1967 (2) TMI 95 - SC - Indian Laws

Amendability of the fundamental rights - Validity of the Constitution (Seventeenth Amendment) Act 1964 - infringement of fundamental rights under cls. (f) and (g) of Art. 19 and Art. 14 of the Constitution - fixed ceilings on land holdings and conferred ownership of surplus lands on tenants - word amendment - scope of the provisions of Art. 368 vis-a-vis Art. 13(2) of the Constitution - doctrine of prospective over-ruling - difference between the ordinary legislative and the amending processes - extension of the definition of estate - principle of stare decisis. K. Subba Rao C.J. - HELD THAT - The discussion leads to the following results (1) The power of the Parliament to amend the Constitution is derived from Arts. 245 246 and 248 of the Constitution and not from Art. 368 thereof which only deals with procedure. Amendment is a legislative process. (2) Amendment is law within the meaning of Art. 13 of the Constitution and therefore if it takes away or abridges the rights conferred by Part III thereof it is void. (3) The Constitution (First Amendment) Act 1951 Constitution (Fourth Amendment) Act 1955 and the Constitution (Seventeenth Amendment) Act 1964 abridge the scope of the fundamental rights. But on the basis of earlier decisions of this Court they were valid. (4) On the application 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 filed the validity of the two impugned Acts namely the Punjab Security of Land Tenures Act X of 1953 and the Mysore Land Reforms Act X of 1962 as amended by Act XIV of 1965 cannot be questioned on the ground that they offend Arts. 13 14 or 31 of the Constitution. K.N. Wanchoo J. - What Parliament in fact did by including various Acts in the Ninth Schedule read with Art. 31-B was to amend the various provisions in Part III which affected these Acts by making them an exception to those provisions in Part III. This could only be done by Parliament under the constituent power it had under Art. 368 and there was no question of the application of the proviso in such a case for Parliament was amending Part III only with respect to these laws. The laws had already been passed by State legislatures and it was their constitutional infirmity if any which was being cured by the device adopted in Art. 31-B read with the Ninth Schedule the amendment being only of the relevant provisions of Part III which was compendiously put in one place in Art. 31-B. Parliament could alone do it under Art. 368 and there was no necessity for any ratification under the proviso for amendment of Part III is not entrenched in the proviso. As we see the terms of Art. 368 we are clearly of opinion that the Constitution-makers wanted to make our Constitution reasonably flexible and that the interpretation that we have given to Art. 368 is in consonance with the terms thereof and the intention of those who made it. We therefore reject the argument of fear altogether. We have so far been following in this country the well-known doctrine 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. We would on principle be loath to change that well-known doctrine and supersede it by the doctrine of prospective over-ruling. Further it seems to us that in view of the provisions of Art. 13(2) it would be impossible to apply the doctrine of prospective over-ruling in our country particularly where a law infringes fundamental rights. Article 13(2) lays down that all laws taking away or abridging fundamental rights would be void to the extent of contravention. It has been held by this Court in Deep Chand v. The State of Uttar Pradesh 1980 (1) TMI 202 - SUPREME COURT that a law made after the Constitution came into force which infringes fundamental rights is a still-born law and that the prohibition contained in Art. 13(2) went to the root of the State power of legislation and any law made in contravention of that provision was void ab initio. This case has been followed in Mehendra Lal Jaini v. The State of Uttar Pradesh 1962 (11) TMI 57 - SUPREME COURT . In the face of these decisions it is impossible to apply the principle of prospective over-ruling in this country so far as ordinary laws are concerned. Further if the word law in Art. 13(2) includes an amendment of the Constitution the same principle will apply for that amendment would be still-born if it infringes any fundamental rights contained in Part III. In these circumstances it would be impossible to apply the principle of prospective over-ruling to constitutional amendments also. On the other hand the word law in Art. 13(2) does not include an amendment of the Constitution then there is no necessity of applying the principle of prospective over-ruling for in that case unless some limitations on the power of amendment of the Constitution are implied the amendment under Art. 368 would not be liable to be tested under Art. 13(2). We are therefore unable to apply the doctrine of prospective over-ruling in the circumstances. Further as we are of opinion that this is the fittest possible case in which the principle of stare decisis applies we must uphold Sankari Prasad s case 1951 (10) TMI 22 - SUPREME COURT for this reason also. We therefore hold that Sankari Prasad s case was correctly decided and that the majority in Sajjan Singh s case 1964 (10) TMI 86 - SUPREME COURT was correct in following that decision. We would follow the decision in Sankari Prasad s case even now as in our opinion it was correctly decided. Following that decision we hold that the Seventeenth Amendment is good. In view of this decision it is unnecessary to refer to other arguments raised with respect to the two petitions challenging the Mysore Land Reforms Act. In our view therefore all