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TMI Blog1973 (4) TMI 114X X X X Extracts X X X X X X X X Extracts X X X X ..... h and Twenty-ninth Amendments of the Constitution. I may give a few facts in Writ petition No. 135 of 1970 to show how the question arises in this petition. Writ Petition No. 135 of 1970 was filed by the petitioner on March 21, 1970 under Article 32 of the Constitution for enforcement of his fundamental rights under Articles 25, 26, 14, 19(1)(f) and 31 of the Constitution. He prayed that the provisions of the Kerala Land Reforms Act, 1963 (Act 1 of 1964) as amended by the Kerala Land Reforms (Amendment) Act 1969 (Act 35 of 1969) be declared unConstitutional, ultra vires and void. He further prayed for an appropriate writ or order to issue during the pendency of the petition. This Court issued rule nisi on March 25, 1970. 3. During the pendency of the writ petition, the Kerala Land Reforms (Amendment) Act 1971 (Kerala Act No. 25 of 1971) was passed which received the assent of the President on August 7, 1971. The petitioner filed an application for permission to urge additional grounds and to impugn the Constitutional validity of the Kerala Land Reforms (Amendment) Act 1971 (Kerala Act No. 25 of 1971). 4. In the meantime, the Supreme Court by its judgment dated April 26, 1971 in K ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the citizens can be set up by Parliament by exercising its powers under Article 368. 12. On the side of the petitioners it is urged that the power of Parliament is much more limited. The petitioners say that the Constitution gave the Indian citizen freedoms which were to subsist for ever and the Constitution was drafted to free the nation from any future tyranny of the representatives of the people. It is this freedom from tyranny which, according to the petitioners, has been taken away by the impugned Article 31C which has been inserted by the Twenty-fifth Amendment. If Article 31C is valid, they say, hereafter Parliament and State Legislatures and not the Constitution, will determine how much freedom is good for the citizens. 13. These cases raise grave issues. But however grave the issues may be, the answer must depend on the interpretation of the words in Article 368, read in accordance with the principles of interpretation which are applied to the interpretation of a Constitution given by the people to themselves. 14. I must interpret Article 368 in the setting of our Constitution, in the background of our history and in the light of our aspirations and hopes, and other ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s stated in the head note, this Court held: The provisional Parliament is competent to exercise the power of amending the Constitution under Article 368. The fact that the said article refers to the two Houses of the Parliament and the President separately and not to the Parliament, does not lead to the inference that the body which is invested with the power to amend is not the Parliament but a different body consisting of the two Houses. The words "all the powers conferred by the provisions of this Constitution on Parliament" in Article 379 are not confined to such powers as could be exercised by the provisional Parliament consisting of a single chamber, but are wide enough to include the power to amend the Constitution conferred by Article 368. 19. I may mention that Mr. Seervai contends that the conclusion just mentioned was wrong and that the body that amends the Constitution under Article 368 is not Parliament. 20. The Court further held: The view that Article 368 is a complete code in itself in respect of the procedure provided by it and does not contemplate any amendment of a Bill for amendment of the Constitution after it has been introduced, and that if the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ised over all the provisions of the Constitution. He thought that "if the Constitution-makers had intended that any future amendment of the provisions in regard to fundamental rights should be subject to Article 13(2), they would have taken the precaution of making a clear provision in that behalf. 25. He seemed to be in agreement with the following observations of Kania, C.J. in A.K. Gopalan v. The State of Madras [1950] S.C.R. 88 at p. 100: the inclusion of Article 13(1) and (2) in the Constitution appears to be a matter of abundant caution. Even in their absence if any of the fundamental rights was infringed by any legislative enactment, the Court has always the power to declare the enactment, to the extent it transgresses the limits, invalid. 26. He was of the view that even though the relevant provisions of Part III can be justly described as the very foundation and the cornerstone of the democratic way of life ushered in this country by the Constitution, it cannot be said that the fundamental rights guaranteed to the citizens are eternal and inviolate in the sense that they can never be abridged or amended. 27. According to him, it was legitimate to assume that the Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of amendment and the necessary conditions for the effectiveness of the amendment.... The Constitution gives so many assurances in Part III that it would be difficult to think that they were the play-things of a special majority. To hold this would mean prima facie that the most solemn parts of our Constitution stand on the same footing as any other provision and even on a less firm ground than one on which the articles mentioned in the proviso stand. 34. Mudholkar, J. although agreeing that the writ petition should be dismissed, raised various doubts and he said that he was reserving his opinion on the question whether Sankari Prasad's case was rightly decided. He thought: The language of Article 368 is plain enough to show that the action of Parliament in amending the Constitution is a legislative act like one in exercise of its normal legislative power. The only difference in respect of an amendment of the Constitution is that the Bill amending the Constitution has to be passed by a special majority (here I have in mind only those amedments which do not attract the proviso to Article 368). The result of a legislative action of a legislature cannot be other than 'law' and, ther ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... will be for consideration whether they can be modified. It has been said, no doubt, that the preamble is not a part of our Constitution. But, I think, that if upon a comparison of the preamble with the broad features of the Constitution it would appear that the preamble is an epitome of those features or, to put it differently if these features are an amplification or concretisation of the concepts set out in the preamble it may have to be considered whether the preamble is not a part of the Constitution. While considering this question it would be of relevance to bear in mind that the preamble is not of the common run such as is to be found in an Act of a legislature. It has the stamp of deep deliberation and is marked by precision. Would this not suggest that the framers of the Constitution attached special significance to it? 39. Coming now to Golak Nath's case, the petitioner had challenged the validity of the Constitution (Seventeenth Amendment) Act, 1964 which included in the Ninth Schedule, among other acts, the Punjab Security of Land Tenures Act, 1953 (Act 10 of 1953), and the Mysore Land Reforms Act (Act 10 of 1962) as amended by Act 14 of 1965. 40. It was urged befor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e power of amendment, Parliament cannot destroy the fundamental structure of the Constitution but can only modify the provision thereof within the framework of the original instrument for its better effectuation. 44. As will be seen later, the first conclusion above, does not survive for discussion any longer because it is rightly admitted on behalf of the petitioners that the Constitution (Twenty Fourth Amendment) Act, 1971, in so far as it transfers power to amend the Constitution from the residuary entry (Entry 97 List 1) or Article 248 of the Constitution to Article 368, is valid; in other words Article 368 of the Constitution as now amended by the Twenty Fourth Amendment deals not only with the procedure for amendment but also confers express power on Parliament to amend the Constitution. 45. I will also not discuss the merits of the second conclusion as the same result follows in this case even if it be assumed in favour of the respondents that an amendment of the Constitution is not law within Article 13(2) of the Constitution. 46. Hidayatullah, J. as he then was, came to the following conclusions at page 902: (i) that the Fundamental Rights are outside the amendatory pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tended that the rights conferred by Part III could not be altered by giving effect to the policies of Part IV. (6) The Preamble cannot control the unambiguous language of the articles of the Constitution. 50. Regarding the amendment of the basic features of the Constitution, he observed: Counsel said that they could not give an exhaustive catalogue of the basic features, but sovereignty, the republican form of government, the federal structure and the fundamental rights were some of the features. The Seventeenth Amendment has not derogated from the sovereignty, the republican form of government and the federal structure, and the question whether they can be touched by amendment does not arise for decision. For the purposes of these cases, it is sufficient to say that the fundamental rights are within the reach of the amending power. 51. Ramaswami, J., held: (1) The amending power under Article 368 is sui generis; (2) "Law" in Article 13(2) cannot be construed so as to include "Law" made by Parliament under Articles 4, 169, 392, 5th Schedule Part D and 6th Schedule Para 21. (3) The expression "fundamental rights" does not lift the fundamental righ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... end" or "Amendment" has, as will be pointed out later, been expanded. In some parts they have clearly a narrow meaning.. The proviso throws some light on the problem. First, it uses the expression "if such amendment seeks to make any change in"; it does not add the words "change of ", or omit "in", and say "seeks to change" instead of the expression "seeks to make any change in". 56. The articles which are included in the proviso may be now considered. Part V, Chapter I, deals with "the Executive". Article 52, provides that there shall be a President of India, and Article 53 vests the executive power of the Union in the President and provides how it shall be exercised. These two articles are not mentioned in the proviso to Article 368 but Articles 54 and 55 are mentioned. 57. Article 54 provides: 54. The President shall be elected by the members of an electoral college consisting of- (a) the elected members of both Houses of Parliament; and (b) the elected members of the Legislative Assemblies of the States. 58. Article 55 prescribes the manner of election of the President. 59. Why were Articles 52 an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rticles dealing with the federal structure or the status of the States had been selected for inclusion in the proviso. 63. Clause (c) of the proviso mentions the Lists in the Seventh Schedule, Clause (d) mentions the representation of States in Parliament, and Clause (e) the provisions of Article 368 itself. The provisions of Sub-clauses (c), (d) and (e) can rightly be said to involve the federal structure and the rights of the States. 64. What again is remarkable is that the fundamental rights are not included in the proviso at all. Were not the States interested in the fundamental rights of their people ? The omission may perhaps be understandable because of the express provision of Article 13(2) which provided that States shall not make any law which takes away or abridges the rights conferred by Part III and any law made in contravention of this clause shall to the extent of the contravention be void, assuming for the present that Article 13(2) operates on Constitutional amendments. 65. In construing the expression "amendment of this Constitution I must look at the whole scheme of the Constitution. It is not right to construe words in vacuum and then insert the meaning ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Gwyer C.J.-The Central Provinces and Berar Act, 1939 F.C.R. 18 at 42.) The question, then, is one of construction and in the ultimate resort must be determined upon tht actual words used, read not in vacuo but as occurring in a single complex instrument, in which one part may throw light on another. The Constitution has been described as the federal compact, and the construction must hold a balance between all its parts". (Per Lord Wright-James v. Commonwealth of Australia 1936 A.C. 578 at 613). 71. In the Constitution the word "amendment" or "amend" has been used in various places to mean different things. In some articles, the word "amendment" in the context has a wide meaning and in another context it has a narrow meaning. In Article 107, which deals with legislative procedure, Clause (2) provides that "subject to the provisions of Articles 108 and 109, a Bill shall not be deemed to have been passed by the House of Parliament unless it has been agreed to by both Houses, either without amendment or with such amendments only as are agreed to by both Houses." It is quite clear that the word "amendment" in this article has a n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 21 of the Sixth Schedule, it has been expressly stated in these provisions that they shall not be deemed to be amendments of the Constitution for the purposes of Article 368. 76. It is also important to note that the Constituent Assembly which adopted Article 368 on September 17, 1949, had earlier on August 18, 1949, substituted the following section in place of the old Section 291 in the Government of India Act, 1935: 291. Power of the Governor-General to amend certain provisions of the Act and orders made thereunder- (1) The Governor-General may at any time by order make such amendments as he considers necessary whether by way of addition, modification or repeal, in the provisions of this Act or of any order made thereunder in relation to any Provincial Legislature with respect to any of the following matters, that is to say- (a) the composition of the Chamber or Chambers of the Legislature; (b) the delimitation of territorial constituencies for the purpose of elections under this Act. * * * * * Here, the word "amendment" has been expanded. It may be that there really is no expansion because every amendment may involve addition, variation or repeal of part of a p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... until altered or repealed or amended by Parliament. 83. Here, all the three words are used giving a comprehensive meaning. Reliance is not placed by the draftsman only on the word "amend". 84. Similar language is used in Article 372 whereby existing laws continue to be in force until "altered or repealed or amended' by a competent Legislature or other competent authority. 85. In the original Article 243(2), in conferring power on the President to make regulations for the peace and good government of the territories in part D of the First Schedule, it is stated that "any regulation so made may repeal or amend any law made by Parliament." Here, the two words together give the widest power to make regulations inconsistent with any law made by Parliament 86. In Article 252 again, the two words are joined together to give a wider power. Clause (2) of Article 252 reads: 252(2). Any Act so passed by Parliament may be amended or repealed by an Act of Parliament passed or adopted in like manner but shall not, as respects any State to which it applies, be amended or repealed by an Act of the Legislature of that State. 87. In the proviso to Article 254, which d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mendment of this Constitution", in Article 368 I must look at the whole structure of the Constitution. The Constitution opens with a preamble which reads: WE THE PEOPLE OF INDIA, having solemnly resolved to constitute India into a SOVEREIGN DEMOCRATIC REPUBLIC and to secure to all its citizens: JUSTICE, social, economic and political; LIBERTY of thought, expression, belief, faith and worship; EQUALITY of status and of opportunity; and to promote among them all; FRATERNITY assuring the dignity of the individual and the unity of the Nation; IN OUR CONSTITUENT ASSEMBLY this Twenty-sixth day of November, 1949, do HEREBY ADOPT, ENACT AND GIVE TO OURSELVES THIS CONSTITUTION. 93. This Preamble, and indeed the Constitution, was drafted in the light and direction of the Objective Resolutions adopted on January 22, 1947, which runs as follows: (1) THIS CONSTITUENT ASSEMBLY declares its firm and solemn resolve to proclaim India as an Independent Sovereign Republic and to draw up for her future governance a Consti- (2) wherein the territories that now comprise British India, the territories that now form the Indian States, and such other parts of India as are outside British India ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... how that the Preamble was in conformity with the Constitution as it was finally accepted. Not only was the Constitution framed in the light of the Preamble but the Preamble was ultimately settled in the light of the Constitution. This appears from the following brief survey of the history of the framing of the Preamble extracted from the Framing of India's Constitution (A study) by B. Shiva Rao. In the earliest draft the Preamble was something formal and read : "We, the people of India, seeking to promote the common good, do hereby, through our chosen representatives, enact, adopt and give to ourselves this Constitution, (Shiva Rao's Framing of India's Constitution-A study-p. 127.). 96. After the plan of June 3, 1947, which led to the decision to partition the country and to set up two independent Dominions of India and Pakistan, on June 8, 1947, a joint subcommittee of the Union Constitution and Provincial Constitution Committees, took note that the objective resolution would require amendment in view of the latest announcement of the British Government The' announcement of June 3 had made it clear that full independence, in the form of Dominion Status, would be conferred on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a Rao's-Framing of India's Constitution-A study-pp. 130- 132). 99. The draft Preamble was considered by the Assembly on October 17, 1949. Shiva Rao observes that "the object of putting the Preamble last, the President of the Assembly explained, was to see that it was in conformity with the Constitution as accepted. "Once the transfer of power had taken place the question of British Parliament's subsequent approval which was visualised in the British Cabinet Commission's original plan of May 1946 could no longer arise. The sovereign character of the Constituent Assembly thus became automatic with the rapid march of events without any controversy, and the words in the Preamble "give to ourselves this Constitution" became appropriate. The Preamble was adopted by the Assembly without any alteration. Subsequently the words and figure "this twenty-sixth day of November 1949" were introduced in the last paragraph to indicate the date on which the Constitution was finally adopted by the Constituent Assembly. 100. Regarding the use which can be made of the preamble in interpreting an ordinary statute, there is no doubt that it cannot be used to modify the lan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ution, see Wynes, Legislative Executive and Judicial powers in Australia, third edition pp. 694-5; in Re. Berubari Union & Exchange of Enclaves. [1960] 3 S.C.R. 250, 281-82. 105. With respect, the Court was wrong in holding, as has been shown above, that the Preamble is not a part of the Constitution unless the court was thinking of the distinction between the Constitution Statute and the Constitution, mentioned by Mr. Palkhivala. It was expressly voted to be a part of the Constitution. Further, with respect, no authority has been referred before us to establish the proposition that "what is true about the powers is equally true about the prohibitions and limitations." As I will show later, even from the preamble limitations have been derived in some cases. 106. It is urged in the written submission of Mr. Palkhivala that there is a distinction between the Indian Constitution Statute and the Constitution of India. He urges as follows: This Constitution is the Constitution which follows the Preamble. It starts with Article 1 and ended originally with the Eighth Schedule and now ends with the Ninth Schedule after the First Amendment Act, 1951. The way the Preamble is dra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a to constitute.... (He then sets out the Preamble). Nothing provokes and stimulates thought and expression in people more than education. It is education that clarifies our belief and faith and helps to strengthen our spirit of worship. To implement and fortify these supreme purposes set forth in the preamble, Part III of our Constitution has provided for us certain fundamental rights. 110. In Sajjan Singh v. State of Rajasthan [1965] 1 S.C.R. 933; 968 Mudholkar, J. after assuming that the Preamble is not a part of the Constitution, observed: While considering this question it would be of relevance to bear in mind that the preamble is not of the common run such as is to be found in an Act of a legislature. It has the stamp of deep deliberation and is marked by precision. Would this not suggest that the framers of the Constitution attached special significance to it? 111. Quick and Garran in their "Annotated Constitution of the Australian Commonwealth (1901 p. 283) "adopted the following sentence from Lord Thring's "Practical Legislation, p. 36": A preamble may be used for other reasons to limit the scope of certain expressions or to explain facts or introduc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... construction would fit in with the Preamble. 117. In State of Victoria v. The Commonwealth 45 A.L.J. 251 which is discussed in detail later, a number of Judges refer to the federal structure of the Constitution. It is i n the preamble of the Commonwealth of Australia Constitution Act, 1902 that 'one indissoluble Federal Commonwealth' is mentioned. 118. There is a sharp conflict of opinion in Australia respecting the question whether an amendment can be made which would be inconsistent with the Preamble of the Constitution Act referring to the "indissoluble" character and the sections which refer to the "Federal" nature of the Constitution. After referring to this conflict, Wynes(Wynes Legislative, Executive and Judicial Powers in Australia, Fourth Edn. p. 506). observes: Apart from the rule which excludes the preamble generally from consideration in statutory interpretation, it is clear that, when all is said and done, the preamble at the most is, only a recital of the intention which the Act' seeks to effect; and it is a recital of a present (i.e., as in 1900) intention. But in any event the insertion of an express reference to amendment in the Constitution ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... upreme Court of United States (borrowing some of the language of the Preamble to the Federal Constitution) has appropriately stated that the people of the United States erected their Constitutions or forms of government to establish justice, to promote the general welfare, to secure the blessings of liberty, and to protect their persons and property from violence". (American Jurisprudence, 2d. Vol. 16 p. 184). 123. In the United States the Declaration of Independence is sometimes referred to in determining Constitutional questions. It is stated in American Jurisprudence (2d. 16. p. 189): While statements of principles contained in the Declaration of Independence do not have the force of organic law and therefore cannot be made the basis of judicial decision as to the limits of rights and duties, yet: it has been said that it is always safe to read the letter of the Constitution in the spirit of the Declaration of Independence, and the courts sometimes refer to the Declaration in determining Constitutional questions. 124. It seems to me that the Preamble of our Constitution is of extreme importance and the Constitution should be read and interpreted in the light of the grand ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from being convicted of any offence except for violation of a law in force at the time of the commission of the act charged as an offence or to be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence. It further provides that no person shall be prosecuted and punished for the same offence more than once, and no person accused of any offence shall be compelled to be a witness against himself. 130. Article 21 provides that no person shall be deprived of his life or personal liberty except according to procedure established by law. 131. Article 22 gives further protection against arrest and detention in certain cases. Article 22(1) provides that "no person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his choice." Article 22(2) provides that "every person who is arrested and detained in custody shall be produced before the nearest magistrate within a period of twenty-four hours of such arrest excluding the time necessa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... guage. 136. As will be shown later the inclusion of special rights for minorities has great significance. They were clearly intended to be inalienable. 137. The right to property comes last and is dealt with the Article 31. As originally enacted, it dealt with the right to property and prevented deprivation of property save by authority of law, and then provided for compulsory acquisition for public purposes on payment of compensation. It had three significant provisions, which show the intention of the Constitution-makers regarding property rights. The first is Article 31(4). This provision was intended to protect legislation dealing with agrarian reforms. The second provision, Article 31(5)(a), was designed to protect existing legislation dealing with compulsory acquisition. Some acts, saved by this provision did not provide for payment of full compensation e.g. U.P. Town Improvement Act, 1919. The third provision Article 31(6) provided a protective umbrella to similar laws enacted not more than eighteen months before the commencement of the Constitution. 138. The fundamental rights were considered of such importance that right was given to an aggrieved person to move the high ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... estion is whether they override the fundamental rights. In other words, ran Parliament abrogate the fundamental rights in order to give effect to some of the directive principles ? 144. I may now briefly notice the directive principles mentioned in Part IV. Article 38 provides that "the State shall strive to promote the welfare of the people by securing and protecting as effectively as it may a social order in which justice, social, economic and political, shall inform all the institutions of the national life." Now, this directive is compatible with the fundamental rights because surely the object of many of the fundamental rights is to ensure that there shall be justice, social, economic and political, in the country. Article 39, which gives particular directions to the State, reads thus: 39. The State shall, in particular, direct its policy towards securing- (a) that the citizens, men and women equally, have the right to an adequate means of livelihood; (b) that the ownership and control of the material resources of the community are so distributed as best to subserve the common good; (c) that the operation of the economic system does not result in the concentrati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of exploitation. 149. Article 47 lays down as one of the duties of the State to raise the standard of living and to improve public health, and to bring about prohibition. Article 48 directs the State to endeavour to organise agriculture and animal husbandry on modern and scientific lines, and in particular, to take steps for preserving and improving the breeds, and prohibiting the slaughter of cows and calves and other milch and draught cattle. 150. Article 49 deals with protection of monuments and places and objects of national importance. Article 50 directs that the State shall take steps to separate the judiciary fro m the executive in the public services of the State. This objective has been, to a large exten t, carried out without infringing the fundamental rights. 151. In his preliminary note on the fundamental Rights, Sir B.N. Rau, dealing with the directive principles, observed: The principles set forth in this Part are intended for the general guidance of the appropriate Legislatures and Government in India (hereinafter referred to collectively as 'the State'). The application of these principles in legislation and administration shall be the care of the State and shal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nscience of mankind, and the advent of a world in which human beings shall enjoy freedom of speech and belief and freedom from fear and want has been proclaimed as the highest aspiration of the common people. 158. Whereas it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law. 159. Whereas it is essential to promote the development of friendly relations between nations. 160. Whereas the peoples of the United Nations have in the Charter reaffirmed their faith in fundamental human rights, in the dignity and worth of the human person and in the equal rights of men and women and have determined to promote social progress and better standards of life in larger freedom. 161. Whereas Member States have pledged themselves to achieve, in cooperation with the United Nations, the promotion of universal respect for and observance of human rights and fundamental freedoms. 162. Whereas a common understanding of these rights and freedoms is of the greatest importance for the full realization of this pledge 163. In the Preamble to the International Covenant on Eco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o longer and the expiration of the said period of five years shall operate as a dissolution of the House: ... Under the proviso this period can be extended while a Proclamation of Emergency is in operation for a period not exceeding in any case beyond a period of six months after the Proclamation has ceased to operate. It was provided in Article 85(1) before its amendment by the Constitution (First Amendment) Act 1951 that the House of Parliament shall be summoned to meet twice at least in every year, and six months shall not intervene between their last sittings in one session and the date appointed for their first sitting in the next session. 167. Article 123 gives power to the President to promulgate ordinances during recess of Parliament Chapter IV deals with Union Judiciary. 168. Part VI, as originally enacted dealt with the States in Part A of the First Schedule-th e Executive, the State Legislatures and the High Courts. Article 174 deals with the summoning of the House of Legislature and its provisions are similar to that of Article 85. Article 213 confers legislative powers on the Governor during the recess of State Legislature by promulgating ordinances. 169. Part XI ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or tribal communities or parts of or groups within tribes or tribal communities which shall be deemed to be Scheduled Tribes in relation to that State. 173. Part XVII deals with Official Language, and Part XVIII with Emergency Provisions. Article 352 is important. It reads: 352.(1) If the President is satisfied that a grave emergency exists whereby the security of India or of any part of the territory thereof is threatened, whether by war or external aggression or internal disturbance, he may, by Proclamation, make a declaration to that effect. 174. Article 353 describes the effect of the Proclamation of Emergency. The effect is that the executive power of the Union shall be extended to the giving of directions to any State as to the manner in which the executive power thereof is to be exercised, and the Parliament gets the power to make laws with respect to any matter including the power to make laws conferring powers and imposing duties, etc., notwithstanding that it is one which is not enumerated in the Union List. Article 354 enables the President by order to make exceptions and modifications in the provisions of Article 268 to 279. Under Article 355 it is the duty of the U ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rictions. 179. I may here notice some relevant facts which constitute the background of the process of drafting the Constitution. The British Parliament knowing the complexities of the structure of the Indian people expressly provided in Section 6(6) of the Indian Independence Act, 1947, that "the powers referred to in Sub-section (1) of this section extends to the making of laws limiting for the future the powers of the legislature of the Dominion." Sub-section (1) of Section 6 reads: The legislature of each of the new Dominions shall have full power to make laws for that Dominion, including laws having extraterritorial operation. That Section 6(1) included making provision as to the Constitution of the Dominion is made clear by Section 8(1) which provided : "In the case of each of the new Dominions, the powers of legislature of the Dominion shall for the purpose of making provision as to the Constitution of the Dominion be exercisable in the first instance by the Constituent Assembly of that Dominion, and references in this Act to the legislature of the Dominion shall be construed accordingly. (Emphasis supplied). 180. These provisions of the Indian Independen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d to the Secretary of State, it is stated: The principal point, however, is, as stated above, that we look upon this Constituent Assembly as a sovereign body which can decide as it chooses in regard to any matter before it and can give effect to its decisions. The only limitation, we recognise is that in regard to certain major communal issues the decision should be by a majority of each of the two major communities. (P. 251, Supra). 185. In his reply dated May 22, 1946, the Secretary of State observed: When the Constituent Assembly has completed its labours, His Majesty's Government will recommend to Parliament such action as may be necessary for the cession of sovereignty to the Indian people, subject only to two provisos which are mentioned in the statement and which are not, we believe, controversial, namely, adequate provision for the protection of minorities and willingness to conclude a treaty to cover matters arising out of the transfer of power. (Emphasis supplied) 186. In the Explanatory statement dated May 22, 1946, it was again reiterated as follows: When the Constituent Assembly has completed its labours, His Majesty's Government will recommend to Parliament such a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as supplementary to the one forwarded to you with my letter No. CA/24/Com./47, dated the 23rd April 1947 and dealt with by the Assembly during the April session. That report dealt with justiciable fundamental rights; these rights, whether applicable to all citizens generally or to members of minority communities in particular offer a most valuable safeguard for minorities over a comprehensive field of social life. The present report deals with what may broadly be described as political safeguards of minorities and covers the following points: (i) Representation in Legislature; joint versus separate electorates; and weightage. (ii) Reservation of seats for minorities in Cabinets. (iii) Reservation for minorities in the public services. (iv) Administrative machinery to ensure protection of minority rights. 191. Sardar Patel, while moving the report for consideration on August 27, 1947, said: You will remember that we passed the Fundamental Rights Committee's Report which was sent by the Advisory Committee; the major part of those rights has been disposed of and accepted by this House. They cover a very wide range of the rights of minorities which give them ample protection; an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by one of us in Gopalan's [1950] S.C.R. 88 case thus: A speech made in the course of the debate on a bill could at best be indicative of the subjective intent of the speaker, but it could not reflect the inarticulate mental process lying behind the majority vote which carried the bill. Nor is it reasonable to assume that the minds of all those legislators were in accord, or, as it is more tersely put in an American case- Those who did not speak may not have agreed with those who did and those who spoke might differ from each other- United States v. Trans-Missouri Freight Association. This rule of exclusion has not always been adhered to in America, and sometimes distinction is made between using such material to ascertain the purpose of a statute and using it for ascertaining its meaning. It would seem that the rule is adopted in Canada and Australia-see Craies on Statute Law, 5th Ed. p. 122. 195. In Golak Nath's [1967] 2 S.C.R. 762; 792; 922 case, Subba Rao, C.J., referred to certain portions of the speeches made by Pandit Nehru and Dr. Ambedkar but he made it clear at p. 792 that he referred to these speeches "not with a view to interpret the provisions of Article 368, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Vol. X, pp. 161-3): Unfortunately we have no properly constituted Legislatures in the rest of the States (apart from Mysore, Saurashtra and Travancore and Cochin Union) nor will it be possible to have Legislatures constituted in them before the Constitution of India emerges in its final form. We have, therefore, no option but to make the Constitution operative in these States on the basis of its acceptance by the Ruler of the Rajpramukh, as the case may be, who will no doubt consult his Council of Ministers. 200. In accordance with this statement, declarations were issued by the Rulers or Rajpramukhs accepting the Constitution. 201. It seems to me that when a Ruler or Rajpramukh or the people of the State accepted the Constitution of India in its final form, he did not accept it subject to the speeches made during the Constituent Assembly debates. The speeches can, in my view, be relied on only in order to see if the course of the progress of a particular provision or provision s throws any light on the historical background or shows that a common understanding or agreement was arrived at between certain sections of the people. (See In re. The Regulation and Control of Aeronautic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the free exercise of any religion, or (b) make persons of any community or religion liable to disabilities or restrictions to which persons or other communities or religions are not made liable; or (c) confer on persons of any community or religion any privilege or advantage which is not conferred on persons of other communities or religions; or (d) alter the Constitution of any religious body except with the consent of the governing authority of that body. So, however, that in any case where a religious body is incorporated by law, no such alteration shall be made except at the request of the governing authority of that body. Provided, however, that the preceding provisions of this subsection shall not apply to any law making provision for, relating to, or connected with the, election of Members of the House of Representatives, to represent persons registered as citizens of Ceylon under the Indian & Pakistani Residents (Citizenship Act). This proviso shall cease to have effect on a date to be fixed by the Governor-General by Proclamation published in the Gazette. (3) Any law made in contravention of Sub-section (2) of this section shall, to the extent of such contravention, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Judicial Service Commission. 210. The Judicial Committee deduced from these provisions thus: Thus there is secured a freedom from political control, and it is a punishable offence to attempt directly or indirectly to influence any decision of the Commission (Section 56). 211. The Judicial Committee then described the position of the Bribery Tribunal as follows: A bribery tribunal, of which there may be any number, is composed of three members selected from a panel (Section 42). The panel is composed of not more than 15 persons who are appointed by the Governor-General on the advice of the Minister of Justice (Section 41). The members of the panel are paid remuneration (Section 45). 212. The Judicial Committee held that the members of the Tribunal held judicial office and were judicial officers within Section 55 of the Ceylon Constitution. They found that there was a plain conflict between Section 55 of the Constitution and Section 41 of the Bribery Amendment Act under which the panel was appointed. 213. Then the Judicial Committee examined the effect of this conflict. After setting out Section 18, Section 29(1) and Section 29(2)(a), the Judicial Committee observed: There follo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nse of being beyond change" has reference to Section 29(2) of the Ceylon Constitution. I have no doubt that the Judicial Committee held that the provisions of Section 29(2) in the Ceylon Constitution were unamendable. I may mention that Prof. S A de Smith in reviewing the book "Reflections on the Constitution and the Constituent Assembly. (Ceylon's Constitution) "by L.J.M. Cooray, reads the obiter dicta in Bribery Commissioner v. Ranasinghe [1965] A.C. 172, 193-194 indicating that certain provisions of the Constitution were unalterable by the prescribed amending procedure. 218. It may be that these observations are obiter but these deserve our careful consideration, coming as they do from the Judicial Committee. 219. Why did the Judicial Committee say that the provisions of Section 29(2) were "unalterable under the Constitution" or "fundamental in the sense of being beyond change" ? There is nothing in the language of Section 29(4) to indicate any limitations on the power of the Ceylon Parliament. It could "amend or repeal" any provision of the Constitution, which included Section 29(2) and Section 29(4) itself. The reason could only b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... disregard the procedural conditions imposed on it by the constituent instrument prescribing a particular majority but may amend them if the constituent instrument gives that power. 223. The next passage, a part of which I have already extracted, which deals with the difference between McCawley's case and Ranasinghe's [1965] A.C. 172, 193-194 case shows that the Judicial Committee in the passage relied on was dealing with the procedural part of Section 29(4) of Ceylon Constitution. It reads: It is possible now to state summarily what is the essential difference between the McCawley case and this case. There the legislature having full power to make laws by a majority, except upon one subject that was not in question, passed a law which conflicted with one of the existing terms of the Constitution Act. It was held that this was valid legislation, since it must be treated as pro tanto an alteration of the Constitution, which was neither fundamental in the sense of being beyond change nor so constructed as to require any special legislative process to pass upon the topic dealt with. In the present case, on the other hand, the legislature has purported to pass a law which being in co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... even if Article 1.3(2) of the Constitution be taken to include Constitutional amendments. A more reasonable inference to be drawn from the whole scheme of the Constitution is that some other meaning of "Amendment" is most appropriate. This conclusion is also reinforced by the concession of the Attorney-General and Mr. Seervai that the whole Constitution cannot be abrogated or repealed and a new one substituted. In other words, the expression "Amendment of this Constitution" does not include a revision of the whole Constitution. If this is true-I say that the concession was rightly made-then which is that meaning of the word "Amendment" that is most appropriate and fits in with the while scheme of the Constitution. In my view that meaning would be appropriate which would enable the country to achieve a social and economic revolution without destroying the democratic structure of the Constitution and the basic inalienable rights guaranteed in Part III and without going outside the contours delineated in the Preamble. 226. I come to the same conclusion by another line of reasoning. In a written Constitution it is rarely that everything is said expressly. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... emit from necessary implication (see pp. 112 and 113, Vol. 3) if it had not been expressly inserted. 233. In Ram Jawaya Kapur v. State of Punjab [1955] 2 S.C.R. 225; 236-37 this Court implied that "the President has thus been made a formal or Constitutional head of the executive and the real executive powers are vested in the Ministers or the Cabinet. The same provisions obtain in regard to the Government of States; the Governor or the Rajpramukh.... 234. In Sanjeevi Naidu v. State of Madras [1970] 1 S.C.C. 443 Hedge, J., held that the Governor was essentially a Constitutional head and the administration of State was run by the Council of Ministers. 235. Both these cases were followed by another Constitution bench in U.N.R. Rao v. Smt. Indira Gandhi [1971] 2 S.C.C. 63. 236. This conclusion constitutes an implied limitation on the powers of the President and the GovernOrs. The Court further implied in Ram Jawaya Kapur's [1955] 2 S.C.R. 225; 236-37 case that the Government could without specific legislative sanction carry on trade and business. 237. To save time we did not hear Mr. Seervai on the last 3 cases just cited. I have mentioned them only to give another example. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0. Vasantilal Sanjanwala v. State of Bombay 1961(1) SCR 341. The Municipal Corporation of Delhi v. Birla Cotton Mills 1968(3) SCR 251. Garewal v. State of Punjab 1959 Supp. (1) SCR 792. (iv) On the power confered by Articles 3 and 4 of the Constitution to form a new State and amend the Constitution for that purpose limitation has been implied that the new State mustconform to the democratic pattern envisaged by the Constitution; and the power which the Parliament may exercise...is not the power to over-ride the Constitutional scheme. No State can therefore be formed, admitted or set up by law under Article 4 by the Parliament which has no effective legislative, executive and judicial organs. (Per Shah J.-Mangal Singh v. Union of India 1967(2) SCR 109 at 112. (Emphasis supplied) 239. It would have been unnecessary to refer to more authorities but for the fact that it was strenuously urged that there could not be any implied limitations resulting from the scheme of the Constitution. 240. Before referring to a recent decision of the Australian High Court, observations in certain earlier cases may be reproduced here: Since the Engineers" case (1920-28 CLR 129) a notion seems ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reference to the question whether there is any implied limitation on Commonwealth legislative power. It is the discussion on the latter question that is relevant to the present case. 244. There was difference of opinion among the Judges. Chief Justice Barwick held as follows: The basic principles of construction of the Constitution were definitively enunciated by the Court in Amalgamated Society of Engineers v. Adelaide Steamship Co. Ltd. (1920), 28 C.L.R. 129 (the Engineers' case) Lord Selborne's language in Reg. v. Burah (1878) 3 App. Cas. 889 at pp. 904- 905, was accepted and applied as was that of Earl Loreburn in Attorney- General for Ontario v. Attorney-General for Canada (1912) A.C. at 583. 245. According to the Chief Justice, the Court in Engineeres' case unequivocally rejected the doctrine that there was an "implied prohibition" in the Constitution against the exercise in relation to a State of a legislative power of the Commonwealth once ascertained in accordance with the ordinary rules of construction, a doctrine which had theretofore been entertained and sought to be founded upon some supposed necessity of "protection", as it were, "against t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ". His Honour, when Chief Justice, repeated this observation in Lamshed v. Lake (1958) 99 C.L.R. 132 at p. 144. I said in Spratt v. Hermes (1965) 114 C.L.R. 226, at p. 272, that it is well to remember it. I still think so. The only emendation that I would venture is that I would prefer not to say "making implications", because our avowed task is simply the revealing or uncovering of implications that are already there. In Malbourne Corporation v. The Commonwealth (1947) 74 C.L.R. 31, Starke J. said (at p. 70) : "The federal character of the Australian Constitution carries implications of its own.... * * * * * 249. "The position that I take is this : The several subject matters with respect to which the Commonwealth is empowered by the Constitution to make laws for the peace, order and good government of the Conmmon-wealth are not to be narrowed or limited by implications. Their scope and amplitude depend simply on the words by which they are expressed. But implications arising from the existence of the States as parts of the Commonwealth and as constituents of the federation may restrict the manner in which the Parliament can lawfully exercise its power ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 5 full powers of amendment of any provision respecting its Constitution powers and procedures. (2) But it cannot (semble) alter its "representative" character. (3) The "Constitution" of a Legislature means its composition, form or nature of the House or Houses, and excludes any reference to the Crown. * * * * * (6) No Colonial Legislature can forever abrogate its power of amendment and thereby render its Constitution absolutely immutable. A law purporting to effect this object would be void under Section 2 of the Act as being repugnant to Section 5 thereof. 251. For proposition (2) above, reference is made in the footnote to Taylor v. The Attorney-General of Queensland. 23 C.L.R. 457 The relevant passages which bear out the second proposition are: I take the Constitution of a legislature, as the term is here used, to mean the composition, form or nature of the House of Legislature where there is only one House, or of either House if the legislative body consists of two Houses. Probably the power does not extend to authorize the elimination of the reprsentative character of the legislature within the meaning of the Act. (p. 468 per-Barton J.). I read th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Parliament of Canada to the Legislature of Nova Scotia and vice versa. The question arose whether, if enacted, the bill would be constiutionally valid since it contemplated delegation by Parliament of powers, exclusively vested in it by Section 91 of the British North America Act to the Legislature of Nova Scotia, and delegation by that Legislature of powers, exclusively vested in Provincial Legislature under Section 92 of the Act, to Parliament. 255. The decision of the Court is summarised in the headnote as follows: The Parliament of Canada and each Provincial Legislature is a sovereign body within the sphere, possessed of exclusive jurisdiction to legislate with regard to the subject matters assigned to it under Section 91 or Section 92, as the case may be. Neither is capable therefore of delegating to the other the powers with which it has been vested nor of the receiving from the other the powers with which the other has been vested. 256. The Chief Justice observed: The Constitution of Canada does not belong either to Parliament, or to the Legislatures; it belongs to the country and it is there that the citizens of the country will find the protection of the rights to wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uty. 263. Justice Fauteux, as he then was, first referred to the following observations of Lord Atkin in Attorney General for Canada v. Attorney General for Ontario [1937] A.C. 326, 351: No one can doubt that this distribution (of powers) is one of the most essential conditions, probably the most essential condition, in the interprovincial compact to which the British North America Act gives effect. 264. He then observed: In the result, each of the provinces, enjoying up to the time of the union, within their respective areas, and quoad one another, an independent, exclusive and over-all legislative authority, surrender to and charged the Parliament of Canada with the responsibility and authority to make laws with respect to what was then considered as matters of common interest to the whole country and retained and undertook to be charged with the responsibility and authority to make laws with respect to local matters in their respective sections. This is the system of government by which the Fathers of Confederation intended-and their intentions were implemented in the Act-to "protect the diversified interests of the several provinces and secure the efficiency, harmony a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... legislation did not attempt to prevent discussion of affairs in newspapers but rather to compel the publication of statements as to the true and exact objects of Governmental policy and as to the difficulties of achieving them. Quoting the words of Lord Wright M.R. in James v. Commonwealth of Australia, (1936) A.C. 578 at p. 627 freedom of discussion means "'freedom governed by law'" he says at p. 107 D.L.R., p. 133 S.C.R. : "It is axiomatic that the practice of this right of free public discussion of public affairs, notwithstanding its incidental mischiefs, is the breath of life for parliamentary institutions. He deduces authority to protect it from the principle that the "powers requisite for the preservation of the Constitution arise by a necessary implication of the Confederation Act as a whole." (Per Rand J.-Samur v. City of Quebec (1953) 4 D.L.R. 641 at 671). (Emphasis supplied) 267. It is, however, noteworthy that the Solicitor-General appearing on behalf of the Union of India conceded that implications can arise from a Constitution, but said that no implication necessarily arises out of the provisions of Article 368. 268. I may now refer to ano ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of repugnancy.... 273. The Judicial Committee referred to the Ceylon Independence Act, 1947, and ...the Legislative Power of Ceylon and observed: These liberating provisions thus incorporated and enlarged the enabling terms of the Act of 1865, and it is clear that the joint effect of the Order in Council of 1946 and the Act of 1947 was intended to and did have the result of giving to the Ceylon Parliament the full legislative powers of a sovereign independent State (see Ibralebbe v. The Queen (1964) A.C. 900) 274. Mr. Seervai sought to argue from this that similarly the amending power of Parliament under Article 368 has no limitations and cannot be limited by some vague doctrine of repugnancy to natural and inalienable rights and the Preamble. We are unable to appreciate that any analogy exists between Mr. Palkhivala's argument and the argument of Mr. Gratien. Mr. Palkhivala relies on the Preamble and the scheme of the Constitution to interpret Article 368 and limit its operation within the contours of the Preamble. The Preamble of the Constitution of India does not seem to prescribe any vague doctrines like the law of natural justice even if the latter, contrary to many decis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ser crisis and less serious circumstances. And thus judicial power may be eroded. Such an erosion is contrary to the clear intention of the Constitution." This was in reply to the argument that the Legislature had no such general intention to absorb judicial powers and it had pased the legislation because it was beset by a grave situation and it took grave measures to deal with it, thinking, one must presume, that it had power to do so and was acting rightly. According to their Lordships that consideration was irrelevant and gave no validity to acts which infringed the Constitution. 280. McCawley v. The King [1920] A.C. 691 was strongly relied on by Mr. Seervai. The case was on appeal from the decision of the High Court of Australia, reported in 26 C.L.R. 9. Apart from the questions of interpretation of Sub-section (6), Section 6, of the Industrial Arbitration Act, 1916 and the construction of the Commission which was issued, the main question that was debated before the High Court and the Board was whether the Legislature of Queensland could amend a provision of the Constitution of Queensland without enacting a legislative enactment directly amending the Constitution. The re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alification whatever. The doctrine is carried to every proper consequence with logical and inexorable precision, Thus when one of the learned Judges in the Court below said that, according to the appellant, the Constitution could be ignored as if it were a Dog Act, he was in effect merely expressing his opinion that the Constitution was, in fact, controlled. If it were uncontrolled, it would be an elementary commonplace that in the eye of the law the legislative document or documents which defined it occupied precisely the same position as a Dog Act or any other Act, however humble its subject-matter. 284. Then, the Judicial Committee proceeded to deal with the Constitution of Queensland and held that it was an uncontrolled Constitution. Later, their Lordships observed: It was not the policy of the Imperial Legislature, at any relevant period, to shackle or control in the manner suggested the legislative powers of the nascent Australian Legislatures. Consistently with the genius of the British people what was given was given completely, and unequivocally, in the belief fully justified by the event, that these young communities would successfully work out their own Constitutional s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... annot be implied limitations on the amending power under Article 368. 288. I shall examine a little later more cases in which limitations on lawmaking power have been implied both in Australia, U.S.A., and in Canada. McCawley's case is authority only for the proposition that if the Constitution is uncontrolled then it is not necessary f or the legislature to pass an act labelling it as an amendment of the Constitution; it can amend the Constitution like any other act. 289. Attorney-General for New South Wales v. Trethowan [1932] A.C. 526 was concerned really with the interpretation of Section 5 of the Colonial Laws Validity Act, 1865, and its impact on the powers of the legislature of the New South Wales. The Constitution Act, 1902, as amended in 1929, had inserted Section 7A, the relevant part of which reads as follows: 7A.-(1) The Legislative Council shall not be abolished nor, subject to the provisions of Sub-section 6 of this section, shall its Constitution or powers be altered except in the manner provided in this section. (2) A Bill for any purpose within Sub-section 1 of this section shall not be presented to the Governor for His Majesty's assent until the Bill has been a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... islative body consist thereafter of the King, the Legislative Council, the Assembly and the people for the purpose of the Constitutional enactments therein described, or (b) imposing a manner and form of legislation in reference to these Constitutional enactments which thereafter became binding ton the legislature by virtue of the colonial Laws Validity Act, 1865, until repealed in the manner and mode prescribed. (6) That the power of altering the Constitution conferred by Section 4 of the Constitution Statute, 1855, must be read subject to the Colonial Laws Validity Act, 1865, and that in particular the limitation as to manner and form prescribed by the 1865 Act must be governed by subsequent amendments to the Constitution, whether purporting to be made in the earlier Act or not. 292. The Judicial Committee considered the meaning and effect of Section 5 of the Act of 1865, read in conjunction with Section 4 of the Constitution Statute. It is necessary to bear in mind the relevant part of Section 5 which reads as follows: Section 5. Every colonial legislature...and every representative legislature shall, in respect to the colony under its jurisdiction, have, and be deemed at all ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the legislature must continue a representative legislature according to the definition of the Colonial Laws Validity Act 1865. This is another illustration of a limitation implied on amending power. 296. I may also refer to some of the instances of implied limitations which have been judicially accepted in the United States. It would suffice if I refer to Cooley on Constitutional Limitations and Constitution of the United States of America edited by Corwin (1952). 297. After mentioning express limitations, imposed by the Constitution upon the Federal power to tax, Cooley on 'Constitutional Limitations' (page 989) states: ...but there are some others which are implied, and which under the complex system of American government have the effect to exempt some subjects otherwise taxable from the scope and reach, according to circumstances, of either the Federal power to tax or the power of the several States. One of the implied limitations is that which precludes the States from taxing the agencies whereby the general government performs its functions. The reason is that, if they possessed this authority, it would be within their power to impose taxation to an extent that might cri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which is explicitly created by statute, e.g. that granted to federal securities and to fiscal institutions chartered by Congress. But the term, activities, will be broadly construed. 302. Regarding the taxation of States, Cooley says at pp. 995-997: If the States cannot tax the means by which the national government performs its functions, neither, on the other hand and for the same reasons, can the latter tax the agencies of the State governments. "The same supreme power which established the departments of the general government determined that the local governments should also exist for their own purposes, and made it impossible to protect the people in their common interest without them. Each of these several agencies is confined to its own sphere, and all are strictly subordinate to the Constitution which limits them, and independent of other agencies, except as thereby made dependent There is nothing in the Constitution of the United States which can be made to admit of any interference by Congress with the secure existence of any State authority within its lawful bounds. And any such interference by the indirect means of taxation is quite as much beyond the power of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns, a necessary implication arises that there are implied limitations on the power of Parliament that the expression "amendment of this Constitution" has consequently a limited meaning in our Constitution and not the meaning suggested by the respondents. 309. This conclusion is reinforced if I consider the consequences of the contentions of both sides. The respondents, who appeal fervently to democratic principles, urge that there is ho limit to the powers of Parliament to amend the Constitution. Article 368 can itself be amended to make the Constitution completely flexible or extremely rigid and unamendable. If this is so, a political party with a two-third majority in Parliament for a few years could so amend the Constitution as to debar any other party from functioning, establish totalitarianism, enslave the people, and after having effected these purposes make the Constitution unamcndable or extremely rigid. This would no doubt invite extra- Constitutional revolution. Therefore, the appeal by the respondents to democratic principles and the necessity of having absolute amending power to prevent a revolution to buttress their contention is rather fruitless, because if ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re it does not exist. The idea of negligence is equally insusceptible of exact definition, but what a reasonable man would regard as fair procedure in particular circumstances and what he would regard as negligence in particular circumstances are equally capable of serving as tests in law, and natural justice as it has been interpreted in the courts is much more definite than that. (emphasis supplied) 315. It seems to me that the concept of amendment within the contours of the Preamble and the Constitution cannot be said to be a vague and unsatisfactory idea which Parliamentarians and the public would not be able to understand. 316. The learned Attorney-General said that every provision of the Constitution is essential; otherwise it would not have been put in the Constitution. This is true. But this does not place every provision of the Constitution in the same position. The true position is that every provision of the Constitution can be amended provided in the result the basic foundation and structure of the Constitution remains the same. The basic structure may be said to consist of the following features: (1) Supremacy of the Constitution; (2) Republican and Democratic for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ave been claimed by them. There is no question of the sovereign people claiming them from an outside agency. The people acting through the Constituent Assembly desired that the rights mentioned in Part III shall be guaranteed and, therefore, Part III was enacted. In the context 'conferred' does not mean that some superior power had granted these rights. It is very much like a King bestowing the title of 'His Imperial Majesty on himself. 323. I am unable to hold that these provisions show that some rights are not natural or inalienable rights. As a matter of fact, India was a party to the Universal Declaration of Rights which I have already referred to and that Declaration describes some fundamenal rights as inalienable. 324. Various decisions of this Court describe fundamental rights as 'natural rights' or 'human rights'. Some of these decisions are extracted bellow. There can be no doubt that the people of India have in exercise of their sovereign will as expressed in the Preamble, adopted the democratic ideal, which assures to the citizen the dignity of the individual and other cherished human values as a means to the full evolution and expression of his personality, and in de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nality developed, to give recognition and free play to those rights... Suffice it to say that they represent a trend in the democratic thought of our age." (Motilal v. State of U.P. I.L.R. [1951] 1 All. 269; 387-8.). (emphasis supplied) 325. Mr. Seervai relied on the observations of S.K. Das, J., in Basheshar Nath v. C.I.T. [1959] Supp. (1) S.C.R. 528; 605: I am of the view that the doctrine of 'natural rights' affords nothing but a foundation of shifting sand for building up a thesis that the doctrine of waiver does not apply to the rights guaranteed in Part III of our Constitution. 326. I must point out that the learned Judge was expressing the minority opinion that there could be a waiver of fundamental rights in certain circumstances. Das, C.J., and Kapur, J., held that there could be no waiver of fundamental rights founded on Article 14 of the Constitution, while Bhagwati and Subba Rao, JJ. held that there could be no waiver not only of fundamental rights enshrined in Article 14 but also of any other fundamental rights guaranteed by Part III of the Constitution. 327. Article 14 has been described variously as follows: (1) "as the basic principle of republicani ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the designation of the head of that Government was earlier brought about by the introduction of the office of Sadar-i-Riyasat, so too a change had been brought about in his designation from that of Sadar-i-Riyasat to the Governor. That was necessitated by reason of the Governor having been substituted in place of Sadar-i-Riyasat. There is no question of such a change being one in the character of that Government from a democratic to a non-democratic system. 330. Before parting with this topic I may deal with some other arguments addressed to us. Mr. Seervai devoted a considerable time in expounding principles of construction of statutes, including the Constitution. I do not think it is necessary to review the decisions relating to the principles of interpretation of legislative entries in Article 245 and Artic le 246 of the Constitution. The Federal Court and this Court in this connection have followed the principles enunciated by the Judicial Committee in interpreting Sections 91 and 92 of the Canadian Constitution. I have no quarrel with these propositions but I am unable to see that these propositions have any bearing on the interpretation of Article 368. The fact that legis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntended what it has plainly expressed, and whatever it has in clear terms enacted must be enforced though it should lead to absurd or mischievous results. If the language of this; sub-section be not controlled by some of the other provisions of the statute, it must, since its language is plain and unambiguous, be enforced, and your Lordship's House sitting judicially is not concerned with the question whether the policy it embodies is wise or unwise, or whether it leads to consequences just or unjust, beneficial or mischievous. 334. The next case referred to is Bank of Toronto v. Lambe [1887] 12 A.C. 575; 586., but this case, is explained in Attorney-General for Alberta v. Attorney-General for Canada [1939] A.C. 117; 132; 133. The Judicial Committee first observed: It was rightly contended on behalf of the appellant that the Supreme Court and the Board have no concern with the wisdom of the Legislature whose Bill is attacked; and it was urged that it would be a dangerous precedent to allow the views of members of the Court as to the serious consequences of excessive taxation on banks to lead to a conclusion that the Bill is ultra vires. Their Lordships do not agree that this argum ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... possible meanings of ambiguous words, it is a doctrine which has to be applied with great care, remembering that judges may be fallible in this question of an absurdity, and in any event must not be applied so as to result in twisting language into a meaning which it cannot bear; it is a doctrine which must not be relied upon and must not be used to re-write the language in a way different from that in which it was originally framed. Earlier, he had said at p. 158: "Absurdity" I cannot help thinking, like public policy, is a very unruly horse... 339. As I read Lord Greene, what he meant to say was that "absurdity" was an unruly horse, but it can be of assistance, and very often is of assistance, in choosing between two possible meanings of ambiguous words, and this is exactly the use which this Court is entitled to make of the consequences which I have already mentioned. 340. Mr. Seervai referred to State of Punjab v. Ajaib Singh [1953] S.C.R. 254, 264. Das, J., observed: We are in agreement with learned Counsel to this extent only that if the language of the article is plain and unambiguous and admits of only one meaning then the duty of the court is to ad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ative process is influenced by considerations of justice and reason. Justice and reason constitute the great general legislative intent in every piece of legislation. Consequently where the suggested construction operates harshly, ridiculously or in any other manner contrary to prevailing conceptions of justice and reason, in most instances, it would seem that the apparent or suggested meaning of the statute, was not the one intended by the law-makers. In the absence of some other indication that the harsh or ridiculous effect was actually intended by the legislature, there is little reason to believe that it represents the legislative intent. 345. I am unable to appreciate how these observations assist the respondents. If anything, these observations are against them for when I come to the question of interpretation of the 25th amendment I may well approach the interpretation keeping those observations in mind. 346. Both Mr. Seervai and the learned Attorney General have strongly relied on the decisions of the United States Supreme Court, Federal Courts and the State Courts on the interpretation of Article V of the Constitution of the United States and some State Constitution. Mr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atters which are mentioned in the proviso. I may repeat that many important provisions including fundamental rights are not mentioned in the proviso. Can we say that an amendment made by Parliament is an amendment made by the people ? This is one of the matters that has to be borne in mind while considering the proper meaning to be given to the expression "amendment of this Constitution" in Article 368 as it stood before its amendment by the 24th Amendment. 352. Article V of the U.S. Constitution differs in one other respect from Article 368. There are express limitations on amending power. The first, which has spent its force, was regarding the first and fourth clauses in the ninth section of the first article and the second relates to deprivation of a State's suffrage in the Senate without its consent. Apart from the above broad differences in Article V as compared to Article 368, the Constitution of India is different in many respects which has a bearing on the extent of the power of Parliament to amend the Constitution. In brief they are : the background of the struggle for freedom, various national aspirations outlined during this struggle, the national objectives a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion to which the state and its people had alike assented. 357. This case is of no assistance to us in interpreting Article 368 of the Constitution. 358. I may now refer to decision of the Supreme Court Rhode Island v. Palmer 64 L. Ed. 946. This case was concerned with the validity of the 18th Amendment and of certain general features of the National Prohibition Law known as Volstead Act. No reasons were given by the Court for the conclusions arrived at. The conclusions which may have some relevance for us are conclusion 4 and 5. The learned Counsel sought to deduce the reasons for these conclusions from the arguments addressed and reported in 64 L. Ed. and for the reasons given by the learned Judge in 264 Fed. Rep. 186 but impliedly rejected by the Supreme Court by reversing the decision. 359. Counsel sought to buttress this argument by citing views of learned American authors that the arguments against the validity of the 18th Amendment were brushed aside although no reasons are given. I have great respect for the judges of the Supreme Court of United States, but unless the reasons are given for a judgment it is difficult to b e confident about the ratio of the decision. Apart ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 18th Amendment to the Constitution could be rested on two groups of grounds; group A consisted of grounds relating to the meaning of the word "amendment" and the impact of the 10th Amendment or the nature of the federal system on Article V of the Constitution, and that Article V by providing the two alternative methods of ratification by convention and legislature showed that the convention method was essential for valid ratification when the amendment affected the rights of the people. Group B consisted of the grounds on which the District Court declared the 18th amendment to be invalid and those were that "the substance of an amendment, and therefore of course, of an entirely new Constitution, might have to conform to the particular theories of political science, sociology, economics, etc. held by the current judicial branch of the Government. 365. He then pointed out that grounds mentioned in Group B, which were very much like Mr. Palkhiwala arguments, were not even urged by counsel in the Supreme Court, and, therefore we must regard these grounds as extremely unsound. I, however, do not find Mr. Palkhiwala's arguments similar to those referred to in Group B. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the procedure to amend the Constitution." (Towns v. Suttles- 20% Ga 838, 69 SE 2d 742). The question whether the people may, by the terms of the Constitution, delegate their power to amend to others-for example, to a Constitutional convention-is one on which there is a notable lack of authority. An interesting question arises whether this power could be delegated to the legislature, and if so, whether the instrument which the legislature would then be empowered to amend would still be a Constitution in the proper sense of the term. 369. This footnote brings out the futility of referring to decisions to interpret a Constitution, wherein power to amend has been delegated to Parliament. 370. That there is a distinction between the power of the people to amend a Constitution and the power of the legislature to amend the same was noticed by the Oregon Supreme Court in Ex Parte Mrs. D.C. Kerby 36, A.L.R. 1451; 1455, one of the cases cited before us by the respondent. McCourt, J. speaking for the Court distinguished the case of Eason v. State in these words: Petitioner cites only one authority that has any tendency to support the contention that a provision in the bill of right ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er to them because the Indian Constitution must be interpreted according to its own terms and in the background of our history and conditions. Citations of comments on the Indian Constitution would make this judgment cumbersome. I have had the advantage of very elaborate and able arguments on both sides and I must apply my own mind to the interpretation. 373. The learned Attorney-General brought to our notice extracts from 71 Constitutions. I admire the research undertaken but I find it of no use to me in interpreting Article 368. First the language and the setting of each Constitution is different. Apart from the decisions of the Courts in United States there are no judicial decisions to guide us as to the meaning of the amending clauses in these Constitutions. Further, if it is not helpful to argue from one Act of Parliament to another (see Commissioner of Stamps, Straits Settlements v. Oei Tjong Swan [1933] A.C. 378; 389). much less would it be helpful to argue from one Constitution to another different Constitution (see Bank of Toronto v. Lambe [1887] 12 A.C. 575-787). 374. During the course of the arguments I had drawn the attention of the Counsel to the decision of the Supr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itution in other respects. It did not have a Chapter with the heading of fundamental rights, or a provision like our Article 32 which is guaranteed. The words "fundamental rights" were deliberately omitted from the Irish Constitution (see foot note 9 page 67, The Irish Constitution by Barra O' Briain, 1929). At the same time, there was no question of any guarantee to any religious or other minorities in Ireland. 378. It will be further noticed that for the first eight years an amendment could be made by way of ordinary legislation, i.e., by ordinary legislative procedure. The sixth amendment had deleted from the end of this article the words "and as such shall be subject to the provisions of Article 47 which provided for a referendum hereof. In other words, for the first eight years it was purely a flexible Constitution, a Constitutional amendment requiring no special procedure. 379. With these differences in mind, I may now approach the actual decision of the Supreme Court. 380. The High Court and the Supreme Court were concerned with the validity of the Constitution (Amendment No. 17) Act 1931 (No. 37 of 1931) having regard to the provisions of the Constitution. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ll lawful authority comes from God to the people, and it is declared by Article 2 of the Constitution that "all powers of government and all authority, legislative, executive and judicial, in Ireland are derived from the people of Ireland.... 385. The limitation was deduced thus : "It follows that every act, whether legislative, executive or judicial, in order to be lawful under the Constitution, must be capable of being justified under the authority thereby declared to be derived from God. 386. Now this limitation in so far as it proceeds from or is derived from the belief in the Irish State that all lawful authority comes from God to the people, can have no application to our Constitution. 387. The second limitation he deduced from Section 2 of the Irish Fret State Act and Article 50 of the Irish Constitution. It Was that any amendment repugnant to the Scheduled Treaty shall be void and inoperative. 388. The third limitation was put in these words: The Third Dail Eireann has, therefore, as Constituent Assembly, of its own supreme authority, proclaimed its acceptance of and declared, in relation to the Constitution which it enacted, certain principles, and in langua ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t power. 392. He then observed: Now, the power of amendment is wholly contained in a single Article, but the donee of the power and the mode of its exercise are so varied with regard to a point of time as to make it practically two separate powers, the one limited to be exercised only during the preliminary period of eight years, the other, a wholly different and permanent power, to come into existence after the expiry of that preliminary period and so continue thereafter. 393. After referring to the condition (it shall be subject to the provisions of Article 47) he thought: The Constituent Assembly, even during the preliminary period, would not relax the ultimate authority of the people, and expressly reserved to the people the right to intervene when they considered it necessary to restrain the action of the Oireachtas affecting the Constitution. The frame of this provision makes it clear to my mind that, even if, by amendment of the Constitution under the power, Article 47 might cease to apply to ordinary legislation of the Oireachtas, the provisions of that clause were declared, deliberately, expressly and in a mandatory way, to be kept in force and operative for the purpos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... here, either expressly or by necessary implication, any power to amend the power of amendment itself. 399. I cannot agree with the learned Attorney-General that the sole basis of Kennedy C.J.'s decision was that Article 50 did not contain an express power of amending the provisions of Article 50 itself. He gave various reasons which I have referred to above. 400. FitzGibbon J. held that the word "amendment" was wide enough to include a power to amend or alter or repeal and there is no express prohibition in Article 50 itself that an y article of the Constitution including Article 50 could not be amended. The only limitation that he could find was that the provisions of the Scheduled Treaty could not be amended. He observed: I see no ground for holding that either of these Articles could not have been amended by the Oireachtas subject to a Referendum of the people after the period of eight years, and, if so, it follows that the same amendment, e.g., the deletion of the word "no" in Article 43 could be made "by way of ordinary legislation" within that period, or within sixteen, years, after eight had been altered to sixteen. 401. In other words, ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at as it may, if I had to express my concurrence, I would express concurrence with the view of the learned Chief Justice in so far as he said that the Oireachtas could not increase its power of amendment by substituting sixteen years for the words "eight years". 406. I had also invited attention of Counsel to Moore and Ors. v. Attorney-General for the Irish Free State and Ors. [1935] A.C. 484 and the respondents rely heavily on it. In this case the validity of the Constitution (Amendment No. 22) Act, 1933 (Act 6 of 1933) was involved. It was alleged that this amendment was no bar to the maintenance by the petitioners, who were the appellants, of their appeal before the Judicial Committee, as it was Void. 407. On May 3, 1933, the Oireachtas passed an Act, No. 6 of 1933, entitled the Constitution (Removal of Oath) Act, 1933. That Act, by Section 2, provided that Section 2 of the Constitution of the Irish Free State (Saorstat Eireann) Act, 1922, should be repealed, and, by Section 3, that Article 50 of the Constitution should be amended by deleting the words "within the terms of the Scheduled Treaty. 408. Finally, on November 15, 1933, the Oireachtas, enacted the Con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble of any alteration so far as concerns the Constituent Act, unless perhaps by the calling together of a new Constituent Assembly by the people of Ireland. Thus the articles of the Constitution may only be amended in accordance with Article 50, which limits amendments to such as are within the terms of the Scheduled Treaty. On that view Mr. Greene argues that the law No. 6 of 1933 is ultra vires and hence that the amendment No. 22 of 1933 falls with it. 413. Mr. Greene referred their Lordships to State (Ryan and Ors.) v. Lennon and Ors. [1935] Irish Reports 170. In that case Chief Justice Kennedy is reported to have expressed a view which corresponds in substance to that contended for by Mr. Greene. 414. Now it is these contentions which I have just set out and which their Lordships could not accept. They observed: In their opinion the Constituent Act and the Constitution of the Irish Free State derived their validity from the Act of the Imperial Parliament, the Irish Free State Constitution Act, 1922. This Act established that the Constitution, subject to the provisions of the Constituent Act, should be the Constitution of the Irish Free State and should come into operation on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 13 shall apply to any amendment made under this article. 418. According to the petitioner, the 24th Amendment has sought to achieve five results: (i) It has inserted an express provision in Article 368 to indicate that the source of the amending power will be found in that Article itself. (ii) It has made it obligatory on the President to give his assent to any Bill duly passed under that Article. (iii) It has substituted the words "amend by way of addition, variation or repeal..." in place of the bare concept of "amendment" in the Article 368. (iv) It makes explicit that when Parliament makes a Constitutional amendment under Article 368 it acts "in exercise of its constituent power. (v) It has expressly provided, by amendments in Article 13 and 368, that the bar in Article 13 against abridging or taking away any of the fundamental rights should not apply to any amendment made under Article 368. 419. Mr. Palkhivala did not dispute that the amendments covered by (i) and (ii) above were within the amending power of Parliament. I do not find it necessary to go into the question whether Subba Rao, C.J., rightly decided that the amending power was in Lis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... yan's [1935] Irish Reports 170 case and Moore's [1935] A.C. 484 case. I have already dealt with these cases. 424. It seems to me that it is not legitimate to interpret Article 368 in this manner. Claus e (e) of the proviso does not give any different power than what is contained in the main article. The meaning of the expression "Amendment of the Constitution" does not change when one reads the proviso. If the meaning is the same, Article 368 can only be amended so as not to change its identity completely. Parliament, for instance, could not make the Constitution uncontrolled by changing the prescribed two third majority to simple majority. Similarly it cannot get rid of the true meaning of the expression "Amendment of the Constitution" so as to derive power to abrogate fundamental rights. 425. If the words "notwithstanding anything in the Constitution" are designed to widen the meaning of the word "Amendment of the Constitution" it would have to be held void as beyond the amending power. But I do not read these to mean this. They have effect to get rid of the argument that Article 248 and Entry 97 List I contains the power of amendment. Si ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inority, referred to in Clause (1) of Article 30, the State shall ensure that the amount fixed by or determined under such law for the acquisition of such property is such as would not restrict or abrogate the right guaranteed under that clause. (b) after Clause (2A), the following clause shall be inserted, namely: (2B) Nothing in Sub-clause (f) of Clause (1) of Article 19 shall affect any such law as is referred to in Clause (2). 429. There cannot be any doubt that the object of the amendment is to modify the decision given by this Court in Rustom Cavasjee Cooper v. Union of India [1970] 3 S.C.R. 530 where it was held by ten Judges that the Banking Companies (Acquisition and Transfer of Undertakings) Act violated the guarantee of compensation under Article 31(2) in that it provided for giving certain amounts determined according to principles which were not relevant in the determination of compensation of the undertaking of the named Banks and by the method prescribed the amounts so declared could not be regarded as compensation. 430. If we compare Article 31(2) as it stood before and after the 25th Amendment, the following changes seem to have been effected. Whereas before the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the deliberate omission of the word "compensation" and substitution of the word "amount" in lieu thereof. 435. Let us then see if the other part of the article throws any light on the word "amount". The article postulates that in some cases principles may be laid down for determining the amount and these principles may lead to an adequate amount or an inadequate amount. So this show that the word "amount" here means something to be given in lieu of the property to be acquired but this amount has to and can be worked out by laying down certain principles. These principles must then have a reasonable relationship to the property which is sought to be acquired, if this is so, the amount ultimately arrived at by applying the principles must have some reasonable relationship with the property to be acquired; otherwise the principles of the Act could hardly be principles within the meaning of Article 31(2). 436. If this meaning is given to the word "amount" namely, that the amount given in cash or otherwise is of such a nature that it has been worked out in accordance with the principles which have relationship to the property to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... substance of the fundamental right to property, under Article 31, consists of three things : one, the property shall be acquired by or under a valid law; secondly, it shall be acquired only for a public purpose; and, thirdly, the person whose property has been acquired shall be given an amount in lieu thereof, which, as I have already said, is not arbitrary, illusory o r shocking to the judicial conscience or the conscience of mankind. I have already held that Parliament has no power under Article 368 to abrogate the fundamental rights but can amend or regulate or adjust them in its exercise of amending powers without destroying them. Applying this to the fundamental right of property, Parliament cannot empower legislatures to fix an arbitrary amount or illusory amount or an amount that virtually amounts to confiscation, taking all the relevant circumstances of the acquisition into consideration. Same considerations apply to the manner of payment. I cannot interpret this to mean that an arbitrary manner of payment is contemplated. To give an extreme example, if an amount is determined or fixed at ₹ 10,000 a legislature cannot lay down that payment will be made at the rate of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cise the discretion entrusted to them by Parliament. 444. Although I am unable to appreciate the wisdom of inserting Clause (2B) in Article 31, the effect of which is to make Article 19(1)(f) inapplicable, I cannot say that it is an unreasonable abridgement of rights under Article 19(1)(f). While passing a law fixing principles, the legislatures are bound to provide a procedure for the determination of the amount, and if the procedure is arbitrary that provision may well be struck down under Article 14. 445. In view of the interpretation which I have placed on the new Article 31(2), as amended, it cannot be said that Parliament has exceeded its amending power under Article 368 in enacting the new Article 31(2). 446. For the reasons aforesaid I hold that Section 2 of the Constitution (Twenty-fifth Amendment) Act, 1971, as interpreted by me, valid. 447. Part VI-Validity of Section 3 of the Constitution (Twenty-Fifth Amendment) Act, 1971. 448. Section 3 of the twenty-fifth amendment, reads thus: 3. After Article 31B of the Constitution, the following article shall be inserted, namely: 31. C. Notwithstanding anything contained in Article 13, no law giving effect to the policy of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... observed: "A law relating to" a State monopoly cannot, in the context, include all the provisions contained in the said law whether they have direct relation with the creation of the monopoly or not. In our opinion, the said expression should be construed to mean the law relating to the monopoly in its absolutely essential features. If a law is passed creating a State monopoly, the Court should enquire what are the provisions of the said law which are basically and essentially necessary for creating the State monopoly. It is only those essential and basic provisions which are protected by the latter part of Article 19(6). If there are other provisions made by the Act which are subsidiary, incidental or helpful to the operation of the monopoly, they do not fall under the said part and their validity must be judged under the first part of Article 19(6). 452. These observations were quoted with approval by Shah, J., speaking on behalf of a larger Bench in R.C. Cooper v. Union of India [1970] 3 S.C.R. 530-582. After quoting the observations, Shah, J., observed: This was reiterated in Rashbihar Panda and Ors. v. The State of Orissa [1969] 3 S.C.R. 374. Vrajlal Manilal & Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8. Article 31C in its nature differs from Article 31A, which was inserted by the Fourth Amendment. 31A. (1) Notwithstanding anything contained in Article 13, no law providing for- (a) the acquisition by the State of any estate or of any rights therein or the extinguishment or modification of any such rights, or (b) the taking over of the management of any property by the State for a limited period either in the public interest or in order to secure the proper management of the property, or (c) the amalgamation of two or more corporations either in the public interest or in order to secure the proper management of any of the corporations, or (d) the extinguishment or modification of any rights of managing agents, secretaries and treasurers, managing directors, directors or managers of corporations, or of any voting rights of shareholders thereof, or (e) the extinguishment or modification of any rights accruing by virtue of any agreement, lease or licence for the purpose of searching for, or winning, any mineral or mineral oil, or the premature termination or cancellation of any such agreement, lease or license, shall be deemed to be void on the ground that it is inconsistent wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sible. 462. It seems to me that in effect, Article 31C enables States to adopt any policy they like and abrogate Articles 14, 19 and 31 of the Constitution at will. In other words, it enables the State to amend the Constitution. Article 14, for instance, would be limited by the State according to its policy and not the policy of the amending body, i.e., the Parliament, and so would be Articles 19 and 31, while these fundamental rights remain in the Constitution. It was urged that when an Act of Parliament or a State Legislature delegates a legislative power within permissible limits the delegated legislation derives its authorit y from the Act of Parliament. It was suggested that similarly the State law would derive authority from Article 31C. It is true that the State law would derive authority from Article 31C but the difference between delegated legislation and the State law made under Article 31C is this : It is permissible, within limits, for a legislature to delegate its functions, and for the delegate to make law. Further the delegated legislation would be liable to be challenged on the ground of violation of fundamental rights regardless of the validity of the State Act. B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amending the Constitution to another body. It seems to me clear that it does not. It would be noted that Article 368 of this Constitution itself provides that amendment may be initiated only by the introduction of a bill for the purpose in either House of Parliament. In other words, Article 368 does not contemplate any other mode of amendment by Parliament and it does not equally contemplate that Parliament could set up another body to amend the Constitution. 467. It is well-settled in India that Parliament cannot delegate its essential legislative functions. See: (1) Per Mukherjea J. in re The Delhi Laws Act, 1912. (1951) SCR 747 at 984-5. (2) Raj Narain Singh v. Patna Administration 1955 (1) SCR 290. (3) Hari Shankar Bagla v. State of Madhya Pradesh 1955 (1) SCR 380. (4) Vasantlal Sanjanwala v. State of Bombay 1961 (1) SCR 341. (5) The Municipal Corporation of Delhi v. Birla Cotton Mills 1968 (3) SCR 251. (6) Garewal v. State of Punjab 1959 Supp. (1) SCR 792. 468. It is also well-settled in countries, where the courts have taken a position different than in Indian courts, that a legislature cannot create another legislative body. Reference may be made here to In re Initia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r Lordships are of opinion that the language of the Act cannot be construed otherwise than as intended seriously to affect the position of the Lieutenant-Governor as an integral part of the Legislature, and to detract from rights which are important in the legal theory of that position. For if the Act is valid it compels him to submit a proposed law to a body of voters totally distinct from the Legislature of which he is the Constitutional head, and renders him powerless to prevent it from becoming an actual law if approved by a majority of these voters. It was argued that the words already referred to, which appear in Section 7, preserve his powers of veto and disallowance. Their Lordships are unable to assent to this contention. The only powers preserved are those which relate to Acts of the Legislative Assembly, as distinguished from Bills, and the powers of veto and disallowance referred to can only be those of the Governor-General under Section 90 of the Act of 1867, and not the powers of the Lieutenant-Governor, which are at an end when a Bill has become an Act. Section 11 of the Initiative and Referendum Act is not less difficult to reconcile with the rights of the Lieutenan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lature could not do,-abdicate their whole legislative functions in favour of another body." But, as Sir A. Hobhouse remarked, this they cannot do. "They remain invested with a responsibility. Everything is done by them, and such officers as they create and give discretion to. 473. The learned Attorney-General submitted that this case decided only that in the absence of clear and unmistakable language in Section 92, head 1, the power which the Crown possesses through a person directly representing the Crown cannot be abrogated. It is true that this was the actual decision but the subsequent observations, which I have set out above, clearly show that the Judicial Committee was prepared to imply limitations as the Court of Appeal had done on the amending power conferred on the Provincial Legislature by Section 92, head 1. 474. The Attorney General said that the scope of this decision was referred to in Nadan v. The King (1926) A.C. 482 where at page 495 reference is made to this case in the following words: In the case of In re Initiative and Referendum Act Lord Haldane, in declaring the judgment of the Board referred to "the impropriety in the absence of clear and u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g beyond the limits which circumscribe these powers. But when acting within those limits, it is not in any sense an agent or delegate of the Imperial Parliament, but has, and was intended to have, plenary powers of legislation, as large, and of the same nature, as those of Parliament itself. The established Courts of Justice, when a question arises whether the prescribed limits have been exceeded must of necessity determine that question; and the only way in which they can properly do so, is by looking to the terms of the instrument by which, affirmatively, the legislative powers were created, and by which, negatively, they are restricted. If what has been done is legislation, within the general scope of the affirmative words which give the power, and if it violates no express condition or restriction by which that power is limited (in which category would of course be included any Act of the Imperial Parliament at variance with it), it is not for any Court of Justice to inquire further or to enlarge constructively those conditions and restrictions. Mr. Seervai further says that having laid down the law as set out above, the Privy Council added: Their Lordships agree that the Gov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t in fact there has been no delegation of the amending powers to the State legislatures by Article 31C and what has been done is that Article 31C lifts the ban imposed by Part III from certain laws. I am unable to appreciate this idea of the lifting of the ban. Fundamental rights remain as part of the Constitution and on the face of them they guarantee to every citizen these fundamental rights. But as soon as the State legislates under Article 31C and the law abrogates or takes away these Constitutional rights, these fundamental rights cease to have any effect. The amendment is then made not by Parliament as the extent of the amendment is not known till the State legislates. It is when the State legislates that the extent of the abrogation or abridgement of the fundamental rights becomes clear. To all intents and purposes it seems to me that it is State legislation that effects an amendment of the Constitution. If it be assumed that Article 31C does not enable the States to amend the Constitution then Article 31C would be ineffective because the law which in effect abridges or takes away the fundamental rights would have been passed not in the form required by Article 368, i.e. by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t be read to be an implied amendment of Article 368 because it opens with the words "notwithstanding anything contained in Article 13" and Article 31C does not say that "notwithstanding anything contained in Article 368." What Article 31C does is that it empowers legislatures, subject to the condition laid down in Article 31C itself, to take away or abridge rights conferred by Articles 14, 19 and 31. At any rate, if it is deemed to be an amendment of Article 368, it is beyond the powers conferred by Article 368 itself. Article 368 does not enable Parliament to constitute another legislature to amend the Constitution, in its exercise of the power to amend Article 368 itself. 488. For the aforesaid reasons I hold that Section 3 of the Constitution (Twenty-fifth Amendment) Act 1971 is void as it delegates power to legislatures to amend the Constitution. PART-VII.-Twenty-Ninth Amendment The Constitution (Twenty-Ninth Amendment) reads: 2. Amendment of Ninth Schedule In the Ninth Schedule to the Constitution after entry 64 and before the Explanation, the following entries shall be inserted, namely: 65. The Kerala Land Reforms (Amendment) Act, 1969 (Kerala Act 35 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le 31-A dealt only with agrarian reforms. The words "without prejudice to the generality of the provisions contained in Article 31A", according to him, pointed to this connection. He, in effect, said that Article 31-B having this original meaning did not change the meaning or its scope when a new Article 31-A containing Clauses (b) to (e) were included. 495. I am unable to accede to these contentions. The ambit of Article 31-B has been determined by this Court in three decisions. In State of Bihar v. Maharajadhiraja Sir Kameshwar Singh (1952) S.C.R. 889; 914-15, Patnjali Sastri, C.J., rejected the limited meaning suggested above by Somayya, and observed: "There is nothing in Article 31-B to indicate that the specific mention of certain statutes was only intended to illustrate the application of the general words of Article 31-A. The opening words of Article 31-B are only intended to make clear that Article 31-A should not be restricted in its application by reason of anything contained in Article 31-B and are in no way calculated to restrict the application of the latter article or of the enactments referred to therein to acquisition of "estates." 