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TMI Blog1967 (2) TMI 95X X X X Extracts X X X X X X X X Extracts X X X X ..... . 10-B thereof. The petitioners, alleging that the relevant provisions of the said Act whereunder the said area was declared surplus were void on the ground that they infringed their rights under cls. (f) and (g) of Art. 19 and Art. 14 of the Constitution, filed a writ in this Court under Art. 32 of the Constitution for a direction that the Constitution (First Amendment) Act, 1951, Constitution (Fourth Amendment) Act, 1955, Constitution (Seventeenth Amendment) Act, 1964, insofar as they affected their fundamental rights were unconstitutional and inoperative and for a direction that s. 10-B of the said Act X of 1953 was void as violative of Arts. 14 and 19(1)(f) and (g) of the Constitution. 3. Writ Petitions Nos. 202 and 203 of 1966 were filed by different petitioners under Art. 32 of the Constitution for a declaration that the Mysore Land Reforms Act (Act 10 of 1962) as amended by Act 14 of 1965, which fixed ceilings on land holdings and conferred ownership of surplus lands on tenants infringed Arts. 14, 19 and 31 of the Constitution and, therefore, was unconstitutional and void. 4. The States of Punjab and Mysore, inter alia, contended that the said Acts were saved from attack o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment moved by Mr. H. V. Kamath, one of the members of Constituent Assembly, was withdrawn and Art. 368 was finally adopted, support the contention that amendment of Part III is outside the scope of Art. 368. (6) Part III of the Constitution is a self-contained Code and its provisions are elastic enough to meet all reasonable requirements of changing situations. (7) The power to amend is sought to be derived from three sources, namely, (i) by implication under Art. 368 itself; the procedure to amend culminating in the amendment of the Constitution necessarily implies that power, (ii) the power and the limits of the power to amend are implied in the Articles sought to be amended, and (iii) Art. 368 only lays down the procedure to amend, but the power to amend is only the legislative power conferred on the Parliament under Arts. 245, 246 and 248 of the Constitution. (8) The definition of "law" in Art. 13(2) of the Constitution includes every branch of law, statutory, constitutional, etc., and therefore, the power to amend in whichever branch it may be classified, if it takes away or abridges fundamental rights would be void thereunder. (9) The impugned amendment detracts fr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the other hand, the language of Art. 13(2) is such as to admit qualifications or limitations and, therefore, the Court must construe them in such a manner as that Article could not control Art. 368. (9) In order to enforce the Directive Principles the Constitution was amended from time to time and the great fabric of the Indian Union has been built since 1950 on the basis that the Constitution could be amended and, therefore, any reversal of the previous decisions would introduce economic chaos in our country and that, therefore, the burden is very heavy upon the petitioners to establish that the fundamental rights cannot be amended under Art. 368 of the Constitution. (10) Art. 31-A and the 9th Schedule do not affect the power of the High Court under Art. 226 or the legislative power of the States though the area of their operation is limited and, therefore, they do not fall within the scope of the proviso to Art. 368. 9. The aforesaid contentions only represent a brief summary of the elaborate arguments advanced by learned counsel. We shall deal in appropriate context with the other points mooted before us. 10. It will be convenient to read the material provisions of the Consti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing with estates, within their wide definition introduced by the Constitution (Seventeenth Amendment) Act, 1964, having been included in the Ninth Schedule, are placed beyond any attack on the ground that their provisions are inconsistent with or take away or abridge any of the rights conferred by Part III of the Constitution. It is common case that if the Constitution (Seventeenth Amendment) Act, 1964, was constitutionally valid, the said Acts could not be impugned on any of the said grounds. 13. The question of the amendability of the fundamental rights was considered by this Court earlier in two decisions, namely, Sri Sankari Prasad Singh Deo v. Union of India and State of Bihar: [1952]1 SCR 89 and in Sajjan Singh v. State of Rajasthan: [1965] 1 SCR 933 . 14. In the former the validity of the Constitution (First Amendment) Act, 1951, which inserted, inter alia, Arts. 31-A and 31-B in the Constitution, was questioned. That amendment was made under Art. 368 of the Constitution by the Provisional Parliament. This Court held that Parliament had power to amend Part III of the Constitution. The Court came to that conclusion on two grounds, namely, (1) the word "law" in Art ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion in the interests of the public good, he did not find considerations of substantial and compelling character to do so in that case. But after referring to the reasoning given in Sankari Prasad's case: [1952] 1 SCR 89, the learned Chief Justice observed : "In our opinion, the expression "amendment of the Constitution" plainly and unambiguously means amendment of all the provisions of the Constitution". 16. Referring to Art. 13(2), he restated the same reasoning found in the earlier decision and added that if it was the intention of the Constitution-makers to save fundamental rights from the amending process they should have taken the precaution of making a clear provision in that regard. In short, the majority, speaking through Gajendragadkar, C.J. agreed that no case had been made out for reviewing the earlier decision and practically accepted the reasons given in the earlier decision. Hidayatullah J., speaking for himself, observed : "But I make it clear that I must not be understood to have subscribed to the view that the word "law" in Art. 13(2) does not control constitutional amendments. I reserve my opinion on that case for I appr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... war Ali Sarkar: 1952 CriLJ 510 and Basheshar Nath v. The Commissioner of Income-tax, Delhi and Rajasthan: [1959] 1 S.C.R. 528. But nothing turns upon that fact, as the correctness of the decision was not questioned in those cases. 