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TMI Blog1980 (7) TMI 262X X X X Extracts X X X X X X X X Extracts X X X X ..... r sections 4 and 55 of the Constitution (42nd Amendment) Act, 1976 transgress that limitation, on the amending power. Petitioner No. 1 which is a limited company owned a textile undertaking called Minerva Mills situated in the State of Karnataka. This undertaking was nationalised and taken over by the Central Government under the provisions of the Sick Textile Undertakings (Nationalisation) Act, 1974. Petitioners 2 to 6 are shareholders of Petitioner No. 1, some of whom are also unsecured creditors and some secured creditors. Respondent 1 is the Union of India. Respondent 2 is the National Textile Corporation Limited in which the textile undertaking of Minerva Mills comes to be vested under section 3(2) of the Nationalisation Act of 1974. Respondent 3 is a subsidiary of the 2nd respondent. On August 20, 1970, the Central Government appointed a Committee under section 15 of the Industries (Development and Regulation Act, 1951 to make a full and complete investigation of the affairs of the Minerva Mills Ltd., as it was of the opinion that there had been or was likely to be substantial fall in the volume of production. The said Committee submitted its report to the Central Governme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itution within the broad contours of the preamble, made in order to carry out the basic objectives of the Constitution. Accordingly, every provision of the Constitution was open to amendment provided the basic foundation or structure of the Constitution was not damaged or destroyed. Shelat and Grover, JJ. held that the preamble to the Constitution contains the clue to the fundamentals of the Constitution. According to the learned Judges, Parts III and IV of the Constitution which respectively embody the fundamental rights and the directive principles have to be balanced and harmonised. This balance and harmony A between two integral parts of the Constitution forms a basic element of the Constitution which cannot be altered. The word 'amendment' occurring in Article 368 must therefore be construed in such a manner as to reserve the power of the Parliament to amend the constitution, but not so as to result in damaging or destroying the structure and identity of the Constitution. There was thus an implied limitation in the amending power which precluded Parliament from abrogating or changing the identity of the Constitution or any of its basic features. Hegde and Mukherjea, JJ. held ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ix learned Judges and held that the word 'amendment' postulated that the Constitution must survive without loss of its identity, which meant that the basic structure or framework of the Constitution must survive any amendment of the Constitution. According to the learned Judge. although it was permissible to the Parliament. in exercise of its amending power, to effect changes so as to meet the requirements of changing conditions it was not permissible to touch the foundation or to alter the basic institutional pattern. Therefore, the words "amendment of the Constitution", in spite of the width of their sweep and in spite of their amplitude, could not have the effect of empowering the Parliament to destroy or abrogate the basic structure or framework of the Constitution. The summary of the various judgments in Kesavananda Bharati (Supra) was signed by nine out of the thirteen Judges. Paragraph 2 of the summary reads to say that according to the majority, "Article 368 does not enable Parliament to alter the basic structure or framework of the Constitution". Whether or not the summary is a legitimate part of the judgment, or is per incuriam for the scholarly reaso ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as regards the validity of the amendments made by section 55 of the 42nd Amendment. It introduces two new clauses in Article 368, namely, clauses 4 and S. Clause S speaks for itself and is self explanatory. Its avowed purpose is the "removal of doubts" but after the decision of this Court in Kesavananda Bharati (Supra), there could be no doubt as regards the existence of limitations on the Parliament's power to amend the Constitution. In the context of the constitutional history of Article 368, the true object of the declaration contained in Article 368 is the removal of those limitations. Clause S confers upon the Parliament a vast and undefined power to amend the Constitution, even, so as to distort it out of recognition. The theme song of the majority decision in Keshvanand Bharati (Supra) is: 'Amend as you may even the solemn document which the founding fathers have committed to your care, for you know best the needs of your generation. But, the Constitution is a precious heritage; therefore, you cannot destroy its identity'. The majority conceded to the Parliament the right to make alterations in the Constitution so long as they are within its basic framework. And w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roduced clauses 4 and 5 in Article 368 made amendments to the preamble to which no exception can be taken. Those amendments are not only within the framework of the Constitution but they give vitality to its philosophy they afford strength and succor to its foundation. By the aforesaid amendments, what was originally described as a 'Sovereign Democratic Republic' became a "Sovereign Socialist Secular Democratic Republic" and the resolution to promote the 'unity of the Nation' was elevated into a promise to promote the "unity and integrity of the Nation". These amendments furnish the most eloquent example of how the amending power can be exercised consistently with the creed of the Constitution. They offer promise of more, they do not scuttle a precious heritage. In Smt. Indira Nehru Gandhi v. Raj Narain, Khanna, J. struck down clause 4 of Article 329A of the Constitution which abolished the forum for adjucating upon a dispute relating to the validity of an election, on the ground that the particular Article which was introduced by a constitutional amendment violated the principle of free and fair elections which is an essential postulate of democracy and which, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inary laws will escape the scrutiny of the courts on the ground that they are passed on the strength of a constitutional amendment which is not open to challenge. Clause 4 of Article 368 is in one sense an appendage of Clause 5, though we do not like to describe it as a logical consequence of Clause 5. If it be true, as stated in clause 5, that the Parliament has unlimited power to amend the Constitution, courts can have no jurisdiction to strike down any constitutional amendment as unconstitutional. Clause 4, therefore, says nothing more or less than what clause 5 postulates. If clause 5 is beyond the amending power of the Parliament, clause 4 must be equally beyond that power and must be struck down as such. The next question which we have to consider is whether the amendment made by section 4 of the 42nd Amendment to Article 31C of the Constitution is valid. Mr. Palkhiwala did not challenge the validity of the unamended Article 31C, and indeed that would not be done. The unamended Article 31C forms the subject matter of separate proceeding and we have indicated therein that it is constitutionally valid to the extent to which it was upheld in Keshvananda Bharati (Supra). By th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ods but only through those which are consistent with the fundamental rights conferred by Part III. If Article 31C as amended by the 42nd Amendment is allowed to stand, it will confer an unrestricted licence on the legislature and the executive, both at the Centre and in the States. to destroy democracy and establish an authoritarian regime. All legislative action and every governmental action purports to be related, directly or indirectly, to some directive principle of State policy. The protection of the amended article will therefore be available to every legislative action under the sun. Article 31C abrogates the right to equality guaranteed by Article 14, which is the very foundation of a republican form of government and is by itself a basic feature of the Constitution. The learned counsel further argues that it is impossible to envisage that a destruction of the fundamental freedoms guaranteed by Part III is necessary for achieving the object of some of the directive principles like equal justice and free legal aid, organising village panchayat, providing living wages for workers and just and humane conditions of work. free and compulsory education for children, organisation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ich contains a directive principle, provides that the State shall strive to promote the welfare of the people by securing and protecting as effectively as it may a social order in which justice. social. economic and political shall inform all the institutions of the national life. A law which complies- with Article 38 cannot conceivably abrogate the fundamental freedoms except certain economic rights and that too, for the purpose of minimising inequalities. A law which will abrogate fundamental freedoms will either bring about social injustice or economic injustice or political injustice. It will thereby contravene Article 38 rather than falling within it and will for that reason be outside the protection of Article 31C. In any event, each and every violation of Article 14 or Article. 19 does not damage the basic structure of the Constitution. The learned Additional Solicitor General has submitted a carefully prepared chart of 11 decisions of this Court ranging from Anvar Ali Sarkar to Haji Kader Kutty in order to show the possible impact of amended Article 31C on cases where this Court had held provisions of certain statutes to be violative of Article 14. He urged on the basis of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t about a qualitative change in comparison with the provisions of the unamended article. A harmonious and orderly development of constitutional law would require that the phrases 'inconsistent with' or 'take away' which occur in Articles 31A, 31B and 31C should be read down to mean 'restrict' or 'abridge' and not 'abrogate'. If two constructions of those expressions were reasonably possible, the Court should accept that construction which would render the constitutional amendment valid. The learned counsel further argues: The directive principles, including the one contained in Article 38, do not cover the exercise of each and every legislative power relatable to the Seventh Schedule of the Constitution. Besides, the directive principles being themselves fundamental in the governance of the country, no amendment of the Constitution to achieve the ends specified in the directive principles can ever alter the basic structure of the Constitution. If the unamended Article 31C is valid in reference to laws relatable to Articles 39(b) and (c), no dichotomy can be made between laws relatable to those provisions on the one hand and laws relatable to other directive principles. A value jud ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd on Weaver's Constitutional Law, 1946 Edition and American Jurisprudence. Reliance is also placed on certain decisions of this court to which it is unnecessary to refer because the Attorney-General and the Additional Solicitor General are right that it is the settled practice of this Court not to decide academic questions. The American authorities on which the learned counsel rely take the view that the constitutionality of a statute will not be considered and determined by the courts as a hypothetical question, because constitutional questions are not to be dealt with abstractly or in the manner of an academic discussion. In other words, the courts do not anticipate constitutional issues so as to assume in advance that a certain law may be passed in pursuance of a certain constitutional amendment which may offend against the provisions of the Constitution. Similarly, our Court has consistently taken the view that we will not formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied. It is only when the rights of persons are directly involved that relief is granted by this Court. But, we find it difficult to uphold the prel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of questions is whether in view of the majority decision in Kesavananda Bharati it is permissible to the Parliament to so amend the Constitution as to give a position of precedence to directive principles over the fundamental rights. The answer to this question must necessarily depend upon whether Articles 14 and 19 which must now give way to laws passed in order to effectuate the policy of the State towards securing all or any of the principles of directive Policy are essential features of the basic structure of the Constitution. It is only if the rights conferred by these two articles are not a part of the basic structure. Of the Constitution that they can be allowed to be abrogated by a constitutional amendment. If they are a part of the basic structure they cannot be obliterated out of existence in relation to a category of laws described in Article 31C or, for the matter of that, in relation to laws of any description whatsoever, passed in order to achieve any object or policy whatsoever. This will serve to bring out the point that a total emasculation of the essential features of the Constitution is, by the ratio in Kesavananda Bharati, not permissible to the Parliament. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a loyalty oath. Justice Douglas speaking for the majority, observed while striking down the provision that: "Legitimate Legislative goals 'cannot be pursued by means that broadly stifle fundamental personal liberties when the end can be more narrowly achieved'.. "The objectionable quality of....... overbreadth" depends upon the existence of a statute "susceptible of sweeping and improper application.. These freedoms are delicate and vulnerable as well as supremely precious in our society. The threat of sanctions may deter their exercise almost as potently as the actual application of sanctions". In United States v. Herbet Guest, though the right to travel freely throughout the territory of the United States of America does not find an explicit mention in the American Constitution, it was held that the right to travel from one State to another occupied a position fundamental to the concept of the Federal Union and the reason why the right was not expressly mentioned in the American Constitution though it was mentioned in the Articles of Confideration, was that "a right so elementary was conceived from the beginning to be a necessary concomitant of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rdained in the light of history, that, in spite of the probability of excesses and abuses, these liberties are, in the long view, essential to enlightened opinion and right conduct on the part of the citizens of a democracy. The essential characteristic of these liberties is, that under their shield many types of life, character, opinion and belief can develop unmolested and unobstructed, Nowhere is this shield more necessary than in our own country for a people composed of many races and of many creeds. There are limits to the exercise of these liberties. The danger in these times from the coercive activities of those who in the delusion of racial or religious conceit would incite violence and breaches of the peace in order to deprive others of their equal right to the exercise of their liberties, is emphasized by events familiar to all. These and other transgressions of those limits the states appropriately may punish". In Arthur Terminiello v. City of Chicago, Justice Douglas delivering the majority opinion of the Court, while dealing with the importance of the right to free speech, observed: "The vitality of civil and political institutions in our society depends on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plants of equality and free speech. Those and other basic rights found their expression in Article 16 of The Constitution of India Bill, 1895. A series of Congress resolutions reiterated that demand between 1917 and 1919. The emergence of Mahatma Gandhi; on the political scene gave to the freedom movement a new dimension: it ceased to be merely anti-British it became a movement for the acquisition of rights of liberty for the Indian Community. Mrs. Besan't Commonwealth of India Bill, 1925 and the Madras Congress resolution of 1928 provided a striking continuity for that movement. The Motilal Nehru Committee appointed by the. Madras Congress resolution said at pp. 89-90: "It is obvious that our first care should be to have our Fundamental Rights guaranteed in a manner which will not permit their withdrawal under any circumstances.. Another reason why great importance attaches to a Declaration of Rights is the unfortunate existence of communal differences in the country. Certain safeguards are necessary to create and establish a sense of security among those who look upon each other with distrust and suspicion. We could not better secure the full enjoyment of religious and com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ving the social revolution, which is the ideal which the visionary founders of the Constitution set before themselves. In other words, the Indian Constitution is founded on the bed-rock of the balance between Parts III and IV. To give absolute primacy to one over the other is to disturb the harmony of the Constitution. This harmony and balance between fundamental rights and directive principles is an essential feature of the basic structure of the Constitution. This is not mere semantics. The edifice of our Constitution is built upon the concepts crystallised in the Preamble. We resolved to constitute ourselves into a Socialist State which carried with it the obligation to secure to our people justice-social, economic and political. We, therefore, put part IV into our Constitution containing directive principles of State policy which specify the socialistic goal to be achieved. We promised to our people a democratic polity which carries with it the obligation of securing to the people liberty of thought, expression, belief, faith and worship; equality of status and of opportunity and the assurance that the dignity of the individual will at all costs be preserved. We, therefore, pu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te of Article 13 read with Articles 14 and 19, its validity will not be open to question so long as its object is to secure a directive principle of state Policy. We are disposed to accept, the submission of the learned Solicitor General, considering the two charts of cases submitted by him, that it is possible to conceive of laws which will not attract Article 31C since they may not bear direct and reasonable nexus with the provisions of Part IV. But, that, in our opinion, is beside the point. A large majority of laws, the bulk of them, can at any rate be easily justified as having been passed for the purpose of giving effect to the policy of the State towards securing some principle or the other laid down in Part IV. In respect of all such laws, which will cover an extensive gamut of the relevant legislative activity, the protection of Articles 15 and 19 will stand wholly withdrawn. It is then no answer to say, while determining whether the basic structure of the Constitution is altered, that at least. some laws will fall outside the scope of Article 31C. We have to decide the matter before us not by metaphysical subtlety, nor as a matter of semantics, but by a broad and liberal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch do not get the protection of Article 19(2) to (6) that Article 31 was amended to say that the provisions of Article 19, inter alia, cannot be invoked for voiding the laws of the description mentioned in Article 31C. Articles 14 and 19 do not confer any fanciful rights. They confer rights which are elementary for the proper and effective functioning of a democracy. They are universally so regarded, as is evident from the universal Declaration of Human Rights. Many countries in the civilised world have parted with their sovereignty in the hope and belief that their citizens will enjoy human freedoms. And they preferred to be bound by the decisions and decrees of foreign tribunals on matters concerning human freedoms. If Articles 14 and 19 are put out of operation in regard to the bulk of laws which the legislatures are empowered to pass, Article 32 will be drained of its life-blood. Article 32(4) provides that the right. guaranteed by Article 32 shall not be suspended except as otherwise provided for by the Constitution. Section 4 of the 42nd Amendment found an easy way to circumvent Article 32(4) by withdrawing totally the protection of Articles 14 and 19 in respect of a large c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Constitution. We are unable to accept this contention. The principles enunciated in Part IV are not the proclaimed monopoly of democracies alone. They are common to all polities, democratic or authoritarian. Every State is goal-oriented and claims to strive for securing the welfare of its people. The distinction between the different forms of Government consists in that a real democracy will endeavour to achieve its objectives through the discipline of fundamental freedoms like those conferred by Articles 14 and 19. Those are the most elementary freedoms without which a free democracy is impossible and which must therefore be preserved at all Costs. Besides, as observed by Brandies, J., the need to protect liberty is the greatest when Government's purposes are beneficent. If the discipline of Article 14 is withdrawn and if immunity from the operation of that article is conferred, not only on laws passed by the Parliament but on laws passed by the State Legislatures also, the political pressures exercised by numerically large groups can tear the country asunder by leaving it to the legislature to pick and choose favoured areas and favourite classes for preferential treatment. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that we should still save Article 31C from the challenge of unconstitutionality by reading into that Article words which destroy the rationale of that Article and an intendment which is plainly contrary to its proclaimed purpose. A part of the same argument was pressed upon us by the learned Additional Solicitor General who contended that it would still be open to the Courts under Article 31C to decide four questions: (1) Does the law secure any of the directive principles of the Stats policy? (ii) Is it necessary to encroach upon fundamental rights in order to secure the object of the directive principles? (iii) what is the extent of such encroachment, if any? and (iv) Does that encroachment violate the basic structure of the Constitution? This argument is open to the same criticism to which the argument of the learned Attorney General is open and which we have just disposed of. Reading the existence of an extensive judicial review into Article 31C is really to permit the distortion of the very purpose of that article. It provides expressly that no law of a particular description shall be deemed to be void on the ground that it violate Article 14 or Article 19. It would be shee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as advanced in regard to the amendment effected by section 55 of the 42nd Amendment to Article 368, by the addition of clauses (4) and (5) therein. It was urged that we should so construe the word "amendment" in clause (4) and the word "amend" in clause 5 as to comprehend only such amendments as do not destroy the basic structure of thy Constitution. That argument provides a striking illustration of the limitations of the doctrine of reading down. The avowed purpose. Of clauses (4) and (5) of Article 368 is to confer power upon the Parliament to amend the Constitution without any "limitation whatever". Provisions of this nature cannot be saved by reading into them words and intendment of a diametrically opposite meaning and content. The learned Attorney General then contends that Article 31C should be upheld for the same reasons for which Article 31A(1) was upheld. Article 31A (1) was considered as a contemporaneous practical exposition of the Constitution since it was inserted by the very First Amendment which was passed in 1951 by the same body of persons who were members of the Constituent Assembly. We can understand: that Article 31A can be looke ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch new constitutional amendment must be judged on its own merits. Nor indeed are we impressed by a limb of the same argument that when Article 31A was upheld on the ground of stare decisis, what was upheld was a constitutional device by which a class of subject-oriented laws was considered to be valid. The simple ground on which Article 31A was upheld, apart from the ground of contemporaneous practical exposition, was that its validity was accepted and recognised over the years and, therefore, it was not permissible to challenge its constitutionality. The principle of stare decisis does not imply the approval of the device or mechanism which is employed for the purpose of framing a legal or constitutional provision. It was finally urged by the learned Attorney General that if we uphold the challenge to the validity of Article 31C, the validity or clauses (2) to (6) of Article 19 will be gravely imperilled because those clauses will also then be liable to be struck down as abrogating the rights conferred by Article 19(1) which are an essential feature or the Constitution. We are unable to accept this contention. Under clauses (2) to (6) of Article 19, restrictions can be imposed