language of statute unless it is necessary 'to do so to give the paragraph sense and meaning in its context. If matter is altogether omitted from statute it is not allowable to insert it by implication. Where the language an Act is clear and expli-cit, effect is to be given to it whatever may be the consequences. The words of the statute speak the intention of the legislature. Where the reading of statute produces an intelligible result there is no ground for reading any words or changing any words according ~o what may be supposed intention of the legislature. If statute is passed for the purpose of enabling something to be done but omits to mention in terms some detail which is of great importance to the proper perfor-mance of the work which the statute has in contemplation the courts are at liberty to infer that the statute by implication empowers :the details to be carried out. The implication is to empower the autho-rity to do that which is necessary in order to accomplish the ultimate Qbject.

The implication sought to be raised by Mr. Palkhivala is for the purpose of reading negative words into Article 368 IX> destroy the positive power to amend. The provisions of our Constitution in the light of historical background and special problems of the country will show that no provision can be considered as non-essential. The Cons-titution-makers did oot think so. The Attorney General rightly con-tended that no one has the power or authority to say that anv single provision is more essential than another or that the amending power under Article 368 does not operate on any prnvision on the ground of alleaed essentialitv when Article 368 provides amendment of this Co~titution which obviously means the whole Constitution including everv provision. In Con;titution different methods of amendment may be laid down depending upon the degree of importance attached to particular parts of the Constitution. Apart from the language of

Article 368 the draft Constitution as it emerged through the Constitu-tuent Assembly shows that no provision of the Constitution was ex-cepted from the amending power.

The provisions for the purpose of amendment were divided into four categories. The first two categories are to be found in Article 368. Certain provisions require ratification by the requisite number of States as are mentioned in the proviso. Other provisions which do not fall within the proviso are amendable by double majority provided there. The third category consists of Articles 4, 169, 240(1), paragraph 7 Schedule 5, and paragraph 21 Schedule 6. The fourth category consists of provisions which were said by the Attorney Gene-ral to confer enabling power on Parliament to change the provisions by by the expression "unless Parliament otherwise provides" or similar expression. He gave the examples which are Articles 73(2), 100(3), 105(3), 118(2), 120(2), 125, 133(3), 171(2), 189(3), 194(3), 210(2), 241(2), 283(1) and (2), 285(1) and (2), 343(3), 345, 348(1).The character of the provisions which are amendable under the proviso to Article 368 itself shows that petitioner's submission that essen-tial features are unamendable is baseless vision. Article 54 speaks of the method of election of the President. This may be changed. The manner or scale of representation of the different States in regard to the election pf the President may also be changed. The executive power of the Uruon and the Statx:s may be .changed. Chapter IV of Part V (the Union Judiciary), Chapter V of Part VI (the High Courts in the States) are also mentioned in Article 368 as liable to be changed. Article 141 may also be changed. Chapter I of Part XI and the Seventh Schedule (legislative relations between Union and the States) may be changed. The representation of the States in Parliament ( Arti-cles 80 and 81) may be changed. The number of representation may be increased or reduced. The method of election of such representa-tives as Parliament may by law prescribe and the number of the mem-bers of the House of the People may be increased or reduced. Thi: method of election to the House of People may be changed. Finally the provisions of Article 368 itself, which is the mlost important part of the Constitution may be changed.

To find out essential or non-essential features is an exercise in imponderables. When the Constitution does not make any distinction between essential and non-essential features it is incomprehensible as to how such distinction can be made. Again, the question arises as to who will make such distinction. Both aspects expose the egregious character of inherent and implied limitations as to essential features or core of essential features of the Constitution being un-amendable. Who is to judge what the essential features are ? On

what touchstxme are the essential features to be measured? Is then: an1 yardstick by which it can be gauged? How much is essential and how much is not essential? How can the essential features or th•: core of the essential features be determined? If there are no indica-tions in the Constitution as to what the essential features are the task of amendment of the Constitution becomes an unpredictable and in-determinate task. There must be an objective data and standard by which it can be preclicaQed as to what is essential and what is not essential. If Parliament cannot judge these features Parliament cannot. amend the Constitution. If, on the other hand, amendments are canied out by Parliament the petitioner contends that eventually court will find out as to whether the amendment violates or abridge> essential features or the <Pre of essential features. In the ultimaite analysis it is the Court which will pronounce on the amendment as to whether it is permissible or not. This construction will have the effect of robbing Parliament of the power of amendment and repos-ing the final power of expressing validity of amendment in the courts.

Mr. Palkhivala said that though the essential features could be amended the core of essential features could not be amended. He said that there was no esoteric test to find out what is essential and what is not essential and if no precise definition could be given that was no reason ro hold that the essential features and the core of essential features could be amended. It was said that the apprecia-tion of the trained judicial mind is the only way to find out what essential features are.

Mr. Seervai rightly contended that there is no foundation for the analogy that just as Judges test reasonableness in law, similarly the judicial mind will find out the essential features on the test of reasonableness. Reasonableness in law is treated as an objective crite-rion because reason inheres in man as rational being. The citi:zen whose rights are affected applies reason and when he assails '.aw he possesses standard by which he can persuade the Court that the law is unreasonable. The legislature which makes law has the standard of reasonableness and has the further qualification to apply the standard because of familiarity with the needs, desires and the wants of the people whom the legislature represents. As regards the Judge not only does he share the reasonableness of the reasonable man but his trained mind enables him to see certain aspects clearly. The process of judicial review of legislation as laid down by Courts is that the Court will start with the presumption that laws enacted are reason-able. The objective standard is reasonableness. That is why in the law of contract reasonable price is to be ascertained by the Courts. In the law of torts the Courts find out what reasonable care is. In the iaw of

property reasonable conduct is found out by the Courts to avoid evil consequences. Reasonableness is to be judged with reference to the right which is restricted when Article 19 is considered.

The American Courts evolved test of reasonableness by the doctrine of substantive due process which means not that the law is unreasonable but that on political, social and economic grounds the majority of Judges consider that the law ought not be permitted to be made. The crucial point is that in contradistinction to the Ameri-can Constitution where rights <\fe couched in wide general terms leav-ing it to the Courts to evolve necessary limitations our Constitution limited it by precise words of limitation as f.ox example in Articles 19 and 21. In Article 21 the Constitution-makers substituted "proce-dure established by law" for the words "due process of law". The reason for the change was that the procedure established by law was specific. The framers of the Constitution negatived the vague undefi-nite reasonableness of Jaws on political, social and economic grounds. In Gopalan case due process was rejected, by clearly limiting the rights acquired and by eliminating the indefinite due process. The Constitution makers freed judicial review of subjective determination. Due process as test of invalidity of law was deliberately withheld or denied. Courts are not concerned with the wisdom or piolicy of legislation. The Court:s are equally not concerned with the wisdom and policy of amendments to the Constitu!ion.Reliance was placed by Mr. Palkhivala on Ridge v. Baldwin 1964 A.C. 40 where it is said that opinions that natural justice is so vague as to be practically meaningless, are tainted by the perennial fallacy that because something cannot be cut and dried or nicely weighed or measured therefore it does not exist. In the same case it was said that the idea of negligence is equally insusceptible or exact definition, but what reasonable man would regard as fair procedure in particular circumstances and what he would regard as negligence in particular circumstances are equally capable of serving as tests in law. Extract-ing those observations it was said by Mr. Palkhivala that though the border-line between essential features and non-essential features could not be stated or it was not possible ro specify exhautively the amend-ment which could be invalid on that principle yet there was no rea-son why the principle of inherent and implied limitations to amend our Constitution should not be accepted. Inherent and implied limitations cannot originate in an oracle when the Constitution does not contain any express prohibition against amending any provision. When Article 368 speaks of change,g in the provisions of the Consti-tution as arc set out in clauses (a) to ( d) of the proviso it is mani-fest that the makers of the Constitution expressed their intention with unerring accuracy that features which can broadly be described as

federal features, and from that point of view "Essential features" could be amended. In the face 1of these express prov1s1ons it is impossible to hold that the Constitution does not -(:ontemplate an amendment of the so called essential features of the Constitution. The proviso confers that power with relation to the judiciary, the execu-tive and the legislature, none of which could be said to be inessential. Indeed it is. difficult to imagine that the Constitution contained any provision which was inessential. need be hardly said that amend-ment not only means alteration, addition or repeal of provision but also deletion of some part, partial repeal and additlon of new part.

It was said that if our Parliamentary system was changed to Presidential system it would be amending the core of our Consl'itu-tion. But such change is permissible under Article 368. Whether the people would adopt such an amendment is different matter and does not fall for consideration here. The core of the federal form of Government in our country is greater power in the Union Parlia-ment than States for preserving the iategrity of the country. There can be changes by having confederation or by conferring greater power on the Centre. Those contentions about unamendability of essential features do not take into consideration that the extent and character of any change in the provisions of the Constitutibn is to be determined by legislatures as amending bodies under Article 368 and as representatives of the people in democracy and it is not the function of the Courts to make any such determination.

Mr. Palkhivala contends that the Const''Ption 24th Amendment Act is unconstitutional because Parliament cannot exceed the alleged implied and inherent limitations on the amending power as it stood before the 24th Amendment. The 24th Amendment has substituted the marginal note "Power of Parliament to amend the Constitution and procedure therefor" for the original note "procedure for amend-ment of the Constitution". This change is due to the fact that accord-ing to the leading majority judgment in Golak N a:th case the un-amended Artide dealt only with the procedure for amendment and that the power of amendment was in the residuary power of b:isla-tion. The 24th Amendment has declared tllat the power to amend the Constitution is in Article 368. That was the view of this Court in earlier decisions. That was the minority view in Golak Nath case. By amendment that view has become the constitutional mandate.The other change as result of the 24th Amendment is . that "Parliament may in the exercise of its constituent power amcO<l" in place of words "amendment of this Constitution may be initiated". The reasons for this change are to give effect to the decisions of this Court in Shankari Prasad case which in considering the validity of

the First Amendment recognised and affirmed the vital 'distinction between constituent power and legislative power and decided that the word "law" in Article 13(2) applied to the exercise of legis-lative power and did not apply to an amendmen~ of the Constitution. In Sajjan Singh case the same distinction was upheld by the majority of this Court. In Golak Nath case the majority and the concurring judgment denied the distinction between legislative and constituent power and held that Article 13(2) applied to an amendment of the Constitution under Article 368 because there was no distinction bet-ween legislative and constituent power. As consequence the lead-ing majority judgment in Golak Nath case held that Parliament could not amend fundamental rights. The dissenting judgments in Golak Nath case upheld the vital distinction between legislative and consti-tuent powers and held that the decisiol). in Shankari Prasad case and the majority decision in Sajjan Singh case were correct and that Par-liament had power to amend the fundamental rights since an amend-ment of the Constitution was not law within the meaning of Article 13(2). These features give the reason why the expression "Parlia-ment may in the exercise of constituent power" was introduced by the 24th Amendment. Parliament took notice of two conflicting views and the unamended Article 368. Parliament took notice of the preponderating judicial opinion in favour of the view that Article 368 contained the power of amendment and that power was consti-tuent power. Wanchoo, J. held that the power under Article 368 is constituent power to change the fundamental law, that is to say the Constitution. The constituent power under the Constitution belonged to Parliament because the Constitution gave it. The Amendment made explicit what the judgment in Shankari P~asad case and the majority judgment in Sajjan Singh case and the dis;enting juJgment in Golak Nath case said, namely that Parlia-ment has the constituent power to amend the Constitution.

The unamended Article used the words "An amendment of this' Constitution". The 24th Amendment used the words "Parliament may ............ amend by way of addition, variation or repeal any· provision of this Constitution". This has been done because the lead~ ing majority judgment in Golak Nath case expressed the view that there is considerable force in the argument that the expression "amend-ment" in Article 368 has positive and negative content rn exercise of which Parliament cannot destroy the structure of the Constitution but it can only modify tlic provisions thereof within the· framework of the original instrument for its better effect. This ob-servation in Golak Nath case raised doubt as to the meaning of the word "amendment". The 24th Amendment has expressly clarified that duubt.

27-36 S.C. Jndia/73

The leading majority judgment and the concurring judgment in Golak Nath case both held that the fundamental rights could not be amended by Parliament. The leading majority judgment with refer-ence to the meaning of the word "amendment" and without decid-ing the matter observed that there was great force in clie argument that certain fundamental features e.g. the concept of federalism, the institutions of the President and the Parliamentary executive could not be abolished by amendment. Shankari Prasad case, Sajjan Singh case and the dissenting minority judgment in Golak Nath case wok the view that every provision of the Constitution could be amended in exercise of constituent power. As necessary corollary, the 24th Amendment excludes the operation of Article 13 by amending Article 13 by new ;ub-Article (4) that nothing in Article 13 shall apply to any amendment of this Constitution under Article 368. The amend-ment of Article 13 by an insertion of sub-Article (4) is also reinforced by the opening words introduced in Article 368 by the 24th Amend-ment, viz., notwithstanding anything contained in this Constitution, which would certainly exclude Article 13.

The Constitution 24th Amendment Act raises three aspects. First, does the word "amend" include abrogation or repeal of the whole Constitution? Does amendment mean that there is some feature of the Constitution which cannot be changed. Secondly, what light does the proviso to Article 368 throw on the nature of the amending power and on the doctrine of inherent and implied limitations on the amend-ing power that essential features of the Constitution cannot be damag-ed or destroyed. Thirdly, does clause (e) of the proviso to Article 368 enable Parliament and the requisite majority of the States to in-crease the power of amendment that was conferred by Article 368.

