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TMI Blog1980 (11) TMI 170X X X X Extracts X X X X X X X X Extracts X X X X ..... at Nagpur repelled that challenge by a judgment dated August 13, 1976, in Vithalrao Udhaorao Uttarwar v. State of Maharashtra The High Court held that the provisions of the aforesaid Acts were not open to challenge on the ground that they were inconsistent with or took away or abridged any of the rights conferred by Part III of the Constitution, since those Acts were placed in the Ninth Schedule by the Constitution 17th Amendment Act, 1964, and the Constitution 40th Amendment Act, 1976, and also because of the promulgation of Emergency as a result of which, the rights under Articles 14 and 19 of the Constitution could not be enforced. The High Court also repelled the challenge to the validity of Article 31B itself by holding that far from damaging the basic structure of the Constitution, the Constitution (First Amendment) Act, 1951, which introduced Article 31B into the Constitution, fortified that structure by subserving a fundamental constitutional purpose. Certain provisions of the Principal Act and of the Amending Acts. particularly the concept of 'family unit' were challenged before the High Court on the ground, inter alia, that they were outside the purview of Articl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Court having accepted the request for the review of the judgment in Dattatraya Govind Mahajan, (supra) these matters have come before us for consideration of the other points involved in the appeals. In these proceedings, the main challenge now is to the constitutionality of Articles 31A, 31B and the unamended Article 31C of the Constitution. The various grounds of challenge to the Principal Act and the Amending Acts were met on behalf of the respondents by relying on the provisions of these Articles which throw a protective cloak around laws of a certain description and variety, by excluding challenge thereto on the ground that they are violative of certain articles of the Constitution. The reply of the appellants and the petitioners to the defence of the respondents is, as it could only be, that the very provisions of the Constitution on which the respondents rely for saving the impugned laws are invalid, since these particular provisions of the Constitution, which were introduced by later amendments, damage or destroy the basic structure of the Constitution within the meaning of the ratio of the majority judgment in Keshavananda Bharati. Articles 14, 19, 31A. 31B, 31C (as u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r takes away or abridges any of the rights conferred by article 14 or article 19; 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. Articles 31A and 31B were introduced into the constitution by the Constitution (First Amendment) Act, 1951, the former with retrospective effect from the date of the enactment of the Constitution. Article 31C (unamended) was introduced by the Constitution (Twenty-fifth Amendment) Act, with effect from April 20, 1972. The last clause of that article, which gave conclusiveness to the declaration regarding the policy of the particular Act, was struck down as invalid in Kesavananda Bharati (supra). That part now lives an italicized existence in official publications of the Indian Constitution. The words the principles specified in clause (b) or clause (c) of article 39' were substituted by the words all or any of the principles laid down in Part IV , by the 44th Amendment, with effect from June 20, 1979. We are concerned with Article 31C as it stood originally but, of course, without the concluding part struck down in K ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng the Constitution. As stated earlier, Article 31A was inserted in the Constitution by section 4 of the Constitution (First Amendment) Act, 1951 with retrospective effect from the commencement of the Constitution. Article 31A(1), as introduced by the 1st Amendment on June 18, 1951, read thus: 31A. (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. Article 31A was amended, with the same degree of retrospective effect again, by the Constitution (Fourth Amendment) Act, 1955. Two alterations, not substance-wise material, were made by the 4th Amendment. The opening non- obstante clause which originally extended to anything in the foregoing provisions of this Part , that is to say Part III, was substituted by a clause restricted to anything contained in Article 13 . Secondly, whereas under the Article as conceived originally, the challenge to laws of agr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... corollary, that the impugned Acts are entitled to the protection of Article 31A(1) (a) when the result that their provisions cannot be deemed, and therefore cannot be declared, to be void on the ground that they are inconsistent with or take away or abridge any of the rights conferred by Articles 14, 19 or 31. This is the reason why and the contest in which the validity of Article 31A(1)(a) is itself assailed by the petitioners. If a constitutional