the three petitions should fail and we would dismiss them. Thus we would pass no order as to costs. M. Hidayatullah J. - Having established that there is no difference between the ordinary legislative and the amending processes in so far as clause (2) of Art. 13 is concerned because both being laws in their true character come within the prohibition created by that clause against the State and that the Directive Principles cannot be invoked to destroy Fundamental Rights I proceed now to examine whether the English and American precedents lay down any principle applicable to amendments of our Constitution. In Britain the question whether a constitutional amendment is valid or not cannot arise because the courts are powerless. Parliamentary Sovereignty under the English Constitution means that Parliament enjoys the right to make or unmake any law whatever and no person or body has any right to question the legislation. The utmost and absolute despotic power belongs to Parliament. It can make confirm enlarge restrain abrogate repeal revise and expand law concerning matters of all possible denominations . What Parliament does no authority on earth can undo. My conclusions are (i) that the Fundamental Rights are outside the amendatory process if the amendment seeks to abridge or take away any of the rights; (ii) that Sankari Prasad s case (and Sajjan Singh s case which followed it) conceded the power of amendment over Part III of the Constitution on an erroneous view of Art. 13(2) and 368; (iii) that the First Fourth and Seventh Amendments being part of the Constitution by acquiescence for a long time cannot now be challenged and they contain authority for the Seventeenth Amendment; (iv) that this Court having now laid down that Fundamental Rights cannot be abridged or taken away by the exercise of amendatory process in Art. 368 any further inroad into these rights as they exist today will be illegal and unconstitutional unless it complies with Part III in general and Art. 13(2) in particular; (v) that for abridging or taking away Fundamental Rights a Constituent body will have to be convoked; and (vi) that the two impugned Acts namely the Punjab Security of Land Tenures Act 1953 and the Mysore Land Reforms Act 1961 as amended by Act XIV of 1965 are valid under the Constitution not because they are included in Schedule 9 of the Constitution but because they are protected by Art. 31-A and the President s assent. In view of my decision the several petitions will be dismissed but without costs. The State Acts Nos. 21-64 in the Ninth Schedule will have to be tested under Part III with such protection as Arts. 31 and 31-A give to them. Before parting with this case I only hope that the Fundamental Rights will be able to withstand the pressure of textual readings by the depth and toughness of their roots . R.S. Bachawat J. - Art. 245 empowers the Parliament and the Legislatures of the States to make laws subject to the provisions of the Constitution. This power to make laws is subject to the limitations imposed by Part III. The abridgement of the rights conferred by Part III by the Seventeenth Amendment necessarily enlarged the scope of the legislative power and thus affected Art. 245 indirectly. But the Seventeenth amendment made no direct change in Art. 245 and did not amend it. The power to amend the Constitution carries with it the power to make a retrospective amendment. It is said that art. 31B amends art. 141 as it alters the law declared by this Court on the validity of the Acts. This argument is baseless. As the Constitution is amended retrospectively the basis upon which the judgments of this Court were pronounced no longer exists and the law declared by this Court can have no application. It is said that art. 31B is a law with respect to land and other matters within the competence of the State Legislature and the Parliament has no power to enact such a law. The argument is based on a misconception. The Parliament has not passed any of the Acts mentioned in the Ninth Schedule. Art. 31B removed the constitutional bar on the making of the Acts. Only the Parliament could remove the bar by the Constitution amendment. It has done so by art. 31B. The Parliament could amend each article in Part III separately and provide that the Acts would be protected from attack under each article. Instead of amending each article separately the Parliament has by art. 31B made a comprehensive amendment of all the articles by providing that the Acts shall not be deemed to be void on the ground that they are inconsistent with any of them. The Acts as they stood on the date of the Constitution Amendments are validated. By the last part of Art. 31B the competent legislatures will continue to retain the power to repeal or amend the Acts. The subsequent repeals and amendments are not validated. If in future the competent legislature passes a repealing or amending Act which is inconsistent with Part III it will be void. I have therefore come to the conclusion that the First Fourth Sixteenth and Seventeenth Amendments are constitutional and are not void. If so it is common ground that these petitions must be dismissed. For the last 16 years the validity of constitutional amendments of fundamental rights have been recognized by the people and all the organs of the government including the legislature the judiciary and the executive. Revolutionary social and economic changes have taken place on the strength of the First Fourth and Seventeenth Amendments. Even if two views were possible on the question of the validity of the amendments we should not now reverse our previous decisions and pronounce them to be invalid. Having heard lengthy arguments on the question I have