Article 368 in the unamended form contained power as well as self executing procedure which if followed by the prescribed autho-rities would result in an amendment af the Constitution. Both the Attorney General and Mr. Seervai rightly said that the words "Cons-titution shall stand amended" in Article 368 will exclude simple repeal that is without substituting anything in place of the repealed Constitution. If the Constitution were totally repealed and vacuum was created it could not be said that uhe Constitution stands amended. The Constitution means the mode in which State is constituted or organised specially as to the location of sovereign power. The Cons-titution also means the system or body of fundamental principles according to which the nation, State and body politic is constituted and governed. In the case of written Constitution the Constitution is more fundam"ntal than any particular law and contains principle with which all legislation must be in harmony. Therefore, an amend-men~ of the Constitution is an amendment of something which provides

system aocording to which State or nation is governed. An amend-ment of the Constitution is to make fundamental changes in the Constitution. Fundamental or basic principles can be changed. There can be radical change in the Constitution like iritroducing Presidential system of government for cabinet system or unitary system for federal system. But such amendment would ill its wake bring all consequential changes for the smooth working Qf the new system.

However radical the change the .amendment must provide for the mode in which the State is constituted or organised. The ques-tion which was often put by Mr. Palkhivala drawing panorama of totalitarian State in place of the existing Constitution qn be simply answered by saying that the words "The Constitution shall stand amended" indicate that the Constitution of India is being referred to. The power of amendment is unlimited so long as the result is an amended Constitution, that is to say, an organic instrumept which provides for the making interpretation and implementation of law.The theory of unamendability of so called essential featl\(es is un-meritorious in the face of express provisions in Article 368 particular-ly in chuses (a) to ( d) of the proviso. Clauses (a) to ( d) relate to 66 Articles dealing with some of the most importan~ features of the Comtitution. Those Articles relate to the judiciary, the legisla-ture and the executive. The legislative relations between the Union and the States and the distribution of legislative power between them are all within the ambit amendment.

The question which was raised by Mr. Palkhivala as to whether under proviso ( e) to the unamended Article 368 the power of amend-ment could be increased is answered in the affirmative. The reasons broadly stated arc three.

First, under Article 368 proviso ( e) any limitation on the power of amendment alleged to be found in any other Article of the Cons-titution can be removed. The full magnitude of the power of amend-ment which would have existed but for the limitation could be re-stored and the power of amendment increase. In Golak Nath case the majority view was that Article 13(2) operated as limitation on the power of amendment. The 24th Amendment took note of that decision and removed all doubts by amending Article 13(2) and pro-viding new sub-Article ( 4) there and also by amending Article 368 to the effect that Article 13(2) shall not apply to any amend-ment of the Constitution. If the express limitation which had been judicially held to constitute bar to the amendment of fundamental rights could be removed by amending Article 368 under clause ( c) to the proviso any other alleged implied limitation can be similarly re-moved.

Secondly, judicial decisions show that by amending the Article conferring the power of amendment greater power to amend the Constitution can be obtained than was conferred by the original Article. In Ryan case 1935 Irish Report 170 all the learned Judges excepting the Chief Justice held that by first amending section 50 of the Irish Constitution which conferred the power of amendment sub-ject to certain restrictions thereon so as to remove the restrictions contained in that section, the Irish Parliament effectively increased its power in the sense that an amendment could be made which those express restrictions would have prohibited. Again in Ranasinghe case 1%5 A.C. 172 it was said that legislature has no power to ignore the conditions of law making that are imposed by the instrument which regulates its power. This restriction created by the instrument exists independently of the question whether the legislature is sove-reign or whether the Constitution is uncontrolled. The Judicial Com-mittee held that "such Constitution can indeed be altered or amend-ed by the legislature if the regulating instrument so provides and if the terms of those provisions are complied with and the alteration or amendment may include the change or abolition of those very provi-sion". Thus controlled Oonstirution can be converted into an un-controlled Constitution vastly increasing the power of amendment.Thirdly, the power to amend the amending Article must include the power to add, alter or repeal any part of that Article and there is no reason why the addition cannot confer power of amendment which the authorities named in Article 368 did not possess. By the exercise of the amending power provision can be made which can increase the powers of Parliament or increase the powers of the States. Again, by amendment future amendments can be made more difficult. The picrure drawn by Mr. Palkhivala that furure amendment would be rendered impossible either by absolutely forbidding amendment or by prescribing an impractically large majority does not present any legal impediment to such an amendment. The safeguard against such action is external. The contingency of any such amendment being proposed and accepted is extremely remote because such an amend-ment might sow the seeds of revolution which would be the onlv way to bring about the change in the Constitution. The Solicitor General rightly said that the effect of the amendment is that "it shall stand amended in accordance with the terms of the Bill". The pro-duct is not required to be "this Constitution". It will not be identi-cally the old Constitution. It will be changed or amended Consti-rution and its resemblance will depend on the extent of the change. More rigid process like referendum or initiative or greater majority or ratification by larger number of States might be introduced by amend-ment.It is important to note nhat proviso ( e) to Article 368, namely, the power to ameud Article 368 is unlike perhaps some Constitutions which were before the Constituent Assembly when our Constitution was framed. Neither the American nor the Australian Constitution provided for any power to amend the amending provision itself. The Attorney General rightly contended that this forcefully expresses clear and deliberate intention of the Constituent Assembly that apart from providing for less rigid amending formula the Constituent As-sembly took care to avoid the controversy in America as to whether <:xpress limitation on Article V of the American Constitution itself regarding equal suffrage of the States in the Senate could be amend-ed or the controversy in Australia as to whether section 128 of the Australian Constitution itself could be amended as there was no express limitation on such amendment. The Q)nstituent Assembly provided in clause ( e) to Article 368 express and specilic power of 2mendment of Article 368 itself. The amplitude of the amending power in our Constitution stands in bold relief in comparison with Article V of the American CoiJ.Sti-tution, section 128 of the Australian Constitution and section 50 of the Irish Constitution mane of which confers such power. Dr. Wynes in his Legislative Powers in Australia 4th Ed. p. 505 expresses the view that though section 128 is negative . in form but the power of amendment extends to alteration "of this Constitution" and this power is implied by its terms. Dr. Wynes also states that by the consent of the States the last part of section 128 could be amended. This is only to illustrate as to how other Constitutions are understood by jurists in their countries. Our Article 368 contains no express limitation on the power of amendment. The provision of clause (~) in the proviso to .Article 368 is not limited to federal features. The words "amendment of this Constitution" in section 50 of the Irish Constitution which formed the subject of decision in Ryan case 1935 Irish Report 170 were read by Kennedy, C.J. in his dissenting view to mean that if power to amend section 50 ·itself was intended to be given the framers of the Constitution would have said so. 'v!r. Palkhivala relied on this dissenting view. Other learned Judges who formed the majority held that the words "amendment of this Cons-titution" conferred power to amend that section 50 as well. If no intention to amend that section itself is expressed there is nothing which can be impliep was the dissent. Therefore, it would follow even according to the dissent that no implied limitations on the power of amendment can be read in section 50 if an express power of amendment has been conferred by the Constitution.

Mr. Palkhivala contended that the people reserved the power to themselves to amend the essential features of the Constitution and if any such amendment were to be made it should be referred to the

people by referendum. It was said that the Constitution makers did not intend that ~ssential f~atures should be damaged or destroyed even by the people, and therefore, the Constitution did not provide for referendum. The other contention on behalf of the petitioner was that referendum was not provided for because it might have been difficult to have the Constitution accepted on those terms. The se-cond view would not eliminate the introduction of referendum as method of amendment. If referendum were introduced by an amendment people would have complete power to deal with essential features. The other question would be as to whether the Preamble and the fundamental rights would be limitation on the power of the people. On behalf of the petitioner it was said that it was not necessary to decide the questions. Both the Attorney General and Mr. Seervai correctly said that the submissions made on behalf of the petitioner indicated that if essential features could be amended by the people the very fact that the Constituent Assembly did not in-clude referendum as one of the methods of amendment and that the Constitution makers excluded no part of the Constitution from amendment established that the amendment of written Constitu-tion can be legally done only by the method prescribed by the Cons-titution. If the method of referendum be adopted for purpose of amendment as suggested by Mr. Palkhivala that would be extra cons-titutional or revolutionary. The amending body to amend the Consti-tution represents the will of the people.

Therefore, as long as Article 368 may be amended under pro-viso ( e) any amendment of the Constitution by recourse to referen-dum would be revolutionary. Mr. Palkhivala on behalf of the peti-tioner did not rely on the majority decision in Golak Nath case that the fundamental rights could be abridged or taken away only by convening Constituent Assembly, but based his argument on theory of legal sovereignty of the people. The Constitution is bind-ing on all the organs of government as well as on the people. The Attorney General rightly submitted that the concept of popular sove-reignty is well settled in parliamentary democracy and it means ·that (he people express their will through th(!ir representatives elected by them at the general election as the amending body prescribed by the Constitution.

Are fundamental rights unamendable? Mr. Palkhivala contend-ed that apart from Article 13(2) fundamental rights are based on Universal Declaration of Human Rights and are natural rights, and, therefore, they are outside the scope of amendment. In Go~:ik Nath case rhe majority view declined to pronounce any opinion on alleged esiential features other than fundamental rights. The concurring view was that fundamental rights were unamendable because they were

fundamental. W anchoo, J, for himself and two other learned Judges and Ramaswami, J. rightly rejected the theory of implied limi-tations. The three reasons given by Wanchoo, J. are these. First, the doctrine of essential and non-essential features would introduce un-certainty. Secondly, constituent power of amendment does not admit of any impediment of implied restrictions. Thirdly, because there is no express limitation there can be no implied limitation.

Mr. Seervai correctly contended that there is intrinsic evidence in the provisions of Part III itself that our Constitution does not adopt the theory that fundamental rights are natural rights or moral rights which every human being is at all times to have simply be-cause of the fact that as opposed to other things he is rational and moral. The language of Article 13(2) shows that these rights are conferred by the people of India under the Constitution and they are such rights as the people thought fit to be in the organised society or State which they were creating. These rights did not belong to the people of India before 26 January 1950 and would not have been ~!aimed by them. Article 19 embodies valuable rights. Rights under Article 19 are limited only to citizens. Foreigners are human beings but they are not given fundamental rights because these rights are conferred only on citizens as citizens.

Article 33 enacts that Parliament may by .law modify rights con-ferred by Part lII in their application to Armed Forces. Parliament may restrict or abrogate any of the rights conferred by Part III so as to ensure the proper discharge of the duties of the Armed Forces and the maintenance of discipline among them. Therefore, Article 33 shows that citizens can be denied some of these rights. If these are natural rights these cannot be abrogated. Article 34 shows that Parliament may by law indemnify any person in respect of any act done . by him in connection with the maintenance or restoration of order in any area where martial law was in force or validate any sentence passed, punishment inflicted, forfeiture ordered or other act done under martial law in such area. Article 34 again shows restric-tion on rights conferred by Part III while martial law is in force in any area. The dominant concept is social good. Where there is no restraint the society fails.

Articles 352 and 358 also illustrate as to how while the proclama-tion of emergency is in operation provisions of Article 19 are sus-pended during emergency. The framers of the Constitution empha.-sised the social content of those rights. The basic concept of funda-· mental right is therefore social one and it has social function. These rights are conferred by the Constitution. The nature of res-triction on fundamental rights shows that there is nothin.g natural about tl.ose rights. The restrictions contemplated under Arttclc 19(2)

with regard to freedom of speech are essential par~s of well orga-nised developed society. One must not look at location of power but one should see how it acts. The restrictions contemplated in Article 19 are basically social and political. Friendly relations with foreign states illustrate the political aspect of restrictions. There are similar restrictions on right to move freely. The protection of Sche-duled Tribes is also reasonable in llhe interest of society. This Court in Basheshar Nath v. C.l.T. Dr/hi (1959) Supp. !. S.C.R. 528 sJitl that there are no natural rights under our Constitution and natural rights played no part in the formulation of the provisions therein.

Articles 25 and 26 by their opening words show that the right to the freedom of religion is subject to the paramount interest of society and there is no part of the right however important to devotee which cannot and in many cases have not been denied in civilised society.

Subba Rao, C.J. in Golak Nath case equated fundamental rights with natural rights or promodial rights. The concurring majority view in Golak Nath case, however, said that there is no natural right in property and natural rights embrace the activity outside the status of citizen. Fundamental rights as both the Attorney General and Mr. Seervai rightly contended are given by the Comtitution, and, therefore, they can be abridged or taken away by the people them-selves acting as an organised society in State by the representatives of the people by means of the amending process laid down in the Constitution itself. There are many Articles in Part III of our Cons-titution which cannot in any event be equated with any fundamental right in the sense of natural right. To illustrate Article 17 deals with ,abolition of untouchability. Article 18 speaks of abolition of titles. Article 20 deals with protection in respect of conviction for offences. Article 23 refers to prohibition of ttaflie in human beings and forced labour. Article 24 deals with prohibition of employment of children in factories, etc. Article 27 speaks of freedom as to liability for taxes levied for promotion of any particular religion. Article 28 contem-plates freedom as to attendance at religious instruction or religious worship in certain educational institutions. Article 29 deals wifh pro-tection of interests of minorities. Article 31 (2) prior to the Constitu-tion 25th Amendment Act spoke of payment of just equivalent for acquisition or requisition of property. Article 31(4) deals with legis-lation pending at the commencement of the Constitution. Articles 31(5) and (6) save certain types of laws. Article 31A saves laws providing for acquisition of estates etc. Article 32 confers right to move the Supreme Cuurt.

The Constitution is the higher law and it attllins form wl1ich makes possible the attribution to it of an entirely new sen of vali--dity, the validity of statute emanating from the sovereign people.

Jnvested with statutory form and implemented by judicial review higher law becomes juristically the most fruitful tor people. There is no higher law above the Constitution. .

Mr. Palkhivala relied on an Article by Conrad on Limitation of Amendment Procedure and the Constitutional Power. The writer refers to the Wtst G~rman Provincial Coustitution which has express!~· excluded basic rights from amendment. If that is so ~he question of basic rights being unamendable on the basis of higher law or natural law does not arise. The conclusion of the writer is that whereas the American courts ditl not consider declaring constitutional uorm void because of conflict with higher law the German Jurispruden'e broadened the concept of judicial review by recourse to natural law. The post-war Constitution of West Germany distinguished between superior and inferior co'nstitutional norms in so far as certain norm> are not subject to amendment whereas others are.