provision, which deprives the petitioners of the benefit and protection of Articles 14, 19 and 31, is invalid, the petitioners will be entitled to challenge the impugned laws on the ground that they are inconsistent with or that they take away or abridge the rights conferred by Part III of the Constitution. Article 13(2), has a sensitive touchstone. Not only does it mandate that the State shall not make any law which takes away or abridges the rights conferred by Part III but, it provides that any law made in contravention of the clause shall, to the extent of the contravention, be void. Mere abridgement, that is to say curtailment, and not necessarily abrogation, that is to say total deprivation, is enough to produce the consequence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ity to which seven out of the thirteen Judges were parties, struck a bridle path by holding that in the exercise of the power conferred by Article 368, the Parliament cannot amend the Constitution so as to damage or destroy the basic structure of the Constitution. The seven learned Judges chose their words and phrases to express their conclusion as effectively and eloquently as language can do. But, at this distance of time any controversy over what was meant by what they said is plainly sterile. At 'this distance of time', because though not more than a little less than eight years have gone by since the decision in Kesavananda Bharati (supra) was rendered, those few years are packed with constitutional events of great magnitude. Applying the ratio of the majority judgments in that epoch-making decision, this Court has since struck down constitutional amendments which would otherwise have passed muster. For example, in Smt. Indira Gandhi v. Raj Narain Art. 329A(4) was held by the Court to be beyond the amending competence of the Parliament since, by making separate and special provisions as to elections to Parliament of the Prime Minister and the Speaker, it destroyed the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he subject of the Parliament's power to amend the Constitution must now be taken as well-settled, the true position being that though the Parliament has the power to amend each and every article of the Constitution including the provisions of Part III, the amending power cannot be exercised so as to damage or destroy the basic structure of the Constitution. It is by the application of this principle that we shall have to decide upon the validity of the Amendment by which Article 31A was introduced. The precise question then for consideration is whether section 4 of the Constitution (First Amendment) Act, 1951 which introduced Article 31A into the Constitution damages or destroys the basic structure of the Constitution. In the work-a-day civil law, it is said that the measure of the permissibility of an amendment of a pleading is how far it is consistent with the original: you cannot by an amendment transform the original into the opposite of what it is. For that purpose, a comparison is undertaken to match the amendment with the original. Such a comparison can yield fruitful results even in the rarefied sphere of constitutional law. What were the basic postulates of the Indian ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sert provisions fully securing the constitutional validity of zamindari abolition laws in general and certain specified State Acts in particular. The opportunity has been taken to propose a few minor amendments to other articles in order to remove difficulties that may arise. In Shankari Prasad v. Union of India, Patanjali Sastri, C.J. explained the reasons that led to the insertion of Articles 31A and 31B by the 1st Amendment thus: What led to that enactment is a matter of common knowledge. The political party now in power, commanding as it does a majority of votes in the several State Legislatures as well as in Parliament, carried out certain measures of agrarian reform in Bihar, Uttar Pradesh and Madhya Pradesh by enacting legislation which may compendiously be referred to as Zamindari Abolition Acts. Certain Zamindars, feeling themselves aggrieved, attacked the validity of those Acts in Courts of law on the ground that they contravened the fundamental rights conferred on them by Part III of the Constitution. The High Court at Patna held that the Act passed in Bihar was unconstitutional while the High Courts at Allahabad and Nagpur upheld the validity of the corresponding leg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ebated in the Parliament on various dates in May and June. It received the Presidential assent on June 18, 1951. The speeches made in the Provisional Parliament by Jawaharlal Nehru and other national leaders who had participated in the freedom movement show, in a significant measure, the genesis of the 1st Amendment and its avowed purpose. While moving that the Bill be referred to a Select Committee, Jawaharlal Nehru said: This Bill is not a very complicated one: nor is it a big one. Nevertheless, I need hardly point out that it is of intrinsic and great importance. Anything dealing