20. A correct appreciation of the scope and the place of fundamental rights in our Constitution will give us the right perspective for solving the problem presented before us. Its scope cannot be appreciated unless we have a conspectus of the Constitution, its objects and its machinery to achieve those objects. The objective sought to be achieved by the Constitution is declared in sonorous terms in its preamble which reads : "We the people of India having solemnly resolved to constitute India into a Sovereign, Democratic, Republic and secure to all its citizens justice.... liberty.... equality..... and fraternity...." 21. It contains in a nutshell, its ideals and its aspirations. The preamble is not a platitude but the mode of its realisation is worked out in detail in the Constitution. The Constitution brings into existence different constitutional entities, namely, the Union, the States and the Union Territories. It creates three major ins ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the infringement only amounts to "reasonable restriction" on such rights in "public interest". By this process of scrutiny, the court maintains the validity of only such laws as keep a just balance between freedoms and social control. The duty of reconciling fundamental rights in Art. 19 and the laws of social control is cast upon the courts and the touchstone or the standard is contained in the said two expressions. The standard is an elastic one; it varies with time, space and condition. What is reasonable under certain circumstances may not be so under different circumstances. The constitutional philosophy of law is reflected in Parts III and IV of the Constitution. The rule of law under the Constitution serves the needs of the people without unduly infringing their rights. It recognizes the social reality and tries to adjust itself to it from time to time avoiding the authoritarian path. Every institution or political party that functions under the Constitution must accept it; otherwise it has no place under the Constitution. 22. Now, what are the fundamental rights? They are embodied in Part III of the Constitution and they may be classified thus : (i) rig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , Art. 34 enables it to impose restrictions on the rights conferred by the said parts while martial law is in force in an area, Art. 35 confers the power on it to make laws with respect to any of the matters which under clause (3) of Art. 16, Clause (3) of Art. 32, Art. 33 and Art. 34 may be provided for by law. The non-obstante clause with which the last article opens makes it clear that all the other provisions of the Constitution are subject to this provision. Article 32 makes the right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by the said Parts a guaranteed right. Even during grave emergencies Art. 358 only suspends the provision of Art. 19; and Art. 359 enables the President by order to declare the right to move any court for the enforcement of such of the rights conferred by Part III as may be mentioned in that order to be suspended; that is to say, even during emergency, only Art. 19 is suspended temporarily and all other rights are untouched except those specifically suspended by the President. 25. In the Book "Indian Constitution - Cornerstone of a Nation" by Granville Austin, the scope, origin and the objec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng of the Constitution, made this distinction between fundamental rights and other provisions of the Constitution, namely, the former were permanent and the latter were amendable. On September 18, 1949 Dr. Ambedkar in speaking on the amendment proposed by Mr. Kamath to Art. 304 of the Draft Constitution corresponding to the present Art. 368, namely, "Any provision of this Constitution may be amended, whether by way of variation, addition or repeal, in the manner provided in this article", said thus : "Now, what is it we do? We divide the articles of the Constitution under three categories. The first category is the one which consists of articles which can be amended by Parliament by a bare majority. The second set of articles are articles which require two-thirds majority. If the future Parliament wishes to amend any particular article which is not mentioned in Part III or article 304, all that is necessary for them is to have two-thirds majority. Then they can amend it". 30. Therefore, in Dr. Ambedkar's view the fundamental rights were so important that they could not be amended in the manner provided by Art. 304 of the Draft Constitution, which correspo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s; if the decisions in Sankari Prasad's case: [1952] 1 SCR 89 and Sajjan Singh's case: [1965] 1 SCR 933 , laid down the correct law, it enables the same Parliament to abrogate them with one stroke, provided the party in power singly or in combination with other parties commands the necessary majority. While articles of less significance would require consent of the majority of the States, fundamental rights can be dropped without such consent. While a single fundamental right cannot be abridged or taken away by the entire Parliament unanimously voting to that effect, a two-thirds' majority can do away with all the fundamental rights. The entire super structure built with precision and high ideals may crumble at one false step. Such a conclusion would attribute unreasonableness to the makers of the Constitution, for, in that event would be speaking in two voices. Such an intention cannot be attributed to the makers of the Constitution unless the provisions of the Constitution compel us to do so. 34. With this background let us proceed to consider the provisions of Art. 368, vis-a-vis Art. 13(2) of the Constitution. 