The Attorney General relied on Friedmann Legal Theory 5th Ed. on pp. 350 seq. to show that there was revival of natural law theory in contemporary German Legal Philosophy. This theory of n~tural law springs from the reaction against the excess of the Nazi regime. The view of Friedmann is that natural law may disgui~e to pose itself the conflict between the values which is problem of constant anti painful adjustment between competing interests, purpo'es and policies. This conflict is resolved by ethical or political evolu-tion which finds place in legi5lative policies and also on the impact of chr.nging ideas on the growth of law.Fundamental rights are social rights conferred by the Constitu-tion. There is no law above the Constitution. The Constitution dues not recognise any type of law as natural law. Natural rightS"are mm-med up under the formula which became common during the Puritan Revolution namely life, liberty and property.

The theory of evolution of positive norms by supra-positive law as distinguished from superior positive law had.important consequen-ces in the post-war revival of natural law in some countries particu-larly Germany. Most of the German Constitutions from the early 19th Century to the Nazi Regime did not provide for judicial review. Under the Wdmar regime, the legislature reigned supreme and le;zal positivism was brought to an extreme. The re•action after World War II was characterised by decreases of legislative power matched by an increaie of judicial power. It is in this context that Conrad's writing on which Mr. Palkhivala relied is to be understood. The entire suggestion is that norrns could not only be judged by supe-rior law namely consdtutional law but by natural law to broaden the scope of judicial review. The acceptance of the doctrine of judicial

review has been considered as progress in constitutional theory made berween Declaration of Independence and the Federal Convention at Philadelphia.

On the one hand there is school of extreme natural law philo-

sophers who claim that natural order establi5hes that private capita-lism is good and socialism is bad. On the other hand, the Il)IOrc extreme versions of totalitarian legal philosophy deny the basic value of the human personality as such. Outside these extremes, there is far greater degree of common aspirations. The basic autonomy and dignity of human personality is the moral foundation of the teach-ing of modern natural law philosophers, like Maritain. It is in this context that our fundamental rights and Directive Principles are to be read as having in the ultimate analysis common good. The Directive Principles do not constitute set of subsidiary principles to fundamental rights of individuals. The Directive Principles embody the set of social principles to shape fundamental rights to grant freer scope to the large scale welfare activities of the Staae. Therefore, it will be wrong to equate fundamental rights as natural, inalienable, primodial rights which are beyond the reach of the amendment of the Constitution. It is in this context that this Court in Baslkshar Nath v. CJ.T. Delhi (1959) Supp. I S.C.R. 528 said that the doctrine of natural rights is nothing but foundation of shiftmg sand.

Mr. Seervai rightly said that if the power of amendment of the

Constitution is co-extensive with the power of the judiciary ·to invali-date laws, the democratic process and the co-ordinate nature of the great departments of the State are maintained. The demqcratic pro-cess is maintained because the wiU of the people to secure the necessary power to enact laws by amendment of the Constitution is not defeated. The democratic process is also respected because when the judiciary strikes down law on the ground of lack of power, or on the ground of violating limitation on power, it is the dutv of the legislature to accept that position, bu~ if it is desired to pass the same law by acquiring the necessarv power, an amendment vali-dly enacted enables the legislatures to do so and the democratic will to prevail. This process harmonises with the theory of o~r Constitu-tion that the three great departments o.f the State, the leg1slature, the judiciary and the executive are co-ordinate and that none is superior to the other. The normal interaction of enactment of law by the legislation, of interpretation by the courts, and of the amendment of the Constitution by the legislature, go on as they were intended to go on.

If the power of amendment does not contain any limitation and if this power is .denied by reading into the Constitution inherent limi-tations to extinguish the validity of aU amendments on the principles

of essential features of the Constitution which arc undefined and un· termed, the courts will have to lay down new Constitution.

It is said that the frame of the Government cannot be changed or abrogated by amendment of the Constitution. There is before us no aspect of abrogation of the form of Government of the changes apprehended by the petitioners like the abrogation of the judiciary o~· extending the life of Parliament.

The problems of the times and the solutions of those problems are considered at the time of framing the Constitution. But those who frame the Constitution also know that new and unforseen problems may emerge, that problems once considered important may lose their importance, because priorities have changed; that solutions to problems once considered right and inevitable are shown to be wrong or to require considerable modification; that judicial interpretation may rob certain provisions of their intended effect; that public opinion may shift from· one philosophy of government to another. Changes in the ConSlitution arc thus actuated by sense of duty to the people to help them gca what they want out of life. There is no destiny of man in whose service some m;n can rightfully control others; there are onlY the desires and performances and ambitions that men actually ha,·e. The duty to maximise happiness means that it is easier to give people what they wan~ than to make them want what you can easily give. The framers of the Constitution did not put any limitation on the amending power because the end of Constitution is the safety, the greatness and well being of the people. Changes in the Constitution serve .these great ends and carry out the real purposes of the Constitu-tion.

The way in which the doctrine of inherent and implied limita-tions was invoked by Mr. Palkhivala in interpreting the Constitution was that the test of power unrle.r the Constitution must be to ascertain the worst that can be done in exercise of such power. Mr. Palkhivala submitted that if unbridled power of amendment were allowed the basic features of our constitution, namely, the republican and/or democratic form of governmer..t and fundamental Tights could be destroyed and India could be converted into rotalitarian dictatorship. The Court was invited to take into account the consequences of tho kind described. Mr. Palkhivala suggested that wide power of amend· ment would lead to borrow his words to the liquidation of our Cons-titution.

The Attorney General rightly said that the unambiguous meaning of amendment could not be destroyed to nurse the theory of implied limitations. He also said that the live distinction between power and· exercise of power is subject to popular will and popular control. The

'424 SUPREME COURT REPORTS [1973] Supp. s.c.11.

theory of implied and inherent limil!ltion was repudiation of dcin<>-cratic process. The Attorney General and Mr. Seervai also rightly said that the approach of the petitioner to die power of amendment con-tained in Article 368 of the Constit,Uti.on ignores the fact that the object of the Constkution is to provide for departments of Sta~ like the judiciary, the legislature and the executive for the governance of {;Ountry. Apart from the essential functions ofdefence against external .aggression and of maintenance of internal; order modern State is organised to secure the welfare of the people. Parliament and State legislatures are elected on adult universal suffrage. The country is :governed by the Cabinet system of Government with ministries res-ponsible to the Houses of Parliament and to the Legislative Assemblies.In democracy the determination of the right policies to be pur· sued can only be determined by majority vote cast at election and then by majority of the elected representatives in the legislature. Dem<>-cracy proceeds on the faith in the capacity to elect their representatives, and faith in the representatives to represent the people. The argument that the Constitution of India could be subverted or destroyed might have hortative appeal but it is oot suppo~le by the actual experience in our country or in any countr~. The two basic postulates in dem<>-cracy arc faith in human reason and faith in human nature. There is no higher faith than faith in democratic process. Democracy on adult suffrage is great experiment in our country. The roots pf our democracy are in the country and . faith in the common man. That is how Mr. Seervai said that between 1951 when this Court recognised in Sankari Prasad case unlimited power of amendment till Gola/(. Nath decision in 1967 the normal democratic process in our country function-ed as provided by the Constitution.

The principle underlying the theory of taking consequences into account is best expressed in Vacher & Sons v. London Society of Com. positors 1913 A. C. 107, where it was said that if any particular cons-truction in construing the words of statute was susceptible to ·mo~ ·than one meaning, it was legitimate to consider the consequences which would result from any particultu construction. The reason is that there are many things which the legislation is presumed not to have intended to bring about and therefore construction which. would not .lead to any of these things should be preferred to one which would lead to one or more of them.

The doctrine of consequences has no application in construing grant of power conferred by Constitution. In considering grant of power the largest meaning should be given to the words oi: the power in order to effectuate It fully. The two exceptions to this rule are these. First, in order to reconcile powers exdusivcly conferred Oil ditfc1ent legislatures, narrower meaning can be given to one oE the powers

in order that both may operate as fully as is possible. (See C. P. & Berar case 1938 F.C.R. 18 and Province of Madras v. Governor General 72 I.A. 93). Second, technical terms must be given their technical meaning even though it is narrower than the ordinary or popular meaning. The State of Madras v. Gannon Dunkerley & Co. (Madras) Ltd. 1959 S.C.R. 379. In our Constitution powers are divided between federation and the States. An attempt must be made to find the power in some entry or other because it must be assumed that no power was intended to be left out.The theory of conseguentes is misconstrued if it is taken to mean that considerations of policy, wisdom and social or economic policies are included in the theory of consequences. In Vacher case it was said that the judicial tribunal has nothing to cio with the policy of any Act and the only duty of the Court is to expound the language of the Act in accordance with the settled rules of construction. In Attorney Genera! for Ontario v. Attorney General for Dominions 1912 A.C. 571 the Privy Council refused to read an implication in the Constitution ot Canada that there was no power to refer matter for the advisory opinion of the highest Court because advisory opinions were prejudicial to the correct administration of justice and were embarrassing to Judges themselves who pronounced them, for humanly speaking it would be ' diflicult for them to hear case on merits if they have already ex-pressed an opinion. The Privy Council rejected this argument and said that so far as it was matter of wisdom and policy it was for the determination of Parliament. In Bank of Toronto v. Lambe ( 1887) 12 A.C. 575 the Privy Council was invited to hold that the legislature of province could not levy tax on capital stock of the Bank, for that power might be exercised to destroy the Bank altogether. The Privy Council observed that if on true construction of section 92 of the British North America Act ·the power fell within the section, it would be wrong to deny its existence because by some possibility it might be abused.

The absurdity of the test of the worst that can be done in exercise of power is demonstrated by the judgment of Chief Justice Taft in Gross-man 69 L.Ed. 527=267 U.S. 86 where it was said that if those who were fo separate control of each of the three branches of Govern-ment were bent upon defeating the action of the other, normal opera-tions of Government would come to hak and could be paralysed. Normal operations of the Government assume that all three branches must oo-operate if Government is to go .on. Where the meaning is plain the Court must give effoct to ~t even if it considers that such meaning would produce unreasonable result.. In the Bihar Land Reforms case 1952 S.C.R. 889 Mahajan, J. said that agrarian laws enacted by the legislature and protected by Articles 31(3) and (4) provided compensation which-

might appear to the Court unjust and inequi11able. But the Court gave effect to Articles 31(3) and (4) because the results were intended and the remedy for the injustice lay with the legislanure and not with the Court. The construction to avoid absurdity must be used with great caution.

In Grundt case 1948 Ch. 145 it was said in choosing between two possible meanings of ambiguouos words, the absurdity or the non-absurdity of one conclusion as compared with another might be of assistance and in any event was not to be applied as to result in twisting the language into meaning which it could not bear.

The Attorney General rightly submitted that if power is conferred which is in clear and unambiguous language and does not admit of more than one construction there can be no scope for narrowing the clear meaning and width of the power by oonsidering the consequences of the exercise of the power and by so reading down the power. The question is not what may he supposed to be intended but what has been said. See Ross v. lllison 1930 A.C. 1. The Supreme Court in Damselle Hotvard v. Illinois Central Rail Road Co. 207 U.S. 463 said that you cannot destroy in order to save or save in order to destroy. The real import is that new law cannot be made by construction. The question is one of intention. meaning cannot be different which it cannot reasonably bear or will be inconsistent with the intention. The very basis of Parliamentary democracy is that the exercise of power is always subject to the populiar will and popular control. The peti-tioner's theory of implied and inherent limitations is repudiation of this democratic process. The underlying theory of democratic go,,ern-ment is "the right of majority to embody their opinion in law subject to the limitations imposed by the Constitution", per Holmes, J. in Lochner v. Netv York 198 U.S. 45=49 L. Ed. 937. In our Constitution Article 368 contains no express limitation on the amendment of any provision of the Constitution.

~fr. Palkhivala relied on the amending provisions 'in the Constitu-tion of America, Canada, Australia, Ireland and Ceylon and also deci-sions on the power of amendment in those countries in support of his submissions that restricted meaning should be attributed to the word ''amendment" and implied and inherent limitations should be read into the meaning and power of amendment.

Mr. Palkhivala also relied on the opinion of Cooley in Treatise on the Constitutional Limitations at pages '36-37 that "a written Cons-titution is in every instance limitation upon the powers of government in the hands of agents; for there never was written republican constitution which delegated to functionaries all the latent powers which lie dormant in every nation, and arc boundless in extent, and

incapable of definition". This view of Cooley is not relevant to the amending power in Article V of the American Constitution. This view relates to the legislative power that written Constitution is limita-tion upon the powers of the Government, namely, the legislature, the executive and the judiciary.

The other views of Cooley in Constitutional Limitations at pages 341-343, 345-348, 351-354 are these. First except where the Constitution has imposed limitations upon the legislative power it must be consider-ed as practically absolute, whether it operates according to natural justice or not in any particular case. Second, in the absence of constitu-tional restraint the legislative department of State Government has exclusive and ample power and its utterance is the public policy of the State upon that subject, and the Courts are withour power to read into the Constitution restraint of the legi::lature with respect thereto. Third, if the Courts are not at liberty to declare statutes \'oid because of their apparent injustice of impolicy, neither can they do ,so because they appear to the minds of the Judges to violate fundamental princi-ples of republican Government, unless it shall be found that those principles are placed beyond legislative encroachment by the Constitu-tion. The principles of republican government are not set of inflexi-ble rules, vital and active in the Constitution, though unexpressed, but they are subject to variation and modification from motives of policy and public necessity. Fourth, the Courts are not at liberty to declare an act void, because in their opinion it is opposed to spirit supposed to pervade the Constitution, but not expressed in words.

Mr. Palkhivala relied on the views of George Skinner published in 18 Michigan Law Review (1919-1920) pages 21-225 to build the theory of implied and inherent limitations. The views extracted are these. The power given by the Constitution cannot be construed to authorise destruction of other powers in the same instrument. The essential form and character of the Government, being determined by the location and distribution of power, cannot be changed, only the exercise of governmental functions can be regulated. somewhat different view of Skinner in the same Law Review is that it is not likely that the Supreme Court would put any !imitations upon the power 0£,Congress to propose amendments and in construing the Fifth Article it would be unwilling to say Congress had proposed an amend-ment which it did not deem necessary. The discretion is left entirely with Congress.