with the Constitution and change of it is of importance. Anything dealing with Fundamental Rights incorporated in the Constitution is of even greater importance. Therefore, in bringing this Bill forward I do so and the Government does so in no spirit of lightheartedness, in no haste, but after the most careful thought and scrutiny given to this problem. I might inform the House that we have been thinking about this matter for several months, consulting people, State Governments, Ministers of Provincial Governments, consulting when occasion offered itself, a number of Members of this House, refe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to which we as a party have been committed in the past generation or so it is the agrarian reform and the abolition of the zamindari system. (p. 8830) Now apart from our commitment, a survey of the world today, a survey of Asia today will lead any intelligent person to see that the basic and the primary problem is the land problem today in Asia, as in India. And every day of delay adds to the difficulties and dangers, apart from being an in justice in itself. (pp 8830-8831) ....it is patent that when you are out to remedy inequalities, you do not remedy inequalities by producing further inequalities. We do not want anyone to suffer. But, inevitably, in big social changes some people have to suffer. (p. 8831) How are we to meet this challenge of the times ? How are we to answer the question: For the last ten or 20 years you have said, we will do it. Why have you not done it ? It is not good for us to say: We are helpless before fate and the situation which we are to face at present. Therefore, we have to think in terms of these big changes, and changes and the like and therefore we thought of amending article 31. Ultimately we thought it best to propose additional articl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion and doubt. Are we to wait for this confusion and doubt gradually to resolve itself, while powerful agrarian movements grow up ? May I remind the House that this question of land reform is most intimately connected with food production. We talk about food production and grow-more-food and if there is agrarian trouble and insecurity of land tenure nobody knows what is to happen. Neither the zamindar nor the tenant can devote his energies to food production because there is instability. Therefore these loud arguments and these repeated appeals in courts are dangerous to the State, from the security point of view, from the food production point of view and from the individual point of view, whether it is that of the zamindar or the tenant or any intermediary. (pp 9082-9084) (Emphasis is supplied in the passages above) These statements were made by the Prime Minister on the floor of the house after what is correctly described as the most careful deliberation and a broad-based consultation with diverse interests. They were made in order to resolve doubts and difficulties and not with the intention of creating confrontation with any other arm of the Government or with the people ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , obviously unjust to allow the exploitation of any large surface of land by a single individual unless other over-whelming reasons make this highly desirable. Further, in the light of the available supplies of land, labour and capital, it would be undesirable to encourage capital- intensive method of production. Moreover, whatever the economics of large-scale management, they should, in the congested state of our countryside, accrue to collective or co-operative bodies of cultivators rather than an individual family. Lastly, in the context of the current socio-political climate, re-distribution of land would rather appear to be imperative. As stated in the Report of the Committee of the Panel on Land Reforms (Government of India, Planning Commission, 1959), the policy of imposition of ceiling on agricultural lands fulfils the following objectives:- (i) meeting the wide-spread desire to possess land; (ii) reducing glaring inequalities in ownership and use of land; (iii) reducing inequalities in agricultural incomes, and (iv) enlarging the sphere of self-employment. The Report of the Working Group on Land Reforms, 1978 (Ministry of Agriculture and Irrigation, Depar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... progress in the degeneracy of any nation can be rapid, especially in societies riven by economic disparities and caste barriers. We embarked upon a constitutional era holding forth the promise that we will secure to all citizens justice, social, economic and political, equality of status and of opportunity; and, last but not the least, dignity of the individual. Between these promises and the 1st Amendment there is discernible a nexus, direct and immediate. Indeed, if there is one place in an agriculture-dominated society like ours where citizens can hope to have equal justice, it is on the strip of land which they till and love, the land which assures to them and dignity of their person by providing to them a near decent means of