496. H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al for Australia v. The Queen and the Boilermakers' Society of Australia (1957) A.C. 288; 323. The Judicial Committee, while considering the questionwhether certain sections of the Conciliation and Arbitration Act, 1904 1952 were ultra vires inasmuch as the Commonwealth Court of Conciliation and Arbitration had been invested with the executive powers alongwith the judicial powers, referred to the point why for a quarter of century no litigant had attacked the validity of this obviously illegitimate union, and observed: Whatever the reason may be, just as there was a patent invalidity in the original Act which for a number of years went unchallenged, so far a greater number of years an invalidity which to their Lordships as to the majority of the High Court has been convincingly demonstrated, has been disregarded. Such clear conviction must find expression in the appropriate judgment. 504. We had decided not to deal with the merits of individual cases and accordingly Counsel had not addressed any arguments on the impugned Acts passed by the Kerala State Legislature. It would be for the Constitution Bench to decide whether the impugned Acts take away fundamental rights. If they do, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by me, is valid. (g) Section 3 of the Constitution (Twenty-fifth Amendment) Act, 1971 is void as it delegates power to legislatures to amend the Constitution. (h) The Constitution (Twenty-Ninth Amendment) Act, 1971 is ineffective to protect the impugned Acts if they abrogate or take away fundamental rights. The Constitution Bench will decide whether the impugned Acts take away fundamental rights or only abridge them, and in the latter case whether they effect reasonable abridgements in the public interest. 507. The Constitution Bench will determine the validity of the Constitution (Twentysixth Amendment) Act, 1971 in accordance with this judgment, and the law. 508. The cases are remitted to the Constitution Bench to be decided in accordance with this judgment, and the law. The parties will bear their own costs. Shelat and Grover, JJ. 509. All the six writ petitions involve common questions as to the validity of the 24th, 25th and 29th amendments to the Constitution. It is not necessary to set out the facts which have already been succinctly stated in the judgment of the learned Chief Justice. 510. It was considered, when the larger bench was constituted, that the decision of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Similarly, Article 32 which confers the right to move this Court, if any fundamental right is breached, can be repealed or abrogated. The directive principles in Part IV can be altered drastically or even abrogated. It is claimed that democracy can be replaced by any other form of government which may be wholly undemocratic, the federal structure can be replaced by a unitary system by abolishing all the States and the right of judicial review can be completely taken away. Even the Preamble which declares that the People of India gave to themselves the Constitution, to constitute India into a Sovereign Democratic Republic for securing the great objectives mentioned therein can be amended; indeed it can be completely repealed. Thus, according to the respondents, short of total abrogation or repeal of the Constitution, the amending body is omnipotent under Article 368 and the Constitution can, at any point of time, be amended by way of variation, addition or repeal so long as no vacuum is left in the governance of the country. 513. These petitions which have been argued for a very long time raise momentus issues of great Constitutional importance. Our Constitution is unique, apart f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ctoral bodies for the Constituent Assembly. A parliamentary delegation was sent to India in January 1946 and this was followed by what is known as the Cabinet Mission. There were a great deal of difficulties owing to the differences between the approach of the Indian National Congress and the Muslim League led by Mr. M.A. Jinnah. The Cabinet Mission devised a plan which was announced on May 16, 1946. By the end of June, both the Muslim League and the Congress had accepted it with reservations. The Constituent Assembly was elected between July-August 1946 as a result of the suggestion contained in the statement of the Cabinet Mission. The Attlee Government's efforts to effect an agreement between the Congress and the Muslim League having failed, the partition of the country came as a consequence of the declaration of the British Government on June 3, 1947. As a mult of that declaration certain changes took place in the Constituent Assembly. There was also readjustment of representation of Indian States from time to time between December 1946 and November 1949. Many Smaller States merged into the provinces, many united to from union of States and some came to be administered as commi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... can claim superiority over the other and each of them has to function within the four-corners of the Constitutional provisions. The Preamble embodies the great purposes, objectives and the policy underlying its provisions apart from the basic character of the State which was to come into existence i.e. a Sovereign Democratic Republic. Parts III and IV which embody the fundamental rights and directive principles of state policy have been described as the conscience of the Constitution(The Indian Constitution by Granville Austin p. 50) The legislative power distributed between the Union Parliament and the State Legislatures cannot be so exercised as take away or abridge the fundamental rights contained in Part III. Powers of the Union and the States are further curtailed by conferring the right to enforce fundamental rights contained in Part III by moving the Supreme Court for a suitable relief See generally, Kania C.J. in A.K. Gopalan v. The State [1950] S.C.R. 88 at pp. 96-97, Article 32 itself has been constituted a fundamental right. Part IV containing the directive principles of State policy was inspired largely by similar provisions in the Constitution of the Eire Republic (19 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Constitution. The entire scheme of the Constitution is such that it ensures the sovereignty and integrity of the country as a Republic and the democratic way of life by parliamentary institutions based on free and fair elections. 518. India is a secular State in which there is no State religion. Special provisions have been made in the Constitution guaranteeing the freedom of conscience and free profession, practice and propagation of religion and the freedom to manage religious affairs as also the protection of interests of minorities. The interests of scheduled castes and the scheduled tribes have received special treatment. The Rule of Law has been ensured by providing for judicial review. Adult suffrage, the "acceptance of the fullest implications of democracy" is one of the most striking features of the Constitution. According to K.M. Pannikar, "it may well be claimed that the Constitution is a solemn promise to the people of India that the legislature will do everything possible to renovate and reconstitute the society on new principles (Hindu Society at crossroads (By K.M. Pannikar) at pages 63-64). 519. We may now look at the Preamble. 520. It reads: We ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... jan [1951] S.C.R. 525 at p. 531 and Mohd. Hanif Qureshi and Ors. v. The State of Bihar [1959] S.C.R. 629 it had been held that the directive principles of State policy had to conform to and run subsidiary to the Chapter of Fundamental Rights, the learned Chief Justice was of the view which may be stated in his own words: Nevertheless in determining the scope and ambit of the fundamental rights relied on by or on behalf of any person or body the court may not entirely ignore these directive principles of State policy laid down in Part IV of the Constitution but should adopt the principle of harmonious construction and should attempt to give effect to both as much as possible. 522. The first question of prime importance involves the validity of the Constitution Amendment Act 1971 (hereinafter called the 24th Amendment). It amended Article 368 of the Constitution for the first time. According to the Statement of Objects and Reasons in the Bill relating to the 24th amendment, the result of the judgment of this Court in Golak Nath's [1967] 2 S.C.R. 762 case has been that Parliament is considered to have no power to take away or curtail any of the fundamental rights guaranteed by Part ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... endment made under this article. It may be mentioned that by the 24th amendment Clause (4) has been inserted in Article 13 itself. It is: (4) Nothing in this Article shall apply to any amendment of this Constitution made under Article 368. 525. On behalf of the petitioners, Mr. Palkhivala stated that he need not for the purposes of this case dispute the 24th Amendment in so far as it leads to the following results: (i) The insertion of the express provision in Article 368 that the source of the amending power is the Article itself. (ii) The President is bound to give assent to any Bill duly passed under that Article. The following three results have, however, been the subject of great deal of argument: (i) The substitution of the words in Article 368 "amend by way of addition, variation or repeal..." in place of the concept 'amendment'. (ii) Making it explicit in the said Article that when Parliament makes a Constitutional amendment under the Article it acts "in exercise of its constituent power". (iii) The express provision in Article 13 and 368 that the bar in the former Article against abridging or taking away any of the fundamental rights should not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... quot;amendment" as used in Article 368 of the Constitution. On behalf of the respondents it has been maintained that "amendment" of this Constitution" can have only one meaning. No question, can arise of resorting to other aids in the matter of interpretation or construction of the expression "amendment." On the other hand, the argument of Mr. Palkhivala revolves on the expression "amendment" which can have more than one meaning and for that reason it is essential to discover its true import as well as ambit by looking at and taking into consideration other permissible aids of construction. No efforts have been spared on both sides to give us all the meanings of the words "amendment" and "amend" from the various dictionaries as also authoritative books and opinions of authors and writers. 528. It is more proper, however, to look for the true 'meaning' of the word "amendment" in the Constitution itself rather than in the dictionaries. Let us first analyse the scheme of Article 368 itself as it stood before the 24th Amendment. (i) The expression "amendment of the Constitution" is not defined or explaine ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... art C of the First Schedule. (viii) Chapter IV of Part V of the Constitution deals with the Union Judiciary and Chapter V of Part VI with the High Courts in the States. Although these have been included in Clause (b) of the proviso it is surprising that Chapter VI of Part VI which relates to Subordinate Judiciary is not mentioned at all, which is the immediate concern of the States. (ix) Chapter I of Part XI which deals with legislative relations between the Union and the States is included in Clause (b) of the proviso but Chapter II of that Part which deals with Administrative Relations between the Union and the States and various other matters in which the States would be vitally interested are not included. (x) The provisions in the Constitution relating to services under the State as also with regard to Trade and Commerce are not included in the proviso. (xi) Clause (c) of the proviso mentions the lists in the Seventh Schedule. Clause (d) relates to the representation of States in Parliament and Clause (c) to the provisions of Article 368 itself. 529. The net result is that the provisions contained in Clauses (a) and (b) of the proviso do not throw any light on the logic, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Constitution for the purpose of Article 368. 531. It is apparent that the word "amendment" has been used in a narrower sense in Article 4. The argument that if it be assumed that Parliament is invested with wide powers under Article 4 it may conceivably exercise power to abolish the legislative and the judicial organs of the State altogether was refuted by this Court by saying that a State cannot be formed, admitted or set up by law under Article 4 by the Parliament which does not conform to the democratic pattern envisaged by the Constitution Mangol Singh and Anr. v. Union of India [1967] 2 S.C.R. 109 at p. 112. 88 at pp. 96-97. Similarly any law which contains provisions for amendment of the Constitution for the purpose of abolition or creation of legislative councils in States is only confined to that purpose and the word "amendment" has necessarily been used in a narrow sense. But in Paras 7 and 21 the expanded expression is employed and indeed an attempt was made even in the Constituent Assembly for the insertion of a new clause before Clause (1) of draft Article 304 (Present Article 368). The amendment (Constituent Assembly Debates Vol. 9, p. 1663) (No ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... employed in the different provisions of the Constitution in respect of amendment; (ii) conferment of the wider power for the purpose of the 5th and 6th Schedules which empower the Parliament to alter and repeal the provisions of those Schedules relating to the institutions contemplated by them, the law making authority set up under them and the fundamental basis of administration to be found in the two Schedules. (iii) the wide language used in paras 7 and 21 of the two Schedules was meant for the purpose that at a proper time in the future or whenever considered necessary the entire basic structure of the Schedules could be repealed and the areas and tribes covered by them could be governed and administered like the rest of India. (iv) the use of the word "amendment" simpliciter in Article 368 must have a narrower meaning than the composite expression "amend" or "amendment" by way of addition, variation or repeal and must correspond to the meaning of the word "amend" or "amendment" in Articles 4 and 169. (v) The power of amending the Constitution is not concentrated in Article 368 alone but it is diffused as it is to be found i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ution" has acquired substantive meaning over the years in the context of a written Constitution and it means that any part of the Constitution can be amended by changing the same either by variation, addition or repeal. 534. Dr. B.R. Ambedkar who was not only the Chairman of the Drafting Committee but also the main architect of the Constitution made it clear (Constituent Assembly Debates Vol. 9, page 1661) that the articles of the Constitution were divided into different categories; the first category was the one which consisted of articles which could be amended by the Parliament by a bare majority; the second set of articles were such which required the two-third majority. This obviously had reference to the group of articles consisting of Articles 4, 169 and paras 7 and 21 of the two Schedules and Article 368 respectively. The scheme of the amending provisions outlined by Dr. B.R. Ambedkar seems to indicate that the Constitution makers had in mind only one distinction between the amending power conferred by the other Articles and Article 368. No such distinction was present to their mind of the nature suggested by the learned Advocate General that the amending power confer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stitution. The amending power, however, is claimed on behalf of the respondents to extend to addition, alteration, substitution, modification, deletion of each and every provision of the Constitution. The argument of the Attorney General is that the amending power in Article 368 as it stood before the 24th amendment and as it stands now has always been and continues to be the constituent power, e.g., the power to deconstitute or reconstitute the Constitution or any part of it. Constitution at any point of time cannot be so amended by way of variation, addition or repeal as to leave a vacuum in the government of the country. The whole object and necessity of amending power is to enable the Constitution to continue and such a constituent power, unless it is expressly limited in the Constitution itself, can by its very nature have no limit because if any such limit is assumed, although not expressly found in the Constitution, the whole purpose of an amending power will be nullified. It has been pointed out that in the Constitution First Amendment Act which was enacted soon after the Constitution of India came into force, certain provisions were inserted, others substituted or omitted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Architects of the Constitution. The position which emerges from an examination of their speeches does not lead to any clear and conclusive result. Their Speeches show that our Constitution was to be an amendable one and much rigidity was not intended. Pandit Nehru time and again emphasised that while the Constitution was meant to be as solid and as permanent a structure as it could be, nevertheless there was no permanence in the Constitution and there should be certain flexibility; otherwise it would stop a nation's growth. Dr. Ambedkar, while dealing with draft Article 25 corresponding to the present Article 32, said that the most important Article without which the Constitution would be a nullity and which was the very soul of the Constitution and the heart of it was that Article. But what he said at a later stage appears to suggest that that article itself could be amended and according to the respondents even abrogated. This illustration shows that nothing conclusive can emerge by referring to the speeches for the purpose of interpretation of the word "amendment". 538. It is not possible to accept the argument on behalf of the respondents that amendment can have only ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ays been made and is permissible if the word "amendment" has more than one meaning. Lord Green in Bidis v. General Accident, Fire and Life Assurance Corporation [1948] 2 All. E.R. 998 pointed out that the words should never be interpreted in vacuo because few words in the English language have a natural or ordinary meaning in the sense that they must be so read that their meaning is entirely independent of their context. The method which he preferred was not to take the particular words and attribute to them a sort of prima facie meaning which may have to be displaced or modified. To use his own words "it is to read the statute as a whole and ask oneself the question. In this state, in this context, relating to this subject matter, what is the true meaning of that word?" We shall first deal with the Preamble in our Constitution. The Constitution makers gave to the preamble the pride of place. It embodied in a solemn form all the ideals and aspirations for which the country had struggled during the British regime and a Constitution was sought to be enacted in accordance with the genius of the Indian people. It certainly represented an amalgam of schemes and idea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Resolution could be more appropriately provided in the substantial parts of the Constitution". Accordingly it drafted the Preamble, which substantially was in the present form. 542. Meanwhile important developments had taken place in regard to the Indian States. With the completion of the process of merger and integration of the Indian States the principle had been accepted (i) of sovereign powers being vested in the people, and (ii) that their Constitutions should be framed by the Constituent Assembly and should form integrated part of the new Constitution. On October 12, 1949, Sardar Patel declared in the Assembly that the new Constitution was "not an alliance between democracies and dynasties, but a real union of the Indian people, built on the basic concept of the sovereignty of the people. 543. The draft preamble was considered by the Assembly on October 17, 1949. The object of putting the Preamble last, the President of Assembly explained, was to see that it was in conformity with the Constitution as accepted. Various amendments were at this stage suggested, but were rejected. One of such was the proposal to insert into it the words "In the name of God". ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , says that the preamble itself is ambiguous and it can be of no assistance in that situation. It has further been contended that the concepts recited in the preamble, e.g., human dignity, social and economic justice are vague; different schools of thought hold different notions of their concepts. We are wholly unable to accede to this contention. The preamble was finalised after a long discussion and it was adopted last so that it may embody the fundamentals underlying the structure of the Constitution It is true that on a concept such as social and economic justice there may be different schools of thought but the Constitution makers knew what they meant by those concepts and it was with a view to implement them that they enacted Parts III (Fundamental Rights) and Part IV (Directive Principles of State Policy) - both fundamental in character-on the one hand, basic freedoms to the individual and on the other social security, justice and freedom from exploitation by laying down guiding principles for future governments. 548. Our court has consistently looked to the preamble for guidance and given it a transcedental position while interpreting the Constitution or other laws. It was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e United Kingdom. The statute contemplated a Parliament working under the influence of public opinion and public discussion. In McCawley v. The King Lord Birkenhead [1920] A.C. 691 at p. 711 (Lord Chancellor) while examining the contention that the Constitution Act of 1867 (Queensland, Australia) enacted certain fundamental organic provisions of such a nature which rendered the Constitution sterotyped or controlled proceeded to observe at page 711: It may be premised that if a change so remarkable were contemplated one would naturally have expected that the legislature would have given some indication, in the very lengthy preamble of the Act, of this intention. It has been seen that it is impossible to point to any document or instrument giving to, or imposing upon the Constitution of Queensland this quality before the year 1867. Yet their Lordships discern nowhere in the preamble the least indication that it is intended for the first time to make provisions which are sacrosanct or which at least can only be modified by methods never previously required. 549. In re. Berubari Union and Exchange of Enclaves [1960] 3 S.C.R. 250 an argument had been raised that the preamble clearly p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d ended originally with the Eighth Schedule and now ends with the Ninth Schedule after the First Amendment Act 1951. It is sought to be concluded from this that the way in which the preamble has been drafted, indicates that what follows or is annexed to the preamble is the Constitution of India. It is further argued that: The Constitution statute of India consist of two parts-one, the preamble and the other the Constitution: The preamble is a part of the Constitution statute, but is not a part of the Constitution. It precedes it; The preamble came into force on Nov. 26, 1949 and not 26th January 1950 as contended on behalf of Respondent No. 1 552. There is a clear recital in the preamble that the people of India gave to themselves this Constitution on the 26th day of November 1949. Even if the preamble was actually adopted by the Constitutent Assembly at a later date, no one can question the statement made in the Preamble that the Constitution came into force on the date mentioned therein. The preamble itself must be deemed by a legal fiction to have come into force with effect from 26th November 1949. Even if this is a plausible conclusion, it does not appear to be sufficient to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the nature and extent and application of the powers actually conferred by the Constitution and not substantially to create them Story, para 462 at p. 445. 555. Now let us examine the effect of the declarations made and the statements contained in the preamble on interpretation of the word "amendment" employed in Article 368 of the Constitution. The first thing which the people of India resolved to do was to constitute their country into a Sovereign Democratic Republic. No one can suggest that these words and expressions are ambiguous in any manner. Their true import and connotation is so well known that no question of any ambiguity is involved. The question which immediately arises is whether the words "amendment or amended" as employed in Article 368 can be so interpreted as to confer a power on the amending body to take away any of these three fundamental and basic characteristics of our polity. Can it be said or even suggested that the amending body can make institutions created by our Constitution undemocratic as opposed to democratic; or abolish the office of the President and, instead, have some other head of the State who would not fit into the concept ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ctor of Customs, Baroda v. Dig Vijay Singhji Spining & Weaving Mills Ltd. [1962] 1 S.C.R. p. 896. 559. In Don John Francis Douglas Liyange and Ors. v. The Queen [1967] (I) A.C. 259, Lord Pearson declined to read the words of Section 29(1) of the Ceylon Constitution as entitling the Parliament to pass legislation which usurped the judicial power of the judicature by passing an Act of Attainder against some persons or instructing a judge to bring in a verdict of guilty against someone who is being tried-if in law such usurpation would otherwise be contrary to the Constitution. 560. In Maxwell's Interpretation of Statutes (12th Edition), Chapter 5 deals with restrictive construction and the very first section contains discussion on the question whether the consequences of a particular construction being adopted can be considered and examples have been given from cases decided in England with reference to the consequences. According to American Jurisprudence, Vol. 50, 1962 Reprint at pp. 372, 373 there are cases in which consequences of a particular construction are in and of themselves, conclusive as to the correct solution of the question. 561. The learned Advocate General of Maha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nding out the ambit and width of the power conferred by it. 564. The other part of the Preamble may next be examined. The Sovereign Democratic Republic has been constituted to secure to all the citizens the objectives set out. The attainment of those objectives forms the fabric of and permeates the whole scheme of the Constitution. While most cherished freedoms and rights have been guaranteed the government has been laid under a solemn duty to give effect to the Directive Principles. Both Parts III and IV which embody them have to be balanced and harmonised-then alone the dignity of the individual can be achieved. It was to give effect to the main objectives in the Preamble that Parts III and IV were enacted. The three main organs of government legislative, executive and judiciary and the entire mechanics of their functioning were fashioned in the light of the objectives in the Preamble, the nature of polity mentioned therein and the grand vision of a united and free India in which every individual high or low will partake of all that is capable of achievement. We must, therefore, advert to the background in which Parts III and IV came to be enacted as they essentially form a basi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... making certain norms immune from amendment or abrogation. This was done in the Constitution of the Federal Republic of Germany. The atrocities committed during Second World War and the world wide agitation for human rights ultimately embodied in the U.N. Declaration of Human Rights on, which a number of the provisions in Parts III and IV of our Constitution are fashioned must not be forgotten while considering these matters. Even in Great Britain, where the doctrine of the legal sovereignty of Parliament has prevailed since the days of Erskinc, Blackstone, Austin and lastly Dicey, the new trend in judicial decisions is to hold that there can be at least procedural limitations (requirement of form and manner) on the legislative powers of the legislature. This follows from the decisions in Moore v. The Attorney General for the Irish Free State (1935) A.C. 484; Attorney General for New South Wales v. Trethowan (1932) A.C. 526. The Objective's Resolution declared, inter alia, the firm, and the solemn resolve to proclaim India as Independent Sovereign Republic and to draw up for her future governance a Constitution. Residuary powers were to vest in the States. All power and authority of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eparate representation of minorities which had been the feature of the previous Constitutions and which had witnessed so much of communal tension and strife was given up in favour of joint electorates in consideration of the guarantee of fundamental rights and minorities rights which it was decided to incorporate into the new Constitution. The Objectives Resolution can be taken into account as a historical fact which moulded its nature and character. Since the language of the Preamble was taken from the resolution itself the declaration in the Preamble that India would be a Sovereign, Democratic Republic which would secure to all its citizens justice, liberty and equality was implemented in Parts III and IV and other provisions of the Constitution. These formed not only the essential features of the Constitution but also the fundamental conditions upon and the basis on which the various groups and interests adopted the Constitution as the Preamble hoped to create one unified integrated community. The decision of the Privy Council in the Bribery Commissioner v. Pedrick Ranasinghe [1965] A.C. 172 at pp. 193-194 will require a more detailed discussion in view of the elaborate argument ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ect federal system". Ibid p. 180. The learned Advocate General of Maharashtra while relying a great deal on Dicey's well known work in support of his other points, has submitted that although he was one of the greatest writers on the law of English Constitution, his book was concerned with two or three guiding principles which pervade the modern Constitution of England. The discussion of federal government in his book was a subordinate part and the discussion was designed to bring out sharply the two or three guiding principles of the English Constitution by contrast with the different principles underlying the Constitution of the federal government. Reliance has been placed on Professor Wheare's statement in his book Federal Government, 4th Edn. (1963) that the Swiss Courts are required by the Constitution to treat all laws passed by the federal assembly as valid though they may declare Cantonal laws to be void and that does not constitute such a departure from the federal principle that the Swiss people cannot be regarded as having a federal Constitution and a federal government. Switzerland is probably the only country having a federal Constitution where full-fledged right ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iven there is the reproduction of the functions of a Constituent Assembly. In other words, the Parliament acts in the same capacity as a Constituent Assembly when exercising the power of amendment under the said Article. This argument does not take stock of the admission made on behalf of the respondents that the entire Constitution cannot be repealed or abrogated by the amending body. Indisputably, a Constituent Assembly specially convened for the purpose would have the power to completely revise, repeal or abrogate the Constitution. This shows that the amending body under Article 368 cannot have the same powers as a Constituent Assembly. Even assuming that there is reference on the nature of power between enacting a law and making an amendment, both the powers are derived from the Constitution. The amending body has been created by the Constitution itself. It can only exercise those powers with which it has been invested. And if that power has limits, it can be exercised only within those limits. 571. The respondents have taken up the position that even if the power was limited to some extent under Article 368, as it originally stood, that power could be enlarged by virtue of Cl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tions, specially convened for the purpose. The equal suffrage in the Senate granted to each of the States, cannot be altered without the consent of the State. The true distinction between a controlled and an uncontrolled Constitution lies not merely in the difference in the procedure of amendment, but in the fact that in controlled Constitutions the Constitution has a higher status by whose touch-stone the validity of a law made by the legislature and the organ set up by it is subjected to the process of judicial review. Where there is a written Constitution which adopts the preamble of sovereignty in the people there is firstly no question of the law-making body being a sovereign body for that body possesses only those powers which are conferred on it. Secondly, however representative it may be, it cannot be equated with the people. This is especially so where the Constitution contains a Bill of Rights for such a Bill imposes restraints on that body, i.e. it negates the equation of that body with the people. 573. Before concluding the topic on the interpretation or construction of the words "amendment of this Constitution" in Article 368, it is necessary to deal with so ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ible to derive much assistance from this judgment. 574. In J.J. Dhillon v. R.W. Gloss 65 L. Ed. 994 it was observed that an examination of Article 5 discloses that it was intended to invest Congress with a wide range of power in proposing amendments. However, the following observations are noteworthy and have been relied upon in support of the case of the petitioners that according to the United States Constitution it is the people who get involved in the matter of amendments. "A further mode of proposal-as yet never invoked-is provided, which is, that on application of two-third of the States, Congress shall call a convention for the purpose. When proposed in either mode, amendments, to be effective must be ratified by the legislatures or by convention in three fourths of the States as the one or the other mode of ratification may be proposed by the Congress". Thus the people of the United States, by whom the Constitution was ordained and established, have made it a condition for amending that instrument that the amendment be submitted to representative assemblies in the several States and be ratified in three-fourths of them. The plain meaning of this is (a) that all a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... whether the ratification should be by State Legislatures or Conventions and the Constitution of Ohio as amended. The Supreme Court held that Article 5 was grant of authority by the people to Congress. The determination of the method of ratification was the exercise of the national power specifically granted by the Constitution and that power was limited to two methods, by the State Legislatures or by Conventions. The method of ratification, however, was left to the choice of Congress. The language of the Article was plain and admitted of no doubt in its interpretation. In that case the Constitution of Ohio even after amendment which provided for referendum vested the legislative power primarily in a General Assembly consisting of a Senate and a House of Representatives. Though the law making power of a State was derived from the people the power to ratify a proposed amendment to the Federal Constitution had its source in that Constitution. The act of ratification by the State derived its authority from the federal Constitution. Therefore, in order to find out the authority which had the power to ratify, it was Article 5, to which one had to turn and not to the State Constitution. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... General of Maharashtra that the whole Constitution cannot be abrogated or repealed and a new one substituted supports the conclusion that the widest possible meaning cannot be given to it. 581. Coming to the question of what has been called 'inherent and implied limitations' to the amending power in Article 368 of our Constitution. Mr. Palkhivala has maintained that inherent limitations are those which inhere in any authority from its very nature, character and composition whereas implied limitations are those which are not expressed but are implicit in the scheme of the Constitution conferring the power. He maintains that the "rule is established beyond cavil that in construing the Constitution of the United States, what is implied is as much a part of the instrument as what is expressed", American Jurisprudence (2d), Vol. 16, p. 251 Although the courts have rejected in various cases a plea that a particular inherent or implied limitation should be put upon some specific Constitutional power, no court, says Mr. Palkhivala, has ever rejected the principle that such limitations which are fairly and properly deducible from the scheme of the Constitution should be read as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with regard to the meaning of the word "law" in Article 13(2). But it was recognised that the argument had considerable force. Wanchoo J. (as he then was) considered the question of implied limitations at some length but felt that if any implied limitation that basic features of the Constitution cannot be changed or altered, were to be put on the power of amendment, the result would be that every amendment made in the Consitution would involve legal wrangle. On the clear words of Article 368 it was not possible to infer any implied limitation on the power of amendment Hidayatullah J., (later Chief Justice) discussed the question of implied limitations and referred to the spate of writings on the subject. He expressed no opinion on the matter because he felt that in our Constitution Article 13(2) took in even consitutional amendments. Bachawat J., disposed of the matter by saying that the argument overlooked the dynamic character of the Constitution. Ramaswami J., clearly negatived the argument based on implied limitations on the ground that if the amending power is an adjunct of sovereignty it does not admit of any limitation. 583. The cases which fall in the second cate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d Ors. v. The State of Punjab [1955] 2 S.C.R. 225. Article 53 declares that the executive power of the Union shall be vested in the President; Article 74 provides for a council of ministers headed by the Prime Minister to aid and advise the President in exercise of his functions. Article 75 says that the Prime Minister shall be appointed by the President and the other ministers shall be appointed by him on the advice of the Prime Minister. The ministers shall hold office during the pleasure of the President and the council of ministers shall be collectively responsible to the House of the People. Although the executive power of the President is apparently expressed in unlimited terms, an implied limitation has been placed on his power on the ground that he is a formal or Constitutional head of the executive and that the real executive power vests in the council of ministers. This conclusion which is based on the implications of the Cabinet System of government can be said to constitute an implied limitation on the power of the President and the GovernOrs. 585. It may be mentioned in all fairness to the Advocate General of Maharashtra that the court did not desire him to address in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re were no such words in express or affirmative terms which conferred such a power. Indeed in Golak Nath's (1967) 2 S.C.R. 762 case there was a sharp divergence of opinion on this point. Subba Rao C.J. with whom four other judges agreed held that the source of the amending power was to be found in the provisions conferring residuary provisions, namely, Article 248 read with Entry 97 in the Seventh Schedule. The other six judges including Hidayatullah J. were of the view that the power was to be found in Article 368 itself. 587. In The Initiative and Referendum Act [1919] A.C. 935 the position briefly was that the British North America Act 1867, Section 92, head I, which empowered a Provincial Legislature to amend the Constitution of the Province, "excepting as regards the office of the Lieutenant-Governor," excluded the making of a law which abrogated any power which the Crown possessed through the Lieutenant Governor who directly represented the Crown. The Legislative Assembly of Manitoba passed the Initiative and Referendum Act. It compelled the Lieutenant Governor to submit a proposed law to a body of voters totally distinct from the legislature of which he was the Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gislature to alter it, and consequentially gave effect to that intention by its operative provisions. That argument was repelled by saying Ibid p. 706. It was not the policy of the Imperial Legislature at any relevant period to shackle or control in the manner suggested, the legislative power of the Nascent Australian Legislations. Section 5 of the Colonial Laws Validity Act 1865 was held to have clearly conferred on the colonial legislatures a right to establish courts of judicature and to abolish and reconstitute them. A question had been raised that the Constitution Act of 1867 enacted certain fundamental organic provisions of such a nature as to render the Constitution controlled. It was said that if a change of that nature was contemplated, there would have been some indication in the very lengthy preamble of the Act, of that intention. Their Lordships could observe nowhere in the preamble the least indication that it was intended for the first time to make provisions which were sacrosanct, or which at least could only be modified by methods never previously required. It was finally held that the legislature of Queensland was the master of its own household except in so far ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng writers upon the subject of Constitutional law which may be traced "mainly to the spirit and genius of the nation in which a particular Constitution has its birth". Some communities have "shrunk from the assumption that a degree of wisdom and foresight has been conceded to their generation which will be, or may be, wanting to their successors". Those who haw adopted the other view probably believed that "certainty and stability were in such a matter the supreme desiderata". It was pointed out that different terms had been employed by the text book writers to distinguish between those who contrasted forms of Constitution. It was added: Their special qualities may perhaps be exhibited as clearly by calling the one a controlled and the other an uncontrolled Constitution as by any other nomenclature. 592. Lord Birkenhead did not make any attempt to define the two terms "controlled" and "uncontrolled" as precise legal terms, but merely used them as convenient expressions. 593. The next case of importance is Attorney General for New South Wales v. Trethowan. (1932) A.C. 526 The Constitution Act, 1902 enacted by the legislature of Ne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... must be passed in the manner prescribed by Section 7-A which was in force for the time being. Trethowan's case (supra) fully illustrates how the Privy Council enforced such limitations even though they were of a procedural nature which had been provided in a Constitutional statute relating to the form and manner in which any such statute could be altered or repealed. 595. These decisions, in particular, (Trethowan's case) illustrate that the Privy Council has recognised a restriction on the legislative powers of a sovereign legislature even though that is confined only to the form and manner laid down in a Constitution for amending the Constitution Act In a country which still sticks to the theory of Parliamentary sovereignty, limitations of any other nature would be regarded as somewhat non-conformist and unorthodox. 596. The decision of the Privy Council in the Bribery Commissioner v. Pedrick Ranasinghe [1965] A.C. 172 has been heavily relied on by both sides. On behalf of the petitioners support has been sought from the observations relating to rights regarded as fundamental, being unalterable. What had happened there was that by virtue of Section 41 of the Bribery Amendment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Privy Council was that when a sovereign Parliament had purported to enact a Bill and it had received the Royal, Assent, could it be a valid Act in course of whose passing there was a procedural defect, or was it an invalid Act which Parliament had no power to pass in that manner ? A distinction was made while examining the appellant's arguments between Section 29(3) 'which expressly made void any Act passed in respect of the matters entrenched in and prohibited by Section 29(2); whereas Section 29(4) made no such provisions, but merely couched the prohibition in procedural terms. Reliance had been place on behalf of the appellant Bribery Commissioner on the decision in McCawley's case. It was pointed out that McCawley's case, so far as it was material, was in fact opposed to the appellant's reasoning. It was distinguished on the ground that the Ceylon legislature had purported to pass a law which being in conflict with Section 55 of the Ceylon Constitution Act, must be treated, if it was to be valid, as an implied alteration of the Constitutional provisions about the appointment of judicial officers. It was held that such alterations, even if expressed, could only be made by laws ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ial importance of this case is that even though observations were made by the Lordships which may in a sense be obiter those were based on necessary implications arising from Section 29 of the Ceylon Constitution Act and were made with reference to interpretation of Constitutional provisions which had a good deal of similarity (even on the admission of the Advocate General of Maharashtra) with some parts of our Constitution, particularly those which relate to fundamental rights. 599. Don John Francis Douglas Liyange v. The Queen [1967] 1 A.C. 259 is another decision on which strong reliance has been placed on behalf of the petitioners. The Ceylon Parliament passed an Act which substantially modified the Criminal Procedure Code inter alia by purporting to legalise an ex-post facto detention for 60 days of any person suspected of having committed an offence against the State. This class of offences for which trial without a jury by three Judges nominated by the Minister for Justice could be ordered was widened and arrest without a warrant for waging war against the Queen could be effected. New minimum penalties for that offence were provided. The Privy Council held that the impugned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in and in a lesser crisis and less serious circumstances. And thus judicial power may be eroded. Such an erosion is contrary to the clear intention of the Constitution. 601. Mohamed Samsudden Kariapper v. S.S. Wijesinha and Anr. [1968] Appeal Cases 717 has been cited on behalf of the State of Kerala for the proposition that judicial power could, by an amendment of our Constitution, be transferred to the legislature thus negativing the principle of implied limitation. In that case a report had been made under the Commission of Inquiry Act about certain allegations of bribery having been proved against some members of the Parliament of whom the appellant was one. Under a certain Act civil disabilities on persons to whom the Act applied were imposed. It also contained a provision that in the event of inconsistency with existing law, the Act should prevail. The appellant challenged the validity of that Act on the ground that it was inconsistent with the Constitution and was usurpation of the judicial power. It may be mentioned that the Speaker had, in accordance with the proviso to Section 29(4) of the Constitution of Ceylon, endorsed a certificate under his hand on the bill for impos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing laws must not discriminate between States, nor must revenue laws give preference to one State over another State. Section 114 bars the Commonwealth from taxing property of any kind belonging to a State. In Amalgamated Society of Engineers v. Adelaide Steamship Co. Ltd. [1920] 28 C.L.R. 129 the High Court of Australia accepted the principles of construction of a Constitution laid down by the Privy Council in Reg v. Burah [1878] 3 A.C. 889 and Att. Gen. of Ontario v. Att. Gen. of Canada [1912] A.C. 571 viz., that the only way in which a court can determine whether the prescribed limits of legislative power had been exceeded or not was "by looking to the terms of the instrument by which affirmatively, the legislative powers are created, and by which negatively, they are restricted"; nothing was to be read into it on ground of policy of necessity arising or supposed to arise from the nature of the federal form of government nor were speculations as to the motives of the legislature to be entered into by the Court. These words would apparently appear to reject any proposition as to implied limitations in the Constitution against an exercise of power once it is ascertained ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eration interfered with the states in the exercise of their governmental functions. The second contention was accepted by the majority. Latham C.J. stated that laws which discriminated against states or which unduly interfered with states in the exercise of their functions of government were not laws authorised by the Constitution, even if they were laws with respect to a subject matter within the legislative power of the Commonwealth Parliament. Rich J., held that the Constitution expressly provided for the continued existence of the States and that, therefore, any action on the part of the Commonwealth, in purported exercise of its Constitutional powers, which would prevent a State from continuing to exist or function as such was necessarily invalid because of inconsistency with the express provisions of the Constitution. Stark, J. said that the federal character of the Australian Constitution carried implications of its own, that the government was a dual system based upon a separation of organs and of powers and, consequently, maintenance of the States and their powers was as much the object of the Constitution as maintenance of the Commonwealth and its powers. Therefore, it wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... power was granted to the Commonwealth by a specific provision such as Section 51(ii), the Commonwealth could pass a law which would bind the States as it would bind individuals. The difference amongst the judges, however, arose as regards the question of implied limitation on such a power, however, expressly granted. Barwick C.J. and Owen J. were of the view that a law which in substance takes a State or its powers or functions of government as its subject matter is invalid because it cannot be supported upon any granted legislative power but there is no implied limitation on a Commonwealth legislative power under the Constitution arising from its federal nature. McTiernan J. was also of the view that there was no necessary implication restraining the Commonwealth from making the law. However, Menzies, Windeyer, Walsh and Gibbs JJ. held in categorial terms that there is an implied limitation on Commonwealth legislative power under the Constitution on account of its federal nature. According to Menzies J. a Constitution providing for indissoluble federal Commonwealth must protect both Commonwealth and States. The States were not outside the Constitution. Accordingly although the Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... claration to that effect. Again it is a necessary implication of a republican Constitution that the sovereign of a foreign State-United Kingdom cannot place Indian territory in groups by Orders in Council as provided in the Fugutive Offenders Act, and, therefore, that Act is inconsistent with the Republican Constitution of India, and is not continued in force by Article 372; see State of Madras v. G.C. Menon [1955] 1 S.C.R. 280. But he maintains that the principle of Queen v. Burah is not in any way displaced. Burah's case, according to him, laid down principles of interpretation and in doing so the Privy Council itself enunciated the doctrine of ultra vires which is a necessary implication of an Act of the British Parliament creating bodies or authorities with limited powers. An attempt has been made to show that the judgment of Chief Justice Barwick in the above Australian decision stated the basic principle of construction correctly and those principles are applicable to our Constitution also since the decision was based on Queen v. Burah [1878] 3 A.C. 889 which has been consistently followed by this Court. We have already dealt with that decision and we are unable to agree that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court of Canada See in particular the observation of Duff C.J. in Alberta Statutes Case (1938) SCR (Canada) 100 at pages 132-133 said that the Canada Election Act, the provisions of the British North America Act which provided for Parliament meeting at least once a year and for the election of a new Parliament at least every five years and the Senate and House of Commons Act, were examples of enactments which made specific statutory provisions for ensuring the exercise of the right of public debate and public discussion. "Implicit in all such legislation is the right of candidates for Parliament or for a Legislature and of citizens generally, to explain, to criticize, debate and discuss in the freest possible mann er such matters as the qualifications, the policies, and the political, economic and social principles advocated by such candidates or by the political parties or groups of which they may be member". That right could not be abrogated by a Provincial Legislature and its power was limited to what might be necessary to protect purely private rights. He was further of the opinion that according to the Canadian Constitution, as it stood, Parliament itself could not a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ying Article 2 of the French Law of 1884 which provided that the republican form of government could not be made subject of Constitutional amendment. Section 50 of that Constitution, in particular, was criticized as being too pliant for the first period of 8 years and too rigid for the per iod following it Leo Kohn, The Constitution of the Irish Free State pp. 257-259. After the 1937 Constitution which became a model for our Constitution makers the trend of judicial thinking underwent a transformation and instead of treating an Act inconsistent with the Constitution as having the effect of impliedly amending the Constitution such an Act was regarded as invalid to the extent of its inconsistency with the Constitution. See Edmund Burke v. Lenon (1940) Ir. Reports 136 and Margaret Buckley v. Att. Gen. of Eire (1950) Ir. Reports 67. The 1922 Constitution was considered to be of such "light weight" that there were no fewer than 27 Acts expressed to be Acts impliedly amending that Constitution See generally J.M. Kelly, Fundamental Rights on the Irish Law and Constitution (1968) 1-17 within a period of 15 years. During the period 1922-27 the judges were used to the British idea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... affecting the liberty of the citizen. It was argued that amendments may be of different kinds, e.g., mere changes in the character of federal means of machinery on the one hand, and matters affecting the liberty of the citizen, on the other. It was said that the framers of the Constitution accepted the former sort to be ratified by the legislature whereas they intended that the latter must be referred to the people because not only of lack of power in the legislature to ratify but also because of doubt as to their truly representing the people. The Court observed that where the intention was clear there was no room for construction and no excuse for interpolation or addition and it had been repeatedly and consistently declared in earlier decisions that the choice of mode rested solely in the discretion of the Congress. It is sought to be concluded from this decision that the Supreme Court of the United States refused to read any implications of the nature argued in that case. 613. Mr. Palkhivala says that the decision in U.S. v. W.H. Sprague (Supra) has no relevance to the questions before us. All that it laid down was that the Congress had the sole discretion to decide whether a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onstitution. If the respondent's argument is accepted the amending power is absolute and limitless. It can make the judiciary and the executive completely subordinate to it or take over their powers. 615. We are unable to see how the power of judicial review makes the judiciary supreme in any sense of the word. This power is of paramount importance in a federal Constitution. Indeed it has been said that the heart and core of a democracy lies in the judicial process; (per Bose J., in Bidi Supply Co. v. The Union of India [1956] S.C.R. 267). The observations of Patanjali Sastri C.J. in State of Madras v. V.G. Row [1952] S.C.R. 597 which have become locus classicus need alone be repeated in this connection. Judicial review is undertaken by the courts "not out of any desire to tilt at legislative authority in a crusador's spirit, but in discharge of a duty plainly laid upon them by the Constitution." The respondents have also contended that to let the court have judicial review over Constitutional amendments would mean involving the court in political questions. To this the answer may be given in the words of Lord Porter in Commonwealth of Australia v. Bank of New South Wale ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e added the none two rigid amendatory process which authorises amendment by means oft 2/3 majority and the additional requirement of ratification. 616. According to the learned Attorney General the entire argument on the basis of implied limitations is fundamentally wrong. He has also relied greatly on the decision in Burah's case and other similar decisions. It is pointed out that there can be no inherent limitation on the power of amendment having regard to the purpose for which the power is needed. The argument about the non-amendability of the essential framework of the Constitution is illusive because every part of a Constitutional document admits of the possibility of imperfect drafting or ambiguity. Even basic concepts or ideals undergo progressive changes. It has been strenuously urged that the Constitution read as a whole did not contemplate the perpetuation of the existing social and economic inequalities and a duty has been cast on the State to organise a new social order. The Attorney General quoted the opinion of several writers and authors in support of his contention that there must be express words of limitation in a provision which provides for amendment of the Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s and such rights as are the basic elements of those freedoms, e.g., the right to equality, freedom of religion etc., so that his dignity as an individual may be maintained. It has been strongly urged on behalf of the respondents that a citizen cannot have any dignity if he is economically or socially backward. No one can dispute such a statement but the whole scheme underlying the Constitution is to bring about economic and social changes without taking away the dignity of the individual. Indeed, the same has been placed on such a high pedestal that to ensure the freedoms etc. their infringement has been made justiciable by the highest court in the land. The dictum of Das C.J. in Kerala Education Bill case paints the true picture in which there must be harmony between Parts III and IV; indeed the picture will get distorted and blurred if any vital provision out of them is cut out or denuded of its identity. 620. The basic structure of the Constitution is not a vague concept and the apprehensions expressed on behalf of the respondents that neither the citizen nor the Parliament would be able to understand it are unfounded. If the historical background, the Preamble, the entire sch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wing clause shall be inserted, namely: (2B) Nothing in Sub-clause (f) of Clause (1) of Article 19 shall affect any such law as is referred to in Clause (2). As stated in the Statement of Objects and Reasons to the Bill (No. 106 of 1971) the word "compensation" was sought to be omitted from Article 31(2) and replaced by the word "amount". It was being clarified that the said "amount" may be given otherwise than in cash. It was also provided that Article 19(1)(f) shall not apply to any law relating to acquisition or requisitioning of property for a public purpose. The position of the respondents is that "compensation" had been given the meaning of market value or the just equivalent of what the owner had been deprived of according to the decisions of this Court. See State of West Bengal v. Mrs. Bela Bannerji and Ors. (1954) S.C.R. 558. That had led to the 4th Amendment Act 1955. The later decisions (2) Vajravelu Mudaliar v. Special Deputy Collector, Madras (1965) S.C.R. 614 and Union of India v. Metal Corporation of India and Anr. [1967] 1 S.C.R. 255 had continued to uphold the concept of "compensation" i.e. just equivalent of the va ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd irrelevant Moreover, either method of giving an amount must bring about the same result In other words, if ₹ 1000 is the amount to be given for acquisition of a property, it must be either fixed or must be determinable by the principles specified in the event of its not being fixed. It could not be intended that the two alternative modes should lead to varying results, i.e., it could be fixed at ₹ 1000 but if the principles ar e specified they do not yield that figure. 625. The Advocate General of Maharashtra says that the right of the owner is just what the government determines it to be. It can give what it pleases and when it choses to do so. Such an argument is untenable and introduces an element of arbitrariness which cannot be attributed to the Parliament. 626. In Shantilal Mangal Das, which, on the submission of the Advocate General, enunciated the correct principles relating to Article 31(2) as it then stood, it was laid down that something fixed or determined by the application of specified principles which was illusory or could in no sense be regarded as compensation was not bound to be upheld by the Courts, "for to do so would be to grant a charter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amendment still binds the legislature to provide for the giving to the owner a sum of money either in cash or otherwise. In fixing the "amount", the legislature has to act on some principle. This is not because of any particular obligation arising out of Article 31(2), but from the general nature of legislative power itself. Whatever, the subject or the nature of legislation it always proceeds on a principle it is based on legislative policy. The principle may include considerations of social justice: Judicial review on the ground of inadequacy of the "amount" and the manner of payment is excluded by express language. No other question is excluded. The expropriated owner still continues to have a fundamental right. This argument is not quite the same as that of the learned Solicitor General. 629. It is true that the "amount" to be paid to an owner may not be the market value. The price of the property might have increased owing to various factors to which no contribution has been made by the owner. The element of social justice may have to be taken into consideration. But still on the learned Solicitor General's argument, the right t o receive the &q ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... State, the provisions of this Article shall not apply thereto unless such law, having been reserved for the consideration of the President, has received his assent. According to the Statement of Objects and Reasons contained in Bill No. 106 of 1971, the new Article has been introduced to provide that if any law is passed to give effect to the Directive Principles contained in Clauses (b) and (c) of Article 39 and contains a declaration to that effect, such law shall not be deemed to be void on the ground that it takes away or abridges any of the rights contained in Articles 14, 19 or 31 and shall not be questioned on the ground that it does not give effect to these principles. For this provision to apply in case of laws made by State legislatures, it is necessary that the relevant Bill should be reserved for the consideration of the President and receive his assent. 633. Article 39 contains certain principles of policy to be followed by the State. It enjoin s the State inter alia to direct its policy towards securing: 39 (b) that the ownership and control of the material resources of the community are so distributed as best to subserve the common good; (c) that the operation of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cle 31C destroys several essential features of the Constitution. He says that there is a vital distinction between two cases (a) where fundamental rights are amended to permit laws to be validly passed which would have been void before the amendment and (b) the fundamental rights remain unamended, but the laws which are void as offending those rights are validated by a legal fiction that they shall not be deemed to be void. He further points out that on the analogy of Article 31(C) it would be permissible to have an omnibus Article that notwithstanding anything contained in the Constitution no law passed by Parliament or any State legislature shall be deemed to be void on any ground whatsoever. Article 31(C) according to him, gives a blank charter not only to Parliament but all the State Legislatures to amend the Constitution. On the other hand, the argument on behalf of the respondents is that Article 31(C) is similar to Articles 31(A) and 31(B) and that the object of inserting the Article is to free certain kinds of laws from the limitation on legislative power imposed by conferment of fundamental rights by Part III of the Constitution. As those rights were justiciable under Arti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tution breaking laws has been entrusted even to a small majority in a State Legislature. Mr. Palkhivala points out that the freedom of the Press, for instance, can be destroyed under Article 31(C) as the respondents claim the right to nationalise any industrial or economic activity. Moreover, a person can be put in prison for commending a policy contrary to the government's policy. Such legislation cannot be challenged as Article 19(1)(a) will not apply and Article 21 permits deprivation of personal liberty according to procedure established by law. The case in the State of Bombay and Anr. v. F.N. Balsara [1951] S.C.R. 682 is in point. Commending the use of an intoxicant had been made an offence. It was struck down by this Court as violative of Article 19(1)(a). If Article 31(C) is Constitutional, such a provision made in a law enacted under it relating to matters falling within Article 39(a) and (b) would be valid. As a matter of fact no cogent or convincing explanation has been given as to why it was necessary to take away all the freedoms guaranteed by Article 19 and for the abrogation of the prized right of equality under Article 14 of which has been described as the basic prin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... res can amend the Constitution, particularly, when Article 368 does not contemplate any other mode of amendment or the setting up of another body to amend the Constitution. The other difficulty which immediately presents itself while examining Article 31(C) is the effect of the declaration provided for in the Article. It is possible to fit in the scheme of Article 31(C) any kind of social or economic legislation. If the courts are debarred from going into the question whether the laws enacted are meant to give effect to the policy set out in Article 39(b) and (c), the Court will be precluded from enquiring even into the incidental encroachment on rights guaranteed under Articles 14, 19 and 31. This is not possible with regard to laws enacted under Article 31(A). Those laws can be sustained if they infringe the aforesaid Articles only to the extent necessary for giving effect to them. Although on behalf of the respondents it is said that the Court can examine whether there is any nexus between the laws made under Article 31(C) and Article 39(b) and (c), there would hardly be any law which can be held to have no nexus with Article 39(b) and (c), the ambit of which is so wide. 640. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 889 Visweshwar Rao v. The State of Madhya Pradesh [1952] S.C.R. 1020 and N.B. Jeejeebhoy v. Assistant Collector, Thana Prant, Thana. [1965] 1 S.C.R. 636. In all these cases it was held that Article 31 (B) was independent of Article 31(A). A matter which has been settled for all these years cannot be re-opened now. It will still be open, however, to the Court to decide whether the Acts which were included in the Ninth Schedule by 29th Amendment Act or any provision thereof abrogates any of the bask elements of the Constitutional structure or denudes them of their identity. 646. Our conclusions may be summarised as follows: 1. The decision in Golak Nath has become academic, for even if it be assumed that the majority judgment that the word 'law' in Article 13(2), covered Constitutional amendments was not correct, the result on the questions, wider than those raised in Golak Nath, now raised before us would be just the same. 2. The discussion on the 24th Amendment leads to the result that- (a) the said amendment does no more than to clarify in express language that which was implicit in the unamended Article 368 and that it does not or cannot add to the power originally conferred ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be unConstitutional and invalid. 7. The 29th Amendment is valid. However, the question whether the Acts included in the Ninth Schedule by that amendment or any provision of those Acts abrogates any of the basic elements of the Constitutional structure or denudes them of their identity will have to be examined when the validity of those Acts comes up for consideration. 647. The petitions are remitted to the Constitution Bench to be decided in accordance with this judgment and the law. The Constitution Bench will also decide the validity of the 26th Amendment in the light of our judgment. K.S. Hegde and A.K. Mukherjea, JJ. 648. In these writ petitions questions of great Constitutional importance have arisen for consideration. Herein we are called upon to decide the Constitutional validity of the 24th, 25th, 26th and 29th Amendments to the Constitution. We have had the advantage of hearing long and illuminating arguments covering over 65 working days. We have been referred to numerous decisions of this Court and of the courts in England, United States, Canada, Australia, Germany, Ireland and Ceylon. Our attention has also been invited to various writings of jurists, present and p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sible for Parliament to take away or abridge any of the rights conferred by Part III of the Constitution. His second and more comprehensive argument was that the power conferred on the Parliament under Article 368 did not permit it to damage or destroy any of the basic or fundamental features or essential elements of the Constitution. The arguments on these two aspects naturally ran into each other. But for a proper legal approach, it is necessary to keep them apart as far as possible. Hence while considering the correctness of the first contention, we shall not take into consideration the importance of the Fundamental Rights. On this aspect, our approach to Article 368 will be purely based on the language of Article 368 and Article 13. The importance or transcendental character of the Fundamental Rights as well as the implied or inherent limitations on the amending power, if any, will be considered While dealing with the second of the two alternative contentions advanced by Mr. Palkhivala. 651. We shall first take up the question whether by the exercise of the power of amendment conferred by Article 368, as it originally stood, Parliament could have taken away any of the Fundamen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e result is the amendment of the Constitution. According to them, the expression "an amendment of this Constitution" in Article 368 means an amendment of each and every provision or part of the Constitution; once the form and manner provided in Article 368 have been complied with, the amended Article is as effective as the original Article itself; and, therefore, as in the case of the original Article, the val idity of the amended Article also cannot be challenged. They further contended that 'law' in Article 13 means only legislative enactments or ordinances, or orders or bye-laws or rules or regulations or notifications or customs or usages having the force of law in the territory of India and that expression does not include a Constitutional law, though in a comprehensive sense, a Constitutional law is also a law. They further contended that the word 'law' in Article 13 must be harmoniously construed with Article 368 and, if 'it is so construed, there is no room for doubt that the expression 'law' in Article 13 does not include a Constitutional law. They repudiated the contention of Mr. Palkhivala that there was any Constitutional law as such in force when the Constitu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cting other legislative measures. 654. The power of Parliament to abridge Fundamental Rights under Article 368 was again considered by this Court in Sajjan Singh v. State of Rajasthan [1965] 1 S.C.R. 933. In that case two questions were considered viz. (1) Whether the amendment of the Constitution in so far as it purported to take away or abridge the rights conferred by Part III of the Constitution was within the prohibition of Article 13(2) and (2) Whether Articles 31-A and 31-B (as amended by the 17th Amendment Act) sought to make changes in Article 132, Article 136 and Article 226 or any of the Lists in the VIIth Schedule and therefore the conditions prescribed in the proviso to Article 368 had to be satisfied. It is clear from the judgment of the Court that the first question was not debate d before the Court though the majority judges as well as the minority judges did consider that question evidently without any assittance from the bar. On both those questions Chief Justice Gajendragadkar speaking for himself and Wanchoo and Raghubar Dayal JJ. concurred with the view taken by this Court in Sankari Prasad's case. But Hidayatullah J. (as he then was) and Mudholkar J. doubted t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stitution. Hidayatullah J. (as he then was) held that Article 368 outlines a process, which, if followed strictly, results in the amendment of the Constitution; that article gives the power to no particular person or persons, and that the power of amendment, if it can be called a power at all, is a legislative power but it is sui generis and exists outside the three Lists in Schedule VII o f the Constitution. This reasoning of Hidayatuulah J. may be reasonably read to suggest that the power of amendment] is necessarily implied in Article 368. The majority of the judges who held that it was impermissible for Parliament to take away or abridge any of the Fundamental Rights by an amendment of the Constitution did not proceed to strike down the the 1st, 4th and 17th Amendments. Five of them relied on the doctrine of "Prospective Overruling" (Subba Rao C.J., Shah, Sikri, Shelat and Vaidialingam JJ.) and Hidayatullah J. relied on the doctrine of acquiescence to save those amendments. Evidently in an attempt to get over the effect of the decision in Golak Nath's case, Parliament has enacted the 24th Amendment Act, 1971, and the same has been ratified by more than one half of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cessary implication in Article 368 but must be found elsewhere. In their undoubtedly difficult task of finding out that power elsewhere they had to fall back on Entry 97 of List I. Lists I to III of the VIIth Schedule of the Constitution merely divid e the topics of legislation among the Union and the States. It is obvious that these lists hav e been very carefully prepared. They are by and large exhaustive. Entry 97 in List I was included to meet some unexpected and unforeseen contingencies. It is difficult to believe that our Constitution-makers who were keenly conscious of the importance of the provision relating to the amendment of the Constitution and debated that question for several days, would have left this important power hidden in Entry 97 of List I leaving it to the off chance of the courts locating that power in that Entry. We are unable to agree with those learned judges when they sought to place reliance on Article 245, Article 246 and Article 248 and Entry 97 of List I for the purpose of locating the power of amendment in the residuary power conferred on the Union. Their reasoning in that regard fails to give due weight to the fact that the exercise of the power und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ur mind is plain and unambiguous. Hence we need not call into aid any of the rules of construction about which there was great deal of debate at the hearing. As the power to amend under the Article as it originally stood was only implied, the marginal note rightly referred to the procedure of amendment. The reference to the procedure in the marginal note does not negative the existence of the power implied in the Article. 659. The next question is whether the power conferred under Article 368 is available for amending each and every provision of the Constitution. The Article opens by saying "An amendment of this Constitution" which means an amendment of each and every provision and part of the Constitution. We find nothing in that Article to restrict its scop e. If we read Article 368 by itself, there can be no doubt that the power of amendment implied in that Article can reach each and every Article as well as every part of the Constitution. 660. Having ascertained the true scope of Article 368, let us now turn to Article 13. A great deal of reliance was placed by the learned Counsel for the petitioners on the expression 'law' found in Article 13(1) and (2). As seen ea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pus Juris Secundum (Vol. XVITitle Constitutional Law Article 1, p. 20), which says: The term 'Constitution' is ordinarily employed to designate the organic law in contradistinction to the terms 'law' which is generally used to designate statutes or legislative enactments. Accordingly, the term 'law' under this distinction does not include a Constitutional amendment. However, the term 'law' may, in accordance with the context in which it is used, comprehend or include the Constitution or a Constitutional provision or amendment 662. It is true that Article 13(3) contains an inclusive definition of the term 'law' and, therefore, the question whether it includes Constitutional amendment also cannot be answered with reference to that clause. All the same, since the expression 'law' can have two meanings, as mentioned earlier, we must take that meaning which harmonises with Article 368. As mentioned earlier, Article 368 is unambiguous, whereas Article 13 is ambiguous because of the fact that the word 'law' may or may not include Constitutional amendment. Further, when we speak of 'law' we ordinarily refer to the exercise of legislative power. Hence, law' in Article 13(2) must be constr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of their validity. The scope of Article 13(1) does not bear on the interpretation of the expression 'law' in Articl e 13(2). 665. We shall now examine the contention of Mr. Palkhivala based on Articles 4, 169, Paragraph 7 of Schedule V and Paragraph 21 of Schedule VI. He contended and we have no doubt that he did so rightly,-that the Constitution can be amended not only under Article 368 but also under Article 4, Article 169, Paragraph 7 of Schedule V and Paragraph 21 of Schedule VI. Amendments under these provisions can be effected by Parliament by a simple majority vote of the members present in the House and voting, if the prescribed quorum is there. If the two Houses do not agree on any amendment under those provisions, the same has to be decided by a Joint sitting of the two Houses as provided in Article 108. That is because of the express exclusion of the application of Article 368 to the amendments made under those provisions. According to Mr. Palkhivala, by the exercise of its power under the aforementioned provisions, Parliament can in certain respects take away or abridge the Fundamental Rights of a section of the people of this country. He painted a gloomy picture as to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Drafting Committee consisting of emient lawyers, they redrafted the clause thus: The State shall not make any law which takes away or abridges the rights conferred by this part and any law made in contravention of this clause shall to the extent of contravention be void. 669. In other words, the drafting committee deleted from Sir B.N. Rau's draft those words which specifically excluded from the operation of the clause amendments of the Constitution. From these circumstances, Mr. Palkhivala seeks to draw the inference that the Constituent Assembly finally decided to bring within the scope of Article 13(2) Constitutional amendments also. We are unable to accept this contention. It is not clear why the drafting committee deleted the reference to the amendment of the Constitution in Article 13(2). It is possible that they were of the opinion that in view of the plain language of the provision relating to the amendment of the Constitution i.e. draft Article 304, it was unnecessary to provide in Article 13(2) that the amendment of the Constitution does not come within its scope. 670. It is true that this Court has characterised the Fundamental rights as "paramount" in A.K ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Constitution wisely drawn up provides for its own amendment. We shall separately consider the contention of Mr. Palkhivala that our Constitution embodies certain features which are so basic that no free and civilised society can afford to discard them and in no foreseeable future can those features become irrelevant in this country. For the present we shall keep apart, for later consideration. Mr. Palkhivala's contention that the Parliament which is only a constituted body cannot damage or destroy the essential features of the Constitution. Up till now we have merely confined our attention to the question as to the scope and reach of Article 368. This Court has always attached great importance to the Fundamental Rights guaranteed under our Constitution. It has given no less imporotance to some of the Directive Principles set out in Part IV. The Directive Principles embodied in Part IV of the Constitution or at any rate most of them are as important as the rights of individuals. To quote the words of Graville Austin (The Indian Constitution-Corner Stone of a Nation, page 50): The Indian Constitution is first and foremost a social document. The majority of its provisions are either ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hich consisted of the very members who were the members of the Constituent Assembly. It should be remembered that members of the Constituent Assembly continued as the members of the provisional Parliament till the General Election in 1952. They must have been aware of the intention with which Article 368 was enacted. These are important circumstances. The interpretation we place on a Constitutional provision, particularly on a provision of such great importance as Article 368 must subserve national interest. It must be such as to further the objectives intended to be achieved by the Constitution and to effectuate the philosophy underlying it. To quote the memorable words of Chief Justice Marshall we must not forget that we are expounding a Constitution. 676. We now come to the second contention of Mr. Palkhivala that the word 'amendment' has a limited meaning and Article 368 does not permit any damage to or destruction of the basic or fundamental features or essential elements of the Constitution. Mr. Palkhivala urged that the word "amendment" or "amend" ordinarily means 'to make certain changes or effect some improvements in a text'. Those words do not, accord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... exercise the same power which the Constituent Assembly could have exercised. We have now to consider which one of the two contentions is acceptable. 677. While interpretating a provision in a statute or, Constitution the primary duty of the court is to find out the legislative intent. In the present case our duty is to find out the intention of the founding fathers in enacting Article 368. Oridnarily the legislative intent is gathered from the language used. If the language employed is plain and unambiguous, the same must be given effect to irrespective of the consequences that may arise. But if the language employed is reasonably capable of more meanings than one, then the Court will have to call into aid various well settled rules of construction and in particular, the history of the legislation-to find out the evil that was sought to be remedied and also in some cases the underlying purpose of the legislation-the legislative scheme and the consequences that may possibly flow from accepting one or the other of the interpretations because no legislative body is presumed to confer a power which is capable of misuse. 678. It was conceded at the bar that generally speaking, the wo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se Schedules has been conferred on Parliament. That power includes power to amend "by way of addition, variation or repeal". Similar is the position under the repealed Article 243(2), Article 252(2) and 350(5). It is true that the power to amend conferred under the Fifth and Sixth Schedules is merely a power to amend those Schedules but if the Constitution-makers were of the opinion that the word "amendment" or "amend" included within its scope, unless limited otherwise, a power to add, vary, or repeal, there was no purpose in mentioning in those Articles or parts "amend by way of addition, variation or repeal". In this connection it may also be remembered that the Constituent Assembly amended Section 291 of the Government of India Act, 1935 on August 21, 1949 just a few days before it approved Article 368 i.e. on September 17, 1949. The amended Section 291 empowered the Governor-General to amend certain provisions of the 1935 Act "by way of addition, modification or repeal". From these circumstances, there is prima facie reason to believe that our Constitution makers made a distinction between a mere power to amend and a power to a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssembly to give a premanency to the basic features of the Constitution ? It is also a matter for consideration whether making a change in a basic feature of the Constitution can be regarded merely as an amendment or would it be, in effect, rewriting a part of the Constitution; and if the latter, would it be within the purview of Article 368 ? 682. For the first time in Golak Nath's case, the contention that the power of amendment under Article 368 is subject to certain inherent and implied limitations was urged. Subba Rao C.J. speaking for himself and four of his colleagues, while recognising the force of that contention refrained from pronouncing on the same. Wanchoo J. (as he then was) speaking for himself and two other judges opined that the power under Article 368 is a very wide power but it may not include a power to abrogate the Constitution. He did explain what he meant by "abrogate the Constitution". Hidayatullah J. (as he then was) did not address himself to that question. Bachawat J. side-stepped that question by saying that the impugned amendments did not destroy any, basic feature of the Constitution, The only judge who rejected the contention that there are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... intern, extern or imprison any British subject in India outside the process of ordinary Civil or Criminal law and the assimilation of the law of sedition to that of England. The Commonwealth of India Bill, finalised by the National Convention in 1926 embodied a specific declaration of rights visualising for every person certain rights in terms practically identical with th e relevant provisions of the Irish Constitution. The problems of minorities in India further strengthened the general argument in favour of inclusion of Fundamental Rights in the Indian Constitution. In its Madras Session in 1927, the Indian National Congress firmly laid down that the basis of the future Constitution must be a declaration of Fundamental Rights. In 1928, the Nehru Committee in its report incorporated a provision for enumeration of such rights, recommending their adoption as a part of the future Constitution of India. The Simon Commission, rejected the demand on the plea that an abstract declaration of such rights was useless unless there existed "the will and the means to make them effective". In 1932, in its Karachi Session, the Indian National Congress reiterated its resolve to regard ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inciples, which emphasise, among other things, the duty of the State to strive for social security and to provide work, education and proper condition of employment for its citizens. In evolving the Fundamental Rights and the Directive Principles, our founding fathers, in addition to the experience gathered by them from the events that took place in other parts of the world, also drew largely on their experience in the past. The Directive Principles and the Fundamental Rights mainly proceed on the basis of Human Rights. Representative democracies will have no meaning without economic and social justice to the common man. This is a universal experience. Freedom from foreign rule can be looked upon only as an opportunity to bring about economic and social advancement. After all freedom is nothing else but a chance to be better. It is this liberty to do better that is the theme of the Directive Principles of State Policy in Part IV of the Constitution. 686. The Objectives Resolution passed by the Constituent Assembly in January 1947, is a definite landmark. It is a precursor to the preamble to our Constitution. It sets out in det ail the objectives that were before our Constitution-m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a satellite of any other country; (2) substitute the democratic form of government by monarchical or authoritarian form of government; (3) break up the unity of this country and form various independent States; (4) destroy the secular character of this country and substitute the same by a theocratic form of government; (5) abrogate completely the various rights conferred on the citizens as well as on the minorities; (6) revoke the mandate given to the States to build a Welfare State; (7) extend the life of the two Houses of Parliament indefinitely; and (8) amend the amending power in such a way as to make the Constitution legally or at any rate practically unamendable. In fact, their contention was that the legal sovereignty, in the ultimate analysis rests only in the amending power. At one stage, Counsel for the Union and the States had grudgingly conceded that the power conferred under Article 368 cannot be used to abrogate the Constitution but later under pressure of questioning by some of us they changed their position and said that by 'abrogation' they meant repeal of the Constitution as a whole. When they were asked as to what they meant by saying that the power conferred und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y use the Constitution to destroy itself. Under Article 368 the amended Constitution must remain 'the Constitution' which means the original Constitution. When we speak of the 'abrogation' or 'repeal' of the Constitution, we do not refer to any form but to substance. If one or more of the basic features of the Constitution are taken away to that extent the Constitution is abrogated or repealed. If all the basic features of the Constitution are repealed and some other provisions inconsistent with those features are incorporated, it cannot still remain the Constitution referred to in Article 368. The personality of the Constitution must remain unchanged. 691. It is also necessary to bear in mind that the power to amend the Constitution is conferred on Parliament, a body constituted under the Constitution. The people as such are not associated with the amendment of the Constitution. From the preamble we get that it is the people of this country who conferred this Constitution on themselves. The statement in the preamble that the people of this country conferred the Constitution on themselves is not open to challenge before this Court. Its factual correctness cannot be gone into by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed to give assent to a Constitutional amendment which might destroy the basic features of the Constitution, can it be said that he is true to his oath to "preserve, prote ct and defend the Constitution" or does his oath merely mean that he is to defend the amending power of Parliament ? Can the amending power of Parliament be considered as the Constitution? The whole scheme and the structure of our Constitution proceeds on the basis that there are certain basic features which are expected to be permanent. 694. Implied limitations on the powers conferred under a statute constitute a general feature of all statutes. The position cannot be different in the case of powers conferred under a Constitution. A grant of power in general terms of even in absolute terms may be qualified by other express provisions in the same enactment or may be qualified by the implications of the context or even by considerations arising out of what appears to be the general scheme of the statute. In Re The Central Provinces and Berar (Central Provinces and Berar Act No. XIV of 1938 [1939] F.C.R. p. 18, Sir Maurice Gwyer C.J. observed at p. 42: A grant of the power in general terms, standing by it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion whatever the nature of that power might be. That apart, during the course of hearing the learned Solicitor-General had to concede that there are certain implied limitations on the amending power itself. The amending power of Parliament in certain respects is subject to the express limitations placed on it by the proviso to Article 368. Article 368 prescribes that if Parliament wants to amend Article 54, the Article dealing with the election of the President, the amendment in question must be ratified by the legislatures of not less than one half of the States. No such express limitation is placed on the amending power of Parliament in respect of Article 52 which provides that there shall be a President of India. If it be held that Article 52 can be amended without complying with the requirements of the proviso to Article 368, the limitation placed on Parliament in respect of the amendment of Article 54 becomes meaningless. When this incongruity was pointed out to the learned Solicitor-General, he conceded that in view of the fact that before Article 54 can be amended, the form and the manner laid down in proviso to Article 368 has to be followed, it follows as a matter of impl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot a single human right has been taken away or even its scope narrowed. There the controversy centred round two questions viz. (1) abolition of slavery and (2) prohibition of sale and consumption of liquor. We will not be justified in expounding our Constitution on the basis of the controversies relating to those issues. Article 5 of the U.S. Constitution is not similar to Article 368 of our Constitution. In the former Article, there is an express limitation on th e amending power i.e. regarding the representation of the States in the Senate. Further the amendment under Article 5 of the United States Constitution can be proposed either by the Congress or by State Conventions. They may be ratified either by a minimum of 3/4th of the State Legislatures or by Conventions held in at least 3/4th of the States. Whether a particular amendment should be ratified by the State Legislatures or by the State Conventions is entirely left to the discretion of the Congress. As held by the United States Supreme Court, the decision of the Congress on that question is final. The Constitution makers must have proceeded on the basis that the Congress is likely to require the amendment of basic elements ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ontours of the basic elements or fundamental features of our Constitution are clearly delineated in the preamble. Unlike in most of the other Constitutions, it is comparatively easy in the case of our Constitution to discern and determine the basic elements or the fundamental features of our Constitution. For doing so, one has only to look to the preamble. It is true that there are bound to be border line cases where there can be difference of opinion. That is so in all important legal questions. But the courts generally proceed on the presumption of Constitutionality of all legislations. The presumption of the Constitutional validity of a statute will also apply to Constitutional amendments. It is not correct to say that what is difficult to decide does not exist at all. For that matter, there are no clear guidelines before the Parliament to determine what are essential legislative functions which cannot be delegated, what legislations do invade on the judicial power or what restrictions are reasonable restrictions in public interest under Article 19(2) to 19(6) and yet by and large the legislations made by Parliament or the State legislatures in those respects have been upheld by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly include proposals for amending the Constitution. During the General Elections to Parliament in 1952, 1957, 1962 and 1967, no proposal to amend the Constitution appears to have been placed before the electorate. Even when proposals for amendment of the Constitution are placed before the electorate as was done by the Congress Party in 1971, the proposed amendments are not usually placed before the electorate. Under these circumstances, the claim that the electorate had given a mandate to the party to amend the Constitution in any particular manner is unjustified. Further a Parliamentary Democracy like ours functions on the basis of the party system. The mechanics of operation of the party system as well as the system of Cabinet government are such that the people as a whole can have little control in the matter of detailed law-making. "...on practically every issue in the modern State, the serried millions of voters cannot do more than accept or reject the solutions; offered. The stage is too vast to permit of the nice shades of quantitative distinction impressing themselves upon the public mind. It has rarely the leisure, and seldom the information, to do more than indicate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rument for social good. We are unable to agree with the contention that in order to build a Welfare State, it is necessary to destroy some of the human freedoms. That, at any rate is not the perspective of our Constitution. Our Constitution envisages that the States should without delay make available to all the citizens of this country the real benefits of those freedoms in a democratic way. Human freedoms are lost gradually and imperceptibly and their destruction 'is generally followed by authoritarian rule. That is what history has taught us. Struggle between liberty and power is eternal. Vigilance is the price that we like every other democratic society have to pay to safeguard the democratic values enshrined in our Constitution. Even the best of governments are not averse to have more and more power to carry out their plans and programmes which they may sincerely believe to be in public interest. But a freedom once lost is hardly ever regained except by revolution. Every encroachment on freedoms sets a pattern for further encroachments. Our Constitutional plan is to eradicate poverty without destruction of individual freedoms. 706. In the result we uphold the contention of Mr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ive his assent to the Bill and thereupon" shall be substituted; (d) after Clause (2) as so re-numbered, the following clause shall be inserted, namely- (3) Nothing in Article 13 shall apply to any amendment made under this Article. 711. The material changes effected under this Act are: 1. Addition of Clause (4) to Article 13 and Clause (3) to Article 368; 2. Change in the marginal heading; 3. Specific mention of the fact that the power is conferred on the Parliament to amend the Constitution; 4. The power conferred on the Parliament is claimed to be a constituent power; 5. That power is described as a power to "amend by way of addition, variation or repeal of any provision of this Constitution" and 6. Making it obligatory for the President to give assent to the Bill amending the Constitution. 712. In our opinion the 24th Amendment has not made any material change in Article 368 as it stood originally. It is true the original Article did not say specifically that th e power to amend rested with Parliament. On the other hand, while setting out the procedure of amendment, it referred to the functions of the two Houses of Parliament and the President. Because o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere is also no significance in the substitution of the expression "amend by way of addition, variation or repeal of any provision of this Constitution" found in the amended Article in the place of the expression "amendment of the Constitution" found in the original Article. Every power to amend a statute must necessarily include within itself some power to make addition, variation or repeal of any provision of the statute. Here again, the power conferred under the original Article being a limited one, that limitation will continue to operate notwithstanding the change in the phraseology. The words 'addition, variation or repeal' only prescribe the modes or manner by which an 'amendment' may be made, but they do not determine the scope of the power of 'amendment'. The original Article 368 mentioned that after the bill for amendment of the Constitution is passed by the two Houses of Parliament in the manner prescribed in Article 368 "it shall be presented to the President for his assent and upon such assent being given to the Bill, the Constitution shall stand amended in accordance with the terms of the bill". The amended Article makes a change. It presc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ause, Article 368 could have been amended by following the procedure laid down in the main part. At best Clause (e) of the proviso merely indicates that Article 368 itself comes within its own purview. As we have already seen, the main part of Article 368 as it stood earlier, expressly lays down only the procedure to be followed in amending the Constitution. The power to amend is only implied therein. 716. It is difficult to accept the contention that an implied power was impliedly permitted to be enlarged. If that was so, there was nomeaning in limiting that power originally. Limitation on the power to amend the Constitution would operate even when Article 368 is amended. A limited power cannot be used to enlarge the same power into an absolute power. We respectfully agree with the observation of Hidayatullah J. (as he then was) in Golaknath's case that what Parliament cannot do directly, it also cannot do indirectly. We have earlier held that the "amendment of this Constitution" means the amendment of every part of the Constitution. It cannot be denied that Article 368 is but a part of the Constitution. Hence, the mere fact that the mover of the 24th Amendment Act, in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uch acquisition, unless the law provides for compensation for the property taken possession of or acquired and either fixes the amount of the compensation, or specifies the principles on which, and the manner in which, the compensation is to be determined and given." 