The other View on which Mr. Palkhivala relied is of William L. Marbury published in 33 Harvard Law Review (1919-1920) at pp. 223-235. The views which Mr. Palkhivala extracted are that it may be safely premised that the power to amend the Constitution was not intended to include the power to destroy it. Marbury relies on Livermore v.

W iu'te 102 Cal 118 where it is stated that the term "amendment" implies' such an addition or change within the lines of the original instrument as will effect an improvement, or better carry out the purpose for which it was framed.

There are other views of Marbury on which the Attorney General relied and which were not extracted by Mr. Palkhivala. Those views are .that after excluding from the scope of its amending power in Article V of the American Constitution such amendments as take away legislative 1'9Wers of the State there is still left very broad field for its operation. All sorts of amendments might be adopted which would change the framework of the federal Government, the thing which the-Constitution was created to establish, which would change the distri-bution of power among the various departments of the Government, place additional limitations upon them, or abolish old guarantees of civil liberty and establish new ones.The Attorney Generai also relied on the view of Frierson published in 33 Harvard Law Review pp. 659-066 as reply to Marbury. Frierson's view is that tlhe security for the States was provided for by the prov'ision for the necessity of ratification by . three-fourths of the-States. The Constitution committed to Congress and not to the Courts the duty of determining what amendments were necessary. The rights of the States would certainly be safer in the hands of three-fourths of the States themselves. This is considered by the framers of the Cons-titution to ensure integrity of States.

The Attorney ·General also relied on the view of McGovney pub-lished in Vol. 20 Columbia Law Review. McGovney points out dis-tinction between polirical society or S~te on the one hand and gov-ernmental organs on the other to appreciate that constit111tional limita-tions are against governmental organs. The writer's view is that an individual has no legal rights against sovereign organised political society except what the society gives. The doctrine of national sove-reignty means that people who made the existing distribution of powers between the federal and the State Governments may alter it. Amend-ment is left to legislatures because as matter of convenience the legis-latures generally express the will of the people. In the Constitution the people prescribe the . manner in which they shall amend the Constitu-tion. McGovney states that_ an amendment of particular statute means 'Usually it is change germane to the subject matter of that statute. Any change in the GOvernment of the nation is germane to the Constirution. Any change altering the disposition$ of power would therefore be germane to the purposes of the instrument. McGovney's view is that it is clear that no limitation on the amending power can be found in this notion of necessity for germaneness.

The AttQrney General also relied on an Article "On the views of W. F. Dodd published in 30 Yale Law Journal p. 321 seq. and of H. W. Taft, published in 16 Virginia Law Review p. 647 seq. The view of Dodd is this. There are no implied limitations on the amending power. The Supreme Court in the National Prohibition cases rejected the argu-ments presented in favour of implied limitations. To narrow down the meaning of amendment Of to adopt implied limitations would not only narrow down the use of the amending power but would also leave the question of amending power in ea.ch case to judicial decision without the guidance of any legal principle. Taft's view is that by reason of the Tenth Amendment which provided that the powers not delegated tJo the Uruted States by the Constitution nor prohibited by it to the States are reserved to the States respectively or to the people, the amending power in Article V of the American Constitution was not limited by .the Tenth Amendment.

The question which has arisen on the Fifth Article of the Ameri-can Constitutioo is whether there are implied limitatioru; upon the power to amend. The two express limitations were these. First, r,o amendment . which may be made prior to 1808 shall in any manner effect the First and the Fourth cbauses in the Ninth Section of the First Article. That Limitation became exhausted by passage of time. The second exnress limitation is that no State without its consent shall be deprived of its equal suffrage in the Senate. The express limitation is to safeguard the equal representation of the smaller States in the Senate. The limitation can only be changed by unanimous consent of the States.The 18th Amendment was vigorously attacked in the National Prohibition Cases on the ground that it overstepped alleged implied limitations on the Constitution amending power. The arguments advanced· were these. First, the 18th Amendment which introduced prohibition was not in fact an amendment for an amendment is an alteration or improvement of that which is already contained in the Constitution and the term is not intended to include any addition of entirely new grants of power. Secondly, the amendment was not an· amendment within the meaning ·of the Constitution because it is in its nature legislation and that an amendment of the Constitution can only attect the: powers of government and cannot act directly upon the rights of individuals. Third, that the Constitution in all its parts looks to an indestructible nation composed of indestructible States. The power of amendment was given for the purpose of making altera-tions and improvements and any attempt to change the fundamental basis of the Union is beyond the power delegated by the Fifth Article. 28-36 S, C. lndia/71

The decision in the National Prohibition Cases is that there is no limit on the power to amend the Constitution except that State may not without its consent be deprived of its equal suffrage in the Senate.

In Rhode Island v. Palmer 253 U.S. 350=64 L. Ed. 947 the 18th Amendment was challenged to be not within the purview of Article V. The iutlgment in Rhode Island case was that the amendment was valid. In Rhode Island case the grounds of attack were that the amendment was legislative in character and an invas\on of nallural rights and . an encroachment on the fundamental principles of dual sovereignty but the contentions were overruled.

In Hawke v. Smith 253 U.S. 221 question arose as to whether the action of the General Assembly of Ohio ratifying the 18th Amend-ment known as National ProhiLition could be referred to the electors of the State under the provisions of the State Constitution. It was held that these provisions of. he State were inconsistent with the Constitution of the United States. The decision of the Court was unanimous. The two methods of ratification prescribed by Article V of the Constitution are by action of the legislatures of the three-fourths of the States or conventions in the like number of States. The determination of the method of ratification is the exercise of national power specifically granted by the Constitution~ That power is conferred upon Congress. Article V was held to be plain and to admit of no doubt in its inter-pretation. The choice of means of ratification was wisely withheld from conflicting action in the several States.

Again, in Lesser v. Garnett 258 U.S. 130 there was suit to strike out the names of women from the register of voters on the ground chat the State Constitution limited suffrage to men and that the 19th Amendment to the Federal Constitution was not validity adopted. The 19th Amendment stared that right of ci~ens to vote shall not be denied on account of sex. It was contended that the amending power did not extend to that situation. The Supreme Court there rejected that con-tention. The Supreme Court said tlhat the function of State legislature in ratifying the proposed amendment to the federal Constitution l'ike the function of Congress in proposing the amendment is a· federal function derived from the federal Constitution; and it transcend! any limitations sought to be imposed by the people of a. ~tate.

In United States v. Sprague 282 U.S. 716 contention was advanced that the 10th Amendment recognised distinction between powers reserved to the States and powers reserved to the people and that State legislatures were competent to delegate only the former to the National . Government; delegation of the latter required action of the people

through conventions in the severa~ states. The 18th Amendment being ·of the latter character, the ratifiqtion by State legislatures was conten-ded to be invalid. The Supreme Court rejected the argument. It found the language of Article V too clear to admit of reading any exceptions into it by implication.

The decisions iii Rhode Island v. Palmer 253 U.S. 350, Hawke v. Smith 253 U.S. 221, Leser v. Garnett 258 U.S. 130 and United States v. Sprague 282 U.S. 716 are all authorities for the proposition that there is no implied limitation on the power to amend. The 18th Amendment was challenged on the ground that ordinary legislation could not be embudied in constitutional amendment and that Congress cannot constitutionally propose any amendment which involves the exercise or relinquishment of the sovereign powers of State. The 19th Amend-ment was attacked on the narrower ground that State which had not ratified the amendment would be deprived of its equal suffrage in the Senate because its representatives in that body would be persons not of its choosing. The Supreme Court brushed aside these arguments as wholly unworthy of serious attention and held both the amendments valid.

Mr. Palkhivala contended the word "amendment" in Article 368 would take its colour from the words "change in the provisions" occurring in the proviso. The American decisions illustrate how the Supreme Court consistently rejected the attempts to limit the meanings of the word "amend" in Article V of their constitution because of the reference to ratification by legislatures or conventions. Where words are read in their context there is no question of implication for cor.-text means parts that precede or follow any particular passage or text and fix its meaning.

The rule of nosciitur sociis means that where two or more words which are susceptible of analogous meaning are couplied together, they are understood to be used in their cognate sense. They take their colour from each other, the meaning of the more general being restricted to sense analogous to that of the less general.

This rule has been found to have no application to Article V of the American Constitution because conventions and legislatures are both deliberative bodies and if an amendment can be submitted either to the legislatures of States or to conventions at the absolute discretion of the Congress, it is difficult to say that the character of the amend-ment is in any way affected by the machinery by which the amendment is to be ratified. In Rhode Island case the contention that an amend-ment of the Constitution should be ratified by conventions and not by legislatures was rejected. In Sprague case the ;ontention that matters

affecting the liberty of citizens could only be ratified by conventions was not accepted and the Supreme Cour.t refused to read any implica-tion into Article V of the American Constitution. The Supreme O:Jurt said that in spite of the clear phraseology of Article V, the Court was asked to insert into it limitation on the discretion conferred on it by the Congress. The Supreme Court did not accept any implied limi-tation. Where the intention is clear there is no room for construction and no excuse for interpolation or addition. In Feigenspan v. Bodine 264 F. 186 It has been said when the people delegated the power of. amendment ro their representatives the power of amendment cannot be excluded in any way other than prescribed nor by any instrumenta-lity other than there designated.Mr. Palkhivala relied on some Canadian decisions the Initiative anti Referendum case 1919 A.C. 935, Switzmen v. Elbling 1957 Canada Law Reports 285, Rex v. Hess (1949) 4 Dominion Law Report 199; and Saumur v. City of Quebec and Attorney General of Quebec (1953) 4 D.L.R. 641 and Chabot v. School Commissioners of Lamor~diere anil Attorney General for Quebec (1958) 12 D.L.R. 796, in support of three propositions. First, unlimited legislative jurisdiction of the Dominion Parliament in Canada is under inherent limitation. by reason of the preamble to the British North America Act which states that the Constitution is similar in principle to the United Kingdom. Second, the Dominion legislature cannot-detract from the basic rights of free-dom of speech and political association which are available in the United Kingdom. Third, rights which find their source in natural law cannot be taken away by positive law.

In the Initiative and Referendum case the Judicial Commitke said that section 92 of the Briti5h North America Act entrusted legislative. power in province to1 its legislature and to that legislature only. power ot legislation enjoyed by provincial legislatare in Canada can while preserving its own capacity intaot seek the assistance of subordi-nate agencies as in Hodge v. Queen 9 App. Cas. 117 the legislature of Ontario was held to be entitled to entrust to the Board of Commis-sioners authority to enact regulations. It does not follow that such legislature can create and endow with its own capacity legislative power. The Initiative and Referandum case decided that in the absence of clear and unmistakable language the power which the Crown possessed through person directly representing the Crown could not be abrogated. The Lieutenant Governor under the British North America Act referred to as the B. N. A. Act was an integral part of the legislature. The Initiative and Referendum Act was found to be one which wholly excluded the Lieutenant Governor from legislative authority. The only powers of veto and disallowancc preserved by the Initiative and Referendum Act were related to acts of legislative

Xl!SAVANANDA I/, KERALA (Ray, J.)

Assembly as distinguished from Bills. Therefore the powers of veto and disaJowancc referred to could only be those of the Governor General under section 90 of the B. N. A. Act and not the powers of the Lieu-tenant Governor whlch arc at an end when Bill has become an Act. Section 11 of the Act provided that when proposal for repeal of some law has been approved by majority of the electors voting that law is automatically to be deemed repealed, at the end of 30 days after the publication in tlie Gazette. Thus the Lieutenant Governor appears to be wholly excluded from the lcgisl~tive authority. The Initiative and Referendum decision related to 'an Act of the legislature and secondly to the Act being ultra vires the provwons of the B.N.A. Act. This is not at all relevant to the amending power of Constitution. The Act was found to be 'invalid because the machinery which it provided for making the Laws was contrary to the machinery set up by the B.N.A. Act. The impugned Act rendered the Lieutenant Governor powerless to prevent law which had· been submitted to voters from becoming an actual law if approved by the voters. The impugned Act set up legislature different from that constlituted by the B.N.A. Act and this the legislature had no power to do.The other Canadian decisions arc based on three views. The first view is based on the preamble to the B.N.A. Act that the Provinces expressed their desire to be federally united into one Dominion, with Constitution similar to that of the United Kingdom. The corollary extracted from the preamble is that neither Parliament nor Provincial legislat'Ures may infringe on the traditional liberties because of the Preamble to the B.N.A. Act and reference to British Constitutional History. The second view expressed in the decisions is that the basic liberties are guaranteed by implication in certain sections of the B.N.A. Act. Section 17 establishes Parliament for Canada. Section 50 provides that no House of Commons shall continue longer than five years. These sections are read by the Canadian decisions to mean that freedom of speech and freedom of political association should continue. The third view is that some rights find thci.F source in natural law which cannot be taken away by positive law.

The first view found expression in Switzman case. There was an Act respecting communistic propaganda. The majority Judges found that the subject matter was not within the powers assigned to the Pro-vince by section 92 of the B. N. A. Act. They further held that the Act constituted unjustifiable inl'Crfc_rcncc with freedom of speech and ex-pression essential under the democratic form of government establish-ed in Canada. The Canada Elections Act, the B.N.A. Act provided for election of Parliament every five years, meeting of Parliament once year. It was contended that it was implicit in all legislations the right of candidates to criticise, debate and discuss political, economic and social principles.

Hess case raised question of jurisdiction of the Court to grant bail. Under section !025A of the Criminal1 Code person was detained in custody. Section 1025A providro that an accused might be det:1ined in custody without bail pending an appeal to the Attorney General.

The Saumur case related to municipal bye-law requiring permis-sion for disribution of books and tracts in the city streets. The Sa11mur case reli~d on the observations of Duff, C.J. in Re Albert Legislation (1938) 2 D.L.R. 81==1938 S.C.R. 100 that the right of free public dis-c~ssion on public affairs is the breath of life for parliamentaly i11stitu-t10ns.