35. The first question is whether amendment of the Con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t. It is, therefore, clear that the residuary power of legislation is vested in Parliament. Subject to the argument based upon the alleged nature of the amending power as understood by jurists in other countries, which we shall consider at a later stage, it cannot be contended, and indeed, it was not contended, that the Constituent Assembly, if it were so minded, could not have conferred an express legislative power on Parliament to amend the Constitution by ordinary legislative process. Articles 4 and 169, and para 7 of the 5th Schedule and para 21 of the 6th Schedule have expressly conferred such power. There is, therefore, no inherent inconsistency between legislative process and the amending one. Whether in the field of a constitutional law or statutory law amendment can be brought about only by law. The residuary power of Parliament, unless there is anything contrary in the Constitution, certainly takes in the power to amend the Constitution. It is said that two Articles indicate the contrary intention. As Art. 245, the argument proceeds, is subject to the provisions of the Constitution, every law of amendment will necessarily be inconsistent with the articles sought to be ame ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rocess of law-making : Indeed this Court in Sankari Prasad's case: [1952] 1 SCR 89, brought out this idea in clear terms. It said in the first place, it is provided that the amendment must be initiated by the introduction of a "bill in either House of Parliament" a familiar feature of Parliament procedure (of Article 107(1) which says "A bill may originate in either House of Parliament"). Then, the bill must be "passed in each House," - just what Parliament does when it is called upon to exercise its normal legislative function [Article 107(2)]; and finally, the bill thus passed must be "presented to the President" for his "assent", again a parliamentary process through which every bill must pass before it can reach the statute-book, (Article 111). We thus find that each of the component units of Parliament is to play its allotted part in bringing about an amendment to the Constitution. We have already seen that Parliament effects amendments of the first class mentioned above by going through the same three-fold procedure but with a simple majority. The fact that a different majority in the same body is required for effecting th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thereof introduces a fiction to the affect that such a law shall not be deemed to be an amendment to the Constitution. This shows that the amendment is law and that but for the fiction it would be an amendment within the meaning of Art. 368. Article 169 which empowers Parliament by law to abolish or create Legislative Councils in States, para 7 of the 5th Schedule and para 21 of the 6th Schedule which enable Parliament by law to amend the said Schedules, also bring out the two ideas that the amendment is law made by legislative process and that but for the fiction introduced it would attract Article 368. That apart amendments under the said provisions can be made by the Union Parliament by simple majority. That an amendment is made only by legislative process with or without conditions will be clear if two decisions of the Privy Council are considered in juxta-position. They are McCawley v. The King [1920] A.C. 691 and The Bribery Commissioner v. Pedrick Ranasinghe [1964] 2 W.L.R. 1301. 40. The facts in McCawley v. The King [1920] A.C. 691 were these: In 1859 Queensland had been granted a Constitution in the terms of an Order in Council made on June 6 of that year under powers der ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ster of Justice. The said Amendment Act was in conflict with the said s. 55 of the Order and it was passed without complying with the terms of the proviso to s. 29 of the Order. The Privy Council held that the amendment Act was void. Lord Pearce, after considering McCawley's case ([1920] A.C. 691), made the following observations, at p. 1310 : "........ 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. This restriction exists independently of the question whether the legislature is sovereign, as is the legislature of Ceylon, or whether the Constitution is "uncontrolled", as the Board held the Constitution of Queensland to be. Such a Constitution can, indeed, be altered or amended by the legislature, if the regulating instrument so provides and if the terms of those provisions are complied with .........." 42. It will be seen from the said judgments that an amendment of the Constitution is made only by legislative process with ordinary majority or with special majority, as the case may be. Therefore, amendments either under Art. 368 or under other Articles are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wiss Federation, Arts. 140, 141 and 142 of the Constitution of Venezuela, and Art. 146 of the Constitution of the Union of Soviet Socialist Republics, 1936 and s. 29(4) of Ceylon Constitution Order in Council, 1946. 45. Broadly speaking amendments can be made by four methods : (i) by ordinary legislative process with or without restriction, (ii) by the people through referendum, (iii) by majority of all the units of a federal State; and (iv) by a special convention. The first method can be in four different ways, namely, (i) by the ordinary course of legislation by absolute majority or by special majority, (See Section 92(1) of the British North America Act, sub-section 152 South African Act, whereunder except sections 35, 137 and 152, other provisions could be amended by ordinary legislative process by absolute majority. Many constitutions provide for special majorities.); (ii) by a fixed quorum of members for the consideration of the proposed amendment and a special majority for its passage; (see the defunct Constitution of Rumania), (iii) by dissolution and general election on a particular issue; (see the Constitutions of Belgium, Holland, Denmark and Norway), and (iv) by a maj ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n, such as those relating to the passage of legislation, having but little bearing". 47. Adverting to the Bill of Rights, the learned author remarks that they may be repealed just as any other amendment and that they are no more sacred from a legal standpoint than any other part of the Constitution. Dealing with the doctrine of implied limitations, he says that it is clearly untenable. Posing the question "Is there a law about the amending power of the Constitution ?", he answers, "there is none". He would even go to the extent of saying that the sovereignty, if it can be said to exist at all, is located in the amending body. The author is certainly a strong advocate of the supremacy of the amending power and an opponent of the doctrine of implied limitations. His opinion is based upon the terms of Art. 5 of the Constitution of the United States of America and his interpretation of the decisions of the Supreme Court of America. Even such an extreme exponent of the doctrine does not say that a particular constitution cannot expressly import restrictions on the power to amend or that a court cannot reconcile the articles couched in unlimited phraseology. Ind ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ution