721. That Article was amended first by the Fourth Amendment Act 1955 and, thereafter by the Twenty-fifth Amendment Act, 1971. At a later stage, it will be necessary for us to compare Article 31(2) as it stood after the Fourth Amendment Act and as it stands after the Twenty-fifth Amendment Act. Hence we shall quote them side by side. Article 31(2) as substituted by Article 3(2) as susbtituted by the 4th Amendment Act 1955 the 25th Amendment Act 1971 No property shall be compulsorily No property shall be compulsorily acquired or requisitioned save for acquired or requisitioned save for a public purpose and save by a public purpose and save by authority of a law which provides for authority of a law which provides compensation for the property so for acquisition or requisitioning acquired or requisitioned and either of the property for an amount fixes the amount of the compensation which may be fixed by such law or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ade by the members of the Constituent Assembly in the course of the debates on the draft Constitution is unwarranted. That this form of extrinsic aid to the interpretation of statutes is not admissible has been generally accepted in England, and the same rule has been observed in the construction of Indian Statutes-see Administrator-General of Bengal v. Prem Nath Mallick [(1895 22 I.A. 107, 118]. The reason behind the rule was explained by one of us in Gapalan's case [1950] S.C.R. 88, at 144 thus: A speech made in the course of the debate on a bill could at best be indicative of the subjective intent of the speaker, but it could not reflect the inarticulate mental process lying behind the majority vote which carried the Bill. Nor is it reasonable to assume that the minds of all those legislators were in accord", or as it is more tersely put in a American case- Those who did not speak may not have agreed with those who did; and those who spoke might differ from each other-United States v. Trans-Missouri Freight Association 169 U.S. 290, 318. 723. No decision of this Court dissenting from the view taken in the above case was brought to our notice. But it was urged that this C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction of any of the articles of the Constitution It is true Mitter J. in his dissenting judgment (at p. 1 21 of the report) used the speech of Shri T.T. Krishnamachari in aid of the construction of Article 363 but the learned judge no where in his judgment discussed the question whether the speeches made by the members of the Constituent Asembly were admisible in aid of interpreting any provision of the Constitution. 727. Before concluding the discussion on this topic, it is necessary to refer to one more decision of this Court i.e. Union of India v. H.S. Dhillon. [1972] 2 S.C.R. 33 In that case this Court was called upon to decide whether the provision in the Wealth Tax Act, 1957 providing for the levy of tax on the capital value of agricultural property were Constitutionally sustainable. By a majority of four against three, this Court upheld the levy. Sikri C.J. who spoke for himself and two other judges after sustaining the validity of the provision on an examination of the relevant provisions of the Constitution as well as the decided cases referred to some of the speeches made during the debates in the Constituent Assembly in support of the conclusion already reached by him. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... then was) speaking for a bench consisting of himself, Wanchoo, Hidayatullah, Raghubar Dayal and Sikri JJ. observed (at p. 626): The fact that Parliament used the same expressions namely "compensation" and "Principles" as were found in Article 31 before the Amendment is a clear indication that it accepted the meaning given by this Court to those expressions in Mrs. Bela Banerjee's case. It follows that a Legislature in making a law of acquisition or requisition shall provide for a just equivalent of what the owner has been deprived of or specify the principles for the purpose of ascertaining the "just equivalent" of what the owner has been deprived of. If Parliament intended to enable a Legislature to make such a law without providing for compensation so defined, it would have used other expressions like "price", "consideration" etc. 731. Proceeding further the learned judge observed: The real difficulty is, what is the effect of ouster of jurisdiction of the court to question the law on the ground that the "compensation" provided by the law is not adequate ? It will be noticed that the law of acquisition or requisition is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hers falling on either side of the line. But this much is clear. If the compensation is illusory or if the principles prescribed are irrelevant to the value of the property at or about the time of its acquisition, it can be said that the legislature committed a fraud on power, and therefore, the law is bad. It is a use of the protection of Article 31 in a manner which the Article hardly intended. (emphasis supplied) 733. The principles that emerge from the decision in Vajravelu's case are: (1) compensation means just equivalent of the value of the property acquired; (2) principles prescribed must be principles which provide for compensation; (3) adequacy of compensation fixed or to be determined on the basis of the principles set out cannot be gone into by the court; (4) the principles fixed must be relevant to the property acquired or to the value of the property at about the time it is acquired; (5) the compensation fixed should not be illusory and (6) courts have power to strike down a law on the ground of fraud on power if the principles fixed are irrelevant or if the compensation granted is illusory. 734. The next decision cited to us is the decision of this Court in Union ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y acquired is it open to the courts to enter upon an enquiry whether the principles which are specified by the Legislature for determining compensation do not award to the expropriated owner a just equivalent ? In our view, such an enquiry is not open to the Court under the statutes enacted after the amendments made in the Constitution by the Constitution (Fourth Amendment) Act. If the quantum of compensation fixed by the Legislature is not liable to be canvassed before the Court on the ground that it is not a just equivalent, the principles specified for determination of compensation will also not be open to challenge on the plea that the compensation determined by the application of those principles is not a just equivalent. The right declared by the Constitution guarantees that compensation shall be given before a person is compulsorily expropriated of his property for a public purpose. What is fixed as compensation by statute, or by the application of principles specified for determination of compensation is guaranteed; it does not mean however that something fixed or determined by the application of specified principles which is illusory or can in no sense be regarded as compe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the law for determination of compensation is beyond the pale of challenge, if it is relevant to the determination of compensation and is a recognised principle applicable in the determination of compensation for property compulsorily acquired and the principle is appropriate in determining the value of the class of property sought to be acquired. On the application of the view expressed in P. Vajravelu Mudaliar's case or in Shantilal Mangaldas's case, the Act in our judgment is liable to be struck down as it fails to provide Co the expropriated banks compensation determined according to relevant principles. 738. Proceeding further the learned judge observed at p. 599: We are unable to hold that a principle specified by the Parliament for determining compensation of the property to be acquired is conclusive. If that view be expressed, the Parliament will be invested with a charter of arbitrariness and by abuse of legislative process, the Constitutional guarantee of the right to compensation may be severely impaired. The principle specified must be appropriate to the determination of compensation for the particular class of property sought to be acquired. If several principles a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an relating to the adequacy of the amount fixed, it would have expressed its intention by appropriate words. We find no such words in the Article as it stands. Therefore, it is reasonable to assume that it has accepted the interpretation placed by this Court in all respects except as regards the concept of compensation. That this is the mischief which the 25th Amendment seeks to remedy by amending Article 31(2) is also clear from the language of the amended Article itself. It says that the law shall not be called in question on the ground that the amount fixed or determined is not adequate. What is an adequate amount ? An amount can be said to be adequate only when the owner of the property is fully compensated, that is when he is paid an amount which is equivalent in value to the property acquired or requisitioned. And that is also what is connoted by the concept of 'compensation' as interpreted by this Court. Therefore, stated briefly, what the 25th Amendment makes non-justiciable is an enquiry into the question whether the amount fixed or determined is an equivalent value of or 'compensation' for the property acquired or requisitioned. 742. The word "amount" is a neut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o see how the fixation of the "amount" which is the alternative method of determining the recompense to be paid in lieu of the property taken is excluded from judicial review. 746. The word "fixed" in Article 31(2) connotes or postulates that there must be some standard or principle by the application of which the legislature calculates or ascertains definitely the amount. In Bouviar's Law Dictionary (1946) at p. 421, the word 'fix' is defined thus: "To determine; to settle. A Constitutional provision to the effect that the General Assembly shall fix the compensation of officers means that it shall prescribe or 'fix' the rule by which such compensation is to be determined". (See also Fraser Henlein Pvy. Ltd. v. Cody (1945) 70, C.L.R. 100 at 128 cited in Saunders, Words and Phrases: Legally Defined Vol. 2, p. 258 (1969). This being the meaning of the word 'fix' it would be necessary for the legislature to lay down in the law itself or otherwise indicate the principles on the basis of which it fixes the amount for the acquisition or requisitioning o f the property. If this construction is placed on the first mode of determining the amount, then there wo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... determining the amount may be said to be relevant to the acquisition or requisition when they bear reasonable relationship to the value of the property acquired or requisitioned. 749. Further there is practical difficulty in accepting the contention that the word "amount" in the context in which it is used, has no norm. The amount has to be fixed by the legislatures which means by the members of the legislatures. When a law for acquisition of certain types of property is enacted, it is not as if the members of the legislature-each and every one of them who participates in the making of the law would first go and inspect the property to be acquired and then assess the value of that property. In the very nature of things, the "amount" payable has to be determined on the basis of certain principles. If that be so, as it appears to us to be obvious, then the legislators m ust have some principles before them to determine the amount. In this connection the Advocate-General of Maharashtra tried to give an explanation, which appears to us to be unsatisfactory and unacceptable. His contention was that our democracy is worked on the basis of party system. The ruling par ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ous forces. It may not have any reasonable relationship with the investment made by its successive owners. The price of the property acquired might have shot up because of various contributions made by the society such as improvements effected by the State in the locality in question or the conversion of a rural area into an urban area. It is undoubtedly open to the State to appropriate to itself that part of the market value of a property which is not the result of any contribution made by its owners. There may be several other relevant grounds for fixing a particular "amount" in a given case or for adopting one or more of the relevant principles for the determination of the price to be paid. In all these matters the legislati ve judgment is entitled to great weight. It will be for the aggrieved party to clearly satisfy the Court that the basis adopted by the legislature has no reasonable relationship to the value of the property acquired or that the "amount" to be paid has been arbitrarily fixed or that the same is an illusory return for the property taken. So long as the basis adopted for computing the value of the property is relevant to the acquisition in q ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s are protected by the principles of natural justice. 753. For the reasons mentioned above, we are unable to accept the contention urged on behalf of the petitioners that Section 2 of the 25th Amendment Act, 1971 is invalid. 754. This takes us to Section 3 of the 25th Amendment Act which now stands as Article 31C of the Constitution. This Article empowers the Parliament as well as the Local Legislatures to enact laws giving effect to, the policy of the State towards securing the principles specified in Clause (b) or Clause (c) of Article 39, completely ignoring in the process, Articles 14, 19 and 31. Further it lays down that if the law in question contains a declaration that it is for giving effect to such policy, that Jaw shall not be called in question in any court on the ground that it does not give effect to such policy. The proviso to that Article prescribes that where such law is made by the legislature of a State, the provisions of Article 31C shall not apply thereto unless such law, having been reserved for the consideration of the President has received his assent. This Article has two parts. The first part says that laws enacted by Parliament as well as by the Local Le ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to only a few of the citizens but for all. The Constituti on visualizes our society as a whole and contemplates that every member of the society should participate in the freedoms guaranteed. To ignore Part IV is to ignore the substance provided for in the Constitution, the hopes held out to the Nation and the very ideals on which our Constitution is built Without faithfully implementing the Directive Principles, it is not possible to achieve the Welfare State contemplated by the Constitution. A society like ours steeped in poverty and ignorance satisfying the minimum economic needs of every citizen of this country. Any Government which fails to fulfil the pledge taken under the Constitution cannot be said to have been faithful to th e Constitution and to its commitments. 757. Equally, the danger to democracy by an over emphasis on duty cannot be minimised. Kurt Reizler, a German Scholar, from his experience of the tragedy of the Nazi Germany warned: If...these duties of man should be duties towards the "public welfare" of the "society" and the State, and rights are made conditional on the fulfilment of these duties, the duties will uproot the rights. The righ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n be used to stifle the freedom of speech, freedom to assemble peaceably, freedom to move freely throughout India, freedom to reside and settle in any part of India, freedom to acquire, hold and dispose of property and freedom to practise any profession or carry on any occupation, trade or business. The power conferred under that provision is a blanket power. Even a small majority in a legislature can use that power to truncate or even destroy democracy. That power can be used to weaken the unity and integrity of this country. That Article is wholly out of tune with our Constitution. Its implications are manifold. There is force in the contention of the petitioners that this Article has the potentiality of shaking the very foundation of our Constitution. 761. What is the nature of the power conferred under Article 31C ? It is claimed to have empowered Parliament and the State Legislatures to enact laws pro tanto abrogating Articles 14, 19 and 31. A power to take away directly or indirectly a right guaranteed or a duty imposed under a Constitution, by an ordinary law, is a power to pro tanto abrogate the Constitution. If the legislature is empowered to amend the Constitution by ord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The power to amend the Constitution was exclusively given to the Parliament and to no other body. The manner of exercising that power is clearly prescribed. Article 31C gives a very large power to the State Legislatures as well as to Parliament to pro tanto amend the Constitution by enacting laws coming within its ambit. To put it differently, Article 31C permits the State Legislatures and the Parliament to enact Constitution-breaking laws by a simple majority vote of the members present and voting, if the rule regarding quorum is satisfied. 763. It cannot be said that Article 31C is similar to Articles 4, 169, Paragraph 7 of Schedule V and Paragraph 21 of Schedule VI. Each one of those Articles makes it clear that the laws passed under those Articles are not to be deemed to be an amendment of the Constitution for the purpose of Article 368. Those laws cannot affect the basic features of the Constitution. They operate within narrow fields. 764. The learned Advocate-General of Maharashtra contended that Article 31C lifts the ban placed on the State Legislatures and Parliament under Articles 14, 19 and 31. It is true that there are several provisions in the Constitution which lif ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Garnett : 66 L. Ed. p. 595(511)=258 U.S.13. This Amendment (19th Amendment) is in character and phraseology precisely similar to the 15th. For each the same method of adoption was pursued. One cannot be valid and the other invalid. That the 15th is valid...has been recognised and acted upon for half a century.... The suggestion that the 15th was incorporated in the Constitution not in accordance with law, but practically as a war measure which has been validated by acquiescence cannot be entertained. 766. These observations do not lay down any principle of law. The validity of the 19th Amendment was upheld on various grounds and not merely because the 15th amendment was upheld. 767. The laws enacted under Article 31A by their very nature can hardly abrogate the rights embodied in Articles 14, 19 and 31. Those laws can encroach upon the rights guaranteed under Articles 14, 19 and 31 only to the extent necessary for giving effect to them. The laws made must be those made under the topics of legislation mentioned in Article 31A. Hence the encroachment of the rights guaranteed under Article 14, 19 and 31 must necessarily be incidental. If the encroachment is found to be excessive, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or the" topics mentioned therein. But that ratio cannot be effectively applied when we come to laws made under Article 31C. The reach of Article 31C is very wide. It is possible to fit into the scheme of that Article almost any economic and social legislation. Further, the Court cannot go into the question whether the laws encted do give effect to the policy set out in Article 39(b) and (c). We were told on behalf of the Union and the States that it is open to the courts to examine whether there is a nexus between the laws made under Article 31C and Article 39(b) and (c) and all that the courts are precluded from examining is the effectiveness of the law in achieving the intended purpose. But, such a power in its very nature is tenuous. There can be few laws which can be held to have no nexus with Article 39(b) and (c). At any rate, most laws may be given the appearance of aiming to achieve the objectives mentioned in Article 39(b) and (c). Once that facade is projected, the laws made can proceed to destroy the very foundation of our Constitution. Encroachment of valuable Constitutional guarantees generally begins imperceptibly and is made with the best of intentions but, once ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... legislature and to that legislature only. No toubt a body with a power of legislation on the subjects entrusted to it so ample as that enjoyed by a Provincial Legislature in Canada, could, while preserving its own capacity intact, seek the assistance of subordinate agencies, as had been done in Hodge v. The Queen 19 App. Cas. 117 the Legislature of Ontario was held entitled to entrust to a Board of Commissioners authority to enact regulations relating to Tavernes; but it does not follow that it can create and endow with its own capacity a new legislative power not created by the Act to which it owes its own existence. Their Lordships do no more than draw attention to the gravity of the Constitutional questions which thus arise. 772. In Queen v. Burah, (1878) 5 I.A. 178 at 194 the Judicial Committee observed: Their Lordships agree that the Governor General in Council could not, by any form of enactment, create in India, and arm with general legislative authority, a new legislative power, not created or authorised by the Councils' Act. 773. We respectfully agree with these observations. From these observations it follows that Parliament was incompetent to create a new power-a powe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is therefore asked and no one can doubt that it is a formidable question, why for a quarter of a century no litigant has attacked the validity of this obviously illegitimate unions. Why in Alexannder's case (1918) 25, C.L.R. 434) itself was no challenge made ? How came it that in a series of cases, which are enumerated in the majority and the dissentient, judgments it was assumed without question that the provisions now impugned were valid ? It is clear from the majority judgment that the learned Chief Justice and the Judges who shared his opinion were heavily pressed by this consideration. It could not be otherwise. Yet they were impelled to their conclusion by the clear conviction that consistently with the Constitution the validity of the impugned provision could not be sustained. Whether the result would have been different if their validity had previously been judicially determined after full argument directed to the precise question and had not rested on judicial dicta and common assumption it is not for their Lordships to say. Upon a question of the applicability of the doctrine of stare decisis to matters of far reaching Constitutional importance they would imperatively req ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alidity of the 29th Amendment Act, 1972. Contentions relating to the 29th Amendment Act of the Constitution lie within narrower limits. The only plea taken was that if any of the provisions in the two Acts included in the IXth Schedule to the Constitution by means of the 29th Amendment Act does not satisfy the requirements of Article 31A(1)(a), the said provision does not get the protection of Article 31-B. 780. As a result of the 29th Amendment Act, the Kerala Land Reforms (Amendment) Act, 1969, (Kerala Act 33 of 1969) and Kerala Land Reforms (Amendment) Act, 1971 (Kerala Act 25 of 1971) were added as items 65 and 66 in the IXth Schedule of the Constitution. The IXth Schedule is an appendage to Article 31-B, which says: Without prejudice to the generality of the provisions contained in Article 31A none of the Acts and Regulations specified in the Ninth Schedule nor any of the provisions thereof shall be deemed to be void, or ever to have become void, on the ground that such Act, Regulation or provision is inconsistent with or takes away or abridges any of the rights conferred by, any provisions of this Part and notwithstanding any judgment, decree or order of any court or tribuna ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 31-A should not be restricted in its application by reason of anything contained in Article 31-B and are in no way calculated to restrict the application of the latter article or of the enactments referred to therein to acquisition of "estates". 783. In Vishweshwar Rao v. The State of Madhya Pradesh (1952) S.C.R. 1020 Mahajan J. (as he then was) reiterated the same view. He observed: It was contended that Article 31-B was merely illustrative of the rule stated in Article 31-A and if Article 31-A had no application, that article also should be left out of consideration.... On the basis of the similarity of the language in the opening part of Article 31-B with that of Sub-section (2) of Section 2 of the Defence of India Act "without prejudice to the generality of the provisions contained in Article 31-A", it was urged that Article 31-B was merely illustrative of Article 31- A and as the latter was limited in its application to estates as defined therein, Article 31-B was also so limited. In my opinion, the observations in Sibnath Bannerjee's case far from supporting the contention raised, negatives it. Article 31-B specifically validates certain Acts mentioned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Xth Schedule, it must satisfy the requirements of Article 31- A. 787. In the result we hold: (1) The power to amend the Constitution under Article 368 as it stood before its amendment empowered the Parliament by following the form and manner laid down in that Article, to amend each and every Article and each and every Part of the Constitution. (2) The expression "law" in Article 13(2) even before Article 13 was amended by the 24th Amendment Act, did not include amendments to the Constitution. (3) Though the power to amend the Constitution under Article 368 is a very wide power, it does not yet include the power to destroy or emasculate the basic elements or the fundamental features of the Constitution. (4) The 24th Amendment Act did not enlarge the amending power of the Parliament It merely made explicit what was implicit in the original Article. Hence it is valid. (5)(A) The newly substituted Article 31(2) does not destroy the right to property because- (i) the fixation of "amount" under that Article should have reasonable relationship with the value of the property acquired or requisitioned; (ii) the principles laid down must be relevant for the purpose ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any amendment under Article 368. The Constitution 25th Amendment Act has amended Article 31(2) and also Article 31(2A). The effect of these two amendments with regard to Articles 31(2) and 31 (2A) is two-fold. First, no property shall be compulsorily acquired or requsitioned save for a public purpose and save by authority of law which provides for an amount which may be fixed by law or which may be determined in accordance with such principles. Secondly, nothing in Article 19(1)(f) shall affect any law as is referred t o in Article 31(2). The second part of the Constitution 25th Amendment Act is introduction of Article 31C which enacts that notwithstanding anything contained in Article 13 no law giving effect to the policy of the State towards securing principles prescribed in Clauses (b) and (c) of Article 39 shall be deemed to be void on the ground that it is inconsistent with or takes away or abridges any of the rights conferred by Articles 14, 19 and 31; and no law containing a declaration that it is for giving effect to such policy shall be called in question in any court on the ground that it does not give effect to such policy. By the Constitution 29th Amendment Act the Ker ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t ratio be upheld. Third, is there any limitation on the power to amend the Constitution. Fourth, was the 24th Amendment validly enacted. If it was, is there any inherent and implied limitation on that power under Article 368 as amended. 791. The scope and power under Article 368 as it stood prior to the Constitution (24th) Amendment Act to amend the Constitution falls for consideration. 792. Two principal questions arise. First, is the Constitution as well as an amendment to the Constitution law within the meaning of Article 13(2). Second, is there any implied and inherent limitation on the power of amendment apart from Article 13(2). 793. Mr. Palkhivala contends that the unamended Article 368 was subject to Article 13(2). It is said that amendment of the Constitution is law, and, therefore, any law which contravenes fundamental rights is void. It is also said that Article 368 does not prevail over or override Article 13. The four bars under Article 13 are said to be these. The bar is imposed against the State, that is to say the totality of all the forces of the State. Secon d, all categories of law are covered by the bar, whether they are Constitutional amendments or bye-laws ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The terms of Article 368 are general to empower Parliament to amend the Constitution without any exception. Article 13(2) construed in the context of Article 13 means that law in Article 13(2) would be relateable to exercise of ordinary legislative power and not amendment to the Constitution. 799. The Constitution Fourth Amendment Act came into existence on 5 October, 1963. The Constitution Seventeenth Amendment Act came into force on 20 June, 1964. By the Seventeenth Amendment Act Article 31A Clause (1) was amended by inserting one more proviso. A fresh Sub-clause (a) was substituted for original Sub-clause (a) of Clause (2) of Article 31 retrospectively. 44 Acts were added in the Ninth Schedule. The validity of the Seventeenth Amendment was challenged before this Court in Sajjan Singh case. 800. The main contention in Sajjan Singh case was that the power prescribed by Article 226 was likely to be affected by the Seventeenth Amendment, and, therefore, it was necessary that the special procedure laid down in the proviso to Article 368 should have been followed. The Seventeenth Amendment Act was said to be invalid because that procedure was not followed. 801. The majority view of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onings in the majority view arriving at the same conclusion. The majority view where Subba Rao, C.J., spoke was as follows: The power to amend the Constitution is derived from Articles 245, 246 and 248 of the Constitution and not from Article 368. Article 368 deals only with procedure. Amendment is a legislative process. Amendment is law within the meaning of Article 13. Therefore, if an amendment takes away or abridges rights conferred by Part III of the Constitution it is void. The Constitution First Amendment Act, the Constitution Fourth Amendment Act and the Constitution Seventeenth Amendment Act abridged the scope of fundamental rights. On the basis of earlier decisions of this Court the Constitution Amendment Acts were declared to be valid. On the application of the doctrine of prospective over-ruling the amendments will continue to be valid. Parliament will have no power from the date of this decision (meaning thereby the decision in Golak Nath case) to amend any of the provisions of Part III of the Constitution so as to take away or abridge the fundamental rights. The Constitution Seventeenth Amendment Act holds the field. Therefore, the Punjab Act and the Mysore Act cannot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he power to amend because there is no specific mention of amendment in Article 248 or in any Entry of List I. The Constitution is the fundamental law and without express power to affect change legislative power cannot effect any change in the Constitution. Legislative Acts are passed under the power conferred by the Constitution. Article 245 which gives power to make law for the whole or any part of India is subject to the provisions of the Constitution. If, however, power to amend is in Article 248 read with the residuary Entry in List I that power is to be exercised subject to the Constitution and it cannot change the Constitution which is the fundamental law. It is because of the difference between the fundamental law and the legislative power under the Constitution that the power to amend cannot be located in the Residuary Entry which is law making power under the Constitution. 809. Article 368 confers power on Parliament subject to the procedure provided therein for amendment of any provision of the Constitution, It is impossible to introduce in the concept of amendment, any idea of improvement. The word "amendment" must be given its full meaning. This means that, b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tself. In a matter of Constitutional amendment it is not permissible to assume that there will be abuse of power and then utilise it as a test for finding out the scope of amending power. 812. The majority view in Golak Nath case was that an amendment of the Constitution pursuant to Article 368 is law within the meaning of Article 13(2), and, therefore, an amendment of the Constitution abridging fundamental rights will be void. The majority view was on the basis that there was conflict between Article 13(2) and Article 368 and this basis was the result of the nature and quality of fundamental rights in the scheme of the Constitution. 813. It is, therefore, to be seen at the threshold as to whether there is any conflict betwe en Article 13(2) and Article 368, namely, whether amendment of Constitution is law within the meaning of law in Article 13(2). Article 368 provides in clear and unambiguous terms that an amendment bill after compliance with the procedure stated therein and upon the President giving assent to such bill the Constitution shall stand amended in accordance with the terms of the bill. This Constitutional mandate does not admit or provide any scope for any conflict ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cle 13 occurs in the Constitution which is supreme. The impugned Act cannot enact that it will be valid notwithstanding the Constitution. 815. The real distinction is that Constitutional law is the source of all legal validity and is itself always valid. Ordinary law on the other hand must derive its validity from a higher legal source, which is ultimately the Constitution. Law in Article 13(2) of the Constitution could only mean that law which needs validity from a higher source and which can and ought to be regarded as invalid when it comes in conflict with higher law. It cannot possibly include a law which is self validating and which is never invalid. The definition of law in Article 13 enumerates more or less exhaustively all forms of law which need validation from higher source and which are invalid when they are in conflict with the Constitution. The definition does not mention Constitutional amendment. It is because an amendment being the Constitution itself can never be invalid. An amendment is made if the procedure is complied with. Once the procedure is complied with it is a part of the Constitution, 816. The expression "law" has been used in several Articles ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e existing Constitution would be void. This would result in absurdity. That is why Article 368 expressly provides for the amendment of the Constitution. 818. Mr. Palkhivala on behalf of the petitioner submitted that Constitution amendment was law, within Article 13(2) and was void to the extent to which it contravened the fundamental rights and Article 368 did not prevail over or override Article 13 for these reasons. Reference was made to the form of oath in the Third Schedule which uses the words "Constitution as by law established". This is said to mean that our Constitution was originally established by law and, therefore, every amendment thereto was likewise to be established by law. Article 13(1) is also said to cover Constitutional law because though Article 395 repealed the Indian Independence Act, 1947 and the Government of India Act 1935 the Constitutional laws of the Indian Princely States or some other Constitutional laws of British India were in existence. Therefore, the word "Law" in Article 13(2) will also include Constitutional law. The word "law" in Article 13(2) will in its ordinary sense embrace Constitutional law, and there is no r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction with Constitutional law it cannot have the same meaning as ordinary law. It is not arbitrary to use the word "law" in relation to Constitutional law in spite of its difference from ordinary law. 821. Mr. Palkhivala contended that Constitutional laws of Princely States and of British India prior to our Constitution survived as laws in force under Article 372. Article 372 became necessary to make a provision similar to Section 292 of the Government of India Act, 1935 following the repeal of the 1935 Act and the Indian Independence Act, 1947. The purpose of Article 372 is to negative the possibility of any existing law in India being held to be no longer in force by reason of the repeal of the law authorising its enactment. A saving clause of the type of Article 372 is put in to avoid challenge to laws made under the repealed Constitution. The total volume of law in the then British India had the legal authority up to 14 August 1947 by reason of the Government of India Act 1935. The Government of India Act 1935 with adaptations and the Indian Independence Act 1947 preserved the authority of those laws upto 25 January 1950. In so far as it is indisputable that the Gove ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... subordinate laws subject to the provisions of our Constitution and this position is clear from the language of Article 372. 824. In a broad sense law may include the Constitution and the law enacted by the legislature. There is however a clear demarcation between ordinary law in exercise of legislative power and Constitutional law which is made in exercise of constituent power. Therefore, a power to amend the Constitution is different from the power to amend ordinary law. It was said by Mr. Palkhivala that legislative power is power to make law and constituent power is the power to make or amend Constitutional law and since law in its ordinary sense, includes Constitutional law the legislative power is the genus of which the constituent power is the species. The difference between legislative and constituent power in a flexible or uncontrolled Constitution is conceptual depending upon the subject matter. A Dog Act in England is prima facie made in exercise of legislative power. The Bill of Rights was made in the exercise of constituent power as modifying the existing Constitutional arrangement But this conceptual difference does not produce different legal consequences, since the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed by both Houses does not alter the status of Parliament to amend the Constitution as a Constituent Assembly and does not assimilate it to that of the Union legislature. At this stage it may be stated that in Shankari Prasad case it was said that law in general sense may include the Constitution and the procedure of amendment is assimilated to ordinary legislative procedure. Assimilation of procedure does not make both the procedure same. Nor are the two separate powers to be lost sight of. The Constituent Assembly which has summoned on 19 December, 1946 to frame a Constitution was also invested after independence with legislative power. It framed the Constitution as the Constituent Assembly. It enacted ordinary laws as legislature. Under Article V of the American Constitution the Congress functions not as a legislature but as a Constituent Assembly. In Australia when a Bill for amendment has to be passed by Commonwealth Parliament and then has to be submitted to the verdict of the electorate the process is not ordinary legislative process of the Commonwealth Parliament. In our Constitution when the amendment falls within the proviso to Article 368 it requires that the amendment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a law may be passed by majority of members present and voting at a sitting of each House and at a joint sitting of House, the quorum for the meeting of either House being one tenth of the total members of the House. 829. The legislative procedure is prescribed in Articles 107 to 111 read with Article 100. Article 100 states "save as otherwise provided in the Constitution all questions at any sitting of either House or joint sitting shall be determined by a majority of votes of the members present and voting". Though Article 368 falls into two parts of the Article is one integral whole as is clear from the words "the amendment shall also require to be ratified". The first part of Article 368 requires that a bill must be passed in each House (1) by majority of the total membership of that House and (2) by a majority of not less than two thirds of the members of that House present and voting. These provisions rule out a joint sitting of either House under Article 108 to resolve the disagreement between the two Houses. Again the majority required to pass a bill in each House is not a majority of members of that House present and voting as in Article 100 but a majo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Article 368". The power to amend under any of these four provisions is a specific power for specific amendments and not a legislative power contained in the Legislative List or Residuary Legislative List. 833. The amendment under Article 4 follows a law providing for the formation of new States and alteration of areas, boundaries and names of existing States. It is obligatory on Parliament to make amendment of Schedules 1 and 4 and it is necessary to make amendments which are supplemental, incidental and consequential. In making such a law in so far as it affects the State but not Union territory a special procedure has to be followed. 834. Under Article 169 which provides for the abolition or creation of a State legislative Council Parliament has power to make a necessary law on a resolution being passed by the State Legislative Assembly for such abolition or creation by a majority of the membership of the Assembly and by majority of not less than two thirds of the members present and voting. It Parliament makes such a law that law must make the necessary amendments to the Constitution. 835. Schedules 5 and 6 provide for the administration of the Scheduled and Tribal a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dicates that a constituent power was required to amend the fundamental rights. 838. The majority view has totally ignored the aspect that constituent power is located in Article 368, and, therefore, amendment under the Article is not a law within the meaning of Article 13(2). If Parliament is a constituted body as was said by the majority view in Golak Nath case it would be difficult to hold that such a body could bring about a Constituent Assembly. The well-known principle that what cannot be done directly cannot be achieved indirectly will establish the basic infirmity in that majority view. If fundamental rights can be abridged by Parliament calling a Constituent Assembly under the Residuary Entry such Constituent Assembly will be a body different from Parliament and will frame its own rules of business and Article 368 cannot have any application. That will have a strange and startling result. 839. In the scheme of the Constitution containing Article 368 a Constituent Assembly will be called extra Constitutional means and not one under the Constitution. A Constitution can be amended only in accordance with the process laid down in the Constitution. No other method is Constitut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... strial Arbitration Act of 1916 was contrary to the provisions of the Constitution of Queensland 1867. The Industrial Arbitration Act of 1916 by Section 6 Sub-section (6) authorised the Governor to appoint any Judge of the Court of Industrial Arbitration to be a Judge of the Supreme Court of Queensland and provided that a Judge so appointed shall have the jurisdiction of both offices and shall hold office as a Judge of the Supreme Court during good behaviour. The sub-section further provided that Judge of the Court of Industrial Arbitration shall hold office for seven years. The Governor in Council by commission reciting Section 6 Sub-section (6) appointed McCawley who was a Judge and the President of the Court of Industrial Arbitration to be a Judge of the Supreme Court during good behaviour. By Sections 15 and 16 of the Constitution of 1867 the period during which Judges of the Supreme Court were to hold office was during good behaviour. The contention was that the appointment of McCawley under the Industrial Arbitration Act 1916 for a limited period of seven years was invalid since the Act was inconsistent with the Constitution Act 1867 and further that the Act of 1916 could not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anto repeal the Constitution. The decision also established that a Constitution largely or generally uncontrolled may contain one or more provisions which prescribe a different procedure for amending the provisions of the Constitution. If this is prescribed the procedure for amendment must be strictly followed. 847. The legislature of Queensland was found to be master of its own household except in so far as its powers were restricted in special cases. No such restriction was establishe d in the case before the Privy Council. The legislature had plenary power there. The legislature was not required to follow any particular procedure or to comply with any specified conditions before it made any law inconsistent with any of the provisions of Constitutional document. 848. The contention of the respondent in McCawley case was that the Constitution of Queensland was controlled and that it could not be altered merely by enacting legislation inconsistent with its Articles but that it could be altered by an Act which in plain and unmistakable intention of the legislature to alter consequently gave effect to that intentio n by operative provisions. The Judicial Committee thought this Cons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion (2) of this section shall, to the extent of such contravention, be void. (4) In the exercise of its powers under this section Parliament may amend or repeal any of the provisions of this Order, or of any other Order of Her Majesty in Council in its application to the Island: Provided that no Bill for the amendment or repeal of any of the provisions of this Order shall be presented for the Royal Assent unless it has endorsed on it a certificate under the hand of the Speaker that the number of votes cast in favour thereof in the House of Representatives amounted to not less than two-thirds of the whole number of Members of the House (including those not present). Every certificate of the Speaker under this sub-section shall be conclusive for all purposes and shall not be questioned in any court of law. 851. The Judicial Committee found that there was a conflict between Section 55 of the Ceylon Constitution Order and Section 41 of the Bribery Amendment Act. The Privy Council found that Section 29(4) of the order was attracted but the requirements of Section 29(4) had not been complied with and, therefore, the appointment of the Bribery Tribunal was invalid. The certificate of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e" refers to express limitations as to power or manner and form of change. These words do not mean as Mr. Palkhivala contended that there are fundamental features of the Constitution which cannot be amended. 854. The legislature purported to pass a law which being in conflict with Section 55 of the Order in Council must be treated if it is to be valid, as an implied alteration of the Constitutional provisions about the appointment of judicial officers. Such alterations could only be made by laws which complied with the special legislative procedure laid down in Section 29(4). The provisions in Section 29(4) were found not to confer on the Ceylon legislature the general power to legislature so as to amend the Constitution by ordinary majority resolution which the Queensland legislature was found to have under Section 2 of the Queensland Constitution Act 855. Ranasinghe case shows that Parliament which by its own Act imposed procedural conditions upon the legislative process is no more limited or non-sovereign than a legislature which has such conditions imposed on it by the Constitutional instrument. A Constitutional instrument which places procedural restraints upon the form ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... laws in contravention of Section 29(2) void to the extent of contravention. Article 13(2) of our Constitution expressly makes law which takes away or abridges fundamental rights void to the extent of the contravention. Section 29(4) of the Ceylon Constitution dealing with the amendment of the Constitution does not expressly make void a law amending the Constitution. 858. It follows from McCawley case and Ranasinghe case that a legislature has no power to ignore the conditions of law making imposed upon it which regulate its power to make law. The Ceylon legislature had no general power to legislate so as to amend its general power by ordinary majority resolution such as Queensland legislature was found to have under Section 2 of the Queensland Constitution. Peace, order and good government in Section 29(1) of the Ceylon Constitution is not the same as amendment contemplated in Section 29(4) of the Ceylon Constitution. In Ranasinghe case the Judicial Committee referred to the social compact. The compact is this. The inhabitants of Ceylon accepted the Ceylon Constitution on the footing that the various rights conferred, liabilities imposed and duties prescribed under the law cannot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Ceylon Constitution. It includes both legislative and constituent power. Sub-sections (2) and (3) of Section 29 are not the grant of power but limitation on power. Its terms show that limitation is at any rate on the legislative power of enacting laws contrary to Sub-sections (2) and (3) of Section 29. If Section 29(1) is a composite legislative and constituent power and Sub-section (2) and (3) are a restraint on legislative power the constituent power under Sub-section (4) remains unaffected. The sequiter is that Section 29(4) is consistent only with the view that so far as amendment of Sub-sections (2) and (3) is concerned amendment is permited and there is no limitation on constituent power under Section 29(4). The Privy Council took the widest view of the amending power. In fact the narrower view was not argued. 861. Our Constitution in Article 13(2) by its express declaration with reference to law and the State widely defined has no higher efficacy in rendering a law in contravention of its terms void than the opening words of Article 245 have in rendering a law void in contravention of term mentioned therein. Therefore, in treating Article 13(2) as having that effect in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s that an order of the President was not a law within the meaning of Article 13(2). In Mohd. Yakub v. State of Jammu & Kashmir (1968) 2 S.C.R. 227 the majority view of the Constitution Bench was that an order of the President under Article 359 was not law within the meaning of Article 13(2). There is no distinction between Article 358 and Article 359(1). Article 358 by its own force suspends the fundamental rights guaranteed by Article 19. Article 359(1) on the other hand does not suspend any fundamental rights of its own force but it gives force to order by the President declaring suspension of the enforcement of any fundamental right during the period of emergency. In Mohd. Yakub case it was said that it could not mean that an order under Article 359(1) suspending the enforcement of a particular fundamental right had still to be tested under the vary fundamental right which it suspended. Mohd. Yakub case establishes that the expression "law" in Article 13(2) is not all embracing in spite of the exclusive definition of law in Article 13(3)(a). 864. The word "law" appears in various Articles of our Constitution but not in Article 368. The reason is that the pow ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o that report was as follows: All existing laws, notification, regulations, customs or usages in force within the territories of the Union inconsistent with the rights guaranteed under this part of the Constitution shall stand abrogated to the extent of such inconsistency nor shall the Union or any unit may make any law taking away or abridging any such right. 869. Clause 2 of the annexure to the interim report was discussed in the Constituent Assembly on 29 April, 1947. Shri K. Santhanam moved an amendment to Clause 2. The amendment was as follows : In Clause 2 for the words "nor shall the Union or any unit make any law taking away or abridging any such right" the following be substituted: "Nor shall any such right be taken away or abridged except by an amendment of the Constitution". The amendment was accepted as will appear in Constituent Assembly Debates Vol. III p. 416. 870. In October, 1947 the Draft Constitution was prepared by the Constitutional Advisor. Clause 9(2) of the said Draft Constitution which later on corresponded to Article 13(2) of our Constitution was as follows: Nothing in this Constitution shall be taken to empower the State to make an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 74. The distinction between constitutent and legislative power in a written Constitution is of enormous magnitude. No provision of the Constitution can be declared void because the Constitution is the touchstone of validity. There is no touchstone of validity outside the Constitution. Every provision in a controlled Constitution is essential or so thought by the framers because of the protection of being amendable only in accordance with the Constitution. Every Article has that protection. The historical background of Article 13(2) indicates that the Constitution-makers dealt separately with legislative power by providing for the same in Part XI and entrusted the constituent power to authorities mentioned in Article 368 and that authority has the same power as the Constituent Assembly because it has not put any fetter upon it. The draft Article 305 which provided for a limitation as to time for amendment of certain matters was eventually deleted. If the framers of the Constitution wanted to forbid something they would say so. 875. The vitality of the constituent power not only indicates that the Constitution is in th e words of Maitland the suprema potestas but also the fact that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the touchstone. The constituent power is sui generis. The majority view in Golak Nath case that Article 13(2) prevails over Article 368 was on the basis that there was no distinction between constituent and legislative power and an amendment of the Constitution was law and that such law attracted the opening words of Article 245 which in its turn attracted the provisions of Article 13(2). Parliament took notice of the two conflicting views which had been taken of the unamended Article 368, took notice of the fact that the preponderating judicial opinion, namely, the decisions in Shankari Prasad case Sajjan Singh case and the minority views of five learned Judges in Golak Nath case were in favour of the view that Article 368 contained the power of amendment and that power was the constituent power belonging to Parliament Wanchoo, J. rightly said in Golak Nath case that the power under Article 368 is a constituent power to change the fundamental law, that is to say, the Constitution and is distinct from ordinary legislative power. So long as this distinction is kept in mind Parliament will have power under Article 368 to amend the Constitution and what Parliament does under Article ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ced by Mr. Palkhivala on American Jurisprudence 2d. Vol. 16 Article 59 at pp. 231-232, Article 72 at p. 251, Article 287 at pp. 270-71 and Article 88 at pp. 273-74 in support of these propositions. First, questions of Constitutional construction are in the main governed by the same general principles which control in ascertaining the meaning of all written instruments particularly statutes. External aids or arbitrary rules applied to the construction of a Constitution are of uncertain value and should be used with hesitation and circumspection. Second, Constitutions are general and many of the essentials with which Constitutions treat are impliedly controlled or dealt with by them and implication plays a very important part in Constitutional construction. What is implied is as much a part of the instrument as what is expressed. Third, a Court may look to the history of the times and examine the state of things existing when the Constitution was framed and adopted. The Court should look to the nature and object of the particular powers, duties and rights in question with all the light and aids of the contemporary history. Fourth, proceedings of conventions and debates are of limited ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... conferred by the four provisions, namely, Article 4 read with Articles 2 and 3, Article 169, paragraphs 7 and 21 in Schedules 5 and 6 is a limited power. It is limited to specific subjects. The exercise of the power of amendment under those four provisions, if treated by Articles themselves, is an uncontrolled power since the power can be exercised by an ordinary law. But as a part of the Constitution the power is a subordinate power because these Articles themselves are subject to the amending provisions of Article 368. Article 368 is the only provision of the Constitution which provides for the amendment of this Constitution which means the Constitution of India and every part hereto. It may be mentioned that in construing Article 368 the title of the part "Amendment of the Constitution" is an important aid to construction. The marginal note which speaks of the procedure of amendment is not complete by itself because the procedure when followed results in the product, namely, an amendment of the Constitution which is not only a matter of procedure. 885. Second, these four provisions which are in the same terms, namely, "no such law shall be deemed to be an amendme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... quot; in Article 368 will have a narrower meaning. The expression "amendment" has been used in several Articles of the Constitution. These are Articles 4(1) and (2), 108(4), 109(3), and 4, 111, 114(2), 169(2), 196(2), 198(3) and (4), 200, 201, 204(2), 207(1), (2), 240(2), 274(1), 304(b) and 349. In every case amendment is to be by way of variation, addition or repeal. Again, different expression have been used in other Articles. In Article 35(b) the words are alter, repeal. In Article 243(1) the words are repeal or amend. In Article 252(2), the expression is amend or repeal. In Article 254(2) proviso the words are add to, amending, variation or repeal. In Article 320(4) the words are such modifications whether by way of repeal or amendment. In Article 372(1) the words are altered or repealed or amended. In Article 372(2) the words are such adaptations and modifications by way of repeal or amendment. In Article 392(1) the expression is such adaptations by way of modification, addition or commission. Again, in Article 241(2) the words are modification or exceptions. In Article 364 the words used are exceptions or modifications. In Article 370(1)(d) and (3) the words are mod ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in a written Constitution. First, the object and necessity of amendment in a written Constitution means that the necessity is for changing the Constitution in an orderly manner, for otherwise the Constitution can be changed only by an extra Constitutional method or by revolution, Second, the very object of amendment is to make changes in the fundamental law or organic law to make fundamental changes in the Constitution, to change the fundamental or the basic principles in the Constitution. Otherwise there will be no necessity to give that importance to the high amending power to avoid revolution. 893. The object of amendment is to see that the Constitution is preserved. Rebellion or revolution is an illegal channel of giving expression to change. The "consent of the governed" is that each generation has a right to establish its own law. Conditions change. Men Change, Opportunities for corresponding change in political institutions and principles of Government therefore arise. An unamendable Constitution was the French Constitution which by an amendment to the Constitution adopted in 1884 declared that the National Assembly shall never entertain a proposal for abolition o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Constitution. 897. The people expressed in the Preamble to our Constitution gave the Constitution including the power to amend the Constitution to the bodies mentioned in Article 368. These bodies represent the people. The method to amend any part of the Constitution as provided for in Article 368 must be followed. Any other method as for example convening Constituent Assembly or Referendum will be extra Constitutional or revolutionary. In our Constitution Article 368 restricts only the procedure or the manner and form required for amendment but not the kind or the character of the amendment that may be made. There are no implied limitations to the amending power. The Attorney General summed up pithily that the Constitution Acts not only for the people but on the people. 898. The Attorney General relied on several American decisions in support of these propositions. First, the word "amendment" does not mean improvement. The view in Livermore v. Waite 102 Cal. 118 of a single learned Judge that amendment means improvement was not accepted in Edwards v. Lesseur South Western Reporter Vol. 33, p. 1130. Second, ratification by people of States would be void when a federal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... made. Whitehall v. Elkins 389 U.S. 54. 899. Except for special methods of amendment in a rigid or controlled Constitution although the methods may vary in different Constitutions and except for express limitations, if any, in rigid or controlled Constitutions, the meaning and scope of the amending power is the same in both the flexible and rigid forms. 900. The flexible Constitution is one under which every law of every description can be legally changed with the same case and in the same manner by one and the same body. Laws in a flexible Constitution are called Constitutional because they refer to subjects supposed to affect the fundamenal institutions of the State, and not because they are legally more sacred or difficult to change than other laws. 901. A rigid Constitution is one under which certain laws generally known as Constitutional or fundamental laws cannot be changed in the same manner as ordinary laws. The rigidity of the Constitution consists in the absence of any right of the legislatures when acting in its ordinary capacity to modify or repeal definite laws termed Constitutional or fundamental. In a rigid Constitution the term "Constitution" means a par ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fect the organic structure of the State. These processes of change are the evolution of Constitution. 905. The background in which Article 368 was enacted by the Constituent Assembly has an important aspect on the meaning and scope of the power of amendment. 906. On 12 November, 1946 Sir B.N. Rau Constitutional Adviser prepared a brochure containing Constitution of the British Commonwealth Countries and the Constitutions of other countries. Different countries having different modes of amendments were referred to. In the same volume the fundamental rights under 13 heads were extracted from 13 selected countries like U.S.A., Switzerland, Germany, Russia, Ireland, Canada, Australia. Two features follow from that list. First, there is no absolute standard as to what constitutes fundamental right. There is no such thing as agreed fundamental rights of the world. Second, fundamental rights which are accepted in our Constitution are not superior to fundamental rights in other Constitutions nor can it be said that the fundamental rights are superior to Directive Principles in our Constitution. 907. On 17 March, 1947 a questionnaire was circulated under the subject as to what provisions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amendment was to be passed in two Houses by a clear majority of the total membership of each House. Another proposed amendment No. 210 was that for a period of three years from the commencement of the Constitution, any amendment certified by the President to be not one of substance might be made by a simple majority. This also' stated that it would include any formal amendment recommended by a majority of the Judges of the Supreme Court on the ground of removing difficulties in the administration of the Constitution or for the purpose of carrying out the Constitution in public interest. The third proposed amendment No. 212 was that no amendment which is calculated to infringe or restrict or diminish the scope of any individual rights, any rights of a person or persons with respect to property or otherwise, shall be permissible and any amendment which is or is likely to have such an effect shall be void and ultra vires of any legislatur e. It is noteworthy that this amendment was withdrawn. See Constituent Assembly Debates Vol. IX p. 1665. 911. In the first category the framers devised amendment by Parliament by a simple majority. These are Articles 2 and 4 which deal with States. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... id that where plain and clear words occur there is no difficulty but where there is doubt and ambiguity contemporaneous and practical exposition is a great weight. In The Automobile Transport (Rajasthan) Ltd. v. The State of Rajasthan and Ors. (1963) 1 S.C.R. 491 this Court took notice of the feature that Constitution makers had deep knowledge of Constitutions and Constitutional problems of other countries. 915. Mr. Seervai relying on British Coal Corporation v. King (1935) A.C. 500 submitted that in interpreting a constituent or organic statute that construction most beneficial to t he widest possible amplitude of powers must be adopted. A strict construction applicable to penal or taxing statute will be subversive of the real intention of Parliament if applied to an Act passed to ensure peace, order and good government. Largest meaning is given to the allocated specific power. If there are no limitations on the power it is the whole power. Grant of power of amendment cannot be cut down except by express or implied limitations. The conclusion is that the meaning of the word amendment is wide and not restricted. 916. The contention of Mr. Palkhivala on behalf of the petitioner is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ament can reduce India to a status which is neither sovereign nor democratic nor republic and where the basic human rights are conspicuous by their absence. 918. Mr. Palkhivala submits that the principle of inherent or implied limitations on power to amend the controlled Constitution stems from three basic features. First, the ultimate legal sovereignty resides in the people. Second, Parliament is only a creature of the Constitution. Third, power to amend the Constitution or destroy the essential features of the Constitution is an application of ultimate legal sovereignty. 919. Mr. Palkhivala enumerated 12 essential features. These were as follows : (1) The supremacy of the Constitution. (2) The sovereignty of India. (3) The integrity of the country. (4) The democratic way of life. (5) The republican form of Government. (6) The guarantee of basic human rights elaborated in Part III of the Constitution. (7) A secular State. (8) A free and independent judiciary. (9) The dual structure of the Union and the States. (10) The balance between the legislature, the executive and the judiciary. (11) a Parliamentary form of Government as distinct from the presidential form of Government. (1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 368 was enacted by the Constituent Assembly to show that any limitation on the amending power was never in controversy. The only controversy was regarding the degree of flexibility of an amendment of all the provisions of the Constitution. Our Constitution has adopted three methods of amendment of the Constitution. Certain provisions of the Constitution may be amended by a simple majority in Parliament. Others may be amended by two-thirds majority. The third category relates to provisions where amendments must be ratified by one half of the States. This scheme strikes a good balance by protecting the rights of the States while leaving the remainder of the Constitution easy to amend. Of the three ways of amending the Constitution two are laid down in Article 368 itself and the third is provided for in about 24 other Articles. 923. The Constitutional Adviser incorporated in his draft Constitution prepared by him in October, 1947 a recommendation contained in the supplementary Report of the Union Constitution Committee. Following the recommendation of the Advisory Committee he included a proviso that the provisions in the Constitution relating to the reservation of seats for the Musl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ution to suggest that inherent and implied limitations all spring from the Preamble. The Preamble is said not to be a part of the Constitution. The Preamble is said to be unalterable. Therefore, it is contended that other provisions which gave effect to the Preamble cannot be amended. 927. Reliance is placed on the decision of this Court in Berubari case (1960) 3 S.C.R. 250 in support of the proposition that the Preamble is not a part of the Constitution. The conclusion drawn is that no amendment of the Constitution inconsistent with the Preamble can be made. The Preamble is said to be an implied limitation on the power of amendment. This Court in Berubari case said that the Preamble has never been regarded as the source of any substantive power, because such powers are expressly granted in the body of the Constitution. This Court said "what is true about the powers is equally true about prohibitions and limitations". In Berubari case it was suggested that the Preamble to the Constitution postulated that like a democratic republican form of the Government the entire territory of India was beyond the reach of Parliament and could not be affected either by ordinary legisla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the cardinal rule of interpretation of any enactment, Constitution or other, that its spirit no less than its intendment should be collected primarily from the natural meaning of the words used. The words "procedure established by law" in Article 21 must be taken to refer to a procedure which had a statutory origin. The word "law" was said not to mean the immutable and universal principle of natural justice. The reasoning given by Patanjali Sastri, J. was "no procedure is known or can be said to have been established by such vague and uncertain concepts as the immputable and universal principles of natural justice". This Court in Gopalan case refused to read due process as an implication of the Constitution. 931. In the Kerala Education Bill 1957 case (1959) S.C.R. 995 Das, C.J. referred to the Preamble and said "to implement and fortify the supreme purpose set forth in the Preamble, Part III of our Constitution has provided for us certain fundamental rights". In the same case, Das, C.J. said "so long as the Constitution stands as it is and is not altere d, it is inconceiveably the duty of this Court to uphold the fundamental rights ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onstitution at the time of the Preamble, and, therefore, it can possibly have no relevance to the constituent power in the future, when that Constitution itself can be changed. The position would be the same so far as the Preamble is concerned whether the constituent power is exercised by the amending body provided for by the people themselves in the Constitution or by referendum if so provided for in the Constitution. The Attorney General supported his submission by relying on the views of Canaway and Wynes on the similar interpretation of Section 128 of the Australian Constitution. 936. Canaway in the Failure of Federalism in Australia in discussing Section 128 of the Australian Constitution under the heading "Alteration of the Constitution" expresses the view that the section must be read as a substantive grant of power to alter the Constitution and that the negative form of the section in no way detracts from the amplitude of that power. Canaway further says that it is not permissible to refer to the Preamble in connection with the effect of Section 128 and if nevertheless such reference is made there is nothing adverse to the conclusion that there is full power of a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e under Article 368 as it stood before the Constitution 24th Amendment Act is not only reading negative restrictions on the express power of amendment but is also putting the clock back. One of the salutary principles of construction of a statute is to be found in R.V. Burah 3 A.C. 889. It was a case to determine whether the prescribed limitations of a colonial legislature had been exceeded. The Judicial Committee said that a duty must be performed by looking to the terms of the instrument by which affirmatively legislative powers are created, and by which, negatively, they are restricted. "If what has been done is legislation within the general scope of the affirmative words which give power, and if it violates no express condition or restriction by which that power is limited, it is not for, any court of justice to enquire further or to enlarge constructively those conditions and restrictions". The maxim Expressum facit cessare taciturn was similarly applied in Webb v. Outrim 1907 A.C. 89. The theory of implied and inherent limitations can be best described as a subtle attempt to annihilate the affirmative power of amendment. Lord Halsbury in Fielding v. Thomas 1896 A.C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in interpreting Constitutions preclude limiting the language of the Constitution by political, juristic or social concepts independently of the language of the Constitution to be interpreted. This Court in Deep Chand v. State of Uttar Pradesh and Ors. (1959) Supp. 2 S.C.R. 8 relied on the test laid down in Queen v. Burah (1878) 5 I.A. 179 that the terms of the instrument by which affirmatively the powers are created, and by which they are negatively restricted are to be looked into. The Judicial Committee in Attorney General for Ontario v. Attorney General for Canada 1912 A.C. 571 tersely stated the legal principles as follows : "If the text is explicit the text is conclusive, alike in what it directs and what it forbids". This is the golden rule of construction of a written Constitution. 943. In Gopalan case 1950 S.C.R. 88 this Court was invited to read into the Constitution implications derived from the "spirit of the Constitution". Kania, C.J. said that to strike down the law on an assumed principle of construction would be "to place in the hands of the judiciary powers too great and too indefinite either for its own security or the protection of priva ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anguage of a statute unless it is necessary to do so to give the paragraph sense and meaning in its context. If a matter is altogether omitted from statute it is not allowable to insert it by implication. Where the language of an Act is clear and explicit, effect is to be given to it whatever may be the consequences. The words of the statute speak the intention of the legislature. Where the reading of a statute produces an intelligible result there is no ground for reading any words or changing any words according to what may be supposed intention of the legislature. If a statute is passed for the purpose of enabling something to be done but omits to mention in Terms some detail which is of great importance to the proper performance of the work which the statute has in contemplation the courts are at liberty to infer that the statute by implication empowers the details to be carried out. The implication is to empower the authority to do that which is necessary in order to accomplish the ultimate object. 946. The implication sought to be raised by Mr. Palkhivala is for the purpose of reading negative words into Article 368 to destroy the positive power to amend. The provisions of o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned in Article 368 as liable to be changed. Article 141 may also be changed. Chapter I of Part XI and the Seventh Schedule (legislative relations between Union and the States) may be changed. The representation of the States in Parliament (Articles 80 and 81) may be changed. The number of representation may be increased or reduced. The method of election of such representatives as Parliament may by law prescribe and the number of the members of the House of the People may be increased or reduced. The method of election to the House of People may be changed. Finally the provisions of Article 368 itself, which is the most important part of the Constitution may be changed. 949. To find out essential or non-essential features is an exercise in imponderables. When the Constitution does not make any distinction between essential and non-essential features it is incomprehensible as to how such a distinction can be made. Again, the question arises as to who will make such a distinction. Both aspects expose the egregious character of inherent and implied limitations as to essential features or core of essential features of the Constitution being unamendable. Who is to judge what the essent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. As regards the Judge not only does he share the reasonableness of the reasonable man but his trained mind enables him to see certain aspects clearly. The process of judicial review of legislation as laid down by Courts is that the Court will star t with the presumption that laws enacted are reasonable. The objective standard is reasonableness. That is why in the law of contract reasonable price is to be ascertained by the Courts. In the law of torts the Courts find out what reasonable care is. In the law of property reasonable conduct is found out by the Courts to avoid evil consequences. Reasonableness is to be judged with reference to the right which is restricted when Article 19 is considered. 952. The American Courts evolved a test of reasonableness by the doctrine of substantive due process which means not that the law is unreasonable but that on political, social and economic grounds the majority of Judges consider that the law ought not be permitted to be made. The crucial point is that in contradistinction to the American Constitution where rights are couched in wide general terms leaving it to the Courts to evolve necessary limitations our Constitution limited it by pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... In the face of these express provisions it is impossible to hold that the Constitution does not contemplate an amendment of the so called essential features of the Constitution. The proviso confers that power with relation to the judiciary, the executive and the legislature, none of which could be said to be inessential. Indeed it is difficult to imagine that the Constitution contained any provision which was inessential. It need be hardly said that amendment not only means alteration, addition or repeal of provision but also deletion of some part, partial repeal and addition of a new part. 954. It was said that if our Parliamentary system was changed to a Presidential system it would be amending the core of our Constitution. But such a change is permissible under Article 368. Whether the people would adopt such an amendment is a different matter and does not fall for consideration here. The core of the federal form of Government in our country is greater power in the Union Parliament than States for preserving the integrity of the country. There can be changes by having a confederation or by conferring greater power on the Centre. Those contentions about unamendability of essenti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng judgments in Golak Nath case upheld the vital distinction between legislative and constituent powers and held that the decision in Shankari Prasad case and the majority decision in Sajjan Singh case were correct and that Parliament had power to amend the fundamental rights since an amendment of the Constitution was not law within the meaning of Article 13(2). These features give the reason why the expression "Parliament may in the exercise of constituent power" was introduced by the 24th Amendment. Parliament took notice of two conflicting views and the unamended Article 368. Parliament took notice of the preponderating judicial opinion in favour of the view that Article 368 contained the power of amendment and that power was a constituent power. Wanchoo, J. held that the power under Article 368 is constituent power to change the fundamental law, that is to say the Constitution. The constituent power under the Constitution belonged to Parliament because the Constitution gave it. The Amendment made explicit what the judgment in Shankari Prasad case and the majority judgment in Sajjan Singh case and the dissenting judgment in Golak Nath case said, namely that Parliament ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e amending power and on the doctrine of inherent and implied limitations on the amending power that essential features of the Constitution cannot be damaged or destroyed. Thirdly, does Clause (e) of the proviso to Article 368 enable Parliament and the requisite majority of the States to increase the power of amendment that was conferred by Article 368. 960. Article 368 in the unamended form contained power as well as self executing procedure which if followed by the prescribed authorities would result in an amendment of the Constitution. Both the Attorney General and Mr. Seervai rightly said that the words "Constitution shall stand amended" in Article 368 will exclude a simple repeal that is without substituting anything in place of the repealed Constitution. If the Constitution were totally repealed and a vacuum was created it could not be said that the Constitution stands amended. The Constitution means the mode in which a State is constituted or organised specially as to the location of sovereign power. The Constitution also means the system or body of fundamental principles according to which the nation, State and body politic is constituted and governed. In the case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the majority view was that Article 13(2) operated as a limitation on the power of amendment. The 24th Amendment took note of that decision and removed all doubts by amending Article 13(2) and providing a new Sub-article (4) there and also by amending Article 368 to the effect that Article 13(2) shall not apply to any amendment of the Constitution. If the express limitation which had been judicially held to constitute a bar to the amendment of fundamental rights could be removed by amending Article 368 under Clause (e) to the proviso any other alleged implied limitation can be similarly removed. 965. Secondly, judicial decisions show that by amending the Article conferring the power of amendment a greater power to amend the Constitution can be obtained than was conferred by the original Article. In Ryan case 1935 Irish Report 170 all the learned Judges excepting the Chief Justice held that by first amending Section 50 of the Irish Constitution which conferred the power of amendment subject to certain restrictions thereon so as to remove the restrictions contained in that section, the Irish Parliament effectively increased its power in the sense that an amendment could be made whic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the power to amend Article 368 is unlike perhaps some Constitutions which were before the Constituent Assembly when our Constitution was framed. Neither the American nor the Australian Constitution provided for any power to amend the amending provision itself. The Attorney General rightly contended that this forcefully expresses a clear and deliberate intention of the Constituent Assembly that apart from providing for a less rigid amending formula the Constituent Assembly took care to avoid the controversy in America as to whether express limitation on Article V of the American Constitution itself regarding equal suffrage of the States in the Senate could be amended or the controversy in Australia as to whether Section 128 of the Australian Constitution itself could be amended as there was no express limitation on such amendment. The Constituent Assembly provided in Clause (e) to Article 368 express and specific power of amendment of Article 368 itself. 968. The amplitude of the amending power in our Constitution stands in bold relief in comparison with Article V of the American Constitution, Section 128 of the Australian Constitution and Section 50 of the Irish Constitution none ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... damental rights would be a limitation on the power of the people. On behalf of the petitioner it was said that it was not necessary to decide the questions. Both the Attorney General and Mr. Seervai correctly said that the submissions made on behalf of the petitioner indicated that if essential features could be amended by the people the very fact that the Constituent Assembly did not include referendum as one of the methods of amendment and that the Constitution makers excluded no part of the Constitution from amendment established that the amendment of a written Constitution can be legally done only by the method prescribed by the Constitution. If the method of referendum be adopted for purpose of amendment as suggested by Mr. Palkhivala that would be extra Constitutional or revolutionary. The amending body to amend the Constitution represents the will of the people. 971. Therefore, as long as Article 368 may be amended under proviso (e) any amendment of the Constitution by recourse to referendum would be revolutionary. Mr. Palkhivala on behalf of the petitioner did not rely on the majority decision in Golak Nath case that the fundamental rights could be abridged or taken away o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ferred by Part III in their application to Armed Forces. Parliament may restrict or abrogate any of the rights conferred by Part III so as to ensure the proper discharge of the duties of the Armed Forces and the maintenance of discipline among them. Therefore, Article 33 shows that citizens can be denied some of these rights. If these are natural rights these cannot be abrogated. Article 34 shows that Parliament may by law indemnify any person in respect of any act done by him in connection with the maintenance or restoration of order in any area where martial law was in force or validate any sentence passed, punishment inflicted, forfeiture ordered or other act done under martial law in such area. Article 34 again shows restriction on rights conferred by Part III while martial law is in force in any area. The dominant concept is social good. Where there is no restraint the society fails. 975. Articles 352 and 358 also illustrate as to how while the proclamation of emergency is in operation provisions of Article 19 are suspended during emergency. The framers of the Constitution emphasised the social content of those rights. The basic concept of fundamental right is therefore a soc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... particular religion. Article 28 contemplates freedom as to attendance at religious instruction or religious worship in certain educational institutions. Article 29 deals with protection of interests of minorities. Article 31(2) prior to the Constitution 25th Amendment Act spoke of payment of just equivalent for acquisition or requisition of property. Article 31(4) deals with legislation pending at the commencement of the Constitution. Articles 31(5) and (6) save certain types of laws. Article 31A saves laws providing for acquisition of estates etc. Article 32 confers right to move the Supreme Court. 978. The Constitution is the higher law and it attains a form which makes possible the attribution to it of an entirely new set of validity, the validity of a statute emanating from the sovereign people. Invested with statutory form and implemented by judicial review higher law becomes juristically the most fruitful for people. There is no higher law above the Constitution. 979. Mr. Palkhivala relied on an Article by Conrad on Limitation of Amendment Procedure and the Constitutional Power. The writer refers to the West German Provincial Constitution which has expressly excluded basic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... udicial review has been considered as a progress in Constitutional theory made between Declaration of Independence and the Federal Convention at Philadelphia. 983. On the one hand there is a school of extreme natural law philosophers who claim that a natural order establishes that private capitalism is good and socialism is bad. On the other hand, the more extreme versions of totalitarian legal philosophy deny the basic value of the human personality as such. Outside these extremes, there is a far greater degree of common aspirations. The basic autonomy and dignity of human personality is the moral foundation of the teaching of modern natural law philosophers, like Maritain. It is in this context that our fundamental rights and Directive Principles are to be read as having in the ultimate analysis a common good. The Directive Principles do not constitute a set of subsidiary principles to fundamental rights of individuals. The Directive Principles embody the set of social principles to shape fundamental rights to grant a freer scope to the large scale welfare activities of the State. Therefore, it will be wrong to equate fundamental rights as natural, inalienable, primodial rights ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... because priorities have changed; that solutions to problems once considered right and inevitable are shown to be wrong or to require considerable modification; that judicial interpretation may rob certain provisions of their intended effect; that public opinion may shift from one philosophy of government to another. Changes in the Constitution are thus actuated by a sense of duty to the people to help them get what they want out of life. There is no destiny of man in whose service some men can rightfully control others; there are only the desires and performances and ambitions that men actually have. The duty to maximise happiness means that it is easier to give people what they want than to make them want what you can easily give. The framers of the Constitution did not put any limitation on the amending power because the end of a Constitution is the safety, the greatness and well being of the people. Changes in the Constitution serve these great ends and carry out the real purposes of the Constitution. 988. The way in which the doctrine of inherent and implied limitations was invoked by Mr. Palkhivala in interpreting the Constitution was that the test of power under the Constitu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eriment in our country. The roots of our democracy are in the country and faith in the common man. That is how Mr. Seervai said that between 1951 when this Court recognised in Sankari Prasad case unlimited power of amendment till Golak Nath decision in 1967 the normal democratic process in our country functioned as provided by the Constitution. 991. The principle underlying the theory of taking consequences into account is best expressed in Vacher & Sons v. London Society of Compositors 1913 A.C. 107, where it was said that if any particular construction in construing the words of a statute was susceptible to more than one meaning, it was legitimate to consider the consequences which would result from any particular construction. The reason is that there are many things which the legislation is presumed not to have intended to bring about and therefore a construction which would not lead to any of these things should be preferred to one which would lead to one or more of them. 992. The doctrine of consequences has no application in construing a grant of power conferred by a Constitution. In considering a grant of power the largest meaning should be given to the words at the power ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... emonstrated by the judgment of Chief Justice Taft in Gross-man 69 L.Ed. 527 where it was said that if those who were in separate control of each of the three branches of Government were bent upon defeating the action of the other, normal operations of Government would come to a halt and could be paralysed. Normal operations of the Government assume that all three branches must co-operate if Government is to go on. Where the meaning is plain the Court must give effect to it even if it considers that such a meaning would produce unreasonable result. In the Bihar Land Reforms case 1952 S.C.R. 889 Mahajan, J. said that agrarian laws enacted by the legislature and protected by Articles 31(3) and (4) provided compensation which might appear to the Court unjust and inequitable. But the Court gave effect to Articles 31(3) and (4) because the results were intended and the remedy for the injustice lay with the legislature and not with the Court. The construction to avoid absurdity must be used with great caution. 995. In Grundt case 1948 Ch. 145 it was said in choosing between two possible meanings of ambiguouos words, the absurdity or the nonabsurdity of one conclusion as compared with ano ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is not relevant to the amending power in Article V of the American Constitution. This view relates to the legislative power that a written Constitution is a limitation upon the powers of the Government, namely, the legislature, the executive and the judiciary. 999. The other views of Cooley in Constitutional Limitations at pages 341-343, 345-348, 351-354 are these. First except where the Constitution has imposed limitations upon the legislative power it must be considered as practically absolute, whether it operates according to natural justice or not in any particular case. Second, in the absence of Constitutional restraint the legislative department of a State Government has exclusive and ample power and its utterance is the public policy of the State upon that subject, and the Courts are without power to read into the Constitution a restraint of the legislature with respect thereto. Third, if the Courts are not at liberty to declare statutes void because of their apparent injustice of impolicy, neither can they do so because they appear to the minds of the Judges to violate fundamental principles of republican Government, unless it shall be found that those principles are plac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thing which the Constitution was created to establish, which would change the distribution of power among the various departments of the Government, place additional limitations upon them, or abolish old guarantees of civil liberty and establish new ones. 1003. The Attorney General also relied on the view of Frierson published in 33 Harvard Law Review pp. 659-666 as a reply to Marbury. Frierson's view is that the security for the States was provided for by the provision for the necessity of ratification by threefourths of the States. The Constitution committed to Congress and not to the Courts the duty of determining what amendments were necessary. The rights of the States would certainly be safer in the hands of three-fourths of the States themselves. This is considered by the framers of the Constitution to ensure integrity of States. 1004. The Attorney General also relied on the view of McGovney published in Vol. 20 Columbia Law Review. McGovney points out a distinction between a political society or State on the one hand and governmental organs on the other to appreciate that Constitutional limitations are against governmental organs. The writer's view is that an individual ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... deprived of its equal suffrage in the Senate. The express limitation is to safeguard the equal representation of the smaller States in the Senate. The limitation can only be changed by unanimous consent of the States. 1007. The 18th Amendment was vigorously attacked in the National Prohibition Cases on the ground that it overstepped alleged implied limitations on the Constitution amending power. The arguments advanced were these. First, the 18th Amendment which introduced prohibition was not in fact an amendment for an amendment is an alteration or improvement of that which is already contained in the Constitution and the term is not intended to include any addition of entirely new grants of power. Secondly, the amendment was not an amendment within the meaning of the Constitution because it is in its nature legislation and that an amendment of the Constitution can only affect the powers of government and cannot act directly upon the rights of individuals. Third, that the Constitution in all its parts looks to an indestructible nation composed of indestructible States. The power of amendment was given for the purpose of making alterations and improvements and any attempt to change ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Constitution; and it transcends any limitations sought to be imposed by the people of a State. 1011. In United States v. Sprague 282 U.S. 716 a contention was advanced that the 10th Amendment recognised a distinction between powers reserved to the States and powers reserved to the people and that State legislatures were competent to delegate only the former to the National Government; delegation of the latter required action of the people through conventions in the several states. The 18th Amendment being of the latter character, the ratification by State legislatures was contended to be invalid. The Supreme Court rejected the argument. It found the language of Article V too clear to admit of reading any exceptions into it by implication. 1012. The decisions in Rhode Island v. Palmer 253 U.S. 350, Hawke v. Smith 253 U.S. 221, Leser v. Garnett 258 U.S. 130 and United States v. Sprague 282 U.S. 716 are all authorities for the proposition that there is no implied limitation on the power to amend. The 18th Amendment was challenged on the ground that ordinary legislation could not be embodied in a Constitutional amendment and that Congress cannot Constitutionally propose any amendmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t accept any implied limitation. Where the intention is clear there is no room for construction and no excuse for interpolation or addition. In Feigenspan v. Bodine 264 F. 186 it has been said when the people delegated the power of amendment to their representatives the power of amendment cannot be excluded in any way other than prescribed nor by any instrumentality other than there designated. 1016. Mr. Palkhivala relied on some Canadian decisions the Initiative and Referendum case 1919 A.C. 935, Switzmen v. Elbling 1957 Canada Law Reports 285, Rex v. Hess (1949) 4 Dominion Law Report 199; and Saumur v. City of Quebec and Attorney General of Quebec (1953) 4 D.L.R. 641 and Chabot v. School Commissioners of Lamorandiere and Attorney General for Quebec (1958) 12 D.L.R. 796, in support of three propositions. First, unlimited legislative jurisdiction of the Dominion Parliament in Canada is under inherent limitation by reason of the preamble to the British North America Act which states that the Constitution is similar in principle to the United Kingdom. Second, the Dominion legislature cannot detract from the basic rights of freedom of speech and political association which are availa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... had been submitted to voters from becoming an actual law if approved by the voters. The impugned Act set up a legislature different from that constituted by the B.N.A. Act and this the legislature had no power to do. 1018. The other Canadian decisions are based on three views. The first view is based on the preamble to the B.N.A. Act that the Provinces expressed their desire to be federally united into one Dominion, with a Constitution similar to that of the United Kingdom. The corollary extracted from the preamble is that neither Parliament nor Provincial legislatures may infringe on the traditional liberties because of the Preamble to the B.N.A. Act and a reference to British Constitutional History. The second view expressed in the decisions is that the basic liberties are guaranteed by implication in certain sectio ns of the B.N.A. Act. Section 17 establishes a Parliament for Canada. Section 50 provides that no House of Commons shall continue longer than five years. These sections are read by the Canadian decisions to mean that freedom of speech and freedom of political association should continue. The third view is that some rights find their source in natural law which cannot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hose in England. Thirdly, it has to be remembered that the Canadian Constitution has been developed through usage and conventions. 1024. None of these decisions relates to amendment of the Constitution. None of these decisions indicates that there is any inherent limitation on the amendment of the Constitution. The Preamble to the B.N.A. Act shows that the Canadian Constitution enjoined observance of fundamental principles in British Constitutional practice. The growth of the Canadian Constitution was through such usage and convention. Our Constitution is of a sovereign independent republican country. Our Constitution does not draw sustenance from any other Constitution. Our Constitution does not breathe through conventions and principles of foreign countries. 1025. There are no explicit guaranteed liberties in the British North America Act. In Canada the Constitutional issue in civil liberties legislation is simply whether the particular supersession or enlargement is competent to the Dominion or the Province as the case may be. Apart from the phrase "civil rights in the Province" in Section 92(13) there is no language in Sections 91 and 92 which even remotely expresse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed the Bill The Legislative Council again rejected the Bill. The Governor in accordance with the Parliamentary Bills Referendum Act 1908 issued regulations providing for the taking of the Referendum polls. It was argued that the Constitution ought to have been first amended. 1030. The questions for the opinion of the Court were : (1) Is the Constitution Act, Amendment Act of 1908 a valid and effective Act of Parliament? (2) Is the Parliamentary Bills Referendum Act of 1908 a valid and effective Act of Parliament ? (3) Is there power to abolish the Legislative Council of Queensland by an Act passed in accordance with the provisions of the Parliamentary Bills Referendum Act of 1908 ? (4) Was the Referendum valid ? 1031. The Colonial Laws Validity Act 1865 in Section 5 conferred full power on every representative legislature to make laws respecting the Constitution, powers and procedures of such legislature; provided that such laws shall have been passed in such manner and form as may from time to time be required by any Act of Parliament, letters patent, Order in Council, or colonial laws for the time being in force in the said colony. The Parliamentary Bills Referendum Act was he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aid that when a power is given to the Colonial legislature to alter the Constitution that must be read subject to the fundamental conception, that the Crown is not included in the ambit of such power. Those observations are made in the context of the provisions of the Colonial Laws Validity Act where a "colony" as defined to include all of Her Majesty's possessions abroad". The observations therefore mean that when power to alter the Constitution was conferred upon a colony which is a part of Her Majesty's possessions abroad it is reasonable to assume that such power did not include power to eliminate the Queen as a part of a colonial legislature. 1035. The representative character of the legislature does not involve any theory of implied limitation on the power of amendment. Such legislature as was emphasised by Issacs, J. shows that the limitation on the power of amendment flowed from express language of Section 5 of the Colonial Laws Validity Act and was not dependent upon any implication. 1036. In the State of Victoria case the validity of the Pay-Roll Tax Act, 1941 was impugned on the ground that it was beyond the legislative competence of the Commonwealth. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dance with the ordinary rules of Constitution. 1039. Mr. Palkhivala relied on some Irish cases in support of theory of implied and inherent limitations. 1040. In Rayan case 1935 Irish Report 170 the validity of amendment of Article 50 of the Irish Constitution which came into existence in 1922 fell for consideration. Article 50 provided that within 8 years from the commencement of the Constitution amendments to the Constitution were to be made by ordinary legislation. After the expiry of 8 years amendments were to be made by referendum. The other provision in Article 50 was that amendment "shall be subject to the provisions of Article 47" of the Constitution. Article 47 made provisions for the suspension in certain events of any Bill for a period of 90 days and for the submission of any bill so suspended to referendum if demand should be made. By an Amendment Act in 1928 reference to the provisions of Article 47 was repealed. In 1929 before the expiry of 8 years there was an amendment of the Constitution whereby the period of 8 years was changed to 16 years. Both the amendments were upheld. Amendment were challenged on two grounds : First, that many Articles of the Cons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ithin the terms of the Treaty might be made. Clause 2 of the Treaty provided that relations with the Imperial Parliament should be the same as the Canadian. By Amendment Act No. 6 of 1933 the words "within the terms of the Treaty" were deleted from Article 50. Thereafter Amendment Act No. 22 of 1933 was passed abrogating right of appeal to the Privy Council. 1043. The Judicial Committee in Moore case noticed that "Mr. Wilfrid Greene for the petitioners rightly conceded that Amendment Act No. 16 of 1929 which substituted for the 8 years specified in Article 50 as the period during which amendment might be made without a referendum a period of 16 years was regular and that the validity of the subsequent amendments could not be attacked on the ground that they had not been submitted to the people by referendum. 