In Chabot case public schools in the Province of Quebec were operated by School Commissioners ePected by tax payers of whom the religious majority were Catholics. dissident tax payer raised the question as to whether dissidents might establish their own schools or they might send them to school of neighbouring municipality and thereupon, become exempt from paying tax. The majority held that certain regulations passed by the Catholic Committee were intra vires because they must be construed as confined to Catholic children.

The Canadian decision show first that certain Judges relying on the Preamble to the B.N.A. Act that the Canadian Constitution is to be similar in principle to that of the United Kingdom raised the vires of some of the legislations affecting freedom of speech. Secondly, the Canadian Constitution was given by the British Parliament and if the Judges who used such dicta referred to that part of the Preamble they were emphasising that the rights of the Canadian people were similar to those in England. Thirdly, it has to be remembered that the Canadian Constitution has been developed through usage and conventionl.None of these decisions relates to amendment of the Constitution. None of these decisions indicates th;it there is any inherent limitation on the amendment of the Constitution. The Preamble to the B.N.A. Act shows that the Canadian Constitution enjoined observance of funda-mental principles in British constitutional practice. The growth of the Canadian Constitution was through such usage and convention. Our Constitution is of sovereign independent republican country. Our Constitution does not draw sustenance from any other Constitution. Our Constitution does not breathe through conventions and principles of foreign countries.

There are no explicit guaranteed liberties in the British North America Act. In Canada the constitutional issue in civil liberties legis-lation is simply whether the particular supersession or enlargement ,is competent to the Dominion or the Province as the case may be. Apart

,from the phrase "civil rights in the Province" in section 92(13) there • i• no language In sections 91 and 92 which even remotely expresses civil liberties vahies.

The Canadian Bill of Rights assented to in 1960 in section 2 states that every law oc Canada shall unless it is expressly declared by an Act of Parliament of Canada that it shall operate notwithstanding the Canadian Bill of Rights be so construed and applied as not to abrogate, or infringe or authorise abrogation, abridgement or infringement of any of the rights of freedom recogn'.ised and declared. The view of Laskin in Canadian Constitutional Law (3rd Edition) (1%9) is that in terms of legislative power the political liberties represent independent consti-tutional values which are exclusively in federal keeping. Since the enactment of the Canadian Bill of Rights the question has hardly any substantive effect because the Canadian Parliamena can make decla-ration in terms of section 2 of the Bill of Rights that law abrogating freedom in the Bill of Rights is operative.

Mr. Palkhivala relied on llhe Australian decisions in 'Taylor v. Attorney General of Queensland 23 C.L.R. 457 and Victoria v. Common-wealth 45 Australian Law Journal 251 in support of the proposition that thrre is inherent and implied limitation on the power of amendment.

In Taylor case the Parliamentary Bills Referendum Act- of 1908 was challenged. The Parliament Bills Referendum Act provided that when Bill passed by the Legislative Assembly in .two successive sessions has in the same two sessions been rejected by the Legislative Council:, it may be submitted by referendum to the electors, and, if affirmed by them, shall be presented to the Governor for His Majesty's assent, a!Jd upon receiving such assent the Bill shall become an Act of Parliament in the same manner as· if passed by both Houses of Parliament, and notwithstanding any law to the contrary; The Austra-lian States Constitution Act, 1907 provided that it shall not be neces-sary to reserve, for the signification of His Majesty's pleasure thereon, any Bill passed by the legislatures of any of the States if the Governor has previously received instructions from His Majesty to assent and does assent according~ to the Bill.

In 1915 the Legislative Assembly of Queensland passed Bill to amend the Constitution oc Queensland by abolishing the Legislative Council. The Bill was passed by the Legislative Assembly. The Le~ lative Council rejo:tcd the Bill. The Legisliative Assembly again passed the Bill The Legislative Council again rejected the Bill. The Governor in accordance with the Parliamentary Bills Referendum Act

1908 issued regulations proviiding for the taking of the Referendum polls. It was argued that the Constitution ought to have been first amended.

The questions for· the opinion of the Court were : (1) Is ·the Constitution Act, Amendment Act of 1908. valid and effective Act of Parliament? (2) Is the Parliamentary Bills Referendum Act of 1908 valid and effective Act of Parliament ? (3) Is there power to abolish the Legislative Council of Queensland by an Aot passed in accordance with the provisions of the Parliamentary Bills Referendum Act of 1908 ? ( 4) Was the Referendum valid ?

The Colonial Laws Validity Act 1865 'in section 5 conferred full power on every representative legislature to make l;iws respecting the constitution, powers and procedures of such legislature; provided that such laws shall have been passed in such manner and form as may from time to time be required by any Act of Parliament, letters patent, Order in Counci~ or colonial laws for the time being in force in the said colony. The Parliamentary Bills Referendum Act was Leid · to be an Act respecting the powers of the liegislature. Section 5 of the Colonial Laws Validity Acn provided the authority for the legislation.

Mr. Palkhivala extracted three propositions from the Taylor case. First, probably the power to make laws respecting the Constitution, power and procedure of such legislature docs not extend to authorise the elimination of the represelltativc character of the legislature within the meaning of the Act p. 468 per Barton, J. Second, probably the representative character of the legislature is basic condition of the power relied on, and is preserved by the word "such" m the colloca-tion of words in the Constitution "of such legislature" p. 474 per Issacs, J. Third, when power is given to Colonial. legislature to alter the Constitution of the legislature that must be read subject to the fundamental conception than consistently with the very nature of the Constitution as an Empire, the Crown 'is not included in the ambit of such power p. 474 per Issacs, J.

The decision m Taylor case was to the effect that the Acts did not alter the representative. charac~r of the legislature as defined in section 1 of the Colonial Laws Valiidity Act, 1865, nor did they affect the position of the Crown. The first two propositions on which Mr. Palkbiivala relied, namely, the observations of Barton and Issacs, JJ. p. 468 and p. 474 were both prefaced by the word "probably" which amply shows that the observations are obiter. The question whether the representative character of the legislature could be changed or whether the Crown could be eliminated did not call for decision. The other learned Judges Gavan Duffy and Rich, JJ. said "It may perhaps

be that the legislature must always remain representallive legislature as defineJ by the statute, but it is unnecessary in the present case to <letermine whether that '1s so or not".

Issacs, J. held in that case that the· word "legislature" did not include rhe Crown because section 7 of the Colonial Laws Validity Act used the expresSlion "legislature" followed by the words "or by persons or bodies of persons for the time being acting as such legisla-ture" to show that the legislature was exclusive of the Crown. The assent of the Queen or the Governor· was thus regarded as an addi-tional factor. Therefore, Issacs, J. said that when power is given to the Colon;cl legislature to alter the Con•titullion that must be read subject to the fundamental conception, that the Crown is not included in the ambit of such power. Those observations are made in the con-text ot the provisions of the Colonial Laws Validity Act where "colony" is defined to include all of Her Majesty's possessions abroad". The observations therefore mean that when power to alter the Cons-titution was conferred upon colony which is part of Her Majesty's possessions abroad it is reasonable to assume that such power did not include power to eliminate the Queen as part of colonial legislature.The representative character of the legislature does not involve oany theory of implied limitation on the power of amendment. Such legislature as was emphasised by Issacs, J. shows that the !imitation ·On the power of amendment flowed from express language of section ·5 of the Colonial Laws Validity Act and was not dependent upon .any implication.

In the State of Victoria case th~ valid'ity of the Pay-Roll Tax Act, 1941 was impugned on the ground that it was beyond the legislative competence of the Commonwealth. The Pay.-Roll Tax Assessment Act 1941-69 made the Crown liable to pay tax on the wages payable to named categories of employees of the State of Victoria. The Cemmon-·wealth Parliament, in the exercise of its power under section 5l(ii) of the Constitution to make laws with respect to taxation, but so as not to discriminate between States or parts of State was held com-petent to include the Crown in right of State in the operation of law imposing tax or providing for the assessment of tax. The inclusion of the Crown in right of State in the definition of "em-ployed" in section 3(1) of the Pay-Roll Tax Assessment Act 1941-1969 thus making the Crown in right of State liable to pay the tax in respect of wages paid to employees including employees of depart-·ments engaged in strictly governmental functions was also held to be valid exercise of the power of the Commonwealth under section 51 o( the Constitution. Section 114 of the Constitution enacts ban on the

imposition by the Commonwealth of tax on property of State. This ban wos not offended. law which in substances takes Srate or its powers or functions of government as its subject matter is invalid' because it cannot be supported upon any grant of legislative power, but there is no implied limitallion on Commonwealth legislative power under the Constitution arising from the federal nature of the Consti-tufion .. There was no necessary implication restraining the Common-wealth from making law according to the view of three learned' Judges. Four other learned Judges held that there is an implied limi-tation as lack of Commonwealth legislatlive power but the Act did not offend such limitation ..

The limitation which was suggested to be accepted was that Commonwealth fuw was bad if it discriminated against States in the sense that it imposed some special burden or disability upon them se> that it might be described as law aimed at their rdtridtion or control.

In the Australian case Barwick, C.J. stated that the basic principles·

of construction of the Australian Constitution were definitely enun-ciated in the Amalgamated Society of Engineers v. Adelaide Steam.<hif" .Co. Ltd. (1920) 28 C.L.R. 129 which unequivocally rejected the doc-trine that there was an implied prohibition in the Constitution against the exercise in relation to State of legislative power of the Com-monwealth in accord\tnce with the ordinary rules of Constitution.

Mr. Palkhivala relied on some Irish cases in support of theory· of implied and inherent limiitafions.

In Rayan case 1935 Irish Report 170 the validity of amendment of Article 50 of the Irish Constitution which came into existence in 1922 fell for cons.ideration. Article 50 provided that within 8 years from the commencement of the Constitution amendments to the Constitution were to be made by ordinary legislation. After the expiry· of 8 years amendments were to be made by roferendum. The other provision in Article 50 was that amendment "shall be subject to the provisions of Article 47" of the Cons!iitution. Article 47 made pr<>" visions for the suspension in certain events of any Bill for period of 90 days and for the submission of any bill so suspended to referendum if demand should be made. By an Amendment Act in 1928 reference to the provisions of Article 47 was repealed. In 1929 before the expiry-of 8 years there was an amendment of the Constitufion whereby the period of 8 years was changed to 16 years. Both the amendments were upheld. Amendment were challenged on two grounds : First, that many Articles of the Constlitution are so fundamental as to be-incapable of aheration. Second, Article 50 does not autlioris.e any change in these fundamental Articles.

The decision of the Judicial Committee in Moore & Ors. v. Attorney General jor the Irish Free State & Ors. 1935 A.C. 484 throws flood of hight on the question of amendment of the amending power in written Constitution. The Treaty and the Constituent Act sche-duled to the Irish Free Constitution Act, 1922 being parts of an Imperial Act formed parts of the statute law of the Unin:ed Kingdom. The first clause of the Treaty provided that Ireland shall have the same constitutional stl.tus in the community of nations known as the British Empire as the Dominion of Canada, Commonwealth of Aus-tralia, the Domin.ion of New Zealand, and the Union of South Africa with Parliament having force to make laws for the peace, order and good government of Ireland and an Executive responsible to that Parliament and shal~ be styled and known as the Irish Free State. The second clauso of the Treaty provided that the law practice and constitutional usage governing the relationship of the Crown or the representative of the Crown and of the Imperial Parliament to the Dominion of Canada shall govern their relationship to the Irish Free State. Of the Articles of the Constitution, Article 12 created legisla-ture known as the Oireachtas and the sole and .exclusive power of making laws for th~ peace, order and good government of the Irbh Free State was vested in the Oireachtas.

Article 50 provided that amendment$ of the Constitution within the terms of the Scheduled Treaty might be made by the Oireachtas. Article 66 provided that the Supreme Court of the Irish Free State would have appellate jurisdiction from all decisions of the High Court and the decision of the Supremo Court would be final and conclusive. The proviso to that Article stated th:111: not!liing in the Constitution shall impair the right of any person to petition His Majesty for special leave to appeal from the Supreme Court to His Majesty in Council. The proviso to Article 66 was inserted to give effect to Article 2 of the Treaty and hence under Article 50 of the Constitution it was argued that the proviso to Article 66 could not be amended in the way it was sought ·to amend it by abolishing tlhe right of appeal. Article 50 contained another limitation that amendments within the terms of the Treaty might be made. Clause 2 of the Treaty provided that relations with the Imperial Parliament should be the same as the Canadian. By Amendment Act No. 6 of 1933 the words "within the terms of the Treaty" were deleted from Article 50. Thereafter Amend-ment Act No. 22 of 1933 was passed abrogating right of appeal to the Privy Council.The Judicial Committee in Moore case noticed that "Mr. Wilfrid Greene for the petitioners righdy conceded that Amendment Act No. 16 of 1929 which substituted for the 8 years specified in Article 50 as the period during which amendment might be made without

referendum period of• 16 years was regular and that the validity of the subsequent amendments could not be attacked on the ground that they had not been submitted to the people by referendum. ·

· It was argued by Mr. Greene in that case that the Constituent

Assembly having accomplished its work went out of existence leaving no successor and no body in authority capable of amending the Cons-tituent Act. The argument was in effect ·that the Constitution was semi rigid Constitution that is one capable of being amended in detail in the different Articles according to their terms, but not susceptible of any alteration so far as concerns the Constituent Act, unless perhaps by the calling together of new constitution assembly by the people of Irel;i.nd. The decision of the Supreme Court of Ireland in Ryan .case was referred to by the Judical Committee. The Judicial Committee held that the Oireachtas had power to repeal or amend the Constitution Act and in repealing or amending of parts of an imperial Statute, namely, the Irish Free State Constitution Act, 1922 what the Oireach- . tas did must be deemed to have been done in the way in which alone it could legally be done, that is by virtue of the powers given by the statute. The abolition of appeals to Privy Council was valid amend-ment.