come to the conclusion that the validity of the constitutional amendments was rightly upheld in Sri Sankari Prasad Singh Deo s and Sajjan Singh s cases and I find no reason for over-ruling them. The First Fourth and Seventeenth amendment Acts are subjected to bitter attacks because they strike at the entrenched property rights. But the abolition of the zamindari was a necessary reform. It is the first Constitution Amendment Act that made this reform possible. No legal argument can restore the outmoded feudal zamindari system. What has been done cannot be undone. The battle for the past is lost. The legal argument necessarily shifts. The proposition now is that the Constitution Amendment Acts must be recognized to be valid in the past but they must be struck down for the future. The argument leans on the ready made American doctrine of prospective overruling. Now the First Fourth Sixteenth and Seventeenth Amendment Acts take away and abridge the rights conferred by Part III. If they are laws they are necessarily rendered void by art. 13(2). If they are void they do not legally exist from their very inception. They cannot be valid from 1951 to 1967 and invalid thereafter. To say that they were valid in the past and will be invalid in the future is to amend the Constitution. Such a naked power of amendment of the Constitution is not given to the Judges. The argument for the petitioners suffers from the double fallacy the first that the Parliament has no power to amend Part III so as to abridge or take away the entrenched property rights and the second that the Judges have the power to make such an amendment. Thus I agree with Wanchoo J. that the writ petitions must be dismissed. In the result the writ petitions are dismissed without costs. Vaidynathier Ramaswami J. - In my opinion the expression amendment of the Constitution in Art. 368 plainly and unambiguously means amendment of all the provisions of the Constitution. It is unreasonable to suggest that what Art. 368 provides is only the mechanics of the procedure to be followed in amending the Constitution without indicating which provisions of the Constitution can be amended and which cannot. Such a restrictive construction of the substantive part of Art. 368 would be clearly untenable. The significant fact that a separate Part has been devoted in the Constitution for amendment of the Constitution and there is only one Article in that Part shows that both the power to amend and the procedure to amend are enacted in Art. 368. Again the words the Constitution shall stand amended in accordance with the terms of the Bill in Art. 368 clearly contemplate and provide for the power to amend after the requisite procedure has been followed. Besides the words used in the proviso unambiguously indicate that the substantive part of the article applies to all the provisions of the Constitution. It is on that basic assumption that the proviso prescribes a specific procedure in respect of the amendment of the articles mentioned in cls. (a) to (e) thereof. Therefore it must be held that when Art. 368 confers on Parliament the right to amend the Constitution the power in question can be exercised over all the provisions of the Constitution. How the power should be exercised has to be determined by reference to the question as to whether the proposed amendment falls under the substantive part of Art. 368 or whether it attracts the procedure contained in the proviso. It is true that the principle of stare decisis may not strictly apply to a decision on a constitutional point. There is no restriction in the Constitution itself which prevents this Court from reviewing its earlier decisions or even to depart from them in the interest of public good. It is true that the problem of construing constitutional provisions cannot be adequately solved by merely adopting the literal construction of the words used in the various articles. The Constitution is an organic document and it is intended to serve as a guide to the solution of changing problems which the Court may have to face from time to time. It is manifest that in a progressive and dynamic society the character of these problems is bound to change with the inevitable consequence that the relevant words used in the Constitution may also change their meaning and significance. Even so the Court is reluctant to accede to the suggestion that its earlier decisions should be frequently reviewed or departed from. In such a case the test should be what is the nature of the error alleged in the earlier decision what is its impact on the public good and what is the compelling character of the considerations urged in support of the contrary view. It is also a relevant factor that the earlier decision has been followed in a large number of cases that titles to property have passed and multitude of rights and obligations have been created in consequence of the earlier decision. I have already dealt with the merits of the contention of the petitioners with regard to the validity of the impugned Act and I have given reasons for holding that the impugned Act is constitutionally valid and the contentions of the petitioners are unsound. Even on the assumption that it is possible to take a different view and to hold that the impugned Act is unconstitutional. I am of opinion that the principle of stare decisis must be applied to the present case and the plea made by the petitioners for reconsideration of Sankari Prasad s case and the decision in Sajjan Singh v. State of Rajasthan is wholly unjustified and must be rejected. For the reasons already expressed I hold that all these petitions fail and should be dismissed but there will be no order as to costs. Petitions dismissed.