1044. It was argued by Mr. Greene in that case that the Constituent Assembly having accomplished its work went out of existence leaving no successor and no body in authority capable of amending the Constituent Act. The argument was in effect that the Constitution was a semi rigid Constitution that is one capable of being amended in detail in the different Artic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... imprisonment the minimum prescribed by the Criminal Law Act 1 of 1962. 1047. The Privy Council, held the legislation to be ultra vires on two grounds. The Acts could not be challenged on the ground that they were contrary to fundamental principles of Justice. The Colonial Laws Validity Act 1865 which provided that colonial laws should be void to the extent of repugnancy to an Act of the United Kingdom, and should not be void on the ground of repugnancy to the law of England did not leave in existence a fetter or repugnancy to some vague and unspecified law of natural justice. The Ceylon Independence Act 1947 conferred on the Ceylon Parliament full legislative powers of a sovereign independent State. The Acts were declared to be bad because they involved a usurpation and infringement, by the legislature of judicial powers inconsistent with the written Constitution of Ceylon. The silence of the Constitution as to the vesting of judicial power was inconsistent with any intention that it should pass to or be shared by the executive or the legislature. The ratio of the decision is that the legislature could not usurp judicial power. There is an observation at page 289 of the report tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the scat as a Member of Parliament. The words amend or repeal in Section 29(4) of the Ceylon Constitution were read by the Judicial Committee to cover an amendment or repeal by inconsistent act. The plain words amend or repeal did not admit ambiguity. 1050. To introduce into our Constitution the doctrine of implied and inherent limitations on the meaning of the word "amendment" by upholding the power to amend the essential features but not the core on the theory that only people can change by referendum is to rewrite the Constitution. The decisions in Ranasinghe case 1965 A.C. 172 and Kariappar case 1968 A.C. 717 are authorities for two propositions. First, that in the exercise of the pouter of amendment a controlled Constitution can be converted into an uncontrolled one. Second, the word "amendment" means alteration. In Ibralebbe case 1964 A.C. 900 the Judicial Committee said that if the Ceylon legislature abrogated the appeal to the Privy Council it would be an amendment of its judicial structure. 1051. The decision in Mangal Singh v. Union of India (1967) 2 S.C.R. 109 has been relied on by Mr. Palkhivala in support of the proposition that the power of am ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s for giving effect to such policy shall be called in question in any court on the ground that it does not give effect to such policy. It is provided that where such law is made by the legislature of a State the provisions of this Article shall not apply thereto unless such law having been reserved for the consideration of the President has received his assent. 1055. The basic controversy is really regarding the right to property and the acquisition of property by the State. The Constitution of India was intended to achieve political liberty on the one hand and economic and social, liberty on the other for all citizens of India. The Directive Principles in the Constitution are also fundamental in the governance of the country and it shall be the duty of the State to apply these principles in making laws. That is Article 37. It can be achieved by making changes in the economic and social structure of the society. 1056. The resolutions of the Congress in 1929, 1931, 1945 and the objective resolution of 22 January, 1947 and the resolution of All-India Congress Working Committee in 1947 are not only a remembrance of things past. In 1929 the Congress resolution was that it was essenti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e common detriment. It is the duty of the State to promote common good. If the motives for co-operating with others consist in the mere desire to promote their private good they would be treating their fellowmen as means only and not also an end. The notion of common good was needed to explain away the difference between the principles of reasonable self love and benevolence. The distribution of material resources is to subserve the common good. The ownership and control of the material resources is to subserve common good. The economic system is to work in such a manner that there is no concentration of wealth to the common detriment. Again, the economic system is to work in such a manner that the means of production are not used to the common detriment. 1059. The declaration of human rights on which Mr. Palkhivala relied for the unamendability of fundamental rights is rightly said by the Attorney General to be no impediment to the power of amendment nor to support the petitioner's contention regarding the inviolability of the right to property. For the purpose of promoting the general welfare in a democratic State the Directive Principles were said by the Attorney General to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e purposes could be acquired without compensation. The implication of the proviso to Article 31(2) is that the State may fix such an amount for acquisition of the property as may abridge or abrogate any of the other fundamental rights. Exercise of fundamental rights would be affected by the deprivation of property without compensation in the legal sense and the only exception to this power of the State is the case of educational institution dealt with in the proviso. Article 31(2) as a result of the Constitution (25th) Amendment Act will empower the State to fix an amount on a basis which need not be disclosed even to the members of the legislature and which may have no relation to the property sought to be acquired. The amount is not to satisfy any of the principles of compensation. It need not be paid in cash and it will yet not be considered to be a ground of challenge to the validity of law. Article 31(2) has nothing to do with estate, zamindaries, land reforms or agrarian reforms which are specifically dealt with by Article 31A. 1061. The right to acquire, hold and dispose of property under Article 19(1)(f) is subject under Article 19(5) to reasonable restrictions in the inte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y be acted upon by the legislature in fixing the amount may include considerations of social justice as against the equivalent in value of the property acquired. Considerations of social justice will include the relevant Directive Principles particularly in Article 39(b) and (c). These principles are to subserve the common good and to prevent common detriment. The question of adequacy has been excluded from Article 31(2) by the Constitution Fourth Amendment Act. It cannot be said that the legislature would be under the necessity of providing a standard to measure an adequacy with reference to fixing the amount. The Constitution does not allow judicial review of a law on the ground of adequacy of the amount and the manner as to how such amount is to be given otherwise than in cash. 1063. If the word "compensation" as it stood prior to the amendment of Article 31(2) must mean equivalent value in cash it is said by the Solicitor General that the concentration of wealth will remain unchanged and justice social, economic, and political amplified in Articles 39, 41, 42, 43, 45, 46 and 47 will be thwarted. The fulfilment of the Directive Principles is in a sense more fundamenta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sufficient not to damage the essence of that right. But under Article 31(2) after the 25th Amendment where the proviso did not apply it was said that the core or essence of the fundamental rights would be damaged or destroyed. 1066. The word "amount" in Article 31(2) after the 25th Amendment is to be read in the entire collocation of words. No law shall be called in question in any Court on the ground that the amount so fixed or determined is inadequate or the whole or part of it or any part of such amount is given in cash. In Article 31(2) the use of the word "amount" in conjunction with payment in cash shows that a sum of money is being spoken of. Amount is a sum meaning a quantity or amount of money, or, in other words, amount means a sum of money. 1067. Article 31(2) prior to as well as after the 25th Amendment indicates two alternatives to the legislatures either to specify the principles for determination of the amount or to fix the amount or "compensation" prior to the amendment. In fixing the amount or compensation the legislature is not required to set out in the law the principles on which compensation had been fixed in the unamended clause ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the State legislatures to defy the Constitution or damage or destroy the supremacy of the Constitution. Secondly, Article 31C subordinates fundamental rights to Directive Principles. The right to enforce fundamental rights is guaranteed under Article 32. The Directive Principles are not enforceable by reason of Article 37. Yet it is said that while giving effect to Directive Principles fundamental rights are abrogated. Thirdly, whereas an amendment of a single fundamental right would require a majority of at least two-thirds of the members of Parliament present and voting, a law within Article 31C which overrides and violates several fundamental rights can be passed by a simple majority. Fourthly, every fundamental right is an essential feature of the Constitution and Article 31C purports to take away a large number of those fundamental rights. Fifthly, the Court is precluded from considering whether law under Article 31C is such that it can possibly secure Directive Principles in question. Sixthly, no State legislature can amend the fundamental rights or any other part of the Constitution but Article 31C empowers the State legislaure to pass laws which virtually involve repeal o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t has in other Articles generally, namely, a statute passed by the legislature. 1073. It is true that such law may need details to be filled up by other agencies but the essential elements of Article 31C must be supplied directly by that enactment. A question arose with reference to Article 254 as to whether a clause of the Sugar Control Order 1955 made under the Essential Commodities Act had the effect of repealing the corresponding Uttar Pradesh State Law. This Court held that the power of repeal was vested in Parliament and Parliament alone could exercise it by enacting an appropriate provision in that regard. Parliament could not delegate the power of repeal to any executive authority. (See Ch. Tika Ramji and Ors. Etc. v. The State of Uttar Pradesh and Ors. 1956 S.C.R. 393). 1074. Article 31C is inextricably bound up with Article 39(b) and (c) because the purpose and the phraseology in both the Articles are essentially identifical. The legislative efforts to implement Directive Principles in Article 39 (b) and (c) were set in motion in some States to achieve reforms in land law. Articles 31A and 31B were introduced by the Constitution First Amendment Act 1951. The main reason ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve protection under Article 31C are laws for securing the Directive Principles of Articles 39(b) and (c). The nexus or connection between the law and the objectives set out in Article 39(b) and (c) is a condition precedent for the applicability of Article 31C. On behalf of the Union and the State it was not contended that whether there was such nexus or not was not justiciable. The real reason for making the declaration free from question in a Court of law on the ground that it does not give effect to such policy is to leave legislative policy and wisdom to the legislature. The legislative measure might not according to some views give effect to Directive Principles. Therefore, legislatures are left in charge of formulating their policy and giving effect to it through legislation. It is the assessment and judgment of such measures which is sought to be excluded from judicial review by the declaration. 1078. In order to decide whether a statute is within Article 31C the court may examine the nature and the character of legislation and the matter dealt with as to whether there is any nexus or the law to the principles mentioned in Article 39(b) and (c). If it appears that there no n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of public health. Article 33 speaks of law with regard to members of the Armed Forces charged with the maintenance of public order, so as to ensure the proper discharge of their duties and the maintenance of discipline among them and for that purpose the operation of some fundamental right in Part III is modified. 1081. The Solicitor General rightly said that similarly Article 31C creates a legislative field with reference to the object of legislation. It is similar to laws contemplated in Article 15(4), Article 31(5)(b)(ii) and Article 33. Each of these Articles carves out an exception to some Article or Articles conferring fundamental rights. The field carved out by the various Articles are of different dimensions. The entire process of exception of the legislative field from the operation of some of the Articles relating to fundamental rights is the mandate of the Constitution. It is wrong to say that the Constitution delegates power of amendment to Parliament or the States. As a result of the 25th Amendment the existing legislative field is freed from the fetters of some provisions of Part III of our Constitution on the legislative power. 1082. Article 31C substantially ope ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vely validated laws mentioned in Schedule 9 from challenge under Part III and also on the ground that they violated Section 299 of the Government of India Act, 1935. It may be stated here that Parliament which passed the Constitution First Amendment Act 1951 was the Constituent Assembly functioning as a legislature, till elections were held and a Parliament as provided for under the Constitution could be formed. Articles 31A and 31B carried out the intention of the framers of the Constitution as stated in Articles 31(4) and 31(6) that land legislation or agrarian reform was to be enforced and fundamental rights were not to be allowed to stand in the way of implementing the Directive Principles of State Policy contained in Article 39. The fundamental right conferred under Article 31(2) was subordinated to Article 39(b) and (c) in order to protect laws referred to in Article 31(4) and 31(6). When that object failed and the law was struck down under Article 14, Parliament gave effect to the policy underlying Articles 31(4) and 31(6) by excluding a challenge under every Article in Part III. In the Bihar Land Reforms case this Court said that the purpose behind the Bihar Land Reform Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to give expression to such law. Parts III and IV of the Constitution touch each other and modify. They are not parallel to each other. Different legislation will bring in different social principles. These will not be permissible without social content operating in a flexible manner. That is why in the 25th Amendment Article 31(2) is amended to eliminate the concept of market value for property which is acquired or requisitioned. 1088. If compensation means an amount determined on principles of social justice there will be general harmony between Part III and Part IV. Secondly, if compensation means market price then the concept of property right in Part III is an absolute right to own and possess property or to receive full price, while the concept of property right in Part IV is conditioned by social interest and social justice. There would be an inherent conflict in working out the Directive Principles of Part IV with the guarantee in Part III. That is why Clauses (4) and (6) of Article 31 illustrate the vital principle that to make effective a legislative effort to bring about changes in accordance with Directive Principles particularly those contained in Article 39(b) and (c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... restriction on such right. Social justice will require modification or restriction of rights under Part III. The scheme of the Constitution generally discloses that the principles of social justice are placed above individual rights and whenever or wherever it is considered necessary individual rights have been subordinated or cat down to give effect to the principles of social justice. Social justice means various concepts which are evolved in the Directive Principles of the State. 1095. The 25th Amendment has amended Article 31(2) and also introduced Article 31(2B) in order to achieve two objects. The first is to eliminate the concept of market value in the amount fixed for acquisition or requisition of the property. The second is to exclude in Clause (2B) of Article 31 the applicability of Article 19(1)(f). Articles 31A and 31B applied to acquisition and requisition of property. The purpose of Article 31C is to confer by Constitutional mandate power on Parliament and State to make laws for giving effect to Directive Principles. The significance of the total exclusion of Part III from Articles 31A and 31B is that it brings about in unmistakable manner the true relationship betw ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rns on whether the subject matter, falls within or without the jurisdiction of the legislature which passed it. But to make law, which contravenes the Constitution, Constitutionally valid is a matter of Constitutional amendment and as such it falls within the exclusive power of Parliament". Wanchoo, J. said of Article 31B "The laws had already been passed by the State legislature and it was their Constitutional infirmity, if any, which was being cured by the device adopted in Article 31B read with the Ninth Schedule.... Parliament alone could do it under Article 368 and there was no need for any ratification under the proviso for amendment of Part III is not entrenched in the proviso". 1099. The conclusiveness of declaration introduced by the 25th Amendment in a law under Article 31C is to be appreciated in the entire context of Article 31C. In removing restrictions of Part III in respect of a law under Article 31C there is no delegation of power to any legislature. There is only removal of restriction on legislative power imposed by Articles 14, 19 and 31. Article 31C does not confer any power to amend the Constitution. The exclusion of Article 31 is a necessary co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate that it is linked with the same subject matter as Article 31A. In the Bihar Land Reforms case Patanjali Sastri, C.J. said at pp. 914-915 of the report (1952 S.C.R. 889) that the opening words of Article 31B are only intended to make clear that Article 31A should not be restricted in 'its application by reason of anything contained in Article 31B and are not in any way calculated to restrict the application of the latter Article or of the enactments referred to therein to acquisition of estates. 1102. In Vishweshwar Rao v. State of Madhya Pradesh 1952 S.C.R. 1020 it was urged that Article 31B was merely illustrative of Article 31A and as the latter was limited in is application to estates as defined therein Article 31B was also similarly limited. That contention was rejected and it was said that Article 31B specifically validates certain Acts mentioned in the Schedule despite the provisions of Article 31A and is not illustrative of Article 31A but stands independent of it. 1103. Again, in Jeejibhoy v. Assistant Collector (1965) 1 S.C.R. 616 it was contended that Articles 31A and 31B should be read together and if so read Article 31B would only illustrate the cases that would o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nclusions. 1107. First, the power to amend the Constitution is located in Article 368. Second, neither the Constitution nor an amendment of the Constitution can be or is law within the meaning of Article 13. Law in Article 13 means laws enacted by the legislature subject to the provision of the Constitution. Law in Article 13(2) does not mean the Constitution. The Constitution is the supreme law. Third, an amendment of the Constitution is an exercise of the constituent power. The majority view in Golak Nath case is with respect wrong. Fourth, there are no express limitations to the power of amendment. Fifth, there are no implied and inherent limitations on the power of amendment. Neither the Preamble nor Article 13(2) is at all a limitation on the power of amendment. Sixth, the power to amend is wide and unlimited. The power to amend means the power to add, alter or repeal any provision of the Constitution. There can be or is no distinction between essential and in-essential features of the Constitution to raise any impediment to amendment of alleged essential features. Parliament in exercise of constituent power can amend any provision of this Constitution. Under Article 368 the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd particularly in matters involving vital Constitutional issues having a far-reaching impact on fundamental freedoms of the people of this country and on the social objectives which the State is enjoined to achieve under the Directive Principles of State Policy, I consider it my duty to express my views in my own way for arriving at those conclusions. 1112. In this case the validity of the Constitution (Twenty-fourth) and (Twenty-fifth) Amendment Acts of 1971 and the Constitution (Twenty-ninth) Amendment Act of 1972 has been challenged as being outside the scope of the power of amendment conferred on Parliament by Article 368 of the Constitution and consequently void. 1113. The validity of the Twenty-fourth Amendment would depend upon the interpretation of two crucial articles, Article 13 and Article 368, and two words, one in each article, namely, 'law' in the former, and 'amendment' in the latter. For the purposes of ascertaining the true intent and scope of these articles in I.C. Golaknath and Ors. v. State of Punjab, (1967) 2 S.C.R. 762 the basic question which the Court first considered was, where was power to amend the Constitution of India to be found? Subba Rao, C.J., wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot in the residuary article but in Article 368. This argument is of little validity, because the ratio of the decision, where a question is directly raised before the Court for decision, is that which it decides, and in that case wherever the power may have been found, whether in Article 368 or in the residuary entry 97 of List I of Schedule VII, the controversy was whether an amendment made under Article 368 is a 'law' within the meaning of Article 13(2), and if it is so, a State cannot make a law taking away or abridging fundamental rights conferred by Part III of the Constitution. That question being answered in the affirmative by the majority, the ratio of Golaknath's decision is that an amendment under Article 368 is a 'law' within the meaning of Article 13(2). What the leading majority judgment in that case did not decide, however, is whether Article 368 itself could be amended under the proviso of that article conferring a power to amend the whole Constitution. At p. 805, Subba Rao, C.J., observed, "In the view we have taken on the scope of Article 368 vis-a-vis the fundamental rights, it is also unnecessary to express our opinion on the question whether the amendment o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Constitution to take away or abridge any of the fundamental rights conferred by Part III of the Constitution, and that question will only assume importance if this Court comes to the conclusion, following Hidayatullah, J.'s, decision, that Parliament cannot amend Article 368 under proviso (e) thereof to take away or abridge any of the fundamental rights or to amend Article 13(2) making it subject to an amendment under Article 368. If such a power exists, the question whether an amendment in Article 368 is a 'law' 'within the meaning of Article 13(2) may not prima facie be of significance. There are, however, two aspects to this problem, firstly, whether 'law' in Article 13(2) includes an amendment of the Constitution under Article 368: and secondly, if this Court holds that 'law' in Article 13(2) does not include an amendment under Article 368, then the question would be, has the Constitution (Twenty-fourth) Amendment purported to exercise a power in effecting that amendment which was not granted under that Article ? In other words, are there any limitations to the amending power under Article 368 ? If, as was held by Hidayatullah, J., that the power of amendment conferred on Pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ade by Parliament or the Legislatures of States, it cannot be, nor has it been denied, that laws made by them are laws within the meaning of Article 13(2). What is contended, however, is that it also includes an amendment of the Constitution or Constitutional laws. No elaborate reasoning is necessary in support of the proposition that the word "law" in Article 13(2) includes a law made by Parliament or a Legislature of the State. When an Ordinance made either by the President under Article 123 or by a Governor under Article 213, in exercise of his legislative power which under the respective Sub-clause (2) has the same force and effect as an act of Parliament or the Legislature of a State assented to by the President or the Governor, as the case may be, is included in Article 13(3)(a), a law passed by Parliament or a Legislature of a State under Article 245 which specifically empowers Parliament for making laws for the whole or any part of India or any part of a State and the Legislature of a State for the whole or any part of a State, would be equally included within the definition of "law". Article 246 to 255 deal with the distribution of legislative powers be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be termed 'law', the prohibition that the State cannot take away or abridge the rights conferred under any of the provisions of Part III is confined to those categories of law to which I have specifically referred, namely, to the law made by Parliament or a Legislature of the State and to those indicated in Article 13(3)(a). The law referred to in Article 14, Clauses (3) and (5) of Article 16, Article 17, Clauses (2) to (6) of Article 19, Article 20, Article 21, Clauses (4) and (7) of Article 22, Clause (1) of Article 23, Clause (2) of Article 25, Article 31, Clause (3) of Article 32, Articles 33, 34 and Clause (a) of Article 35, is, in my view, a law which the Parliament or a Legislature of the State or both, as the case may be, is required to make for giving force to the rights or is permitted to make to restrict the rights conferred by Part III. In other words, the permissible limits are indicated therein. Further under Article 15 the words 'special provision' and in Clause (4) of Article 16 the making of any provision by the State, and Clause (2) of Article 23 imposing of a compulsory service by the State for public purposes, or preventing the State from doing or permitting it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ers Parliament to give effect to fundamental rights and gives no indication to delimit the power of amendment under Article 368. 1125. It is true that the Constitution itself has provided the limitations that can be imposed on the fundamental rights guaranteed in Part III, but those limitations can only be effected by ordinary law as opposed to Constitutional law and nor imposing those limitations an amendment of the Constitution is not needed. Once a right is conferred on the citizen, to what extent the right can be restricted, or where a State is prohibited from acting in any particular manner to what extent it is permitted, is to be regulated only by an ordinary law. If so, the bar against exceeding the permissible limits must prima facie be against the State making such a law. In the circumstances, could it be said that the framers of the Constitution contemplated the inhibition in Article 13(2) to operate on any thing other than ordinary law ? To limit the extent and ambit of the power under Article 368 in which there is no reference to a law, by including within the ambit of the definition of 'law' in Article 13(3)(a) for purposes of Article 13(2), an amendment effected unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Article 19 has been incorporated as a proviso. 1127. In the alternative, if Clauses (2) to (6) of Article 19 are read as a proviso to Article 13(2), they would appear as follows: The State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void: Provided nothing in Sub-clause (a) of Clause (1) of Article 19 shall affect the operation of any existing law in so far as it relates to, or prevent the State from making any law relating to, libel, slander, defamation, contempt of court or any matter which offends against the decency or morality or which undermines the security of, tends to overthrow, the State. In each of the Clauses (3) to (6) of Article 19 the expression 'any existing law in so far as it imposes or prevents the State from making any law imposing' has been uniformly used, and if these clauses are read as provisos just in the same way as Clause (2) of Article 19 has been read in either of the manner indicated above, the word 'law' in all these clauses as well as in Clause (2) of Article 13 would be the same and must have the same meaning. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... : "If the State wields more power than the functionaries there must be a difference between the State and its agencies such as Government, Parliament, the Legislatures of the States and the local and other authorities. Obviously, the State means more than any of these or all of them put together. By making the State subject to Fundamental Rights it is clearly stated in Article 13(2) that any of the agencies acting alone or all the agencies acting together are not above the Fundamental Rights. Therefore, when the House of the people or the Council of States introduces a Bill for the abridgement of the Fundamental rights, it ignores the injunction against it and even if the two Houses pass the Bill the injunction is next operative against the President since the expression "Government of India" in the General Clauses Act means the President of India. This is equally true of ordinary laws and laws seeking to amend the Constitution". He drew support from Article 325 of the Constitution of Nicargua in which specifically it was stated that, "That agencies of the Government, jointly or separately, are forbidden to suspend the Constitution or to restrict the rights ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aking of a distinction between the State and the Government in order to hold that these organs cannot acting together make an amendment affecting rights in Part III. 1129. Another reason for arriving at this conclusion is that if amendment to the Constitution is a 'law', the Constitution as such would also be a law. But the framers of the Constitution distinguished the 'Constitution' from 'law' or 'laws', by making evident their intention by using the word 'law' in contradistinction to the 'Constitution' indicating thereby that the word 'law' wherever referred to, means only an ordinary legislative law, while the 'Constitution' as something distinct from it. In Article 60 the President, and in Article 159 the Governor, is required to take oath when assuming office, to preserve, protect and defend the Constitution and the law. Under Article 61 the President can only be impeached for the violation of the Constitution. While specifying the extent of the executive power in Sub-clauses (a) and (b) of Clause (1) of Article 73 it is provided by the proviso that the power referred to in Sub-clause (a) shall not, save as expressly provided in this Constitution or in any law made by Parliam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s repugnancy with any of the provisions of the Constitution including those in Part III because of the doctrine of ultra vires. If so, it is argued, there was no purpose in enacting Article 13(2). On the other hand, the petitioner's learned advocate submits that Article 13(2) has a purpose, in that among the laws in force there would be saved some laws of a Constitutional nature which were in force in the erstwhile princely States or even under the Government of India Act, 1935 where the Governor-General had made orders of that nature. As it was pointed out to the Constituent Assembly by Sardar Vallabhbhai Patel on the 29th April, 1947 that such may be the position, Article 13(1), it is said, has been incorporated in Part III, and for the same reason in order to protect fundamental rights which were basic human freedoms from being taken away or abridged even by an amendment of the Constitution, that Article has been incorporated. A reference to the latter would show that what Sardar Vallabhbhai Patel said was that they had not sufficient time to examine in detail the effect of Clause (2) of the draft article on the mass of existing legislation and that clause was, therefore, subjec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ah, J., pointed out, was meant rather to emphasise the importance and the commanding position of Fundamental Rights, because having regard to the history of the agitation for a Bill of Rights being inscribed in a Constitution, to which I have adverted earlier, and the great hope that was inspired in the people of this country that there are some fundamental basic rights which are guaranteed to them and which cannot be subject to the vagaries of the legislatures, the State was enjoined not to take away or abridge those rights. Rights in Part III were intended to be made selfcontained with the right of redress guaranteed to them by Article 32 - unlike in the United States where the judiciary had to invoke and evolve the doctrine of judicial review over the years. Mere general declarations of rights were without enforceability. As experience showed such general rights were found ineffective to check the growing power of the modern State, our framers examined judicial review of fundamental rights in various Constitutions and provided in our Constitution an effective remedy against encroachment of these rights. Article 32(2) provided for a direct approach to the Supreme Court in cases w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to construction, the various stages through which the draft passed, the amendments proposed to it either to add or or delete any part of it, the purpose for which the attempt was made and the reason for its rejection may throw light on the intention of the framers or draftsmen. The speeches in the legislatures are said to afford no guide because members who speak in favour or against a particular provision or amendment only indicate their understanding of the provision which would not be admissible as an aid for construing the provision. The members speak and express views which differ from one another, and there is no way of ascertaining what views are held by those who do not speak. It is, therefore, difficult to get a resultant of the views in a debate except for the ultimate result that a particular provision or its amendment has been adopted or rejected, and in any case none of these can be looked into as an aid to construction except that the legislative history of the provision can be referred to for finding out the mischief sought to be remedied or the purpose for which it is enacted, if they are relevant. But in Travancore Cochin and Ors. v. Bombay Co. (1952) S.C.R. 113, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and (3) Committee on the Fundamental Rights and Minorities Committee. The deliberations and the recommendations of these Committees, the proceedings of the Drafting Committee, and the speech of Dr. Ambedkar introducing the draft so prepared along with the report of these Committees are all valuable material. The objectives of the Assembly, the manner on which they met any criticism, the resultant decisions taken thereon, amendments proposed, speeches in favour or against them and their ultimate adoption or rejection will be helpful in throwing light on the particular matter in issue. In proceedings of a legislature on an ordinary draft bill, as I said earlier, there may be a partisan and heated debate, which often times may not throw any light on the issues which come before the Court but the proceedings in a Constituent Assembly have no such partisan nuances and their only concern is to give the nation a working instrument with its basic structure and human values sufficiently balanced and stable enough to allow an interplay of fortes which will subserve the needs of future generations. The highest Court created under it and charged with the duty of understanding and expounding i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nion' or any 'unit' that was prohibited from making a law taking away or abridging any such right. At that stage there was nothing to show that a provision for amendment of the Constitution was either drafted or was before the Constituent Assembly for consideration. But otherwise also, it was not a case of the 'Union' or 'Union' and 'the unit' being prevented from making a law. In order to justify the submission that all the organs of the State including the 'Union' or the 'Union' and the 'Unit' were prevented from effecting an amendment of the Constitution, the only indication is that the law which was prohibited from taking away or abridging fundamental rights was the law of the 'Union' or any 'unit'. The amendment of Shri Santhanam was incorporated by the draftsmen in the Supplementary Report on Fundamental Rights which was presented to the Constituent Assembly on August 25, 1947, but subsequently this amendment of Shri K. Santhanam incorporated in the draft Article was deleted by the Drafting Committee. After the Draft Constitution was submitted to the President of the Constituent Assembly on February 21, 1948, and was given wide circulation, there appears to have been some cr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... viso was deleted. (See C.A.D. Vol. VII, pp. 611 & 645). 1133. How meticulously this article was considered, can be seen from the proceedings on the objection of Naziruddin Ahmed that the words "custom or usage" in the definition of 'law' in Article 8(3)(a) (corresponding to Article 13(3)(a) would apply to Article 8(2), but the State does not make a 'usage or custom'. Dr. Ambedkar pointed out that that will apply to Article 8(1) which deals with 'laws in force', but Naziruddin Ahmed insisted that it does not, and that he was no wiser after the explanation given by Dr. Ambedkar that the definition of law is distributive. Dr. Ambedkar then said that the amendment of Naziruddin Ahmed creates some difficulty which it is necessary to clear up and ultimately to avoid any difficulty he moved an amendment to Clause (3) of Article 8 to read "unless the context otherwise requires" which governed Clauses (a) and (b). This was adopted. (See C.A.D. Vol. VII, p. 644). It was after this that the proviso was deleted. 1134. It would appear from the proviso before it was deleted, if read with Clause (2) of draft Article 8, as also the note showing the pupose for which it was inc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amendment had been accepted, the amendment of the fundamental rights could be effected by the procedure prescribed for amendment which would be by two-thirds majority of each of the Houses of Parliament as well as by ratification by resolutions of not less than half the State Legislatures. Even this attempt does not give any indication that fundamental rights in Part III could not be amended under Article 368 or that 'law' in Article 13(2) is not the ordinary legislative law, but would include an amendment under Article 368. An attempt was made to show that on September 17, 1949, Dr. Ambedkar while speaking on draft Article 304 had said that Part III was not amendable. While adverting to the fact that they had divided the articles into three categories, he pointed out that the first) category was amendable by a bare majority, and as to the second category he had said: "If future Parliament wishes to amend any particular article which is not mentioned in Part III or Article 304, all that was necessary for them is to have two-thirds majority." The third category for the purposes of amendment he explained required two-thirds majority plus ratification. It is submitted on beh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the purpose and makes it clear that Article 368 provides for amendment of the Constitution as well as procedure therefor. The Bill further provides that when a Constitution Amendment Bill passed by both Houses of Parliament is presented to the President for his assent, he should give his assent thereto. The Bill also seeks to amend Article 13 of the Constitution to make it inapplicable to any amendment of the Constitution under Article 368. 1139. What in fact the amendment effected will become clear, if the relevant provisions of Article 368, both before and after the amendment was made, are read in juxtaposition along with a new Sub-clause (4) added to Article 13. Before the Amendment After the Amendment Procedure 368. An amendment of this Power of 368.(1) Notwithstanding for amendment Constitution may be initiated only Parliament anything in this of the by the introduction of a Bill to amend Constitution Parliament Constitution. for the purpose in either House the may in exercise of its of Parliament, and when Constitution constituent power amend the Bill is passed in each House and procedure by way of addition, by a majority of the total therefor. variation or repeal any mem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on"; and (vii) that it is obligatory on the President to give his assent to any Bill duly passed under that Article. 1141. In so far as the contention that Article 13(2) is a bar to Constitutional amendments is concerned, I have already given my reasons why I consider that argument as not available to the petitioner inasmuch as the inhibition contained therein is only against ordinary legislative actions. The question, however, is whether Article 13(2) which bars the taking away or abridging the fundamental rights by Parliament, or Legislatures of the States and other enactments, specified in Article 13(3)(a) is or is not an essential feature. If it is not, it can be amended under Article 368. Recognising this position the petitioner submits that if the effect of amending Article 368 and Article 13 is to permit the removal of the fetter of Article 13 on the ordinary legislative laws which can thereafter be empowered and left free to abrogate or take away fundamental rights, it would be an essential feature. 1142. The question whether there are any implied limitations on the power to amend under Article 368 or whether an amendment under that Article can damage or destroy the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... : "It is urged that such approach makes society static and robs the State of its sovereignty. It is submitted that it leaves revolution as the only alternative if change is necessary. The whole Constitution is open to amendment. Only two dozen articles are outside the reach of Article 368. That too because the Constitution has made them fundamental. What is being suggested by the counsel for the State is itself a revolution because as things are that method of amendment is illegal". 1145. Wanchoo, J., rejected the doctrine of implied limitations though he was doubtful if the Constitution can be abrogated or another new Constitution can be substituted, (see p. 838). At p. 836 he said, "We have given careful consideration to the argument that certain basic features of our Constitution cannot be amended under Article 368 and have come to the conclusion that no limitations can be and should be implied upon the power of amendment under Article 368.... We fail to see why if there was any intention to make any part of the Constitution unamendable, the Constituent Assembly failed to include it expressly in Article 368...on the clear words of Article 368 which provides for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ated the contents of the vital and far reaching issues involved in this case, though sometimes some aspects tended to hover over the terra ferma and sometimes skirted round it, particularly when the views of academic writers who had the utmost freedom to express on hypothetical problems unrelated to concrete issues falling for a decision in any case, were pressed on us. The a priori postulates of some of the scholars are not often easy of meeting the practical needs and limitations of the tenacious aspects of the case precedents which makes our law servicable. There have again been arguments for taking consequences into consideration which really highlighted what would be the dire consequences if the result of the decision being one way or the other but this court ought not to be concerned with these aspects, if otherwise our decision is in accordance with the view of the law it takes. We should free ourselves of any considerations which tend to create pressures on the mind. In our view, it is not the gloom that should influence us, as Milton said, "we cannot leave the real world for a Utopia but instead ordain wisely", and, if I may add, according to the well-accepted ru ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on in the light of the felt needs of the society for which it was enacted and in accordance with the Constitution. No doubt, political or social policy may dominate the legal system. It is only when as I said, the Legislatures in giving effect to them translate it into law, and the Courts, when such a measure is challenged, are invited to examine those policies to ascertain its validity, it then becomes a legal topic which may tend to dominate sometimes to its detriment. 1150. The citizen whose rights are affected, no doubt, invokes the aid of the judicial power to vindicate them, but in discharging its duty, the Courts have nothing to do with the wisdom or the policy of the Legislature. When the Courts declare a law, they do not mortgage the future with intent to bind the interest of the unborn generations to come. There is no everlasting effect in those judgments, nor do they have force till eternity as it were. The concept, on the other hand, is that the law declared in the past was in accord with the settled judgment of the society, the social and economic conditions then existing, and that if those judgments are not likely to subserve the subsequent generations or the require ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ics, philosophy, temperament and outlook differentiate them from the problems and outlook which confront the courts in this country. It is not a case of shutting out light where that could profitably enlighten and benefit us. The concern is rather to safeguard against the possibility of being blinded by it. At the very inception of a Constitutional democracy with a Federal structure innovated under the Government of India Act, 1935, a note of caution was struck by the Chief Justice of India against following even cases decided on the Constitutions of the Commonwealth units, which observations apply with equal force, if not greater, to cases decided under the American Constitution. Gwyer, C.J., in In Re : The Central Provinces and Berar Act No. XIV of 1938, (1939) F.C.R. 18 which was the very first case under the 1935 Act, observed at p. 38: "But there are few subjects on which the decisions of other Courts require to be treated with greater caution than of federal and provincial powers, for in the last analysis the decision must depend upon the words of the Constitution which the Court is interpreting; and since no two Constitutions are in identical terms, it is extremely unsa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion can be wrecked by extra Constitutional method or by a revolution; (b) as the very object is to make changes in the fundamental or organic law, namely, to change the fundamental or basic principles of the Constitution, the power of amendment cannot be said to be confined to only changing non-essential features. 1154. The Attorney-General has cited from the writings of several authors of whom I may refer to a few passages from the following: 1155. Woodrow Wilson in his book on 'Constitutional Government' in the United States, said: A Constitutional government, being an instrumentality for the maintenance of liberty, is an instrumentality for the maintenance of a right adjustment, and must have a machinery of constant adaptation" (page 4-6). It is, therefore, peculiarly true of Constitutional government that its atmosphere is opinion, the air from which it takes its breath and vigor. The underlying understandings of a Constitutional system are modified from age to age by changes of life and circumstances and corresponding alterations of opinion. It does not remain fixed in any unchanging form, but grows with the growth and is altered with the change of the nation's needs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... who have inscribed Article 368 in the Constitution. In the numerous American cases cited before us, there is a constant reference to the people taking part in the amending process through the Conventions or ratification by the Legislatures which the judiciary has been treating as ratification by the people. In that context the word 'amendment' has been construed widely because when the sovereign will of the people is expressed in amending the Constitution, it is as if it were they who were expressing the original sovereign will represented in the convention which drafted the Constitution. There has been even a divergence of opinion among the writers in the U.S. as to whether the entrenched provisions for the representation of the States in the Senate which could not be amended without the consent of the State affected can be amended even where all the States except the State concerned have ratified the taking away or abridging that right. With this or the several aspects of the American Constitution we are not called upon to expound nor have we any concern with it except with the claim of the petitioner that the fundamental; rights have been reserved by the people to themselves and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... R. 88 at 100, to which a reference has been made earlier, and, therefore, it is submitted that these rights cannot be taken away or abridged even by an amendment of the Constitution. Neither of these submissions accord with the facts of history though the Preamble which was adopted as a part of the Constitution on October 17, 1949 says so. (See with respect to the adoption of the Preamble as a part of the Constitution, C.A.D., Vol. X, p. 456). To digress somewhat, it appears that the observations in In Re : Berubari Union & Exchange of Enclaves (1960) 3 S.C.R. 250, that the Preamble was not part of the Constitution does not seem to have taken note of the fact that the Constituent Assembly had debated it and adopted the resolution. "That the Preamble stand part of the Constitution". It appears to me that a comparison with Article V of the U.S. Constitution providing for an amendment of that Constitution, with Article 368 of our Constitution, would show that there is no resemblance between the amending procedure provided in either of them. Such a comparison would, in my view, be misleading, if we were to apply the concepts and dicta of the eminent Judges of the Supreme Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ities, backward and tribal areas, and depressed and other backward classes. This Resolution was adopted on January 22, 1947 with utmost solemnity by all members standing. (See C.A.D., Vol. II. p. 324). 1160. While the claim was so made and at the time when the Resolution was adopted, the legal sovereignty over India remained vested in the British Crown and British Parliament, and when that power was transferred, it was transferred to the Constituent Assembly by the Indian Independence, Act, 1947, Sections 6 and 8 of which conferred on the Constituent Assembly the power to enact a Constitution, as well as the full powers to make laws which were not to be void or inoperative on the ground that they are repugnant to the laws of England, or to the provisions of the Indian Independence Act or any existing or future Act of Parliament of the United Kingdom, or to any order, rule or regulation made under any such Act, and the powers of the Legislature of the Dominion of India shall include the power to repeal or amend any such Act, order, rule or regulation in so far as it is part of the law of the Dominion (See Sub-section (2) of Section (6). These powers of the Legislature of the Domini ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he finality which Article 304 proposes to give it, said - "Sir, it may be true that this Assembly is not a representative assembly in the sense that Members of this Assembly have not been elected on the basis of adult suffrage. I am prepared to accept that argument, but the further inference which is being drawn that if the Assembly had been elected on the basis of adult suffrage, it was then bound to possess greater wisdom and greater political knowledge is an inference which I utterly repudiate". (C.A.D., Vol. IX, p. 1663). 1164. The fact that the preamble professed in unambiguous terms that it is the people of India who have adopted, enacted and "given to themselves this Constitution"; that the Constitution is being acted upon unquestioned for the last over twenty-three years and every power and authority is purported to be exercised under the Constitution; and that the vast majority of the people have, acting under the Constitution, elected their representatives to Parliament and the State Legislatures in five general elections, makes the proposition indisputable that the source and the binding force of the Constitution is the sovereign will of the people o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and assembly are essential part of any Constitution which provides that people govern themselves because without them self-government becomes impossible; and the fourth, which is a basic part of the English Constitution is the independence of the judiciary and it is inconceivable that Parliament should regard itself as free to abolish the principle which has been accepted as a cornerstone of freedom ever since the Act of Settlement in 1701. Professor Goodhart then concludes: It is therefore, I believe, true to say that it is as wrong in theory as it is in fact to suggest that the British Constitution is a form of enlightened despotism. Those who exercise power in the name of the State are bound by the law, and there are certain definite principles which limit the exercise of the power. 1166. Before considering the detailed contentions it is necessary to see what was intended to be achieved by the Twenty-fourth Amendment. I have already set out the changes made in Article 368. These are- (a) In the marginal note, instead of the expression "Procedure for amendment of the Constitution", it was substituted by "Power of Parliament to amend the Constitution and Procedu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... same body, namely, Parliament makes both the ordinary law in terms of the grant in Articles 245 to 248 and an amendment in terms of Article 368, it should not be considered that both these are legislative laws within the meaning of Article 13(2) which was what the majority in Golaknath's case had held. In the view I have taken that Article 13(2) was confined only to the ordinary legislative laws and not one made under Article 368, the addition of Clause (1) to Article 368 in so far as it declares that when Parliament exercises the power under that provision if exercises its constituent power and makes explicit what was implicit. In my view, the amendment, therefore, makes no change in the position which prevailed before the amendment. 1167. It has also been seen that the amendment added Clause (3) to Article 368 that "Nothing in Article 13 shall apply to any amendment made under this article", and has added Clause (4) to Article 13 that "Nothing in this article shall apply to any amendment of this Constitution made under Article 368". These additions, having regard to the view I have taken that Article 13(2) does not impose any express limitation on Article 368 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to ascertain from the background of our national aspirations, the objectives adopted by the Constituent Assembly as translated into a working organic instrument which established a sovereign democratic Republic with a Parliamentary system of Government whereunder individual rights of citizens, the duties towards the community which the State was enjoined to discharge; the diffusion of legislative power between Parliament and State Legislatures and the provision for its amendment, etc., are provided for. All these aspects were sought to be well balanced as in a ship built for fair weather as well as for foul. This then will be the proper approach. 1170. The learned Attorney-General contends that the word 'amendment has a clear, precise, definite and unambiguous legal meaning and has been so used in all the written Constitutions of other countries also ever since written Constitutions have been innovated. The word "amendment" according to him has received a well accepted construction which gives it the widest amplitude unrestricted by any limitations thereon. While making this submission, however, he has pointed out that though our Constitution has used different expressio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in Australia is possible here. If the people in Australia are competent and advanced to adopt this method of amendment, certainly we, who are as competent as the Australians, if not more, are entitled to adopt the same. I do not want to associate the State Legislatures in the process of amending the Consitution." He also said that, "If you want to abolish landlordism, you cannot afford to look for the consent of the landlords, and similarly, if you want to abolish capitalism, you cannot afford to look for the consent of the capitalists". (C.A.D., Vol. IX, p. 1646). This amendment, however, was negatived. (C.A.D., Vol. IX, p. 1665). 1172. A reference was also made in this connection to draft Article 305 as indicating that the word 'amendment' would mean repeal or whittling down. Even assuming that that Article had been incorporated in the Constitution, what does the word 'amendment' in that context imply ? First, draft Article 305 starts with the non-obstante clause, "Notwithstanding anything contained in Article 304" (present Article 368), and, secondly, the provisions relating to the reservation of seats for the minorities "shall not be amended duri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 368 any idea of improvement as to details of the Constitution. The word 'amendment' used in Article 368 must, therefore, be given its full meaning as used in law and that means that by amendment an existing Constitution or law can be changed, and this change can take the form either of addition to the existing provisions, or alteration of existing provisions and their substitution by others or deletion of certain provisions altogether. 1175. After noting that the word "amend" in the VI Schedule, paragraph 21, where it was preceded by words "by way of addition, variance or repeal" and more or less similar expressions in other Articles of the Constitution, he observed, "it is very difficult to say why this was done. But the fact that no such words appear in Article 368 does not in our mind make any difference, for the meaning of the word 'amendment' in a law is clearly as indicated above by us and the presence or absence of explanatory words of the nature indicated above do not in our opinion, make any difference". Bachawat J., at pp. 915-916, says: Article 368 indicates that the term 'amend' means 'change'. The proviso is expressed to apply to amend ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not think it necessary to pronounce on implied limitations and like Wanchoo, J., has separately considered these two concepts (see pages 833-834, 835-836). These instances illustrate what I have said above. Even on this basis there would not be a majority of Judges who have held that there are no implied limitations. 1178. The learned Advocate-General for Maharashtra submits that when a person proposes an amendment and he is asked whether it is intended to be an improvement, the answer will always be 'Yes'; because he cannot very well say that it was not intended to be an improvement; that the meaning of the word 'amendment' in several Dictionaries which relate the word 'amendment' with 'improvement' is euphemistic. This is the reason why the word 'amendment' according to him is used in the earlier sense in common parlance, in public speeches, textbooks or articles by learned writers, which is far from saying that an amendment must be only a change for effecting an improvement. 1179. Bachawat, J., earlier at p. 915 in Golaknath's case referred to the decision Livermore v. E.C. Waite, (102) Cal. 113-25 L.R.A. 312 in support of the submission that an amendment must be an improvemen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re's case cited by Bachawat, J., did not support the proposition therein stated. But all arguments in that case against the amendment could not be taken to be negatived, if they were not necessary for the decision. What arguments were brushed aside, no one can say with any amount of definiteness. If the judgment of the Supreme Court in National Prohibition case is read with the judgment of the District Court whose decree was affirmed, it may be taken to have laid down that the word amendment would include addition of a provision to the Constitution and beyond this nothing more can be inferred from this judgment. 1181. The argument of the learned Advocate-General is that the words "amendment of this Constitution" in sub-para (2) of para 7 and sub-para (2) of para (21) of the respective Schedules refers to the words used in sub-para (1) of sub-para 7 and 21 of the Schedules, and, therefore, the words "amendment of this Constitution" must be read to mean that it is an amendment by way of addition, variation or repeal. It was noticed that in Golaknath's case while Wanchoo, J., could not fathom the reason why the expression 'by way of addition, variation or repeal' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by its very nature have no limits, because if any such limit is assumed although not expressed in the Constitution, the whole object and purpose of the amending power will be nullified. 1184. If amendment does not mean abrogation or repeal as submitted in the note of the Advocate-General, dated February 23, 1973 in which he said, "that repeal and abrogation mean the same thing since "repeal" has 'abrogation' as one of its meaning and 'abrogation' has 'repeal' as one of its meanings", a question arises, where, is the line to be drawn ? 1185. The learned Attorney-General said that Article 368, Clause (e) of the proviso by giving a power to amend the amending power, has conferred a wider power of amendment but that does not imply that the power of amendment had a limited meaning in the unamended article; that the word 'amendment' has only one meaning and it is a wide power and in Article 368 there is a recreation of the Constituent Assembly. If this submission is correct, how can it not extend to abrogation of the Constitution or substituting it by another? 1186. To this question the answer of the Attorney-General was that Clause (e) of the proviso was added by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s complied with, the Constitution stands amended, from which provision as well as the fact that Article 368 is in a separate Part entitled 'amendment of the Constitution', the above conclusion was reached. The petitioner's counsel naturally asks that if The Queen v. Burah (1877-78) J.C. 179 is read as an authority as contended on behalf of Kerala State against the existence of powers which are not conferred by affirmative words and against the existence of limitations, this proposition clearly negatives the respondents' other submission that the source of the amending power must be impliedly found in Article 368 although such a power is not to be found affirmatively conferred. 1188. Though there are naturally some limitations to be found in every organic instrument, as there are bound to be limitations in any institution or any other set up brought into existence by human agencies, and though my Lord the Chief Justice has gone into this aspect fully, it is in my view not necessary to consider in this case the question of the existence or non-existence of implied or inherent limitations, because if the amending power is wide and plenary, those limitations can be overriden as indeed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of experience in not only drawing up a written Constitution limiting powers of the legislative organs but in securing to all citizens certain basic rights against the State. If the faith in the rulers is so great and the faith in the people to curb excessive exercise of power or abuse of it is so potent, then one needs no elaborate Constitution, because all that is required is to make Parliament omni-potent and omnisovereign. But this the framers did not do and hence the question will be whether by an amendment under Article 368, can Parliament effect a metamorphosis of power by making itself the supreme sovereign. I do not suppose that the framers were unaware of the examples which must be fresh in their minds that once power is wrested which does not legitimately belong to a limited legislature, the efforts to dislodge it must only be by a painful process of struggle, bloodshed and attrition-what in common parlance would be a revolution. No one suggests this will be done, but no one should be complacent, that this will not be possible, for if there is power it can achieve even a destructive end. It is against abuse of power that a Constitutional structure of power relationship w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e provision'. 1192. In some of the other Constitutions not referred to by the learned Attorney-General where the amending process is not referable to the voters by referendum or to be ratified in a convention with the word 'amend', the words 'alter', 'add', 'supplement', 'repeal' or similar words have been used to indicate the plenitude of power of amendment. Section 29(4) of the Ceylon Constitutional Order, 1946, which Was the subject-matter of decisions in Liyanage v. The Queen (1967) 1 A.C. 259 and The Bribery Commissioner v. Rana Singh (1964) 2 W.L.R. 1301 cases, and had been debated in this Court by counsel on either side, provides that in the exercise of its powers under the section "Parliament may amend or repeal any of the provisions of this Order, or of any other Order". But this sub-section entrenches by Sub-section (2) certain matters from being amended because as the Privy Council observed that "They represented a solemn "balance of rights between the citizens of Ceylon". In the Constitution of Finland the words used are adoption,, amendment, or abrogation of a fundamental law. The Irish Constitution, 1937, provided by Article 46(1) that any pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the purpose of", "in character of", "as being" and was so intended to be construed in an Act providing that certain companies should pay an annual tax for the use of the State, "by way of" a licence for their corporate franchise. The illustration given should show that in fact the payment of a licence fee is not a tax, but it is so considered to be by way of tax. In my view, therefore, the substitution of the word "amendment" by the expression "amend by way of addition, variation or repeal" makes no difference as it bears the same meaning as the word "amendment". 1195. In its ordinary meaning the word "amend" as given in Shorter Oxford Dictionary is to make alterations. In some of the Dictionaries it is given as meaning "to alter, modify, rephrase, or add to or subtract from". Judicial and Statutory Definitions of Words and Phrases, Second Series, Vol. I-the word "amend" has been treated as synonymous with correct, reform and rectify. It is also stated that "amendment" of a statute implies its survival and not destruction. The word "amend" in legal phraseology, d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the power of amendment does not extend to repeal. A repeal of a provision of a law is different from the repeal of the law itself. The Constitution itself has made a distinction between the amendment of the law and repeal of the law. This becomes clear if we refer to Article 372(2) in which power has been given to the President by order to make such adaptations and modifications of any law whether by way of repeal or amendment, as may be necessary or expedient, to bring it in conformity with the provisions of the Constitution. See also Article 372(2)(b). Clause (2) of Article 252 provides that any Act passed by Parliament in respect of two or more States may be amended, or repealed by an act of Parliament. In this clause the word 'repeal' is used in contradistinction to 'amendment' as clearly implying that amendment does not include repeal of the Act itself. Even in Article 372(1), this distinction is brought out where a law in force immediately before the commencement of the Constitution was to continue in force until "altered or repealed or amended" by a competent authority. Similarly in Article 35(b) also any law in force immediately before the commencement of the Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tc., all the laws in force and also be replaced in the sense that they could be abrogated. Further in Clauses (3) and (4) of Article 109, the Council of State is empowered to make amendments in money bill which the House of the People may or may not accept and if it does not, it will be passed without any such amendment. The Council of States, cannot reject the bill altogether but can only make a change therein. 1197. The argument that if wide construction is given to the word 'amendment' all fundamental rights can be taken away by the requisite majority, whereas much less significant matters require the concurrence of not less than one-half of the States under the proviso is based on the misconception that unlike in the United States where there is a dual citizenship-one as a citizen of United States and the other as a citizen of the particular State in the Union, we have only one citizenship and that is as a citizen of India and it is Parliament and Parliament alone which can legislate in respect of that right. No State has the legislative power to affect that right, and, therefore, have not been given a power of ratification where the fundamental rights are sought to be amended ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e ideals and aspirations of the people embodied in that instrument, have in ringing tone declared the purposes and objectives which the Constitution was intended to subserve. How far the Preamble can be resorted to for interpreting the Constitution has been the subject of debate. It was contended that it is not a part of the Constitution, and as we have been shown, that this concept had found approval of this Court in In Re: Berubari Union & Exchange of Enclaves, but the Court did not appear to have noticed that it was adopted by the Constituent Assembly as part of the Constitution. The observations of Gajendragadkar, C.J., must be understood in the context of his assumption that the Preamble is not a part of the Constitution. After referring to Story that the Preamble is "a key to open the mind of the makers" and a passage from Willoughby that it has never been regarded as source of any substantive power, etc., the learned Chief Justice concluded thus : What is true about the powers is equally true about the prohibitions and limitations. Besides, it is not easy to accept the assumption that the first part of the preamble postulates a very serious limitation on one of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent". (Story, Constitution of the United States, Vol. I, pp. 443-446). 1200. It is clear from the above views of Story that: (a) the preamble is a key to open the mind of the makers as to the mischiefs, which are to be remedied; (b) that it is properly resorted to, where doubts or ambiguities arise upon the words of the enacting part; (c) even where the words are clear and unambiguous, it can be used to prevent an obvious absurdity or to a direct overthrow of the intention expressed in the preamble, and it would be much more so, if they were ambiguous; (d) there is no reason why, in a fundamental law or Constitution of government, an equal attention should not be given to the intention of the framers, as stated in the preamble; (e) the preamble can never be resorted to, to enlarge the powers expressly given, nor to substantively create any power or to imply a power which is otherwise withdrawn from the Constitution; (f) its true function is to expound the nature, extent, and application of the powers actually conferred by the Constitution. 1201. The passage extracted from Willoughby no doubt shows that the Preamble may not be resorted to as a source of Federal Authority but ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the elementary rule must be observed that no one should profess to understand any part of a statute or of any other document before he had read the whole of it Until he has done so he is not entitled to say that it or any part of it is clear and unambiguous.... I would suggest that it is better stated by saying that the context of the preamble is not to influence the meaning otherwise ascribable to the enacting part unless there is a compelling reason for it And I do not propose to define that expression except negatively by saying...that it is not to be found merely in the fact that the enacting words go further than the preamble has indicated. Still less can the preamble affect the meaning of the enacting words when its own meaning is in doubt 1203. On this aspect Lord Normand said at pp. 467468: "when there is a preamble it is generally in its recitals that the mischief to be remedied and the scope of the Act are described. It is therefore clearly permissible to have recourse to it as an aid to construing the enacting provision. The preamble is not, however, of the same weight as an aid to construction of a section of the Act as are other relevant enacting words to be f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the preamble will furnish a guide to the construction of the statute where the words are ambiguous, or even where the words are unambiguous to aid a construction which will not lead to an absurdity. Where the preamble conveys a clear and definite meaning, it would prevail over the enacting words which are relatively obscure or indefinite or if the words are capable of more than one construction, the construction which fits the preamble may be preferred. 1205. In In Re: Berubari Union & Exchange of Enclaves case the Court failed to refer to and consider the view of Story that the preamble can be resorted to, to expound the nature, the extent and the application of the powers or that the preamble can be resorted to, to prevent obvious absurdity or to a direct overthrow of the intention expressed therein. It may also be observed that the Court in that case did categorically say that the first part of the preamble is not a serious limitation. If the Court had taken a definite view that the preamble was not a source of limitation, the observation that, "it is not easy to accept the assumption that the first part of the preamble postulates a very serious limitation on one of the v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3) Liberty of thought, expression, belief, faith and worship; (4) Equality of status and of opportunity. Each one of these is important and collectively they assure a way of life to the people of India which the Constitution guarantees. To withdraw any of the above elements the structure will not survive and it will not be the same Constitution, or this Constitution nor can it maintain its identity, if something quite different is substituted in its place, which the sovereign will of the people alone can do. There can be a Democratic Republic in the sense that people may be given the right to vote for one party or only one candidate either affirmatively or negatively, and are not given the choice to choose another opposed to it or him. Such a republic is not what has been assured to our people and is unthinkable by any one foresworn to uphold, defend, protect, or preserve or work the Constitution. A democratic republic that is envisaged is the one based on a representative system in which people holding opposing view to one another can be candidates and invite the electorate to vote for them. If this is the system which is the foundation of a democratic republic, it is unthinkable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The majority of its provisions are either directly aimed at furthering the goals of the social revolution or attempt to foster this revolution by establishing the conditions necessary for its achievement. Yet despite the permeation of the entire Constitution by the aim of national renascence, the core of the commitment to the social revolution lies in Parts III and IV, in the Fundamental Rights and in the Directive Principle of State Polity. These are the conscience of the Constitution. The Fundamental Rights and Directive Principles had their roots deep in the struggle for independance And they were included in the Constitution in the hope and expectation that one day the tree of true liberty would bloom in India The Rights and Principles thus connect India's future, present, and past, adding greatly to the significance of their inclusion in the Constitution, and giving strength to the pursuit of the social revolution in India. 1208. The demand for fundamental rights had its inspiration in the Magna Charta and the English Bill of Rights, the French Revolution, the American Bill of Rights incorporated in the Constitution of the United States in 1791. For the first rime, the India ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e lapse of practically 450 years, the Declaration of the Rights of Man and the principles which are embodied in it has become part and parcel of our mental makeup, I say they have become not only the part and parcel of the mental makeup of modern man in every civilised part of the world, but also in our own country which is so orthodox, so archaic in its thought and its social structure, hardly anyone can be found to deny its validity. To repeat it now as the Resolution does, is to say the least, pure pedantry. These principles have become the silent immaculate premise of our outlook. It is therefore unnecessary to proclaim as forming a part of our creed. The Resolution suffers from certain other lacuna. I find that this part of the Resolution, although it enunciates certain rights, does not speak of remedies. All of us are aware of the fact that rights are nothing unless remedies are provided whereby people can seek to obtain redress when rights are invaded." The reference to the remedy that was absent in the Objectives Resolution, was made good by the inclusion of Article 32, with respect to which he said: "an article without which this Constitution would be a nullity.. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is note of March 14, 1947, made a distinction between the Directive Principles and fundamental rights and said that it is impossible to equate those though it could not be denied that they were important. There can be no doubt that the object of the fundamental rights is to ensure the ideal of political democracy and prevent authoritarian rule, while the object of the Directive Principles of State policy is to establish a welfare State where there is economic and social freedom without which political democracy has no meaning. What is implicit in the Constitution is that there is a duty on the Courts to interpret the Constitution and the laws to further the Directive Principles which under Article 37, are fundamental in the governance of the country. As My Lord, the Chief Justice has put it, to say that the Directive Principles give a directive to take away fundamental rights, seems a contradiction in terms. There is no rationale in the argument that the Directive Principles can only be given effect to, if fundamental rights are abrogated. If that were the dissiderata then every Government that comes into power and which has to give effect to the Directive Principles of State polic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... interest of the community and of the society will not be jeopardised and can be adjusted without abrogating, damaging, emasculating or destroying these rights in such a way as to amount to abrogation of the fundamental rights. The Advocate-General of Mysore said that even if fundamental rights are totally abrogated, it is not as if the people will be without any rights. They will be subject to ordinary rights under the law. I must repudiate this contention, because then the clock will be put back to the same position as existed when Britain ruled India and against which rule our leaders fought for establishing freedom, dignity and basic rights. In this view, my conclusion is that Article 13(2) inhibits only a law made by the ordinary legislative agency and not an amendment under Article 368; that Parliament could under Article 368 amend Article 13 and also the fundamental rights, and though the power of amendment under Article 368 is wide, it is not wide enough to totally abrogate or what would amount to an abrogation or emasculating or destroying in a way as would amount to abrogation of any of the fundamental rights or other essential elements of the basic structure of the Const ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y acquired, the Court can go into it, and, secondly, where principles are fixed for determining the compensation, it can examine the question whether they are relevant to the subject-matter of the acquisition. That position has not in any way been affected by the amendment by merely substituting the word 'amount' for 'compensation', so that if the amount is illusory or arbitrary, and is such that it shocks the conscience of any reasonable man, and bears no reasonable relation to the value of the property acquired, the Court is not precluded from examining it. 1213. It has been contended that Parliament or the Legislature can either fix an amount without setting out any principles for determining the amount or set out the principles for determining the amount. In the former case, the respondents contend that it will not be open to the Court to examine on what principles the amount has been fixed. If the Legislature merely names an amount in the law for acquisition or requisition, it may be an arbitrary amount, or it may have some relationship or relevance to the value of the property acquired or requisitioned. The former cannot be, because it is provided that the acquisition is for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ablished, be presumed, but enquiry into reasonableness of the procedural provisions will not be excluded. For instance, if a tribunal is authorised by an Act to determine compensation for property compulsorily acquired, without hearing the owner of the property, the Act would be liable to be struck down under Article 19(1)(f) . 1215. Thus, it will appear that where the acquisition is for a public purpose, what is sought to be excluded by Clause (2B) is the reasonableness of the procedural provisions by making Article 19(1)(f) inapplicable. Notwithstanding this amendment, it is apparent that the expropriated owner still continues to have the fundamental rights that his property will not be acquired save by the authority of law and for a public purpose. These propositions have been admitted by the learned Solicitor-General. The question whether an acquisition is for a public purpose is justiciable. Only the adequacy of the amount is not. If so, how can the expropriated owner establish that the acquisition is not for public purpose unless there are some procedural requirements to be complied with under the law? A notice will have to be served; he will have to be given an opportunity ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... paid is illusory, arbitrary, etc. 1216. That apart, there is nothing in Clause (2B), to prohibit principles of natural justice which are part of the law of the land wherein the rule of law reigns supreme, from being applicable when the liberty of the individual or his property is affected by a law. I cannot read a sinister design in that amendment requiring the legislative organs to abrogate the rule of law in this country or deny to its citizens the benefit of the maxim 'audi alteram partem' that no man shall be condemned unheard, a concept of natural justice, "deeply rooted in our ancient history", which as Bylas, J., in Cooper v. The Wadsworth Board of Works 14 C.B. (N.S.) 180, expressed in the picturesque aphorism, "The laws of God and man both give the party an opportunity to make his defence, if he has any". 1217. There is one other aspect that has been stressed by the learned Advocate for the petitioner, which is more in the nature of the dire consequences that would ensue if the amendment is upheld, namely, that the citizen's right to property has now been transferred into the State's right to confiscation, that acquisition under the Land Acquisition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as well as inarticulate premise is not to hold invalid an amendment made under Article 368, if it conforms to the form and manner prescribed therein and is within the ambit of the amending power, but if the inexorable conclusion on a close scrutiny leads to a different conclusion it has to be so held. Article 31C is as follows: Notwithstanding anything contained in Article 13, no law giving effect to the policy of the State towards securing the principles specified in Clause (b) or Clause (c) of Article 39 shall be deemed to be void on the ground that it is inconsistent with, or takes away or abridges any of the rights conferred by Article 14, Article 19 or Article 31; and no law containing a declaration that it is for giving effect to such policy shall be called in question in any court on the ground that it does not give effect to such policy; Provided that where such law is made by the Legislature of a State, the provisions of this article shall not apply thereto unless such law, having been reserved for the consideration of the President has received his assent. 1219. The learned advocate for the petitioner submits that Article 31C subverts seven essential features of the Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion, which rights have been conferred by Part III and the contravention of which would have rendered any law void. In this submission what it amounts to is only a removal of the restriction which can only be effected by making Article 13 inapplicable. Answering the question whether a law containing a declaration as envisaged in Article 31C the major portion of which has no connection with Clause (b) or Clause (c) of Article 39 would protect the law, it was submitted "that on the principle laid down by the Supreme Court in Akadasi Padhan v. State of Orissa (1963) Supp. 2 S.C.R. 691 the answer must be in the negative", and that the proper construction to be put on the declaration referred to in Article 31C is that the impugned law must satisfy the condition precedent that it is designed to secure the principles specified in Clause (b) or Clause (c) of Article 39, and if it does not give effect to the principles, Akdasi's case would justify the Court in reading the provision relating to declaration as not covering a case, where only a few sections are in furtherance of Article 39(b) & (c) while others are unrelated to it. Another way of arriving at the same conclusion, accor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e true relationship between the provisions of Part IV and Part III of the Constitution, namely, that the liberty of the individual, valuable as that is, will not operate as unsurmountable barrier in the path of legislative efforts towards the achievement of the goal of a society envisaged in Part IV, and whenever and to whatever extent such a problem arose the amending process would be able to resolve it. He cited the observations of Das, J., in The State of Bihar v. Maharajadhiraja Sir Kameshwar Singh and Ors. [1952] S.C.R. 889 at 997, that, "a fresh outlook which places the general interest of the community above the interest of the individual pervades our Constitution," and of Hidayatullah, J., in his dissenting judgment in Sajjan Singh's case that, "the rights of society are made paramount and they are placed above those of the individual". These two observations, if I may say so, are torn out of context, particularly those of Hidayatullah, J., where after stressing the fact that Article 19 by Clauses (2) to (6) allows the curtailment of rights in the public interest, which goes to show that Part III is not static and visualises change and progress, but at t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 16 etc., is only to enable the Legislatures and the Parliament to evolve new principles of equality in the light of the objectives set out in the Directive Principles without discrimination. The exclusion of Article 19 is on the footing that laws which are to give effect to the directives set out in Part IV must constitute reasonable restrictions on the individual's liberty and the exclusion of Article 31(2) is to introduce the considerations of social justice in the matter of acquisition. 1222. In so far as the question whether Article 31C amounts to delegation of amending power to State Legislature or to Parliament in its ordinary legislative capaciy is concerned, the learned Solicitor-General submits that a class of legislation or a legislative field may be identified or categorised in several ways, for instance, with reference to the period within which the law is passed [Article 31(4) and Article 31(6)] or the topic of the legislation [Article 21(2) and Article 31A]; or the objective or purpose of the legislation [Article 15(4)] for the advancement of the backward class of citizens; Article 31(5)(ii) for promotion of health and Article 33 for proper discipline in the forces e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tween those who were for the acquisition law to provide for payment of full compensation and those who wanted the right in Article 31 not to extend to the acquisition of land for giving effect to agrarian reforms. This compromise resulted in the inclusion of Clauses (4) and (6) giving protection to laws made thereunder from being questioned in any Court; in the case of the former, to laws dealing with agrarian reforms in respect of which Bills were pending in any of the Legislatures of the States at the commencement of the Constitution and had been reserved for the consideration of the President who subsequently assented to them and to those laws which were passed not more than eighteen months before the commencement of the Constitution, and if submitted within three months after such commencement to the President for his certification had been so certified by him by public notification. It was thought that the jurisdiction of the Courts would be barred in respect of the legislation of the character above mentioned, but the Patna High Court had held Article 14 was applicable and even when the appeals were pending in this Court, the Constitution (First Amendment) Act, 1950, was pass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on (Seventeenth Amendment) Act was invalid for the reason that before presenting it to the President for his assent the procedure prescribed, by the proviso to Article 368 had not been followed, though the Act was one which fell within the scope of the proviso. It was, however, not disputed before the Court that Article 368 empowered Parliament to amend any provision of the Constitution including the provisions in respect of fundamental rights enshrined in Part III. Hidayatullah and Mudholkar. JJ., did, however, express doubts as to whether it is competent for Parliament to make any amendment at all to Part III of the Constitution (see pp. 961 and 968). Mudholkar, J., further raised the question whether the Parliament could "go to the extent it went when it enacted the First Amendment Act and the Ninth Schedule and has now added 44 agrarian laws to it? Or was Parliament incompetent to go beyond enacting Article 31A in 1950 and now beyond amending the definition of estate"? (p. 969) Even in Golaknath's case the question raised before us was not conclusively decided. In this state of law to say that since Article 31C is similar to Article 31A and 31B and since the latter we ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rticle 15(4) and Article 16(4) is sought to be put forward in support of the contention that a similar device has been adopted in Article 31C. I find that in none of the articles to which the learned Soliciton-General has drawn our attention, is there a total abrogation of any of the rights as sought to be affected by Article 31C. Article 33 for example, restricts or abrogates fundamental rights in Part III only in respect of the discipline of Armed Forces or forces charged with the maintenance of public order and nothing more. It does not extend to discrimination in recruitment to the service nor to any other rights possessed by the citizens in the Armed Forces which are unrelated with the proper discharge of their duties and the maintenance of discipline among these forces. Article 15(4) which was referred to as an example of empowerment based on objective or purpose of legislation, has no analogy with Article 31C. In the first place, Article 15 is an exception to the classification which would have been permissible under Article 14, for instance on the basis of religion, race, caste, sex and place of birth and hence Article 15 prohibits such a classification in the case of citiz ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he common good of that particular society. There is no standardisation, and what is good for the one country may not be suitable to another. The accelerating technological advance and the exploitation of these development and discoveries indicate the economic thought prevalent in that society. The various theories are, therefore, related to the development and the practical means which are adopted for achieving the ends. In a developing country such as ours, where millions are far below the standard of sustenance and have not the means of having the normal necessities of life, there is further a deeper philosophical question of the kind of society and the quality of life which has to be achieved. It is, therefore, the duty of the State to devise ways and means of achieving the ends. A Government which comes to power with a particular political philosophy and economic theory as having been endorsed by the electorate, has to give effect to that policy in the manner which it considers best to subserve the end. Any legislation to give effect to the principles and policy to achieve these ends is the legislative judgment which is not within the province of Courts to examine as to whether ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o enact laws which contravene the fundamental rights conferred under Articles 14, 19 and 31 and which Parliament by complying with the form and manner provided under Article 368, could alone have effected. Whether one calls this removing restrictions on the legislative organs or of conferring complete sovereignty on them within the wide field inherent in Article 39(b) & (c) is in effect one and the same. It is contended that in conferring this power by Article 31C on Parliament and the State Legislatures, acting under Articles 245 to 248, Parliament has abdicated its function under Article 368 and has permitted amendments being made without complying with the form and manner provided thereunder. 1229. It is not necessary in the view I am taking to consider the question whether Article 31C delegates the power of amendment to the State Legislatures and Parliament or that it does not indicate the subject-matter of legislation as in Article 31A but merely purports to enable the legislative organs to choose the subject-matter from a field which, as I said; is as wide and indeterminate as the term 'operation of the economic system' would denote. I would prefer to consider Article 31C as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... will have to be examined and considered separately in respect of each of these fundamental rights, for an abridgement of the fundamental rights is not the same thing as the damaging of those rights. An abridgement ceases to be an abridgement when it tends to effect the basic or essential content of the right and reduces it to a mere right only in name. In such a case it would amount to the damaging and emasculating the right itself and would be ultra vires the power under Article 368. But a right may be hedged in to a certain extent but not so as to affect the basic or essential content of it or emasculate it. In so far as Article 31C authorises or permits abridgement of the rights conferred by Article 19, it Would be intra vires the amending power under Article 368 as thereby the damaging or emasculating of these rights is not authorised. It will, therefore, be necessary to examine what exactly Article 14 and Article 19 guarantee. 1233. The guarantee of equality contained in Article 14 has incorporated the principle of "liberty" and "equality" embodied in the Preamble to the Constitution. The prohibition is not only against the legislatures but also against th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l relation to the object sought to be achieved by the statute in question. The classification may be founded on different bases, namely, geographical, or according to objects or occupations or the like. What is necessary is that there must be a nexus between the basis of classification and the object of the Act tinder consideration. It is also well established by the decisions of this Court that Article 14 condemns discrimination not only by a substantive law but also by a law of procedure. 1235. In subsequent cases a further principle has been recognised by which Article 14 was also not to be violated by two laws dealing with the same subject-matter, if the sources of the two laws are different. (See State of Madhya Pradesh v. G.C. Mandawar [1955] 1 S.C.R. 599. I am not for the present concerned whether this latter principle is likely to mislead but would refer only to the various aspects of the classification recognised in this Court so far. It may, however, be pointed out that though the categories of classification are never closed, and ft may be that the objectives of Article 39(b) & (c) may form a basis of classification depending on the nature of the law, the purpose for wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... giving effect to the policies adumberated in Article 39(b) & (c) will not be difficult to pass the test of equal protection of the laws under Article 14. The exclusion of Article 14 in Article 31A was confined to the aspect of acquisition and compensation in respect of land reforms laws, but, however, the laws under Article 31A were not immune from attack under Article 14, if the measures of agrarian reforms were tainted with arbitrariness. Though this question has not been finally decided by this Court in any of the cases under Article 31A, it was raised in Balmadies Plantations Ltd. and Ors. v. State of Tamil Nadu (1972) 2 S.C.R. 133, where the appellants contended that it would not be open to the Government under Section 17 of the Gudalur Janmam Estates (Abolition and Conversion into Ryotwari) Act, 1969, to terminate by notice the right of the lessee as that would be violative of the rights under Articles 14, 19 and 31 of the Constitution. This Court, however, did not find it necessary to deal with this aspect of the matter, because it was admitted that no notice about the termination of the lessee's rights had been issued under Section 17 of the Act to any of the appellants, a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as no question in the above case of either distribution of ownership and control of material resources or the breaking up of concentration of wealth or the means of production which is an object different from that envisaged in Article 31(2). If in two given cases similarly circumstanced, the property of one is taken under Article 31C and that of the other under Article 31(2), then it will amount to discrimination and the Nagpur Improvement Trust case will apply. In a case of this nature, the objection is not so much to Article 14 being applied, but of adopting methods which run counter to Article 39(b) & (c), because the person who though similarly situated as that of the other is certainly favoured for reasons unconnected with Article 39(b) & (c). It cannot, therefore, be said that Article 14 has been misapplied or was a hindrance to the furtherance of the directive principles in Article 39(b) and (c), which is professed to be the object of implementation in such a case. If no such abuse is to be presumed, then there is no warrant for the apprehension that Article 14 will hinder the achievement of the said Directives. 1239. The sweep of Article 31C is far wider than Article 31A, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the person or class of persons who would be entitled to receive the benefits of distribution under the law. In fact the availability of Article 14 in respect of laws under Article 31C would ensure 'distributive justice', or 'economic justice', which without it would be thwarted. In this View of Article 31C vis-a-vis Article 14, any analogy between Article 31C and Article 31A which is sought to be drawn is misconceived, because under the latter provision the exclusion of Article 14 was necessary to protect the subject-matter of legislation permissible thereunder in respect of compensation payable to the expropriated owner. There is another reason why there can be no comparison between Article 31A and Article 31C, because in Article 31A the exclusion of Article 14 was confined only to the acquisition etc. of the property and not to the distribution aspect which is not the subject - matter of that Article, whereas, as pointed out already, the exclusion of Article 14 affects distribution which is the subject-matter of Article 39 (b) & (c). 1240. It is not necessary to examine in detail the mischief that the abridgement or taking away of Article 14 will cause, It is not an answer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by Article 19(1)(a) to (g) are subject under Article 19(2) to (6); (ii) the reasonable restrictions to which the right to freedom of speech and the right to move throughout the territory of India should be made subject under Article 19(2) and (5) respectively. 1241. Under the first head he submitted the proposition that the social content of the restrictions to which the fundamental rights under Article 19(1)(a) to (g) are subject is narrower than all relevant social considerations to which the fundamental rights could be made subject. The reasons given were again the historical ones particularly the fact that the Constituent Assembly had rejected the suggestion made by Shri B.N. Rau that in case of conflict between fundamental rights and the Directives, the directives should prevail, otherwise necessary social legislation might be hampered. This meant that the social content of the Directive Principles was wider than the social content of permissible restrictions on fundamental rights. For, if this were not so, no question of giving primacy to Directive Principles in the case of conflict with fundamental rights could arise as the social content of fundamental rights and the Di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... edom has been held to include freedom of the Press. But according to him the freedom of speech as an individual right must be distinguished from the freedom of the Press and since ordinarily people asserting their individual right to the freedom of speech are not carrying on any trade or business and a law of acquisition has no application to individual exercise of the right to the freedom of speech and expression Article 31C can equally have no application to such individual right to the freedom of speech and expression. But different considerations apply when the freedom of speech and expression includes the Press, the running of which is clearly a business. 1244. Article 19(1)(a) is so closely connected with Article 19(1)(g) and (f) that if the last two sub-Articles are excluded by a law relating to the acquisition of property, it is necessary to exclude Article 19(1)(a) to prevent an argument that the rights are so inextricably mixed up that to impair the right to carry on the business of running a Press or owning property necessary for running the Press is to impair the right to freedom of speech. Again, the right to freedom of movement throughout the territory of India has b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ese rights are not mutually exclusive and any property and trade or business affected by legislation under Article 31C which necessarily must deal with property, if the directives in Article 39(b) and (c) are to be given effect, will in turn, according to the learned Advocate-General, come into conflict not only with Article 19(1)(f) & (g), but with the other Sub-clauses (a) to (e) of Clause (1) of that article. 