The decision in Liyanage v. Queen (1%7) 1 A.C. 259 was also relied -011 by Mr. Palkhivala for the theory of implied and inherent limita-tions. The Criminal Law Amendment Act passed by the Parliament of Ceylon in 1%2 contained substantial modifications of the Criminal 1'rocedure Code. There was ex post facto legislation of detention for 60 days of any person suspected of having committed an offence against the State by widening the clas:i of offences for which trial without jury by three judges nominated by the Minister of Justice would be ordered. An arrest without warrant for waging war against the Queen became permissible and new minimum penalties for that offence were prescribed and for conspiring to wage war against the Queen and overawe the government by criminal force, and by widen-ing the scope of that offence. The Act also provided for the admission in evidence of certain confessions and statements to the police inad-missible· under the Evidence Code. The Act was expressed to be retrospective to cover an abortive coup d'etat on 27 January, 1%2 in which Liyanage and others took part, and was to cease to be operative after the conclusion of all legal proceedings connected with or inci-dental to any offence against the State committed on or about the date of the commencement of the Act, whichever was later. The second Crirninal Law Amendment Act of 1%2 (No. 31 of 1962) subs-tituted the Chief Justice for the Minister of Justice as the person to nominate the three Judges but left unaffected other provisions for the former Act.

The Supreme Court of Ceylon convicted the appellants and sen-tenced them to 10 years rigorous imprisonment the minimum pres-cribed by the Criminal: Law Act 1 of 1962.

The Privy Council held the legislation to be ultra vires on two grounds. The Acts could not be challenged on the ground that they were contrary to fundamental principles of Justice. The Colonial Laws Validity Act 1865 which provided that colonial laws should be void to the extent of repugnancy to an Act of the United Kingdom, and should not be void on the ground of repugnancy to the law of England did not leave m exIStence fetter or repugnancy to some vague and unspecified law of natural justice. The Ceylon Independence Act 1947 conferred on the Ceylon Parliament full legislative powers of sove-reigu independeru: State. The Acts were declared to be bad because thev involved usurpation and infringement by the legislature of judicial powers inconsistent with the written Constitution of Ceylon. The silence of the Con•titution as to the vesting of judicial power , was inconsistent with any intention that it should pass to or be shared ' by the executive or the legislature. The ratio of the decision is that the legislature could not usurp judicial power. There is an observation at page 289 of the report that section 29( 1) of the Ceylon Constitution confers power on Parliament to pass legislation which does not enable law to usurp the judicial power of the judicature. The Judicial Com-mittee answered the question which was posed as to what the position would be if Parliament sought to procure such result by first amend-ing the Constitution by twc;.thirds major;ty hy statin,g that such situation dicl not arise there and if any Act \vag passed without recourst to section 29( 4) of the Ceylon Constitution it would be 11/tra · vius. The Judicial Commit1tee found that urnler section 29( 4) elf the Cevlon Constitution there coul<I be an amen<lment only by complying with the proviso, which would be the manner and form and would not be limitation on the width of the power. The Ceylon case is not an authority for the proposition of itnplied anc1 inherent limitation on the amending power.

In Liyanage case the Privy Council rejected the contention that powers of the Ceylon Legislation should be cut tlown by reference to the vague an<l uncertain expression "fundamental principles of Jlritish Law". In deci,ling whether the Constitution of Ceylon provided for separation between the legislature and the judiciary the Pri\'y Council did not refer to consequences at all, but referred to the fact that the provisions relating to the legislature and the judicature were found in two separate parts of the Constitution. The provisions for appointment of the subordinate judiciary by Commission consisting exclusively of Judges with prohibition against any legislator being member there-of and the further provision that any attempt to influence the decision

was criminal offence were held by the Judicial Committee to show that the judiciary was intended to be kept separate from the legislature and the executive. This conclusion was based on pure construction of the provisions of the Act. The reference to consequences was in different context. The Privy Council recognised that the impugned law dealt with grave exceptional situation and were prepared to .assume that the legisfature believed that it had power to enact it.

Again in Kariappar case 1968 A.C. 717 the Judicial Committee considered Ceylon Act which was inconsistent with the Ceylon Constitution. The Act imposed chuc disabilities for 7 years on person to whom the Act applied and provided for the vacation of the seat as Member of Parliament. The words amend or repeal in Section 29( 4) of the Ceylon Constitution were read by the Judicial Committee to cover an amendment or repeal by inconsistent act. The plain words amend or repeal did not adntlt ambiguity.

To introduce into our Constitution the doctrine of implied and :inherent Limitations on the meaning of the word "amendment" by upholkling the power to amend the essential features but not the core on the theory that only people can change by referendum is to rewrite the Constitution. The decisions in Ranasinghe case 1965 A.C. 172 and Kariappar case 1%8 A.C. 717 are authorities for two propositions. First, that in the exercise of the po"1er of amendment controlled Constitu-tion can be converted into an uncontrolled one. Second, the word "amendment" means alteration. In lbralebbe case 1964 A.C. 900 the Judicial Committee said that if the Ceylon legislature abrogated the appeal to the Privy Council it would be an amendment of its judicial structure.

The decision in Mangal Singh v. Union of India (1967) 2 S.C.R. 109 has been relied on by Mr. Palkhivala in support of the proposition that the power of amendment is subjc;ct to implied limitation. Article 4 of the Constitution which was interpreted in Mangal Singh case has to be read with Articles 2 and 3. Article 4 contains limited power of amendment, lhnited to amend Schedules 1 and 4 as may be necessary to give effect to law mentioned in Articles 2 and 3 and of making supplemental, inaidental and consequential provisions. Shah, J. in Mangal Singh case said that power with which Parliament is invested by Articles 2 and 3 is power to a'clmit, establish or form new States or to admit, establish or admit new States which conform to the democratic pattern envisaged by the Con!!litution 6nd is not power to override the constitutional scheme. It is manifest that when new State is created in accordance with Articles 2 and 3 the amendment under Article 4 will be followed up as necessary to give effect to the same. Such an amendment does not override the constitutional scheme.

It is an amending power of limited nature and is supplemental; inci-dental or consequential to the admission, establishment or formation of State as contemplated by the Constitution. This decision does not say that there are implied limitations to the amending power.

1 The petitioner challenges the legality and the validity ofthe Cons-titution (25th) Amendment Act. ·

The Constitution (25th) Amendment Act has first amended Arti-cle 31(2), second added Article 31(2B) and third introduced Article 31C. Article 31(2) is amended in two respects. First, it substituted the word "amount" for the word "compensation" for property acquired or requisitioned. Second, it 'is provided .that the acquisition or requisi-tion law shall not be. called in question on the ground that whole or· any part of the amount is to be given otherwise than in cash. Article 31(2B) has been inserted to the effect that nothing in sub-clause (£) of clause (1) of Article 19 'shall effect any such law.as is referred to in clause (2). · 'Article 31C ~t~;es 'that. notwithstanding anything .. contained in Article 13 no law giving effect to the policy of the State towards secu-· ring the 'principles specified in clause (b) or clause (c) of Arfide 39 shall be deemed to be void on the ground that it is inconsistent with or takes away or abridges any of the rights conferred by Article 14 or Article 19 or Article 31 and no law containing declaration that it is for giving effect to such policy shall be called ri.n question in any court on the grounp that it does not'give effect to such policy. It is provided that where such law is made by the legislature of State the provi-sions of this Article shall ·not apply thereto unless such law having ·· been reserved for the· consideration of the President has received his assent.

The basic· controversy is really regarding the right to property and I the acquisition of property by the State. The Constitution of India was intended to achieve po1itical liberty on the one hand and economic and social liberty on the other for all citizens of India. The Directive Principles.in the Constitution ·are also fundamental iin the governance of the country and it shall be. the duty of the State to , apply these principles iri making laws. That is Article 37. It can be achieved by making changes in the economic. and social structure of the society.

The resolutions of the Congress in 1929, 1931, 1945 and the objec-tive resolution of 22. January, 1947 and the resolution of All-India Congress Working Committee in 1947 are not only remembrance of .things past. In 1929 the Congress resolution was· that "it was essential to make revolutionary changes in the economic and social structure of the wciety and ·to remove the gross inequalities. It was also resolved · that political freedom must include the economic freedom of the

starving millions. In such economic and social programme the State is to own or control the key industries and scrVlices, mineral resources railways, waterways, shipping and other means of. public transporr: In 1945 the Working Committee said that the concentration of wealth and power in the hands of individuals and groups was to be prevented. Social control of the mineral resources and of the prinaipal methods of production and distribution in land, industry and in other depart-ments of national activity would be necessary to develop the country into cooperative commonwealth. In the case of industnies which in their nature must be run· on large scale and on centralised basis, it was felt that they should belong to the community and they should be so organised that the workers become not only co-sharers in the profits but also increasingly associated with the management and administration of the industry. Land and all other means of produc-tion as well as distribution and exchange must belong to and be regu-lated by the community in its own interest. The framers of the Collll-titution wanted social structure which would avoid the acquisitive economy of private capitalism and the regimentation of totalitarian State.

In this background the Constitution was created with the object of effecting social revolution. The core of the commitment to the social revolution lies in Part III and Part IV of the Constitution. They are described to be "conscience of the Con9titution". The object of Part III was to "liberate the power of man equally for distribution to the common good". The State would have to bear the responsibility for the welfare of citizens. The Directive Principles are declaration of economic inl(\ependence so that our country men would have economic as well as political control of the country.The centre ol the fundamental rights is said by Mr. Palkhivala to be Articles 14, 19 and 31. It is right to property. But the Directive Principles are also fundamental. They can be effective if they arc to prevail' over fundamental rights of few in order io subscrve the common good and not to allow economic system to result to the com-mon detriment. It is the duty of the State to promote common good. If the motives for co-operating with others consist in the mere desire to promote their private good they would be treating their fellbwmcn as means only and not also an end. The notion of common good was needed '.o explain away the difference between the prinCiples of reason-able self love and benevolence. The distribution of material resources is to subserve die common good. The ownership and control of the material resources is to subserve common good. The economic system is to work in such manner that there is no concentration of wealth to the common detriment; Again, the economic system is to work in such manner that the means of production are not used to the com-mon detriment.

The declaration of human rights on which Mr. Palkhivala relied for the unamendability of fundamental rights is rightly said by the Attorney Goneral to be no impediment to the power of amendment nor to support the petitioner's contention regarding the inviolability of the right to property. For the purpose of promoting the general wel-fare in democrati~ State the Directive Principles were said by the Attorney General to be fundamental in achieving rights of men and economic and social rights for human dignity. Every citizen assertt enjoyment for fundamental rights under the Qmstitution. It becomes the corresponding duty of every citizen to give effect to fundamental rights of at! i:itiuns, dignity of all citizens, by allowing the State to achieve the Directive Principles. The duty of the State is not limited to the protection of individual interest but atends to acts for the achievement of the general welfare in all cases where it can safely act and the only limitations on the governmental action& arc dictated by the experience of the needs ri time. fundamental right may be regarded as fundamental by one generation. It maJl be considered to be inconvenient limitition upon legislative power by another genera-tion. Popular sovereignty means that the interest which prevails must be the interest of the mass of men. If rights arc built upon property those who have no property will have no rights. That it why the State has ro balance interest of the individual with the interest of the society. Industrial democracy is the necessary complement to polticial democracy. The State has to serve its members by organising an ave-nue of consumption. This can be done by socialisation of those clements in the common welfare which are integral to the well being of the community.The petitioner's cha1lenge to the amendment on Article 31(2) is as follows. The right to property is one of the essential features of the Constitutian. It is the hand maid to various other fundamental rights. The right to freedom of the Press under Article 19(l}(a) is meaningless if the publisher could be deprived of his printing plant and the building in which it is housed without compensation. The fundamental right under Article 19(1) ( c) to form trade unions will be denuded of its true content if the property of trade union could be acquired by the State without compensation. The right to practise any profession or carry on any occupation, trade or business under Article 19(1) (g) wil~ be tl1e right to do forced labour for the State if the net savings from the fruits of citizen's personal exertion are liable to be acquired by the State without compensation. The freedom of religion in Article 26 will lose great deal of its efficacy if the insti-tutions maintained by community for its religious and charitable purposes could be acquired without compensation. The implication of the proviso to Article 31 (2) is tliat the State may fix such an amount for acquisition of the property as may abridge or abrogate any of the

29-36 S.C. IRdia/73

o0ther fundamental rights. Exercise of fundamental rights would be .affected by the deprivation of property without compensation in the legal oense and the only exception to this power of the Slate is the a.se of educational institution dealt with in the proviso. Article 31(2) as result of the Constitution (25th) Amendment Act will empower ' the State to fix an amount on basis which need not be disclosed even . to the members of the legislature and which may have no relation to the property sought to be acquired. The amount is not to satisfy any of ,the principles of compensation. It need not be paid in cash and it will yet not be considered to be ground of challenge to the validity i;>f law. Article 31(2) has nothing to do with estate, zamindaries, land teforms or agrarian reforms which are specifically dealt with by Arti-.clc 31A.