though of unequal dignity are both laws. Another calls the constitution of a State as one of the laws of the State. Cooley in his book on "Constitutional Law" opines that changes in the fundamental laws of the State must be indicated by the people themselves. He further implies limitations to the amending power from the belief in the constitution itself, such as, the republican form of Government cannot be abolished as it would be revolutionary in its character. In the same book it is further said that the power to amend the constitution by legislative action does not confer the power to break it any more than it confers the power to legislate on any other subject contrary to the prohibitions. C. F. Strong in his book "Modern Political Constitutions", 1963 edition, does not accept the theory of absolute sovereignty of the amending power which does not brook any limitations, for he says : "In short, it attempts to arrange for the re-creation of a constituent assembly whenever such matters are in future to be considered, even though that assembly be nothing more than the ordinary legislature acting under certain restrictions. At the same time, there m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an unreasonable period of time, thirteen years, had elapsed since its submission to the States, and (3) that the lieutenant governor had no right to cast the deciding vote in the Senate in favour of ratification. Four opinions were written in the Supreme Court, no one of which commanded the support of more than four members of the Court. The majority ruled that the plaintiffs, members of the Kansas State Senate, had a sufficient interest in the controversy to give the federal courts jurisdiction to review the case. Without agreement as to the grounds for their decision, a different majority affirmed the judgment of the Kansas court denying the relief sought. Four members who concurred in the result had voted to dismiss the writ on the ground that the amending process "is political" in its entirety, from submission until an amendment becomes part of the Constitution, and is not subject to judicial guidance, control or interference at any point". Whether the contention that the lieutenant governor should have been permitted to cast the deciding vote in favour of ratification presented a justiciable controversy was left undecided, the court being equally divided on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the amending process involves political questions which are, outside the scope of judicial review. When a matter comes before the Court, its jurisdiction does not depend upon the nature of the question raised but on the question whether the said matter is expressly or by necessary implication excluded from its jurisdiction. Secondly, it is not possible to define what is a political question and what is not. The character of a question depends upon the circumstances and the nature of a political society. To put it differently, the court does not decide any political question at all in the ordinary sense of the term, but only ascertains whether Parliament is acting within the scope of the amending power. It may be that Parliament seeks to amend the Constitution for political reasons, but the court in denying that power will not be deciding on political questions, but will only be holding that Parliament has no power to amend particular articles of the Constitution for any purpose whatsoever, be it political or otherwise. We, therefore, hold that there is nothing in the nature of the amending power which enables Parliament to override all the express or implied limitations imposed on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ental right to property. The Constitution came into force on January 26, 1950. The Constitution (First Amendment) Act, 1951, amended Arts. 15 and 19, and Arts. 31-A and 31-B were inserted with retrospective effect. The object of the amendment was said to be to validate the acquisition of zamindaries or the abolition of permanent settlement without interference from courts. The occasion for the amendment was that the High Court of Patna in Kameshwar Singh v. State of Bihar: A.I.R. 1951 Pat 91, held that the Bihar Land Reforms Act (30 of 1950) passed by the State of Bihar was unconstitutional, while the High Courts of Allahabad and Nagpur upheld the validity of corresponding legislations in Uttar Pradesh and Madhya Pradesh respectively. The amendment was made when the appeals from those decisions were pending in the Supreme Court. In Sankari Prasad's case: [1952] 1 SCR 89, the constitutionality of the said amendment was questioned but the amendment was upheld. It may be noticed that the said amendment was not made on the basis of the power to amend fundamental rights recognized by this Court, but only in view of the conflicting decisions of High Courts and without waiting for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ck down the Kerala Agrarian Relations Act IV of 1961 relating to ryotwari lands. Under that amendment the definition of the expression "estate" was enlarged so as to take in any land under ryotwari settlement and any held or let for purposes of agriculture or for purposes ancillary thereto, including waste land, forest land, land for pasture or sites of buildings and other structures occupied by cultivators of land, agricultural labourers and village artisans. In the Ninth Schedule the amendment included items 21 to 65. In the objects and reasons it was stated that the definition "estate" was not wide enough, that the courts had struck down many land reform Acts and that, therefore, in order to give them protection the amendment was made. The validity of the Seventeenth Amendment Act was questioned in this Court and was held to be valid in Sajjan Singh's case: [1965] 1 SCR 933. From the history of these amendments, two things appear, namely unconstitutional laws were made and they were protected by the amendment of the Constitution or the amendments were made in order to protect the future laws which would be void but for the amendments. But the fact remains ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the language to suit the expanding needs of the society. In this process and in a real sense they make laws. Though it is not admitted, the said role of this Court is effective and cannot be ignored. Even in the realm of ordinary statutes, the subtle working of the process is apparent though the approach is more conservative and inhibitive. In the constitutional field therefore, to meet the present extraordinary situation that may be caused by our decision, we must evolve some doctrine which has roots in reason and precedents so that the past may be preserved and the future protected. 