1247. As far as I can see, no law, so far enacted under Article 31A and challenged before this Court has attempted to affect any of the rights in Article 19(1)(a) to (e), except Article 19(1)(f) & (g) and, therefore, this question did not fall for consideration of this Court. But that apart, I cannot understand by what logic the freedom to assemble peaceably and without arms, or for a citizen to move freely throughout India or to reside and settle in any part of the territory of India, has anything to do with the right to acquire and dispose of property or to practice any profession or to carry on any occupation, trade or business. Are persons whose trade and business is taken away, or are deprived of their property not entitled to the guaranteed rights to move freely thro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ill happen to the freedom of speech and expression of the citizens in the country, which is a concomitant of Parliamentary democracy? In the State of Bombay and Anr. v. F.N. Balsara (1951) S.C.R. 682, it was held under the unamended Clause (2) of Article 19 that Section 23(a) and Section 24(1)(a) which prohibited "commending" or advertising intoxicants to public were in conflict with the right guaranteed in Article 19(1)(a) as none of the conditions in Clause (2) of that Article applied. But the first Amendment has added 'incitement to an offence' as a reasonable restriction which the State can provide by law. In any case, the absence of such a law making power is no ground to abrogate the entire right of free speech and expression of the citizens. 1248. Article 15 merely confines the right to those who are not women socially and educationally backward classes of citizens, scheduled castes or scheduled tribes all of whom were afforded protective discrimination. Article 16 is again similarly conditioned. Articles 17, 18, 23 and 24 are prohibitions which the State is enjoined to give affect to. Articles 25 to 28 which guarantee religious freedom, can be affected by Article ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entration of wealth and means of production which is to the common detriment, the law under Article 39(c) would be only to break up or regulate as may be necessary the concentration of wealth and means of production. All other rights are outside the purview of Article 31C and in this respect Article 31A and Article 31C can be said to be similar in scope and no different. In my view, therefore, the learned Solicitor- General has rightly submitted that the law under Article 31C will only operate on "material resources", "concentration of wealth", and "means of production", and if this is so, the rights in Article 19(1)(a) to (e) would have no relevance and are inapplicable. 1250. With respect to the exclusion of Article 31 by Article 31C, Clause (1) of Article 31 is not in fact affected by Article 31C, because under the latter any rights affected must be by law only. Even if Article 31C was enacted for making laws in the furtherance of the directive principles in Article 39(b) and (c) affecting property, those laws have to conform to Article 31(1) for they would be laws depriving persons of their property. Article 31C also contemplates the making of a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t to. In the former case, the Act being a remedial Act seeking to remove or to mitigate what the Legislature presumably regarded as a mischief, was given the beneficial interpretation. (See the observations of Gwyer, C.J. at p. 31). In the latter case, the provisions of Section 13A of the Punjab Alienation of Land Act, 1900, which were added by Section 5 of the Punjab Alienation of Land (Second Amendment) Act No. X of 1933, providing for the avoidcnce of banami transactions as therein specified which were entered into either before or after the commencement of the Act of 1938, and for recovery of possession by the alienor would have been ultra vires the Provincial Legislature as contravening Sub-section (1) of Section 281 of the Government of India Act, 1935, in that in some cases Section 13A would operate as a prohibition on the ground of descent alone, but it was authorised and protected from invalidity as regards future transactions by Sub-section 2(a) of Section 298 of the Act of 1935 as amended by Section 4 of the India & Burma (Temporary and Miscellaneous Provisions) Act, 1942. As the provisions of Section 13A would have been ultra vires and void in so far as they purported t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h opinion shall be conclusive and shall not be challenged in any court) dangerous to life, health or property, or likely to create a nuisance; This Court held the portion in the parenthesis as violative of Article 19(1)(g). It was contended that the above portion in the sub-clause was inextricably mixed up with the rest and hence cannot be separated. The Court held that the third proposition in the Chamarbaugwalla's case, namely, that even when the provisions which are valid are distinct and separate from those which are invalid, if they all form part of a single scheme which is intended to be operative as a whole, then also the invalidity of a part will result in the failure of the whole, was inapplicable. Wanchoo, J., expressed the view that the parenthetical clause consisting of the words "which opinion shall be conclusive and shall not be challenged in any court" is severable from the rest of the clause referred to above. 1256. In the case of Kameshwar Prasad v. State of Bihar (1962) Supp. 3 S.C.R. 369 Rule 4-A of the Bihar Government Servants Conduct Rules, 1956, had provided that "No Government servant shall participate in any demonstration or resort to any fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ary 19, 1973 that "if once it is conceded that a Constitution cannot be abrogated, then what one has to find out is to what extent an amendment goes to abrogation" and the answer was that "the whole of the Constitution cannot be amended", and also when a question was raised that on the language of Article 31C it appears to be ineffective, neither side advanced any argument on this aspect. Nor when the question of severability of the declaration portion was mooted on several occasions during the arguments was any submission made by either party as to whether such a severance is, or is not, possible. In the circumstances, the Court is left to itself to examine and consider what is the correct position in the midst of these two extremes in a case of Constitutional amendment which has been enacted after following the form and manner prescribed in Article 368, as I said earlier, it should not be held invalid, if it could be upheld even by severing the objectionable part, where the valid part can stand on its own. It is not always in public interest to confine the consideration of the validity of a Constitutional amendment to the arguments, the parties may choose to a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the Constitution (Twenty-ninth) Amendment valid. 1259. I now state my conclusions which are as follows: (1) On the construction placed on Articles 12, 13 and other provisions of Part III and Article 368, Article 13(2) does not place an embargo on Article 368, for amending any of the rights in Part III, and on this view it is unnecessary to decide whether the leading majority judgment in Golaknath's case is right in finding the power of amendment in the residuary entry 97 of List I of Schedule VII, nor is it called for, having regard to the majority decision therein that the power of amendment is to be found in Article 368 itself. (2) Twenty-fourth Amendment: 1260. The word 'amendment' in Article 368 does not include repeal. Parliament could amend Article 368 and Article 13 and also all the fundamental rights and though the power of amendment is wide, it is not wide enough to totally abrogate or emasculate or damage any of the fundamental rights or the essential elements in the basic structure of the Constitution or of destroying the identity of the Constitution. Within these limits, Parliament can amend every article of the Constitution. Parliament cannot under Article 368 ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and other evidence, may be necessary to establish that a particular acquisition is not for public purpose and for providing the value of the property and other matters that may be involved in a particular principle adopted in fixing the amount or for showing chat what is being paid is illusory, arbitrary etc. Therefore, in the view taken, and for the reasons set out in this judgment, Section 2 of the Twenty-fifth Amendment is valid. (ii) SECTION 3 OF THE TWENTY-FIFTH AMENDMENT 1261. New Article 31C is only valid if the words "inconsistent with or takes away or", the words "Article 14" and the declaration portion "and no law containing a declaration that it is for giving effect to such policy shall be called in question in any court on the ground that it does not give effect to such policy", are severed, as in my view they are severable. What remains after severing can be operative and effective on the interpretation given by me as to the applicability of Articles 19 and 31, so as to enable laws made under Article 31C to further the directives enshrined in Article 39(b) & (c). In the result on the construction of Article 31C, after severing the porti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the point was not squarely before the court In the third case namely Golak Nath v. State of Punjab [1967] (2) S.C.R. 762 the, view taken in the earlier cases by eight Judges was overruled by a majority of six Judges to five. The majority held that Parliament had no power to amend the Constitution under Article 368 so as to abridge or take away the fundamental rights, one of them (Hidayatullah, J), who delivered a separate judgment, expressing the view that this could not be done even by amending Article 368 with the object of clothing the Parliament with the necessary powers. In this state of affairs the Union Government was obliged to take a definite stand. It would appear that the Union Government and the Parliament agreed with the view taken in Sankari Prasad's case by the majority in Sajjan Singh's case and the substantial minority of Judges in Golak Nath's case. They were out of sympathy with the view adopted by the majority in Golak Nath's case. Hence the 24th Amendment. That amendment principally sought to clarify what was held to be implicit in Articles 13 and 368 by a majority of Judges of this Court over the years, namely, (1) that nothing in Article 13 applied to an amen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... before the 24th Amendment. 1270. Since fundamental questions with regard to the Constitution have been raised, it will be necessary to make a few prefatory remarks with regard to the Constitution. The Constitution is not an indigenous product. Those who framed it were, as recognised by this Court in The Automobile Transport (Rajasthan) Ltd. v. The State of Rajasthan and Ors. [1963] 1 S.C.R. 491 at p. 539, 540 thoroughly acquainted with the Constitutions and Constitutional problems of the more important countries in the world, especially, the English speaking countries. They knew the Unitary and Federal types of Constitutions and the Parliamentary and Presidential systems of Government. They knew what Constitutions were regarded as "Flexible" Constitutions and what Constitutions were regarded as "rigid" Constitutions. They further knew that in all modern written Constitutions special provision is made for the amendment of the Constitution. Besides, after the Government of India Act, 1935 this country had become better acquainted at first hand, both with the Parliamentary system of Government and the frame of a Federal Constitution with distribution of powers be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bited as clearly by oiling the one a 'controlled' and the other an 'uncontrolled' Constitution as by any other nomenclature'. Perhaps this was an apology for not using the words 'rigid' and 'flexible' which were current when he delivered the judgment. In fact, sic John Simon in the course of his argument in that case had used the words 'rigid' and 'flexible' and he had specifically referred to 'Dicey's Law of the Constitution' Strong in his text-book on Modern Political Constitution, Seventh revised edition, 1968 reprinted in 1970 says at p. 153 "The sole criterion of a rigid Constitution is whether the Constituent Assembly which drew up the Constitution left any special directions as to how it was to be changed. If in the Constitution there are no such directions, or if the directions, explicitly leave the Legislature a free hand, then the Constitution is 'flexible'. 1272. The above short disquisition into the nature of Constitutions was necessary in order to show that when our Constitution was framed in 1949 the framers of the Constitution knew that there were two constrasted types of democratic Constitutions in vogue in the world-one the 'flexible' type which could be amen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cordance with its legislative procedure laid down in Articles 107 to 122. The point to be specially noted is that all ordinary laws which the Parliament makes in accordance with Articles 245 to 248 must be made in accordance with this legislative procedure and no other. Under Articles 368 however, a different and special procedure is provided for amending the Constitution. A Bill has to be introduced in either House of Parliament and must be passed by each House separately by a special majority. It should be passed not only by 2/3rd majority of the members present and voting but also by a majority of the total strength of the House. No joint sitting of the two Houses is permissible. In the case of certain provisions of the Constitution which directly or indirectly affect interstate relations, the proposed amendment is required to be ratified by the Legislatures which is not a legislative process of not less than one half of the States before the Bill proposing the amendment is presented to the President for his assent. The procedure is special in the sense that it is different and more exacting or restrictive than the one by which ordinary laws are made by Parliament. Secondly in c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e the question because if we agree with the view that it falls in Article 248 the decision that an amendment abridging or taking away fundamental rights, being a law under Article 248, would be barred by Article 13(2) would be unassailable. 1276. In Golak Nath's case Subha Rao, C.J. who spoke for himself and his four learned colleagues held that the power to amend the Constitution was not found in Article 368 but in Article 248 read with the residuancy entry 97 of List I of the Seventh Schedule. The five learned Judges who were in a minority held that the power is in Article 368, Hidayatullah, J. on the other hand, held that Article 368 did not give the power to any particular person or persons and that if the named authorities acted according to the law of Article, the result of amendment was achieved. And if the procedure could be deemed to be a power at all it was a legislative power, sui generis, to be found outside the three lists in Schedule Seven of the Constitution. In other words, six learned Judges did not find the power in the residuary entry 97 of List I, while five found it there. We have, therefore, to see whether the view of Subba Rao, C.J. and his four colleagues w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt and the State legislatures in respect of well demarcated subjects. But when it comes to the amendment of the Constitution, a special procedure has been prescribed in Article 368. Since the result of following the special procedure under the Article is the amendment of the Constitution the process which brings about the result is known as the exercise of constituent power by the bodies associated in the task of amending the Constitution. It is, therefore, obvious, that when the Parliament and the State Legislatures function in accordance with Article 368 with a view to amend the Constitution, they exercise constituent power as distinct from their ordinary legislative power under Articles 245 to 248. Article 368 is not entirely procedural. Undoubtedly part of it is procedural. But there is a clear mandate that on the procedure being followed the 'proposed amendment shall become part of the Constitution, which is the substantive part of Article 368. Therefore, the peculiar or special power to amend the Constitution is to be sought in Article 368 only and not elsewhere. 1278. Then again if the constituent assembly had regarded the power to amend the Constitution as no better than o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r was subject to the provisions of the Constitution thereby lifting the Constitution above the 'laws'. That would mean that the Parliament and the State Legislatures may, indeed make laws in respect of the areas and subject matters indicated, but the exercise must be "subject to the provisions of the Constitution" which means that the power to make laws does not extend to making a law which contravenes or is inconsistent with any provision of the Constitution which is the supreme law of the land. A law is inconsistent with the provision of the Constitution when, being given effect to, it impairs or nullifies the provision of the Constitution. Now no simpler way of impairing or nullifying the Constitution can be conceived than by amending the text of the provision of the Constitution. Therefore, since a law amending the text of a Constitutional provision would necessarily entail impairing or nullifying the Constitutional provision it would contravene or be inconsistent with the provision of the Constitution and hence would be impermissible and invalid under the governing words "subject to the provisions of the Constitution" in Article 245. It follows that a law a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... namendable, and on the argument that such a law never becomes repugnant to the article amended the whole of the Constitution becomes amendable, in which case, we are unable to give any determinate value to Article 13(2). Instead of following this complicated way of tracing the power in Article 248 read with the residuary entry 97 of List I it would be correct to find it in Article 368 because that is a special article designed for the purposes of the amendment of the Constitution which is also the subject heading of Part XX. In my opinion, therefore, the power and the procedure to amend the Constitution are in Article 368. 1281. The next question which requires to be examined is the nature of this constituent power, specially, in the case of 'controlled' or 'rigid' Constitutions. A student of Modern Political Constitutions will find that the methods of modern Constitutional amendment are (1) by the ordinary legislature but under certain restrictions; (2) by the people through a referendum; (3) by a majority of all the unions of a Federal State; (4) by special convention; and (5) by a combination of two or more of the above methods which are mentioned in order of increasing rigidit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al and a number of regional authorities. Each of these "in its own sphere is co-ordinate with the others and independent of them." This involves a division of plenary powers and such a division is a negation of sovereignty. Yet somewhere lies the power to change this division. Wherever that power rests, there is to be found legal sovereignty." Having regard to this view of the jurists, it was not surprising that in Sankari Prasad's case Patanjali Shastri, J., speaking for the court, described the power to amend under Article 368 as "soverign constitutent power" (p. 106). By describing the power as "sovereign" constituent power it is not the intention here to declare, if somebody is allergic to the idea, that legal sovereignty lies in this body or that. It is not necessary to do so for our immediate purpose. The word 'sovereign' is used as a convenient qualitative description of the power to highlight its superiority over other powers conferred under the Constitution. For example, legislative power is subject to the Constitution but the power to amend is not. Legislative activity can operate only under the Constitution but the power of amendment op ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the State Legislatures. Amendments may be ratified by two methods, (1) by the legislatures of three-fourths of the States; (2) by special conventions in three-fourths of the States. Congress has the sole power to determine which method of ratification is to be used. It may direct that the ratification may be by the state legislatures or by special conventions. 1284. One thing which stands out so far as Article V is concerned is that referendum as a process of Constitutional amendment has been wholly excluded. In fact it was held by the Supreme Court of America in Dodge v. Woolsey (1855) 18 How 331 at 348 "the Constitution is supreme over the people of the United States, aggregately and in their separate sovereignties, because they have excluded themselves from any direct or immediate agency in making amendments to it, and have directed that amendments should be made representatively for them." In other words, the people, having entrusted the power to amend the Constitution to the bodies mentioned in Article V, had completely withdrawn themselves from the amending process. Out of the two combinations of the bodies referred to in Article V-one is a combination of the C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e people on the question would be inadmissible. An amendment of the Constitution must be made only in accordance with the procedure laid down in the Constitution and whatever individuals and bodies may think that it had better be made by a representative constituent assembly or a convention or the like is of really no relevance. 1285. Under Article 368 the Parliament is the Principal body for amending the Constitution except in cases referred to in the proviso. Parliament need not be associated with the State legislatures in making an amendment of the Constitution in cases excepted from the proviso. It cannot be lost sight of that Parliament in a very large way represents the will of the people. Parliament consists of two Houses-the Lok Sabha and the Rajya Sabha. The Lok Sabha is elected for five years on the basis of adult franchise. The Rajya Sabha is a permanent body-members of which retire by rotation. The Rajya Sabha consists of members elected by the State legislatures who are themselves elected to those legislatures on the basis of adult franchise. Then again there is a striking difference between the position occupied by the Congress in relation to the President in United ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... chial interests is limited. A national perspective had yet to be assiduously fostered. It was, therefore, inevitable that a body which represented All-India leadership at the centre should be the choice. Whatever the reasons, the Constituent Assembly entrusted the power of amendment to the Parliament and whatever others may think about a possible better way, that was not the way which the constituent assembly commanded. The people themselves having withdrawn from the process of amendment and entrusted the task to the Parliament instead of to any other representative body, it is obvious that the power of the authorities designated by the Constitution for amending the Constitution must be co-extensive with the power of a convention or a constituent assembly, had that course been permitted by the Constitution. 1287. We have already shown that constituent power is qualitatively superior to legislative power. Speaking about the legislative competence of the Canadian Parliament, Viscount Sankey L.C. speaking for the Judicial Committee of the Privy Council observed in British Coal Corporation v. The King [1935] A.C. 500 at p. 518 "Indeed, in interpreting a constituent or organic sta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... frame a Constitution naturally want it to endure but, however gifted they may be, they may not be able to project into the future, when, owing to internal or external pressures or the social, economic and political changes in the country, alterations would be necessary in the Constitutional instrument responding all the time to the will of the people in changed conditions. Only thus an orderly change is ensured. If such a change of Constitution is not made possible, there is great danger of the Constitution being overtaken by forces which could not be controlled by the instruments of power created under the Constitution. Wide-spread popular revolt directed against the extreme rigidity of a Constitution is triggered not by minor issues but by major issues. People revolt not because the so-called 'unessential' parts of a Constitution are not changed but because the 'essential' parts are not changed. The essential parts are regarded as a stumbling block in their progress to reform. It is, therefore, evident that if for any reason, whether it is the extreme rigidity of a Constitution or the disinclination of those who are in power to introduce change by amendment, the essential parts l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... titution, the answer would be, in all probability, in the negative. They did not toil on the Constitution for years in order that it may be repealed by the agencies to whom the amendment of the Constitution is entrusted. They wished it to be permanent, if not eternal, knowing that as time moved, it may continue in utility incorporating all required changes made in an orderly manner. Declaring their faith in the Constitution they will express their confidence that the Constitution which they had framed with the knowledge of their own people and their history would be able to weather all storms when it is exposed to orderly changes by the process of amendment To them the whole-sale repeal would be unthinkable; but not necessary changes in response to the demands of time and circumstance which, in the opinion of the then amending authorities, the current Constitutional instrument would be able to absorb. This is sufficient for the courts to go on as it was sufficient for the framers of the Constitution. Quibbling on the meaning of the word 'amendment' as to whether it also involved repeal of the whole Constitution is an irrelevant and unprofitable exercise. Luckily for us besides the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stitution, which was undoubtedly consulted before drafting Article 368, made two specific exceptions. The language structure of Article V has a close resemblance to the language structure of our Article 368. Therefore, if any part of the Constitution was intended to be excluded from the operation of the power to amend it would have normally found a place in or below Article 368. As a matter of fact, in the draft Constitution below Article 304, which corresponds to the present Article 368, there was Article 305 which excluded certain provisions from amendment, but later on Article 305 itself was deleted. Even Article 368 itself was not safe from amendment because the proviso to Article 368 shows that the provisions of the article could be changed. Then again we find that when the people through the constituent assembly granted the power to amend, they made no reservations in favour of the people. The people completely withdrew from the process of amendment. In other words, the grant of power was without reservation. Another thing which is to be noted is that when the Constituent Assembly directed that amendments of the Constitution must be made by a prescribed method, they necessari ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y concur in the reasonableness of the observations made by Isaacs and Rich JJ that, in the absence of any indication to the contrary, no such character can be attributed to one section of the Act which is not conceded to all; and that if Sections 15 and 16 (relating to the tenure of office of the Judges) are to be construed as the respondents desire, the same character must be conceded to Section 56, which provides that in proceedings for printing any extract from a paper it may be shown that such extract was bona fide made". This only emphasizes that all provisions in a Constitution must be conceded the same character and it is not possible to say that one is more important and the other less important. When a legislature has the necessary power to amend, it can amend an important Constitutional provision as unceremoniously as it can amend an unimportant provision of the Constitution. Dicey observes in his Law of the Constitution, 10th edition p. 127: "The "flexibility" of our Constitution in the right of the Crown and the two Houses to modify or repeal any law whatever; they can alter the succession to the Crown or repeal the Acts of Union in the same manner i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere is Article 368 which provides a much more flexible procedure than does the American Constitution. The following passages from the book 'Political Science and Comparative Constitutional Law, Vol. I' written by the great jurist John W. Burgess will show both the rationale for including an amendment clause in a Constitution and the need of making the amending procedure as less rigid as possible. At page 137 he says "A complete Constitution may be said to consist of three fundamental parts. The first is the organisation of the state for the accomplishment of future changes in the Constitution. This is usually called the amending clause, and the power which it describes and regulates is called the amending power. This is the most important part of a Constitution. Upon its existence and truthfulness, i.e. its correspondence with real and natural conditions, depends the question as to whether the state shall develop with peaceable continuity or shall suffer alterations of stagnation, retrogression and revolution. A Constitution, which may be imperfect and erroneous is its other parts, can be easily supplemented and corrected, if only the state be truthfully organised in the Const ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orderly government and orderly change in accordance with the law, it must be conceded that all Constitutions whether flexible or rigid must have the power to amend the Constitution to the same degree; and if flexible Constitutions have the power to make necessary changes in their most cherished Constitutional principles, this power cannot be denied to a Constitution merely because it is a rigid Constitution. The amending power in such a Constitution may therefore, reach all provisions whether important or unimportant, essential or unessential. 1296. The above proposition is supported by several decisions of the Supreme Court of America and the Supreme Courts of the American States, the Constitutions of which are all 'rigid'. In Edwards v. Lesueur South Western Reporter Vol. 33, 1130 it was held that if a State Constitution provides that General Assembly may at any time propose such amendments to that instrument as a majority of the members elected to each house deem expedient the substance and extent of amendment are left entirely to the discretion of the General Assembly. In Livermore v. Waite 102 Cal. 118 only one of the judges, Judge Harrison, held the view that the word 'amend ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The above passage is important from two points of view. One is that Article V subjects the amending power to no restrictions except the two expressly referred to in the article itself, and the second point which is relevant for our purpose is that the people's ratification may be obtained in one of two ways, namely, by the State legislatures or by State conventions. It was for the Congress to choose between these two ways of ratification. But whichever method was chosen, the ratification whether by the State legislatures or by special conventions, was the ratification on behalf of the people because they were representative assemblies who could give a decisive expression of the people's will. As a matter of fact although several amendments have been made to the Constitution under Article V there has been only one, namely, the 21st Amendment which had been referred to state conventions. All other amendments were proposed by the Congress and ratified by the State legislatures-the ratification being regarded as by people's representatives who could decisively express the people's will. If the State legislatures in America which have no responsibility for the executive government of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ution, Murphy J. delivering the opinion of the court said, pp. 1808-1809: "The Constitutional fathers, fresh from a revolution, did not forge a political strait-jacket for the generations to come. Instead they wrote Article V and the First Amendment, guaranteeing freedom of thought, soon followed. Article V contains procedural provisions for Constitutional change by amendment without any present limitation whatsoever except that no State may be deprived of equal representation in the Senate without its consent. Cf. National Prohibition Cases (Rhode Island v. Palmer) 65 Law. ed. 946. This provision and the many important and far-reaching changes made in the Constitution since 1787 refute the idea that attachment to any particular provision or provisions is essential, or that one who advocates radical changes is necessarily not attached to the Constitution. 1300. In Ullmann v. United States 100 Law. ed. 511 Frankfurter, J. delivering the opinion of the Supreme Court on the privilege against self-incrimination (Vth amendment) which, by the way, is recognized by our Constitution as a fundamental right, quoted with approval Chief Judge Macgruder who said "if it be thought tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of a Constitution that an 'amendment' of a Constitution, repeals or changes some provision in, or adds something to, the instrument amended. Then citing Downs v. City of Birmingham, already referred to, it is stated that every proposal which effects a change in a Constitution or adds to or takes away from it is an 'amendment', and the proposal need not be germane to any other feature of the Constitution, nor to the feature which is amended. 1305. Similarly citing State v. Fulton 124 N.E. 172 it is explained that the word 'amendment', when used in connection with the Constitution, may refer to the addition of a provision on a new and independent subject, complete in itself and wholly disconnected from other provisions, or to some particular article, or section, and is then used to indicate an addition to, the striking out, or some change in that particular section. 1306. In Standard Dictionary of Funk and Wagnalls 'amendment' is defined as an act of changing a fundamental law as of a political Constitution or any change made in it according to a prescribed mode of procedure; as to alter the law by amendment, an amendment of the Constitution. 1307. In a Dictionary of the Social ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ified by the legislatures etc. etc." The proviso, therefore, clearly implies that an amendment under Article 368 seeks to make a change in the provisions of the Constitution. If the amendment seeks to make a change in the provisions referred to in Sub-clause (a) to (e) then only the amendment which makes such a change in these provisions requires ratification by the State legislatures. Otherwise, the amendment making a change in other provisions does not require ratification. We have already observed that the, meaning of the word 'change' is uncomplicated and can be easily felt and understood. The noun 'change' according to the Shorter Oxford English Dictionary means "substitution or succession of one thing in place of another; substitution of other conditions; variety." It also means "alteration in the state or quality of anything; variation, mutation." There can be no doubt, therefore, that, having regard to the importance of the amending clause in our Constitution, an amendment contemplates changes in the provisions of the Constitution which are capable of being effected by adding, altering or repealing them, as found necessary, from time to time. As a m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the expression "amendment by way of addition, variation or repeal" would also amount to 'amendment'. But it is more appropriately used when some distinct provisions of a statute are under consideration and even the extreme limit of a repeal of such provisions is contemplated. In the case of an amendment of the Constitution this extreme limit of the repeal of the Constitution is not, as already pointed out, ordinarily contemplated. In the present case the comparison was principally made with "amend by way of addition, variation or repeal in sub-paragraphs (1) of para 7 and 21 in the Fifth and Sixth Schedules respectively. In both these cases, Parliament is authorized from time to time, by law, to make the amendment in any of the provisions of the two schedules. The authority is not only to add to the provision or vary the provision but even repeal the provision. Having provided that way in sub-paragraph 1 the framers of the Constitution added sub-para (2) in each case, but for which, what was done in accordance with sub-para (1) was likely to be misunderstood as an amendment of the Constitution as described in Article 368. Textually the provisions in the Schedules wou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ference to "provisions of the Constitution" having been eschewed, to pad the expression "amendment of the Constitution" by the words "by way of addition, variation or repeal" would have been inappropriate; because such padding was likely to give the impression that the intention was to amend by addition to and, alteration and repeal of, the Constitution, considered as a whole. Neither the alteration nor the repeal of the Constitution, as a whole, could have been intended and hence the padding words would not have commended themselves to the Draftsmen. And because that was not the intention, we have to take the first step of legally construing "this Constitution" as "every provision of the Constitution" and then import the padding words with reference to the provision. Such a construction is perfectly permissible having regard to the general meaning of the word 'amendment'. Since doubts were expressed in the leading majority judgment of five judges in opposition to the view of the other six judges, who agreed that the word 'amendment' was wide in its application, the 24th amendment had to clarify the position. 1313. Article V of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is Constitution, in so far as they are inconsistent with the provisions of this Part, shall, to the extent of such inconsistency, be void. (2) The State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention be void. (3) In this article, unless the context otherwise requires,- (a) "law" includes any Ordinance, order, bye-law, rule, regulation, notification, custom or usage having in the territory of India the force of law; (b) "laws in force" includes laws passed or made by a Legislature or otherwise competent authority in the territory of India before the commencement of this Constitution and not previously repealed, notwithstanding that any such law or any part thereof may not be then in operation either at all or in particular areas. It is obvious from Articles 13(1) and (2) that the intention was to make the fundamental rights paramount and invalidate all laws which were inconsistent with the fundamental rights. On the commencement of the Constitution of India there could not possibly be a vacuum with regard to laws and, therefore, b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t there were certain laws made in the Indian States or even other laws which could be properly described as Constitutional laws which continued in force after the commencement of the Constitution and came within the category described in Article 13(1) and, therefore, there was no reason why an amendment of the Constitution which was also a Constitutional law should not come within the prohibition of Article 13(2). The Indian Independence Act, 1947 and the Government of India Act, 1935 which were the two main Constitutional statutes in accordance with which the country had been governed had been specifically repealed by Article 395. No other statute of similar competence and quality survived our Constitution. It may be that certain statutes of the States and other Constitutional documents may have continued in force as laws under Article 13(1) but it would be wrong to conclude therefrom that an amendment of the Constitution, also being a Constitutional law, would be deemed to have been included in the word 'law' in Article 13(2). We must be clear as to what 'Constitutional law' means in a written Constitution. Jennings in his The Law and the Constitution (fifth edition), pp. 62-65 p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e save as otherwise provided by law. Some articles are subject to the provisions of any law to be made and some are expnessed not to derogate from the power of making laws. Articles 4, 169, para 7 of the Fifth Schedule and para 21 of the Sixth Schedule empower the Parliament to amend the provisions of the first, fourth, fifth and sixth schedules by law. A reference to all these articles will show that in all these articles the expression 'law' me ans a law made by the Parliament in accordance with its ordinary legislative procedure. On the other hand, it is a point worthy of note that Article 368 scrupulously avoids the use of the word 'law'. After the proposal for amendment, introduced in Parliament in the form of a Bill, is passed by the two Houses separately with the requisite majority and is assented to by the President with prior ratification by the requisite number of States in certain cases mentioned in the proviso, the proposed amendment writes itself into the Constitution as a part of it. It is not passed, as already pointed out, as any other law is passed by the ordinary procedure by competent legislatures. The ratification by the State legislatures by a resolution is not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a special position which the framers of the Constitution, thoroughly acquainted with federal and quasifederal Constitutions of the more important countries in the world, must have always known. In any case they knew that the Constitution was distinct from other laws. On that footing it would be only reasonably expected that if an Amendment, not being of the nature of an ordinary law, was intended to be included in word 'law' in Article 13(2), it would have been specifically mentioned in the definition of the word 'law' given in Clause 3(1) of Article 13. The definition is an inclusive definition. It does not mention enacted law or statute law in the definition, apparently because no-body needs to be told that an act of a legislature is law. But it includes such things like an Ordinance, Order, bye-law, rule, regulation, notification, custom or usage in order to clarify that although the aforesaid are not enactments of a legislature, they were still 'law' falling within the definition. An objection seems to have been anticipated that ordinances, orders, bylaws etc., not being the acts of a legislature, are not laws. That apparently was the reason for their specific inclusion. If, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fore, while amending the Constitution, function as governmental organs and, therefore, cannot be regarded as the State for the purposes of Part III of the Constitution. 1322. We thus reach the conclusion that an amendment of the Constitution is not a law made by the State and hence Article 13(2) would not control an amendment of the Constitution. 1323. The same conclusion is arrived at by a slightly different approach. Article 13(2) speaks of a law which becomes void to the extent it takes away or abridges a fundamental right as conferred by certain articles or provisions in Part III of the Constitution. Thus it embodies the doctrine of ultra vires well-known in English law. In other words, it is a law about which one can predicate voidability with reference to the provisions of the Constitution. This is possible only when it is a law made by the organs of the State. When an amendment is made, we have already shown, it becomes part of the Constitution, taking an equal status with the rest of the provisions of the Constitution. Voidability is predicated only with reference to a superior law and not an equal law. There is no superior law with reference to which its voidability can ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Constitution are amended by ordinary law. As already shown Articles 4, 169 and paras 7 and 22 of the Fifth and Sixth Schedules respectively permit the Parliament to make 'by law' certain amendments in the Constitution, but in every case it is further provided that such an amendment made 'by law' shall not be deemed to be an amendment of the Constitution for the purposes of Article 368. When such a distinction is maintained between 'law' and 'an amendment of the Constitution' the same cannot be impaired by reference to the word 'law' used by the Privy Council in a more comprehensive sense in McCawley's case and Rana Singhe's [1965] A.C. 172 case. In the former the Constitution was a flexible Constitution. In the latter, though it was a controlled Constitution the provision with regard to the amendment of the Constitution namely Section 29(4) of the Ceylon (Constitution) Order in Council was part of Section 29 which specifically dealt with the making of laws and came under the subject heading of Legislative power and procedure. In both cases the legislature was sovereign and as often happens in legislatures, principally modelled after the British Parliament, the distinction betw ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m away does not stand close scrutiny. Articles 13 and 32 show that they are rights which the people have "conferred" upon themselves. A good many of them are not natural rights at all. Abolition of untouchability (Article 17), abolition of titles (Article 18); protection against double jeopardy (Article 20(2)); protection of children against employment in factories (Article 24); freedom as to attendance at religious instruction or religious worship in certain educational institutions (Article 28) are not natural rights. Nor are all the fundamental rights conceded to all as human beings. The several freedoms in Article 19 are conferred only on citizens and not non-citizens. Even the rights conferred are not in absolute terms. They are hedged in and restricted in the interest of the general public, public order, public morality, security of the State and the like which shows that social and political considerations are more important in our organized society. Personal liberty is cut down by provision for preventive detention which, having regard to the conditions prevailing even in peace time, is permitted. Not a few members of the constituent assembly resented the limitati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as to maintain individual freedoms and, therefore, in the final analysis it is always a continuous endeavour of a State, having the common good of the people at heart, so to harmonize the Directive Principles and the fundamental rights that, so far as property rights are concerned, the unlimited freedom to hold it would have to undergo an adjustment to the demands of the State policy dictated by the Directive Principles. Deprivation of property in one form or other and even expropriation would, in the eyes of many, stand justified in a democratic organization as long as those who are deprived do not earn it by their own effort or otherwise fail to make adequate return to the society in which they live. The attribute at 'sacrcdness' of property vanishes in an egalitarian society. And once this is accepted and deprivation and expropriation are recognized as inevitable in the interest of a better social organization in which the reality of liberty and freedom can be more widely achieved, the claim made on behalf of property that it is an immutable and inalienable natural right loses its force. One cannot lift parts of the Constitution above it by ascribing ultra-Constitutional virtue ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uality from the political to the social and economic field has added the problems of social security and economic planning. The implementation and harmonisation of these principles has been and continues to be the main problem of democracy. But democratic communities have universally, though with varying speed and intensity, accepted the principle of social obligation as limiting individual right. But modern democracy, by the same process which has led to the increasing modification of individual rights by social duties towards neighbours and community, has every-where had to temper freedom of property with social responsibilities attached to property. The limitations on property are of many different kinds. The State's right of taxation, its police power and the power of expropriation-subject to fair compensationare examples of public restrictions on freedom of property which are now universally recognised and used. Another kind of interference touches the freedom of use of property, through the growing number of social obligations attached by law to the use of industrial property, or contracts of employment. The degree of public control over private property depends largely on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... way. In our Constitution the people having entrusted the power to the Parliament to amend the whole of the Constitution have withdrawn themselves from the process of amendment and hence clearly indicated that there was no reservation. What the Constitution conferred was made revocable, if necessary, by the amendatory process. In my view, therefore, Article 13(2) does not control the amendment of the Constitution. On that conclusion, it must follow that the majority decision in Golak Nath's case is not correct. 1331. No reference was made to any other provision in the Constitution as expressly imposing a limitation on the Amending Power. 1332. It was next contended that there are implied or inherent limitations on the amendatory power in the very structure of the Constitution, the principles it embodies, and in its essential elements and features (described briefly as essential features). They are alleged to be so good and desirable that it could hot have been intended that they were liable to be adversely affected by amendment. Some of the essential features of the Constitution were catalogued as follows: (1) The supremacy of the Constitution; (2) The sovereignty of India; (3) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The question still survives whether the 25th amendment and the 29th amendment are invalid because, as contended by Mr. Palkhivala, an essential feature of the Constitution has been substantially affected. The argument proceeds on the assumption that in the absence of any express limitation on the power of amendment, all the provisions in the Constitution are liable to be amended. He agrees, on this assumption, that even fundamental rights may be somewhat abridged if that is necessary. In this connection, he referred to the first amendment by which Articles 15 and 19 were amended and in both these cases the amendment did abridge the fundamental rights. Similarly he conceded that Articles 31A and 31B were amendments whereby the rights in landed estates were extinguished or substantially affected, but that was in the interest of agrarian reform, a fact of supreme importance in the Indian polity which could not have been ignored for long and to which the Ruling party was committed for a long time. Thus although there had been amendments which abridged fundamental rights, these amendments in his submission did not go to the length of damaging or destroying the fundamental rights. Accord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... either the sovereignty of India is affected or the Republican form of Government has been destroyed. One of the several essential fca'tures listed by him is fundamental rights. Amongst fundamental rights also most are untouched by the amendment. The 25th amendment deals principally with property rights and Articles 14, 19 and 31 in relation to them. By that amendment chiefly two things are sought to be accomplished (1) There shall be no right to receive 'compensation', as judicially interpreted, for a State acquisition for a public purpose, but only to receive an 'amount', (2) A law made to achieve the aims of equitable distribution of community resources or for the prevention of concentration of wealth and means of production shall not be challenged on the ground of repugnancy to Articles 14, 19 and 31. Since it is not the practice of this Court to decide questions which are not 'in immediate controversy it would not be proper to pronounce whether this or that particular so-called essential feature can or cannot be damaged or destroyed by amendment. But since it is argued on behalf of the State that there can be no limitations on the amending power except those expressly provided ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat they were not acquired by the State for a public purpose or that adequate compensation was not paid. The first case under the Bihar Land Reforms Act, 1950, State of Bihar v. Kameshwar Singh [1952] S.C.R. 889 shows that the law was highly unjust (from the prevailing point of view of 'justice') and the compensation payable was in some cases purely illusory. (See : Mahajan J. p. 936). And yet by virtue of Article 31(4) there could be no challenge to that Act and other similar laws on those grounds. By oversight, challenge to such laws under Articles 14 and 19 had not been expressly excluded, and so when the case was pending in this Court, the first Amendment Act was passed inserting Articles 31A and 31B by which, to take no chances, a challenge based on all fundamental rights in Part III was wholly excluded. The course taken by the Constitution and its first Amendment leaves no doubt that Zamindaris and Estates were intended to be expropriated from the very beginning and no 'core' with regard to payment of compensation was sought to be safeguarded. By the time the 4th Amendment was made in 1955, it became apparent that the challenge to any scheme of redistribution or breaking up o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of Article 31(4) & (6) in relation to laws regarding Zamindaris and agricultural estates (there were 20 lakh Zamindars) according to him, in U.P. alone (he said "I presume that if at any time this legislature chooses to nationalise industry, and take control of it, whether it be all the industries or any particular class of it, such as the textile industry or mines, it will be open to it to pass a law and to frame the Principles for such purpose, and those principles will be invulnerable in any court. They will not be open to question, because the only condition for disputing them, as has been pointed out by Shri Alladi, (Krishnaswamy Iyer) one of the most eminent jurists which our country has ever produced, is this, that it should he a fraud on the Constitution)." (See : Constituent Assembly Debates Vol. IX page 1289). It shows that Article 31(4)(6) were the first step as applied to land legislation, in the direction of implementing the Directive Principles of Article 39(b) & (c), and it was only a matter of time when the principles would be applied to other types of concentration of wealth and its distribution. As Mahajan, observed in State of Bihar v. Kameshwar Sin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... blies may be divested of the function by providing for a referendum plebiscite or a special convention. While, thus the power remains the same, the instrumentalities may differ from time to time in accordance with the procedure prescribed. Hidayatullah, J., with respect, was right in pointing out that the power to amend is not entrusted to this or that body. The power is generated when the prescribed procedure is followed by the instrumentalities specified in the Article. Since the instrumentalities are liable to be changed by a proper amendment it will be inaccurate to say that the Constituent Assembly had entrusted the power to any-body. If the authority which is required to follow the procedure is the Parliament for the time being, it may be convenient to describe Parliament as the authority to whom the power is granted or entrusted, but strictly that would be inaccurate, because there is no grant to any body. Whichever may be the instrumentality for the time being, the power remains unqualified. 1341. If the theory of implied limitations is sound-the assumption made being that the same have their origin in the rest of the Constitutional provisions including the Preamble and th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndment Parliament may not, now, be inhibited by the other express provisions of the Constitution, which would mean that it may also ignore all implications arising therefrom. 1345. Where power is granted to amend the Amending power, as in our Constitution, there is no limit to the extent this may be done. It may be curtailed of 'enlarged'. This is well illustrated in Ryan v. Lennox [1935] Irish Reports, 170. Under the Irish State Constitution Act of 1922, the Parliament (Oireachtas) had been given power to amend the Constitution under Article 50 of the Act. Under that Article, amendments during the first eight years of the Constitution, could be validly made without having recourse to a referendum unless specially demanded by the persons, and in the manner specified in Article 47, but amendments made after that period had to be approved in every case by a referendum and the people. By a Constitutional amendment of 1928 (Amendment NO. 10) the compulsion of Article 47 was got rid of, and by an amendment of 1929 (Amendment No. 16) made within the eight year period already referred to, the period of 8 years was extended to 16 years. The result was that the Constitution now authorized ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was regular and that the validity of these subsequent amendments could not be attacked on the ground that they had not been submitted to the people by referendum." The question of validity of Amendment No. 16 was so vital to the petitioner's case that it is impossible to believe that a counsel of the standing of Lord Greene would not have challenged the same and, in the opinion of their Lordships, 'rightly'. According to Keith the judgment of Kennedy, C.J. in Rayan's case was wrong. See : Letters on Imperial Relations Indian Reform Constitutional and International Law 1916-1935 page 157. 1347. The importance of Rayan's case lies in the fact that though Article 50 of the Irish Free State Constitution did not expressly say that Article 50 itself is liable to be amended, no less than five judges of the Irish Courts held it could be amended though the amendment resulted in the 'enlargement' of the power of the Irish Parliament to amend the Constitution. How wide the power was further established in Moore's case which held that Amendment No. 22 was valid, though by this Amendment even the Royal Prerogative regarding appeals to the Privy Council was held to have been abrogated by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by possibility to diminish the efficacy of the other provisions of the Act." To control the true effect of Article 368 "you must have a context even more plain or at least as plain as the words to be controlled". See : Jessel M.R. in Bentley v. Rotherham (1876-77) 4 Ch. D. 588 (592). Neither the text nor the context of the articles embodying the fundamental rights shows that they are not exposed to Article 368. Moreover, when we are concerned with a power under a statute, it is necessary to remember the following observations of Lord Selborne in Reg. v. Burah (1878) 3 App. CAS. 889 at pp. 904 & 905 "The established Courts of Justice, when a question arises whether the prescribed limits have been exceeded, must of necessity determine that question; and the only way in which they can properly do so, is by looking to the terms of the instrument by which, affirmatively, the legislative powers were created, and by which, negatively, they are restricted. If what has been done is legislation, within the general scope of the affirmative words which give the power, and if it violates no express condition or restriction by which that power is limited it is not for any Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the hands of Zamindars and the like but also expropriation without payment of just compensation. That necessarily called for the exclusion of Articles 14, 19 and 31, because no scheme for expropriation or extinguishment of rights in property would succeed without their exclusion. Thereafter there has been a spate of amendments curtailing property rights and none of them seems to have been challenged on the ground that there was something in the provisions themselves (apart from the fact that they affect a 'transcedental' fundamental right) suggesting an implied or inherent limitation on the amending power. The last sentence from Lord Loreburn's judgment quoted about embodies a well-known rule of construction which is useful when the text of a statute is ambiguous. Where the text is clear and unambiguous there can be no recourse to the context or the scheme of the Act; nor can the context or the scheme be utilised to make ambiguous what is clear and unambiguous. Moreover the rule does not permit in case of ambiguity recourse to the scheme and context which is unhelpful in resolving the ambiguity. It does not authorize investigating the scheme and context with an effect of delimit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nstitution to secure to all its citizens (a) JUSTICE, social, economic and political; (b) LIBERTY of thought, expression, belief, faith and worship; (c) EQUALITY of status and of opportunity; and to promote among the citizens (d) FRATERNITY assuring the dignity of the individual and the unity of the Nation. There is no doubt that the Constitution is intended to be a vehicle by which the goals set out in it are hoped to be reached. Indeed, being a part of the Constitution, strictly speaking, it is amendable under Article 368. But we will assume that the people of India will not be rash enough to amend the glorious words of the Preamble; and as long as the Preamble is there the Governments will have to honour the Preamble and the Constitution will have to continue as a vehicle which would lead us to the goals. But to say that the fundamental rights are an elaboration of these goals would be a caricature. Most of the fundamental rights may be traced to the principles of LIBERTY and EQUALITY mentioned in the Preamble. But whereas the concepts of LIBERTY and EQUALITY are mentioned in absolute terms in the Preamble the fundamental rights including the several freedoms are not couched in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... emphasis is from individual liberty to Justice-social, economic and political. 1354. The absolute concepts of Liberty and Equality are very difficult to achieve as goals in the present day organised society. The fundamental rights have an apparent resemblance to them but are really no more than rules which a civilized government is expected to follow in the governance of the country whether they are described as fundamental rules or not. England developed these rules in its day to day Government under the rule of law and does not make a song and dance about them. British rulers of India tried to introduce these rules in the governance of this country, as proof of which we can point out to the vast mass of statutes enacted during the British period which have been continued, practically without change, under our Constitution. No body can deny that when Imperial interests were in jeopardy, these rules of good government were applied with an unequal hand, and when the agitation for self rule grew in strength these rules were thrown aside by the rulers by resorting to repressive laws. It was then that people in this country clamoured for these elementary human rights. To them their va ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rty and means of production, which, as we have already seen, our Constitution does not sympathise with. If the normal rule is that all rules of civilized government are subject to public interest and the common weal, those rules will have to undergo new adjustments in the implementation of the Directive Principles. A blind adherence to the concept of freedom to own disproportionate wealth will not take us to the important goals of the Preamble, while a just and sympathetic implementation of the Directive Principles has at least the potentiality to take us to those goals, although, on the way, a few may suffer some dimunition of the unequal freedom they now enjoy. That being the philosophy underlying the Preamble the fundamental rights and the Directive Principles taken together, it will be incorrect to elevate the fundamental rights as essentially an elaboration of the objectives of the Preamble. As a matter of fact a law made for implementing the Directive Principles of Article 39(b) and (c), instead of being contrary to the Preamble, would be in conformity with it because while if may cut down individual liberty of a few, it widens its horizon for the many. 1356. It follows that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lature may well-intend that the enacting part do extend beyond the apparent ambit of the Preamble. See : Secretary of State v. Maharajah of Bobbili 43 Madras 529 P.C. at 536. As a matter of fact if the enacting part is clear and unambiguous it does not call for construction. In Sprague's case the Supreme Court of America had been called upon to construe Article V, the amending clause, so as to cut down the amending power by implications arising out of certain other provisions of the Constitution itself. Replying to the argument the court observed, "the United 'State asserts that Article V is clear in statement and in meaning contains no ambiguity and calls for no resort to rules of construction. A mere reading demonstrates that this is true." These observations apply with greater force to our amending clause namely Article 368, for in Article V of the American Constitution there was some room for play of argument on the basis of alternative methods permitted for the ratification of the proposed amendments. On the basis of the alternative methods provided in Article V-one by the State legislature and the other by the State convention-it was argued that, the State conventio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of construction with regard to the extent of power and if the power was ascertained from the express words, there could be no further limitation thereon by implication. But in the case referred to above, while three Judges accepted that view as still good, the other four were of the contrary opinion. Whichever view is correct that really makes no difference to me question before us. We are concerned with the amending power. In the Australian case the Judges were concerned with legistative power and that had to be ascertained within the four corners of the Constitution by which the power had been created and under which it had to be exercised. There was room for construction on the basis of the words and structure of the Constitution, especially, the Preamble which was not liable to be amended by the Commonwealth. On the other hand, since the power to amend the Constitution is a superior power it cannot Be bound by any provision of the Constitution itself, the obvious reason being that even such a provision is amendable under the Constitution. In re The Initiative and Referendum Act, [1919] A.C. 935 it was held by the Privy Council that the British North America Act, 1867, Section 9 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e. A plain reading of the latter provision shows they were amend able by a special majority. Secondly, in an earlier portion of the judgment provisions 29(2) & (3) are described as 'entrenched', the plain dictionary meaning of which is that they are not to be repealed except under more than stringent conditions. See also Wade's Introduction to Dicey pages xxxvi to xxxvii. Jennings in his Constitution of Ceylon (1949) points out at page 22 that the limitations of 29(2) & (3) can be altered or abridged by the special procedure under Section 29(4). Similarly we are in Constitutional Structure of the Commonwealth 1960 reprinted in 1963 pages 83-84. In any event, that was a pure matter of construction on a reading of Sub-sections 1 to 4 of Section 29 together. In Taylor's case the question for consideration was as to the interpretation of the expression 'Constitution of such legislature' in Section 5 of the Colonial Laws Validation Act, 1865. At the time in question the legislature consisted of a lower house and an upper house and it was held that the expression 'Constitution of such legislature" 'was wide enough to include the conversion of a bicameral legislature into a unicamera ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... v. Kameshwar Singh [1952] S.C.R. 889. That case arose out of the Bihar Land Reforms Act, 1950 which was pending in the Bihar Legislature at the time of the commencement of the Constitution. After it became law it was reserved for the consideration of the President who gave assent to it. Thus it became one of the laws referred to in Article 31(4) of the Constitution and in virtue of that provision it could not be called in question on the ground that it contravened the provisions of Clause 2 of Article 31. Under that law Zamindari was abolished and the lands vested in the State. The Zamindars received what was described as illusory compensation. As there was danger of challenge under Articles 14, 19 and 31, the Constitution was amended to incorporate Article 31A and Article 31B to take effect from the date of the commencement of the Constitution and this Act along with similar other Acts were included in the Ninth Schedule. In Sankari Prasad's case Che amendment was held valid and when the case came before this Court the arguments became limited in scope. Mr. P.R. Das who appeared for the Zamindars tried to skirt the bar under Article 31(4) by relying on Entry 36 List II and Entry 4 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... equality and a government of a free people with only limited powers, taking of private property without just compensation and in the absence of a public purpose was unConstitutional, and this conclusion should be drawn by implied prohibition in spite of Article 31(4), 31A & 31B expressly barring challenge on those very grounds. In other words, an express provision of the Constitution validating a state law was sought to be nullified on the basis of 'essential features and basic principles' underlying the Preamble and the fundamental rights, but the attempt was negatived. I sec no distinction between Dr. Ambedkar's argument in the above case and the case before us, because the plenary power of amendment under Article 368 is sought to be limited by implications supposed to arise from those same 'essential features and basic principles'. 1361. A legislature functioning under a Constitution is entitled to make a law and it is not disputed that such a law can be amended in any way the legislature likes by addition, alteration or even repeal. This power to amend is implicit in the legislative power to make laws. It can never be suggested that when the legislature amends its own statute ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e sense, is an essential provision, because if a law is made by the Parliament or the State legislatures contravening even the most insignificant provision of the Constitution, that law will be void. From that point of view the courts acting under the Constitution will have to look upon its provisions with an equal eye. Secondly, if an essential provision is amended and a new provision is inserted which, in the opinion of the constituent body, should be presumed to be more essential than the one repealed, what is the yardstick the court is expected to employ? It will only mean that whatever necessity the constituent body may feel in introducing a change in the Constitution, whatever change of policy that body may like to introduce in the Constitution, the same is liable to be struck down if the court is not satisfied either about the necessity or the policy. Clearly this is not a function of the courts. The difficulty assumes greater proportion when an amendment is challenged on the ground that the core of an essential feature is either damaged or destroyed. What is the standard? Who will decide where the core lies and when it is reached ? One can understand the argument that parti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a private individual. So there will be a continuous state of flux after an amendment is made and at any given moment when the court wants to determine the core of the essential feature, it will have to discard, in order to be able to say where the core lies, every other amendment because these amendments also being unstable will not help in the determination of the core. In other words, the courts will have to go by the original Constitution to decide the core of an essential feature ignoring altogether all the amendments made in the meantime, all the transformations of rights that have taken place after them, all the arrangements people have made on the basis of the validity of the amendments and all the laws made under them without question. An argument which leads to such obnoxious results can hardly be entertained. In this very case if the core argument were to be sustained, several previous amendments will have to be set aside because they have undoubtedly affected the core of one or the other fundamental right. Prospective overruling will be the order of the day. 1363. The argument of implied limitations in effect invites us to assess the merits and demerits of the several p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ice are offered for our examination in their interaction on provisions relating to right to property-matters traditionally left to legislative policy and wisdom, we are bound to flounder "in labyrinths to the character of which we have no sufficient guides. 1364. It is true that Judges do judicially determine whether certain restrictions imposed in a statute are reasonable or not. We also decide questions involving reasonableness of any particular action. But Judges do this because there are objective guides. The Constitution and the Legislatures specifically leave such determination to the higher courts, not because they will be always right, but because the subject matter itself defies definition and the legislatures would sooner abide by what the judges say. The same is true about limits of delegated legislation or limits of legislative power when it encroaches on the judicial or any other field. Since the determinataon of all these questions is left to the higher judiciary under the Constitution and the law, the judges have to apply themselves to the tasks, however difficult they may be, in order to determine the legality of any particular legislative action. But all this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he core of essential feature is accepted, it will mean that we add some such proviso below Article 368 : "Nothing in the above Amendment will be deemed to have authorized an Amendment of the Constitution, which has the effect of damaging or destroying the core of the essential features, basic principles and fundamental elements of the Constitution as may be determined by the Courts." This is quite impermissible. 1368. It is not necessary to refer to the numerous authorities cited before us to show that what are described as some of the essential features are not unamendable. It will be sufficient to refer to only a few. Bryce in his book "The American Commonwealth" New and revised edition, Vol. I says at pages 366-67 with reference to Article V of the American Constitution "But looking at the Constitution simply as a legal document, one finds nothing in it to prevent the adoption of an amendment providing a method for dissolving the existing Federal tie, whereupon such method would be applied so as to form new unions, or permit each State to become an absolutely sovereign and independent commonwealth. The power of the people of the United States appears co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion of the Australian Commonwealth" (1901) observe as follows at p. 989 with regard to the amending clause of the Constitution namely Section 128. "It may be concluded that there is no limit to the power to amend the Constitution, but that it can only be brought into action according to certain modes prescribed. We will consider the modes and conditions of Constitutional reforms further; meanwhile it is essential to grasp the significance and comprehensiveness of the power itself. For example, the Constitution could be amended either in the direction of strengthening or weakening the Federal Government; strengthening it, by conferring on it new and additional powers; weakening it, by taking away powers. The Constitution could be amended by reforming the structure of the Federal Parliament and modifying the relation of the two Houses; by increasing or diminishing the power of the Senate in reference to Money Bills; by making the Senate subject to dissolution at the same time as the House of Representatives. It is even contended by some daring interpreters that the Constitution could be amended by abolishing the Senate. It could certainly be amended by remodeiling the Exec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it is submitted, the amount fixed may be more in one and very much less in another depending entirely on the whim of the legislature. Conceivably the amount may be illusory having regard to the value of the property. The principles for determining the amount may equally be arbitrary and unrelated to the deprivation. Therefore, it is contended, the amendment is bad. It is difficult to understand how an amendment to the Constitution becomes invalid because the Constitution authorizes the legislatures to fix an "amount" or to specify the principles on which the "amount" is to be determined instead of fixing the "compensation" or specifying the principles for determining "compensation". Even compensation ultimately is an "amount". All that the amendment has done is to negative the interpretation put by this Court on the concept of compensation, Clause (2) recognizes the fundamental right to receive an amount in case of compulsory acquisition or requisition and all that it wants to clarify is that the fundamental right is not to receive compensation as interpreted by this Court but a right to receive an amount in lieu of the deprivation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Article 39 shall be deemed to be void on the ground that it is inconsistent with, or takes away or abridges any of the rights conferred by Article 14, Article 19 or Article 31; and no law containing a declaration chat it is for giving effect to such policy shall be called in question in any court on the ground that it does not give effect to such policy. Provided that where such law is made by the Legislature of a State, the provisions of this article shall not apply thereto unless such law, having been reserved for the consideration of the President, has received his assent. 1374. Ignoring the proviso for the moment, one finds that the main clause of the article falls into two parts. The first part provides that a law of a particular description shall not be deemed to be void on the ground that it affects injuriously somebody's fundamental rights under Articles 14, 19 and 31. The second part provides that if such a law contains a particular declaration, courts shall not entertain a particular kind of objection. 1375. In the first place, it should be noted that what is saved by Article 31C is a law i.e. a law made by a competent legislature. Secondly since Article 31C comes und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on as a social evil because such concentration, resulting in the concentration of political and economic power in the hands of a few private individuals, not only leads to unequal freedom, on the one hand, but results, on the other, in undermining the same in the case of many. In such conditions it is widely believed that the goals of Equality and Justice, social, economic and political, become unreal, and since the Constitution itself directs that laws may be made to inhibit such conditions it is inevitable that these laws aimed at the reduction of unequal freedoms enjoyed by a few will impair to some extent their fundamental rights under Articles 14, 19 and 31. That would be justified even on the 'core' theory of Mr. Palkhivala because he admits the possibility of an abridgement of a fundamental right in similar cases. Therefore, Article 31C provides, even as Article 31A provided many years ago, that such laws should not be called in question on the grounds furnished by Articles 14, 19 and 31. If a law is made with a view to giving effect to the Directive Principles mentioned in Article 39(b) and 39(c) the law is in conformity with the direct mandate of the Constitution and must ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o therein is of the description it maintains it is. If on a consideration of its true nature and character the court considers that the legislation is not one having a nexus with the principles contained in Article 39(b) or (c), it will not be saved under Article 31C. The sole purpose of the declaration', according to the submission is to remove from the scope of judicial review a question of a political nature the reason for it being, as explained in Beauharanis v. Illinois 343 U.S. 250. "The legislative remedy in practice might not mitigate the evil or might itself give rise to new problems which would only manifest once again the paradox of reform. It is the price to be paid for the trial and error inherent in legislative efforts to deal with obstinate social issues. 1378. It appears to us that the approach suggested on behalf of the Union is the correct approach to the interpretation of Article 31C. 1379. The State's functional policy is to strive to promote the welfare of the people by securing and protecting as effectively as it may a social order in which justice, social, economic and political shall, inform all the institutions of the national life. (Article 38). Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... slation by considering its scope and object, its pith and substance. The other involves a process of evaluation by considering its merits and defects, the adequacy or otherwise of the steps taken to implement it or their capability of producing the desired result. A law made to give effect to the State's policy of securing eradication of the drink evil can be properly identified, as such, if such identification is necessary to bemade by a court in order to see the application of a Constitutional provision. But it is an entirely different proposition to say that thelaw does not actually give effect to the State's policy of securing the eradication of drink. That would require an enquiry which courts cannot venture to undertake owing to lack of adequate means of knowledge and sources of information. An enquiry, like that of a Commission, will lead to debatable questions as to the adequacy of the provisions of the law, its deficiencies, the sufficiency and efficiency of the executive side of the Government to implement it effectively, the problems that arise in the course of implementation of the law and the like, ail of which do not legitimately fall within the ambit of an enquiry by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rticle 31B opens, the protection was not available. That argument has been rejected previously. See for example N.B. Jeejeebhoy v. Assistant Collector, Thana [1965] (1) S.C.R. 636. Actually the argument does not amount to a challenge to the validity of the Amendment, hut an attempt to show that in spite of the Amendment, the two laws would not be saved by Article 316. The twenty-ninth Amendment is not different from several similar Amendments made previously by which Statutes were added from time to time to the ninth schedule and whose validity has been upheld by this Court. The twenty-ninth Amendment is, therefore, valid. 1385. My conclusions are: (1) The power and the procedure for the amendment of the Constitution were contained in the unamended Article 368. An Amendment of the Constitution in accordance with the procedure prescribed in that Article is not a 'law' within the meaning of Article 13. An Amendment of the Constitution abridging or taking away a fundamental right conferred by Part III of the Constitution is not void as contravening the provisions of Article 13(2). The majority decision in Golak Nath v. State of Punjab is with respect, not correct. (2) There were no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... filed by private parties against the judgment of the Kerala High Court upholding the validity of the other provisions too were dismissed. Some writ petitions filed in this Court challenging the validity of the above mentioned Act were also disposed of by this Court in accordance with its decision in the appeals filed by the the State of Kerala and the private parties. 1389. The Kerala High Court as per judgment dated October 21, 1970 declared some other provisions of the Kerala Land Reforms Act as amended by Act 35 of 1969 to the invalid and unConstitutional. After the above judgment of the High Court the Kerala Land Reforms Act was amended by Ordinance 4 of 1971 which was promulgated on January 30, 1971. The Kerala Land Reforms (Amendment) Bill, 1971 was thereafter introduced in the Legislative Assembly to replace the ordinance. The Bill was passed by the Legislative Assembly on April 26, 1971 and received the assent of the President on August 7, 1971. It was thereafter published as the Kerala Land Reforms Act, 1971 (Act 25 of 1971) in the Gazette Extraordinary on August 11, 1971. By the Constitution (Twentyninth Amendment) Act, 1972 which was assented to by the President on Jun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , so far as they are inconsistent in far so as they are inconsistent with the provisions of this part, shall with the provisions of this Part, to the extent of such inconsistency, shall to the extent of such inconssistency be void. be void. (2) The State shall not make any law (2) The State shall not make any law which takes away or abridges the rights which takes away or abridges the conferred by this Part and any law made rights conferred by this Part and any in contravention of this clause shall, law made in contravention of this to the extent of the contravention, clause shall, to the extent of the be void. contravention, be void. (3) In this article, unless the context (3) In this article, unless the context otherwise requires. otherwise requires, (a) "law" includes any Ordinance, order (a) "law" includes any Ordinance byelaw, rules, regulation, notification, order, byelaw, rule, regulation, custom or usage having in the territory notification, of India the force of law; custom or usage having in the territory of India the force, of law; (b) "laws inforce" includes laws passed (b) "laws in force" includes laws or made by a Legislature or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e representation of States in (d) the representration of States in Parliament, or Parliament, or (e) the provisions of this article, (e) the provisions of this article, the amendment shall also require to the amendment shall also require to be ratified by the Legislatures of not be ratified by the Legislatures of less than one-half of the States by not less than one-half of the States by resolutions to that effect passed by resolutions to that effect passed by those Legislatures before the Bill making those Legislatures before the Bill provision for such amendment is presented making provision of or such amendment to the President for assent. is presented to the President for assent. (3) Nothing in Article 13 shall apply to any amendment made under this article. 1393. The Constitution (Twentyfifth Amendment) Act, 1971 amended Article 31 of the Constitution. The scope of the amendment would be clear from Section 2 of the Amendment Act which reads as under: 2. In Article 31 of the Constitution,- (a) for Clause (2), the following clause shall be substituted namely: (2) No property shall be compulsorily acquired or requisitioned save for a public purpose and save by authority of a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... idered by this Court in the case of Sri Sankari Prasad Singh Deo v. Union of India And Anr. [1952] S.C.R. 89 In that case the appellant challenged the First Amendment of the Constitution. The First Amendment made changes in Articles 15 and 19 of the Constitution. In addition, it provided for insertion of two Articles, 31A and 31B, in Part III. Article 31A provided that no law providing for acquisition by the State of any estate or of any such rights therein or the extinguishment or modification of any such right, shall be deemed to be void on the ground that it was inconsistent with or took away or abridged any of the rights conferred by any provision in Part III. The word "estate" was also defined for the purpose of Article 31A. Article 31B provided for validation of certain Acts and Regulations which were specified in the Ninth Schedule to the Constitution. The said Schedule was added for the first time in the Constitution. The Ninth Schedule at that time contained 13 Acts, all relating to estates, passed by various Legislatures off the Provinces or States. It was provided that those Acts and Regulations would not be deemed to be void or ever to have become void on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... em complete protection from attack under any provision of Part III of the Constitution. One of the contentions advanced in Sajjan Singh's case was that, as Article 226 was likely to be affected by the Seventeenth Amendment, it required ratification under the proviso to Article 368 and that the decision in Sankari Prasad's case (supra) which had negatived such a contention required reconsideration. It was also urged that the Seventeenth Amendment was legislation with respect to land and the Parliament had no right to legislate in that respect. It was further argued that as the Seventeenth Amendment provided that Acts put in the Ninth Schedule would be valid in spite of the decision of the courts, it was unConstitutional. This Court by a majority of 3 to 2 upheld the correctness of the decision in Sankari Prasad's case. This Court further held unanimously that the Seventeenth Amendment did not require ratification under the proviso to Article 368. The Parliament, it was held, in enacting the amendment was not legislating with respect to land and that it was open to Parliament to validate legislation which had been declared invalid by courts. By a majority of 3 to 2 the Court held tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the doctrine of 'prospective over-ruling', as explained by us earlier, our decision will have only prospective operation and, therefore, the said amendments will continue to be valid. (5) We declare that the Parliament will have no power from the date of this decision to amend any of the provisions of Part III of the Constitution so as to take away or abridge the fundamental rights enshrined therein. (6) As the Constitution (Seventeenth Amendment) Act holds the field, the validity of the two impugned Acts, namely, the Punjab Security of Land Tenures Act X of 1953, and the Mysore Land-Reforms Act X of 1962, as amended by Act XIV of 1965, cannot be questioned on the ground that they offend Articles 13, 14 or 31 of the Constitution. Hidayatullah J. summed up his conclusions as under: (i) that the Fundamental Rights are outside the amendatoryprocess if the amendment seeks to abridge or take away any of the rights; (ii) that Sankari Prasad's case (and Sajjan Singh't case which followed it) conceded the power of amendment over Part III of the Constitution on an erroneous view of Articles 13(2) and 368; (iii) that the Fust, Fourth and Seventh Amendments being part of the Constit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le 368 the word "law" in Article 13(2) must be read as meaning law passed under the ordinary legislative power and not a Constitutional amendment. (iv) Though the period for which Sankari Prasad's case has stood unchallenged is not long, the effects which have followed on the passing of State laws on the faith of that decision, are so overwhelming that the decision should not be disturbed, otherwise chaos will follow. This is the fittest possible case in which the principle of stare decisis should be applied. (v) The doctrine of prospective overruling cannot be accepted in this country. The doctrine accepted here is that courts declare law and that a declaration made by a court is the law of the land and takes effect from the date the law came into force. It would be undesirable to give up that doctrine and supersede it with the doctrine of prospective overruling. The main conclusions of Bachawat J. were as under: (i) Article 368 not only prescribes the procedure but also gives the power of amendment. (ii) The power to amend the Constitution cannot be said to reside in Article 248 and List I, item 97 because if amendment could be made by ordinary lagislative process ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the nation and the need for agrarian and social reform. (v) If the fundamental rights are unamendable and if Article 368 does not include any such power it follows that the amendment of, say Article 31 by insertions of Articles 31A and 31B can only be made by a voilent revolution. It is doubtful if the proceedings of a new Constitutent Assembly that may be called will have any legal validity for if the Constitution provides its own method of amendment, any other method will be unConstitutional and void. (vi) It was not necessary to express an opinion on the doctrine of prospective overruling of legislation. 1400. Before dealing with Article 368, we may observe that there are twotypes of Constitutions, viz., rigid and flexible. It is a frequently held but erroneous impression th at this is the same as saying nondocumentary or documentary. Now, while it is true that a non-documentary Constitution cannot be other than flexible, it is quite possible for a documentary Constitution not to be rigid. What, then, is that makes a Constitution flexible or rigid? The whole ground of difference here is whether the process of Constitutional law-making is or is not identical with the process o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in States. Fifth Schedule contains provisions as to administration of controlled areas and scheduled tribes while Sixth Schedule contains provisions as to the administration of tribal areas. It is further expressly provided that no such law would be deemed to be an amendment of the Constitution for the purpose of Article 368. There are a number of articles which provide that they would continue to apply till such time as a law is made in variance of them. Some of those articles are: 10, 53(3), 65(3), 73(2), 97, 98(3), 106, 120(2), 135, 137, 142(1), 146(2), 148(3), 149, 171(2), 186, 187(3), 189(3), 194(3), 195, 210(2), 221(2), 225, 229, 239(1), 241(3), 283(1) and (2), 285 (2), 287, 300(1), 313, 345 and 373. 1402. The other provisions of the Constitution can be amended by recourse to Article 368 only. 1403. Article 368 finds its place in Part XX of the Constitution and is the only article in that part. The part is headed "Amendment of the Constitution". It is not disputed that Article 368 provides for the procedure of amending the Constitution. Question, however, arises as to whether Article 368 also contains the power to amend the Constitution. It may be stated in this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the terms of the Bill", in my opinion, clearly indicate that the said article provides not merely the procedure for amending the Constitution but also contains the power to amend Article 368. The fact that a separate Part was provided with the heading "Amendment of the Constitution" shows that the said part was confined not merely to the procedure for making the amendment but also contained the power to make the amendment. It is no doubt true that Article 248 read with item 97 of List I has a wide scope, but in spite of the width of its scope, it cannot, in my opinion, include the power to amend the Constitution. The power to legislate contained in Articles 245, 246 or 248 is subject to the provisions of the Constitution. If the argument were to be accepted that the power to amend the Constitution is contained in Article 248 read with item No. 97 List I, it would be difficult to make amendment of the Constitution because the amendment would in most of the cases be inconsistent with the article proposed to be amended. The only amendments which would be permissible in such an event would be, ones like those contemplated by Articles 4 and 169 which expressly provide fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d in the Constitution. Referring to the' said distribution of lists and the residuary provisions in the Government of India Act, Gwyer C.J. observed in the case In re. The Central Provinces and Berar Sales of Motor Spirit and Lubricants Taxation Act, 1938 [1939] F.C.R. 38. The attempt to avoid a final assignment of residuary powers by an exhaustive enumeration of legislative subjects has made the Indian Constitution Act unique among federal Constitutions in the length and detail of its Legislative Lists. Our Constitution-makers made list of the legislative entries still more exhaustive and the intention obviously was that the subjects mentioned should be covered by one or other of the specific entries, so that as few subjects as possible and which did not readily strike to the Constitution-makers should be covered by the residuary entry 97 in List 1. The Constitution-makers, in my opinion, could not have failed to make an entry in the lists in the Seventh Schedule for amendment of the Constitution if they had wanted the amendment of Constitution to be dealt with as an ordinary legislative measure under Articles 245, 246 and 248 of the Constitution. The fact that they provided sep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rescribed in Article 368 is a self-executing process. The article shows that once the procedure prescribed in that article has been complied with, the end product is the amendment of the Constitution. 1413. Question then arises as to whether there is any power under Article 368 of amendment of Part III so as to take away or abridge fundamental rights. In this respect we find that Article 368 contains provisions relating to amendment of the Constitution. No words are to be found in Article 368 as may indicate that a limitation was intended on the power of making amendment of Part III with a view to take away or abridge fundamental rights. On the contrary, the words used in Article 368 are that if the procedure prescribed by that article is complied with, the Constitution shall stand amended. The words "the Constitution shall stand amended" plainly cover the various articles of the Constitution, and I find it difficult in the face of those clear and unambiguous words to exclude from their operation the articles relating to fundamental rights in Part III of the Constitution. It is an elemental rule of construction that while dealing with a Constitution every word is to be e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing anything contained in this Constitution to the contrary, no amendment which is calculated to infringe or restrict or diminish the scope of any individual rights, any rights of a person or persons with respect to property or otherwise, shall be permissible under this Constitution and any amendment which is or is likely to have such an effect shall be void and ultra vires of any Legislature. The above amendment, which was subsequently withdrawn, must have been incorporated in the Constitution if the framers of the Constitution had intended that no amendment of the Constitution should take away or abridge the fundamental rights in Part III of the Constitution. 1416. Before the Constitution was framed, Mr. B.N. Rau, Constitutional Adviser, sent a questionnaire along with a covering letter on March 17, 1947 to the members of the Central and Provincial Legislatures. Question 27 was to the effect as to what provision should be made regarding the amendment of the Constitution. The attention of the members of the Central and Provincial Legislatures was invited in this context to the provisions for amendment in the British, Canadian, Australian, South African, US, Swiss and Irish Const ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of amendment shows that no such limitation was intended. 1417. The speech of Dr. Ambedkar made on September 17, 1949 while dealing with the provision relating to amendment of the Constitution also makes it clear that he divided the various articles of the Constitution into three categories. In one category were placed certain articles which would be open to amendment by Parliament by simple majority. To that category belonged Articles 2 and 3 of the Draft Constitution relating to the creation and reConstitution of the existing States as well as some other articles like those dealing with upper chambers of the State Legislatures. The second category of articles were those which could be amended by two-thirds majority of members present and voting in each House of Parliament. The third category dealt with articles which not only required twothirds majority of each House of Parliament but also the ratification of not less than half of the Legislatures of the States. There was nothing in the speech of Dr. Ambedkar that apart from the three categories of articles, there was a fourth category of articles contained in Part III which was not amendable and as such, could not be the subjec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts. Pt. Nehru in the course of his speech in support of the First Amendment after referring to the need of making the Constitution adaptable to changing social and economic conditions and changing ideas observed: It is of the utmost importance that people should realise that this great Constitution of ours, over which we laboured for so long, is not a final and rigid thing, which must either be accepted or broken. A Constitution which is responsive to the people's will which is responsive to their ideas, in that it can be varied here and there, they will respect it all the more and they will not fight against, when we want to change it. Otherwise, if you make them feel that it is unchangeable and cannot be touched, the only thing to be done by those who wish to change it is to try to break it. That is a dangerous thing and a bad thing. Therefore, it is a desirable and a good thing for people to realise that this very fine Constitution that we have fashioned after years of labour is good in so far as it goes but as society changes, as conditions change we amend it in the proper way. It is not like the unalterable law of the Medes and the Persians that it cannot be changed, although ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... framed it, is of itself enttitled to very great weight, and when it is remembered that the rights thus established have not been disputed during a period of nearly a century, it is almost conclusive. 1421. So far as the question is concerned as to whether the speeches made in the Constituent Assembly can be taken into consideration, this Court has in three cases, namely, I.C. Golak Nath and Ors. v. State of Punjab and Anr. (supra), H.H. Maharajadhiraja Madhav Rao Jiwaji Rao Scindia Bahadur and Ors. v. Union of India [1971] 3 S.C.R. 9 and Union of India v. H.S. Dhillon [1972] 2 S.C.R. 33 taken the view that such speeches can be taken into account. In Golak Nath's case Subba Rao C.J. who spoke for the majority referred to the speeches of Pt. Jawaharlal Nehru and Dr. Ambedkar on page 791. Reference was also made to the speech of Dr. Ambedkar by Bachawat J. in that case on page 924. In the case of Madhav Rao, Shah J. who gave the leading majority judgment relied upon the speech of Sardar Patel, who was Minister for Home Affairs, in the Constituent Assembly (see page 83). Reference was also made to the speeches in the Constituent Assembly by Mitter J. on pages 121 and 122. More recentl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nstitution. Reference has also been made to Clause (1) of Article 13, according to which all laws in force in the territory of India immediately before the commencement of this Constitution in so far as they are inconsistent with the provisions of this Part, shall, to the extent of such inconsistency, be void. It is urged that word "law" in Article 13(2) should have the same meaning as that word in Article 13(1) and if law in Article 13(1) includes Constitutional law, the same should be its meaning for the purpose of Article 13(2). Our attention has also been invited to Article 372(1) of the Constitution which provides that notwithstanding the repeal by this Constitution of the enactment referred to in Article 395 but subject to the other provisions of the Constitution, all the law in force in the territory of India immediately before the commencement of this Constitution shall continue in force therein until altered or repealed or amended by a competent Legislature or other competent authority. According to Explanation I to Article 372, the expression "law in force" shall include a law passed or made by a Legislature or other competent authority in the territor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fiscal matters and other subjects on which it may become necessary to have law. Statutes are quite often tentative, occasional, and in the nature of temporary expedients (see Constitutional Law and Its Administration by S.P. Weaver, p. 3), Article 13(2) has reference to ordinary piece of legislation. It would also, in view of the definition given in Clause (a) of Article 13(3), include any ordinance, order, bye-law, rule, regulation, notification, custom or usage having in the territory of India the force of law. The Constitution has thus made it clear in matters in which there could be some doubt as to what would constitute "law". If it had been the intention of the framers of the Constitution that the "law" in Article 13 would also include Constitutional law including laws relating to the amendment of Constitution, it is not explained as to why they did not expressly so state in Clause (a) of Article 13(3). The Constitution itself contains indications of the distinction between the Constitution and the laws framed under the Constitution. Article 60 provides for the oath or affirmation to be made and subscribed by the President before entering upon office. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ovisions mentioned in Clause (3). 1427. It has already been mentioned above that there is no question in the case of a law made by the Parliament of its ratification by the resolutions passed by the State Legislatures. The fact that in case of some of the amendments made under Article 368 such ratification is necessary shows that an amendment of the Constitution is not law as contemplated by Article 13(2) or Articles 245, 246 and 248. 1428. Article 395 of the Constitution repealed the Indian Independence Act, 1947 and the Government of India, Act, 1935, together with all enactments amending or supplementing the latter Act, but not including the Abolition of Privy Council Jurisdiction Act, 1949. The law in force mentioned in Article 372(1) has reference not to any Constitutional law in the sense of being a law relating to the Constitution of either the territory of erstwhile British India or the territory comprised in the Indian States. So far as the territory of British India was concerned, the law before January 26, 1950 relating to the Constitution was contained in the Government of India Act, 1935 and the Indian Independence Act, 1947. Both these Acts were repealed by Article ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1947 and the Government of India Act, 1935 or similar other legislative enactments or orders made under the provisions of Constitutions of erstwhile Indian States. Such legislative enactments or Orders were inferior in status to a Constitution. I am, therefore, of the view that the word "law" in Article 372 has reference to law made under a Constitution and not to the provisions of a Constitution itself. 1430. Article 372(1) is similar to the provisions of Section 292 of the Government of India Act, 1935. As observed by Gwyer C.J. in the case of The United Provinces v. Mst. Atiqa Begum and Ors. [1940] 2 F.C.R. 110 such a provision is usually inserted by draftsmen to negative the possibility of any existing law being held to be no longer in force by reason of the repeal of the law which authorized its enactment. The question with which we are concerned is whether law in Article 13 or Article 372 could relate to the provisions of the Constitution or provisions relating to its amendment. So far as that question is concerned, I am of the opinion that the language of Articles 372 and 13 shows that the word "law" used therein did not relate to such provisions. The Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in Article 368 itself which is the sole fountain-head of power to amend, and not in other provisions dealing with ordinary legislation. As stated on pages 24-26 in the Amending of Federal Constitution by Orfield, 'limitation on the scope of amendment should be found written in the amending clause and the other articles of the Constitution should not be viewed as limitations'. The very fact that the power of amendment is put in a separate Part (Part XX) and has not been put in the Part and Chapter (Part XI Chapter I) dealing with legislative powers shows that the two powers are different in character and operate in separate fields. There is also a vital difference in the procedure for passing ordinary legislation and that for bringing about a Constitutional amendment under Article 368. The fact that an amendment Bill is passed by each House of Parliament and those two Houses also pass ordinary legislation does not obliterate the difference between the constituent power and the legislative power nor does it warrant the conclusion that constituent power is a species of legislative power. 1433. Our attention has been invited on behalf of the petitioners to the proceedings of the Const ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ny ordinance, order, byelaw, rule, regulation, notification, custom or usage having the force of law in the territory of India or any part thereof. On February 21, 1948 Dr. Ambedkar forwarded the Draft Constitution of India to the President of the Constituent Assembly along with a covering letter. Clause 9 in this Draft Constitution was numbered as Clause 8. Sub-clause (2) of Clause 9 was retained as Subclause (2) of Clause 8. A proviso was also added to that sub-clause, but that is not material for the purpose of the present discussion. The Constitution was thereafter finally adopted and it contained Article 13, the provisions of which have been reproduced earlier. 1434. It has been argued on behalf of the petitioners that the members of the Drafting Committee who were eminent lawyers of India, deliberately revised Clause 9 of the Draft Constitution prepared by the Constitutional Adviser with a view to undo the effect of the amendment moved by Mr. Santhanam which had been accepted by the Constituent Assembly, because the members of the Drafting Committee wanted that the fundamental rights should not be abridged or taken away by the amendment of the Constitution. 1435. I find it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the words "nothing in this clause shall" the words "affect the provisions of Article 304 of this Constitution or be inserted." (see page 26 Shiva Rao's "The Framing of India's Constitution" Vol. IV). The above note and other such notes were made by the Constitutional Adviser and reproduced fully the views of the Drafting Committee and/or of the Special Committee (see page 4 Shiva Rao's "The Framing of India's Constitution" Vol. I). It would thus appear that there is no indication that the members of the Drafting Committee wanted to deviate from the decision of the Constituent Assembly by making the provisions relating to fundamental rights unamendable. On the contrary, the note shows that they accepted the view embodied in the decision of the Constituent Assembly. 1436. Apart from that I am of the view that if the preservation of the fundamental rights was so vital an important a desideratum, it would seem logical that a proviso would have been added in Article 368 expressly guaranteeing the continued existence of fundamental rights in an unabridged form. This was, however, not done. 1437. The next question which should now engage our at ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . On one notorious instance at least-and other examples of the same phenomenon might be produced from the annals of revolutionary France-the immutability of the Constitution was the ground or excuse for its voilent subversion. To quote the words of Dicey: Nor ought the perils in which France was involved by the immutability with which the statement of 1848 invested the Constitution to be looked upon as exceptional; they arose from a defect which is inherent in every rigid Constitution. The endeavour to create laws which cannot be changed is an attempt to hamper the exercise of sovereign power; it therefore tends to bring the letter of the law into conflict with the will of the really supreme power in the State. The majority of the French electors were under the Constitution the true sovereign of France; but the rule which prevented the legal re-election of the President in effect brought the law of the land into conflict with the will of the majority of the electors, and produced, therefore, as a rigid Constitution has a natural tendency to produce, an opposition between the letter of the law and the wishes of the sovereign. If the inflexibility of French Constitutions has provoke ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns and requirements, Burgess said we must not, as Mirabeau finely expressed it, lose the grande morale in the petite morale. 1438. According to John Stuart Mill, no Constitution can expect to be permanent unless it guarantees progress as well as order. Human societies grow and develop with the lapse of time, and unless provision is made for such Constitutional readjustments as their internal development requires, they must stagnate or retrogress (see Political Science and Government by J.W. Garner p. 536, 537). 1439. Willis in his book on the Constitutional Law of the United States has dealt with the question of amendment of the Constitution in the following words: Why should change and growth in Constitutional law stop with the present? We have always had change and growth, We have needed change and growth in the past because there have been changes and growth in our economic and social life. There will probably continue to be changes in our economic and social life and there should be changes in our Constitutional law in the future to meet such changes just as much as there was need of change in the past. The Fathers in the Constitutional Convention expected changes in the futu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ffect of that restriction in new conditions cannot be foreseen. 1443. The machinery of amendment, it has been said, should be like a safety valve, so devised as neither to operate the machine with too great facility nor to require, in order to set it in motion, an accumulation of force sufficient to explode it. In arranging it, due consideration should be given on the one hand to the requisities of growth and on the other hand to those of conservatism. The letter of the Constitution must neither be idolized as a sacred instrument with that mistaken conservatism which ding to its own worn out garments until the body is ready to perish from cold, nor yet ought it to be made a plaything of politicians, to be tampered with and degraded to the level of an ordinary statute (see Political Science and Government by J.W. Garner, p. 538). 1444. The framers of our Constitution were conscious of the desirability of reconciling the urge for change with the need of continuity. They were not oblivious of the phenomenon writ large in human history that change without continuity can be anarchy; change with continuity can mean progress; and continuity without change can mean no progress. The Const ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er than Constitutional. It would be nothing short of a presumptous and vain act and a myopic obsession with its own wisdom for one generation to distrust the wisdom and good sense of the future generation and to treat them in a way as if the generations to come would not be sui juris. The grant of power of amendment is based upon the assumption that as in other human affairs, so in Constitutions, there are no absolutes and that the human mind can never reconcile itself to fetters in its quest for a better order of things. Any fetter resulting from the concept of absolute and ultimate inevitably gives birth to the urge to revolt. Santayana once said : "Why is there sometimes a right to revolution? Why is there sometimes a duty to loyalty? Because the whole transcendal philosophy, if made ultimate, is false, and nothing but a selfish perspective hypostasized, because the will is absolute neither in the individual nor in the humanity..." (see German Philosophy and Politics (1915) 645-649 quoted by Frankfurter J. in "Mr. Justice Holmes" 931 Ed. page 117). What is true of transcendal philosophy is equally true in the mundane sphere of a Constitutional provision. An u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s and priests generally inculcate this doctrine and suppose that preceding generations held the earth more freely than we do, had a right to impose laws on us, unalterable by ourselves, and that we, in the like manner, can make laws and impose burdens on future generations, which they will have no right to alter; in fine that the earth belongs to the dead and not the living. The above words were quoted during the course of the debate in the Constituent Assembly (see Vol. XI Constituent Assembly debates, p. 975) 1448. Thomas Paine gave expression to the same view in the following words: There never did, there never will, and there never can, exist a parliament, or any description of men, or any generation of men, in any country, possessed of the right or the power of binding and controlling posterity to the 'end of time', or of commanding for ever how the world shall be governed, or who shall govern it; and therefore all such clauses, acts or declarations by which the makers of them attempt to do what they have neither the right not the power to do, nor take power to execute, are in themselves null and void. Every age and generation must be as free to act for itself in all cases a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the acceptance of the opposite view would not result in such consequences. Judged even in this light, I find it difficult to accede to the contention advanced on behalf of the petitioner. 1451. I may at this stage deal with the question, adverted to by the learned Counsel for the petitioners as to how far the consequences have to be taken into account in construing the provisions of the Constitution. In this connection, I may observe that it is one of the well-settled rules of construction that if the words of a statute are in themselves precise and unambiguous, no more is necessary than to expound those words in their natural and ordinary sense, the words themselves in such case best declaring the intention of the legislature. It is equally well-settled that where alternative constructions are equally open that alternative is to be chosen which will be consistent with the smooth working of the system which the statute purports to be regulating; and that alternative is to be rejected which will introduce uncertainty, friction, or confusion into the working of the system (see Collector of Customs, Baroda v. Digvijaysinhji Spinning & Weaving Mills Ltd. [1962] 1 S.C.R. 896 (on p. 8 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rendum and it is through such means that Part III of the Constitution can be amended so as to take away or abridge fundamental rights. The above argument, in my opinion, is untenable and fallacious. If Parliament by a two-thirds majority in each House and by following the procedure laid down in Article 368 cannot amend Part III of the Constitution so as to take away or abridge fundamental rights, it is not understood as to how the same Parliament can by law create a body which can make the requisite amendment. If it is not within the power of Parliament to take away or abridge fundamental rights even by a vote of two-thirds majority in each House, would it be permissible for the same Parliament to enact legislation under entry 97 List I of Seventh Schedule by simple majority for creating a Constituent Assembly in order to take away or abridge fundamental rights ? Would not such a Constituent Assembly be a creature of statute made by parliament even though such a body has the high-sounding name of Constituent Assembly ? The nomenclature of the said Assembly cannot conceal its real nature as being one created under a statute made by the Parliament. A body created by the Parliament ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the federal Constitution, 49 were adopted in a popular referendum. So far as the method of amendment of the Constitution by two-third majority in either House of the Central Legislature and the ratification by the State Legislatures is concerned, we find that during first 140 years since the adoption of the United States Constitution, 3,113 proposals of amendment were made and out of them, only 24 so appealed to the Congress as to secure the approval of the Congress and only 19 made sufficient appeal to the State legislatures to secure ratification (see Constitutional Law of United States by Willis, p. 128). It, therefore, cannot be said that the method of referendum provides a more effective check on the power of amendment compared to the method of bringing it about by prescribed majority in each house of the Parliament. 1458. Apart from that I am of the view that it is not permissible to resort to the method of referendum unless there be a Constitutional provision for such a course in the amendment provision. In the case of George S. Hawkes v. Harvey C. Smith as Secretary of State of Ohio 64 Lawyers Ed. 871 the US Supreme Court was referred in the context of ratification by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the particular issue, so that the new legislature, being returned with a mandate for the proposal, is in essence, a constituent assembly so far as that proposal is concerned. This additional check is applied in Belgium, Holland, Denmark and Norway (in all of which, however, also a two-thirds parliamentary majority is required to carry the amendment after the election) and in Sweden. A third method of Constitutional change by the legislature is that which requires a majority of the two Houses in joint session, that is to say, sitting together as one House, as is the case, for example, in South Africa. 1461. The second method is that which demands a popular vote or referedum or plebiscite. This device was employed in France during the Revolution and again by Louis Napoleon, and in Germany by Hitler. This system prevails in Switzerland, Australia, Eire, May, France (with certain Presidential provisios in the Fifth Republic) and in Denmark. 1462. The third method is peculiar to federations. The voting on the proposed measure may be either popular or by the legislatures of the states concerned. In Switzerland and Australia the referendum is in use; in the United States any proposed a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... only if it is accepted by three-fifth majority of the votes cast. 1465. We may at this stage advert to Article 5 of the United States Constitution which reads as under: The Congress, whenever two-thirds of both Houses shall deem it necessary, shall propose amendments to this Constitution, or, on the application of the legislature of two-thirds of the several States, shall call a convention for proposing amendments, which in either case, shall be valid to all intents and purposes, as part of this Constitution when ratified by the legislatures of three fourths of the several States, or by conventions in three fourth thereof, as the one or the other mode of ratification may be proposed by the Congress; Provided that no amendment which may be made prior to the year one thousand eight hundred and eight shall in any manner affect the first and fourth clauses in the ninth section of the first article; and that no State, without its consent, shall be deprived of its equal suffrage in the Senate. The above article makes it clear that there are two methods of framing and proposing amendments. (A) Congress may itself, by a two-thirds vote in each house, prepare and propose amendments. ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court on appeal upheld the Eighteenth Amendment. After referring to the provisions of Article 5 Roberts J., who gave the opinion of the court, observed: The choice, therefore, of the mode of ratification, lies in the sole discretion of Congress. Appellees, however, pointed out that amendments may be of different kinds, as e.g., mere changes in the character of federal means or machinery, on the one hand, and matters affecting the liberty of the citizen on the other. They say that the framers of the Constitution expected the former sort might be ratified by legislatures, since the States as entities would be wholly competent to agree to such alterations, whereas they intended that the latter must be referred to the people because not only of lack of power in the legislatures to ratify, but also because of doubt as to their truly representing the people. Repelling the contention on behalf of the appellees, the court observed: If the framers of the instrument had any thought that amendments differing in purpose should be ratified in different ways, nothing would have been simpler than so to phrase Article 5 as to exclude implication or speculation, The fact that an instrument draw ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uld be non-existent. This argument, in my opinion, is essentially an argument of fear and distrust in the majority of representatives of the people. It is also based upon the belief that the power under Article 368 by two-thirds of the members present and voting in each House of Parliament would be abused or used extravagently. I find it difficult to deny to the Parliament the power to amend the Constitution so as to take away or abridge fundamental rights by complying with the procedure of Article 368 because of any such supposed fear or possibility of the abuse of power. I may in this context refer to the observations of Marshall C.J. regarding the possibility of the abuse of power of legislation and of taxation in the case of The Providence Bank v. Alpheus Billings. 29 U.S. 514 This vital power may be abused; but the Constitution of the United States was not intended to furnish the corrective for every abuse of power which may be committed by the State governments. The interest, wisdom, and justice of the representative body, and its relations with its constituents furnish the only security where there is no express contract against unjust and excessive taxation, as well as aga ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r would not be abused. The best safeguard against the abuse or extravagant use of power is public opinion and not a letter on the right of people's representatives to change the Constitution by following the procedure laid down in the Constitution itself. It would not be a correct approach to start with a distrust in the people's representatives in the Parliament and to assume that majority of them would have ah aversion for the liberties of the people and would act against the public interest. To quote the words of Justice Holmes in Missouri Kansas & Texas Ry. v. May 194 U.S. 267 (on p. 270). Great Constitutional provisions must be administered with caution. Some play must be allowed for the joints of the machine and it must be remembered that legislatures are ultimate guardians of the liberties and welfare of the people in quite as great a degree as the courts. 1474. L.B. Orfield has dealt with the question of the abuse of power in his book "The Amending of Federal Constitution", in the following words on page 123: 'Abuse' of the amending power is an anomalous term. The proponents of implied limitations resort to the method of reductio ad absurdum in pointing out the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e fundamental principles of equity and fair play which our Constitutions enshrine; and whether I seriously believe that unsupported they will serve merely as counsels of moderation. I do not think that anyone can say what will be left of those principles; I do not know whether they will serve only as counsels; but this much I think I do know that a society so riven that the spirit of moderation is gone, no court can save; that a society where that spirit flourishes, no court need save; that in a society which evades its responsibility by thrusting upon the courts the nurture of that spirit, that spirit in the end will perish. (see p. 164 supra). 1475. It is axiomatic that the involvement of a nation in war by a declaration of war against another country can change the entire course of history of the nation. A wrong decision in this respect can cause untold suffering, result in national humiliation, take to ll of thousands of lives and cripple the economy of the nation for decades to come. If the Government and the Parliament can be entrusted with power of such far reaching magnitude on the assumption that such a power would not be abused but would be exercised reasonably in the na ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ament has or has not the power to amend the Constitution so as to take away or abridge fundamental rights. So far as this question is concerned, the answer, in my opinion, should be in the affirmative, as long as the basic structure of the Constitution is retained. 1476. In the context of abuse of power of the amendment, reference has been made on behalf of the petitioners to the Constitution of Weimar Republic and it is urged that unless there are restrictions on the power of amendment in so far as fundamental rights are concerned, the danger is that the Indian Constitution may also meet the same fate as did the Weimar Constitution at the hands of Hitler. This argument, in my opinion, is wholly misconceived and is not based upon correct appreciation of historical facts. Following military reversals when Kaiser fled to Holland in 1918 his mutinous subjects proclaimed a republic in Germany. There was thus a break in the continuity of the authority and the Weimar Republic had to face staggering political problems. It had to bear the burden of concluding a humilitating peace. It was later falsely blamed for the defeat itself by some of the politicians who were themselves responsible ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Hitler brought about the Nazi dictatorship. He thus became what has been described as "...the supreme political leader of the people, supreme tender and highest superior of the administration, supreme judge of the people, supreme commander of the armed forces and the source of all law. 1477. Apart from the fact that the best guarantee against the abuse of power of amendment is good sense of the majority of the members of Parliament and not the unamendability of Part III of the Constitution, there is one other aspect of the matter. Even if Part III may be left intact, a mockery of the entire parliamentary system can be made by amending Articles 85 and 172, which are not in Part III and according to which the life of the Lok Sabha and Vidhan Sabhas of the States, unless sooner dissolved, would be five years, and by providing that the life of existing Lok Sabha and Vidhan Sabhas shall be fifty years. This would be a flagrant abuse of the power of amendment and I refuse to believe that public opinion in our country would reach such abysmal depths and the standards of political and Constitutional morality would sink so low that such an amendment would ever be passed. I need expre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... then been advanced on behalf of the petitioners that the power of amendment might well be used in such a manner as might result in doing away with the power of amendment under Article 368 or in any case so amending that articles as might make it impossible to amend the Constitution. It is, in my opinion, difficult to think that majority of members of future Parliament would attempt at any time to do away with the power of amendment in spite of the knowledge as to what was the fate of unamendable Constitutions in other countries like France. Assuming that at any time such an amendment to abolish all amendments of Constitution is passed and made a part of the Constitution, it would be nothing short of laying the seeds of a future revolution or other extra-Constitutional methods to do away with unamendable Constitution. It is not necessary for the purpose of this case to go into the question of the Constitutional validity of such an amendment. 1480. We may now deal with the question as to what is the scope of the power of amendment under Article 368. This would depend upon the connotation of the word "amendment". Question has been posed during arguments as to whether the po ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stitution shall stand amended" in Article 368 show that what is amended is the existing Constitution and what emerges as a result of amendment is not a new and different Constitution but the existing Constitution though in an amended form. The language of Article 368 thus lends support to the conclusion that one cannot, while acting under that article, repeal the existing Constitution and replace it by a new Constitution. 1482. The connotation of the amendment of the Constitution was brought out clearly by Pt. Nehru in the course of his speech in support of the First Amendment wherein he said that "a Constitution which is responsive to the people's will, which is responsive to their ideas, in that it can be varied here and there, they will respect it all the more and they will not fight against, when we want to change it." It is, therefore, plain that what Pt. Nehru contemplated by amendment was the varying of the Constitution "here and there" and not the elimination of its basic structure for that would necessarily result in the Constitution losing its identity. 1483. Reference to some authorities in the United States so far as the question is concerned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of underlying principles, adapt the system to the needs of changing conditions, be in the words of Calhoun 'the medicatrix of the system', but should not touch its foundations. A similar idea has been brought out in the, following passage by Carl J. Friedrich page 272 of "Man and His Government" (1963): A Constitution is a living system. But just as in a living, organic system, such as the human body, various organs develop and decay yet the basic structure or pattern remains the same with each of the organs having its proper function, so also in a Constitutional system the basic institutional pattern remains even though the different component parts may undergo significant alterations. For it is the characteristic of a system that it perishes when one of its essential component parts is destroyed. The United States may retain some kind of Constitutional government, without, say, the Congress or the federal division of powers, but it would not be the Constitutional system now prevailing. This view is uncontested even by many who do not work with the precise concept of a Constitution here insisted upon. 1486. According to "The Construction of Statutes" by Craw ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t repealing any of the existing clauses. Experience of the working of the Constitution may also make it necessary to insert some new and additional articles in the Constitution. Likewise, experience might reveal the necessity of deleting some existing articles. All these measures, in my opinion, would lie within the ambit of the power of amendment. The denial of such a broad and comprehensive power would introduce a rigidity in the Constitution as might break the Constitution. Such a rigidity is open to serious objection in the same way as an unamendable Constitution. 1489. The word "amendment" in Article 368 must carry the same meaning whether the amendment relates to taking away or abridging fundamental rights in Part III of the Constitution or whether it pertains to some other provision outside Part III of the Constitution. No serious objection is taken to repeal, addition or alteration of provisions of the Constitution other than those in Part III under the power of amendment conferred by Article 368. The same approach, in my opinion, should hold good when we deal with amendment relating to fundamental rights contained in Part III of the Constitution. It would be imp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... counter-claim of private parties engaged in litigation, while a Constitution provides for the framework of the different organs of the State, viz., the executive, the legislature and the judiciary. A Constitution also reflects the hopes and aspirations of a people. Besides laying down the norms for the functioning of different organs a Constitution encompasses within itself the broad indications as to how the nation is to march forward in times to come. A Constitution cannot be regarded as a mere legal document to be read as a will or an agreement nor is Constitution like a plaint or a written statement filed in a suit between two litigants. A Constitution must of necessity be the vehicle of the life of a nation. It h as also to be borne in mind that a Constitution is not a gate but a road. Beneath the drafting of a Constitution is the awareness that things do not stand still but move on, that life of a progressive nation, as of an individual is not static and stagnant but dynamic and dashful. A Constitution must therefore contain ample provision for experiment and trial in the task of administration. A Constitution, it needs to be emphasised, is not a document for fastidious diale ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... yer C.J. after adopting these observations said : "Especially is this true of a Federal Constitution with its nice balance of jurisdictions. I conceive that a broad and liberal spirit should inspire those whose duty it is to interpret it; but I do not imply by this that they are free to stretch or pervert to language of the enactment in the interest of any legal or Constitutional theory or even for the purpose of supplying omissions or of correcting supposed errOrs." There is considerable authority for the statement that the Courts are not at liberty to declare an Act void because in their opinion it is opposed to a spirit supposed to pervade the Constitution but not expressed in words. Where the fundamental law has not limited, either in terms or by necessary implication, the general powers conferred upon the Legislature we cannot declare a limitation under the notion of having discovered something in the spirit of the Constitution which is not even mentioned in the instrument. It is difficult upon any general principles to limit the omnipotence of the sovereign legislative power by judicial interposition, except so far as the express words of a written Constitution give ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... absence of the clarification, the power which inheres and is implicit would be nonexistent. Apart from that, I am of the view that sub-paragraph (2) of paragraph 7 of the Fifth Schedule indicates that the word "amendment" has been used in the sense so as to cover amendment by way of addition, variation or repeal. According to that paragraph, no law mentioned in sub-paragraph (1) shall be deemed to be an amendment of the Constitution for purpose of Article 368. As sub-paragraph (1) deals with amendment by way of addition, variation or repeal, the amendment of Constitution for purpose of Article 368 referred to in sub-paragraph (2) should be construed to be co-extensive and comprehensive enough to embrace within itself amendment by way of addition, variation or repeal. The same reasoning would also apply to sub-paragraph (2) of paragraph 21 of the Sixth Schedule. 1493. The Judicial Committee in the case of British Coal Corporation v. The King [1935] A.C. 500 laid down the following rule: In interpreting a constituent or organic statute such as the Act, that construction most beneficial to the widest possible amplitude of its powers must be adopted. The Judicial Committee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ith that provision. Amendment of Constitution has a wide and broad connotation and would embrace within itself the total repeal of some articles or their substitution by new articles which may not be consistent with or in conformity with earlier articles. Amendment in Article 368 has been used to denote change. This is clear from the opening words of the proviso to Article 368 according to which ratification by not less than half of State Legislatures would be necessary if amendment seeks to make a change in the provisions of the Constitution mentioned in the proviso. The word change has a wide amplitude and would necessarily cover cases of repeal and replacement of earlier provisions by new provisions of different nature. Change can be for the better as well as for the worse. Every amendment would always appear to be a change for the worse in the eyes of those who oppose the amendment. As against that, those who sponsor an amendment would take the stand that it is a change for the better. The court in judging the validity of an amendment would not enter into the arena of this controversy but would concern itself with the question as to whether the Constitutional requirements for m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... they may be unwise, improvident, or out of harmony with a particular school of thought'. 1496. It has also been urged on behalf of the petitioners that the framers of the Constitution could not have intended that even though for the amendment of articles referred to in the proviso to Article 368, ratification of not less than one half of the State Legislatures would be necessary, in the case of an amendment which deals with such a vital matter as the taking away or abridgement of fundamental rights, the amendment could be brought about without such a ratification. This argument, in my opinion, is untenable. The underlying fallacy of this argument is that it assumes that ratification by the State Legislatures is necessary under the proviso in respect of Constitutional amendments of great importance, while no such ratification is necessary in the case of comparatively less important amendments. Plain reading of Article 368, however, shows that ratification by the State Legislatures has been made imperative in the case of those Constitutional amendments which relate to or affect the rights of the States. In other cases no such ratification is necessary. The scheme of Article 368 is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fundamentally unaltered. We have by our laws given certain rights to provinces, and reserved certain rights to the Centre. We have distributed legislative authority; we have distributed executive authority and we have distributed administrative authority. Obviously to fay that even those articles of the Constitution which pertain to the administrative, legislative, financial and other powers, such as the executive powers of the provinces should be made liable to alteration by the Central Parliament by two-thirds majority, without permitting the provinces or States to have any voice, is in my judgment altogether nullifying the fundamentals of the Constitution. 1497. learned Counsel for the petitioners has addressed us at some length on the point that even if there are no express limitations on the power of amendment, the same is subject to implied limitations, also described as inherent limitations. So far as the concept of implied limitations is concerned, it has two facets. Under the first facet, they are limitations which flow by necessary implication from express provisions of the Constitution. The second facet postulates limitations which must be read in the Constitution irre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that after having dealt with the matter so exhaustively and at such great length in express words, they would leave things in the realm of implication in respect of such an important article as that relating to the amendment of the Constitution. If it was intended that limitations should be read on the power of making amendment, question would necessarily arise as to why the framers of the Constitution refrained from expressly incorporating such limitations on the power of amendment in the Constitution itself. The theory of implied limitations on the power of making amendment may have some fascination and attraction for political theorists, but a deeper reflection would reveal that such a theory is based upon a doctrinaire approach and not what is so essential for the purpose of construing and working a Constitution, viz., a pragmatic and practical approach. This circumstance perhaps accounts for the fact that the above theory of implied limitations has not been accepted by the highest court in any country. 1501 As the concept of implied limitations on the power of amendment under the second aspect is not based upon some express provision of the Constitution, it must be regarded as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etitioners challenged before the US Supreme Court the validity of the Eighteenth Amendment relating to prohibition. It was urged that the aforesaid amendment had resulted in encroachment upon the police power of the States. There was implied limitation on the power to make such an amendment, according to the petitioners in those cases under Article 5 of the US Constitution. Although the Supreme (Joint gave no reasons in support of its conclusion, it upheld the validity of the Eighteenth Amendment. Argument about the implied limitations on the power of amendment was thus tacitly rejected. 1503. Eminent authors like Rottschaefer and Willis have taken the view that the theory of implied limitations should be taken to have been rejected in the National Prohibition Cases (supra) by the US Supreme Court. Rottschaefer in Handbook of American Constitutional Law has observed on pages 8 to 10: The only assumption on which the exercise of the amending power would be inadequate to accomplish those results would be the existence of express or implied limits on the subject matter of amendments. It has been several times contended that the power of amending the federal Constitution was thus lim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isting of officers of Defence Forces to try a number of offences. Power of detention on suspicion in certain cases was also conferred. It was in the context of the validity of the establishment of such Tribunals that the question arose as to whether there was an implied limitation on the power to make amendment. It was held by the Supreme Court (FitzGibbon and Murnaghan JJ. and Kennedy C.J. dissenting), while dealing with the first two amendments, that these enactments were within the power of amendment conferred on the Oireachtas by Article 50 and were valid amendments of the Constitution; and that, consequently, an amendment of the Constitution; enacted after the expiry of the original period of eight years was not invalid by reason of not having been submitted to a referendum of the people under Article 50 or Article 47 as originally enacted. Dealing with the Constitution (Amendment No. 17) Act, 1931 it was held by the same majority that it was a valid amendment and was not ultra vires by reason of involving a partial repeal of the Constitution or by reason of conflicting with specific articles of the Constitution such as Article 6 relating to the liberty of the person, Article ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ore, find any ground upon which the suggested limitation can be properly based. 1506. The theory of implied limitations on the power of amendment was thus rejected by the majority of the Judges of the Irish Supreme Court. It would further appear that the crucial question which arose for determination in that case was whether there was any power to amend the article relating to amendment of the Constitution or whether there was any restriction in this respect. No such question arises under our Constitution because there is an express provision in Clause (e) of the proviso to Article 368 permitting such amendment. Apart from that I find that in the case of Moore and Ors. v. The Attorney-General for the Irish Free State and Ors. [1935] A.C. 484 the counsel for the appellant did not challenge the Constitutional validity of the 1929 Amendment. The counsel conceded that the said Amendment was regular and that the validity of the subsequent amendments could not be attacked on the ground that they had not been submitted to the people in a referendum. Dealing with the above concession, the Judicial Committee observed that the counsel had rightly conceded that point. The Judicial Committee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the highest possible form outside of revolution, it becomes perilous for the judiciary to intervene." (see ibid. p. 120). Orfield in this context quoted the following passage from a judicial decision: Impressive words of counsel remind us of our duty to maintain the integrity of Constitutional government by adhering to the limitations laid by the sovereign people upon the expression of its will.... Not less imperative, however, is our duty to refuse to magnify their scope by resort to subtle implication.... Repeated decisions have informed us that only when conflict with the Constitution is clear and indisputable will a statute be condemned as void. Still more obvious is the duty of caution and moderation when the act to be reviewed is not an act of ordinary legislation, but an act of the great constituent power which has made Constitutions and hereafter may unmake them. Narrow at such times are the bounds of legitimate implications." (see ibid. p. 121). H.E. Willis has rejected the theory of implied limitations in his book "Constitutional Law of the United States" in the following words: But it has been contended that there are all sorts of implied limitat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in those provisions, those rights, having been once incorporated in the Constitution or the statute, can be abridged or taken away by amendment of the Constitution or the statute. The rights, as such, cannot be deemed to be supreme or of superior validity to the enactments made by the state, and not subject to the amendatory process. 1510. It may be emphasised in the above context that those who refuse to subscribe to the theory of enforceability of natural rights do not deny that there are certain essential values in Me, nor do they deny that there are certain requirements necessary for a civilized existence. It is also not denied by them that there are certain ideals which have inspired mankind through the corridor of centuries and that there are certain objectives and desiderata for which men have struggled and made sacrifices. They are also conscious of the noble impulses yearning for a better order of things, of longings natural in most human hearts, to attain a state free from imperfections where higher values prevail and are accepted. Those who do not subscribe to the said theory regarding natural rights, however, do maintain that rights in order to be justiciable and enfor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of there being moral or natural rights; and in so far as these rules lay down that men have certain rights, we may speak of moral or natural rights. The fact that such natural or moral rights and duties are not prescribed in black and white like their legal counterparts points to a distinction between law and morals; it does not entail the complete non-existence of moral rights and duties. (see p. 218-219). 1513. The observations on page 61 of P.W. Peterson's "Natural Law and Natural Rights" show that the theory of natural rights which was made so popular by John Locke has since ceased to receive general acceptance. Locke had propounded the theory that the community perpetually retains a supreme power of saving themselves from the attempts and designs of anybody, even of their legislators whenever they shall be so foolish or so wicked as to lay and carry on designs against the liberties and properties of the subject (see Principles of Civil Government Book 2 S 149). 1514. While dealing with natural rights, Roscoe Pound states on page 500 of Vol. I of his Jurisprudence: Perhaps nothing contributed so much to create and foster hostility to courts and law and Constitution ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nction has been made on behalf of the petitioners between a fundamental right and the essence, also described as core, of that fundamental right. It is urged that even though the Parliament in compliance with Article 368 has the right to amend the fundamental right to property, it has no right to abridge or take away the essence of that right. In my opinion, this differentiation between fundamental right and the essence or core of that fundamental right is an over-refinement which is not permissible and cannot stand judicial scrutiny. If there is a power to abridge or take away a fundamental right, the said power cannot be curtailed by invoking the theory that though a fundamental; right can be abridged or taken away, the essence or core of that fundamental right cannot be abridged or taken away. The essence or core of a fundamental right must in the nature of things be its integral part and cannot claim a status or protection different from and higher than of the fundamental right of which it is supposed to be the essence or core. There is also no objective standard to determine as to what is the core of a fundamental right and what distinguishes it from the periphery. The absence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that there was no case for giving a carte blanche to the Government to arrest, except in a grave emergency, any person without 'due process of law', there was considerable support for the view that due process clause might hamper legislation dealing with property and tenancy. A compromise formula was then suggested by Mr. Panikkar and with the support of Mr. Munshi, Dr. Ambedkar and Mr. Rajagopalachari the suggestion was adopted that the word "property" should be omitted from the clause. In the meanwhile, Mr. B.N. Rau during his visit to America had discussion with Justice Frankfurter of the US Supreme Court who expressed the opinion that the power of review implied in the "due process" clause was not only undemocratic (because it gave a few judges the power of vetoing legislation enacted by the representatives of the nation) but also threw an unfair burden on the judiciary. This view was communicated to the Drafting Committee which replaced the expression "without due process of law" by the expression "except according to procedure established by law". The newly inserted words were borrowed from Article 31 of the Japanese Constitution (see ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Statutes, Twelfth Edition, p. 183). It has been observed on page 185: But if a statute is clearly inconsistent with international law or the comity of nations, it must be so construed, whatever the effect of such a construction may be. There is, for instance, no doubt that a right conferred on an individual by a treaty made with the Crown may be taken from him by act of the legislature. The above observations apply with greater force to a Constitutional provision as such provisions are of a paramount nature. It has already been mentioned above that the provisions of our Constitution regarding the power of making amendment are clear and unambiguous and contain no limitation on that power. I, therefore, am not prepared to accede to the contention that a limitation on the power of amendment should be read because of the declaration of Human Rights in the UN Charter. 1521. I may mention in the above context that it is always open to a State to incorporate in its laws the provisions of an international treaty, agreement or convention. In India the provisions of the Geneva Conventions have been incorporated in the Geneva Conventions Act, 1960 (Act 6 of 1960). According to the Treati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ving for Indians during the period between August 15, 1947 and January 26,. 1950. The plea that provisions of the Constitution, including those of Part III, should be given restrospective effect has been rejected by this Court. Article 19 which makes provision for fundamental rights, is not applicable to persons who are not citizens of India. Can it, in view of that, be said that the non-citizens cannot while staying in India lead a dignified life ? It would, in my opinion, be not a correct approach to say that amendment of the Constitution relating to abridgement or taking away of the fundamental rights would have the effect of denuding human beings of basic dignity and would result in the extinguishment of essential values of life. 1523. It may be mentioned that the provisions of Article 19 show that the framers of the Constitution never intended to treat fundamental rights to be absolute. The fact that reasonable restrictions were carved in those rights clearly negatives the concept of absolute nature of those rights. There is also no absolute standard to determine as to what constitutes a fundamental right. The basis of classification varies from country to country. What is fu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ept for sixteen articles which were mentioned in that article, the remaining provisions of the Constitution came into force on the 26th day of January, 1950. The words "the remaining provisions", in my opinion, would include the Preamble as well as Part III and Part IV of the Constitution. It may also be mentioned that a proposal was made in the Constituent Assembly by Mr. Santhanam that Preamble should come into force on November 26, 1949 but the said proposal was rejected. 1526. As Preamble is a part of the Constitution, its provisions other than those relating to basic structure or framework, it may well be argued, are as much subject to the amendatory process contained in Article 368 as other parts of the Constitution. Further, if Preamble itself is amendable, its provisions other than those relating to basic structure cannot impose any implied limitations on the power of amendment. The argument that Preamble creates implied limitations on the power of amendment cannot be accepted unless it is shown that the Parliament in compliance with the provisions of Article 368 is debarred from amending the Preamble in so far as it relates to matters other than basic structure ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e enacting words) admit of only one construction, that construction will receive effect even if it is inconsistent with the preamble, but if the enacting words are capable of either of the constructions offered by the parties, the construction which fits the preamble may be preferred. 1527. In the President's reference In Re : The Berubari Union and Exchange of Enclaves, [1963] S.C.R. 250 the matter related to the implementation of the agreement between the Prime Ministers of India and Pakistan regarding the division of Berubari Union and for exchange of Cooch-Bihar Enclaves in Pakistan and Pakistan enclaves in India. The contention which was advanced on behalf of the petitioner in that case was that the agreement was void as it ceded part of India's territory, and in this connection, reference was made to the Preamble to the Constitution. Rejecting the contention this Court after referring to the words of Story that preamble to the Constitution is "a key to open the minds of the makers" which may show the general purposes for which they made the several provisions, relied upon the following observations of Willoughby about the Preamble to the American Constitution: It ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cessary for the peaceful evolution of society, it is also in the interest of those who belong to the upper strata to ensure that the potential causes for violent upheaval are eliminated. Various remedies have been suggested in this connection and the stress has been laid mainly upon having what is called a welfare state. The modern states have consequently to take steps with a view to ameliorate the conditions of the poor and to narrow the chasm which divides them from the affluent sections of the population. For this purpose the state has to deal with the problems of social security, economic planning and industrial and agrarian welfare. Quite often in the implementation of these policies, the state is faced with the problem of conflict between the individual rights and interests on the one side and rights and welfare of vast sections of the population on the other. The approach which is now generally advocated for the resolving of the above conflict is to look upon the rights of the individuals as conditioned by social responsibility. Harold Laski while dealing with this matter has observed in Encyclopaedia of the Social Sciences: The struggle for freedom is largely transferred f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ume I of Jurisprudence under the heading "Limitations on the Use of Property": Today the law is imposing social limitations-limitations regarded as involved in social life. It is endeavouring to delimit the individual interest better with respect to social interests and to confine the legal right or liberty or privilege to the bounds of the interest so delimited. To quote the words of Friedmann in Legal Theory: But modern democracy looks upon the right to property as one conditioned by social responsibility by the needs of society, by the 'balancing of interests' which looms so large in modern jurisprudence, and not as preordained and untouchable private right. (Fifth Edition, p. 406). 1532. With a view to bring about economic regeneration, the state devises various methods and puts into operation certain socio-economic measures. Some of the methods devised and measures put into operation may impinge upon the property rights of individuals. The courts may sometimes be sceptical about the wisdom behind those methods and measures, but that would be an altogether extraneous consideration in determining the validity of those methods and measures. We need not dilate further ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Nehru Report in this context would be not helpful. If the language of Article 368 warrants a wide power of amendment as may include the power to take away or abridge fundamental rights, the said power cannot be held to be nonexistent nor can its ambit be restricted by reference to Nehru Report. The extent to which historical material can be called in aid has been laid down in Maxwell on Interpretation of Statutes on page 47-48 as under: In the interpretation of statutes, the interpreter may call to his aid all those external or historical facts which are necessary for comprehension of the subject-matter, and may also consider whether a statute was intended to alter the law or to leave it exactly where it stood before. But although we can have in mind the circumstances when the Act was passed and the mischief which then existed so far as these are common knowledge...we can only use these matters as an aid to the construction of the words which Parliament has used. We cannot encroach on its legislative function by reading in some limitation which we may think was probably intended but which cannot be inferred from the words of the Act. The above observations hold equally good ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted: Two revolutions, the national and the social, had been running parallel in India since the end of the First World War. With independence, the national revolution would be completed, but the social revolution must go on. Freedom was not an end in itself, only 'a means to an end', Nehru had said, 'that end being the raising of the people...to higher levels and hence the general advancement of humanity'. The first task of this Assembly (Nehru told the members) is to free India through a new Constitution, to feed the starving people, and to clothe the naked masses, and to give every Indian the fullest opportunity to develop himself according to his capacity. K. Santhanam, a prominent southern member of the Assembly and editor of a major newspaper, described the situation in terms of three revolutions. The political revolution would end, he wrote, with independence. The social revolution meant 'to get (India) out of the medievalism based on birth, religion, custom, and community and reconstruct her social structure on modern foundations of law, individual merit, and secular education'. The third revolution was an economic one : The transition from primitive rural economy to scie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ical control of the country, and that Indian capitalists should not inherit the empire of British colonialists. 1536. Pt. Nehru, in the course of his speech in support of the Constitution (First Amendment) Bill, said: And as I said on the last occasion the real difficulty we have to face is a conflict between the dynamic ideas contained in the Directive Principles of Policy and the static position of certain things that are called 'fundamental' whether they relate to property or whether they relate to something else. Both are important undoubtedly. How are you to get over them ? A Constitution which is unchanging and static, it does not matter how good it is, how perfect it is, is a Constitution that has past its use. 1537. Again in the course of his speech in support of the Constitution (Fourth Amendment) Bill, Pt. Nehru said: But, I say, that if that is correct, there is an inherent contradiction in the Constitution between the fundamental rights and the Directive Principles of State Policy. Therefore, again, it is up to this Parliament to remove that contradiction and make the fundamental rights subserve the Directive Principles of State Policy. 1538. It cannot, therefore, b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... its own powers is untenable. Amendment of the Constitution, in the very nature of things, can result in the conferment of powers on or the enlargement of powers of one of the organs of the state. Likewise, it can result in the taking away or abridgement of the powers which were previously vested in an organ of the state. Indeed nearly every expansion of powers and functions granted to the Union Government would involve consequential contraction of powers and functions in the Government of the States. The same is true of the converse position. There is nothing in the Constitution which prohibits or in any other way prevents the enlargement of powers of Parliament as a result of Constitutional amendment and, in my opinion, such an amendment cannot be held to be impermissible or beyond the purview of Article 368. Indeed, a precedent is afforded by the Irish case of Jeremish Ryan (supra) wherein amendment made by the Oirechtas as a result of which it enlarged its powers inasmuch as its power of amending the Constitution without a referendum was increased from eight years to 16 years was held to be valid. Even Kennedy C.J. who gave a dissenting judgment did not question the validity of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e contrary, the members of the Constituent Assembly framed and adopted the Constitution as the representatives of the people and on behalf of the people of India. This is clear from the opening and concluding words of the Preamble to the Constitution. There is, indeed, no reference to the Indian Independence Act in the Constitution except about its repeal in Article 395 of the Constitution. 1542. Apart from the above, I find that all that Sub-section (6) of Section 6 of the Indian Independence Act provided for was that the power referred to in Sub-section (1) would extend to the making of laws limiting for the future the powers of the Legislature of the Dominion. The Provisional Parliament acting as the Constituent Assembly actually framed the Constitution which placed limitations on the ordinary legislative power of the future Parliaments by providing that the legislative laws would not contravene the provisions of the Constitution. At the same time, the Constituent Assembly inserted Article 368 in the Constitution which gave power to the two Houses of future Parliaments to amend the Constitution in compliance with the procedure laid down in that article. There is nothing in Sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es ratified the Constitution after it had been prepared by the Philadelphia Convention, the above concept has plainly no relevance in the context of the Indian Constitution. The whole of India was, as already mentioned, one country long before the Constitution was adopted. There was also no occasion here for the ratification of the Constitution by each State after it had been adopted by the Constituent Assembly. 1545. Reference has been made on behalf of the petitioners to the case of Mangal Singh and Anr. v. Union of India [1967] 2 S.C.R. 109 which related to the Punjab Reorganization Act, 1966. This Court while upholding the validity of the Act dealt with Article 4, according to which any law referred to in Article 2 or Article 3 shall contain such provisions for the amendment of the First Schedule and the Fourth Schedule as may be necessary to give effect to the provisions of the law and may also contain such supplemental, incidental and consequential provisions (including provisions as to representation in Parliament and in the Legislature or Legislatures of the State or States affected by such law) as Parliament may deem necessary, and observed: Power with which the Parliamen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sses of subjects by this Act assigned exclusively to the Legislatures of the provinces; and for greater certainty, but not so as to restrict the generality of the foregoing terms of the section, it is hereby declared that (notwithstanding anything in this Act) the exclusive legislative authority of the Parliament of Canada extends to all matters coming within the classes of subjects next hereinafter enumerated; that is to say, ___. There follows a list of different subjects. The first amongst the subjects, which was inserted by British North America Act 1949, is : "The amendment from time to time of the Constitution of Canada, except as regards matters coming within the classes of subjects by this Act assigned exclusively to the Legislatures of the provinces, or...." It is not necessary to give the details of other limitations on the power of amendment. Section 92 of the British North America Act enumerates the subjects of exclusive provincial legislation. According to this section, in each province the Legislature may exclusively make laws in relation to matters coming within the classes of subjects next hereinafter enumerated. There then follows a list of subjects, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 285 (Canada). In that case the Supreme Court declared invalid the Quebec Communistic Propaganda Act. All the judges but one were agreed that the statute did hot fall within provincial competence under property and Civil rights or matters of a merely local or private nature in the province. Abbott J. held that the Parliament itself could not abrogate the right of discussion and, debate. 1550. An article by Dale Gibson in Volume 12-1966-67 in McGill Law Journal shows that though the proposition enunciated by Duff C.J. has commanded the allegiance of an impressive number of judges and has not been decisively rejected, it has never been accepted by a majority of the members of the Supreme Court of Canada or of any other court. Some judges have assumed that basic freedoms may properly be the subject matter of legislation separate and apart from any other-subject matter. Others have taken the view that unlimited jurisdiction falls within Dominion control under its general power to make laws "for the peace, order and good government of Canada". A third view which has been taken is mat the creation of a Parliament and reference in the Preamble to "a Constitution similar in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Bill, every law of Canada shall, unless it is expressly declared by an Act of the Parliament of Canada that it shall operate notwithstanding the Canadian Bill of Rights, be so construed and applied as not to abrogate, abridge or infringe or to authorise the abrogation, abridgement or infringement of any of the rights or freedoms therein recognized and declared. The relevant part of Section 2 reads as under: Every law of Canada shall, unless it is expressly declared by an Act of the Parliament of Canada that it shall operate notwithstanding the Canadian Bill of Rights, be so construed and applied as not to abrogate, abridge or infringe or to authorize the abrogation, abridgement or infringement of any of the rights or freedoms herein recognized and declared, and in particular, no law of Canada shall be construed or applied so as to... (underlining supplied). Plain reading of Section 2 reproduced above makes it manifest that the human rights and fundamental freedoms mentioned in Section 1 of the Bill are not absolute but are subject to abrogation or abridgement if an express declaration to that effect be made in a law of Canada. Section 2 of the Bill shows that if an express de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ercise of any religion; or (b) make persons of any community or religion liable to disabilities or restrictions to which persons of other communities or religions are not made liable; or (c) confer on persons of any community or religion any privilege or advantage which is not conferred on persons of other communities or religions; or (d) alter the Constitution of any religious body except with the consent of the governing authority of that body, so, however, that in any case where a religious body is incorporated by law, no such alteration shall be made except at the request of the governing authority of that body: 1555. Provided, however, that the preceding provisions of this, subsection shall not apply to any law making provision for, relating to, or connected with, the election of Members of the House of Representatives, to represent persons registered as citizens of Ceylon under the Indian and Pakistani Residents (Citizenship) Act. 1556. This proviso shall cease to have effect on a date to be fixed by the Governor- General by Proclamation published in the Gazette. (3) Any law made in contravention of Sub-section (2) of this section shall, to the extent of such contravent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l principles of justice. The two Acts of 1962, it was stated, were contrary to such principles in that they were not only directed against individuals but also ex post facto created crimes and for which those individuals would otherwise be protected. The second contention was that the Acts of 1962 offended against the Constitution in that they amounted to a direction to convict the appellants or to a legislative plan to secure the conviction and severe punishment of the appellants and thus constituted an unjustifiable assumption of judicial power by the legislature, or an interference with judicial power, which was outside the legislature's competence and was inconsistent with the severance of power between legislature, executive, and judiciary which the Constitution ordained. Dealing with the first contention, the Judicial Committee referred to the provisions of the Ceylon (Constitution) Order in Council, 1946 and the Ceylon Independence Act, 1947 and observed that the joint effect of the said Order and Act was intended to and resulted in giving the Ceylon Parliament the full legislative powers of an independent sovereign state. The legislative power of the Ceylon Parliament, it w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ers to a passage in the judgment wherein while dealing with Sub-section (2) of Section 29 of the Ceylon Constitution, the provisions of which have been reproduced earlier, the Judicial Committee observed that the various clauses of Sub-section (2) set out entrenched religious and racial matters which shall not be the subject of legislation. It was further observed that those provisions represented the solemn balance of rights between the citizens of Ceylon, the fundamental conditions on which inter se they accepted the Constitution and these are therefore unalterable under the Constitution. It is contended that those observations show that the rights mentioned in Section 29(2) of the Ceylon Constitution which were similar to the fundamental rights in Part III of the Indian Constitution, were held by the Judicial Committee to be unalterable under the Constitution. There was, it is further submitted, similarity between the provisions of Section 29(3) of the Ceylon Constitution and Article 13(2) of the Indian Constitution because it was provided in Section 29(3) that any law made in contravention of Section 29(2) shall to the extent of such contravention be void. 1563. I find it diff ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons of the Ceylon Constitution including those contained in Sub-sections (2) and (3) of Section 29 could be passed by a two-thirds majority. It is also stated that the restrictions imposed by Sub-section (2) of Section 29 of the Ceylon Constitution are on the power of ordinary legislation by simple majority and not on the power of making Constitutional amendment by two-thirds majority in compliance with Section 29(4) of the Constitution. It was in that sense that the Judicial Committee, according to the submission, used the word "entrenched". Our attention has also been invited to the observations on pages 83 and 84 of the Constitutional structure by K.C. Wheare 1963 Reprint that "these safeguards (contained in Section 29) of the rights of communities and religions could be repealed or amended by the Parliament of Ceylon provided it followed the prescribed procedure for amendment of the Constitution". These submissions may not be bereft of force, but it is, in my opinion, not necessary to dilate further upon this matter and discuss the provisions of the Ceylon Constitution at greater length. The point of controversy before us would have to be decided in the ligh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e inconsistent with the provisions of the Constitution Act and as such void. On appeal four out of the seven judges of the High Court of Australia agreed with the Supreme Court of Queensland, while the three other judges took the opposite view and expressed the opinion that the appeal should be allowed. The matter was then taken up in appeal to the Privy Council. Lord Birkenhead giving the opinion of the Judicial Committee held (1) that the Legislature of Queensland had power, both under the Colonial Laws Validity Act, 1865, and apart therefrom, to authorise the appointment of a judge of the Supreme Court for a limited period; and (2) that Section 6 of the Industrial Arbitration Act authorised an appointment as a judge of the Supreme Court only for the period during which the person appointed was a judge of the Court of Industrial Arbitration. The appellant was further held to have been validly appointed. The above case though containing observations that a legislature has no power to ignore the conditions of law-making that are imposed by the instrument which itself regulates its power to make law, laid down the proposition that in the absence of a restriction, it is not possible ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the "manner and form" within the meaning of Section 5 of the Colonial Laws Validity Act, and as such could not be presented for Royal assent. The Privy Council based its decision upon the language of the above section and the meaning of the word "passed" in that section. We are not concerned in the present case with the aforesaid provisions. There is also nothing in the conclusions at which I have arrived which runs counter to the principles laid down in the Trethowan's case. 1567. Another Australian case to which reference has been made during the course of arguments is The State of Victoria v. The Commonwealth. 45 Australian Law Journal Reports 251 It has been laid down by the High Court of Australia in that case that the Commonwealth Parliament in exercise of its powers under Section 51(ii) of the Constitution may include the Crown in right of a State in the operation of a law imposing a tax or providing for the assessment of a tax. The inclusion of the Crown in right of a State, according to the court, in the definition of "employer" in the Pay-roll Tax Assessment Act, thus making the Crown in right of a State liable to pay the tax in respect of w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o have no power to take away or curtail any of the fundamental rights guaranteed by Part III of the Constitution even if it becomes necessary to Jo so for giving effect to the Directive Principles of State Policy and for the attainment of the objectives set out in the Preamble to the Constitution. It is, therefore, considered necessary to provide expressly that Parliament has power to amend any provision of the Constitution so as to include the provisions of Part III within the scope of the amending power. 1570. The Bill seeks to amend Article 368 suitably for the purpose and makes it clear that Article 368 provides for amendment of the Constitution as well as procedure therefor. The Bill further provides that when a Constitution Amendment Bill passed by both Houses of Parliament is presented to the President for his assent, he should give has assent thereto. The Bill also seeks to amend Article 13 of the Constitution to make it inapplicable to any amendment of the Constitution under Article 368. 1571. Section 2 of the Bill which was ultimately passed as the Constitution (Twentyfourth Amendment) Act has added a clause in Article 13 that nothing in that article would apply to any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... laws passed by the Parliament or by any State Legislature. So far as the substitution of the word "amount" for the word "compensation" for property acquired or requisitioned in Article 31(2) is concerned, we find that this Court held in Mrs. Bela Bose [1954] S.C.R. 558 case that by the guarantee of the right to compensation for compulsory acquisition under Article 31(2), before it was amended by the Constitution (Fourth Amendment) Act, the owner was entitled to receive a "just equivalent" or "full indemnification". In P. Vajravelu Mudaliar's [1965] 1 S.C.R. 614 case this Court held that notwithstanding the amendment of Article 31(2) by the Constitution (Fourth Amendment) Act and even after the addition of the words "and no such law shall be called in question in any Court on the ground that the compensation provided by that law is not adequate", the expression "compensation continued to have the same meaning as it had in Article 31(2) before it was amended, viz., just equivalent or full indemnification. Somewhat different view was taken by this Court thereafter, in the case of Shantilal Mangaldas [1969] 3 S.C.R. 341. In the ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... if the legislature so chooses, plainly inadequate. It is not necessary to further dilate upon this aspect because whatever may be the connotation of the word "amount", it would not affect the validity of the amendment made in Article 31(2). 1574. Another change made in Article 31(2) is that the law for the purpose of acquisition or requisition shall not be called in question on the ground that the whole or any part of the "amount" fixed or determined for the acquisition or requisition of the property is to be given otherwise than in cash. I have not been able to find any infirmity in the above changes made in Article 31(2). 1575. According to Clause (2B) which has been added as a result of the Twentyfifth Amendment in Article 31, nothing in Sub-clause (f) of Clause (1) of Article 19 shall affect any such law as is referred to in Clause (2). In this connection we find that this Court held in some cases that Articles 19(1)(f) and 31(2) were exclusive. In A.K. Gopalan v. The State of Madras [1950] S.C.R. 88 a person detained pursuant to an order made in exercise of the power conferred by the Preventive Detention Act applied to this Court for a writ of habeas cor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... als with compulsory acquisition of property by the State for a public purpose, and not Article 31(1) and he proceeded to hold that the expression "authority of law" means authority of a valid law, and on that account validity of the law seeking to deprive a person of his property is open to challenge on the ground that it infringes other fundamental rights, e.g., under Article 19(1)(f). It was also observed that after the Constitution (Fourth Amendment) Act, 1955 Bhanji Munji's case (supra) "no longer holds the field". After the decision in K.K. Kochuni's case (supra) there arose two divergent lines of authority. According to one view, "authority of law" in Article 31(1) was liable to be tested on the ground that it violated other fundamental rights and freedoms, including the right to hold property guaranteed by Article 19(1)(f). The other view was that "authority of a law" within the meaning of Article 31(2) was not liable to be tested on the ground that it impaired the guarantee of Article 19(1)(f) in so far as it imposed substantive restrictions-though it may be tested on the ground of impairment of other guarantees. In the case of R.C. C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 19 or Article 31. According to the second part of this article, no law containing a declaration that it is for giving effect to such policy shall be called in question in any court on the ground that it does not give effect to such policy. There then follows the proviso, according to which where such law is made by the Legislature of a State, the provisions of the article shall not apply thereto unless such law, having been reserved for the consideration of the President, has received his assent. 1578. The first part of Article 31C is similar to Article 31A except in respect of the subject matter. Article 31A was inserted by the Constitution (First Amendment) Act, 1951. Clause (1) of Article 31A as then inserted was in the following words: (1) Notwithstanding anything in the foregoing provisions of this Part, no law providing for the acquisition by the State of any estate or of any rights therein or for the extinguishment or modification of any such rights shall be deemed to be void on the ground that it is inconsistent with, or takes away or abridges any of the rights conferred by, any provisions of this Part: Provided that where such law is a law made by the Legislature of a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atters mentioned in Clauses (b) to (e) of that article, Article 31C relates to the securing of the objective that the ownership and control of the material resources of the community are so distributed as best to subserve the common good and that operation of the economic system does not result in the concentration of wealth and means of production to the common detriment. But for the difference in subjects, the language of the first clause of Article 31A and that of the first part of Article 31C is identical. Both Articles 31A and 31C deal with right to property. Article 31A deals with certain kinds of property and its effect is, broadly speaking, to take those kinds of property from the persons who have rights in the said property. The objective of Article 31C is to prevent concentration of wealth and means of production and to ensure the distribution of ownership and control of the material resources of the community for the common good. Article 31C is thus essentially an extension of the principle which was accepted in Article 31A. The fact that the provisions of Article 31C are more comprehensive and have greater width compared to those of Article 31A would not make any materi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... old that this is one of the fittest cases in which the principle of stare decisis should be applied. The ground which sustained the validity of Clause (1) of Article 31A, would equally sustain the validity of the first part of Article 31C. I may in this context refer to the observations of Brandeis J. in Lesses v. Garnet (258) U.S. 130 while upholding the validity of the 19th Amendment, according to which the right of citizens of the United States to vote shall not be denied or abridged by the United States or by States on account of sex. This case negatived the contention that a vast addition to the electorate destroyed the social compact and the residuary rights of the States. Justice Brandeis observed: This amendment is in character and phraseology precisely similar to the 15th. For each the same method of adoption was pursued. One cannot be valid and the other invalid. That the 15th is valid...has been recognized and acted upon for half a century.... The suggestion that the 15th was incorporated in the Constitution not in accordance with law, but practically as a war measure which has been validated by acquiesence cannot be entertained. 1580. We may now deal with the second p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the ground of being violative of Articles 14, 19 and 31 of the Constitution even though such a law strikes at the integrity and unity of the country. Such a law might also provoke the Legislatures of other States to make laws which may discriminate in the economic sphere against the persons hailing from the State which was the first to enact such discriminate law. There would thus be a chain reaction of laws which discriminate between the people belonging to different States and which in the very nature of things would have a divisive tendency from a national point of view. The second part of Article 31C would thus provide the cover for the making of laws with a regional or local bias even though such laws imperil the oneness of the nation and contain the dangerous seeds of national disintegration. The classic words of Justice Holmes have a direct application to a situation like this. Said the great Judge: I do not think the United States would come to an end if we lost our power to declare an Act of Congress void. I do think the Union would be imperiled if we could not make that declaration as to the laws of the several States." (Holmes, Collected Legal Papers (1920) 295-96 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dule under Article 31B. Such a statute or any of the provisions thereof cannot be struck down in a court of law and cannot be deemed to be void or ever to have become void on the ground that the statute or any provisions thereof is inconsistent with or takes away or abridges any of the rights conferred by any provision of Part III. In such a case, the provisions of the entire statute are placed before each House of Parliament. It is open to not less than one-half of the members of each House and not less than two-thirds of the members of each House voting and present after applying their mind to either place the statute in the Ninth Schedule in its entirety or a part thereof or not to do so. It is only if not less than one-half of the total members of each House of Parliament and not less than two-thirds of the members present and voting in each House decide that the provisions of a particular statute should be protected under Article 31B either in their entirety or partly that the said provisions are inserted in the Ninth Schedule. A Constitutional amendment of this type relates to an existing statute of which the provisions can be examined by the two Houses of Parliament and give ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . To such category belongs that part of Twentyfifth Amendment which inserted Article 31C when taken along with its second part. The law made under Article 31C is not examined and approved for the purpose of protection by not less than one-half of the members of each House of Parliament and not less than two-thirds of the members present and voting in each House, as is necessary in the case of laws inserted in the Ninth Schedule of the Constitution. Nor can the law made under Article 31C be subject to judicial review with a view to find out whether the law has, in fact, been made for an object mentioned in Article 31C. Article 31C thus departs from the scheme of Article 31A, because while a judicial review is permissible under Article 31A to find out as to whether a law has been made for any of the objects mentioned in Article 31A, such a judicial review has been expressly prohibited under Article 31C. The result is that even if a law made under Article 31C can be shown in court of law to have been enacted not for the purpose mentioned in Article 31C but for another purpose, the law would still be protected and cannot be assailed on the ground of being violative of Articles 14, 19 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cedure is prescribed for the amending of the Constitution. The power of amendment being of such vital importance can neither be delegated nor can those vested with the authority to amend abdicate that power in favour of another body. Further, once such a power is granted, either directly or in effect, by a Constitutional amendment to the State Legislatures, it would be difficult to take away that power, because it can be done only by means of a Constitutional amendment and the States would be most reluctant, having got such a power, to part with it. In empowering a State Legislature to make laws violative of Articles 14, 19 and 31 of the Constitution and in further empowering the State Legislature to make laws immune from attack on the ground of being violative of Articles 14, 19 and 31 by inserting the requisite declaration, the authority vested with the power to make amendment under Article 368 (viz., the prescribed majority in each House of Parliament) has, in effect, delegated or granted the power of making amendment in important respects to a State Legislature. Although the objects for which such laws may be made have been specified, the effect of the latter part of Article 31 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the same way as that question can be agitated despite the protection of Article 31A, but in other respects, as would appear from what has been stated above, Article 31C goes much beyond the scope of Articles 31A and 31B. 1590. In a federal system where the spheres of legislative powers are distributed between the Central Legislature and the State Legislatures, there has to be provided a machinery to decide in case of a dispute as to whether the law made by the State Legislatures encroaches upon the field earmarked for the Central Legislature as also a dispute whether a law made by the Central Legislature deals with a subject which can be exclusively dealt with by the State Legislatures. This is true not only of a federal system but also in a Constitutional set up like ours wherein the Constitution-makers, though not strictly adopting the federal system, have imbibed the features of a federal system by distributing and setting apart the spheres of legislation between the Central Legislature and the State Legislatures. The machinery for the resolving of disputes as to whether the Central Legislature has trespassed upon the legislative field of the State Legislatures or whether the S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ninth Schedule. Article 31B was inserted, as mentioned earlier, by the Constitution (First Amendment) Act. According to Article 31B, none of the Acts and regulations specified in the Ninth Schedule nor any of the provisions thereof shall be deemed to be void or ever to have become void on the ground that such Act, regulation or provision is inconsistent with or takes away or abridges any of the rights conferred by any provision of Part III of the Constitution. The one thing significant to be noted in this connection, however, is that the power under Article 31B of exclusion of judicial review, which might be undertaken for the purpose of finding whether there has been contravention of any provision of Part III, is exercised not by the legislature enacting the impugned law but by the authority which makes the Constitutional amendment under Article 368, viz., the prescribed majority in each House of Parliament. Such a power is exercised in respect of an existing statute of which the provisions can be scrutinized before it is placed in the Ninth Schedule. It is for the prescribed majority in each House to decide whether the particular statute should be placed in the Ninth Schedule, an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... view of the language of Article 31 C pertaining to the declaration. The above contention would have certainly carried weight if the second part of the article relating to the declaration were not there. In the absence of the declaration in question, it would be open to, and indeed necessary, for the court to find whether the impugned law is for giving effect to the policy of the State towards securing the principles specified in Clauses (b) or (c) of Article 39 before it can uphold the validity of the impugned law under Article 31C. Once, however, a law contains such a declaration, the declaration would stand as bar and it would not be permissible for the court to find whether the impugned law is for giving effect to the policy mentioned in Article 31C. Article 31C protects the law giving effect to the policy of the State towards securing the principles specified in Clauses (b) or (c) of Article 39 and at the same time provides that no law containing a declaration that it is for giving effect to such policy shall be called in question in any court on the ground that it does not give effect to such policy. It is, therefore, manifest that once a law contains the requisite declaration ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... annot be disposed of in terms of agreement or compromise between the parties, nor can the decision in such disputes in order to be binding upon others be based upon a concession even though the concession emanates from the State counsel. The concession has to be made good and justified in the light of the relevant provisions. 1594. The position as it emerges is that it is open to the authority amending the Constitution to exclude judicial review regarding the validity of an existing statute. It is likewise open to the said authority to exclude judicial review regarding the validity of a staute which might be enacted by the legislature in future in respect of a specified subject. In such an event, judicial review is not excluded for finding whether the statute has been enacted in respect of the spcified subject Both the above types of Constitutional amendments are permissible under Article 368. What is not permissible, however, is a third type of Constitutional amendment, according to which the amending authority not merely excludes judicial review regarding the validity of a statute which might be enacted by the legislature in future in respect of a specified subject but also excl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er to give legitimacy to their decision have to keep aloof from the din and controversy of politics and that the fluctuating fortunes of rival political parties can have for them only academic interest. Their primary duty is to uphold the Constitution and the laws without fear or favour and in doing so, they cannot allow any political ideology or economic theory, which may have caught their fancy, to colour the decision. The sobering reflection has always to be there that the Constitution is meant not merely for people of their way of thinking but for people of fundamentally differing views. As observed by Justice Holmes while dealing with the Fourteenth Amendment to the US Constitution: The Fourteenth Amendment does not enact Mr. Herbert Spencer's Social Statics.... Some of these laws embody convictions or prejudices which judges are likely to share. Some may not But a Constitution is not intended to embody a particular economic theory, whether of paternalism and the organic relation of the citizen to the State or of laissez faire. It is made for people of fundamentally differing views, and the accident of our finding certain opinions natural and familiar or novel and even shock ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lidity of the remaining part. I would, therefore, strike down the following words in Article 31C: and no law containing a declaration that it is for giving effect to such policy shall be called in question in any court on the ground that it does not give effect to such policy. 1598. We may now deal with the Constitution (Twentyninth Amendment) Act. This Act, as mentioned earlier, inserted the Kerala Act 35 of 1969 and the Kerala Act 25 of 1971 as entries No. 65 and 66 in the Ninth Schedule to the Constitution. I have been able to find no infirmity in the Constitution (Twentyninth Amendment) Act. It may be mentioned that an argument was advanced before us that Articles 31B and 31A are linked together and that only those enactments can be placed in the Ninth Schedule as fall within the ambit of Article 31A. Such a contention was advanced in the case of N.B. Jeejeebhoy v. Assistant Collector, Thana Prant, Thana [1965] 1 S.C.R. 636. Repelling the contention Subba Rao J. (as he then was) speaking for the Constitution Bench of this Court observed: The learned Attorney-General contended that Articles 31-A and Article 31-B should be read together and that if so read Article 31-B would on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fficulties which may be encountered in future in the working of the Constitution. No generation has a monopoly of wisdom nor has it a right to place fetters on future generations to mould the machinery of governments. If no provision were made for amendment of the Constitution, the people would have recourse to extra-Constitutional method like revolution to change the Constitution. (v) Argument that Parliament can enact legislation under entry 97 List I of Seventh Schedule for convening a Constituent Assembly or holding a referendum for the purpose of amendment of Part III of the Constitution so as to take away or abridge fundamental rights is untenable. There is no warrant for the proposition that as the amendments under Article 368 are not brought about through referendum or passed in a Convention the power of amendment under Article 368 is on that account subject to limitations. (vi) The possibility that power of amendment may be abused furnishes no ground for denial of its existence. The best safeguard against abuse of power is public opinion and the good sense of the majority of the members of Parliament, It is also not correct to assume that if Parliament is held entitled t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ved his assent. (xiv) The second part of Article 31C contains the seed of national disintegration and is invalid on the following two grounds: (1) It gives a carte blanche to the Legislature to make any law violative of Articles 14, 19 and 31 and make it immune from attack by inserting the requisite declaration. Article 31C taken along with its second part gives in effect the power to the Legislature, including a State Legislature, to amend the Constitution in important respects. (2) The legislature has been made the final authority to decide as to whether the law made by it is for objects mentioned in Article 31C. The vice of second part of Article 31C lies in the fact that even if the law enacted is not for the object mentioned in Article 31C, the declaration made by the Legislature precludes a party from showing that the law is not for that object and prevents a court from going into the question as to whether the law enacted is really for that object. The exclusion by Legislature, including a State Legislature, of even that limited judicial review strikes at the basic structure of the Constitution. The second part of Article 31C goes beyond the permissible limit of what cons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ossible only by the increasing volume of the business of the Court. 1603. As the arguments were addressed mainly in Writ Petition No. 135/1970, I will deal with it now. In this writ petition the petitioner challenged the validity of the Kerala Land Reforms Amendment Act, 1969, and the Kerala Land Reforms Amendment Act, 1971, for the reason that some of the provisions thereof violated Article 14, 19(1)(f), 25, 26 and 31 of the Constitution. 1604. During the pendency of the Writ Petition, the Amending Body under the Constitution passed three Constitutional amendments, namely, the Constitution 24th, 25th and 29th Amendment Acts. 1605. The 24th Amendment made certain changes in Article 368 to make it clear that the Parliament, in the exercise of its constituent power, has competence to amend by way of addition, variation or repeal, any of the provisions of the Constitution in accordance with the procedure laid down in the article and that Article 13(2) would not be a bar to any such amendment. By the 25th Amendment, the word 'amount' was substituted for the word 'compensation' in Clause (2) of Article 31. That was done in order to make it clear that the law for acquisition or requis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ajendragadkar, C.J., speaking for himself and two of his colleagues, substantially agreed with the reasoning of Patanjali Sastri, J. in Sankari Prasad v. The Union of India [1952] S.C.R. 89. Hidayatullah and Mudholkar, JJ. expressed certain doubts as to whether Fundamental Rights could be abridged or taken away by amendment of the Constitution under Article 368. 1610. The question again came up before this Court in Golaknath v. State of Punjab [1967] 2 S.C.R. 762, hereinafter called 'Golaknath Case' where the validity of the 17th Amendment was challenged on much the same grounds. The majority constituting the Bench decided that Parliament has no power to amend the Fundamental Rights in such a way as to take away or abridge them, but that the 1st, 4th and 17th Amendments were valid for all time on the basis of the doctrine of prospective overruling and that the Acts impugned in the case were protected by the Amendments. 1611. The reasoning of the leading majority (Subba Rao, C.J., and the colleagues who concurred in the judgment pronounced by him) was that Article 368, as it stood then, did not confer the substantive power to amend the provisions of the Constitution but only presc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ioner contended that the word 'amendment' in the article could only mean a change with a view to make improvement; that in the context, the term connoted only power to make such changes as were consistent with the nature and purpose of the Constitution, that the basic structure and essential features of the Constitution cannot be changed by amendment, and that the assumption made by these judges that the word 'amendment' in the article was wide enough to make any change by way of alteration, addition or repeal of any of the provisions of the Constitution was unwarranted. He said that the article was silent as regards the subject matter in respect of which amendments could be made or the extent and the width thereof, that it was set in a low key as it did not contain the words "amend by way of addition, variation or repeal", that these circumstances should make one pause before ascribing to the word 'amendment' its widest meaning and that, in the context, the word has only a limited meaning. 1616. I do not think that there is any substance in this contention. 1617. In the Oxford English Dictionary, the meanings of the word 'amend' are given as: to make professed improve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... might be. Kennedy, C.J. did not specifically deal with the meaning of the word. 1621. In this context it is relevant to keep in mind the general rules of construction for interpreting a word like 'amendment' occurring in a constituent Act like the Constitution of India. 1622. In In Re the Central Provinces and Berar Sales of Motor Spirit and Lubricants Taxation Act, 1938, etc (1939) F.C.R. 18. Sir Maurice Gwyer said that a broad and liberal spirit should inspire those whose duty it is to interpret a Constitution, that a Court should avoid a narrow and pedantic approach and that when a power is granted without any restriction, it can be qualified only by some express provision or by scheme of the instrument. 1623. The basic principles of construction were definitively enunciated by the Privy Council in The Queen v. Burah (1878) 3 A.C. 889, 904-905 and those principles were accepted and applied by Earl Loreburn in Attorney General for Ontario v. Attorney General for Canada (1912) A.C. 572 at 583 Lord Selborne said in the former case that the question whether the prescribed limits of a power have been exceeded has to be decided by looking to the terms of the instrument by which, af ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... development of which could not have been foreseen completely by the most gifted of its begetters.... 1626. Every well drawn Constitution will therefore provide for its own amendment in such a way as to forestall as is humanly possible, all revolutionary upheavals See Carl J. Friedrich, "Constitutional Government and Democracy", p. 135. That the Constitution is a framework of great governmental power to be exercised for great public ends in the future, is not a pale intellectual concept but a dynamic idea which must dominate in any consideration of the width of the amending power. No existing Constitution has reached its final form and shape and become, as it were a fixed thing incapable of further growth. Human societies keep changing; needs emerge, first vaguely felt and unexpressed, imperceptibly gathering strength, steadily becoming more and more exigent, generating a force which, if left unheeded and denied response so as to satisfy the impulse behind it, may burst forth with an intensity that exacts more than reasonable satisfaction See Felik Frankfurter, "Of Law and Men", p. 35. As Wilson said, a living Constitution must be Darwinian in structure and prac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... power of amendment of the Constitution from the future generations and foreclose them from ever exercising it. I think the argument is too speculative to be countenanced. It is just like the argument that if men and women are given the freedom to choose their vocations in life, they would all jump into a monastery or a nunnery, as the case may be, and prevent the birth of a new generation; or the argument of some political thinkers that if freedom of speech is allowed to those who do not believe in it, they would themselves deny it to others when they get power and, therefore, they should be denied that freedom today, in order that they might not deny it to others tomorrow. 