The right to acquire, hold and dispose of property under Article 19(1) (f) is subject under Article 19(5) to reasonable restrictions in the interests of the general public. If Article 19(5) permits such reason-able restrictions it is said by the petitioner that the only object of making Article 19(l)(f) inapµlicable by Article 31(2B) is to enable acquisition and requisition laws to contain restrictions or provisions w~h are unreasonable and not in the public interest. Reliance was placed by Mr. Palkhivala on the Bank Nationalisation case (1970) 3 S.C.R. 530 and the observations at p. 577 that if Article 19(1J(f) appl!o.l to acquisition or requisition, law which permitted property to be taken without the owner being heard where the rules of natural justice would require the owner to be heard, would be void as offend-ing Article 19( 1) ( f). Extracting cliat observation it is said that the amount fixed without giving him hearing or amending the Land Acqui.sition Act to provide that any man's .land or house can be acquired without notice to the owner to show cause or to prove what amount should be fairly paid to him for the property acquired will damage the essence or core of fundamental right to property.After the substitution of the neutral expression "amount" for "compensation" in Article 31(2) by the Constitution (25th) Amend-ment Act the Article still binds the legislature to provide for the giving to the owner sum of money either in cash or otherwise. The legislature may either. lay down principles for the determination of the amount or may itself fix the amount. .Before the amendment the interpretation of Article 31 (2) was that the law was bound to provide for the payment of compensation in the sense !)f equivalent in value of the property acquired. This was the interpretation given in the Bank Nationalisation case even after the Corutituti?n 24th Amendment Act, which said that the adequacy of compensation could not be challenged. The Constitution 25th Amendment Act states that the law .no longer need provide for the giving of equivalent in value of the

acquired property. The quantum of the amount if directly fixed by the law and the principles for its quantification are matters for legis-lative judgment. Specification of principles means laying down gene-ral guiding rules applicable to all persons or transactions covered thereby. In fixing the amount the legislature will act on rhe general nature of the legislative power. The principle may be specified. The principle which may be acted upon by the legislature in fixing the amount may include considcraitions of social justice as against the equivalent in val!uc of the property acquired .. Considerations of social justice will include the relevant Dircclive Principles particularly in Article 39(b) and (c). These principles arc to subserve the common good and to prevent common detriment. The question of adequacy has been excluded from Article 31 (2) by the Constitution Fourth Amendment Act. It cannot be said that the legislature would be under the necessity of providing standard to measure an adequacy with reference to fixing the amount. The Constltution does not allow judicial review of law on the ground of adequacy of the amount and the manner as to how such amow1t is to be given ot;herwise than in cash.

If the word "compensation" as it stood prior to the amendment of Article 31 (2) must mean equivalent value in cash it is said by the Solicitor General that the concentration of wealth will remain un-changed and justice social, economic, and political amplified in Articles 39, 41, 42, 43, 45, 46 and 47 will be thwarted. The fulfilment of the Directive Principles is in sense more fundamental than the mere right to property. Re-adjustment In the social order may not be prac-ticable in smooth manner unless the Directive Principles are effec-tively implemented. The emergence of new social order is challenge to present day civilisation. If na~ions wanted independence and supremacy in the latter half of the 19th century and the first half of the 20th century individual dignity, individual freedom, individual status in well organised and well planned society are opening the frontiers since the mid-century. In this background the 25th Amend-ment protects the· law in one respect, namely, that amowlt payable to me owner is no longer to be measured by me standard of equivalellit in value of me acquired property. The quantum cannot be matter for judicial review. Ever since the Fourth Amendment the adequacy of compensation is excluded by the Constitution. The reason is that the Constitution declares in clear terms that adequacy is not justiciable and therefore, it cannot be made justiciable in an indirect manner by holding that the same subject matter which is expressly barred is contained implicitly in some other provision and is, therefore, open to examination,

Just as principles which were irrelevant to compensation were invalid prior to the Constitution 25th Amendment it was said that if

any principles are adopted which are irrelevant to the concept of amount as legal concept or as having norm the law would be invalid because the amount would be purely at the wil• or at the dis-cretion of the State. Therefore, it was said that when the law fixes the amount it might indicate the principles on which the amount had been arrived at or the Court might enquire into on which the amount had been fixed. Any contrary view according to the petitioner would mean that under Article 31 (2) state would have authority to specify principles which could be arbitrary or specify the amount which could be arbitrary.

It was also said th.at as result of the proviso to Article 31 (2) after the 25th Amendment the· law providing for compulsory acquisi· tion of property of an educational institution established by minoritr referred to in Article 31 (1) the State was to ensure th.at the amount fixed or determined was such as would not restrict or abrogate the right guaranteed under that clause. The amount would have to be higher than the amount which woukl be sufficient not to damage the essence of that ·right. But under Article 31 (2) after the 25th Amend-ment where the proviso did not apply it was said that the core or essence of the fundamental rights would be damaged or destroyed.

The word "amount" in Article 31 (2) after the 25th Amendment is to be read in the entire collocation of words. No law sh.all be called in question in any Court on die ground that the amount so fixed or determined is inadequate or the who~ or part of it or any part of such amount is given in cash. In Article 31 (2) the use of the word "amount" in conjunction with payment in cash shows that ·sum of money is being spoken of. Amount is sum me:rriing quantity or amount of money, or, in other words, amount means sum of money.

Article 31 (2) prior to as well ~ after the 25th Amendment indi-cates two alternatives to the legislatures. either to specify the principles for determination of the amount or to fix the amount or "compensa-tion" prior to the amendment.· In fixing the amount or compensation the legislature is not required to set out in the law the principles on which compensation had been fixed in the unamended clause or the amount is fixed in the amended clause.

Article 19(l)(f) provides that all citizens shai have the right to hold, acquire or dispose of property whereas ArticJe 31 (2) deals with law by which the property is acquired. Such law acquiring property dir<etly extinguishes the right to h.old or dispose of property acquired. Article 19(1)(f) is excluded from Article 31(2) in order to make Article 31 (2) self contained. The ri~ht to hold property cannot co-exist with the right of the State to acquire property. That is why Article 31(2) is to be read with Articll:: 31A, 31B and 31C, all the Articles being under the headin& "Right to Propotf'.

It has been held by this Court in F. N. Rana case ( 1964) 5 S.C.R. 294 that Land Acquisition Act docs not give the right of quasi-judicial procedure or the requirements of natural justice as section 5A of that Act! has been held to be administrative. It has also been held by this Court that Requisition Act which did not give right of representa-tion before an order for requisition was made did not violate Article 19(1) (f). (Sec S. N. Nandi v. State of West Bengal A.LR. 1971 SC 961).

The other part of the 25th Amendment which is challenged by the petitioner is Article 31C. Article 31C is said by Mr. Palkhivala to destroy several essential features of the Constitution for these reasons. First, there is distinction bcween cases where the fundamental rights arc amended and laws which would have been void before the 25th Amendment arc permitted to be validly passed and cases where the fundamental rights remain unamended but the laws which arc void as offending those rights arc validated by legal fiction that they shall not be deemed to be void. The law is in the first case constitu-tional in reality whereas in the second case the law is unconstitutional in reality but is deemed by fiction of law not to be . void with the result that laws which violate the constitution are validated and there is repudiation of the Constitution. If Article 31C is valid it would be permissible to Parliament to amend the Constitution so as to declare all laws to be valid which arc passed by Parliament or State legislatures in excess of legislative competence or which violate basic human rights enshrined in Part III or the freedom of inter-State Trade in Article 30J. Article 31C gives blank charter to Parliament and the State legislatures to defy the Constitution or damage or destroy the supre-macy of the Constitution. Secondly, Article 31C subordinates funda-mental rights to Directive Principles. The right to enforce fundamen-tal rights is guaranteed under Article 32. The Directive Principles arc not enforceable by reason of Art\clc 37. Y ct it is said that while giving effect to Directive Principles fundamentan rights are abrogated. Thirdly, whereas an amendment of single fundamental right would require majority of at least two-thirds of the members of Parliament present and voting, law witliin Article 31C which overrides and violates several fundamental rights can be passed by simple majority. Fourthly, every fundamental right is an essential feature of the Cons-titution and Article 31C purports to take away large number of those fundamental rights. '.Fifthly, the Court is precluded from consi-dering whether law under Article 31C is such that it can possibly secure Directive Principles in question. Sixthly, no State legislature can amend the fundamental rights or any other pact of the Constitu-tion but Article 31C empowers the State lcgislaure to pass laws which virtualliy involve repeal of the fundamental ilghts. Power of amending the Constitution is delegated to State legislatures.Finally, it is said that the fundamental rights und~r Article 14, 19 and 31 which are sought to be supers<Xled by Article 31C are neces-sary to make meaningful specific rights of the minorities which are guaranteed by Articles 25 to 30. The proviso to Article 31(2) shows that in the case of acquisition of property of an educational institution established by minority an amount fixed should be such as not to restrict or abrogate the right of the m.inorities under Article 31. It is, therefore, said that the implication is that if property is acquired in cases other than those of minorities an amount can be fixed which restricts or abrogates any of the fundamental rights. Again, It is said that if law violates the right of the minority under Articles 25 to 30 such law would be .no law. Therefore, deprivation of property under such law would violate Article 31(1). But the 25th Amendment by Article 31C abrogates Article 31(1) and minorities can he deprived of their properties held privately or upon public, charitable or religiou' trusts by law which violates Articles 25 to 30.

The pre-eminent feature of Article 31C is that it protects only law. Therefore, any question of violation of Article 31(1) does not arise. Law referred to in Article 31C must be made either by Parlia-ment or by the State legislature, according to the legislative procedure for enacting law. There are several Articles in the Constitution where the expression "law" with reference to the authority to make law has been used. These are Articles 17, 19(2) to (6), 21, 22, 23(1), 26, 31, 33, 34 and 35. These Articles indicate that the expression "law" :here means law made by tile legislature in accordance with its ordi-nary legislative procedure. The expression "law" does not include within itself ordinance, order, bye-law; rule, regulation, notification, custotp or usage having the force of law nor an amendment of the Constitution in accordance with the procedure prescribed in Article 368. In Article 13 the term "law" has been used in wide sense. For this definition was given in Article 13(3) to include certain other categories. The definition in Articl'e 13(3) is expressly limited for Article 13. Law in Article 31 mus\ have the same meaning as it ha' in other Articles generally, namely,· statute passed by the legislature.

It is true that such law may need details to be filled up by other agencies but the essential elements of Article 31 must be supplied directly by tht enactment. question arose with reference to ArticLe 254 as to whether clause of the Sugar Control Order 1955 made under the Essential Commodities Act had the effect of repealing the corresponding Uttar Pradesh State Law. This Court held that the power of repeal was vested in Parliament and Parliament alone .could exercise it by enacting an appropriate provision in that regard. Parlia-ment could not delegate the power of repeal to any executive authority. (See Ch. Tika Ramji & Ors. Etc. v. The State of Uttar Pradesh & Ors. 1956 S.C.R. 393).Article 31C is inextricably bound up with Article 39(b) and (c) because the purpose and the phraseology In both the Articles are e~sentially identilical. The legislative efforts to implement Directive Principles in Article 39(b) and ( c) were set in motion in some States to achieve reforms in land law. Articles 31A and 31B were introduced by the Constitution First Amendment Act 1951. The main reason for introducing Articles 31A and 31B was to exclude the operation of Part III as wholi: from those provisions. The true relationship bot· ween Directive PrinCiples in Part IV and the fundamental rights in Part III became clear. It was realised that though the liberty of indi-vidual was valuable it should not operate as an insurmountable barrier against the achievement of Directive Principles. In Sajjan Singh case ( 1965) 1 S.C.R. 933 it was said that "the rights of society are made paramount and they are placed above those of the individual", In the Biluu- Land Reforms case 1952 S.C.R. 889 it was said that "a fresh outlook which placed the general 'intera>t of the community abo\'e the interest of the individuals, pervades over Constitution".

Law contemplated in Article 31C will operate on the ownership and control of the material resources of the community to be distri· butcd as best to subservc the common good. The operation of the economic system should not result in concentration of wealth. Means of production should not be used to the common d'etriment. The owl)ership and control of the material resources of the community c~n be achieved by nationalisation and planned economy. The operation of the economic system will mean imposition of contron on the pr<>-duction, supply and distributions of products of key industries and essential commodities. There can be laws within Schedule 7 List III Entries No. 42, 43; List I Entry No. 52 to 54 and List II Entries No. 23, 24, 26 and 27.

The provisions in Article 3!C that no law contairiing 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 was quest.toned by the petitioner to exclude judicial review and, there· fore, to be illegal. Article 3!C was in the second place said to enable the State legislatures to make discriminatory laws destructive of the ~tegrity of India. Thirdly, Article 31C was said ro delegate the amend-ing power to State legislatures or Parliament in its ordinary legisla-tive capacity.

The declaration mentioned in Article 31C is for giving effect to the policy of the State towards securing the principles in Article 39(b) or (c). Such declaration in law shall not be called in question on the ground that it does not give effect to such policy. The laws which receive protection under Articll: 31C are laws for securing the Directive· Principles of Articles 39(b) and (c). The nexus or connection between.

the law and the objectives set out in Article 39(b) and ( c) is con-dition precedent for the applicability of .Article 31C. On behalf of the Union and the State it was not contended that whether there was such nexus or not was not justiciable. The real reason for making the declaration free from question in Court of law . on the gtOtilJ.d that it docs not give effect to such policy is to leave legislative pol'icy and wisdom to the legislature. The legislative measure. might not accord-ing to some views give effect to Directive Principles. Therefore, legis-latures are left in charge of formulating thcir policy and giving effect to it through legislation. It is the assessment and judgment of such measures which is sought to be excll.i.ded from judicial review by the declaration.In order to decide whether statute is within Article 31C the court may examine the nature and the character of legislation and the matter dealt with as to whether there is any n~us of the law to the principles mentioned in Article 39(b) and (c). If it appears that there no nexus· between the legislation and the objectives and princi-pks mentioned in Article 39(b) and ( c) the legislation will not be within the protective umbrella. The Court can tear the veil to decide the real nature of the statute if the facts and circumstance1 warrant such course.

The reason for excepting Articles 14, 19 and 31 from Article 31C is the same as in Article 31A. The Solicitor General rightly said that the fear of discrimination is allayed by three safeguards. The first and the foremost safeguard is the good sense of the legislature dnd the Innate good sense of the co:nmunity. The second safeguard is the President's assent. The third safeguard is that in appropriate cases i~ can be found as to whether there is any nexus between law and Directive Principles sought to be achieved. There is no better safe-guard than the character of the citizen, the character of the legislature, the faith of the people in the representatives and the responsibility of the representatives to the nation. No sense of irrcsponsibitity can be ascribed or attributed !IO the representatives of the people. The citclu-tion of Al'tlicle 14 is to evolve new principles of equality in the light. of Directive Principles. The exclusion of Article 19 is on the footing that laws which arc to g'ivc effect to Directive Principles will coristitutc reasonable restrictions on the individual'$ liberty. The exclusion' of Article 31 (2) is to introduce the consideration of social justice in the matter of acqwsition. Directive Principles are not limited to agrarian reforms. Directive Principles arc necessary £or the uplift and growth of industry in the counuy.