livelihood. The First Amendment has thus made the constitutional ideal of equal justice a living truth. It is like a mirror that reflects the ideals of the Constitution; it is not the destroyer of its basic structure. The provisions introduced by it and the 4th Amendment for the extinguishment or modification of rights in lands held or let for purposes of agriculture or for purposes ancillary thereto, strengthen rather than weaken the basic structure o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , heard long and studied arguments on that question also, in deference to which we must consider the alternate submission as to whether the doctrine of stare decisis can save Article 31A, if it is otherwise violative of the basic structure of the Constitution. In Shankari Prasad v. Union of India (supra) the validity of the 1st Amendment which introduced Articles 31A 31B was assailed on six grounds, the fifth being that Article 13(2) takes in not only ordinary laws but constitutional amendments also. This argument was rejected and the 1st Amendment was upheld. In Sajjansingh v. State of Rajasthan the Court refused to reconsider the decision in Shankari Prasad (supra), with the result that the validity of the 1st Amendment remained unshaken. In Golaknath it was held by a majority of 6: 5 that the power to amend the Constitution was not located in Article 368. The inevitable result of this holding should have been the striking down of all constitutional amendments since, according to the view of the majority, Parliament had no power to amend the Constitution in pursuance of Article 368. But the Court resorted to the doctrine of prospective overruling and held that the constitutiona ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... broad consensus among the members of the Court that the question of vires of Articles 31A, 31B 31C (unamended) will be decided in the other cases, is reflected in the following observation specifically made by one of us, Brother Krishna Iyer, J., who spoke for a unanimous Court: In this judgment, we side-step the bigger issue of the vires of the Constitutional amendments in Articles 31A, 31B and 31C as they are dealt with in other cases disposed of recently . (p. 721). Since the question of vires of these three articles was not dealt with by Brother Krishna Iyer in his judgment on behalf of the Court, we are, as previously arranged amongst us, dealing with that question in this judgment. At page 722 of the report (paragraph 5), Brother Krishna Iyer has reaffirmed this position in these words: Thus we get the statutory perspective of agrarian reform and so, the constitutionality of the Act has to be tested on the touchstone of Article 31-A which is the relevant protective armour for land reform laws. Even here, we must state that while we do refer to the range of constitutional immunity Article 31A confers on agrarian reform measures we do not rest our decision on that provis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stare decisis is also firmly rooted in American Jurisprudence. It is regarded as a rule of policy which promotes predictability, certainty, uniformity and stability. The legal system, it is said, should furnish a clear guide for conduct so that people may plan their affairs with assurance against surprise. It is important to further fair and expeditious adjudication by eliminating the need to relitigate every proposition in every case. When the weight of the volume of the decisions on a point of general public importance is heavy enough, courts are inclined to abide by the rule of stare decisis, leaving it to the legislature to change long- standing precedents if it so thinks it expedient or necessary. In Burnet v. Coronado Oil Gas Co., Justice Brandeis stated that 'stare decisis is usually the wise policy, because in most matters it is more important that the applicable rule of law be settled than it be settled right'. While dealing with the subject of stare decisis, Shri H. M. Seervai in his book on 'Constitutional Law of India, has pointed out how important it is for judges to conform to a certain measure of discipline so that decisions of old standing are no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inding by applying the law of precedent and it will be unnecessary to take resort to the principle of stare decisis. It is, therefore, sufficient for invoking the rule of stare decisis that a certain decision was arrived at on a question which arose or was argued, no matter on what reason the decision rests or what is the basis of the decision. In other words, for the purpose of applying the rule of stare decisis, it is unnecessary to enquire or determine as to what was the rationale of the earlier decision which is said to operate as stare decisis. Therefore, the reason why Article 31A was upheld in the earlier decisions, if indeed it was, are not germane for the purpose of deciding whether this is a fit and proper case in which to apply that rule. But, there are four principal reasons why we are not disposed to invoke the rule of stare decisis for deciding upon the