1627. Seeing, therefore, that it is a "Constitution that we are expounding" and that the Constitution-makers had before them several Constitutions where the word 'amendment' or 'alteration' is used to denote plenary power to change the fundamentals of the Constitution, I cannot approach the construction of the word 'amendment' in Article 368 in niggardly or petty fogging spirit and give it a narrow meaning; but "being a familiar expression, it was used in its familiar legal sense" See Justic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng it by an entirely new one in its place is not beyond doubt I think that the power to amend under that article included the power to add any provision to the Constitution, to alter any provision, substitute any other provision in its place and to delete any provision. But when the article said that, on the bill for the amendment of the Constitution receiving the President's assent, "the Constitution shall stand amended", it seems to be fairly clear that a simple repeal or abrogation of the Constitution without substituting anything in the place of the repealed Constitution would be beyond the scope of the amending power, for, if a Constitution were simply repealed, it would not stand amended. An amendment which brings about a radical change in the Constitution like introducing presidential system of government for cabinet system, or, a monachy for a republic, would not be an abrogation or repeal of the Constitution. However radical the change might be, after the amendment, there must exist a system by which the State is constituted or organised. As already stated, a simple repeal or abrogation without more, would be contrary to the terms of Article 368 because it would ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lkhivala did not contend that the power to amend is located in Articles 245, 246 and 248 read with entry 97 of List I of the Seventh Schedule. He only submitted that it is immaterial whether the power is located in Articles 245, 246 and 248 read with entry 97 of List I of the Seventh Schedule or in Article 368, I do not think that there could be any doubt that Article 368 as it stood before the 24th Amendment contained not only the procedure but also the substantive power of amendment. As the article laid down a procedure different from the procedure for passing ordinary laws, our Constitution is a rigid one and the power to amend a constituent power. 1635. The vital distinction between Constitutional law and ordinary law in a rigid Constitution lies in the criterion of the validity of the ordinary law. An ordinary law, when questioned, must be justified by reference to the higher law embodied in the Constitution; but in the case of a Constitution, its validity is, generally speaking, inherent and lies within itself. Kelsen has said, the basic norm (the Constitution) is not created in a legal procedure by a law-creating organ. It is not-as a positive legal norm is-valid because it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h the constituent power of the sovereign as well as legislative power. The British Constitution under which the distinction between the sovereign and the ordinary legislature is eclipsed due to the theory of the sovereignty of the British Parliament, is certainly not the ideal Constitution to choose for appreciating the distinction between Constitutional law and ordinary law under our polity. Sir Ivor Jennings said that there is no clear distinction between Constitutional law and ordinary law in England and that the only fundamental law there is that parliament is supreme See Jennings, "The Law and the Constitution" (1933). p. 614. Strictly speaking, therefore, there is no Constitutional law at all in Britain; there is only arbitrary power of parliament. 1640. It is said that The Bill of Rights (1689), Act of Settlement (1701), etc., partake the character of Constitutional law and there is no reason to exclude that type of law from the ambit of the word 'law' in Clause (2) of Article 13. 1641. In a flexible Constitution like the British Constitution the only dividing line between Constitutional law and ordinary law is that Constitutional law deals with a particular subj ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he manner and form specially prescribed by the Constitution. 1643. Mr. Palkhivala contended that when Article 13(1) and 372 speak of "laws in force" in the territory of India immediately before the commencement of the Constitution, the expression would take in also all Constitutional law existing in the territory of India immediately before the coming into force of the Constitution, and therefore, the word 'law' in Clause (2) of Article 13 must also include Constitutional law. Assuming that the expression "laws in force" in Article 13(1) and 372 is wide enough to include Constitutional law, the question is, what is the type of Constitutional law that would be included? So far as British India was concerned, Article 395 repealed the Indian Independence Act, 1947, and the Government of India Act, 1935, together with all enactments amending and supplementing the latter Act. I am not sure whether there were any Orders passed under the Government of India Act which could be called Constitutional law. That apart, I doubt whether the Government of India Act, 1935, and the Indian Independence Act, 1947, were Constitutional laws in the sense of their being the supreme l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ny 'law' the meaning of the expression 'law' has to be gathered from the context. Though, analytically, it might be possible to say that the word 'law' would include an amendment of the Constitution also, from the context it would be clear that it only meant ordinary law. A word by itself is not crystal clear. It is the context that gives it the colour. In the setting of Article 13(2), what was prohibited that the Parliament shall not pass a law in pursuance of its powers under Chapter I of Part XI or any other provisions enabling it to pass laws, which were legislative in character. The Constitution-makers only wanted to provide against the more common invasion of Fundamental Rights by ordinary legislation. 1645. If the power to amend was to be found within Article 368 and not under Article 248 read with entry 97 of List I of the Seventh Schedule, it stands to reason to hold that constituent power for amend ment of the Constitution is distinct from legislative power. The leading majority in the Golaknath Case [1967] 2 S.C.R. 762 took pains to locate the power to amend in Article 248 read with entry 97 of List I of the Seventh Schedule to show that the Constitution can be amended ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e (1) by a majority of the total membership of that House and (2) by a majority of not less than two-thirds of the members of that House present and voting. These provisions rule out a joint sitting of both the Houses under Article 108 to resolve disagreement between the two Houses. Again, the majority required to pass a bill in each House is not a majority of the members of that House present and voting but a majority of the total membership of each House and a majority of not less than two-thirds of the members of that House present and voting. As regards matters covered by the proviso, there is a radical departure from the legislative procedure prescribed for Parliament by Articles 107 to 111. Whereas in ordinary legislative matters Parliament's power to enact laws is not dependent on the State legislatures, in matters covered by the proviso to Article 368, even if the two Houses pass a bill by the requisite majorities, the bill cannot be presented to the President for his assent unless she bill has been ratified by resolutions to that effect passed by the legislatures of not less than half the number of States. 1649. Subba Rao, C.J., in his judgment in Golaknath case (1967) 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dy : Provided that, in any case where a religious body is incorporated by law, no such alteration shall be made except at the request of the governing authority of that body. (3) Any law made in contravention of Sub-section (2) of this section shall, to the extent of such contravention, be void. (4) In the exercise of its powers under this section, Parliament may amend or repeal any of the provisions of this Order, or of any other Order of His Majesty in Council in its application to the Island : Provided that no Bill for the amendment or repeal of any of the provisions of this Order shall be presented to the Royal Assent unless it has endorsed on it a certificate under the hand of the speaker that the number of votes cast in favour thereof in the House of Representatives amounted to not less than two-thirds of the whole number of members of the House (including those not present). Every certificate of the Speaker under this sub-section shall be conclusive for all purpose and shall not be questioned in any court of law. The appellant contended that whereas Section 29(3) expressly provided that a law which contravened Section 29(2) was void, there was no such provision for the viol ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion which confers general legislative power including a power to amend the Constitution, the Constitution is uncontrolled and is not a fundamental document by which the laws made under it are to be tested, for, any law contrary to the Constitution impliedly alters it. The result is that no law passed under an uncontrolled Constitution is ultra vires See Seervai "Constitutional Law", Vol. 2, pp. 1102-1103; also Dr. Wynes "Legislative, Executive and Judicial Powers in Australia", footnote at p. 508. 1651. The Substance of the decision in Ranasinghe's Case is that though Ceylon Parliament has plenary power of ordinary legislation, in the exercise of its Constitution power it was subject to the special procedure laid down in Section 29(4). The decision, therefore, makes a clear distinction between legislative and constituent powers. 1652. It was contended that the amending power can be a legislative power as in Canada and, therefore, there was nothing wrong in the leading majority in Golaknath Case [1967] 2 S.C.R. 762, locating the power of amendment in the residuary entry. 1653. Section 91(1) of the British North America Act provides for a restricted power of a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s Wheare, "Federal Government", 4th ed., p. 55. 1655. The Constitution (First Amendment) Act amended the Fundamental Rights under Articles 15 and 19 in such a way as to abridge them. The speech of Pandit Jawaharlal Nehru in moving the amendment and those of others who were responsible for drafting the Constitution make it clear that they never entertained any doubt as to the amendability of the Fundamental Rights in such a way as to abridge them. Strong opponents of the amendments like S.P. Mukherjee, never made even the whisper of a suggestion in their speeches that Fundamental Rights were not amendable in such a way as to abridge them. Contemporaneous practical exposition is a valuable aid to the meaning of a provision of the Constitution or a statute See McPherson v. Blacker, 146 U.S.I., 27. 1656. Mr. Palkhivala also relied upon the speech of Dr. Ambedkar made on September 17, 1949, in the Constituent Assembly to show that Fundamental Rights could not be taken away or abridged by an amendment of the Constitution. 1657. The question whether speeches made in the Constituent Assembly are admissible to ascertain the purpose behind a provision of the Constitution is not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ll as in the minority judgments. In the majority judgment it was said that they were glad to find that the construction placed by them on the scope of entry 91 in the draft Constitution corresponding to the present entry 97 of List I of the Seventh Schedule agreed with the view expressed in the speeches referred to by them. The minority referred to the speeches made by various members to show that their construction was the correct one. Cooley said : "When a question of Federal Constitutional law is involved, the purpose of the Constitution, and the object to be accomplished by any particular grant of power, are often most important guides in reaching the real intent; and the debates in the Constitutional Convention, the discussions in the Federalist, and in the conventions of the States, are often referred to as throwing important light on clauses in the Constitution which seem blind or of ambiguous import" See Cooley on Constitutional Law, 4th ed. (1931), pp. 195-196. Julius Stone, the Australian jurist, has expressed the opinion that in principle the Court should be free to inform itself concerning the social context of the problems involved from all reliable sources a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nly tends to reveal the legislative purpose in enacting the provision and thereby sheds light upon legislative intent. It would be drawing an invisible distinction if resort to debates is permitted simply to show the legislative history and the same is not allowed to show the legislative intent in case of latent ambiguity in the provision. Mr. W. Anderson said : "The nearer men can get to knowing what was intended the better. Indeed the search for intention is justified as a search for the meanings that the framers had in mind for the words used. But it is a search that must be undertaken in humility and with an awareness of its great difficulties" See "The Intention of the Framers" : A Note on the Constitutional Interpretation, American Political Science Review, Vol. XLIX, June, 1955. That awarness must make one scrutinize the solemnity of the occasion on which the speech was made, the purpose for which it was made, the preparation and care with which it was made and the reputation and scholarship of the person who made it. A painstaking detailed speech bearing directly on the immediate question might be given the weight of an "encyclical" and would ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mbly Debates, Vol. VII, p. 953: If I was asked to name any particular article in this Constitution as the most important-an article without which this Constitution would be a nullity-I could not refer to any other article except, this one. It is the very soul of the Constitution and the very heart of it and I am glad that the House has realized its importance. 1660. But having said that, he proceeded: ...The Constitution has invested the Supreme Court with these rights and these writs could not be taken away unless and until the Constitution itself is amended by means left open to the Legislature (emphasis added). On November 25, 1949, Dr. Ambedkar refuted the suggestion that Fundamental Rights should be absolute and unalterable. He said after referring to the view of the Jefferson already referred to, that the Assembly has not only refrained from putting a seal of finality and infallibility upon the Constitution by denying to the people the right to amend the Constitution as in Canada or by making the amendment of the Constitution subject to the fulfilment of extraordinary terms and conditions as in America or Australia but has provided a most facile procedure for amending the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as redundant. The dictum of Chief Justice Kania is helpful only to show his reading of the meaning of the word 'law' in the article. Had the learned Chief Justice read the word 'law' in the article as including an amendment of the Constitution also, he would certainly not have said that the article was redundant. Sir Ivor Jennings has taken the view that it was quite unnecessary to have enacted Article 13(2), as, even otherwise, under the general doctrine of ultra vires, any law which is repugnant to the provisions of the Constitution, would, to the extent of the repugnancy, become void and inoperative See Ivor Jennings, "Some Characteristics of the Indian Constitution", pp. 38-39. 1663. However, I think that Article 13(2) was necessary for a different purpose, namely, to indicate the extent of the invasion of the fundamental right which would make the impugned law void. The word 'abridge' has a special connotation in the American Constitutional jurisprudence; and, it is only fair to assume that when the Constitutionmakers who were fully aware of the language of the First Amendment to the United States Constitution, used that expression, they intended to adopt the meanin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the people, the ultimate legal sovereign. Counsel submitted that if Parliament has power to alter or destroy the essential features of the Constitution, it would cease to be a creature of the Constitution and would become its master; that no constituted body like the Amending Body can radically change the Constitution in such a way as to damage or destroy the basic Constitutional structure, as the basic structure was decided upon by the people, in the exercise of their constituent revolutionary power. Counsel also argued that it is Constitutionally impermissible for one constituent assembly to create a second perpetual constituent assembly above the nation with power to alter its essential features and that Fundamental Rights constitute an essential feature of the Constitution. 1665. The basic premise of counsel's argument was that the ultimate legal sovereignty under the Constitution resides in the people. The preamble to the Constitution of India says that "We the people of India...adopt, enact and give unto ourselves this Constitution". Every one knows that historically this is not a fact. The Constitution was framed by an assembly which was elected indirectly on a l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ne is the so-called 'positive' conception of law as a general expression merely for the particular commands of a human law-giver, as a series of acts of human will; the other is that the highest possible embodiment of human will, is 'the people'. The same two ideas occur in conjunction in the oft-quoted next of Justinian's Institutes : "Whatever has pleased the prince has the force of law, since the Roman people by the lex regia enacted concerning his imperium have yielded up to him all their power and authority. The sole difference between the Constitution of the United States and the imperial legislation justified in this famous text is that the former is assumed to have proceeded immediately from the people, while the latter proceeded from a like source only mediately" See Edward Gorwin, 'The Higher Law' Background of American Constitutional Law", pp. 3-4. 1666. It is said that the assertion in the preamble that it was the people who enacted the Constitution raises an incontravertible presumption and a Court is precluded from finding out the truth. There is a similar preamble to the Constitution of the U.S.A. Yet, when Chief Justice Marshall was called upon to de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nse does not exist in any State See W.J. Ress, "Theory of Sovereignty Re-stated" in the book "In Defense of Sovereignty" by W.J. Stankiewicz, p. 209 and that, at any rate, in a Federal State, the concept of sovereignty in that sense is incapable of being applied See Salmond's Jurisprudence, 7th ed., p. 531. This Court has said in State of West Bengal v. Union of India [1964] 1 S.C.R. 371, 396-398 that the "legal theory on which the Constitution was based was the withdrawal or resumption of all the powers of sovereignty into the people of this country" and that the"...Legal sovereignty of the Indian nation is vested in the people of India, who, as stated by the preamble, have solemnly resolved to constitute India into a Sovereign Democratic Republic...." I am not quite sure of the validity of the assumption implicit in this dictum. The Supreme Court: of U.S.A. has held that sovereignty vests in the people See Chisholm v. Georgia (1973) 2 Dallas 419, 470-471. The same view has been taken by writers like Jameson, Willis, Wilson and others, But it is difficult to understand how the unorganised mass of the people can legally be sovereign. In no co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ughby has said that sovereignty of the people, popular sovereignty and national sovereignty cannot accurately be held to mean that, under an established government, the sovereignty remains in the people. It may mean, however, that the Constitutional jurisprudence of the State to which it is applied is predicated upon the principle that no political or individual or organ of the government is to be regarded as the source whence, by delegation, all other public powers are derived, but that, upon the contrary, all legal authority finds its original source in the whole citizen body or in an electorate representing the governed See Willoughby, "Fundamental Concepts of Public Law", pp. 99-100. Probably, if sovereignty is dropped as a legal term and viewed as a term of political science, the view of the Supreme Court of the U.S.A. and the writers who maintain that the people are sovereign might be correct. No concept has raised so many conflicting issues involving jurists and political theorists in so desperate a maze as the genuine and proper meaning of sovereignty. 1670. Seeing, however, that the people have no Constitutional or legal power assigned to them under the Constitu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ower which exists in the people, but in a vicarious manner see Jacques Maritain, "Man and the State", pp. 134-135. 1673. Delegation does not imply a parting with powers of one who grants the delegation but points rather to the conferring of an authority to do things which otherwise that person would have to do himself. It does not mean that the delegating person parts with the power in such a way as to denude himself of his rights See Huth v. Clarke (1890) 25 Q.B.D. 391, 395: also John Willis, "Delegates non potest delegare", 21 Candian Bar Review, p. 257. 1674. I will assume that the people, by designating their representatives and by transmitting to them the power to amend the Constitution, did not lose or give up possession of their inherent, constituent power. (There was great controversy among the civilians in the Middle Ages whether, after the Roman people had Transferred their authority to legislate to the emperor, they still retained it or could reclaim it See Carlyle, "A History of Medieval Political Theory in the West" Vol. VI, pp. 514-515. There is always a distinction between the possession of a right or power and the exercise of it. It w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... created by the nation has no constituent power apart from a power to amend that instrument within the lines originally adopted by the people, what is meant is that the nation cannot part with the constituent power, but only the power to amend the Constitution within the original scheme of the Constitution in minor details. Some jurists refer to these two powers, namely, the "constituent power" and the "amending power" as distinct. According to Carl J. Friedrich, the constituent power is the power which seeks to establish a Constitution which, in the exact sense, is to be understood the de-jacto residuary power of a not inconsiderable part of the community to change or replace an established order by a new Constitution. The constituent power is the power exercised in establishing a Constitution, that is the fundamental decision on revolutionary measures for the organisation and limitation of a new government. From this constituent power must be distinguished the amending power which changes an existing Constitution in form provided by the Constitution itself, for the amending power is itself a constituted authority. And he further points out that in French Const ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... basic change can be made only by a revolution is something extras legal that no Court can countenance it. In other words, speaking in conventional phraseology, the real sovereign, the hundred per cent sovereign-the people-can frame a Constitution, but that sovereign can come into existence thereafter unless otherwise provided, only by revolution. It exhausts itself by creation of minor and lesser sovereigns who can give any command. And, under the Indian Constitution, the original sovereign-the people-created, by the amending clause of the Constitution, a lesser sovereign, almost coextensive in power with itself. This sovereign, the one established by the revolutionary act of the full or complete sovereign has been called by Max Radin the "pro-sovereign", the holder of the amending power under the Constitution. The hundred per cent sovereign is established only by revolution and he can come into being again only by another revolution See Max Radin, "Intermittent Sovereign", 39 Yale Law Journal, 514. As Wheare clearly puts it, once the Constitution is enacted, even when it has been submitted to the people for approval, it binds thereafter, not only the institutio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nstitutional amendments or new Constitutions adopted in modes not provided for by the existing Constitutions cannot be recognized as legally valid unless they have received the formal approval of the old existing government. Thus, in the case of the State of Rhode Island, the old Constitution of which contained no provision for its own amendment, the President of the United States refused to recognize de jure a government established under a new Constitution which, without the approval of the old government, had been drawn up and adopted by a majority of the adult male citizens of that State. But, when, somewhat later, a new Constitution was adopted in accordance with provisions which the old government laid down and approved, it was, and has since been held a valid instrument both by the people of the State and by the National Government of the United States" Willoughby, "The Fundamental Concepts of Public Law", p. 96. 1679. I think it might be open to the Amending Body to amend Article 368 itself and provide for referendum or any other method for ascertaining the will of the people in the matter of amendment of Fundamental Rights or any other provision of the Cons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... motion was adopted See the proceedings of the Constituent Assembly dated October 17, 1949, Constituent Assembly Debates, Vol. X, p. 429. Article 394 of the Constitution would show that the preamble, being a part of the provisions of the Constitution, came into operation on the 26th of January, 1950, not having been explicitly stated in the article that it came into force earlier. And there seems to be no valid reason why the preamble, being a part of the Constitution, cannot be amended. 1681. A preamble, as Dr. Wynes said, represents, at the most only an intention which an Act seeks to effect" and it is a recital of a present intention See Wynes, "Legislative, Executive and Judicial Powers in Australia", (4th ed., p. 506). In the Berubari Case [1960] 3 S.C.R. 250, 281-282 it was argued that the preamble to the Constitution clearly postulates that like the democratic republican form of government, the entire territory of India is beyond the reach of Parliament and cannot be affected either by ordinary legislation or even by Constitutional amendment, but the Court said: "it is not easy to accept the assumption that the first part of the preamble postulates a ver ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... quality appears to many to be a myth and they say that if the concept is to have any meaning in social and economic sphere the State must discriminate in order to make men equal who are otherwise unequal. It does not follow that because these concepts have no definite contours. They do not exist, for, it is a perennial fallacy to think that because something cannot be cut and dried or nicely weighed or measured, therefore it does not exist See Lord Reid in Ridge v. Baldwin (1964) A.C. 40, 64. But for a country struggling to build up a social order for freeing its teeming millions from the yoke of proverty and destitution, the preamble cannot afford any clue as to the priority value of these concepts inter se. Justice Johnson, with one of his flashes of insight, called the science of government "the science of experiment" See Anderson v. Dunn 6 Wheat 204, 206 U.S. 1821. And for making the experiment for building up the social order which the dominant opinion of the community desires, these Delphic concepts can offer no solution in respect of their priority value as among themselves. They offer no guide in what proportion should each of them contribute, or which of them sho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dgment gave no reasons for its conclusion, it is permissible to look at the elaborate briefs filed by counsel in the several cases and oral arguments in order to understand what was argued and what was decided See U.S. v. Sprague 282, U.S. 716, 733 The arguments advanced in National Prohibition Cafes before the Supreme Court were that an amendment is an alteration or improvement of that which is already contained in the Constitution, that the Amendment was really in the nature of a legislation acting directly upon the rights of individual, that since the Constitution contemplated an indestructible Union of States, any attempt to change the fundamental basis of the Union was beyond the power delegated to the amending body by Article V and that the Amendment invaded the police power which inheres in the State for protection of health, safety and morals of their inhabitants. The only inference to be drawn from the Court upholding the validity of the Amendment is that the Court did not countenance any of the arguments advanced in the case. 1688. The result of the National Prohibition Cases See Rhode Island v. Palmer 253 U.S. 350 seems to be that there is no limit to the power to amend ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... teration' by the amending process in Article V; and while the procedure for amending it is restricted, there is no restraint on the kind of amendment that may be offered. 1693. Perceptive writers on the Constitution of the U.S.A. have also taken the view that there are no implied limitations whatever upon the power of amendment, that an amendment can change the dual form of government or the Bill of Rights and that the framers of the Constitution did not intend to make an unalterable framework of Government in which only the minor details could be changed by amendment See Willis, "Constitutional Law" (1936), pp. 123-124; Orfield, "The Amending of the Federal Constitution" (1942), p. 99; Livingstone, "Federalism and Constitutional Change" (1956), pp. 240-241; Rottschaefer, "Constitutional Law", pp. 8-9; John W. Burgess, "Political Science and Comparative Constitutional Law", Vol. I, p. 153; Colley, "Constitutional Limitations", pp. 41-43; D.O. McGovney, "Is the Eighteenth Amendment Void Because of Its Contents ", Columbia Law Review, Vol. 20, May 1920 No. 5; W.F. Dodd, "Amending the Federal Constitution" ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... did not contain any power to amend that article, proviso (c) of Article 368 makes it clear that Article 368 itself can be amended and so, the whole line of the reasoning of Kennedy, C.J. has no relevance for our purpose. It is interesting to note that in Moore v. Attorney General for the Irish State (1935) A.C. 484 where the Constitutional amendment made by the Irish Parliament in 1933 (Amendment No. 22) was challenged, Mr. Green conceded before the Privy Council that Amendment No. 16 of 1929 (the amendment challenged in Ryan's Case) was regular. The validity or otherwise of Amendment No. 16 was vital for the success of his client's case and the concession of counsel was, in their Lordship's view, "rightly" made. 1696. The decision of the Privy Council in Liyanage v. the Queen (1967) 1 A.C. 259 was relied on by the petitioner to show that there can be implied limitation upon legislative power. The question for consideration in that case was whether Criminal Law (Special Provisions) Act No. 1 of 1962 passed by Parliament of Ceylon was valid. The Act purported ex-post facto to create new offences and to alter the rules of evidence and the criminal procedure obtaining unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that President or Governor is bound to act according to the advice of the Council of Ministers, although the expression "aid and advise" taken by itself, would not denote any compulsion upon the President or Governor to act according to the advice. The expression, when it was transplanted into our Constitution from the English soil, had acquired a meaning and we cannot read it divested of that meaning. 1699. The doctrine of implied limitation against the exercise of a power once ascertained in accordance with the rules of construction was rejected by the Privy Council in Web v. Outrim (1907) A.C. 81 (P.C.). 1700. Counsel for the petitioner relied on certain Canadian Cases to support his proposition that there are implied limitations upon the power of amendment. In Alberta Press Case (1938) 2 D.L.R. 81 Chief Justice Sir Lyman P. Duff said that the British North America Act impliedly prohibits abrogation by provincial legislatures of certain important civil liberties. He said that the reason was that the British North America Act requires the eablishment of one Parliament for Canada and since the term 'parliament' means, when interpreted in the light of the preamble's re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hich could not be modified by either Parliament or the Legislatures of the Provinces. Rand, J. found some support in the preamble for freedom of speech, but did not mention freedom of religion in this context. Estey and Locke, JJ. assume that any topic of internal self-government was withheld from derived from it. 1702. It should be noted the view that neither the provinces nor the dominion Parliament could legislate on civil liberties so as to affect them adversely is contrary to the view of the Privy Council that no topic of internal self-Government was withheld from Canada. "It would be subversive of the entire scheme and policy of the Act to assume that any topic of internal self-government was withheld from Canada A.G. Ontario v. A.G. Canada [1912] A.C. 571. 1703. The main objection however to the proposition that the British "North America Act contains an implied bill of rights is that it is inconsistent with the doctrine of parliamentary supremacy. If the "Constitution is similar in principle to that of Great Britain, it must follow that the legislature is supreme as that is the fundamental law of the British Constitution. Therefore no subject would be beyon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Lieutenant Governor" in Section 92(1) of the aforesaid Act. I am not concerned with the obiter dictum of Lord Haldane to the effect that a provincial legislature cannot "create and endow with its own capacity a new legislative power not created by the Act to which it owes its own existence". 1706. However, it is relevant in this context to refer to the comment of Bora Laskin on the obiter dictum of Lord Haldane in the above case: "This oft-quoted passage remains more a counsel of caution than a Constitutional limitation". He then read the above passage and continued : "This proposition has in no way affected the widest kind of delegation by Parliament and by a provincial legislature to agencies of their own creation or under their control; see Reference re Regulations (Chemicals.) (1943) 1 D.L.R. 248; Shannon v. Lower Mainland Dairy Products Board (1938) A.C. 708 [1919] A.C. 935, 945. 1707. Reference was made by counsel for the petitioner to Taylor v. Attorney General of Queensland (1) as authority for the proposition that power of amendment can be subject to implied limitation. The questions which the Court had to consider in the case were: (1) Wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of amendment is subject to implied limitation. The only question which was considered in the case was that when by a law made under Article 4 of the Constitution, a State was formed, that State should have the legislative, executive and judicial organs; the Court said: ...Power with which the Parliament is invested by Article 2 and 3, is power to admit, establish, or form new States which conform to the democratic pattern envisaged by the Constitution; and the power which the Parliament may exercise by law is supplemental, incidental or consequential to the admission establishment or formation of a State as contemplated by the Constitution, and not power to override the Constitutional scheme. No State can therefore be formed, admitted, or set up by law under Article 4 by the Parliament which has not effective legislative, executive and judicial organs. [1967] 2 S.C.R. 112. 1711. I am unable to understand how this case lends any assistance to the petitioner for it is impossible to imagine a modern State without these organs. 1712. Section 128 of the Australian Constitution Act provides for alteration of that Constitution. There are certain restrictions upon the power of amendmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... there was no necessary implication restraining the Commonwealth from making the law. 1714. As to the general principle that non-discriminatory laws of the Commonwealth may be invalid in so far as they interfere with the performance by the States of their Constitutional functions, it must be noted that that is not claimed to rest on any reservation made in the Engineers' Case Amalgamated Society of Enginears v. Adelaide Steamship Co. Ltd. (1920) 28 C.L.R. 129 itself to the general principle it advanced. It must also be noted that Menzies, Walsh and Gibbs, JJ. were not prepared to formulate the proposition as a single test in precise and comprehensive terms and that they were alive to the great difficulties which would be encountered in the formulation. 1715. If there are difficulties in formulating an appropriate test, is it not legitimate to ask whether the proposed principle is one that is capable of formulation? Is it not legitimate to ask whether there is a judicially manageable set of criteria available by which the proposed general principle may be formulated? The theory of the implied limitation propounded might invite the comment that "it is an interpretation of the C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n exists, is a fundamental pre-supposition and the legislative power of the federal legislature cannot be exercised in such a way as to destroy their continued existence. But when we are dealing with an amending power, is there any necessity to make that fundamental assumption? There might be some logic in implying limitation upon the legislative power of the federal legislature, as that power can be exercised only subject to the fundamental assumption underlying a federal state, namely, the continued existence of States. But what is its relevancy when we are dealing with implied limitation on the amending power, which is a power to alter or change the Constitution itself? 1721. It is relevant in this connection to note the vicissitudes in the fortune of the doctrine of immunity of instrumentalities which was based on the theory of implied prohibition. Marshal, C.J. said in McCulloch v. Maryland (1819) 4 Wheaten 316. "The rule thus laid down was based upon the existence of an implied prohibition that, the Federal and State Governments respectively being sovereign and independent, each must be free from the control of the other; me doctrine was thus based upon the necessity su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l has nothing to do with the policy of any Act and that the duty of the Court, and its only duty, is to expound the language of the Act in accordance with the settled rules of construction. 1725. In Bank of Toronto v. Lambe [1887] 12 A.C. 575, 586 the Privy Council was concerned with the question whether the Legislature of a Province could not levy a tax on capital stock of the Bank, as that power may be so exercised as to destroy the Bank altogether. The Privy Council said that if on a true construction of Section 92 of the British North America Act, the power fell within the ambit of the section, it would be quite wrong to deny its existence because by some possibility that it may be abused or may limit the range which otherwise would be open to the Dominion Parliament. The Privy Council observed that "Their Lordships cannot conceive that when the Imperial Parliament conferred wide powers of local self-government on great countries such as Quebec, it intended to limit them on the speculation that they would be used in an injurious manner. People who are trusted with the great power of making laws for property and civil rights may well be trusted to levy a tax". 1726. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the features which are broadly described as "federal features" contained in Clauses (a) to (d) of the proviso to Article 368 are essential features of the Constitution. The articles referred to in Clause (a) to (d) deal with some of the essential features of the Constitution like the Union Judiciary, the High Courts, the legislative relation between the Union and the States, the conferment of the residual power and so on. The power to amend the legislative lists would carry with it the power to transfer the residuary entry from the Union List to the State List. This would also enable Parliament to increase its power by transferring entries from the State List or Concurrent List to the Union List. The proviso to Article 368 thus makes it clear that the Constitution-makers visualised the amendability of the essential features of the Constitution. 1730. Mr. Palkhivala contended that Fundamental Rights are an essential feature of the Constitution, that they are the rock upon which the Constitution is built, that, by and large, they are the extensions, combinations or permutations of the natural rights of life, liberty and equality possessed by the people by virtue of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lpless before the authoritarian state. Your rights, on this theory, are precisely those which the State provides you and no more. To say that you have rights which the State ought to recognize is, from this point of view, a plain misuse of the language. "However, from the point of view of the Declaration of Independence, to recognize the existence of rights prior to and independent of political enactment, is the beginning of political wisdom. If the governments are established to 'secure these rights', the pre-existence of these rights is the whole basis of the political theory" See Hocking, "Freedom of the Press", footnote at p. 59. The preamble to our Constitution shows that it was to 'secure' these rights that the Constitution was established, and that, by and large, the Fundamental Rights are a recognition of the pre-existing natural rights. "They owe nothing to their recognition in the Constitution-such recognition was necessary if the Constitution was to be regarded complete" See Corwin "The Higher Background of the American Constitutional Law", p. 5. 1734. The philisophical foundation of the rights of man is natural law and the histor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Laserson has rightly said that the doctrines of natural law must not be confused with natural law itself. The doctrines of natural law, like any other political and legal doctrines, may propound various arguments or theories in order to substantiate or justify natural law, but the overthrow of these theories cannot signify the overthrow of natural law itself, just as the overthrow of some theory of philosophy of law does not lead to the overthrow of law itsef See "Positive and Natural Law and their correlation in Interpretation of Modern Legal Philosophies" Essays in Honour of Roscos Pound (New York Oxford University Press), (1947). 1737. The social nature of man, the generic traits of his physical and mental Constitution, his sentiments of justice and the morals within, his instinct for individual and collective preservation, his desire for happiness his sense of human dignity, his consciousness of man's station and purpose in life, all these are not products of fancy but objective factors in the realm of existence See Lauterpacht, "International Law and Human Rights", p. 101. The Law of Nature is not, as the English utilitarians in their ignorance of its hist ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ans Kelsen-all believers in social progress-have treated the law of nature with little respect and have rejected it as fiction. Mr. Justice Holmes remarked : "The jurists who believe in natural law seem to me to be in that naive state of mind that accepts what has been familiar and accepted by them and their neighbours as something that must be accepted by all men everywhere" Holmes, "Collected Legal Papers", p. 312. Professor Kelsen considers the typical function of the natural law school to have been the defence of established authority and institutions-of established governments, of private property, of slavery, of marriage See Kelsen, "General Theory of Law and State", pp. 413-418. 1741. Despite these attacks and the ebb and flow in its fortune, there has been a revival of the law of nature in the 20th century and there is no gainsaying the fact that the doctrine of the law of nature was the bulwark and the lever of the idea of the rights of mare embodied in the International Bill of Human Rights with a view to make the recognition of these rights more effective and to proclaim to the world that no State should violate these rights See Lauterpacht ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... imited in certain circumstances. 1743. That all natural rights are liable to be limited or even taken away for common good is itself a principle recognized by all writers on natural law. "However, even though man's natural rights are commonly termed absolute and inviolable, they are limited by the requirements of the universal Order to which they are subordinated. Specifically, the natural rights of man are limited intrinsically by the end for which he has received them as well as extrinsically by the equal rights of other men, by his duties towards others". See Romen, "The Natural Law" (1947), footnote 49, p. 253. And when the Parliament restricts or takes away the exercise of the Fundamental Rights by military personnel or the police charged with the duty of maintaining the peace, that does not mean that there are no natural rights, or, that by and large, the Fundamental Rights are not a recognition of the natural rights. It only shows that Fundamental Rights like natural rights are liable to be limited for the common good of the society. John Locke himself did not understand that natural rights were absolute and nowhere did he say so. In other words, because ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the fundamental postulate of Aristotle that man is a political animal and that his nature demands life in society. As no human being is an island, and can exist by himself, no human right which has no intrinsic relation to the common good of the society can exist. Some of the rights like the right to life and to the pursuit of happiness are of such a nature that the common good would be jeopardised if the body politic would take away the possession that men naturally have of them without justifying reason. They are, to a certain extent, inalienable. Others like the right of free speech or of association are of such a nature that the common good would be jeopardised if the body politic could not restrict or even take away both the possession and the exercise of them; They cannot be said to be inalienable. And, even absolutely inalienable rights are liable to limitation both as regards their possession and as regards their exercise. They are subject to conditions and limitations dictated in each case by justice, or by considerations of the safety of the realm or the common good of the society. No society has ever admitted that in a just war it could not sacrifice individual welfare ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ould counter-balance them. The economic and social rights of man were never recognised in actual fact without having had to struggle against and overcome the bitter opposition of the fundamental rights. This was the story of the right to a just wage and similar rights in the face of the right to free mutual agreement and right to private ownership. 1748. To determine what is finally right involves a balancing of different claims. From an ethical point of view, all one can say is that particular rights are subject to modification in a given situation by the claims arising out of other rights or of the body of rights as a whole. Since no single right whether natural or not is absolute, claims based on any one right may be subject to qualifications in accordance with claims based on other rights or the requirements of the total order or way of life, namely, the principle of the common good. See Morris Ginsberg, Justice in Society, p. 77. It is significant to note that Article 29(2) of the Declaration of Human Rights provides: In the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tated on account of the decision of this Court in the State of Madras v. Champakam [1951] S.C.R. 525 to the effect that reservation of seats for backward classes, Scheduled Castes and Tribes in public institutions was invalid, as it would offend the Fundamental Rights guaranteed under Article 29(2). When this Court said that the reservation of seats for these classes offended the Fundamental Right guaranteed under Article 29(2), what option was left but for the Parliament to enact the Amendment, for, social justice required discriminatory treatment in favour of the weaker sections of the people and in particular the Scheduled Castes and Tribes in order to promote their educational and economic interest and to give them a position of equality. It is possible to sympathise with those who bewail the decision in the case as a 'self inflicted wound'. But when a Bench of five Judges held so, not all the tears in the world can recall a word of what was written, but only an amendment by Parliament, since the chance of the decision being overruled was remote and problematical. 1783. The second and sixth clauses of Article 19 were also amended by the First Amendment. Article 19(1)(a) provid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eech is the matrix upon which all other freedoms are founded and nobody would deny that it is an essential feature of the Constitution. But that had to be damaged for the sake of a greater good, namely, the maintenance of the sovereignty and integrity of India. And who would dare maintain that the amendment was unnecessary? These amendments illustrate that exigencies not visualized by the makers of the Constitution would arise and that Fundamental Rights will have to be abridged for the commongood or for securing higher values. 1755. It was because counsel for the petitioner realised the necessity for amendment of Fundamental Rights in certain circumstances in such a way as to abridge them that he advanced the further contention that although Parliament should have the power to amend the Fundamental Rights, there is implied limitation upon its power to amend them in such a way as to damage or destroy their core or essence, and that the Court must, in the case of each amendment, pass upon the question whether the amendment has destroyed or damaged the essence or the core of the right. Counsel said that if the task of adjudging what is "reasonable restriction in the interest of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ame, the reasonable man of English and American law and all his works which are many". See History of the Law of Nature by Pollock, pp. 57-59. Lord Coke said in Dr. Bonham's case 8 Rep. 107, 118(a) that the common law will adjudge an Act of Parliament as void if it is against common right and reason and substantive due process in its content means nothing but testing an act or legislation on the touchstone of reason. The reason why the expression "due process" has never been defined is that it embodies a concept of fairness which has to be decided with reference to the facts and circumstances of each case and also according to the mores for the time being in force in a society to which the concept has to be applied. As Justice Frankfurter said, "due process" is not a technical conception with a fixed content unrelated to time, place and circumstances See Joint Anti-Fascist Refugee Committee v. McGrath 341 U.S. 123. The limitations in Article 19 of the Constitution open the doors to judicial review of legislation in India in much the same manner as the doctrine of police power and its companion, the due process clause, have done in the United States. The res ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... undamental rights may be so considered. Where a law imposes a restriction upon a Fundamental Right which is vague in character, it would be struck down as unreasonable under Clauses (2) to (6) of Article 19 for the same reason as an American Court would strike it down as violative of due process, viz., a person cannot be deprived of his Fundamental Right by a law whose command is uncertain and does not sufficiently indicate to the individual affected by it how he could avoid coming within the mischief of the law. Our Constitution-makers, under the guise of testing the reasonableness of restrictions imposed by law on Fundamental Rights, brought in by the back door practically the same concept which they openly banished by the front. 1758. I am not dismayed by the suggestion that no yardstick is furnished to the Court except the trained judicial perception for finding the core or essence of a right, or the essential features of the Constitution. Consider for instance, the test for determining citizenship in the United States that the alien shall be a person of "good moral character" the test of a crime involving "moral turpitude", the test by which you determine ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nalterable framework? If this is so, it would raise the fundamental issue whether that intention should govern the succeeding generations for all time. If you subscribe to the theory of Jefferson, to which I have already referred and which was fully adopted by Dr. Ambedkar, the principal architect of our Constitution and that is the only sane theory. I think there is no foundation for the theory of implied limitations. Were it otherwise, in actual reality it would come to this : The representatives of some people the framers of our Constitution could bind the whole people for all time and prevent them from changing the Constitutional structure through their representatives. And, what is this sacredness about the basic structure of the Constitution ? Take the republican form of Government, the supposed cornerstone of the whole structure. Has mankind, after its wandering through history, made a final and unalterable verdict that it is the best form of government? Does not history show that mankind has changed its opinion from generation to generation as to the best form of government? Have not great philosophers and thinkers throughout the ages expressed different views on the subjec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... promise or sacrifice the one at the expense of the other in the realisation of the goal of the Good life of the people. What is the relationship between the rights guaranteed by Part III and the moral rights in Part IV? In the State of Madras v. Champakam already referred to this Court held that the Fundamental Rights being sacrosanct, the Directive Principles of State Policy cannot override them but must run as subsidiary to them. This view was affirmed by this Court in Quareshi v. State of Bihar (1959) S.C.R. 629. S.R. Das, C.J. who delivered the judgment of the Court said that the argument that the laws were passed in the discharge of the fundamental obligation imposed on the State by the Directive Principles and therefore, they could override the restrictions imposed on the legislative power of the State by Article 13(2) or that a harmonious interpretation has to be placed upon the provisions of the Act was not acceptable. It was held that the State should implement the Directive Principles but that it should do so in such a way that its laws do not take away or abridge the Fundamental Rights : as otherwise, the protecting provisions of Part III will be a mere rope of sand. In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rinciples? Would the Court be justified in striking down the law as contrary to the Law of the Constitution or, on what basis will a conflict between Part III and Part IV be solved? The questions require serious consideration. 1765. The definition of the word 'State' both for the purpose of Part III and Part IV is the same. Whereas Article 45 of the Irish Constitution addresses the directive only for the guidance of the Oireachtas, i.e., the legislature, all the directives from Articles 38 to 51 of our Constitution are addressed to the 'State' as defined in Article 12. That judicial process is also "State Action" seems to be clear. Article 20(2) which provides that no person shall be prosecuted and punished for the same offence more than once is generally violated by the judiciary and a writ under Article 32 should lie to quash the order. In his dissenting judgment in Naresh v. State of Maharashtra [1966] 3 S.C.R. 744 Hidayatullah, J. took, the view. I think rightly that the judiciary is also "State" within the definition of the word "State" in Article 12 of the Constitution. See also Shelley v. Kraemer 334 U.S., 1; Eudhan v. State of Maharashtra [195 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l decision has a constitutive character. The law-creating function of the courts is especially manifest when the judicial decision has the character of a precedent, and that means when the judicial decision creates a general norm. Where the courts are entitled not only to apply preexisting substantive law in their decisions, but also to create new law for concrete cases, there is a comprehensible inclination to give these judicial decisions the character of precedents. Within such a legal system, courts are legislative organs in exactly the same sense as the organ which is called the legislator in the narrower and ordinary sense of the term. Courts are creators of general legal norms. See Kelsen, "General Theory of Law and State" pp. 134-5 & 149-150. Lord Reid said : See the recent address of Lord Reid, "The Judge as Law Maker" (1972) 12 J.S.P.T.L. (N.S.) 22, 29. There was a time when it was thought almost indecent to suggest that judges make law-they only declare it. Those with a taste for fairy-tales seem to have thought that in some Aladdin's Cave there is hidden the Common Law in all its splendour and that on a judge's appointment there descends on him know ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to beg in the street, to steal bread or sleep under the bridge? This is not to say that the struggle for a just economic order should be allowed to take priority over the struggle for the more intangible hopes of man's personal self-fulfilment. But in particular contexts, fundamental freedoms and rights must yield to material and practical needs. Economic goals have an un-contestable claim for priority over ideological ones on the ground that excellence comes only after existence. See generally A.R. Blackshield "Fundamental Rights and Economic Viability of the Indian Nation", Journal of the Indian Law Institute, Vol. 10 (1968) 1. It is only if men exist that there can be fundamental rights. "Tell an unprovisioned man lost in the desert that he is free to eat, drink, bathe, read.... No one is hindering him. For the attainment of most of these ends he might better be in prison. Unrestraint without equipment is not liberty for any end which demands equipment.... Unemployment is a literal unrestraint, a marked freedom from the coercions of daily toil but as destructive of means it is the opposite of freedom for.... To contemporary consciousness it has become an axiom th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he actual claims made by men in a given society at a given time, to which justice requires them to give effect so far as possible. See Julius Stone, Human Law and Human Justice, pp. 269-270. And what are the de facto claims crying aloud for recognition as interests for the millions of people of this country? That can probably admit of only one answer, by those who have eyes to see and ears to hear. By and large the rough picture of the actual claims made by the millions of people in this country and which demand recognition as interests protected by law is sketched in Part IV of the Constitution. A judgment of justice is called for when these claims which call for recognition in law as interest conflict with other rights and interests. That judgment has to be made by the dominant opinion in the community. For a Judge to serve as a communal mentor, as Learned Hand said, appears to be a very dubious addition to his duties and one apt to interfere with their proper discharge. The court is not the organ intended or expected to light the way to a saner world, for, in a democracy, that choice is the province of the political branch i.e. of the representatives of the people, striving howe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ding Body, decides to amend the Constitution in such a way as to take away or abridge a Fundamental Right to give priority value to the moral claims embodied in Part IV of the Constitution, the Court cannot adjudge the Constitutional amendment as bad for the reason that what was intended to be subsidiary by the Constitution-makers has been made dominant. Judicial review of a Constitutional amendment for the reason that it gives priority value to the moral claims embodied in Part IV over the Fundamental Rights embodied in Part III is impermissible. Taking for granted, that by and large the Fundamental Rights are the extensions, permutations and combinations of natural rights in the sense explained in this judgment, it does not follow that there is any inherent limitation by virtue of their origin or character in their being taken away or abridged for the common good. The source from which these rights derive their moral sanction and transcedental character, namely, the natural law, itself recognizes that natural rights are only prima facie rights liable to be taken away or limited in special circumstances for securing higher values in a society or for its common good. But the respon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... clear from the statement of Objects and Reasons for the Amendment. That says that the Amendment was made to provide expressly that the Parliament has competence, in the exercise of its amending power, to abridge or take away the Fundamental Rights since the majority in the Golaknath Case held that the Parliament had no such power. As I have already said, the Amendment has added nothing to the content of the article except the requirement as to the compulsory character of the assent of the President to the bill for amendment. That an Amending Body, in the exercise of its power to amend, if the power to amend is plenary, can make an amendment in order to make clear what was implicit in the article and to correct a judicial error in the interpretation of the article appears to me to be clear. 1778. Mr. Palkhivala contended that as the power to amend under Article 368 as it stood before the 24th Amendment was itself limited, the power to amend that power cannot be utilised to enlarge the amending power. 1779. There is nothing illegal or illogical in a donor granting a limited power coupled with a potential power or capacity in the donee to enlarge the limit of that power according to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ay or abridge them and, therefore, the Amending Body cannot do in two stages what it was prohibited from doing in one stage. Even on the assumption that the word 'law' in Article 13(2) included an amendment of the Constitution, I think there was nothing which prevented the Amending Body from amending Article 368 and Article 13(2) in such a way as to exclude the operation of Article 13(2) as there was no express or implied prohibition for doing so. 1781. The next question for consideration is whether the 25th Amendment is valid. By that Amendment, Article 31(2) was amended and the amended article says that no property shall be acquired save by the authority of law which provides for acquisition or requisition of the property for an 'amount' which may be fixed by such law or which may be determined in accordance with such principles and given in such manner as may be specified in such law and that no such law shall be called in question in any Court on the ground that the amount so fixed or determined is not adequate or that the whole or any part of such amount is to be given otherwise than in cash. An exception has been made in the case of acquisition of property belonging to an ed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... denominations to establish and maintain institutions for religious and charitable purposes would become empty words. 1783. The framers of the Constitution regarded the right to acquire and hold property as a Fundamental Right for the reason that a dignified human life is impossible without it. Whether it is the weakest of all Fundamental Rights would depend upon the question whether there is a heirarchy of values among the Fundamental Rights. The concept of preferred freedoms is an indication that some judges are inclined to put the right to hold property low in the scale of values. 1784. The exponents of natural law like Aristotle, St. Thomas Aquinas, Hobbes and even positivists are agreed that right to life and property is the presupposition of a good legal order. Property, according to Aristotle, is an instrument of the best and highest life. Property is the necessary consequence and condition of liberty. Liberty and property demand and support each other. 1785. The doctrine of natural rights has exercised a profound influence upon the conception of private property. In its most modern form it insists that property is indispensable to man's individual development and attainm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le from the discharge of function, so that the acquisition of wealth and the enjoyment of property are contingent upon the performance of services but that the individual enters the world equipped with rights to the free disposal of this property and the pursuit of his economic self-interest, and that these rights are anterior to, and independent of any service which he may render. In other words, "the enjoyment of property and the direction of industry are considered to require no social justification" (See the passage quoted in "Equal Protection Guarantee and the Right to Property under the Indian Constitution", by Jagat Narain, International And Comparative Law Quarterly, Vol. 15, 1966, pp. 206-7). 1792. The framers of our Constitution made the right to acquire, hold and dispose of property a Fundamental Right thinking that every citizen in this country would have an opportunity to come by a modicum of that right. Therefore, as the learned Attorney General rightly contended any defence of the right to own and hold property must essentially be the defence of a well distributed property and not an abstract right that can, in practice, be exercised only by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3. 1797. When property is acquired for implementing the directive principles under Article 39(b) or 39(c), is there an ethical obligation upon the State to pay the full market value? In all civilized legal systems, there is a good deal of just expropriation or confiscation without any direct compensation. Indeed, no one, in fact, had the courage to argue that the State has no right to deprive an individual of property to which he is so attached that he refuses any money for it. Article 31(2A) proceeds on the assumption that there is no obligation upon the State to pay compensation to a person who is deprived of his property. What does it matter to the person who is deprived of his property whether after the deprivation, the State or a Corporation owned or controlled by the State acquires title to it? Every acquisition by State pre-supposes a deprivation of the owner of the property. If when depriving a person of his property, the State is not bound to pay compensation, what is the principle of justice which demands that he should be compensated with full market value merely because the title to the property is transferred to State or the Corporation as aforesaid after the deprivat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s, Vol. IX, p. 1299. We find on the English Statute Book several Acts, the Land Acquisition Act, the Land Clauses Act, the Housing Act, in all of which a varying basis of compensation has been adopted to suit not only to the nature of the property but also the purpose for which it is to be acquired. Parliament therefore is the judge and master of deciding what principles to apply in each case. 1801. In the State of West Bengal v. Bela Banerjee (1954) S.C.R. pp. 558, 563-4, the expectation entertained by the Constituent Assembly that the Court will not interfere with the fixation of compensation by Parliament was belied. The Court said in that case that the owner of the property expropriated must be paid the just equivalent of what he has been deprived of and that within the limits of this basic requirement of full indemnification of the expropriated owner, the Constitution allows free play to the legislative judgment as to what principles should guide the determination of the amount payable. 1802. In order to bring Article 31(2) in conformity with the clear inten tion of the framers of the Constitution, the Fourth Amendment to the Constitution was passed and it came into effect o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inciples must be appropriate to the determination of compensation for the particular class of property sought to be acquired. 1806. It was in these circumstances that the word 'amount' was substituted for 'compensation' in the sub-article by the 25th Amendment. 1807. It was submitted on behalf of the petitioner that the word 'amount' implies a norm for fixing it and that at any rate, when principles for fixing the amount are referred to, the principles must have some relevancy to the amount to be fixed. 1808. The whole purpose of the amendment was to exclude judicial review of the question whether the 'amount' fixed or the principle laid down by law is adequate or relevant. 1809. Mukherjea, C.J. said in Rat Sahib Ram Jawaya Kapur v. State of Punjab (1955) 2 S.C.R. 225, 237, that the Cabinet, enjoying as it does, a majority in the legislature concentrates in itself the virtual control of both legislative and executive functions; and as the Ministers constituting the Cabinet are presumably agreed on fundamentals and act on the principle of collective responsibility, the most important questions of policy are all formulated by them. 1810. Much the same sentiment was expressed by H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eas the word 'compensation', even after the Fourth Amendment, was thought to give such a norm, namely, the just' equivalent in money of the property acquired or full indemnification of the owners the word 'amount' conveys no idea of any norm. If supplies no yard-stick. It furnishes no measuring rod. The neutral word 'amount' was deliberately chosen for the purpose. I am unable to understand the purpose in substituting the word 'amount' for the word 'compensation' in the sub article unless it be to deprive the Court of any yardstick or norm for determining the adequacy of the amount and the relevancy of the principles fixed by law. I should have thought that this coupled with the express provision precluding the Court from going into the adequacy of the amount fixed or determined should put it beyond any doubt that fixation of the amount or determination of the principle for fixing it is a matter for the Parliament alone and that the Court has no say in the matter. This Court said in Shantilal's Case [1969] 3 S.C.R. pp. 341, 366: ...it does not however mean that something fixed or determined by the application of specified principles which is illusory or can in no sense be regarde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The presumption, if there is any, is always subject to an intention to the contrary. 1817. Counsel for the petitioner argued that as Article 19(i)(f) is still retained it would be paradoxical if a law could provide for acquisition or requisition of property on payment of an inadequate or illusory amount. He said, even if the amount given is not the just equivalent in money of the value of the property acquired, it must at least be an amount having reasonable relation to its value as Parliament cannot be deemed to have intended by the Amendment to enable a law being passed fixing an unreasonably low amount as the right to acquire and hold property is still a Fundamental Right under Article 19. If we are to import into the concept of 'amount' the implication of reasonableness with reference to the market value of the property, it would immediately open the door to the justiciability of the question of the adequacy of the amount fixed or determined which the sub-article expressly says it is not open to the Court to go into. 1818. The Fundamental Right to property is attenuated to a certain extent. But it is not wholly taken away. The right that the property could be acquired only un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iament and State Legislatures to make Constitution-breaking laws and put them beyond challenge in any Court with the result that laws which would be void as contravening the Fundamental Rights are deemed, by a fiction of law, to be not void and that is a repudiation of the supremacy of the Constitution which is an essential feature of the Constitution. Counsel further said the Directive Principles which were intended by the Constitution-makers to run as subsidiary to Fundamental Rights have been made paramount to them and laws to implement the Directive Principles specified in Article 39(b) and (c) are made immune from attack, even if they violate Fundamental Rights under Articles 14, 19 and 31. He further said that a declaration by Parliament of the State legislature that a law is to give effect to the policy of the State towards securing the principles specified in Article 39(b) or (c) has been made final which, in effect, means that Parliament and State legislatures can pass any laws in the exercise of their legislative power, whether they give effect to the policy of State towards securing the Directive Principles contained in Article 39(b) and (c) or not, and get immunity for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o make a distinction between Article 31A on the ground that Article 31A provides for laws dealing with certain specified subjects only whereas Article 31C makes provisions for laws to give effect to the State policy for securing the directive principles specified in Article 39(b) and (c) is, to my mind, to make a distinction between Tweedledum and Tweedledee. One can very well say that the subject matter of the law referred to in Article 31C is that dealt with by Article 39(b) and (c) or that 31A provides for immunity of the laws for securing the objects specified therein from attack on the ground that they violate Articles 14, 19 and 31. Does the artificial characterisation of a law as one with reference to the object or subject make any difference in this context ? think not. 1828. It is a bit difficult to understand how Article 31C has delegated or, if I may say so more accurately, invested the Parliament in its legislative capacity or the State legislatures, with any power to amend the Constitution. Merely because a law passed by them to give effect to the policy of the State towards securing the Directive Principles specified in Article 39(b) and (c) in pursuance to valid leg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... heduled Tribes. Suppose the sub-article had said: Notwithstanding anything contained in this article, or Clause 2 of Article 29 the State shall be competent to make special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and Scheduled Tribes and such a law shall not be deemed to be void under Article 13(2). In both the cases, the amendment has brought about the same effect, namely, the law shall not be deemed to be void for contravention of the right conferred by Article 15 or Article 29(2), notwithstanding the difference in the wording by which the effect was brought about. And, in both cases it is the amendment of the Constitution which gives the law the immunity from attack on the ground that it is in contravention of the rights conferred by Part III. 1830. If Article 31C is assumed to invest Parliament in its legislative capacity or State legislatures with power to pass a law of the description in question amending Fundamental Rights under Articles 14, 19 and 31 in such a way as to take away or abridge them is the grant of such a power valid. The answer seems to me to be simple. If the effect of Articl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ess and though he may desire power as well as money, profit comes before political opinions. According to Lord Bryce the power of the newspaper has two peculiar features. It has no element of Compulsion and no element of Responsibility. Whoever exposes himself to its influence does so of his own free will. He need not buy the paper, nor read it nor believe it. If he takes it for his guide, that is his own doing. The newspaper, as it has no legal duty, is subject to no responsibility, beyond that which the law affixes to indefensible attacks on private character or incitements to illegal conduct. The temptations to use the influence of a newspaper for the promotion of pecuniary interests, whether of its proprietors or of others, have also increased. Newspapers have become one of the most available instruments by which the Money power can make itself felt in politics, and its power is practically irresponsible, for the only thing it need fear is the reduction of circulation, and the great majority of its readers, interested only in business and sport, know little of and care little for the political errors it may commit. See Lord Bryce, "Modern Democracies", Vol. I, the Cha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ity, the State may regulate the conditions under which those activities take place so that the public interest is better served. See Hocking, "The Freedom of the Press", pp. 167-9. As I said in my judgment, concentration of power substitutes one controlling policy for many independent policies, it lessens the number of competitOrs. The influential part of the nation's press is large scale enterprise closely inter-locked with the system of finance and industry. It will not escape the natural bias of what it is. Yet, if freedom is to be secure, the bias must be known and overcome. It may also be necessary for the State to extend the scope of present legal remedies, if a given type of abuse amounts to poisoning the wells of the public opinion. It might be necessary in passing a Jaw for giving effect to the State policy towards securing the Directive Principles contained in Article 39(b) and (c) to deal with the commercial aspect of the press, and that aspect being connected with the freedom of speech, it might become inevitable for the law to abridge that freedom. 1836. Whatever one's personal views might be about the wisdom of Article 31C, whatever distrust one might have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... olicy. Whenever a question is raised that the Parliament or State legislatures have abused their power and inserted a declaration in a law not for giving effect to the State policy towards securing the Directive Principles specified in Article 39(b) or (c), the Court must necessarily go into that question and decide it. To put it in other words, the legislative jurisdiction to incorporate a declaration that the law gives effect to the policy of the State is conditioned upon the circumstances that the law gives effect to the policy of the State towards securing the Directive Principles specified in Article 39(b) and (c). If this is so, the declaration that the law is to give effect to the policy of the State cannot bar the jurisdiction of the Court to go into the question whether the law gives effect to the policy. The declaration can never oust the jurisdiction of the Court to see whether the law is one for giving effect to such a policy, as the jurisdiction of the legislature to incorporate the declaration is founded on the law being one to give effect to the policy of the State towards securing these principles. 1839. In order to decide whether a law gives effect to the policy ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... damental Rights and Directive Principles in a different light or from a different perspective. The value judgment of the succeeding generations as regards the relative weight and importance of these rights and aspirations might be entirely different from that of the makers of the Constitution. And it is no answer to say that the relative priority value of the Directive Principles over Fundamental Rights was not apprehended or even if apprehended was not given effect to when the Constitution was framed or to insist that what the Directive Principles meant to the vision of that day, it must mean to the vision of our time. 1842. I have no doubt in my mind as regards the validity of the 29th Amendment. For the reasons given in the judgment of my learned brother Ray, J., I hold that the 29th Amendment is valid. 1843. The argument in these cases lasted for well nigh six months. Acres of paper and rivers of ink have been employed before and during the argument in supplying the Court with materials from all sources. It will be a tragedy if our conclusion were to fail to give adequate guidance to the Bench concerned in disposing of these cases. I do not, want the conclusions to which I ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce to a special bench of thirteen Judges, larger than any previous bench hearing a case in this Court, was made so that the correctness of a view which became binding law of this country by a narrow majority of one, as a result of the eleven Judge decision of this Court, in Golak Nath and Ors. v. State of Punjab and Anr. [1967] 2 S.C.R. 762 may be if need be reconsidered. That view was that the prohibition contained in Article 13(2) of our Constitution against the making of any law by the State "which takes away or abridges the rights conferred" by the chapter on Fundamental Rights making laws made in contravention of this provision void "to the extent of the contravention" applies to Constitutional amendments also. Although that was a decision on a limitation held to exist, under our Constitution, as it then stood, on the power of amendment contained in Article 368 of the Constitution, yet, it did not decide what the position would be, if Article 368 was itself amended under the express power of such amendment recognised by Clause (e) of the proviso to Article 368 (2) of the Constitution. Although, that question, which then neither arose nor was decided, is be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mplex. Hardly any major decision can be made without a careful evaluation of the conflicting values and interests of which some examples have been given in the preceding pages. Totalitarian government eliminates much of the conflict by dictating what should be done". The lot of the democratic judge is heavier and nobler. He cannot escape the burden of individual responsibility, and the great, as distinct from the competent, judges have, I submit, been those who have shouldered that burden and made their decisions as articulate a reflection of the conflicts before them as possible. They do not dismiss the techniques of law, but they are aware that by themselves, they provide ho solution to the social conflicts of which the law is an inevitable reflection". He also wrote there (at page 62): The law must aspire at certainly at justice, at progressiveness, but these objectives are constantly in conflict one with the other. What the great judges and jurists have taught is not infallible knowledge, or a certain answer to all legal problems, but an awareness of the problems of contemporary society and an acceptence of the burden of decision which no amount of technical legal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... idity of Article 31C only on the ground that it virtually provider for amendment of the Constitution in a "manner and form" different from that prescribed by Article 368 would be a most unsatisfactory ground of decision. The question of prune importance is the limit on the amending power. The question of manner and form pales into total insignificance compared to the question of substantive limitation on the amending power". It is submitted with the greatest respect that the 69 days hearing would be virtually wasted if the judgment were to rest merely on the point of manner and form, avoiding the real issue of momentous significance, namely, the scope of the amending power. It is this vital issue which has really taken up the time of the Court for almost five months". 1856. Before tackling the core or crux of the case which, as Mr. Palkiwala has rightly pointed out, is the question of the limits of the amending power found in Article 368 of the Constitution, I must make some preliminary observations on the very concepts of a Constitution and of legal sovereignty embodied in it, and the nature of the amending power as I conceive it. This and other parts of my j ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... spoke for the whole of the people of India without any specific or direct legal authority conferred by the people themselves to perform this function. 1860. The voice of the people speaking through the Constituent Assembly constituted a new "Republic" which was both "Sovereign and Democratic". It no doubt sought to secure the noble objectives laid down in the Preamble primarily through both the Fundamental rights found in Part III and the Directive Principles of State Policy found in Part IV of the Constitution. It would, however, not be correct, in my opinion, to characterise, as Mr. Palkiwala did, the Fundamental rights contained in Part III, as merely the means whereas the Directive Principles, contained in Part IV as the ends of the endeavours of the people to attain the objectives of their Constitution. On the other hand, it appears to me that it would be more correct to describe the Directive Principles as laying down the path which was to be pursued by our Parliament and State Legislatures in moving towards the objectives contained in the Preamble. Indeed, from the point of view of the Preamble, both the fundamental rights and the Directive Principles ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... upon citizens, with corresponding obligations of the State, the Directive Principles lay down specific duties of the State organs. In conferring fundamental rights, freedom of individual citizens, viewed as individuals, were sought to be protected, but, in giving specific directives to State organs, the needs of social welfare, to which individual freedoms may have to yield, were put in the forefront. A reconciliation between the two was, no doubt, to be always attempted whenever this was reasonably possible. But, there could be no doubt, in cases of possible conflict, which of the two had to be subordinated when found embodied in laws properly made. 1864. Article 38 shows that the first of the specific mandates to State organs says: 38. The State shall strive to promote the welfare of the people by securing and protecting as effectively as it may a social order in which justice, social, economic and political, shall inform all the institutions of the national life. In other words, promotion of a social order in which "justice, social, economic, and political" was the first duty of all the organs of the State. 1865. The second specific mandate to State, organs, found in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e promotion of education and economic interest of scheduled castes and the duty of the State to raise the level of of nutrition and to improve public health". My object in drawing attention to the nature of these objectives is to show that what the framers of the Constitution were after was to establish, what is generally known, now as the 'welfare' or the 'social service state', in this country. They had taken a comprehensive view of State activities and it is quite clear that they were not dominated by the laissez faire thought of the last century. So much about Directives. Now we come to fundamental rights". The object of these fundamental rights, as far as I can gather from a reading of the Constitution itself, was not merely to provide security to and equality of citizenship of the people living in this land and thereby helping the process of nation-building, but also and not less importantly to provide certain standards of conduct, citizenship, justice and fair play. In the background of the Indian Constitution, they were intended to make all citizens and persons appreciate that the paramount law of the land has swept away privilege and has laid down that there is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ates came in through "Instruments of accession". This means that the legal sovereignty was vested in the Constituent Assembly whereas the people of India may be said to be only politically "sovereign". Their views were carefully ascertained and expressed, from various angles, by the Members of the Constituent Assembly, political sovereign thus operated outside the ambit of law yet made its impact and effect felt upon the legal sovereign, that is to say, the Constituent Assembly. In recognition of this fact and to bring out that it was really speaking on behalf of the people of India, the Constituent Asembly began the Preamble with the words : "We, the people of India". This meant, in my estimation, nothing more than that the Constituent Assembly spoke for the people of India even though it was vested with the legal authority to shape the destiny of this country through the Constitution framed by it. There is not to be found, anywhere in our Constitution, any transfer of legal sovereignty to the people of India. 1871. The people of India speak through their representatives in the two Houses of Parliament. They approach the courts for the assertion of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... also to be noticed; and these will show us that sovereignty, if it is not limited to particular questions and definite objects (limited, that is to say, in regard to the things which it handles), is none the less limited and defined by its own nature and its own mode of action". In the first place, and as regards its nature, sovereignty is the authority of the last word. Only questions of the last resort will therefore be brought to the sovereign. Much will be settled in the lower ranges and in the ordinary course of the action of general State-authority. In the second place, and as regards its mode of action, the sovereign is a part : and an organ of the legal association. Nothing will therefore come to the soverign which does not belong to the nature and operation of the legal association, as such. Sovereignty moves within the circle of the legal association, and only within that circle; it decides upon questions of a legal order, and only upon those questions. Moving within that circle, and deciding upon those questions, sovereignty will only make legal pronouncements, and it will make them according to regular rules of legal procedure. It is hot a capricious power of doin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dissolution), on a system which is one of connextion rather than co-ordination. However composed, the body which makes the ordinary law of the land is the immediate sovereign, which issues final legal pronouncements on ordinary currrent questions to the extent and by the methods authorized under the Constitution. The immediate sovereign which makes the ordinary law in the United Kingdom is authorized by the Constitution to a greater extent of action, and to action by easier and speedier methods, than the the immediate sovereign which makes the ordinary law in the United States; but in either case the immediate sovereign is a body authorized by the Constitution, acting and able to act because it is so authorized". On the argument which is here advanced the Constitution is the ultimate sovereign, in virtue of being the permanent scheme, or standing expression, of what may be called the primary law of the political association; and the law and rule-making body is the immediate sovereign, in virtue of being the constant source and perennially active fountain of what may be called the secondary law of the land. Two difficulties confront the argument, one of them largely formal, b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eedom. Since the work of Locke and Montesquieu, we have come generally to admit the truth of Madison's remark that the accumulation of all powers...in the same hands...may justly be pronounced the very definition of tyranny. 1876. In order to avoid concentration of such excessive power in few hands that it may corrupt or be misused by chose who wield it, our Constitution also divides or distributes legal sovereignty into three branches or organs of the State the Legislative, the Executive, and the Judicature. The sphere of the sovereignty of each is sought to be so demarcated by our. Constitution that the "genuine whole" appears in the form of three intersecting circles. In those portions of these circles where the judicial power intersects the legislative and the executive powers, the judicature acts as the supervisor or guardian of the Constitution and can check legislative or executive action. But, in the remaining parts of the two interhecting circles of the Legislative and the Executive spheres, the two other branches are supreme legally, just as the judicature is in its own, so that their decisions there cannot be questioned by the judicial branch of the State. 18 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s assumed and said repeatedly that India's economy must change its feudal character. Its social patterns, modes of thought and feeling, were to be changed and guided by scientific thinking and endavour so as to lead its people on towards higher and higher ranges of achievement in every direction. 1880. Our Constitution-makers, who included some of the most eminent jurists in the country, could not have been ignorant of the teachings of our own ancient jurists, Manu and Parashara, who had pointed out that the laws of each age are different. In support of this view, the late Dr. Ganga Nath Jha, in his treatise on Hindu Law, has cited the original passages from Manu and Parashara which run as follows: (1) Anye krita yugay dharmaah tretaayam duaaparey parey anye kali yugey nreenaam yoga roopaanusaaratah-Manu. (2) anye krita yugev dharma tretaayaama dyaaparcy parey anye kali yugey nreenaam yuga roopaanusaratah-Parashara. 1881. An English translation of the sense of the above passages runs as follows: 1882. "The fundamental laws (imposing fundamental duties or conferring fundamental rights) differ from age to age; they are different in the age known as krita from those in the d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ath or transgress the limits prescribed by the Constitution at a particular time. The fundamental rights, as I have said eariler, may be viewed as such limits. The power of amendment, in a Constitution such as ours, must include the power to change these limitations to suit the needs of each age and generation. As the celebrated Justice Holmes said in his "Common Law", the life of law has not been logic, but the "felt necessities" of the times. Every kind of law, whether fundamental or ordinary, has to be an attempted adaptation to the needs of the people at a particular time. The power of adaptation in a progressive nation, with a Constitution which visualizes a movement towards socialism must, therefore, be construed in the context of the whole setting of urges enshrined in the Constitution and what their satisfaction demands. So construed, it may involve changes in the very features considered basic today. 1886. I think it has been properly pointed out by Mr. Niren De, the Attorney General, and Mr. Seeravai, the Advocate-General of Maharashtra, that the proper function of Article 368, in a Constitution is to act as a safety valve against violent revolution. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Constitution contained in Article 368 of the Constitution even before it was amended by the 24th Amendment. 1889. The majority of the learned Judges of this Court in Golak Nath case (Supra) held that the power of amendment itself and not merely its procedure was contained in Article 368 of the Constitution. They also held this power of amendment to be wide. Hidayatullah, J., however, thought that the ambit of the term "law", as used in Article 13(2) of the Constitution, was wide enough to cover a change in the fundamental law on which Article 368 exclusively operates. The view of Hidayatullah, J., turned the scales by a narrow majority of one in favour of the opinion that Article 13(2) operates as an express restriction upon the powers contained in Article 368 even though it does not say so expressly. The limitation was inferred from the wide meaning given to the term "law". But the view of the majority of Judges of this Court who have had the occasion to consider this question, that is, if we include or add the number of those who gave decisions in Sajjan Singh v. State of Rajasthan [1965] 1 S.C.R. 933 and Sri Sankari Prasad Singh Deo v. Union of India and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rescribed by Article 164(4) of the Constitution for a Minister of a State Government given in Third Schedule Form V to "do right to all manner of people in accordance with Constitution and the law". (6) The form of oath prescribed by Article 219 of the Constitution for a High Court judge given in Form VIII-Third Schedule to "uphold the Constitution and the laws". 1892. Clause 7 of the Fifth Schedule part D, of the Constitution only explains the meaning of word amend as covering an "addition, variation or repeal" and similar is the case with Clause 21 of the Sixth Schedule. I am not attracted by the distinction between amendments, which are "deemed" not to be amendments, falling within Article 368, mentioned in the Fifth and Sixth Schedules, and actual amendments covered by Article 368. The word "deemed" was used in these provisions and Articles 4 and 169 merely to indicate that the procedure required by Article 368 was not required here. These provisions certainly furnish an aid in construing and fixing the meaning of the word "amendment" wherever used in the Constitution. And, as I have already held, the scope of amendm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The above mentioned principle has been applied generally where the question has arisen whether the particular law prevails over, and, therefore, repeals the general law. It has, however, also been held that the principle may operate to merely curtail the operation of the general law by exempting from its scope the special cases dealt with by the particular law (See : Re Williams; [1887] 36 Ch. D. 573 @ p. 577 Mirfin v. Atttwood, Harishanker Bagla v. M.P. State (Supra).). In other words, the principle may so operate as to curb or reduce the extent or ambit of applicability of the general law. An application of this principle would also show that Constitutional law, as Special Law, may be removed from the purview of "law", as found in Article 13 of the Constitution, even if, by stretching one's imagination, it was really possible to so stretch the scope of the term "law", as used in Article 13 of the Constitution, as would include, but for such a principle, amendments of the Constitution. Prima facie, however, amendments of the Constitution operate on every provision of the Constitution unless any part of it is expressly excluded from the scope of such operation. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... & William J. Howey 282 U.S. p. 716 State of Rhode Island v. A. Mitchell Palmer, Attorney General etc. 253 U.S. p. 350. Schneiderman v. U.S. 320 U.S. p. 118 @ p. 137-145. 1900. The cases from Australia decided by the Privy Council were : McCawley v. The King 1920 A.C. p. 691., Taylor v. Attorney General of Queensland 23 C.L.R. p. 457 where an interpretation of Section 5 of the Colonial Law Validity Act was given in the light of a presumption that the power transferred to a British Colonial Legislature must be read subject to the fundamental assumption underlying the Constitution of the British Empire that the position of the Crown has not been affected; Webb v. Outrim [1907] A.C. p. 81 where the theory of implied restrictions on powers found in the Commonwealth Parliament Act was rejected; Victoria v. Commonwealth, 45 Australian L.J. p. 251 where, without questioning the basic principle of grant of plenary powers of legislation, laid down by Lord Selborne in Q. v. Burah (1878) 3 A.C. 889 a decision was given on the lack of powers in the Federal Legislature, to tax a State, on a subject falling outside Section 51 of the Australian Constitution, which laid down the powers of taxation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... glas Liyanage and Ors. v. The Queen 1967 (1) A.C. p. 259 it was held, with regard to the Acts the validity of which was impugned: ...the Acts could not be challenged on the ground that they were contrary to the fundamental principles of justice. The Colonial Laws Validity Act, 1865, which provided that "colonial laws should be void to the extent that they were repugnant to an Act of the United Kingdom applicable to the colony but not otherwise and should not be void on the grounds of repugnancy to the law of England, did not leave in existence a fetter of repugnancy to some vague and unspecified law of natural justice : those liberalising provisions were incorporated in, and enlarged by, the Ceylon Independence Act, 1947, of the British Parliament, the joint effect of which, with the Ceylon (Constitution) Order in Council, 1946, was to confer on the Ceylon Parliament the full legislative powers of a sovereign independent state. 1904. This case shows that repugnancy to some vague principle of "natural justice" could not invalidate the enactments of a fully competent legislative authority. 1905. There can be no question of delegation of the power of amendment if, as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... various and conflicting natural law theories, such as those of Spinoza, Hobbes, Locke or Rousseau, discussed by T.H. Green in his "Principles of Political Obligation". I also do not find it necessary to embark on an academic discussion of ancient and medeival theories of natural law. I will, however, quote a passage from Friedmann on Legal Theory (5th Edition-p. 95-96), where the position, place, and uses of "natural law" theories are thus summarised: The history of natural law is a tale of the search of mankind for absolute justice and of its failure. Again and again, in the course of the last 2,500 years, the idea of natural law has appeared, in some form or other, as an expression of the search for an ideal higher than positive law after having been rejected and derided in the interval. With changing social and political conditions the notions about natural law have changed. The only thing that has remained constant is the appeal to something higher than positive law. The object of that appeal has been as often the justification of existing authority as a revolt against it. Natural law has fulfilled many functions. It has been the principal instrument in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... relied on a natural law theory to strengthen his views really based on an application of the supposed express bar contained in Article 13(2). 1909. I have already stated my point of view, that we should approach the questions placed before us from the pragmatic angle of the changing needs of social and economic orders visualised by those who were or are the final Judges of these needs in exercise of the Constituent power. Checks on possible abuses of such powers do not lie through actions in Courts of law. The pressure of public opinion, and the fear of revolt due to misuse of such powers of amendment are the only practically possible checks which can operate if and when such contingencies arise. These checks lie only in the political fields of operation. They are not subject to judicial review or control. In other words, what Dicey calls the external and the internal limits may operate to control and check possible misuses of such power. Courts of justice have no means of control over a power expressly sanctioned by the Constitution which is the legal sovereign. They can only speak for the Constitution. Through their pronouncements must be heard the voice of the Constitution and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of the times offered by rapidly changing social, political, economic, national and international conditions and situations. We cannot contract what the Constitution makers clearly intended to make elastic and expansible. 1913. For the foregoing reasons, I hold that the 24th Amendment of the Constitution is valid. It would, therefore, follow that the 25th and 29th Amendments are also valid. The reasons for the validity of each of these amendments have been so fully dealt by my learned brethren Ray, Palekar, Mathew, and Dwivedi, with most of which I respectfully concur, that I need not discuss or repeat any of them here. Nor have I, for this very reason, attempted to discuss the enormous array of cases, both Indian and foreign, or the great many juristic writings, placed before and closely examined by us. I will, however, indicate before I conclude, my special reasons for holding Section 3 of the Constitution (25th Amendment) Act 1971, adding Article 31C to the Constitution also as valid. 