Summary

Issues Involved:
1. Whether the power to amend the Constitution under Article 368 includes the power to amend fundamental rights.
2. Whether the term "law" in Article 13(2) includes constitutional amendments.
3. Whether there are implied limitations on the power of constitutional amendment.
4. Whether the Constitution (Seventeenth Amendment) Act, 1964, is valid.
5. Whether the principle of stare decisis applies to constitutional amendments.
6. Whether the doctrine of prospective overruling is applicable in this context.

Detailed Analysis:

1. Power to Amend the Constitution under Article 368:
The judgment addressed whether Article 368 of the Constitution confers the power to amend all provisions, including fundamental rights. It was argued that Article 368 provides both the power and procedure for amendment. The court held that the expression "amendment of this Constitution" in Article 368 plainly and unambiguously means amendment of all the provisions of the Constitution. The judgment emphasized that the power to amend is not derived from Article 248 or any legislative powers but is a constituent power under Article 368.

2. Interpretation of "Law" in Article 13(2):
The issue was whether the term "law" in Article 13(2) includes constitutional amendments. The court concluded that the term "law" in Article 13(2) refers to ordinary laws made by the legislature and does not include constitutional amendments. The court reasoned that constitutional amendments are not subject to Article 13(2) as they are enacted through a special procedure under Article 368, which is distinct from ordinary legislative processes.

3. Implied Limitations on Amending Power:
It was argued that there are implied limitations on the power to amend the Constitution, particularly concerning fundamental rights and basic features of the Constitution. The court, however, rejected the notion of implied limitations, stating that if the framers intended certain provisions to be unamendable, they would have explicitly stated so in Article 368. The judgment emphasized that the Constitution is a dynamic document, and its provisions, including fundamental rights, can be amended to meet changing needs.

4. Validity of the Constitution (Seventeenth Amendment) Act, 1964:
The court upheld the validity of the Seventeenth Amendment, which added certain laws to the Ninth Schedule, thereby protecting them from being challenged as violative of fundamental rights. The judgment reasoned that the amendment was validly enacted under Article 368 and did not require ratification by the States as it did not directly amend any of the provisions listed in the proviso to Article 368.

5. Application of Stare Decisis:
The court discussed the principle of stare decisis, emphasizing its importance in maintaining legal certainty and stability. It was argued that the decisions in Sankari Prasad and Sajjan Singh, which upheld the power to amend fundamental rights, should not be overturned lightly. The judgment highlighted that many laws and constitutional amendments have been enacted based on these decisions, and overturning them could lead to chaos and uncertainty.

6. Doctrine of Prospective Overruling:
The court considered the doctrine of prospective overruling, which allows a court to apply a new rule only to future cases, thus preserving past transactions and decisions. However, the court was reluctant to apply this doctrine in the context of constitutional amendments, emphasizing that constitutional provisions and amendments should have uniform application unless expressly stated otherwise.

In conclusion, the court upheld the validity of the Seventeenth Amendment and reaffirmed the power of Parliament to amend the Constitution, including fundamental rights, under Article 368. The judgment emphasized that the Constitution is a living document, capable of adaptation to meet the evolving needs of society.