60. There are two doctrines familiar to American Jurisprudence, one is described as Blackstonian theory and the other as "prospective over-ruling", which may have some relevance to the present enquiry. Blackstone in his Commentaries, 69 (15th edn., 1809) stated the common law rule that the duty of the Court was "not to pronounce a new rule but to maintain and expound the old one". It means the Judge does not make law but only discovers or finds the true law. The law has always been the same. If a subsequent decision changes the earlier one, the latter decision does not make law ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stitution of the United States is infringed by the refusal. We think that the Federal Constitution has no voice upon the subject. A state in defining the elements of adherence to precedent may make a choice for itself between the principle of forward operation and that of relation backward. It may be so that the decision of the highest courts, though later over-ruled, was law nonetheless for intermediate transactions........ On the other hand, it may hold to the ancient dogma that the law declared by its Courts had a platonic or ideal existence before the act of declaration, in which event, the discredited declaration will be viewed as if it had never been and to reconsider declaration as law from the beginning...... The choice for any state may be determined by the juristic philosophy of the Judges of her Courts, their considerations of law, its origin and nature". 64. The opinion of Cardozo tried to harmonize the doctrine of prospective over-ruling with that of stare decisis. 65. In 1940, Hughes, C.J., in Chicot County Drainage District v. Baxter State Bank [1940] 308 U.S. 371, sated thus : "The law prior to the determination of unconstitutionality is an operative f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o Mapp. Again and again the Court refused to reconsider Wolf and gave its implicit approval to hundreds of cases in their application of its rule. In rejecting the Wolf doctrine as to the exclusionary rule the purpose was to deter the lawless action of the police and to effectively enforce the Fourth Amendment. That purpose will not at this late date be served by the wholesale release of the guilty victims". "Finally, there are interests in the administration of justice and the integrity of the judicial process to consider. To make the rule of Mapp retrospective would tax the administration of justice to the utmost. Hearings would have to be held on the excludability of evidence long since destroyed, misplaced or deteriorated. If it is excluded, the witness available at the time of the original trial will not be available or if located their memory will be dimmed. To thus legitimate such an extraordinary procedural weapon that has no bearing on guilt would seriously disrupt the administration of justice". 68. This case has reaffirmed the doctrine of prospective overruling and has taken a pragmatic approach in refusing to give it retroactivity. In short, in America ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... odifies the Blackstonian theory and accepts, though not expressly but by necessary implication the doctrine of "prospective overruling". 72. Let us now consider some of the objections to this doctrine. The objections are : (1) the doctrine involved legislation by courts; (2) it would not encourage parties to prefer appeals as they would not get any benefit therefrom; (3) the declaration for the future would only be obiter; (4) it is not a desirable change; and (5) the doctrine of retroactivity serves as a brake on courts which otherwise might be tempted to be so fascile in overruling. But in our view, these objections are not insurmountable. If a court can over-rule its earlier decision - there cannot be any dispute now that the court can do so - there cannot be any valid reason why it should not restrict its ruling to the future and not to the past. Even if the party filing an appeal may not be benefited by it, in similar appeals which he may file after the change in the law he will have the benefit. The decision cannot be obiter for what the court in effect does is to declare the law but on the basis of another doctrine restricts its scope. Stability in law does not me ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dly made comprehensive to enable the Supreme Court to declare law and to give such directions or pass such orders as are necessary to do complete justice. The expression "declared" is wider than the words "found or made". To declare is to announce opinion. Indeed, the latter involves the process, while the former expresses result. Interpretation, ascertainment and evolution are parts of the process, while that interpreted, ascertained or evolved is declared as law. The law declared by the Supreme Court is the law of the land. If so, we do not see any acceptable reason why it, in declaring the law in supersession of the law declared by it earlier, could not restrict the operation of the law as declared to future and save the transactions, whether statutory or otherwise that were effected on the basis of the earlier law. To deny this power to the Supreme Court on the basis of some outmoded theory that the Court only finds law but does to make it is to make ineffective the powerful instrument of justice placed in the hands of the highest judiciary of this country. 76. As this Court for the first time has been called upon to apply the doctrine evolved in a differen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... brought about by totalitarian rule, which cannot brook constitutional checks and the other by the discontentment brought about by mis-rule. If either happens, the constitution will be a scrap of paper. Such considerations are out of place in construing the provisions of the Constitution by a court of law. 79. Nor are we impressed by the argument that if the power of amendment is not all comprehensive there will be no way to change the structure of our Constitution or abridge the fundamental rights even if the whole country demands for such a change. Firstly, this visualizes an extremely unforeseeable and extravagant demand; but even if such a contingency arises, the residuary power of the parliament may be relied upon to call for a Constituent Assembly for making a new Constitution of radically changing it. The recent Act providing for a poll in Goa, Daman and Diu is an instance of analogous exercise of such residuary power by the Parliament. We do not express our final opinion on this important question. 