1914. Article 31C has two parts. The first part is directed at removing laws passed for giving effect to the policy of the State towards securing the principles specified in Clause (b) or Clause ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the concession made on behalf of the Union of India is quite justifiable on a ground which I now proceed to adopt. It is that a declaration by itself is not part of the law made, but it is something only attached to the law even though this annexation is by a purported law. In other words, the declaration, though provided for by law, takes the place of judicial consideration by the Courts and involves consideration of the question whether it is reasonable and necessary to attach such a declaration to a particular law. 1917. I do not think that it is necessary for me to decide what the exact nature of the function in giving the declaration is or whether it carries with it, by implication, the proposition that some rules of natural justice must be complied with. Such questions were not argued before us by any party. Nevertheless, I think that the concession could only be made on the strength of the view that the declaration by itself would not preclude a judicial examination of the nexus so that Courts can still determine whether the law passed is really one covered by the field carved out by Article 31C or merely pretends to be so protected by parading under cover of the declarat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... glishmen in the Stuart period and died in discomfiture are seeking transmigration into the Constitution of India now. Perceive some resemblances: Ideas during the Stuart Period Arguments of Sri Palkhiwala 1. "Acts of Parliament may take away flowers 1. By virtue of Article 368 Parliament and ornaments of the crown but not cannot so amend the Constitution the crown itself.... Sir John Finch C.J., as to take away or abridge the Fundamental Law in English Constitutional essential features of the Constitution. History by J.W. Gough, 1955 Edn. p. 73. 2. "The Parliament cannot deliver over 2. Parliament cannot so amend the the free, people of England to a foreign Constitution as to make the Republic government, or to laws imposed by of India a satellite of a foreign country. foreigners...." William Ball of Barkham Esquire, Ibid. p. 107. 3. "The Parliament cannot deprive the free 3. Parliment cannot so amend the Constitution people of England of their innate rights as to damage or destroy the of electing knights, citizens and core of the fundamental rights in Part III burgesses for Parliament. In these things of the Constitution. of the nature of these tending to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .W. Maitland, Constitutional History of England (Paper back reprint (1963) pages 300-301. The King and the Common Law accepted its supremacy. Stuart England was passing through an age of transition. So is India today. "We are passing through the great age of transition when we are passing through the great age of transition the various systems-even systems of law-have to undergo changes. Conceptions which had appeared to us basic undergo changes" Jawaharlal Nehru : C.A.D. Vol. 9 page 1194 (emphasis added). At bottom the controversy in these cases is as to whether the meaning of the Constitution consists in its being or in its becoming. The Court is called upon to decide whether it is a prison-house or a freeland, whether it speaks for the few or for the many. These issues can hardly be resolved with the aid of foreign legal know-how. Decisions of foreign courts and treatises and articles written on various Constitutions by foreign writers would not be safe guide in construing our Constitution. "(I)n the last analysis the decision must depend upon the words of the Constitution and since no two Constitutions are in identical terms, it is extremely unsafe to assume that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... they stood for the good and the whoelsome (Shrey). They addressed their king as Rajan because it was his duty to secure the welfare of his people (See Richard Henry Tawney, "The Acquisitive Society", Chapter II & IV) Their rule of law (Dharma) was intended to help the power-minus keep the power-plus in check. Their rule of law (rita) was a stream, not a puddle. It recognised the inevitability of change. They believed in the moral precept : distribute and enjoy the residue of wealth.(Mahabharata, Shanti Prava, 57 : 11.) 1927. The Constitution bears the imprint of the philosophy of our National Movement for Swaraj. That philosophy was shaped by two pre-eminent leaders of the Movement- Mahatma Gandhi and Jawaharlal Nehru. Mahatma Gandhi gave to the Movement the philosophy of Ahimsa. Two essential elements of his Ahimsa are : (1) equality; and (2) absence of the desire of self-acquisition (Aparigrah). He declared that "to live above the means befitting a poor country is to live on stolen food." Dr. P. Sitaramaya, "The History of the Indian Congress, Vol. I, page 386. And he also said : "I consider it a sin and injustice to use machinery for the purpose o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ss Session of Bombay in 1931 declare that in order to end the exploitation of the masses political freedom must include economic freedom of the starving millions. Resolutions, supra pp. 6-9. It provided that "property was not to be sequestered or confiscated "save in accordance with law" Ibid (emphasis added). It also provided that the State shall own or control the key industries and services, mining resources, railways waterways, shipping and other means of public transport." Ibid. According to the Congress Election Manifesto of 1945, "the most vital and urgent of India's problems is how to remove the curse of poverty and raise the standard of masses. Ibid p. 14. It declared that for that purpose it was "necessary...to prevent the concentration of wealth and power in the hands of individuals and groups, and to prevent vested interests inimical to society from growing." Ibid. p. 14. It proposed acquisition of the land of intermediaries on payment of equitable compensation. Ibid. pp. 15-16. In November 1947 the All India Congress Committee Session at Delhi passed a resolution to the effect that the object of the Congress should be to secure " ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y try to threaten, restrain and change governments in self-interest. B. Russel, Ibid. pp. 86, 88 and 124; Monopolies Inquiry Commission Report pp. 1, 135 and 193. It may endanger liberty, the rule of law and peace. J.K. Gailbraith, Ibid, pp. 67 and 70; W. Friedmann. An Introduction to World Politics : London Macmillan and Co. Ltd. 1962, p. 4. It may retard national unity, the growth of culture and education. Monopolies Inquiry Commission Report, p. 136. To prevent these manifold abuses of the economic power, the Constitution-makers enacted Articles 39(b) and (c). It will be legitimate to bear in mind the preemptive significance of Part IV in understanding the Constitution. 1934. It is now necessary to consider whether the majority decision in Golaknath (1967) 2 S.C.R. 762 is correct. Residence of Amending Power 1935. In Golaknath Wanchoo J. and two other Judges who associated with him and Hidayatullah, Bachawat and Ramaswami JJ. took the view that the power to amend the Constitution is located in Article 368. Subba Rao C.J. and four other learned Judges who associated with him, on the contrary, held that Article 368 does not grant the power of amending the Constitution. It merel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s the topic of amending the Constitution was foreseen by them, it could not have been put in the residuary power. Article 245(1) confers power on Parliament "subject to the provisions of this Constitution." Articles 246 and 248 are subject to Article 245. Accordingly, a law made under Article 348 and Entry 97 of List I cannot be inconsistent with any provision of the Constitution. But a law made under Entry 97 for amending any provision of the Constitution would be inconsistent with that provision. Accordingly it would be invalid. But on following the prescribed procedure in Article 368 there ensues a valid amendment of the Constitution. So Article 248 and Entry 97 cannot include the power to amend the Constitution. The history of residuary power in our country also indicates that the power to amend the Constitution cannot be subsumed in the residuary power. Section 104 of the Government of India Act, 1935 provided for residuary power. The Governor-General could by public notification empower either the Federal Legislature or a Provincial Legislature to enact a law with respect to any matter not enumerated in any of the Lists in Schedule VII. Acting under Section 104, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he British Parliament. The power to amend that Act was vested in that Parliament. The elected representatives of the people could until that date make only legislative laws under the Constitution Act. The Constitution Act endowed them with a legislative power. Under Sections 99 and 100 of the Government of India Act, 1935, the Union and Provincial Legislatures made legislative laws. Under Sections 42, 43 and 44 and Section 72 of Schedule IX the Governor General made ordinances. The Governor made ordinances and Acts under Sections 88, 89 and 90. The headings of all those provisions describe the law-making power as 'legislative power'. The framers of the Constitution were familiar with the historical meaning of the expression 'legislative power' in this country. The were also aware of the meaning of 'constituent power'. Accordingly, it is reasonable to believe that they have made a distinction between legislative power' and 'constituent power'. Indeed they have described the power of making legislative laws as a 'legislative power'. The heading of Part XI is 'Distribution of Legislative Powers'; the heading of Article 123 is 'legislative power of the President'; the heading of Articl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dure any part of the Constitution as if it were a statute. In a controlled Constitution the procedure for making laws and for amending the Constitution are distinct and discrete. No part of the Constitution can be amended by the law-making procedure. This distination between constituent power and legislative power in a controlled Constitution proceeds from the distinction between the law-making procedure and the Constitution-amending procedure. Our Constitution is of a hybrid pattern. It is partly controlled and partly uncontrolled. It is uncontrolled with respect to those provisions of the Constitution which may be amended by an ordinary law through the legislative procedure; it is controlled with respect to the remaining provisions which may be amended only by following the procedure prescribed in Article 368. When any part of the Constitution is amended by following the legislative procedure, the amendment is the result of the exercise of the legislative power; when it is amended through the procedure prescribed by Article 368, the amendment is the result of the exercise of the constituent power. The amending power conferred by Article 368 is a constituent power and not a legisl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ional Law of the United States (1929 Edn.), Vol. I, p. 62. The heading "the Constitution of India" above the Preamble shows that the Preamble is a part of it. 1948. As the Preamble is a part of the Constitution, it is liable to amendment under Article 368. Those parts of the Preamble which operate on the past such as "this 26th day of November, 1949" may perhaps not be capable of miodification. 'Even Jove hath not power on the past'. But there is little doubt that such parts can be deleted by the exertion of the amending power. 1949. In sum, no provision of the Constitution can claim immunity from the sway of the amending power. The amending power can amend each and every provision of the Constitution including the Preamble and Part III. Magnitude of Amending Power 1950. The magnitude of amending power is measurable by the broad-shouldered word "amendment" in Article 368. According to Wanchoo J., the word "amendment" should be given its full meaning as used in law and that means that by amendment an existing Constitution...can be changed, and this change can take the form either of addition to the existing provisions or alteration of exis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ete or perfect or effective. It also appears that the whole text of a law cannot be repealed or abrogated in one step; some part of it must remain while the other is repealed. 1951. The Constitution does not define the word "amendment". Article 367(1) applies the General Clauses Act to the interpretation of the Constitution. The Act also does not define "amendment". However, Section 6A provides that where any Central Act repeals any enactment by which, the text of any Central Act was "amended by express omission, insertion or substitution of any matter" the repeal unless different intention appears, shall not affect the continuance of "any suck amendment made by the enactment so repealed" and in operation at the time of such repeal. Section 6A shows that "amendment" includes addition, substitution and omission. There is no reason why this definition which was known to the Constitution-makers should not apply to "amendment" in Article 368. 1952. According to the petitioners, "amendment" in Article 368 is used in the narrow sense of making improvements. Now, an improvement may be made not only by an addition, but ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ho will duly succeed us in this task." C.A.D. Vol. 2, pages 322-323. On November 8, 1948 he reiterated : "While we who are assembled in this House undoubtedly represent the people of India, nevertheless, I think it can be said and truthfully that when a new House, by whatever name it goes, is elected in terms of this Constitution and every adult in India has the right to vote, the House that emerges then will certainly be fully representative of every section of the Indian people. It is right that that House elected so...should have an easy opportunity to make such changes as it wants to...." C.A.D. Vol. V, pp. 322-323. The Constitution-makers conferred very wide amending power on Parliament because it was believed that Parliament elected on adult franchise would be fully representative of the entire people and that such a Parliament should receive a right to have a fresh look at the Constitution and to make such changes therein as the entire people whom it represents desire. Fourth, at the apex of all human rights is the right of self-preservation. People collectively have a similar right of selfpreservation. Self-preservation implies mutation, that is adaptation to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent of the Constitution seeks to make any "change" in the provisions specified therein, such amendment shall also require the ratification by at least half of the State Legislatures. Thus the proviso contemplates an amendment by way of a 'change' in certain provisions of the Constitution. According to the Shorter Oxford English Dictionary (3rd Edition Vol. 1, page 291) "change" means "substitution, or succession of anything in place of another; alteration in the State or quality of anything; variation, mutation, that which is or may be substituted for another of the same kind." The power to amend accordingly includes the power to substitute one provision for another. For instance, it will be open to Parliament to remove List II in the Seventh Schedule and substitute another List therefor by strictly following the procedure prescribed in Article 368 and its proviso. The words "amendment" and "amend" have been used in Articles 107(2), 108(1) and (4), 190(3), 110(1)(b), proviso to Article 111, Articles 147, 196(2), 197(1)(c) and (2)(c), 198(3), 199(1)(b), 200, 201 and 395. In all these provisions those words include the power of repeal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tution, sub-paragraph (2) could not have been enacted. It has been held by this Court that Parliament may change the boundaries of a State by a law enacted under Article 3 or by an amendment of the Constitution under Article 368. (Berubari Union, supra). It would follow from this decision that Parliament may repeal any provision of Schedule V by an ordinary law enacted under paragraph 7 of Schedule V or by an amendment under Article 368. The amending power under Article 368 which provides for amendment of the Constitution by a more difficult procedure than the one by which any provision of Schedule V may be repealed under paragraph 7 cannot surely be narrower than the power under paragraph 7 of Schedule V. The same consideration equally applies to paragraph 21 of Schedule VI to the Constitution. 1959. According "to Article 33 Parliament may by law determine to what extent any of the rights conferred by Part III shall in their application to the members of the Armed forces or forces charged with the maintenance of public order be restricted or abrogated so as to ensure better discharge of their duties and the maintenance of discipline amongst them. It is open to Parliament to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ; should include the sense of repeal and abrogation. 1963. According to Sri Palkhiwala, whenever the Constitution-makers intended to confer the power of repeal on any authority, they have expressly said so as in Articles 35(b), 252(2), the proviso to Article 254(2) and Article 372(1) and (2). In all these provisions the Words "alter, repeal or amend" are used with reference to a law. As "amend" would not authorise repeal simpliciter of the entire law, the framers of the Constitution have expressly conceded the power of repealing the entire law. So these provisions do not help the argument of Sri Palkhiwala that "amendment" in Article 368 should be given a narrow meaning. 1964. To sum up, the nature, object and history of the amending power and the context of Article 368 leave little room for doubt that the word "amendment" includes the power of repealing or abrogating each and every provision of the Constitution. It may be that Parliament may not be able to annhilate the entire Constitution by one stroke of pen. But it can surely repeal or abrogate all provisions in Part III. Article 368 permits Parliament to apply not only the physician's ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nstitution had regarded the Constitution as 'law', they would not have separately mentioned the Constitution in various oaths. 1968. Various provisions of the Constitution indicate that the product which comes into being by fallowing the legislative procedure prescribed in Articles 107 to 111 is called 'law'. The heading over Articles 107 and 196 reads as "Legislative Procedure". When the prescribed legislative procedure is followed, the end-product is law. But when the procedure prescribed in Article 368 is strictly followed, it results in the amendment of the Constitution. The Constitution-makers did not call it 'law'. 1969. Ordinarily fundamental rights avail against the State organs, that is, the Legislature, the Executive and the Judiciary and other agencies of the State. While making an amendment under Article 368, Parliament acts as a constituent authority and not as a State organ. The body making a law in accordance with the procedure prescribed under Articles 107 to 111 and an amendment according to the procedure prescribed in Article 368 may be the same, but the two functions are fundamentally different in character. It is common knowledge that often there is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion were aware of the fact that certain foreign Constitutions have expressly put the amending power in substantive fetters. Indeed Article 305 sought to place such a fetter on the Draft Article 304 (corresponding to Article 368). In the absence of clear textual evidence, I am unable to expand the meaning of 'law' in Article 13(2), for an expansive construction would permanently rule out the lawful making of structural reforms in the social, economic and political frame of the country. Speaking on the First amendment to the Constitution following the decision of this Court in State of Madras v. Srimathi Champakan Dorairajan, (1951) S.C.R. 525 on May 29, 1951 Jawaharlal Nehru said : "We have to give them (the weaker sections of the society) opportunities-economic opportunities, educational opprtunities and the like. Now in doing that we have been told that we come up against some provisions in the Constitution which rather lay down some principles of equality or some principles of non-discrimination etc. So we arrive at a peculiar tangle. We cannot have equality because in trying to attain equality we come up against some principles of equality. That is a very peculiar position. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on can be drawn from the history of Article 13(2) as to the meaning of the word 'law'. The Draft Report of the Sub-Committee on Fundamental Rights, dated April 3, 1947, contained an annexure dealing with Fundamental Rights. Shiva Rao, Framing of India's Constitution, Vol. II, p. 137. Clause 2 of the annexure relevantly provided that "any law which may hereafter be made by the State inconsistent with the provisions of this Chapter/Constitution shall be void to the extent of such inconsistency." By a letter of April 16, 1947, the Chairman of the Fundamental Rights sub-Committee forwarded an annexure on Fundamental Rights to the Chairman, Advisory Committee on Fundamental Rights. Clause 2 of the annexure materially read: "All existing laws or usages in force...inconsistent with the rights guaranteed under this Constitution shall stand abrogated to the extent of such inconsistency : nor shall the Union or any unit make any law taking away or abridging any such right." Ibid, p. 171. On April 23, 1947, the Advisory Committee on Fundamental Rights presented an interim report to the President of the Constituent Assembly. The Report contained an annexure providing for fu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e words "except by way of amendment of the Constitution" are omitted from Sri K. Santhanam's amendment, the remaining words "nor shall any such rights be taken away or abridged" are quite wide to prohibit the abrogation or abridgment of fundamental rights even by a Constitutional amendment. The same effect seems to be produced by the words "nothing in this Constitution" in Section 9(2) of the Draft Constitution prepared by the Constitutional Adviser. But the Drafting Committee substituted Section 9(2) by Article 8(2) of the Draft Constitution. Article 8(2) of the Draft Constitution does not enmesh in plain words all the provisions of the Constitution including Article 304. This may perhaps explain the omission of the words "except by way of amendment of this Constitution." from Article 8(2) of the Draft Constitution. In any case, this history of Article 13(2) does not prove that the Drafting Committee intended Up give supremacy to fundamental rights over the Constitution amending power. In this connection it is important to refer to a note from the Constitutional Adviser's office that 'law' in Section 9(2) did not include an amendment of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is no fourth category. Articles in Part III of the Constitution should accordingly fit into one of these categories. It seems to me that having regard to his threefold classification of the Articles it is not fair to interpret his speeches as showing that the Articles in Part III are not at all amendable. The word "not" in the sentence "if the future Parliament wishes to amend any particular article which is not mentioned in Part III or Article 304" is presumably either a slip of tongue or a printer's devil. When Jawaharlal Nehru said that the fundamental rights were intended to be "permanent in the Constitution", he did not really mean that they are not amendable. His speeches, already quoted by me, would clearly show that he regarded the entire Constitution to be subject to amendment by any future Parliament. 1977. Sri Kamath had moved an amendment to Article 304 which expressly provided for amendment in the provisions of Part III, but that amendment was rejected by the Constituent Assembly. No inference of unamendability of those provisions can be drawn from the rejection of his motion, for the members of the Constituent Assembly might have thought ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y philosophers or the philosophers of the early 19th century...nevertheless the world has changed within a hundred yearschanged mightily" Parliamentary Debates Vols. XII-XIII, Part II, pp. 9624-9625. 1983. Articles 15(3), 16(4) and (5), 19(2) to (6), 21, 22(3), 4(b) and 7(a) and (b), 23(2), 25(1) and (2), 26, 28(2), 31(4), (5), and (6) encumber the rights with manifold unpredictable limitations. Article 19(2) has invented a completely new restriction to free speech, namely, 'friendly relations with foreign states' Article 33 expressly empowers Parliament to restrict or abrogate the rights in their application to the Army and forces responsible for the maintenance of public order. For a period of five years from May 14, 1954, the 'reasonableness' of restrictions on the rights specified in Article 19 was made unjusticiable in the State of Jammu and Kashmir. Clause (7) added to Article 19 by the President provided that 'reasonable restrictions' in Clauses (2), (3), (4) and (5) shall be construed as meaning such restrictions as the appropriate legislature in Jammu and Kashmir "deems reasonable". Article 35A applied to that State by the President made inroads into the ri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ems to me that Hidayatullah J. also did not favour the argument of inherent and implied limitations on the amending power, for he has said : "The whole Constitution is open to amendment. Only two dozen articles are outside the reach of Article 368. That too because the Constitution has made them fundamental." (ibid, p. 878). 1987. Sri Palkhiwala's argument of inherent and implied limitations may be reduced to the form of a syllogism thus. All legislative powers are subject to inherent and implied limitations. 1988. The constituent power in Article 368 is a legislative power. 1989. The constituent power is subject to inherent and implied limitations. 1990. If the major and minor premises in the syllogism are valid, the conclusion also must be valid. But both premises are fallacious. Some legislative powers are not subject to any inherent and implied limitations. Take the case of the War Power. During the course of arguments I had asked Sri Palkhiwala to point out any inherent and implied limitation on the War Power, but he could point out none. When the President has issued a Proclamation of Emergency under Article 352, the cardinal principle of federalism is in eclips ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is designed to achieve than by the structure of Parliament. 1992. Implied limitations cannot be spelt out of the vague emotive generalities of the Preamble. 'People', 'Sovereign', 'Democratic', 'Republic', 'Justice', 'Liberty', 'Equality' and 'Fraternity' are plastic words, and different people have impressed different meanings on them. Slavery had coexisted with democracy and republic. Liberty and religious persecution have walked hand in hand. It was once believed that equality was not compromised by denying vote to the propertyless. Preamble is neither the source of powers nor of limitations on power. (In re. Barubari Union, Supra, p. 282). 1993. According to Sri Palkhiwala, an implied limitation is one which is implicit in the scheme of various provisions of the Constitution. The scheme "of various provisions is to create primary organs of State and to define, demarcate and limit their powers and functions. The scheme of Article 368, on the other hand, is to re-create the primary organs of State and to re-define, re-demarcate and re-limit their powers and functions if and when it becomes imperative to do so for the good of the people. Accordingly it must plainly have bee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is a pedestal that men set everything upon that they would not have broken. It is a nail everbody would use to fix that which is good for them; for all men would have that principle to be immutable that serves their use at the time. 1996. Fundamental is a word used by the laity as the word sacred is by the clergy, to fix everything to themselves they have a mind to keep, that nobody else may touch it Gough, supra, pp. 169-170. 1997. The Constitution-makers who were familiar with the English Constitutional history could not conceivably have left undetermined the test of distinguishing the essential features from the non-essential features or their core. The test is writ large in Article 368 itself. Every provision of the Constitution which may be amended only by the procedure prescribed in Article 368 is an essential feature of the Constitution, for it is more set than legislative laws. The test is the rigid procedure. The more rigid the procedure, the more essential the provision amendable thereby. Thus the provisions specified in the proviso to Article 368 are more essential than the rights in Part III. It has already been shown earlier that the fundamental rights, even though ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... here the proposal contained in the Bill affects the area, boundary or name of any of the States, the Bill has been referred by the President to the Legislature of that State for expressing its views thereon. The Bill carved out three units out of the State of Bombay, but the Act carved out only two units. It was urged that the word "State" in Article 3 should be given a larger connotation so as to mean not merely the State but its people as well. This according to the argument was the "democratic process" incorporated in Article 3. According to this "democratic process" the representatives of the people of the State of Bombay assembled in the State Legislature should have been given an opportunity of expressing their views not merely on the proposal contained in the Bill but on any subsequent modification thereof. Rejecting this argument, S.K. Das, J. said: (I)t will be improper to import into the question of construction doctrines of democratic theory and practice obtaining in other countries, unrelated to the tenor, scheme and words of the provisions which we have to construe.... It does not appear to us that any special or recondite doctrine of &qu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a Legislature. The composition of the Legislature, its powers and functions are laid down in this Chapter. Chapter V provides for the structure of the State Judiciary. Article 214 provides that there shall be a High Court for each State. The provisions in these Chapters are mandatory. Parliament, while making a law under Articles 2, 3 and 4, cannot make radical changes in the legislative, executive and judicial administration of a State, for its law-making power is subject to Chapter II, III and V of Part VI. 2002. Sri Palkhiwala has invoked natural law as the higher law conditioning the constituent power in Article 368. Natural Law has been a sort of religion with many political and Constitutional thinkers. But it has never believed in a single Godhead. It has a perpetually growing pantheon. Look at the pantheon, and you will observe there : 'State of Nature', 'Nature of Man', 'Reason', 'God', 'Equality', 'Liberty', 'Property', 'Laissez Faire', 'Sovereignty', 'Democracy', 'Civilised Decency', 'Fundamental Conceptions of Justice' and even 'War' "In justifying and extolling war as an institution Treitschke appealed "to the laws of human thought and of human nature" ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt spoke thus: "(A)s regards the fundamental rights'...this Court has been assigned the role of a sentinel on the qui vive." While the Court took care to assure that it has no 'desire to tilt at legislative authority in a crusader's spirit', it added by way of warning that "it cannot desert its own duty to determine finally the Constitutionality of an impugned statute." The Court moved away from its Gopalan attitude of humility and self-restraint to the sentinel's role, compounded of self-restraint and self-consciousness. In 1954 the Court moved away a step further. In Virendra Singh and Ors. v. State of Uttar Pradesh [1955] 1 S.C.R. 415 the Court, making the people its mouthpiece, asserted : "(W)e do not found on the will of the Government, we have upon us the whole armour of the Constitution wearing the breastplate of its protecting provisions and flashing the sword of its inspirations." Perhaps this passage is a faithful drawing of a crusader. But the picture is of a crusader getting ready to set out on a new path. This is the Third attitude of the Court. It displays more of self-assertion than of self-suppression. By 1963 Gopalan attitude of humil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to these principles if the argument which is often being used...is adhered to, you can't. You may say you must accept the Supreme Court's interpretation of the Constitution. But, I say, then if that is correct, there is an inherent contradiction in the Constitution between the fundamental rights and the Directive Principles of State Policy. Therefore, again, it is upto this Parliament to remove that contradiction and make the fundamental rights subserve the Directive Principles of State Policy Lok Sabha Debates, 1955-Vol. II, p. 1955". 2009. Article 31(4), (5) and (6) establish beyond doubt that the Constitution-makers intended to give ascendency to the Directive Principles of State Policy over fundamental" rights. "It is futile to cling to our notions of absolute sanctity of individual liberty or private property and to wishfully think that our Constitution-makers have enshrined in our Constitution the notions of individual liberty and private property that prevailed in the 16th century when Hugo Grotius flourished or in the 18th century when Blackstone wrote his Commentaries and when the Federal Constitution of the United States of America was framed. We must rec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e find a reason for it because we want it" As quoted in the Story of Philosophy by Will Durant at p. 339. Pure reason is a myth. Structuring reason is also calculating expediency, computing the plus and minus of clashing values as a particular time, in a particular place and in particular conditions, striking difficult balances. 2012. Structural socio-political value choices involve a complex and complicated political process. This Court is hardly fitted for performing that function. In the absence of any explicit Constitutional norms and for want of complete evidence, the Court's structural value chokes will be largely subjective. Our personae predilections will unavoidably enter into the scale and give colour to our judgment. Subjectivism is calculated to undermine legal certainty, an essential element of the rule of law. 2013. Judicial review of Constitutional amendments will blunt the people's vigilance, articulateness and effectiveness. True democracy and true republicanism postulate the settlement of social, economic and political issues by public discussion and by the vote of the people's elected representatives, and not by judicial opinion. The Constitution is not int ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ise of the power of taxation? None whatever. By exercising its power of taxation by law, the State may deprive us of almost sixteen annas in the rupee of our income. What, I ask, is the protection which our Constitution gives to any person against the legislature in the matter of deprivation even of life or personal liberty. None, except the requirement of Article 21, namely, a procedure to be established by the legislature itself and skeleton procedure prescribed in Article 22.... What is abnormal if our Constitution has trusted the legislature as the people of Great Britain have trusted their Parliament ? Right to life and personal liberty and the right to private property still exist in Great Britain in spite of the supremacy of Parliament. Why should we assume or apprehend that our Parliament...should act like mad man and deprive us of our property without any rhyme or reason? After all our executive government is responsible to the legislature and the legislature is answerable to the people. Even if the legislature indulges in occasional vagaries, we have to put up with it for the time being. That is the price we must pay for democracy. But the apprehension of such vagaries ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a becoming, a moving equilibrium; satyam is symbolic of the Constitution's ideal of sacrifice and humanism. The Court will be doing its duty and fulfilling its oath of loyality to the Constitution in the measure judicial review reflects these twin ideals of the Constitution. Twentyfourth Amendment 2020. It consists of two relevant sections, Sections 2 and 3, These sections have been drawn in the light of various judgments in Golaknath (supra). Section 2 adds Clause (4) to Article 13. As the majority decision in Golaknath had taken the view that Article 13(2) is a limitation on the amending power to take away or abridge the fundamental rights, Clause (4) removes that limitation. Section 3 consists of four clauses. Clause (a) substitutes the marginal note to the unamended Article 368. The substituted marginal note reads as "Power of Parliament to amend the Constitution and procedure therefor". Clause (b) renumbers the unamended Article 368 as Clause (2) and adds Clause (1) to it. The new Clause (1) calls the amending power as 'constituent power'. It empowers Parliament to amend 'by way of addition, variation or repeal' any provision of the Constitution in accordance with t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y. In my opinion, the whole of the 24th amendment is perfectly valid. Section 2 of the 25th Amendment 2024. Section 2 amends Article 31(2). The unamended Article 31(2) obligated the State to pay 'compensation' for any property acquired or requisitioned by it. Section 2 substitutes the word 'compensation" by the words "an amount". It also provides that the amount fixed by law or determined in accordance with the principles prescribed by law may be "given in such a manner as may be specified in such law. 2025. The last part of the main part of the amended Article 31(2) also states that "No such law shall be called in question in any Court on the ground that the amount so fixed or determined is not adequate or that the whole or any part of such amount is to be given otherwise than in cash. 2026. A proviso has also been added to Article 31(2). According to the proviso, while making any law-providing for the compulsory acquisition of any property of educational institution, established and administered by a minority referred to in Clause (1) of Article 30, the State shall ensure that the amount fixed by or determined under the law is such as would not restric ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on shall provide for a just equivalent of what the owner has been deprived of or specify the principles for the purpose of ascertaining the 'just equivalent' of what the owner has been deprived of. If Parliament intended to enable a Legislature to make such a law without providing for compensation so defined, it would have used other expressions like 'price', 'consideration' etc. Ibid. at page 626. 2030. Regarding the amendment he said: (A) more reasonable interpretation is that neither the principles prescribing the 'just equivalent' nor the 'just equivalent' can be questioned by the Court on the ground of the inadequacy of the compensation fixed or arrived at by the working of the principles. To illustrate, a law is made to acquire a house; its value at the time of the acquisition has to be fixed; there are many modes of valuation, namely, estimate by an engineer, value reflected by comparable sales, capitalisation of rent and similar others. The application of different principles may lead to "different results. The adoption of one principle may give a higher value and the adoption of another principle may give a lesser value. But none the less they are principles on whic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... equivalent, the principles specified for determination of compensation will also not be open to challenge on the plea that the compensation determined by the application of those principles is not a just equivalent...(I)t does not mean however that something fixed or determined by the application of specified principles which is illusory or can in no sense be regarded as compensation must be held by the Courts, for, to do so would be to grant a charter of arbitrariness, and permit a "device to defeat the Constitutional guarantiee. A challenge to a statute that the principles specified by it do not award a just equivalent will be in clear violation of the Constitutional declaration that adequacy of compensation provided is not justiciable. [1969] 3 S.C.R. pages 365-366. 2034. Shantilal Mangaldas transfused blood in the 4th Amendment made anaemic by Vajravelu and Metal Corporation. But soon thereafter came the majority decision in R.C. Cooper v. Union of India [1970] 3 S.C.R. 530. Cooper in substance overruled Shantilal Mangaldas and restored the old position. More, it also added the test of Article 19(1)(f) to valid acquisition of property. These decisions of the Court constra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t to 'compensation', that is, to the 'just equivalent' of the property acquired. That phrase is no more there now in Article 31(2). The notion of 'the relevancy of principles to compensation' is jettisoned by Section 2. Obviously, where the law fixes the amount, it cannot be questioned in any court on the ground that it is not adequate, that is, not equal to the value of the property acquired or requisitioned. The legislative choice is conclusive. It would accordingly follow that the amount determined by the principles specified in the law is equally unquestionable in courts. 2038. The newly added proviso to Article 31(2) appears to me to fortify this construction. According to the proviso, the law providing for compulsory acquisition of any property of an educational institution which would receive the protection of Clause (1) of Article 30, should ensure that the amount fixed by or determined under it for the acquired property would not restrict or 'abrogate' the right guaranteed under that clause. Now, the object of a proviso is to take out something which is included in the main part of a provision. So the amount payable under the main part of the amended Article 31(2) may be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hird principle will include the element of social justice. It is thus wrong to say that on my interpretation of Article 31(2) the legislatures will act arbitrarily in determining the amount. The amended Article 31(2) does not remove the bar of Article 14. If the amount paid to the owner of property is in violation of the principles of Article 14, the law may even now be struck down. Although the amended Article 31(2), according to my construction of it, will abrogate the right of property, it is Constitutional as it falls within the scope of the 24th Amendment which I have held to be Constitutional. Section 3 of the 75th Amendment 2040. Section 3 adds Article 31C to Part III of the Constitution. It reads : "Notwithstanding anything contained in Article 13, no law giving effect to the policy of the State towards securing the principles specified in Clause (b) and (c) of Article 39, shall be deemed to be void on the ground that it is inconsistent with or takes away or abridges any of the rights conferred by Article 14, Article 19 or Article 31; and no law containing a declaration that it is for giving effect to such policy shall be called in question in any court on the groun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iso to the article enacts that where the appointing authority'is satisfied that for some reason it is not reasonably practicable to hold such inquiry, the pre-requisite of hearing may be dispensed with. Clause (3) of Article 311 then enacts that if a question arises whether it is reasonably practicable to hold an inquiry, 'the decision thereon of the authority...shall be final'. Article 329(a) enacts that notwithstanding anything in the Constitution the validity of any law relating to the delimitation of constituencies or allotment of seats to such constituencies made or purporting to be made under Article 327 or Article 328 shall not be called in question in any court. Like these articles, the second part of Section 3 excludes judicial review to a limited extent. 2046. The main part of Article 31C consists of two parts; The first part provides that no law giving effect to the policy of the State towards securing the principles specified in Article 39(b) and (c) shall be deemed to be void on the ground that it is inconsistent with or takes away or abridges any of the rights conferred by Articles 14, 19 and 31. The fast part may be split up into two : (a) giving effect to the polic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... if it offends against Articles 14, 19 and 31 unless it is subordinate, ancillary or consequential to any provision having such relevancy or forms an integral part of the scheme of such provision. Delegation of Amending Power 2049. As Article 368(2) as now amended provides that 'only' Parliament may amend the Constitution by the prescribed procedure, it is said that Parliament may not delegate the constituent power to any extraneous authority. It is not necessary to decide this question. Assuming that Parliament may not delegate the constituent power, the question still remains whether Article 31C authorise the State Legislatures and Parliament as a legislative body to amend any part of the Constitution. 2050. The power of the Parliament and State Legislatures to make a law with respect to the principles specified in Articles 39(b) and (c) is derived from Article 246 read with Lists I, II and III of the Seventh Schedule. Their legislative power is however not absolute. It is restricted by various fundamental rights including those in Articles 14, 19 and 31, for Article 13(2) expressly prohibits the legislatures from making a law which will be violative of those rights. 2051. Wha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wer to the Central Government because an order made under Section 3 had the effect of repealing an existing law. The High Court accepted the argument. But on appeal this Court reversed the judgment of the High Court and held that Section 6 did not delegate legislative power. The Court said: The effect of Section 6 certainly is not to repeal any one of these laws or abrogate them. Its object is simply to by-pass them where they are inconsistent with the provisions of the Essential Supplies (Temporary Powers) Act, 1946 or the orders made thereunder. In other words, the orders made under Section 3 would be operative in regard to the essential commodity covered by the Textile Control Order wherever there is repugnancy in this Order with the existing laws and to that extent the existing laws with regard to those commodities will not operate. By passing a certain law does hot necessarily amount to repeal or abrogation of that law. That law remains unrepealed but during the continuance of the order made under Section 3 it does not operate in that field for the time being. The ambit of its operation is just limited without there being any repeal of any one of its provisions. Conceding, h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aft Article 31(ii) became Article 39(b). Prof. K.T. Shah moved an amendment to the draft article to this effect: "that the ownership, control and management of the natural resources of the country in the shape of mines and minerals, wealth, forests, rivers and flowing waters as well as in the shape of the seas along the coast of the country shall be vested in and belong to the country collectively and shall be exploited and developed on behalf of the community by the State as represented by the Central or Provincial Governments or local governing authority or statutory corporation as may be provided for in each case by Act of Parliament C.A.D. Vol. VII, p. 506. 2057. Replying to Prof. K.T. Shah, Dr. B.R. Ambedkar said : "with regard to his other amendment, viz, substitution of his own clause for Sub-clause (ii) of Article 31, all I want to say is this that I would have been quite prepared to consider the amendment of Prof. Shah if he had shown that what he intended to do by substitution of his own clause was not possible to be done under the language as it stands. So far as I am able to see, I think the language that has been used in the Draft is much more extensive lang ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted this argument in connection with the 24th and 25th Amendments. So nothing more need be said about it. I hold that the 29th Amendment is valid. 2063. Let me summarise the discussion: (1) The majority decision in Golaknath is not correct and should be overruled. (2) The word 'amendment' in Article 368 is broad enough to authorise the varying, repealing or abrogating of each and every provision in the Constitution including Part III. (3) There are no inherent and implied limitations on the amending power in Article 368. (4) The 24th, 25th and 29th Amendments are valid in their entirety. (5) According to Article 31(2) the amount fixed by law or determined in accordance with the principles prescribed by such law for the acquired or requisitioned property cannot be questioned in any court. (6) The last part of Article 31C does not oust the jurisdiction of courts to examine whether the impugned law has relevancy to the distribution of the ownership and control of the material resources of the community or to the operation of the economic system and the concentration of wealth and means of production. 2064. The Constitution Bench will now decide the case according to law. Y.V. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arely to be surpassed. What my judgment contains is truly theirs-if this the least be good, the praise be theirs, not mine. 2067. Lester Barnhardt Orfield, an extreme exponent of the sovereignty of amending power under Article V of the American Constitution, has described that power as 'sui generis'. I will borrow that expression to say that the whole matter before us is truly sui generis. The largest Bench sat for the longest time to decide issues described as being of grave moment not merely to the future of this country but to the future of democracy itself. For a proper understanding of the meaning and scope of the amending provisions contained in Article 368 of our Constitution. We were invited to consider parallel clauses in the Constitutions of 71 countries of the world spread far and wide, with conflicting social and political philosophies. We travelled thus to new lands like Bolivia, Costa Rica, El Salvador, Gautemala, Honduros, Liberia, Nicarague, Paraguay, Uruguay and Venezuela. Constitutional sojourns to Australia, Canada, Ceylon, France, Germany, Ireland, Switzerland, U.S.S.R. and U.S.A. were of course of frequent occurrence. These excursions were interesting but not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sprung up and thrived; and that men should be afraid that any Judge complaint enough to read into a Constitution a beneficial power patently not there, might at another time be complient enough to read within it any or all of the guarantees of their liberty for, a Judge willing to take orders from a benevolent despot might be equally subservient to a malevolent one. Someone has said in a lighter vein that Law comes from the west and Light from the east, but brushing aside such considerations, the conflicting views of these writers, distinguished though they be, cannot conclude the controversy before us, which must be decided on the terms of our Constitution and the genius of our Nation. The learning of these scholars has lighted my path and their views must be given due weight and consideration. But the danger of relying implicitly on everyone of the standpoints of everyone of these authors is apparent from what Andre Tune said in answer to a question put to him at the end of his lecture on 'Government under Law : A Civilian View'. He confessed that the picture drawn by him at one time, of the French Law was too rosy and, on a misconception, it was too gloomy of American law and Am ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from whether the so-called intellectuals-the 'classe non classe'-believe in the communistic millennium of Marx or the individualistic Utopia of Bastiat, the answer to this question must depend upon the stark urgency for striking a balance between the rights of individuals and the general good of the society. 2072. We were also invited to have a glimpse of the social and political philosophies of Grotius (1583-1645), Hobbes (1588-1679), Locke (1632-1704), Wolff (1679-1784), Rousseau (1712-1778), Blackstone (1723-1780), Kant (1724-1804), Bentham (1748- 1832) and Hegel (1770-1831). These acknowledged giants of the past-their opinions have a high persuasive value-have expounded with care and deliberation the controversial theory of 'Natural Law' and 'Natural Rights'. Each has his own individualistic approach to the question but arising out of their writings is a far-reaching argument that there are rights which inhere in every man as a rational and moral being; that these rights are inalienable and inviolable; and that the core of such of these rights as are guaranteed by the Constitution cannot be damaged or destroyed. The answer to this contention would consist in the inquiry, firs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... should be a certain flexibility. If you make anything rigid and permanent you stop a Nation's growth, the growth of a living vital organic people,"; and again in the Provisional Parliament that "A Constitution which is unchanging and static, it dos not matter how good it is, how perfect it is, is a Constitution that has past its use. It is in its old age already and gradually approaching its death. A Constitution to be living must be growing; must be adaptable; must be flexible; must be changeable. And if there is one thing which the history of political developments has pointed out, I say with great force, it is this that the great strength of the British Nation and the British people has laid in their flexible Constitution. They have known how to adapt themselves to changes, to the biggest changes, Constitutionally. Sometimes they went through the process of fire and revolution". But he also said when the Constitution (First Amendment) Bill, 1951, was on the anvil that "-so far as this House is concerned, it can proceed in the manner provided by the Constitution to amend it, if this House so choose. 2074. "Now there is no doubt that this House has that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the subject and the powers of the Parliament, I do not want to project my freedom to say, as Justice McReynolds of the American Supreme Court did in the National Prohibition Cases involving the validity of the Eighteenth Amendment to the American Constitution, that I am unable to come to any conclusion. But I am quite clear that I have no use for the advice of Walter Berns ('Freedom, Virtue & The First Amendment' 1957), that since there can be no freedom to end freedom even if the people desire to enslave themselvs, "the Suprme Court must act undemocratically in order to preserve democracy". Nor indeed shall I walk down the garden-path laid by Dale. Gibson ('Constitution Amendment and the implied Bill of Rights', McGill Law Journal, Volume 12), that "where an issue as vital as the protection of civil liberties is concerned, and where the legislators have demonstrated their inability to provide adequate safeguards, the courts are entirely justified (perhaps even morally obliged) in employing all the ingenuity and imagination at their command to preserve individual rights". Such exhortations have a spartan air which lends colourfulness to arid texts but they over ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s'. Even laws like the Kentuky Statutes requiring Banks to turn over to the protective custody of that State deposits that were inactive for 10 or 25 years were upheld, as not involving taking over the property of the banks Anderson National Bank v. Luckett 321 U.S. 233. With this American history before them, the Drafting Committee of the Constituent Assembly chose in Article 21 of our Constitution a phrase of certain import, 'procedure established by law' in place of the vague and uncertain expression 'due process of law'. 2076. We were taken through an array of cases decided by the Privy Council, the Supreme Court of the United States of America, the Supreme Courts of American States, the High Court of Australia, the Supreme Court of Ireland, the High Court of Ireland, the Supreme Court of South Africa and of course our own Supreme Court, the Federal Court and the High Courts. Why, consistently with American practice, we were even referred to briefs which counsel had filed before the Supreme Court in the Rhode Island case. We also spent a little time on the judgment of the District Court of New Jersey in the Sprague case, a judgment which though reversed in appeal by the Suprem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) and in the 'High Court of Parliament Case' (1952); (7) The desicions of the Canadian Supreme Court in the Alberta Press Case (1938), the case of Attorney-General of Nova Scotia (1950), Samur's case (1953) and Switzman's case (1957); and (8) The decisions of the Hight Court of Australia in Engineer's case (1920), West v. Commonwealth of Australia in (1937), South Australia v. Commonwealth (1942) and State of Victoria v. Commonwealth (1970). 2079. Most of the decisions of the Privy Council noticed above have an important bearing on the issues arising before us and some of these decisions present a near parallel to our Constitutional provisions which require interpretation. They will help a clearer perception of the distinction between 'controlled' and 'uncontrolled' Constitutions, which in turn has an important bearing on the patent distinction between laws made in the exercise of constituent power and those made in the exercise of ordinary legislative power conferred by the Constitution. In this distinction would seem to lie an answer to some of the basic contentions of the petitioner in regard to the interpretation of Articles 13 and 368 of the Constitution. 2080. The decisions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t in derogation of the implications to be derived, say, from the federal nature of the Constitution. That is, some implications must arise from the structure of the Constitution itself. 2082. The two decisions of the South African Supreme Court (Harris' case and the High Court of Parliament case) may serve to throw some light on the concept that the sovereignty of a legislature is not incompatible with its obligation to comply with the requirements of form and manner prescribed by the instrument which regulates its power to make law, for a legislature has no power to ignore the conditions of law-making. 2083. The Canadian cases really bear on the legislative competence of provincial legislatures in regard to individual freedoms or in regard to criminal matters. In Canada, as many as six different views have been propounded on civil liberties and it would appear that though different judges have voiced their opinion in favour of one or the other of such views, none has pronounced finally in favour of any particular view. 2084. A special word must be said of Ryan's case which was decided by the Irish Supreme Court. It was read out in extenso to us and I am free to confess that it ev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... famous charge to the Jury in Van Home's lessee v. Dorrance 1 L. ed. 391: "The Constitution...is stable and permanent, not to be worked upon by the temper of the times, nor to rise and fall with the tide of events.... One encroachment leads to another; precedent gives birth to precedent; what has been done may be done again; thus radical principles are generally broken in upon, and the Constitution eventually destroyed." These are sonorous words and they will resound through the corridor of Times. But these landmarks in the development of law cannot be permitted to be transformed into weapons for defeating the hopes and aspirations of our teeming millions,-half-clad, half-starved, half-educated. These hopes and aspirations representing the will of the people can only become articulate through the voice of their elected representatives. If they fail the people, the nation must face death and destruction. Then, neither Court nor Constitution will save the country. In those moments of peril and disaster, rights and wrongs are decided not before the blind eyes of justice, not under the watchful eyes of the Speaker with a Marshal standing by but, alas, on streets and in by-lan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ditions in which the French Republic found itself, there was only one throne but three claimants for a seat on it. The social philosophy of our Constitution defines expressly the conditions under which liberty has to be enjoyed and justice is to be administered in our country; and shall I say of our country what Justice Fitzgibbon said of his in Ryan's case : "this other Eden demi-Paradise, this precious stone, set in the silver sea, this blessed plot, this earth, this, realm, this" India. If it is not that to-day, let us strive to make it so by using law as a flexible instrument of social order. Law is not, in the phrase of Justice Holmes, a "brooding omnipotence in the sky. 2086. All through the hearing of the case, there was hardly a point on which Dictionaries and Law Lexicons were not cited. Sec this long list: The Shorter Oxford English Dictionary on historical Principles, 3rd Ed.; Shorter Oxford English Dictionary; Webster's Third New International Dictionary of the English Language; Webster's English Dictionary, 1952; The Random House Dictionary of the English Language; The Reader's Digest Great Encyclopaedic Dictionary; The Dictionary of English Law, Earl J ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an important role in the construction of such words. "A word, is not a crystal, transparent and unchanged; it is the skin of living thought and may vary greatly in colour and content according to circumstances and the time in which it is used Per Holmes J. in Towne v. Eisner 62 L. ed. 372, 376". 2087. 'Sui generis', I called this case. I hope I have not exaggerated its uniqueness. It is manifest that the case has a peculiar delicacy. And now through the cobwebs of 71 Constitutions, dozens of dictionaries, scores of texts and a multitude of cases, I must find a specific answer to the questions raised before us and state it as briefly as I may. 2088. The main argument was made in Writ Petition No. 135 of 1970. The Kerala Land Reforms Amendment Act (35 of 1969) came into force in the State of Kerala on January 1, 1970. The Kerala Land Reforms Amendment Act (25 of 1971) came into force on August 7, 1971. The High Court of Kerala struck down some of the provisions of the Act of 1969 and that judgment was upheld by this Court on April 26, 1972 in Kunjukutty Sahib, etc. v. The State of Kerala and Anr. [1972] 2 S.C.C. 364. 2089. Writ Petition No. 135 of 1970 was filed in this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Article 31 is substituted by a new clause which permits compulsory acquisition or requisitioning of the property for a public purpose by authority of law, which provides for acquisition or requisitioning of the property "for an amount which may be fixed by such law or which may be determined in accordance with such principles and given in such manner as may be specified in such law." No such law can be called in question on the ground that the amount is not adequate or that the whole or any part of it is to be given otherwise than in cash. The newly added proviso to Article 31(2) makes an exception in regard to properties of educational institutions of minorities. If such properties are compulsorily acquired, the State has to ensure that the amount fixed for acquisition is such as would not restrict or abrogate the right guaranteed under Article 30(1) of the Constitution. Section 2(b) of the Amendment Act, 1971 adds a new Clause 2(b) to Article 31 which provides that nothing in Article 19(1)(f) shall affect any such law as is referred to in Article 31(2) as substituted. Section 3 of the Amendment Act, 1971, introduces a new Article 31C, which provides that notwithstandi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by Part III felt within the prohibition of Article 13(2) and was therefore unConstitutional. Patanjali Sastri J. who spoke for the unanimous court rejected this argument by holding that although 'law' would ordinarily include Constitutional law, there was a clear demarcation between ordinary law made in the exercise of legislative power and Constitutional law made in exercise of constituent power; and therefore, in the absence of a clear indication to the contrary, Fundamental Rights were not immune from Constitutional amendment. The challenge to the Amendment Act, 1951 was on these grounds rejected. 2097. The Constitution (Fourth Amendment) Act, 1955 abridging the Fundamental Rights guaranteed by Aritcle 31 was passed on April 27, 1955. Section 2 of this Act introduced a radical change by providing that no law to which Article 31(2) was applicable shall be called in question in any court on the ground that the compensation provided by that law was not adequate. By Section 3 of the Amending Act a new and extensive Clause (1) was substituted for the old Clause (1) of Article 31A, with retrospective effect. The newly added provision opens with a non-obstante clause: "Notwiths ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he doubt thus expressed by Hidayatullah J. and Mudholkar J. 2100. The decision in the Golak Nath case was rendered by a Bench of 11 Judges of this Court on February 27, 1967. The petitioners therein had challenged the validity of Punjab Act 10 of 1953 and the Mysore Act 10 of 1962 as amended by Act 14 of 1965, on the ground that these Acts violated their Fundamental Rights, alleging that though the impugned acts were included in the Ninth Schedule, they did not receive the protection of the 1st, 4th and 17th Amendment Acts. It was common case that if the 17th Amendment which included the impugned Acts in the Ninth Schedule was valid, the Acts would not be open to challenge on any ground. 2101. Chief Justice Subba Rao delivered the leading majority judgment for himself and for Justices Shah, Sikri, Shelat and Vaidilingam. Hidayatullah J. concurred with their conclusion but delivered a separate judgment. Wanchoo J. delivered the leading minority judgment on behalf of himself and Justices Bhargava and Mitter. Justice Bachawat and Justice Ramswami concurred by their separate judgments with the view expressed in the leading minority judgment. 2102. The leading majority judgment recor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ority judgment and his views can be summarised as follows: 1. The power of amendment must be possessed by the State. One could not take a narrow view of the word 'amendment' as including only minor changes within the general framework. By an amendment, new matter may be added, old matter removed or altered. 2113. Article 368 outlines a process which if followed strictly results in the amendment of the Constitution. The article gives power to no particular person or persons. 2114. The procedure of amendment, if it can be called a power at all is a legislative power but it is sui generis and outside the three Lists of Schedule Seven of the Constitution. 2115. There is no distinction in our Constitution between laws made ordinarily and laws made occasionally for the amendment of the Constitution. Therefore, Constitutional amendments must fall within the scope of Article 13(2). 2116. The whole Constitution is open to amendment, only two dozen articles being outside the reach of Article 368; that too, because the Constitution has made them fundamental. 2117. Fundamental Rights cannot be abridged or taken away by the ordinary amending process. Parliament must amend Article 368 to c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecessary to decide the contention whether the basic features of the Constitution, as for example, the republic form of government or the federal structure thereof could be amended, as the question did not arise for decision. 2129. Ramaswami J. adopted a similar line of reasoning and held: 2130. That the definition of 'law' in Article 13(3) did not include in terms 'Constitutional amendment'. Had it been intended by the Constitution-makers that the Fundamental Rights guaranteed by Part III should be completely outside the scope of Article 368 it is reasonable to assume that they would have made an express provision to that effect. 2131. The Preamble to the Constitution which declared India as a sovereign democratic republic was not beyond the scope of the amending power; similarly certain other basic features of the Constitution like those relating to distribution of legislative power, the parliamentary power of Government and the establishment of the Supreme Court and the High Courts were also not beyond the power of amendment. 2132. Every one of the articles of the Constitution is amendable under Article 368 and there was no room for any implication in the construction of that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y after an amendment was in fact made in Article 368, and the terms of that amendment were known. The observation in the leading majority judgment putting restraints on the future power of the Parliament to take away Fundamental Rights cannot therefore constitute the ratio of the majority judgment. The learned Judges did not evidently consider that in future the chapter on Fundamental Rights could be made subject to an amendment by first amending Article 368 as is now done under the Twenty- Fourth Amendment. 2135. It shall have been seen that the petitioners in the Golak Nath case won but a Pyrrhic victory. They came to the Court, not for the decision of an academic issue, but to obtain a declaration that laws which affected their fundamental rights were unConstitutional. Those laws were upheld by the court but I suppose that the petitioners left the court with the consolation that posterity will enjoy the fruits of the walnut tree planted by them. But it looks as if a storm is brewing threatening the very existence of the tree. 2136. As stated above, 6 out of the 11 learned Judges held in the Golak Nath case that Article 368 prescribed not merely the procedure for amendment but ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... List, List II, include 'Amendment of the Constitution' as a subject of legislative power. Finally, the power to legislate under Article 245 is "subject to the provisions of this Constitution", so that under the residuary power, no amendment could be made to any part of the Constitution, as any amendment is bound, to some extent, to be inconsistent with the article to be amended. 2138. Having located the amending power in Article 368 and having excluded the argument that it can be traced to Entry 97 of List I, it becomes necessary to determine the width and scope of that power. Is the power unfettered and absolute or are there any limitations-express, implied or inherent on its exercise? 2139. Counsel for the petitioner urges : (1) That the word 'amendment' is not a term of art and has no precise and definite, or primary and fundamental, meaning; (2) That Article 368 carries vital implications by its very terms and there is inherent evidence in that Article to show chat in the context thereof the word 'amendment' cannot cover alterations in, damage to, or destruction of any of the essential features of the Constitution; (3) That Article 13(2) by taking in Constitutional ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt': (a) to improve or better; to remove an error; (b) to make changes which may not improve the instrument but which do not alter, damage or destroy the basic features, essential elements or fundamental principles of the instrument sought to be amended; and (c) to make any changes whatsoever. 2143. These texts and authorities are useful in that they bring a sense of awareness of the constructional difficulties involved in the interpretation of a seemingly simple word like 'amendment'. But enriched by such awareness, we must in the last analysis go to our own organic document for determining whether the word 'amendment' in Article 368 is of an ambiguous and uncertain import. 2144. The various shades of meaning of the word 'amendment' may apply differently in different contexts, but it seems to me that in the context in which that word occurs in Article 368, it is neither ambiguous nor amorphous, but has a definite import. 2145. The proviso to Article 368 furnishes intrinsic evidence to show that the word 'amendment' is used in that article not in a narrow and insular sense but is intended to have the widest amplitude. Article 368 provides that "An amendment of this Const ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Article 368. It is expressly excepted from the scope of that article so that it may not fall within it, which it otherwise would. 2148. The expression 'amendment' was used in a large number of articles of the Constitution as originally enacted: Articles 4(1)(2), 108(4), 109(3)(4), 111, 114(2), 169(2), 196(2), 198(3) and (4), 200, 201, 204(2), 207(1)(2)(3), 240(2), 274(1), 304(b) and 349. A reference to the content and the subject matter of these articles would show that in almost every one of the cases covered by these articles, 'amendment' would be by way of addition, variation or repeal. 2149. In several provisions of the original Constitution, different expressions were used to indicate conferment of the amending power. Article 35(b) called it "altered, repealed, amended"; Article 243(1) described it as "repeal or amend". The proviso to Article 254(2) described it as "adding to, amending, varying Or repealing"; and Article 392(1) used the expression "such adaptations, whether by way of modification, addition or omission". The English language has a rich vocabulary and there are such nice and subtle differences in the shades of meaning of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such amendments as he considered necessary, whether by way of "addition, modification or repeal" in certain provisions. Shortly thereafter, that is, on September 17, 1949, the Constituent Assembly debated Article 304 corresponding to present Article 368, using the word 'amendment' simpliciter. In the debate on Article 304 amendment No. 3239 moved by Shri H.V. Kamath which sought to introduce in that article the words "whether by way of variation, addition or repeal" was rejected. 2153. I am unable to read in this legislative history an inference that the word 'amendment' was used in Article 304 in order to curtail the scope of the amending power. It is significant that the Government of India (Third Amendment) Act, 1939 was described in its title as an "Act to further amend the G.I. Act 1935" and the Preamble stated that it was expedient to amend the Government of India Act, 1935. By Section 4 the old Section 291 was "repealed" totally and the new Section 291 was "substituted". By Section 3 a new sub-section was "inserted". By Section 5 a new item was "substituted" and totally new itmes Nos. 31B and 31C were &qu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... equal to the need for amendment. The power must rise to the occasion. According to Friedrich Constitutional Government & Democracy, 4th Ed. p. 139, "The constituent power bears an intimate relation to revolution. When the amending provisions fail to work in adjusting the Constitutional document to altered needs, revolution may result." That is why, the rule of strict construction which applies to a penal or taxing statute is out of place in a Constitutional Act and a 'construction most beneficial to the widest possible amplitude" of its powers must be adopted British Coal Corporation v. Rex 1935 (A.C.) 500, 518. 2158. If, on the terms of Article 368 the power of amendment is wide and unfettered, does Article 13(2) impose any restraint on that power? Hereby hangs a tale. A majority of Judges held in the Golak Nath case that the power of amendment was to be traced to Article 368. But a majority, differently composed, held that amendment of the Constitution was 'law' within the meaning of Article 13(2) and, therefore, the Parliament had no power to take away or abridge the rights conferred by Part III of the Constitution. This finding contained in the judgment of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... would normally fall within the scope of Article 368. In order however to take out such matters from the scope of that article and to place those matters Within the ordinary legislative sphere, special provisions are made in these articles that any laws passed thereunder shall not be deemed to be an amendment of the Constitution for the purposes of Article 368. 2162. Article 13(1) provides: Laws inconsistent with or in derogation of the fundamental rights.-(1) All laws in force in the territory of India immediately before the commencement of this Constitution, in so far as they are in consistent with the provisions of this Part shall, to the extent of such inconsistency, be void. This article deals with the effect of inconsistency between the provisions of Part III and the pre-Constitution laws and provides that to the extent of such inconsistency the pre- Constitution laws shall be void Article 13(2) pursues the same strain of thought by making void postConstitution laws to the extent of their inconsistency with the provisions of Part III. The pre-Constitution and the post-Constitution laws dealt with by the two clauses of Article 13 are in nature and character identical. They a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e V of the Constitution the Congress makes a proposal for amendment and the States ratify it, neither the Congress nor the States are legislating. (Corpus Juris Secundum, Vol. 16, pp. 48, 49; Charles R. Burdick-The Law of the American Constitution, pp. 40-42). 2166. The fundamental distinction between Constitutional law and ordinary law lies in the criterion of validity. In the case of Constitutional law, its validity is inherent where as in the case of an ordinary law its validity has to be decided on the touchstone of the Constitution, With great respect, the majority view in Golak Nath case, did not on the construction of Article 13(2), accord due importance to this essential distinction between legislative power and the constituent power. In a controlled Constitution like ours, ordinary powers of legislatures do not include the power to amend the Constitution because the Body which enacts and amends the Constitution functions in its capacity as the Constituent Assembly. The Parliament performing its functions under Article 368 discharges those functions not as a Parliament but in a constituent capacity. 2167. There is a fundamental distinction between the procedure for passing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on without having to denounce it. The Constitution of the United States is rigid, as it cannot be amended without the special machinery being set in motion for that purpose. "In short, then, we may say that the Constitution which cannot be bent without being broken is a rigid Constitution." (See Modern Political Constitutions : an Introduction to the Comparative Study of Their History and Existing Form by C.F. Strong, 1970 Reprint). The Indian Constitution, considered as a whole is a 'controlled' or 'rigid' Constitution, because, broadly, none of the articles of that Constitution can be amended otherwise than by the special procedure prescribed by Article 368. Certain provisions thereof like Article 4 read with Articles 2 and 3, Article 169, para 7 of the Fifth Schedule and para 21 of the Sixth Schedule confer power to amend the provisions of the Constitution by the ordinary law-making process but these amendments are expressly excepted by the respective provisions from the purview of Article 368. Schedules V and VI of the Constitution are in fact a Constitution within a Constitution. 2171. The distinction between 'flexible' and 'rigid' Constitutions brings into sharp fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a majority of not less than two-thirds of the members of each House separately present and voting. In matters falling within the proviso, amendments are also required to be ratified by the Legislatures of not less than half of the States. Rajya Sabha, unlike the Lok Sabha, is a perpetual body, which changes one-third of its membership every two years. Members of the Rajya Sabha are elected by Legislative Assemblies of the States, that is, by those who are directly elected by the people themselves. The mode of election to Rajya Sabha constitutes to some extent an insurance against gusts and waves of public opinion. 2176. I will now proceed to consider an important branch of the petitioner's argument which, frankly, seemed to me at first sight plausible. On closer scrutiny, however, I am inclined to reject the argument. It is urged by the learned Counsel that it is immaterial whether the amending power can be found in Article 368 or in Entry 97 of List I, because wherever that power lies, its exercise is subject to inherent and implied limitations. 2177. The argument takes this form : Constitutions must of necessity be general rather than detailed and prolix, and implication must ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ied and inherent limitations has been accepted by the highest courts of countries like U.S.A., Canada, Australia and Ireland. The theory is also said to have been recognised by this Court, the Federal Court and the Privy Council. 2179. In answer to these contentions, it was urged on behalf of the respondents that there is no scope for reading implied or inherent limitations on the amending power, that great uncertainty would arise in regard to the validity of Constitutional amendment if such limitations were read on the amending power, that the Preamble is a part of the Constitution and can be amended by Parliament, that there is in our Constitution no recognition of basic human or natural rights and that the consensus of world opinion is against the recognition of inherent limitations on the amending power. 2180. Before dealing with these rival contentions, I may indicate how the argument of inherent limitations was dealt with in the Golak Nath case. Subba Rao C.J. who delivered the leading majority judgment said that there was considerable force in the argument but it was unnecessary to decide it (p. 805). According to Hidayatullah J. "the whole Constitution is open to ame ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reedom of religion is not a natural right but is subject to the paramount interest of society and that there is no part of that right, however important, which cannot and in many cases has not been regulated in civilised societies. Denial to a section of the community, the right of entry to a place of worship, may be a part of religion but such denials, it is well-known, have been abrogated by the Constitution. (1958 S.C.R. 895 at 919, per Venkatarama Aiyar J.; Sri Venkataramana Devaru and Ors. v. The State of Mysore and Ors. see also Bourne v. Keane 1919 A.C. 815 at 861 per Lord Birken-head L.C.). Thus, in India, citizens and non-citizens possess and are entitled to exercise certain rights of high significance for the sole reason that they are conferred upon them by the Constitution. 2182 The 'natural right' theory stands, by and large repudiated today. The notion that societies and governments find their sanction on a supposed contract between independent individuals and that such a contract is the sole source of political obligation is now regarded as untenable. Calhoun and his followers have discarded this doctrine, while theorists like Story have modified it extensively. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r from the decision of the Privy Council in The Queen v. Burah 5 I.A. 178, 195. This decision was followed by this Court in State of Bombay v. Nauratan Das Jaitha Bai 1951 (2) S.C.R. 51, 81 and in Sardar Inder Singh v. State of Rajasthan 1957 S.C.R. 605, 616-17. In saying this, I am not unmindful of the fact that Burah's case and the two cases which followed it, bear primarily on conditional legislation. 2186. Another principle of interpretation is that it is not open to the courts to declare an Act void on the ground that it is opposed to a 'spirit' supposed to pervade the Constitution but not manifested in words. As observed by Kania C.J. in Gopalan's case 1950 S.C.R. 88, 121, a wide assumption of power to construction is apt to place in the hands of judiciary too great and to indefinite a power, either for its own security or the protection of private rights. The argument of 'spirit' is always attractive and quite some eloquence can be infused into it. But one should remember what S.R. Das J. said in Keshav Madhav Menon's case 1951 S.C.R. 228, 231 that one must gather the spirit from the words or the language used in the Constitution. I have held that the language of Article 36 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e months without obtaining the opinion of an Advisory Board. While enacting certain laws of Preventive Detention, the Government has shown some grace in specifying the outer limits, however, uncertain, of the period of detention though, so it seems, it is under no obligation to do so. Thus, even when the original Constitution was passed, powers capable of the gravest abuse were conferred on the Parliament, which as the petitioner's counsel says, is but a creature of the Constitution. In assessing the argument that the gravity of consequences is relevant on the interpretation of a Constitutional provision, I am reminded of the powerful dissent of Justice Holmes in Lochner v. New York 49 L. ed. 937 regarding a labour statute. The test according to the learned Judge was not whether he considered the law to be reasonable but whether other reasonable persons considered it unreasonable. In Bank of Toronto v. Lambe [1887] A.C. 575, 586 Lord Hobhous observed: "People who are trusted with the great power of making laws for property and civil rights may well be trusted to levy taxes." Trust in the elected representatives is the corner stone of a democracy. When that trust fails, ev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... were made by the Constitution (First Amendment) Act, 1951 to Articles 15 and 19 were never assailed and have been conceded before us to have been properly made. It was urged by the learned Counsel that the substitution of new Clause (2) in Article 19 did not abrogate the Fundamental Rights, but on the other hand enabled the citizens at large to enjoy their fundamental freedoms more fully. This, I think, is the crux of the matter. What counsel concedes in regard to Article 19(2) as substituted by the First Amendment Act can be said to be equally true in regard to the amendments now under challenge. Their true object and purpose is to confer upon the community at large the blessings of liberty. The argument is that the Parliament may amend the provisions of Part III, but not so as to damage or destroy the core of those rights or the core of the essential principles of the Constitution. I see formidable difficulties in evolving an objective standard to determine what would constitute the core and what the peripheral layer of the essential principles of the Constitution. I consider the two to be inseparable. 2191. Counsel painted a lurid picture of the consequences which will ensue if ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mething I can't find anything in the Constitution expressly forbidding them to do, I say, whether I like it or not : 'God-dammit, let 'em do it 2192. No name is mentioned with greater honour in the history of American democracy than that of Thomas Jefferson. He was the central figure in the early development of American democracy, and on his death he was politically canonized. Jefferson said in regard to the necessity of a wide amending power that "The earth belongs in usufruct to the living; the dead have neither powers nor rights over it." "If one generation could hind another, the dead and not the living would rule. Since conditions change and men change, there must be opportunity for corresponding change in political institutions, and also for a renewal of the principle of government by consent of the governed." According to President Wilson, "a Constitution must of necessity be a vehicle of life; that its substance is the thought and habit of the nation and as such it must grow and develop as the life of the nation changes. 2193. In support of his argument on implied limitations, learned Counsel for the petitioner drew our attention to certain decisi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 1965 A.C. 172 was discussed before us in great details by both the sides. The matter arose under the Constitution of Ceylon, of which the material provisions bear a near parallel to our Constitution, a fact which, with respect, was not noticed in the judgment of the leading" majority in the Golak Nath case. It was not argued by the respondents in Ranasinghe's case that any provision of the Ceylonese Constitution was unamendable. It is also necessary to remember that the appeal did not raise any question regarding the religious rights protected by Section 29(2) and (3) of the Ceylonese Constitution. It is clear that counsel for the respondents there stated (p. 187), that there was no limitation on the power of amendment except the procedure prescribed by Section 29(4), and that even that limitation could be removed by an amendment complying with Section 29(4). The Privy Council affirmed this position (page 198) and took the widest view of the amending power. A narrower view was in fact not argued. 2195. From out of the decisions of the American Supreme Court, it would be sufficient to notice three : Rhode Island v. Palmer 64 L. ed. 946; U.S. v. Sprague 75 L. ed. 640 and Schn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere open to amendment by a lawful process. 2200. Leading Constitutional writers have taken the view that the American Supreme Court has not ever accepted the argument that there are implied or inherent limitations on the amending power contained in Article 5. Edward S. Corwin, who was invited by the Legislative Reference Service, Library of Congress, U.S.A., to write on the American Constitution, says after considering the challenges made to the 18th and 19th Amendments on the ground of inherent limitations : "brushing aside these arguments as unworthy of serious attention, the Supreme Court held both amendments valid Constitution of the United States of America prepared by Edward S. Corwin, 1953, p. 712.". According to Thomas M. Cooley, there is no limit to the power of amendment beyond the one contained in Article 5, that no State shall be deprived of its equal suffrage in the Senate without its consent. The author says that this, at any rate, is the result of the decision of the so-called National Prohibition Cases (which include the Rhode Island case). The decision, according to Cooley, totally negatived the contention that : "An amendment must be confined in it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... egislative competence to the province of Alberta Duff C.J. was willing to grant the jurisdiction to the Parliament to legislate for the protection of this right. 2203. The petitioner has relied strongly upon the decision in Attorney-General of Nova Scotia v. Attorney-General of Canada [1951] S.C.R. 31 (Canada) but the true ratio of that decision is that neither the federal nor the provincial bodies possess any portion of the powers respectively vested in the other and they cannot receive those powers by delegation. The decision in Chabot v. School Commissioners [1947] 12 D.L.R. (No. 2) 796 is of the Quebec Court of Appeal, in which Casey J. observed that the religious rights find their existence in the very nature of man; they cannot be taken away. This view has not been shared by any judge of the Supreme Court and would appear to be in conflict with the decision in Henry Briks & Sons v. Montreal [1955] S.C.R. 799 (Canada)(3). 2204. I do not think that any useful purpose will be served by discussing the large number of decisions of other foreign courts cited before us. As it is often said, a Constitution is a living organism and there can be no doubt that a Constitution is evolve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... no comprehend the right to eliminate the Crown as a part of the colonial legislature. It may be mentioned that well-known Constitutional writers A.P. Canaway, K.C. : "The Safety Valve of the Commonwealth Constitution", Australian Law Journal, Vol. 12, (1938-39), p. 108 at 109; W. Anstey Wynes : "Legislative, Executive and Judicial Powers in Australia", 4th Edn., Chapter XVII, p. 507 have expressed the view that all the provisions of the Australian Constitution, including Article 128 itself which confers power to amend the Constitution, are within the power of amendment. This view has been taken even though Article 128 does not confer express power to amend that article itself. 2207. While winding up this discussion of authorities, it is necessary to refer to the decision of the Privy Council in Livange v. the Queen (1967) 1 A.C. 259 in which it was held that the powers of the Ceylon legislature could not be cut down by reference to vague and uncertain expressions like 'fundamental principles of British law'. 2208. It must follow from what precedes that The Constitution (Twenty-fourth Amendment) Act, 1971 is valid. I have taken the view that Constitutional ame ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... decision. By the Fourth Amendment, an addition was made to Article 31(2) providing that "...no such law shall be called in question in any court on the ground that the compensation provided by the law is not adequate." The effect of the amendment was considered by this Court in P. Vajravelu Mudaliar v. Deputy Collector [1965] 1 S.C.R. 614. The Madras Legislature had passed an Act providing for the acquisition of lands for housing schemes and had laid down principles for fixing compensation different from those prescribed in the Land Acquisition Act, 1894. Delivering the judgment of the Court, Subba Rao J. held that the fact that Parliament used the same expressions, 'compensation' and 'principles' as were found in Article 31 before its Amendment, was a clear indication that it accepted the meaning given by this Court to those expressions in Bela Banerjee's case. The Legislature, therefore, had to provide for a just equivalent of what the owner was deprived of or specify the principles for the purpose of ascertaining the just equivalent. The new clause added by the Fourth Amendment, excluding the jurisdiction of the Court to consider the adequacy of compensation, was inte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e judgment in Shantilal Mangaldas's case, was in substance overruled by a Bench of 11 Judges by a majority of 10 to 1. The majority referred to the meaning of compensation as an equivalent of the property expropriated. It was held that if the statute in providing for compensation devised a scheme for payment of compensation in the form of bonds and the present value of what was determined to be given was thereby substantially reduced, the statute impired the guarantee of compensation. 2214. This chain of decisions on the construction of Articles 31(2) introduced uncertainty in law and defeated to a large extent the clearly expressed intention of the amended Article 31(2) that a law providing for compensation shall not be called in question in any court on the ground that the compensation provided by it was not adequate. Shah J. in Shantilal Mangaldas [1969] S.C.R. 341 at 362, 363 case had observed with reference to the decision in Bela Banerjee's case and Subodh Gopal's [1954] S.C.R. 587 case that those decisions had raised more problems than they solved and that they placed serious obstacles in giving effect to the Directive Principles of State Policy incorporated in Article 39. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f religious, regional, linguistic, cultural and other minorities. Counsel complaints that the article abrogates not only the most cherished rights to personal liberty and freedom of speech but it also abrogates the right to equality before the law, which is the basic principle of Republicanism. By enacting Article 31C, the Parliament has resorted to the strange procedure of maintaining the Fundamental Rights unamended, but authorising the enactment of laws which are void as offending those rights, by validating them by a legal fiction that they shall not be deemed to be void. Today, Article 31 permits the enactment of laws in abrogation of Articles 14, 19 and 31, but what guarantee is there that tomorrow all the precious freedom will not be excepted from the range of laws passed under that article? Learned Counsel wound up his massive criticism against Article 31C by saying that the article is a monstrous outrage on the Constitution and its whole object and purpose is to legalise despotism. 2217. Having given a most anxious consideration to these arguments, I have come to the conclusion that though Article 31C is pregnant with possible mischief, it cannot, by the application of an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Constitution undoubtedly constitute the ark of the Constitution and without them a man's reach will not exceed his grasp. But it cannot be overstressed that, the Directive Principles of State Policy are fundamental in the governance of the country. What is fundamental in the governance of the country cannot surely be less significant than what is fundamental in the life of an individual. That one is justiciable and the other not may show the intrinsic difficulties in making the latter enforceable through legal processes but that distinction does not bear on their relative importance. An equal right of men and women to an adequate means of livelihood; the right to obtain humane conditions of work ensuring a decent standard of life and full enjoyment of leisure; and raising the level of health and nutrition are not matters for compliance with the Writ of a Court. As I look at the provisions of Parts III and IV, I feel no doubt that the basic object of conferring freedoms on individuals is the ultimate achievement of the ideals sec out in Part IV. A circumspect use of the freedoms guaranteed by Part III is bound to subserve the common good but voluntary submission to restraints is a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y fix principles in accordance with which the amount will be determined. The amount may, of course, be paid in cash or otherwise. 2221. The specific obligation to pay an "amount" and in the alternative the use of the word "principles" for determination of that amount must mean that the amount fixed or determined to be paid cannot be illusory. If the right to property still finds a place in the Constitution, you cannot mock at the man and ridicule his right. You cannot tell him; "Iwill take your fortune for a farthing". 2222. But this is subject to an important, a very important, qualification. The amount fixed for being paid to the owner is wholly beyond the pale of a challenge that it is inadequate. The concept of adequacy is directly co-related to the market value of the property and therefore such value cannot constitute an element of that challenge. By the same test and for similar reasons, the principles evolved for determining the amount cannot be questioned on the ground that by application of those principles the amount determined to be paid is inadequate, in the sense that it bears no reasonable relationship with the market value of the prop ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s no reason to suppose that the legislature will act so arbitrarily as to authorise the acquisition or requisitioning of property without so much as complying with the rules of natural justice. Social good does not require that a man be condemned unheard. 2225. Article 31C presents a gordian knot. King Gordius of Phrygia had tied a knot which an oracle said would be undone only by the future master of Asia. Alexander the Great, failing to untie the knot, cut it with his sword. Such a quick and summary solutions of knotty problems is, alas, not open to a Judge. The article reads thus: 31C. Notwithstanding anything contained in Article 13, no law giving effect to the policy of the State towards securing the principles specified in Clause (b) or Clause (c) of Article 39 shall be deemed to be void on the ground that it is inconsistent with, or takes away or abridges any of the rights conferred by Article 14, Article 19 or Article 31; and no law containing a declaration that it is for giving effect to such policy shall be called in question in any court on the ground that it does not give effect to such policy: Provided that where such law is made by the Legislature of a State, the pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Constitution were not limited in their application to agrarian reform. The 4th and 17th Amendments extended the basic principle underlying the First Amendment by introducing changes in Articles 31 and 31A and the Twenty-Fifth Amendment has taken one step further by extending the principle to a vaster field. Article 31C will operate substantially in the same way as Article 31A has operated in the agrarian sphere. In fact Article 31C is a logical extention of the principles underlying Article 31(4) and (6) and Article 31A. 2230. I find it difficult to accept the argument, so strongly pressed upon us, that Article 31C delegates the amending power to State Legislatures and empowers them to make amendments to the Constitution without complying with the form and manner prescribed by Article 368. I am also unable to appreciate that the article empowers the Parliament likewise. The true nature and character of Article 31C is that it identifies a class of legislation and exempts it from the operation of Articles 14, 19 and 31. Articles 31(4) and (6) identified laws in reference to the period of their enactment. Articles 31(2) and 31A identified the legislative field with reference to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ontaining a declaration that it is for giving effect to such policy shall be called in question in any court on the ground that it does not give effect to such policy." Clearly, this does not exclude the jurisdiction of the court to determine whether the law is for giving effect to the policy of the State towards securing the principles specified in Article 39(b) or (c). Laws passed under Article 31C, can, in my opinion, be upheld only, and only if, there is a direct and reasonable nexus between the law and the Directive Policy of the State expressed in Article 39(b) or (c). The law cannot be called in question on the ground that it does not give effect to such policy but I suppose no court can ever take upon itself the task of finding out whether a Jaw in fact gives effect to its true policy. If such a latitude were open to the Judges, laws of Prohibition and Gambling should have lost their place on the statute booklong since. 2233. In my opinion, therefore, Section 3 of the Twenty-Fifth Amendment, which introduces Article 31C, is valid. THE CONSTITUTION (TWENTY-NINTH AMENDMENT) ACT, 1972. 2234. In regard to the inclusion of the two Kerala Acts, (Act 33 of 1969 and Act 25 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as an aid to discover the meaning of the words in a Constitution. The learned Judge said that a resort can be had to the debates with great caution and only when latent ambiguities are to be resolved. A similar view was expressed by this Court in State of Travancore, Cochin and Anr. v. Bombay Co. Limited [1952] S.C.R. 113. In the Golak Golak Nath case, Subba Rao C.J. clarified that he had not referred to the speeches made in the Constituent Assembly for the purpose of interpreting the provisions of Article 368. Bachawat J. also took the same view. 2237. It was urged by the learned Advocate-General of Maharashtra that there is a noticeable change in the attitude of this Court to parliamentary debates since the decision in Gopalan's case and that the most pronounced trend manifested itself first in Golak Nath's case and then decisively in the Privy Purse case [1971] 3 S.C.R. 9, 83. The practice followed in the Privy Purse case is said to have been adopted both by the majority and the minority in Union of India v. H.S. Dillon [1971] 2 S.C.R., 779, 784, 829-30. 2238. I am unable to agree that any reliance was placed in the Privy Purse case or in Dillon's case on parliamentary speech ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aced such massive faith. 2241. My conclusions are briefly these: 2242. The decision of the leading majority in the Golak Nath case that the then Article 368 of the Constitution merely prescribed the procedure for amendment of the Constitution and that the power of amendment had to be traced to Entry 97 of List I, Schedule VII read with Articles 245, 246 and 248 is not correct. 2243. The decision of the leading majority and of Hidayatullah J. that there is no distinction between an ordinary law and a law amending the Constitution is incorrect. Article 13(2) took in only ordinary laws, not amendments to the Constitution effected under Article 368. 2244. The decision of the leading majority and of Hidayatullah J. that Parliament had no power to amend the Constitution so as to abrogate or take away Fundamental Rights is incorrect. 2245. The power of amendment of the Constitution conferred by the then Article 368 was wide and unfettered. It reached every part and provision of the Constitution. 2246. Preamble is a part of the Constitution and is not outside the reach of the amending power under Article 368. 2247. There are no inherent limitations on the amending power in the sense ..... X X X X Extracts X X X X X X X X Extracts X X X X
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