constitutionality of Article 31A. In the first place, Article 31A breathes its own vitality, drawing its sustenance from the basic tenets of our Constitution. Its unstated premise is an integral part of the very making of the Constitution and it holds, as it were, a mirror to the ideals which inspired the framing of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... drawn from the days of travel by stage-coach do not fit the conditions of travel today. And alive to that possibility, Justice Brandeis said in State of Washington v. W. C. Dawson Co. that stare decisis is merely a wise rule of action and is not a universal, inexorable command. The instances in which the court has disregarded its admonition are many . In fact, the full form of the principle, stare decisis et non quieta movere which means to stand by decisions and not to disturb what is settled , was put by Coke in its classic English version as: Those things which have been so often adjudged ought to rest in peace . Such being the justification of the rule, it was said in James Monroe v. Frank Pape that the relevant demands of stare decisis do not preclude consideration of an interpretation which started as an unexamined assumption. We have already pointed out how the constitutional validity of Article 31A has to be deemed to have been upheld in Shakari Prasad (supra) by a process of inferential reasoning, the real question therein being whether the expression 'law' in Article 13(2) includes law made in the exercise of constituent power. The fourth reason is the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 14 of the 1st Amendment Act, 1951. The device or mechanism which sections 5 and 14 of the 1st Amendment have adopted is that as and when Acts and Regulations are put into the Ninth Schedule by Constitutional amendments made from time to time, they will automatically, by reason of the provisions of Article 31B, received the protection of that article. Items 1 to 13 of the Ninth Schedule were put into that Schedule when the 1st Amendment was enacted on June 18, 1951. These items are typical instances of agrarian reform legislations. They relate mostly to the abolition of various tenures like Maleki, Taluqdari, Mehwassi, Khoti, Paragana and Kulkarni Watans and of Zamindaris and Jagirs. The place of pride in the Schedule is occupied by the Bihar Land Reforms Act, 1950, which is item no. 1 and which led to the enactment of Article 31A and to some extent of Article 31B. The Bombay Tenancy and Agricultural Lands Act, 1948 appears as item 2 in the Ninth Schedule. Items 14 to 20 were added by the 4th Amendment Act of 1955, items 21 to 64 by the 17th Amendment Act 1964, items 65 and 66 by the 29th Amendment Act of 1972, items 67 to 86 by the 34th Amendment Act 1974, items 88 to 124 by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the schedule, no matter of what character, kind or category they may be. Putting it briefly, whereas Article 31A protects laws of a defined category, Article 31B empowers the Parliament to include in the Ninth Schedule such laws as it considers fit and proper to include therein. The 39th Amendment which was passed on August 10, 1975 undertook an incredibly massive programme to include items 87 to 124 while the 40th Amendment, 1976 added items 125 to 188 to the Ninth Schedule in one stroke. The necessity for pointing out this distinction between Articles 31A and 31B is the difficulty which may apparently arise in the application of the principle of stare decisis in regard to Article 31B read with the Ninth schedule, since that doctrine has been held by us not to apply to Article 31A. The fourth reason given by us for not applying the rule of stare decisis to Article 31A is that any particular law passed under clauses (a) to (e) can be accepted as good if it has been treated as valid for a long number of years but the device in the form of the Article cannot be upheld by the application of that rule. We propose to apply to Article 31B read with the Ninth Schedule the selfsame test ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ace of the judgment in Kesavananda Bharati (supra) there was no justification for making additions to the Ninth schedule with a view to conferring a blanket protection on the laws included therein. The various constitutional amendments, by which additions were made to the Ninth Schedule on or after April 24, 1973, will be valid only if they do not damage or destroy the basic structure of the Constitution. That leaves for consideration the challenge to the constitutional validity of the unamended Article 31C. As we have stated at the beginning of this judgment, Article 31C was introduced by the Constitution (Twenty-fifth Amendment) Act, 1971. Initially, it sought to give protection to those laws only which gave effect to the policy of the State towards securing the principles specified in clauses (b) and (c) of Article 39 of the Constitution. No such law could be deemed to be void on the ground that it is inconsistent with or takes away or abridges the rights conferred by Articles 14, 19 and 31. The concluding