on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n Writ Petitions Nos. 656 to 660 of 1977- Wamanrao & others etc, v. The Union of India & ors. (hereinafter referred to as Wamanrao's case) and other allied petitions have challenged the constitutional validity of the Maharashtra Agricultural Lands (Ceiling on Holdings) Act 1961 (herein after referred to as the principal Act) as amended by the Maharashtra Agricultural Lands (Lowering of Ceiling on Holdings and (Amendment Act 1972 (hereinafter referred to as Act 21 of 1975) and the Maharashtra Agricultural Lands (Lowering of Ceiling on Holdings) and (Amendment) Act 1975 (hereinafter referred to as Act 47 of 1975) and the Maharashtra Agricultural Lands (Ceiling on Holdings) Amendment Act 1975 (hereinafter referred to as Act 2 of 1976) on the ground that the amended provisions of the Act are violative of Articles 14, 19(1)(f), 31 and 31A of the Constitution. We shall hereafter for the sake of convenience refer to the principal Act as duly amended by the subsequent Acts 21 of 1975, 47 of 1975 and 2 of 1976 as "the impugned legislation". It is not necessary for the purpose of this opinion to set out the relevant provisions of the impugned legislation but it is sufficient to sta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... challenge being negatived by the High Court, they preferred appeals in this Court. The only contention advanced on behalf of the land holders in support of the appeals was that the impugned legislation in so far as it introduced an artificial concept of a 'family unit' and fixed ceiling on holding of land by such family unit was violative of the second proviso to cl. (1) of Article 31A and was not saved from invalidation by the protective armour of Article 31B. This contention was negatived by the Constitution Bench and it was held that the impugned legislation did not, by creating an artificial concept of a family unit and fixing ceiling on holding of land by such family unit, conflict with the second proviso to clause (1) of Article 31A and even if it did contravene that proviso, it was protected by Article 31B since the principal Act as well as the subsequent amending Acts were included in the 9th Schedules vide Dattatraya Govind Mahajan v. State of Maharashtra. Now at the time when this hatch of cases was argued before the Court, the emergency was in operation and hence it was not possible for the land-holders to raise many of the contentions which they could otherwise have rai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not be ready with our judgment and hence on 9th May 1980 being the last working day of the Court before the summer vacation we made an order expressing our conclusion but stating that we would give our reasons later. By this order we held that Article 31A does not damage any of the basic or essential features of the Constitution or its basic structure and is therefore valid and constitutional and so is Article 31C as it stood prior to its amendment by the Constitution (Forty Second Amendment) Act, 1976 valid to the extent its constitutionality was upheld in Kesavananda Bharati's case. So far as Article 31B is concerned, we said that Article 31 as originally introduced was valid and so also are all subsequent amendments including various Acts and Regulations in the 9th Schedule from time to time upto 24th April, 1973 when Kesavananda Bharati's case was decided. We did not express any final opinion on the constitutional validity of the amendments made in the 9th Schedule on or after 24th April 1973 but we made it clear that, these amendments would be open to challenge on the ground that they or any one or more of them damage the basic or essential features of the Constitution or its ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a constitutional amendment (obviously, if these two clauses were validly included in Article 368, they would stand in the way of the petitioners challenging the constitutional validity of the Constitution (Thirty-ninth Amendment) -Act, 1975. The petitioners were, therefore, compelled to go further and impugn the constitutional validity of section 55 of the Constitution (Forty-second Amendment) Act, 1976. This much challenge, as shall presently point out, would have been sufficient to clear the path for the petitioners in assailing the constitutional validity of the Nationalisation Act, but the petitioners, not resting content with what was strictly necessary, proceeded also to challenge section 4 of the Constitution (Forty-second Amendment) Act, 1976 which amended Article 31C. There were several grounds on which the constitutional validity of the Constitution (Forty-second Amendment) Act, 1976 was impugned in the writ petitions and I shall refer to them when I deal with the arguments advanced on behalf of the parties. Suffice it to state for the present, and this is extremely important to point out. that when the writ petitions reached hearing before us, Mr. Palkhiwala, learned co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ionalisation Act, that this Act was enacted for giving effect to the policy of the State towards securing the principles specified in clause (b) of Article 39 of the Constitution. Neither the Union of India in its counter- affidavit nor the learned Attorney General in the course of his arguments relied on any other Directive Principle except that contained in Article 39 clause (b). Mr. Palkhiwala also did not make any attempt to relate the Nationalisation Act to any other Directive Principle of State Policy. Now either the Nationalisation Act was really and truly a law for giving effect to the Directive Principle set out in Article 39 clause (b) as declared in section 39 or it was not such a law and the legislative declaration contained in section 39 was a colourable device. If it was the former, then the unamended Article 31C would be sufficient to protect the Nationalisation Act from attack on the ground of violation of Articles 14, 19 and 31 and it would be unnecessary o invoke the amended Article 31C and if it was the latter, then neither the unamended nor the amended Article 31C would have any application. Thus, in either event, the amended Article 31C would have no relevance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l strength of 13 to hear the case and I hoped that after a free and frank exchange of thoughts, I would be able to share the views of someone or the other of my esteemed brothers, but we were over-taken by adventitious circumstances," namely, so much time was taken up by counsel to explain their respective points of view that very little time was left to the Judges "after the conclusion of the arguments, for exchange of draft judgments". Here also, I am compelled by similar circumstances, though not adventitious, to hand down a separate opinion without having had an opportunity to discuss with my colleagues the reasons which weighed with them in striking down the impugned constitutional amendments. Some how or other, perhaps owing to extraordinary pressure of work with which this Court is over-burdened. no judicial conference or discussion was held nor was any draft judgment circulated which could form the basis of discussion, though. as pointed out above, the hearing of the arguments concluded as far back as 16th November, 1979. It was only on 8th May, 1980, just two days before the closing of the Court for the summer vacation, that I was informed by the learned Chi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st follow upon the judgment. lt is true that sometimes where the case involves the liberty of the citizen or the execution of a death sentence or where the time taken in preparing a reasoned judgment might pre-judicially affect the winning party, this Court, does, in the larger interests of justice, pronounce an order and give reasons later, but these are exceptional cases where the requirements of justice induces the Court to depart from the legally sanctioned course. But, there the court had in fact waited for about 5 1/2 months after the conclusion of the arguments and there was clearly no urgency which required that an order should be made though reasons were not ready, the delay of about 22 months in making the order was not going to injure the interests of any party, since the order was not going to dispose of the writ petition and many issues would still remain to be decided which could be dealt only after the summer vacation. Thus there would have been no prejudice to the interests of justice if the order had been made on he re-opening of the Court after the summer vacation supported by a reasoned judgment. These were the reasons which compelled me to make my order dated 9t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of 13 Judges of this Courtthe largest Bench that ever sat-and after a hearing which lasted for 68 days-the longest hearing that ever took placeeleven judgments were delivered which are reported in Keshavananda Bharti v. State of Kerala (supra). The earlier decision of this Court in l.C. Golaknath & Ors. v. State of Punjab where, by a majority of six against five, the fundamental rights were held to be unamendable by Parliament under Article 368, was over-ruled as a result of the decision in Keshavananda Bharti's case. But, six out of the thirteen learned Judges (Sikri, C. J. Shelat, Grover, Hegde, Reddy and Mukharjea, JJ. accepted the contention of the petitioners that though Article 368 conferred power to amend the Constitution, there were inherent or implied limitations on the power of amendment and therefore Article 368 did not confer power on Parliament to amend the Constitution so as to destroy or emasculate the essential or basic elements or features of the Constitution. The fundamental rights, according to the view taken by these six learned Judges, constituted basic or essential features of the Constitution and they could not be, therefore, abrogated or emasculated in the e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of amendment. So far as the expression "essential features" means the basic structure or framework of the Constitution. I have already dealt with the question as to whether the power to amend the Constitution would include within itself the power to change the basic structure or framework of the Constitution. Apart from that, all provisions of the Constitution are subject to amendatory process and cannot claim exemption from that process by being described essential features." Whatever be the justification for this view on merits, I do not think that this observation can be read as meaning that in the opinion of Khanna, J. "basic structure or frame work" as contemplated by him was different from "basic features" or "essential elements" spoken of by the other six learned judges. It was in the context of an argument urged on behalf of the petitioners that the "essential features" of the Constitution cannot be changed that this observation was made by Khanna, J. clarifying that if the "essential features" meant the "basic structure or framework" of the Constitution, the argument of the petitioners would be a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the eleven judgments delivered in the case. Once the judgments were delivered, these nine Judges as also the remaining four became functus officio and thereafter they had no authority to cull out the ratio of the judgments or to state what, on a proper analysis of the judgments, was the view of the majority. What was the law laid down was to be found in the judgments and that task would have to be performed by the Court before whom the question would arise as to what is the law laid down in Keshavananda Bharti's case. The Court would then hear the arguments and dissect the judgments as was done in Smt. Indira Gandhi's case (supra) and then decide as to what is the true ratio emerging from the judgments which is binding upon the Court as law laid down under Art. 141. But here it seems that nine judges set out in the summary what according to them was the majority view without hearing any arguments. This was a rather unusual exercise, though wellintentioned. But quite apart from the validity of this exercise embarked upon by the nine judges, it is a little difficult to understand how a proper and accurate summary could be prepared by these judges when there was not enough time, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... scope and width of that power when it deals with provisions not concerned with Fundamental Rights." Then again at page 707 of the Report, the learned Judge rejects the argument that the core and essence of a Fundamental Right is immune from the amendatory process. These observations might at first blush appear to support the view that, according to Khanna, J., the amendatory power under Article 368 was sufficiently wide to comprehend not only addition or alternation but also repeal of a Fundamental Right resulting in its total abrogation. But if we look art the judgment of Khanna, J. as a whole, we do not think this view can be sustained. It is clear that these observations were made by the learned Judge with a view to explaining the scope and width of the power of amendment under Article 368. The learned Judge held that the amendatory power of Parliament was wide enough to reach every provision of the Constitution including the Fundamental Rights in Part Ill of the Constitution. but while so holding, he proceeded to make it clear that despite all this width the amendatory power was subject to an overriding limitation. namely, that it could not be exercised so as to alter th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ental rights are not a part of the basic structure of the Constitution". Now if this be so, it is difficult to understand how he could hold the Constitution (Twenty-ninth Amendment) Act, 1972 unconditionally valid. Consistently with his view, he should have held that the Constitution (Twenty-ninth Amendment) Act 1972 would be valid only if the protection afforded by it to the Kerala Acts included in the 9th Schedule was not violative of the basic structure or framework of the Constitution. But merely because the learned Judge wrongly held the Constitution (Twenty-ninth Amendment) Act, 1972 to be unconditionally valid and did not uphold its validity subject to the scrutiny of the Kerala Acts added in the 9th Schedule, it cannot follow that he regarded the fundamental rights as not forming part of the basic structure of the Constitution. If the law was correctly laid down by him, it did not become incorrect by being wrongly applied. It is not customary to quote from the writing of a living author, but departing from that practice which, I believe, is no longer strictly adhered to or followed, I may point out that what I have said above finds support from the comment made by Mr. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ructure. But he appeared to be of the view that the democratic form of government. the secular character of the State and judicial review formed part of the basic structure. It is obvious that these were merely illustrations of what each of the six learned Judges led by Sikri. C.J. thought to be the essential features of the Constitution and they were not intended to be exhaustive. Shelat and Grover, JJ. Hegde and Mukherjea JJ. and Reddy, J. in fact said in their judgments that their list of essential features which form the basic structure of the Constitution was illustrative or incomplete. This enumeration of the essential features by the six learned Judges had obviously no binding authority: first. because the Judges were not required to decide as to what features or elements constituted the basic structure or framework of the Constitution and what each of them said in this connection was in the nature of obiter and could have only persuasive value; secondly, because the enumeration was merely by way of illustration and thirdly, because the opinion of six Judges that certain specified features formed part of the basic structure of the Constitution did not represent the majority ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (iv) The nation shall be governed by a government of laws, not of men." These, according to him, were "the pillars of our constitutional philosophy, the pillars, therefore, of the basic structure of the Constitution." He then proceeded to hold that clause (4) of Article 329A was "an outright negation of the right of equality conferred by Article 14, a right which more than any other is a basic postulate of our Constitution" and on that account declared it to be unconstitutional and void, Mathew, J. however, expressed his dissent from the view taken by Chandrachud, J. as regards the right of equality conferred by Article 14 being an essential feature of the Constitution and stated inter alia the following reason: "The majority in Bharati's case did not hold that Article 14 pertains to the basic structure of the Constitution. The Majority upheld the validity of the first part of Article 31C; this would show that a constitutional amendment which takes away or abridges the right to challenge the validity of an ordinary law for violating the fundamental right under that Article would not destroy or damage the basic structure. The only logical basis for su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cture of the Constitution and therefore Article 31A, Article 31B read with 9th Schedule and the unamended Article 31C in so far as they exclude the applicability of Articles 14 and 19 to certain kinds of legislation emasculate those fundamental rights and thereby damage the basic structure of the Constitution and they must accordingly be held to be outside the amending power of Parliament and hence unconstitutional and void. I have not made any reference here to Article 31 and treated the argument of Mr. Phadke as confined only to Articles 14 and 19, because, though Article 31 was very much in the Constitution when the arguments in Wamanrao's case were heard, it has subsequently been deleted by the Constitution (Forty-Fourth Amendment) Act, 1978 and reference to it has also been omitted in Articles 31A, 31B and 31C and we are therefore concerned with the constitutional validity of these Articles only in so far as they grant immunity against challenge on the ground of infraction of Articles 14 and 19. Mr. Phadke on behalf of the petitioners also challenged the constitutional validity of the Constitution (Fortieth Amendment). Act. 1976 which included the amending Acts 21 of 1975, 41 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Directive Principles and in consequence, the basic structure of the Constitution was emasculated. A passionate plea was made by Mr. Palkhiwala with deep emotion and feeling that if Article 31C as amended was allowed to stand, it would be an open licence to the legislature and the executive, both at the Centre and in the States, to destroy democracy and establish an authoritarian or totalitarian regime, since almost every legislation could be related, directly or indirectly, to some Directive Principle and would thus be able to earn immunity from the challenge of Articles 14 and 19 and the fundamental rights enshrined in these two Articles would be rendered meaningless and futile and would become mere rope of sand. Mr. Palkhiwala vehemently urged that Justice, liberty and equality were the three pillars of the Constitution and they were embodied in Articles 14 and 19 and therefore if the supremacy of the fundamental rights enshrined in these Articles was destroyed and they were made subservient to the directive Principles, it would result in the personality of the Constitution being changed beyond recognition and such a change in the personality would be outside the amending power ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orty-second Amendment Act. 1976." But would an amendment made by any other section of the Constitution (Forty second Amendment) Act, 1976 such as section (4). which would be neither before nor after the commencement of section 55, but simultaneous with it. be covered by this protective provision? This is purely a problem of verbal semantics which arises because of slovenliness in drafting that is becoming rather common these days and I need not dwell on it, for there are more important questions which arise out of the challenge to the constitutional validity of clause (4) and they require serious consideration. I will proceed on the basis that the protection sought to be given by clause (4) extends to every amendment whatsoever and that the parenthetical words "whether before or after the commencement of section SS of the Constitution (Forty-second Amendment) Act, 1976" were introduced merely by way of abundant caution with a view to indicating that this protection was intended to cover even amendments made or purporting to have been made before the enactment of the constitution (Forty-second Amendment) Act. 1976. Now even a cursory look at the language of clause (4) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... view, become non-existent and it would not be incorrect to say that, covertly and indirectly, by the exclusion of judicial review, the amending power of Parliament would stand enlarged contrary to the decision of this Court in Keshavananda Bharati's case. This would undoubtedly damage the basic structure of the Constitution, because there are two essential features of the basic structure which would be violated, namely, the limited amending power of Parliament and the power of judicial review with a view to examining whether any authority under the Constitution has exceeded the limits of its powers. I shall immediately proceed to state the reasons why I think that these two features form part of the basic structure of the Constitution. It is clear from the majority decision in Keshavananda Bharati's case that our Constitution is a controlled Constitution which confers powers on the various authorities created and recognised by it and defines the limits of those powers. The Constitution is supreme lex, the paramount law of the land and there is no authority, no department or branch of the State, which is above or beyond the Constitution or has powers unfettered and unrestricted by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ongst which the powers of Government are divided; the Executive, the Legislature and the Judiciary. Under our Constitution we have no rigid separation of powers as in the United States of America, but there is a broad demarcation, though, having regard to the complex nature of governmental functions, certain degree of overlapping is inevitable. The reason for this broad separation of powers is that "the concentration of powers in any one organ may" t(t quote the words of Chandrachud, J. (as he then was) in Smt. Indira Gandhi's case (supra) "by upsetting that fine balance between the three organs, destroy the fundamental premises of a democratic Government to which were pledged." Take for example, a case where the executive which is in charge of administration acts to the prejudice of a citizen and a question arises as to what are the powers of the executive and whether the executive has acted within the scope of its powers. Such a question obviously cannot be left to the executive to decide and for two very good reasons. First, the decision of the question would depend upon the interpretation of the Constitution and the laws and this would pre-eminently be a mat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ransgresses such limits. It is for the judiciary to uphold the constitutional values and to enforce the constitutional limitations. That is the essence of the rule of law, which inter alia requires that "the exercise of powers by the Government whether it be the legislature or the executive or any other authority, be conditioned by the Constitution and the law". The power of judicial review is an integral part of our constitutional system and without it, there will be no Government of laws and the rule of law would become a teasing illusion and a promise of unreality. I am of the view that if there is one feature of our Constitution which, more than any other, is basic and fundamental to the maintenance of democracy and the rule of law, it is the power of judicial review and it is unquestionably, to my mind, part of the basic structure of the Constitution. Of course, when I say this I should not be taken to suggest that however effective alternative institutional mechanisms or arrangements for judicial review cannot be made by Parliament. But what I wish to emphasise is that judicial review is a vital principle of our Constitution and it cannot be abrogated without affect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d not exist. What A clause (S) really sought to do was to remove the limitation on the amending power of Parliament and convert it from a limited power into an unlimited one. This was clearly and indubitably a futile exercise on the part of Parliament. I fail to see how Parliament which has only a limited power of amendment and which cannot alter the basic structure of the Constitution can expand its power of amendment so as to confer upon itself the power of repeal or abrogate the Constitution or to damage or destroy its basic structure. That would clearly be in excess of the limited amending power possessed by Parliament. The Constitution has conferred only a limited amending power on Parliament so that it cannot damage or destroy the basic structure of the Constitution and Parliament cannot by exercise of that limited amending power convert that very power into an absolute and unlimited power. If it were permissible to Parliament to enlarge the limited amending power conferred upon it into an absolute power of amendment, then it was meaningless to place a limitation on the original power of amendment. It is difficult to appreciate how Parliament having a limited power of amendme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en