80. A final appeal is made to us that we shall not take a different view as the decision in Sankari Prasad's case: [1952] 1 SCR 89, held the field for many years. While ordi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... v. State of Rajasthan: [1965] 1 SCR 933. 84. The reference has been made in three petitions challenging the constitutionality of the Seventeenth Amendment to the Constitution. In one of the petitions, the inclusion of the Punjab Security of Land Tenures Act, (No. X of 1953) in the Ninth Schedule, which makes it immune from attack under any provisions contained in Part III of the Constitution, has been attacked on the ground that the Seventeenth Amendment is in itself unconstitutional. In the other two petitions, the inclusion of the Mysore Land Reforms Act. (No. 10 of 1962) has been attacked on the same grounds. It is not necessary to set out the facts in the three petitions for present purposes. The main argument in all the three petitions has been as to the scope and effect of Art. 368 of the Constitution and the power conferred thereby to amend the Constitution. 85. Before we come to the specific points raised in the present petitions, we may indicate the circumstances in which Sankari Prasad's case: [1952] 1 SCR 89, as well as Sajjan Singh's case: [1965] 1 SCR9 33, came to be decided and what they actually decided. The Constitution came into force on January 26, 1950. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of two Articles numbered 31-A and 31-B in Part III. Article 31-A provided that no law providing for the acquisition by the State of any estate or of any rights therein or the extinguishment or modification of any such rights 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 Art. 31-A. Further Article 31-B, provided for validation of certain Acts and Regulations and specified such Acts and Regulations in the Ninth Schedule, which was for the first time added to the Constitution. The ninth Schedule then contained 13 Acts, all relating to estates, passed by various legislatures of the Provinces or States. It laid down that those Acts and Regulations would not be deemed to be void or ever to have become void, on the ground that they were inconsistent with or took away or abridged any of the rights conferred by any provision of Part III. It further provided that notwithstanding any judgment, decree or order of any court or tribunal to the contrary, all such Acts and Regulations subject to the power of any competent l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stitution. Further the nature of these amendments was to add to, or alter or delete various other provisions of the Constitution contained in Part III thereof. On December 5, 1961, came the decision of this Court by which the Kerala Agrarian Reforms Act (No. 4 of 1961), passed by the Kerala legislature, was struck down, among other grounds, for the reason that ryotwari lands in South India were not estates within the meaning of Art. 31-A and therefore acquisition of ryotwari land was not protected under Art. 31-A of the Constitution : [see Karimbil Kunhikoman v. State of Kerala: [1962] Supp. 1 S.C.R. 829]. This decision was followed by the Seventeenth Amendment on June 20, 1964. By this amendment, changes were made in Art. 31-A of the Constitution and 44 Acts were included in the Ninth Schedule to give them complete protection from attack under any provision of Part III of the Constitution. Practically all these Acts related to land tenures and were concerned with agrarian reforms. This amendment was challenged before this Court in Sajjan Singh's case: [1965] 1 SCR 933. The points then urged were that as Art. 226 was likely to be affected by the Seventeenth Amendment, it requir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efore us. Further a number of persons who were also affected by the Seventeenth Amendment have been permitted to intervene. The arguments on behalf of the petitioners and the interveners who support them may now be briefly summarised. 91. It is urged that Art. 368 when it provides for the amendment of the Constitution merely contains the procedure for doing so and that the power to make amendment has to be found in Art. 248 read with item 97 of List I. It is further urged that the word "amendment" in Art. 368 means that the provisions in the Constitution can be changed so as to improve upon them and that this power is of a limited character and does not authorise Parliament to make any addition to, alteration of or deletion of any provision of the Constitution, including the provision contained in Part III. So Art. 368 authorise only those amendments which have the effect of improving the Constitution. Then it is urged that amendment permissible under Art. 368 is subject to certain implied limitations and these limitations are that basic features of the Constitution cannot be amended at all. An attempt was made to indicate some of these basic features, as, for example, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ull power to amend each and every part of the Constitution as has been held in Sankari Prasad's case: [1952] 1 SCR 89. Parliament may do all kinds of things, which were never intended, under this unfettered power and may, for example, abolish elected legislatures, abolish the President or change the present form of Government into a Presidential type like the United States Constitution or do away with the federal structure altogether. So it is urged that we should interpret Art. 368 in such a way that Parliament may not be able to do all these things. In effect this argument of fear has been put forward to reinforce the contention that this Court should hold that there are some implied limitations on the amending power and these implied limitations should be that there is no power any where in the Constitution to change the basic features of the Constitution to which reference has already been made. This is in brief the submission on behalf of the petitioners and the interveners who support them. 95. The submission on behalf of the Union of India and the States may now be summarised. It is urged that Art. 368 not only provides procedure for amendment but also contains in it th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Constitution and only means law as made under the legislative provisions contained in Chapter I of Part XI read with Chapters II and III of Part V of the Constitution and Chapters III and V of Part VI thereof. In effect it is a law which is made under the Constitution which is included in the word "law" in Art. 13(2) and not an amendment to the Constitution under Art. 368. 