portion of the unamended article which gave conclusiveness to certain declarations was struck down in Kesavananda Bharati, (supra). Shri M. N. Phadke, who led the argume ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eing of the country and the welfare of its people. Whatever we have said in respect of the defined category of laws envisaged by Article 31A must hold good, perhaps with greater force, in respect of laws passed for the purpose of giving effect to clauses (b) and (c) of Article 39. It is impossible to conceive that any law passed for such a purpose can at all violate Article 14 or Article.19. Article 31 is now out of harm's way. In fact, far from damaging the basic structure of the Constitution, laws passed truly and bona fide for giving effect to directive principles contained in clauses (b) and (c) of Article 39 will fortify that structure. We do hope that the Parliament will utilise to the maximum its potential to pass laws, genuinely and truly related to the principles contained in clauses (b) and (c) of Article 39. The challenge made to the validity of the first part of the unamended Article 31C therefore fails. A small, though practically important, clarification seems called for at the end of this discussion of the validity of Article 31A, 31B and 31C. We have held that laws included in the Ninth Schedule on or after April 24, 1973, will not receive the protection of A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ruck down that amendment unanimously by our judgment in Minerva Mills (supra) for the reason that it damages the basic structure of the Constitution. Thus, we are now left to consider the validity of: (1) The Promulgation of the state of Emergency by the proclamations dated December 3, 1971 and June 25, 1975; (2) The House of the People (Extension of Duration) Act, 1976; (3) The House of People (Extension of Duration) Amendment Act, 1976, and (4) The Constitution (Fortieth Amendment) Act, 1976. The validity of all these is inter-connected and the focus of the challenge is the aforesaid proclamations of Emergency. The validity of the proclamations of Emergency is challenged mainly by Shri A. K. Sen, Shri M. N. Phadke, Dr. N. M. Ghatate and by Shri P. B. Sawant who appeared in person in Writ Petition No. 63 of 1977. It is contended by the learned counsel and Shri P. B. Sawant that the Courts have jurisdiction to enquire whether the power conferred on the President by Article 352 to proclaim an emergency is properly exercised as also the power to determine whether there are any circumstances justifying the continuance of the emergency. There may sometimes be justific ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er 24, 1976 the House of People (Extension of Duration) Amendment Act was passed extending the term of the Parliament for a further period of one year. The 42nd Amendment Act was passed on November 12, 1976. The Lok Sabha was dissolved on January 18, 1977 and both the emergencies were revoked on March 21, 1977. The question as to whether a proclamation of emergency issued by the President under Article 352(1) of the Constitution raises a justiciable issue has been argued in this Court from time to time but, for some reason or the other, though the question has been discussed briefly and occasionally, there is no authoritative pronouncement upon it. We do not propose to enter into that question in this case also partly because, there is good reason to hope that in future, there will be no occasion to bring before the Court the kind of grievance which is now made in regard to the circumstances in which the proclamation of emergency was issued on June 25, 1975. Section 48 of the Constitution (Forty-second Amendment) Act, 1976, which came into force on January 3, 1977, has inserted clauses (2) to (8) in Article 352 which afford adequate insurance against the misuse of power to issue ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cannot judicially be performed. It was suggested that the proclamation of June 25, 1975 was actuated by mala fides. But there too, evidence placed before us of mala fides is neither clear nor cogent. Thus, in the first place, we are not disposed to decide the question as to whether the issuance of a proclamation of emergency raises a justiciable issue. Secondly, assuming it does, it is not possible in the present state of record to answer that issue one way or the other. And, lastly, whether there was justification for continuing the state of emergency after the cessation of hostilities with Pakistan is a matter on which we find ourselves ill-equipped to pronounce. Coming to the two Acts of 1976 by which the life of the Lok Sabha was extended, section 2 of the first of these Acts, 30 of 1976, which was passed on February 16, 1976, provided that the period of five years in relation to the then House of the People shall be extended for a period of one year while the Proclamation of Emergency issued on the 3rd day of December, 1971 and on the 25th day of June, 1975, are both in operation . The second Act of Extension continues to contain the same