if it infringes formal equality before the law under Art. 14 or any Fundamental Right under Article 19. Here clause (a) of Article 31A protects a law of agrarian reform which is clearly. in the context of the socioeconomic conditions prevailing in India, a basic requirement of social and economic justice and is covered by the Directive Principles set out in clauses (b) and (c) of Article 39 and it is difficult to see how it can possibly be regarded 1) as violating the basic structure of the Constitution. On the contrary, agrarian reform leading to social and economic justice to the rural population is an objective which strengthens the basic structure of the Constitution. Clause (a) of Article 31A must therefore be held to be constitutionally valid even on the application of the basic structure test. But, apart from this reasoning on principle which in our opinion clearly sustains the constitutional validity of clause (a) of Article 31A. we think that even on the basis of the doctrine of stare decisions, the whole of Article 31A must be upheld as constitutionally valid. The question as to the constitutional validity of Article 31 A first came up for consideration before this Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... verruling that the said amendment, and a few other like amendments subsequently made, should not be disturbed and must be held to be valid. The result was that even the decision in Golak Nath's case accepted the constitutional validity of Article 31A. The view taken in Golak Nath's case as regards the amending power of Parliament was reversed in Keshavananda Bharati's case where the entire question as to the nature and extent of the constituent power of Parliament to amend the Constitution was discussed in all its dimensions and aspects uninhibited by any previous decisions, but the only constitutional amendments which were directly challenged in that case were the Twenty-fourth and Twenty-fifth and Twenty-ninth Amendments. The constitutional validity of Art. 31A was not put in issue in Keshavananda Bharati's case and the learned Judges who decided that case were not called upon to pronounce on it and it cannot therefore be said that this Court uphold the vires of Article 31A in that Case. It is no doubt true that Khanna, J. held Article 31A to be valid on the principle of stare decisis. but that was only for the purpose of upholding the validity of Article 31C. because he took th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and the doctrine of stare decisis cannot be permitted to perpetuate erroneous decisions of this Court to the detriment of the general welfare of the public. There is indeed a school of thought which believes with Cardozo that "the precedents have turned upon us and they are engulfing and annihilating us, engulfing and annihilating the very devotees that worshipped at their shrine" and that the Court should not be troubled unduly if it has to break away from precedents in order to modify old rules and if need be to fashion new ones to meet the challenges and problems thrown upon by a dynamic society. But at the same time, it must be borne in A mind that certainty and continuity are essential ingredients of rule of law. Certainty in applicability of law would be considerably eroded and suffer a serious setback if the highest court in the land were readily to overrule the view expressed by it in earlier decisions even though that view has held the field for a number of years. It is obvious that when constitutional problems are brought before this Court for its decision, complex and difficult questions are bound to arise and since the decision on many of such questions may d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty and safety of this country and its millions are at stake or the basic direction of the nation itself is in peril of a shakeup" that the Court would be justified in reconsidering its earlier decision and departing from it. It is fundamental that the nation's Constitution should not be kept in constant uncertainty by judicial review every now and then, because otherwise it would paralyse by perennial suspense all legislative and administrative action on vital issues. The Court should not indulge in judicial stabilisation of State action and a view which has been accepted for a long period of time in a series of decisions and on the faith of which millions of people have acted and a large number of transactions have been effected, should not be disturbed. Let us not forget the words of Justice Roberts of the United States Supreme Court-words which are equally applicable to the decision making process in this Court: "The reason for my concern is that the instant decision, overruling that announced about nine years ago, tends to bring adjudications of this tribunal into the same days as a restricted rail road ticket good for this day and train only.. It is regrettable that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t to ensure the validity of a legislation which was already declared void by the courts as in Kameshwar Singh's case, and therefore considered it advisable to have a further provision in Article 31B to specifically by-pass judgments striking down such legislation. That seems to be the reason why Article 31B was enacted and statutes falling within Article 31A were included in the 9th Schedule. Article 31B was conceived together with Article 31A as part of the same design adopted to give protection to legislation providing for acquisition of an estate or extinguishment or modification of any rights in an estate. The 9th Schedule of l? Article 31B was not intended to include laws other than those covered by Article 31A. That becomes clear from the speeches of the Law Minister and the Prime Minister during the discussion on the Constitution (First Amendment) Act, 1951. Dr. Ambedkar admitted of the 9th Schedule that prima facie "it is an unusual procedure" but he went on to add that "all the laws that have been saved by this Schedule are laws that fall under Article 31." Jawaharlal Nehru also told Parliament: "It is not with any great satisfaction or pleasure th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Bengal Act as amended by the ordinance came within the category of legislation specified in the proposed clause (d) of Art. 31A. In view of this amendment, the West Bengal Act was included in the 9th Schedule by way of amendment of the draft Bill. It is significant to note that similar Orissa Statute which provided for acquisition of land for purposes going beyond the proposed clause (d) of Article 31A and which was not amended in the same manner as the West Bengal Act, was not included in the 9th Schedule. A Central Act, namely, the Resettlement of Displaced Persons (Land Acquisition) Act, 1948 fell within the proposed clause (d) of Art. 31A and it was therefore included in the 9th Schedule in the draft Bill. The link between Articles 31A and A 31B was thus maintained in the draft Bill, but when the draft Bill went before the Joint Committee. the proposed clause (d) of Article 31A was deleted and the Bihar, U.P. and West Bengal Acts as also the above-mentioned Central Act which were originally intended to be within the scope and ambit of Article 31A, became unrelated to that Article. Even so, barring these four Acts, all the other statutes included in the 9th Schedule fell within ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing that it did not know the limitation on its amending power. It may be pointed out that quite a large number of statutes have been included in the 9th Schedule by the subsequent constitutional amendments and strangely enough, we find for the first time that statutes have been included which have no connection at all with Article 31A or 31C and this device of Article 3113 which was originally adopted only as a means of giving a more definite and assured protection to legislation already protected under Article 31A, has been utilised for the totally different purpose of excluding the applicability of Fundamental Rights to all kinds of statute which have nothing to do with agrarian reform or Directive Principles. This is rather a disturbing phenomenon. Now out of the statutes which are or may in future be included in the 9th Schedule by subsequent constitutional amendments. if there are any which fall within a category covered by Article 31A or 31C, they would be protected from challenge under Articles 14 and 19 and it would not be necessary to consider whether their inclusion in the 9th Schedule J' is constitutionally valid, except in those rare cases where protection may be claime ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... article was introduced in the Constitution by the Constitution (Twenty-fifth Amendment) Act, 1971 and it provided in its first part that "Notwithstanding anything contained in Art. 13, no law giving effect to the policy of the state towards securing the principles specified in Cl. (b) or (c) of Art. 39 shall be deemed to be void on the ground that it is inconsistent with or takes away or abridges any of the rights conferred by Art. 14, Art. 19 or Art. 31". It is not necessary to reproduce here the second part of the unamended Art. 31C because that was declared unconstitutional by the majority decision in Keshavananda Bharti's case and must consequently be treated as non-est. The argument of Mr. Phadke against the constitutional validity of the unamended Art. 31C was the same as in case of Art. 31A, namely, that it emasculated the fundamental rights in Articles 14 and 19 and was, therefore, destructive of the basic structure of the Constitution. I shall presently examine this argument on merits and demonstrate that it is unsustainable, but before I do so, I may point out at the outset that it is wholly unnecessary to embark upon a discussion of the merits of this argument ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alid. It is no doubt true, conceded Mr. Phadke that the six learned Judges headed by Ray, J. (as he then was) held the first part of the unamended Article 31C to be constitutionally valid but that was on the basis that Parliament had absolute and unrestricted power to amend the Constitution, which basis was, according to the majority decision, incorrect. lt was impossible to say, argued Mr. Phadke, what would have been the decision of the six learned Judges headed by Ray, J. (as he then was if they had applied the correct test and examined the constitutional validity of the first part of the unamended Article 31C by reference to the yardstick of the limited power of amendment, and their conclusion upholding the validity of the first part of the unamended Article 31C by applying the wrong test could not therefore be said to be binding . On the Court in the present writ petitions. This argument of Mr. Phadke is, in my opinion, not well founded and cannot be accepted. I agree with Mr. Phadke that the ratio decidendi of Keshavananda Bharati's case was that the amending power of Parliament is limited and, Parliament cannot in exercise of the power of amendment alter the basic structure ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed Article 31C deals with laws having certain objectives. There is no qualitative difference between Article 31A and the first part of the unamended Article 31C in so far as the exclusion of Articles 14 and 19 is concerned. The fact that the provisions to the first part of the unamended Article 31C are more comprehensive and have greater width compared to those of Article 31A does not make any difference in principle. If Article 31A is constitutionally valid, it is indeed difficult to see how the first part of the unamended Article 31C can be held-to be unconstitutional. It may be pointed out that the first part of the unamended Article 31C in fact stands on a more secure footing because it accords protection against infraction of Articles 14 and 19 to legislation enacted for giving effect to the Directive Principles set out in clauses (b) and (c) of Article 39. The legislature in enacting such legislation acts upon the constitutional mandate contained in Article 37 according to which the Directive Principles are fundamental in the governance of the country and it is the duty of the State to apply those principles in making laws. lt is for the purpose of giving effect to the Direc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is outside the constituent power of Parliament in so far as it seeks to include clauses (4) and (5) in Art. 368. But since a long argument was addressed to us seriously pressing this ground of challenge, I do not think I would be unjustified in dealing briefly with it. It is clear on a plain natural construction of its language that under the Proviso to Art. 83(2), the duration of the Lok Sabha could be extended only during the operation of a Proclamation of Emergency and if, therefore, no Proclamation of Emergency was in operation at the relevant time, the House of People (Extension of Duration) Act, 1976 would be outside the competence of Parliament under the Proviso to Art. 83(2). The question which thus requires to be considered is whether there was a Proclamation of Emergency was in operation at the date when the House of People (Extension of Duration Act, 1976 was enacted. The learned Solicitor General appearing on behalf of the Union of India contended that not one but two Proclamations of Emergency were in operation at the material date.. One Proclamation issued by the President on 3rd December, 1971 and the other Proclamation issued on 25th June, 1976. By the first Procla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation of Emergency could not be said to have been validly issued by the President; and (3) there was not threat to the security of India on account of internal disturbance, which could justify the issue of a Proclamation of Emergency and the second Proclamation was issued, not for a legitimate purpose sanctioned by clause (1) of Art. 352 but with a view to perpetuating the Prime Minister in power and it was clearly malafide and for collateral purpose and hence outside the power of the President under Art. 352 cl.