97. As to Articles 226 and 245 and the necessity of taking action under the proviso to Art. 368, it is urged that there is no change in Art. 226 and 245 on account of any provision in the Seventeenth Amendment and therefore no action under the proviso was necessary. It is only direct change in Art. 226 and 245 which would require following the procedure as to ratification or at any rate such change in other Articles which would have the effect of directly compelling change in Arts. 226 and 245 and that in the present case no such direct compulsion arises. 98. Lastly as to the argument of fear it is urged that there is always a provision with respect to amendment in written federal Constitutions. Such a provision may be rigid or flexible. In our Constitution Art. 368 provides for a comparatively flexi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ll in either House of Parliament. The Bill has to be passed in each House by a majority of the total membership of that House and by a majority of not less two-third of the members of that House present and voting. After it is so passed, it has to be presented to the President for his assent. On such presentation if the President assents to the Bill, Art. 368 provides that the Constitution shall stand amended in accordance with the terms of the Bill. Further there is a proviso for ratification with respect to certain Articles and other provisions of the Constitution including Art. 368, and those matters can only be amended if the Bill passed by the two Houses by necessary majority is ratified by the legislatures of not less than one-half of the States by resolutions to that effect. In such a case the Bill cannot be presented for his assent to the President until necessary ratification is available. But when the necessary ratification has been made, the Bill with respect to these matters is then presented to the President and on his assent being given, the Constitution stands amended in accordance with the terms of the Bill. 101. The argument is that there is no express provision i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s contained in the residuary power of Parliament in Art. 248 read with item 97 of List I. It is true that Art. 248 read with item 97 of List I, insofar as it provides for residuary power of legislation, is very wide in its scope, and the argument that the power to amend the Constitution is contained in this provision appears prima facie attractive in view of the width of the residuary power. But we fail to see why when there is a whole Part devoted to the amendment of the Constitution the power to amend should not be found in that Part, if it can be reasonably found there and why Art. 368 should only be confined to providing for procedure for amendment. It is true that the marginal note to Art. 368 is "procedure for amendment of the Constitution", but the marginal note cannot control the meaning of the words in the Article itself, and we have no doubt that the words "the Constitution shall stand amended in accordance with the terms of the Bill" to be found in Art. 368 confer the power of amendment. If we were to compare the language of cls. 2 to 5 of Art. 46 of the Irish Constitution which prescribes the procedure for amendment, we find no words therein comparab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are a number of Article in the Constitution, which expressly provide for amendment by law, as, for example, 3, 4, 10, 59(3), 65(3), 73(2), 97, 98(3), 106, 120(2), 135, 137, 142(1), 146(2), 148(3), 149, 169, 171(2), 186, 187(3), 189(3), 194(3), 195, 210(2), 221(2), 225, 229(2), 239(1), 241(3), 283(1) and (2), 285(2), 287, 300(1), 313, 345, 373, Sch. V. clause 7 and Sch. VI clause 21; and so far as these Articles are concerned they can be amended by parliament by ordinary law-making process. But so far as the other Articles are concerned they can only be amended by amendment of the Constitution under Art. 368. Now Art. 245 which gives power to make law for the whole or any part of the territory of India by Parliament is "subject to the provisions of this Constitution" and any law made by Parliament whether under Art. 246 read with List I or under Art. 248 read with item 97 of List I must be subject to the provisions of the Constitution. If therefore the power to amend the Constitution is contained in Art. 248 read with item 97 List I, that power has to be exercised subject to the provisions of the Constitution and cannot be used to change the fundamental law (namely, the C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the absence of such express provision any law passed under the legislative powers granted under the fundamental law cannot amend it. So if we were to hold that the power to amend the Constitution is comprised in Art. 248, that would mean that no amendment of the Constitution would be possible at all except to the extent expressly provided in various Articles to which we have referred already, for the power to legislate under Art. 245 read with Art. 248 is itself subject to the Constitution. Therefore, reading Art. 368 and considering the scheme of the legislative powers conferred by Articles 245 and 248 read with item 97 of List I, this to our mind is clear, firstly that the power to amend the Constitution is to be found in Art. 368 itself, and secondly, that the power to amend the Constitution can never reside in Art. 245 and Art. 248 read with item 97 of List I, for that would make any amendment of the Constitution impossible except with respect to express provisions contained in certain Articles thereof for amendment by law. 106. We may in this connection add that all this argument that power to amend the Constitution is to be found in Art. 245 and Art. 248 read with item 97 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on by not less than one-half of the States where so required, it could never have been argued that the power to amend the Constitution was contained in Arts. 245 and 248 read with item 97 of List I and Art. 368 merely contained the procedure. 