provision. It is contended by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he inclusion of various Acts and Regulations therein, are valid and constitutional. Amendments to the Constitution made on or after April 24, 1973 by which the 9th Schedule to the Constitution was amended from time to time by the inclusion of various Acts and Regulations therein, are open to challenge on the ground that they, or any one or more of them, are beyond the constituent power of the Parliament since they damage the basic or essential features of the Constitution or its basic structure. We do not pronounce upon the validity of such subsequent constitutional amendments except to say that if any Act Regulation included in the 9th Schedule by a Constitutional amendment made on or after April 24, 1973 is saved by Article 31A, or by Article 31C as it stood prior to its amendment by the 42nd Amendment, the challenge to the validity of the relevant Constitutional Amendment by which that Act or Regulation is put in the 9th Schedule, on the ground that the Amendment damages or destroys a basic or essential feature of the Constitutional or its basic structure as reflected in Articles 14, 19 or 31, will become otiose. (3) Article 31C of the Constitution, as it stood prior to its a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 9th Schedule to the Constitution was amended from time to time by the inclusion of various Acts and Regulations therein, are open to challenge on the ground that they, or any one or more of them, are beyond the constituent power of the Parliament since they damage the basic or essential features of the Constitution or its basic structure. We do not pronounce upon the validity of such subsequent constitutional amendments except to say that if any Act or Regulation included in the 9th Schedule by a constitutional amendment made on or after April 24, 1973 is saved by Article 31A, or by Article 31C as it stood prior to its amendment by the 42nd Amendment, the challenge to the validity of the relevant Constitutional Amendment by which that Act or Regulation is put in the 9th Schedule, on the ground that the Amendment damages or destroys a basic or essential feature of the Constitution or its basic structure as reflected in Articles 14, 19 or 31, will become otiose. (3) Article 31C of the Constitution, as it stood prior to its amendment by section 4 of the Constitution (42nd Amendment) Act, 1976, is valid to the extent to which its constitutionality was upheld in Keshvananda Bharati. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s, while holding that the Constitution (First Amendment) Act exceeded the constituent power still categorically declared that the said amendment and a few other like amendments would be held good based on the doctrine of prospective over- ruling. The result, for our purpose, is that even Golak Nath case has held Article 31A valid. The note struck by later cases reversing Golak Nath does not militate against the vires of Article 31A. Suffice it to say that in the Kesavananda Bharati case Article 31A was challenged as beyond the amendatory power of Parliament and, therefore, invalid. But after listening to the Marathon erudition from eminent counsel, a 13 Judge Bench of this Court upheld the vires of Article 31-A in unequivocal terms. That decision binds, on the simple score of stare decisis and the constitutional ground of Article 141. Every new discovery or argumentative novelty cannot undo or compel reconsideration of a binding precedent. In this view, other submissions sparkling with creative ingenuity and presented with high-pressure advocacy, cannot persuade us to reopen what was laid down for the guidance of the nation as a solemn proposition by the epic Fundamental Rights cas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ish to add a rider regarding the broader observations with the application of stare decisis in sustaining Art. 31A. I have expressly upheld Art. 31A by reliance on stare decisis and cannot practise a volte face without convincing juristic basis to convert me to a contrary position. I know that Justice Holmes has said: Don't be consistent, but be simply true . I also remind myself of the profound reflection of Ralph Waldo Emerson: A foolish consistency is the hobgoblin of little minds, adored by little statesmen and philosophers and divines. With consistency a great soul has simply nothing to do. He may as well concern himself with his shadow on the wall. Speak what you think now in hard words and tomorrow speak what tomorrow thinks in hard words again, though it contradict every thing you said today.- Ah, so you shall be sure to be misunderstood. Is it so bad then to be misunderstood? Pythagoras was misunderstood, and Socrates, and Jesus, and Luther, and Copernicus, and Galileo, and Newton, and every pure and wise spirit that ever took flesh. To be great is to be misunderstood. And yet, I hold to what I have earlier stated in Ambika Prasad Misra. (1) What the learned ..... X X X X Extracts X X X X X X X X Extracts X X X X
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