(1). The petitioners had to attack the validity of both the Proclamations of Emergency, the continuance of one and the issuance of another, because even if one Proclamation of Emergency was in operation at the relevant time, it would be sufficient to invest Parliament with power to enact the House of People (Extension of Duration) Act, 1976. Obviously, therefore, if the first Proclamation of Emergency was found to continue in operation at the date of enactment of the House of People (Extension of Duration) Act, 1976, it would be unnecessary to consider whether the second Proclamation of Emergency was validly issued by the President. I will accordingly first proceed to exami ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... versy between the parties; 352(1): "If the President is satisfied that a grave emergency exists hereby the Security of India or of any part of the territory thereof is threatened, whether by war or external aggression or internal disturbance, he may, by Proclamation, make a declaration to that effect (in respect of the whole of India or cf such part of the territory thereof as may be specified in the Proclamation; (2) A Proclamation issued under cl. (1)- (a) may be revoked (or varied) by a subsequent Proclamation; (b) shall be laid before each House of Parliament; (c) shall cease to operate at the expiration of two months unless before the expiration of that period it has been approved by resolutions of both Houses of Parliament. ...................................................... ...................................................... (2A).................................................. ...................................................... (3) A Proclamation of Emergency declaring that the security of India or of any part of the territory thereof is threatened by war or by external aggression or by internal disturbance may be made before the actual occurrence o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation for a period not exceeding, one year at a time. Then another power conferred is that under Art. 250 which says that, while a Proclamation of Emergency is in operation, Parliament shall have the power to make laws for the whole or any part of the territory of India with respect to any of the matters enumerated in the State List. The effect of this provision is that the federal structure based on separation of powers is put out of action for the time being. Another power of a similar kind is given by Art. 353 which provides that during the time when a Proclamation of Emergency is in force, the executive powers of the Union shall extend to the giving of directions to any State as to the manner in which the executive power thereof is to be exercised. This provision also derogates from the federal principle which forms the basis of the Constitution. Then we come to Art. 354 which confers power on the President, during the operation of a Proclamation of Emergency, to direct that provisions relating to distribution of revenues under Arts. 268 to 270 shall have effect subject to such modifications or exceptions as he thinks fit. Another drastic consequence of the Proclamation of Emer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 52, the Court had no jurisdiction to question the satisfaction of the President leading to the issue of a Proclamation of Emergency or to entertain any question regarding the validity of the Proclamation of Emergency or its continued operation. Both these objections are in my view unfounded and they do not bar judicial review of the validity of a Proclamation of Emergency issued by the President under Article 352 cl. (1). My reasons for saying so are as follows: It is axiomatic that if a question brought before the court is purely a political question not involving determination of any legal or constitutional right or obligation, the court would not entertain it, since the court is concerned only with adjudication of legal rights and liabilities. But merely because a question has a political complexion, that by itself is no ground why the court should shrink from performing its duty under the Constitution, if it raises an issue of constitutional determination. There are a large number of decisions in the United States where the Supreme Court has entertained actions having a political complexion because they raised constitutional issue. Vide Gomallion v. Lightfoot and Baker v. Carr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uch limits. Here the only limit on the power of the President under Article 35 cl. (1) is that the President should be satisfied that a grave emergency exists whereby the security of India or any part thereof is threatened whether by war or external aggression or internal disturbance. The satisfaction of the President is a subjective, one and cannot be decided by reference to any objective tests. It is deliberately and advisedly subjective because the matter in respect to which he is to be satisfied is of such a nature that its decision must necessarily be left to the Executive branch of Government. There may be a wide range of situations which may arise and their political implications and consequences may have to be evaluated in order to decide whether there is a situation of grave emergency by reason of the security of the country being threatened by war or external aggression or internal disturbance. It is not a decision which can be based on what the Supreme Court of the United States has described as "judiciably discoverable and manageable standards". It would largely be a political judgment based on assessment of diverse and varied factors, fast-changing situations ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... all and it would be liable to be challenged before a court, notwithstanding clause (5)(a) of Article 352. It must, of course, be conceded that in most cases it would be difficult if not impossible, to challenge the exercise of power under Article 352 clause (1) even on this limited ground, because the facts and circumstances on which the satisfaction is based would not be known, but where it is possible, the existence cf the satisfaction can always be challenged on the ground that it is mala fide or based on a wholly extraneous or irrelevant ground. It is true that so far there is no decision of this court taking the view that the validity of a Proclamation of Emergency can be examined by the court though within these narrow limits. But merely because there has been no occasion for this Court to pronounce on the question of justiciability of a Proclamation of Emergency no inference can be drawn that a Proclamation of Emergency is immune from judicial scrutiny. The question whether or not a Proclamation of Emergency can be judicially reviewed on the ground that it is mala fide or an abuse of power of the President did arise before this Court in Gulam Sarwai v. Union of India. but t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . That clause says in sub-clause (a) that a Proclamation of Emergency issued under clause (1) may be revoked by a subsequent Proclamation. Sub-clause (b) of that clause requires that a Proclamation issued under clause (1) shall be laid before each House of Parliament and under sub-clause (c) such a Proclamation ceases to operate at the expiration of two months, unless it has been approved by both Houses of Parliament before the expiration of two months. It is clear from this provision that a Proclamation of Emergency validly issued under clause (1) would continue to operate at least for a period of two months and if before the expiration of that period, it has been approved by resolutions of both Houses of Parliament, it would continue to operate further even beyond the period of two months, and the only way in which it can be brought to an end is by revoking it by another Proclamation issued under clause 2(a). There is no other way in which it can cease to operate. Neither Article 352 nor any other Article of the Constitution contains any provision saying that a Proclamation of Emergency validly issued under clause (1) shall cease to operate as soon as the circumstances warranting ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation at all for the continuance of the Proclamation of Emergency. But this would be a very heavy onus because it would be entirely for the executive Government to be satisfied whether a situation has arisen where the Proclamation of Emergency can be revoked. There would be so many facts and circumstances and such diverse considerations to be taken into account by the executive Government before it can be satisfied that there is no longer any grave emergency whereby the security of India is threatened by war or external aggression or internal disturbance. 'this is not a matter which is a fit subject matter for judicial determination and the court would not interfere with the satisfaction of the executive Government in this regard unless it is clear on the material on record that there is absolutely no justification for the continuance of the Proclamation of Emergency and the Proclamation is being continued mala fide or for a collateral purpose. The court may in such a case, if satisfied beyond doubt, grant a writ of mandamus directing the Central Government to revoke the Proclamation of Emergency. But until that is done, the Proclamation of Emergency would continue in operation and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ised a question of construction of section 2 of the House of People (Extension of Duration) Act, 1976. It is a simple question which does not admit of much doubt or debate and a plain grammatical reading of section 2 is sufficient to answer it. It would be convenient to reproduce section 2 which co-incidentally happens to be the only operative section of the Act: "Sec. 2: The period of five years (being the period for which the House of the People may, under clause (2) of Article 83 of the Constitution, continue from the date appointed for its first meeting) in relation to the present House of the People shall, while the Proclamations of Emergency issued on the 3rd day of December, 1971 and on the 25th day of June, 1975, are both in, operation, be extended for a period of one year: Provided that if both or either of the said Proclamations cease or ceases to operate before the expiration of the said period of one year, the present House of the People shall, unless previously dissolved under clause (2) of Article 83 of the Constitution,. continue until six months after the cesser of operation OF the said Proclamations or Proclamation but not beyond the said period of one year. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... should be in operation at the date of enactment of the Act. Even if one Proclamation of Emergency was in operation at the material date, it would be sufficient to attract the power of Parliament under the proviso to Art. 83 clause (2) to enact the Act extending the duration of the Lok Sabha. Of course, it must be concerned that Parliament proceeded on the assumption that both the Proclamations of Emergency were in force at the relevant date and they invested Parliament with power to enact the Act, but even if this legislative assumption were unfounded, it would not make any difference to the validity of the exercise of the power, so long as there was one Proclamation of Emergency in operation which authorised Parliament to extend the duration of the Lok Sabha wader the proviso to clause (2) of Article 83. It is true that the proviso to sec. 2 enacted that if both or either of the Proclamations of Emergency cease or ceases to operate before the expiration of the extended period of one year, the Lok Sabha shall continue until six months after the cesser of operation of the said Proclamations or Proclamation, not going beyond the period of one year, but the opening part of this provis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Constitution (Forty-second Amendment) Act, 1976 based on the ground that on the dates when these Constitution Amending Acts were enacted, the Lok Sabha was not validly in existence. That takes me to the challenge against the constitutional validity of the amendment made in Article 31. by section 4 of the Constitution (Forty-second Amendment) Act, 1976. This amendment substitutes the words "all or any of the principles laid down in Part IV" for the words "the principles specified in clause (b) or clause (c) of Article 39" and so amended; Article 31C provides that "Notwithstanding anything contained in Article 13, no law giving effect to the policy of the State towards securing all or any of the principles laid dow.. in Part IV shall be deemed to be void on the ground that it is inconsistent with or takes away or abridges any of the rights conferred by Article 14 or Article 19". The amended Article 31C gives primacy to Directive Principles over Fundamental Rights in case of conflict between them and the question is whether this amendment is in any way destructive of the basic structure of the Constitution. To answer this question satisfactorily, it is n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ality is the master key to nonviolent independence. A non-violent system of Government is an impossibility so long as the wide gulf between the rich and the hungry millions persists. The contrast between the palaces of New Delhi and the miserable hovels of the poor labouring class cannot last one day in a free India in which the poor will enjoy the same power as the rich in the land. A violent and bloody revolution is a certainty one day, unless there is voluntary abdication of riches and the power that riches give and sharing them for common good". Jawaharlal Nehru also said in the course of his presidential address to the Lahore Congress Session of 1929: "The philosophy of socialism has gradually permeated the entire structure of the society, the world over and almost the only point in dispute is the phase and methods of advance to its full realisation. India will have to go that way too if she seeks to end her poverty and inequality, though she may evolve her own methods and may adapt the ideal to the genius of her race. Then again, emphasizing the intimate and inseverable connection between political independence and social and economic freedom, he said: "If ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... asses and give every Indian fullest opportunity to develop himself according to his capacity. In fact, as pointed out by K. Santhanan, a prominent southern member of the Constituent Assembly, there were three revolutions running parallel in India since the end of the first World War. The political revolution came to an end on 15th August, 1947 when India became independent but clearly political freedom cannot be an end in itself. it can only be a means to an end, "that end being" as eloquently ex- pressed by Jawaharlal Nehru "the raising of the people,................. to higher levels and hence the general advancement of humanity." It was therefore necessary to carry forward and accomplish the social and economic revolutions. The social revolution was meant to get India "out of the mediavalism based on birth, religion, custom and community and reconstruct her social structure on modern foundations of law, individual merit and secular education," while the economic revolution was intended to bring about "transition from primitive rural economy to scientific and planned agriculture and industry." Dr. Radhakrishnan who was a member of the Cons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g human rights, one is the International Covenant on Civil and Political Rights and the other is the International Covenant on Economic, Social and Cultural Rights. Both are international instruments relating to human rights. It is therefore not correct to t say that Fundamental Rights alone are based on human rights while Directive Principles fall in some category other than human rights. The socio-economic rights embodied in the Directive Principles are as much a part of human rights as the Fundamental Rights. Hegde and Mukherjea, JJ. were. to my mind, right in saying in Keshavananda Bharati's case at page 312 of the Report that "the Directive Principles and the Fundamental Rights mainly proceed on the basis of human Rights." Together, they are intended to carry out the objectives set out in the Preamble of the Constitution and to establish an egalitarian social order informed with political, social and economic justice and II ensuring dignity of the individual not only to a few privileged persons but to the entire people of the country including the have-nots and the handicapped, the lowliest and the lost, Now it is interesting to note that although Fundamental Rights ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al Rights may be split- up into two parts; Part A dealing with the latter kind of rights under the heading "Fundamental Principles of Social Policy" and Part dealing with the former under the heading "Fundamental Rights". The Fundamental Rights Sub-Committee also recommended that "the list of fundamental rights should be prepared in two parts, the first part consisting of rights enforceable by appropriate legal process and the second consisting of Directive Principles of Social Policy". A week later, while moving for consideration, the Interim Report of Fundamental Rights, Sardar Vallabhbhai Patel said: "This is a preliminary report or an interim report because the Committee when it sat down to consider the question of fixing the fundamental rights and its incorporation into the Constitution. came to the conclusion that the Fundamental Rights should be divided into two parts-the first part justiciable and the other non-justiciable." This position was reiterated by Sardar Vallabhbhai Patel when he said while presenting the Supplementary Report: "There were two parts of the Report; one contained Fundamental Rights which were justiciable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s which are designed to protect the individual against the action of other private citizens and seem to impose positive obligations on the State to ensure this protection to the individual. I would not, therefore, limit the potential of the Fundamental Rights by subscribing to the theory that they are merely negative obligations requiring the State to abstain as distinct from taking positive action. The only distinguishing feature, to my mind, between Fundamental Rights and Directive Principles is that whereas the former are enforceable in a Court of Law, the latter, are not. And the reason for this is obvious; it has been expressed succinctly by the Planning Commission in the following words: "The non-justiciability clause only provides that the infant State shall not be immediately called upon to account for not fulfilling the new obligations laid upon it. A State just awakened to freedom with its many pre-occupations might be crushed under the burden unless it was free to decide the order, the time, the place and the mode of fulfilling them." The social and economic rights and other matters dealt with in the Directive Principles are by their very nature incapable of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to it and attempt to make it a real participatory democracy which does not remain merely a political democracy but also becomes social and economic democracy with Fundamental Rights available to all irrespective of their power, position or wealth. The dynamic provisions of the Directive Principles fertilise the static provisions of the Fundamental Rights. The object of the Fundamental Rights is to protect individual liberty, but can individual liberty be considered in isolation from the socio-economic structure in which it is to operate. There is a real connection between individual liberty and the shape and form of the social and economic structure of the society. Can there be any individual liberty at all for the large masses of people who are suffering from want and privation and who are cheated out of their individual rights by the exploitative economic system ? Would their individual liberty not come in conflict with the liberty of the socially and economically more powerful class and in the process, get mutilated or destroyed ? It is axiomatic that the real controversies in the present day society are not between power and freedom but between one form of liberty and another. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eable by any court: secondly whereas Article 45 provides that the principles of social policy are intended for the general guidance of the Direchtas, Article 37 makes the Directive Principles fundamental in the governance of this country; and lastly, whereas Article 45 declares that the application of principles of social policy in the making of laws shall be the care of the Direchtas exclusively, Article 37 enacts that it shall be the duty of the State to apply the Directive Principles in making laws. The changes made by the framers of the Constitution are vital and they have the effect of bringing about a total transformation or metamorphosis o f this provision, fundamentally altering its significance and efficacy, It will be noticed that the Directive Principles are not excluded from the cognizance of the court, as under the Irish Constitution: they are merely made non-enforceable by a court of law for reasons already discussed But merely because they are not enforceable by the judicial process does not mean that they are of subordinate importance to any other part of the Constitution. I have already said this before, but I am emphasizing it again, even at the cost of repetitio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Constitution, the hopes held out to the nation and the very ideals on which our Constitution is built up." (Emphasis supplied). I wholly endorse this view set forth by Hegde, J and express my full concurrence with it. I may also point out that simply because the Directive Principles do not create rights enforceable in a court of law, it does not follow that they do not create any obligations on the State. We are so much Obsessed by the Hohfeldian Classification that we tend to think of rights, Liberties, powers and privileges as being invariably linked with the corresponding concept of duty, no right, liability and immunity. We find it difficult to conceive of obligations or duties which do not create corresponding rights in others. But the Hohfeldian concept does not provide a satisfactory analysis in all kinds of jural relation ships and breaks down in some cases where it is not possible to say that the duty in one creates an enforceable right in another. There may be a rule which imposes an obligation on an individual or authority and yet it may not be enforceable in a court of law and therefore not give rise to a corresponding enforceable right in another person. But ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e and it would not only constitute a breach of faith with the people who imposed this constitutional obligation on the State but it would also render a vital part of the Constitution meaningless and futile. Now it is significant to note that for the purpose of the Directive Principles, the "State" has the same meaning as given to it under Article 13 for the purpose of the Fundamental Rights. This would mean that the same State which is injuncted from taking any action in infringement of the Fundamental Rights is told in no uncertain terms that it must regard the Directive Principles as fundamental in the governance of the country and is positively mandated to apply them in making laws. This gives rise to a paradoxical situation and its implications are for reaching. The State is on the one hand, prohibited by the constitutional injunction in Article 13 from making any law or taking any executive action which would infringe any Fundamental Right and at the same time it is directed by the constitutional mandate in Article 37 to apply the Directive Principles in the governance of the country and to make laws for giving effect to the Directive Principles. Both are constitutio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate of Jammu & Kashmir & Anr, has been held that every executive action of the Government, whether in pursuance of law or otherwise, must be reasonable and informed with public interest and the yardstick for determining both reasonableness and public interest is to be found in the Directive Principle and therefore, if any executive action is taken by the Government for giving effect to a Directive Principle, it would prima facie be reasonable and in public interest. It will, therefore, be seen that if a law is enacted for the purpose of giving effect to a Directive Principle and it imposes a restriction on a Fundamental Right, it would be difficult to condemn such