Article 31(4) and 31(6) speak of cerrain class of laws not.being called in question on the ground of contravention of Article 31(2). Article 31A relates to law of the class mentioned therein not to be

Toid on the ground that it is inconsistent with or takes away or abridges any of the fundamental rights conferred by Articles 14, 19 and 31. Article 15(4) states that nothing in Article 15 or in Article 29(2) shall _prevent the State from making any special provision for the adv-.mce-ment of any socially and cducatio1ially backward classes ot citizens or for the Scheduled Castes and the Scheduled Tribes. Article 31 (5) (b) (ii) states that nothing in Arrick 31 (2) shall affect the provisions of any law which the State may make for the promotion of public health. Article 33 speak! of law with regard to members of the Armed Forces charged with the maintcllaJlce of public order, so as to ensure the J?lopcr discharge of their duties and the maintenance of discipline among them and for that purpose the operation of some fundamental right in Part III is modified.

The Solicitor General rightly said that similarly Article 31C creates legislative field with reference to the object of legislation. It is 5imilar t(l laws contemplated in Article 15(4), Article 31(5)(b)(ii) and Article 33. Each of these Articles carves out an exception to some Article or Articles conferring fundamental rights. The field carved out by the various Articles arc of diiierent dimensions. The entire process of excep-tion of the legislative field from the operation of some of the Articles relating to fundamental rights is the mandate of the Constitution. It is ll•rong to say that the Constitution delegates power of amendment to Parliament or the States. As resuht of the 25th Amendment the exist-ing legislative field is freed from the fetters of some provisions of Part III of our Constitution on the legislative power.Article 31C substantially operates in the same manner in the indus-trial sphere as Article 3!A operates in the agrarian sphere. The problems ;ve similar In nature though of different magnitude. The constitutional method adopted to solve the problem is similar. The Solicitor General is correct in summing up Article 3!C as an application of the principles underlying Articles 31 ( 4) and 31 ( 6) and Article 31A to the sphere of industry.

class of legislation can be identifiod and the legislative field can ·be carved out from the operation of fundamental rightS or some of those can.be excluded by provision of the Constitution. Articles 31(4) and 31 ( 6) identify the laws with reference to the period during which they were made. Article 31(4) relates to bill pending at the commence-ment of the Constitution in the legislature of State to have been passed by such legislature and to have received the assont of the Presi-<lent to be not called in question on the ground that it contravenes Article 31(2). Article 31(6) relates to law of the State enacted not more tlhan 18 months from the commencement of the Constitution to be submittod to the President for his certification and upon certification by the President not to be called in question on the ground of contra-

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

The Constitution First Amendment Act 1951 introduced Articles 31A and 31B and Schedule 9 which are to be read together. Article 31A excluded challenge under the whole of Part IIJ for the laws; of the kind mentioned in that Article. Article 31B restrospectivcly validated laws mentioned in Schedule 9 from challenge under Part III and also on the ground that they violated section 299 of the Gov-ernment of India Act, 1935. It may be stated here that Parliament which passed the Constitution Fmt Amendment Act 1951 was the Constituent Assembly functioning as legislature, till clections were held and Parliament as provided for under the Constitution could be formed. Articles 31A and 31B carried out the intent'ion of the framers of the Constitution as stated in Articles 31(4) and·31(6) that land legislation or agrarian reform was to be enforced and fundamen-tal rights were not to be allowed tlJ stand in the way of implementing the Directive Principles of State Policy contained in Article 39. The fundamental right conferred under Article 31 (2) was subordinated to Article 39(b) and (c) in order to protect laws referred to in Article 31(4) and 31(6). When that object failed and the law was struck down under Article 14, Parliament gave effect to the policy under-lying Articles 31(4) and 31(6) by excluding challenge under every Article in Part III. In the Bihar Land Reforms ease this Court •aid that the purpose behind the Bihar Land Reform Act was to bring about reform of the land distribution system in Bihar for the general benefit of the community and the legislature was the best judge of what was good for the community and it was not possible for this Court to say that there was no public purpose behind the acquisition contemplated in the statute.This Court in State of West Bengal v. Eda Baneriee 1954 S.C.R. 558 held that the word "compensation" means just equivalent or full indemnity· for the property expropriated. In Dwarkadas Srinivas v. Sho/11pur Spg & Wvg. Co. Ltd. 1954 S.C.R. 674 this Court struck down

KESAVANANDA ti. KE1lALA (Ray, J.)

the Jaw for taking over the managemem of Sholapur Mills on the ground that it amounted to acquisition and since no compensation was provided for, the Jaw was .held to bc void. The Constitution Fourth Amendment· Act 1955 came to remedy the 'implementation of essential welfare legislation. One of the measures in the Fourth· Amendment Act was the amendment of Article 31 by making adequacy of com-pensation non-justiciable and the other .was to amend Article 31A. The formula which had been used in Articles 31(4) and 31(6) to exclude the contravention of Article 31 (2) was adopted with regard to adequacy of compensation. As result of the amendment of Article 31A new categories were added to the Article and new Acts were added to the Ninth. Schedule. The 17th Amendment Act made changes in Article 31A(l) and the proviso and amended Scliedule 9 by insert-ing new ,\cts therein. ·

The successive amendments of the Constitution merely carried out the principle embodied in Article 31 clauses (4) and (6) tliat legisla-tion de~igned to secure the public good and to . implement the Direc-tives under Article 39(b) and (c) should have priority over individual: rights and that therefore fundamental rights were to lie subordtnate-!o Directive or State Policy.

Article 31 (2) as it onginally stood spoke of compensation for acquisition or requisition of property. The meaning given to compen· sation by the Court was full market value. There was no scope for giving effect to the word "compensation". Thore was no flexibility of s0cial interest in Article .31(2). Every concept of social interest became irrelevantt by the scope of Article 13(2). It is this mischief which was sought to be remedied by the 25th Amendment. If Directive Principks are to inter-play with Part III legislation will have to give expression to such law. Parts III and IV of the Constitution touch each other and modify. They are not parallel to each other. Different legislation will bring in different social principles. These will not be permissible without social content opera6ng in flexible manner. That is why in the 25th Amendment Article 31 (2) is amended to eliminate the concept of market value for property which is acquired or re-quisitioned.

If compensation means an amount determined on principles of social justice there will be general ~armony between Part Ill and Part IV. Secondly, if compensation means market price then the concept of property right in Part III is an absolute right to own and possess property or. to receive full price, while the concept of property right in Part IV is concf1tioned by social interest and social }ustice. There would ·be an inherent conflict in working out the Directive Principles of-Part IV.with the guarantee in Part Ill. That is why clauses (4) and \6) of Artie!~ JJ illUstrate the vital principle that to make effective

456 ~UPllME couaT UP011TS [1973] Supp. s.cJt.

legislative effort to bring about changes in accordance with Directive Principle~ particularly those containro in Article 39(b) and ( c) Article 31 (2) may have to be abridged. The social interest and justice may vary from time to time and territory to territory and individual rights may .have to be limited.

Just as the amount can be fixed on principles of social justice the principles for determining the amount can be specified on the same consideration of social justice. Amount is fixed or the principles arc specified by the norm of social justice in accordance with Directive Principles.

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

The amount fixed is not justiciable. The adequacy cannot! be qucs-tioned. The correctness of the amount cannot be cha1lengcd. The principles specified are not justiciable.

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

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

Article 14 has the flexibility of classification. Article 19 has the flexibility of reasonable restrictions. Social justice will determine the nature of the individual right and also the restriction on 111ch right,

Social justlce will require modification or restriction of rights under Part III. The scheme of the Constitution generally discloses that the principles of social justice are placed above individual rights and whenever or wherever it is considered necessary individual rights have been subordinated or cut down to give effect to the principles of social justice. Social justice means ·various concepts which are evolved in the Direct'ive Principles of the State ..

The 25th Amendment ha• amended Article 31 (2) and also in-troduced Article 31(2B) in. order to achieve r.Vo objects. The first is to eliminate the concept of market value in the amount fixed for acquisition or requisition of the propeny. The second is ro exclude in clause (2B) of Article 31 the applicability of Article 19(1) (f). Articles 31A and 31B applied to acquisition a.i.d requiswon of proper-ty. The purpose of Article 31C is to confer by constitutional mandate power on Parliament and State to make laws foe giving effect to Directive Principles. The significance of the total exclusion of Part III from Articles 31A and 31B is that it brings about in unmistakable manner the true relationship between the provisions of Parr IV an<1 Part III of the Constitution.With reference to land legislation subordination of fundamental right• of individual to tho common good was dear in clause!l ( 4) and ( 6) of Arllicle 31. It was made clearer by the Constitution First Amendment Act whkh introduced Articles 31A, 31B and Schedule 9. Arti<le• 31A, 31B, Schedule 9 and Article 31C merely removed the restrictions which Part III of the Constitution imposes on legislative power. Article 31A after the Fourth Amendment removed the restric-tions on legislative powe.r impo'1Cd by Articles 14, 19 and 31. In enacting clauses (b), (c) and (d) in Article 31A Parliament was giving effect to social control which though less urgent than land reform became in course of time no less v_ital. Article 31B by the First Amendment retrospectively validated the laws specified in Schedule 9 by retrospectively removing all invalidity from the law because of . the transgression of rights in Part III. Again, the seven new Acts added in the Ninth Schedule by the Fourth Amendment Act had nothing to do with agrarian reform, but dealt with subjects ci great national importance. The Constitution Fourth Amendment Act was intended to remove the barriers of Articles 14, 19 and 31 (2) in respect of land legislation considered essential for public good.

State legislatures cannot remove the fetter. They have no power to amend the Constitution. Parliament cannot remove the fetter by ordinary law. By amendment of the Constitution Parliament can re-

. mo"e the fetter by either deleting one or more fundamental right or rights or by excluding certain laws or certain kinds of laws from the fetter.

The pattern of Articles 31A, 31B, the Ninth Schedule and Article 31C i; best understood by the observations of Patanjali Sastri, C.J. in Shankari Prasad case ond of Wanchoo, J. in Golak Nath case. Patanjali Sastri, C.J. said in Shankari Prasad case "Articles 31A and 31B really seek to save certain class of laws and certain specified laws already passed from the combined operation of Article 13 read wiith other relevant Artlicles of Part III. The new Articles being thus essentially amendments of the Constitution have the power of enacting them. It was said that Parliament could not validate the law which it has no power to enact. The proposition holds good whether the validity of ·the impugned provision turns on whether the subject matter, falls within or without the jurisdiction of the legislature which passed it. But to make law, which contravenes the Constitution, constitutionally valid is matter of constitutional amendment and as such it falls within the exclusive power of Parliament". Wanchoo, J. said of Article 31B "The ·laws had already been passed by the State legislature and it was their constitutional infirmity, if any, which was being cured by the device adopted in Article 31B read with the Ninth Schedule .... .. .. .. . .. .. .. .. .. . Parliament alone could do it under Article 368 and there was no need for any ratificat:lon under the proviso for amend-ment of Part III is not entrenched in the proviso".The conclusiveness of declaration introduced by the 25th Amend-ment in law under Article 31C is to be appreciated in the entire context of Article 31C. In removing restrictions of Part lII in respect of law under Article 31 there is no delegation of power to any legislature. There is only removal of restriction on leg1$lative power imposed by Articles 14, 19 and 31. Article 31C does not confer any power to amend the Constitution. The exclusion of Article 31 is necessary corollary to protecting the impugned law from challenge under Articles 14, 19 and 31 because Arlticle 13(2) would but for its exclusion in Article 31C render such laws void. The declaration clause is comparable to section 6(3) of the Land Acquisition Act'1894 which contains conclusive evidence clause that declaration shall be conclu-sive evidence that the land is needed for public purpose and for com-·pany as the case may be. conclusive declaration would not be permis-sible so as to defeat fundamental right. In Article 31(5) it is provided that nothing in clause (2) shall effect (a) the provisions of any exist-ing law other than law to which the prov:isions of clause (6) applv and since the Land Acquisition Act 1894 is an existing law the con-dnsive declaration clause prevails and is not justiciable. See Babu Barkya Thakur v. The State of Bombay & Others. (1961)· 1 S.C.R. 128.

The same view was reiterated bv this Court in Smt. Somavanti & Ori. v. 'The State of P'uniab & Ors. -(1963) 2 S.C.R. 774 that declaration under the Land Requisition Act was not only conclusive about the need but was also conclusive for the need was for public purpos(.

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

contention was advanced on beha1f of, the petitioner that Article 31B applies to agrarian reforms or in the alternative f>-rticle 31B is linked to Article 31A and is to be read as applying to laws in resptct of five ~ubject matters mentioned in Article 31A. The 13 Acts men-tioned in the Ninth Schedule as enacted by the First Amendment Act, 1951 dealt with eotatcs and agrarian reforms. There is nothing in Article 31B to indicate that it is linked with the same subject matter as Article 31A. In the Bihar Land Reforms case Patanjali Sastri, C.J. said at pp. 914-915 of the report (1952 S.C.R. 889) that the opening words of Article 31B are only intended to make clear that Article 31A should not_ be restricted in 'its application by reason of anything con-tained in Article 31B and are not in any way calculated to restrict the applkation of the latter Article or of the enactments referred to therein to acquisition of estates.

In Vishweshwar Rao v. State of Madhya Pradesh 1952 S.C.R. 1020 it was urged that Article 31B was merely illustrative otf Article 31A and as the latter -was limited in is applicaion to estates as defined therein Article 31B was als0 similarly limited. That contention was rejected and it was said that Article 31B specifically validates certain Acts mentioned in the Schedule despite the provisions of Article 31 and is .not illustrative of Article 31A but stands independrnt of it.

Again, in Jeeiibhoy v. Assistant Collector (1965) 1 S.C.R. 616 it was contendeJ that Articles 31A and 31B should be read together and if so read Article 31B would only illustrate the cases that would other-wise fall under. Article 31B, and, therefore, the same construction a~ put upon Article . 31B should apply to Article 31A. This Court did