restriction as unreasonable or not in public interest. So also where a law is enacted for giving effect to a Directive Principle in furtherance of the constitutional goal of social and economic justice it may conflict with a formalistic and doctrinaire view of equality before the law, but it would almost always conform to the principle of equality before the law in its total magnitude and dimension, because the equality clause in the Constitution does not speak of more formal equality before the law but embodies the conce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the alternative, for the purpose of argument. assume that there may be a few cases where it may be found by the court. perhaps on a narrow and doctrinaire view of the scope and applicability of a Fundamental Right as in Karimbil Kunhikoman v. State of Kerala where a law awarding compensation at a lower rate to holders of larger blocks of land and at higher rate to holders of smaller blocks of land was struck down by this Court as violative of the equality clause, that a law enacted really and genuinely for giving effect to a Directive Principle is violative of a Fundamental Right under Article 14 or 19. Would such a law enacted in discharge of the. constitutional obligation laid upon the State under Article 37 be invalid, because it infringes a Fundamental Right ? If the court takes the view that it is invalid, would it not be placing Fundamental Rights above Directive Principles, a position not supported at all by the history of their enactment as also by the constitutional scheme already discussed by me. The two constitutional obligations, one in regard to Fundamental Rights and the other in regard to Directive Principles, are of equal strength and merit and there is no reason ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it is not correct to say, and I have in the preceding portions of this opinion, given cogent reasons for this view, that prior to the amendments Fundamental Rights had a superior or higher position in the constitutional scheme than Directive Principles and there is accordingly no question at all of any subversion of the constitutional structure by the amendment. There can be no doubt that the intention of the Constitution makers was that the Fundamental Rights should operate within the socio-economic structure or a wider continuum envisaged by the Directive Principles, for then only would the Fundamental Rights become exercisable by all and a proper balance and harmony between Fundamental Rights and Directive Principles secured. The Constitution makers therefore never contemplated that a conflict would arise between the constitutional obligation in regard to Fundamental Rights and the constitutional mandate in regard to Directive Principles. But if a conflict does arise between these two constitutional mandates of equal fundamental character how is the conflict to be resolved ? The Constitution did not provide any answer because such a situation was not anticipated by the Constitut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... I hope most of us aim at" Parliament took the view that the constitutional obligation in regard to Directive Principles should have precedence over the constitutional obligation in regard to the Fundamental Rights in Articles 14 and 19, because Fundamental Rights though precious and valuable for maintaining the democratic way of life, have absolutely no meaning for the poor, down trodden and economically backward classes of people who unfortunately constitute the bull of the people of India and the only way in which Fundamental Rights can be made meaningful for them is by implementing the Directive Principles, for the Directive Principles are intended to bring about a socio-economic revolution and to create a new socio-economic order where there will be social and economic justice for all and every one, not only a fortunate few but the teeming millions of India, would be able to participate in the fruits of freedom and development and exercise the Fundamental Rights. Parliament therefore amended Article 31C with a view to providing that in case of conflict Directive Principles shall have precedence over the Fundamental Rights in Articles 14 and 19 and the latter shall yield pl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on good but voluntary submission to restraints is a philosopher's dream. Therefore, article 37 enjoys the State to apply the Directive Principles in making laws. The freedom of a few have them to be abridged in order to ensure the freedom of all. It is in this sense that Parts, III and IV, as said by Granville Austin, together constitute "the conscience of the constitution". The Nation stands today at the crossroads of history and exchanging the time honoured place of the phrase, may I say that the Directive Principles of State Policy should not be permitted to become "a mere rope of sand." If the State fails to create conditions in which the Fundamental freedoms could be enjoyed by all, the freedom of the few will be at the mercy of the many and then all freedoms will vanish. In order, therefore, to preserve their freedom, the privileged few must part with a portion of it." This is precisely what Parliament achieved by amending Article 3lC. Parliament made the amendment in Article 31C because it realised that "if the State fails to create conditions in which the fundamental freedoms could be enjoyed by all, the freedom of the few will be at the mercy ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... osition laid down by the majority decision in Keshavananda Bharati's case that the unamended Article 31C was constitutionally valid, it could only be on the basis that it did not damage or destroy the basic structure of the Constitution and moreover in the order made in Waman Rao's case on 9th May, 1980 this Court expressly held that the unamended Article 31C "does not damage any of the basic or essential features of the Constitution or its basic structure," and if that be so, it is difficult to appreciate how the amended Article 31C can be said to be violative of the basic structure. If the exclusion of the Fundamental Rights. embodied in Articles 14 and 19 could be legitimately made for giving effect to the Directive Principles set out in clauses (b) and (c) of Article 39 without affecting the basic. structure. I fail to see why these Fundamental Rights cannot be excluded for giving effect to the other Directive Principles. If the constitutional obligation in regard to the Directive Principles set out in clauses (b) and (c) of Article 39 could be given precedence over the constitutional obligation in regard to the Fundamental Rights under Articles 14 and 19, there is no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ll within such description. This argument was presented by Mr. Palkhiwala with great force and persuasiveness but it does not appeal to me and I. cannot. accept it. It is clear from the Language of the amended Article 31C that the law which is protected from challenge under Articles 14 and 19 is law giving effect to the policy of the State towards securing all or any of this Directive Principles. Whenever, therefore, any protection is claimed for a law under the amended Article 31C, it is necessary for the court to examine whether this law has been enacted for giving effect to the policy of the State towards securing any one or more of the Directive Principles and ii is only if the court is so satisfied as a result of judicial scrutiny, that the court would accord the protection of, the amended Article 31C to such law. Now it is undoubtedly true that the words used in the amended Article are "law giving effect to the policy of the Stale", but the policy of the State which is contemplated there is the policy towards securing one or more of the Directive Principles. It is the constitutional obligation of the State to secure the Directive Principles and that is the policy wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tate are economically backward and those who have not resided in the State for more than three generations have an affluent business in the Stale or have acquired property in the State they shall be deprived of their business and property with a view to vest the same in the old residents of the State." It may be possible, after performing what I may call an archaeological operation, to discover some remote the tenuous connection between such law and some Directive Principle, but the dominant object of such law would be, as pointed out by Mr H. M. Seeravi at Page 1559 of the second Volume of his book on "Constitutional Law of India", to implement "the policy of the State to discriminate against citizens who hail from another State, and in a practical sense, to drive them out of it", and such law would not be protected by the amended Article 31C. Many such examples can be given but I do not wish to unnecessarily burden this opinion. The point I wish to emphasize is that the amended Article 31 does not give protection to a law which has merely some remote or tenuous connection with a Directive Principle. What is necessary is that there must be a real and subst ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the statute which do not fall within this category, they would not be entitled to protection and their validity would have to be judged reference to Articles 14 and 19. Where, therefore, protection is claimed in respect of a statute under the amended Article 31C, the court would have first to determine whether there is real and substantial connection between the law and a Directive Principle and the predominant object of the law is to give effect to such Directive Principle and if the answer to this question is in the affirmative, the court would then have to consider which are the provisions of the law basically and essentially necessary for giving effect to the Directive Principle and give protection of the amended Article 31C only to those provisions. The question whether any particular provision of the law is basically and essentially necessary for giving effect to the Directive Principle. would depend, to a large extent, on how closely and integrally such provision is connected with the implementation on the Directive Principle. If the court finds That a particular provision is subsidiary or incidental or not essentially and integrally connected with the implementation of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... outside the protection of the amended Article 31C and would have to meet the challenge of Articles 14 and 19. Lastly, I must consider the argument of Mr. Palkhiwala that almost any and every law would be within the protection of the amended Article 31C because it would be referable to some Directive Principle or the other. I think this is an argument of despair. Articles 39 to 51 contain Directive Principles referring to certain specific objectives and in order that a law should be for giving effect to one of those Directive Principles. there would have to be a real and substantial connection between the law and the specific objective set out in such Directive Principle. Obviously, the objectives set out in these Directive Principles being specific and limited, every law made by a legislature in the country cannot possibly have a real and substantial connection with one or the other of these specific objectives. It is only a limited number of laws which would have a real and substantial connection with one or the other of specific objectives contained in these Directive Principles and any and every law would not come within this category. Mr. Palkhiwala then contended that in any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of social or economic justice that almost any kind of legislation could be justified under it. Moreover, where a claim for protection is made in respect of a legislation on the ground that it is enacted for giving effect to a Directive Principle, the Directive Principle to which it is claimed to be related would not ordinarily be the general Directive Principle set out in Article 38, but would be one of the specific Directive Principles set out in the succeeding Articles, because as I said before, these latter particularise the concept of social and economic justice referred to in Article 38. I cannot therefore subscribe to the proposition that if the Amendment in Article 31C were held valid, it would have the effect of protecting every possible legislation under the sun and that would in effect and substance wipe out Articles 14 and 19 from, the Constitution. This is a tall and extreme argument for which I find no justification in the provisions of the Constitution. I would therefore declare Section 55 of the Constitution (Forty second Amendment) Act, 1976 which inserted sub-sections (4) and (5) in Article 368 as unconstitutional and void on the ground that it damages the basic ..... X X X X Extracts X X X X X X X X Extracts X X X X
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