107. We are however of opinion that we should look at the quality and nature of what is done under Art. 368 and not lay so much stress on the similarity of the procedure contained in Art. 368 with the procedure for ordinary law-making. If we thus look at the quality and nature of what is done under Art. 368, we find that it is the exercise of constituent power for the purpose of amending the Constitution itself and is very different from the exercise of ordinary legislative power for passing laws which must be in conformity with the Constitution and cannot go against any provision thereof, unless there is express provision to that effect to which we have already referred. If we thus refer to the nature and quality of what is done under Art. 368, we immediately see that what emerges after the procedure in Art. 368 is gone through is not ordinary law which emerges after the legislative procedure contained in the Constitution is gone through. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the President cannot withhold his assent, we would have found language similar in terms to that in clause 5 of Art. 46 of the Irish Constitution. 109. We thus see that in one respect at any rate Art. 368 even on its present terms differs from the power of the President in connection with ordinary legislation under the Constitution and that is if the President withholds his assent the Bill for amendment of the Constitution immediately falls. We cannot accept that the procedure provided under the proviso to Art. 111 can apply in such a case, for this much cannot be disputed that so far as the procedure provided for amendment of the Constitution is concerned we must look to Art. 368 only and nothing else. In any case the mere fact that the procedure in Art. 368 is very much assimilated to the procedure for passing ordinary legislation is no reason for holding that what emerges after the procedure under Art. 368 is followed is ordinary law and no more. We repeat that we must look at the quality and nature of what is done under Art. 368, and that is, the amendment of the Constitution. If we look at that we must hold that what emerges is not ordinary law passed under the Constitution b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lares that the Constitution shall stand amended in accordance with the terms of the Bill. Thereafter what courts can see is whether the procedure provided in Art. 368 has been followed, for if that is not done, the Constitution cannot stand amended in accordance with the terms of the Bill. But if the procedure has been followed, the Constitution stands amended, and there is no question of testing the amendment of the Constitution thereafter on the anvil of fundamental rights or in any other way as in the case of ordinary legislation. In view of all this we have no doubt that even though by accident the procedure provided in the Constitution for amendment thereof is very akin to the procedure for passing ordinary legislation, the power contained in Art. 368 is still not ordinary legislative power but constituent power for the specific purpose of amendment of the Constitution; and it is the quality of that power which determines the nature of what emerges after the procedure in Art. 368 has been followed and what thus emerges is not ordinary legislation but fundamental law which cannot be tested, for example, under Art. 13(2) of the Constitution or under any other provision of the Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed improvements in a measure before Parliament; formally, to alter in detail, though practically it may be to alter its principle, so as to thwart it". This meaning at any rate does not support the case of the petitioners that amendment merely means such change as results in improvement in detail. It shows that in law, though amendment may professedly be intended to make improvements and to alter only in detail, in reality, it may make a radical change in the provision which is amended. In any case, as was pointed out in Sajjan Singh's case: [1965] 1 SCR 933, the word "amend" or "amendment" is well understood in law and will certainly include any change whether by way of addition or alteration or deletion of any provision in the Constitution. There is no reason to suppose that when the word "amendment" of the Constitution was being used in Art. 368, the intention was to give any meaning less than what we have stated above. To say that "amendment" in law only means a change which results in improvement would make amendments impossible, for what is improvement of an existing law is a matter of opinion and what, for example, the legisl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... us above. Limitations may be of two kinds, namely, express or implied. So far as express limitations are concerned, there are none such in Art. 368. When it speaks of the "amendment of this Constitution" it obviously and clearly refers to amendment of any provision thereof, including the provisions contained in Part III relating to fundamental rights. Whether Art. 13(2) is an express limitation on the power of amendment will be considered by us later, but so far as Art. 368 is concerned there are no limitations whatsoever in the matter of substance on the amending power and any provision of the Constitution, be it in Part III and any other Part, can be amended under Art. 368. 115. The next question is whether there are any implied limitations on the power of amendment contained in Art. 368, and this brings us to the argument and there are certain basic features of the Constitution which cannot be amended at all and there is an implied limitation on the power of amendment contained in Art. 368 so far as these basic features are concerned. We may in this connection refer to the view prevailing amongst jurists in the United States of America as to whether there are any impl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... till a complete catalogue of basic features of the Constitution is available, it would be impossible to make any amendment under Art. 368 with any certainty that it would be upheld by courts. If such an implied limitation were to be put on the power of amendment contained in Art. 368, it would only be the court which would have the power to decide what are basic features of the Constitution and then to declare whether a particular amendment is valid or not on the ground that it amends a particular basic feature or not. The result would be that every amendment made in the Constitution would provide a harvest of legal wrangles so much so that Parliament may never know what provisions can be amended and what cannot. The power to amend being a constituent power cannot in our opinion for these reasons be held subject to any implied limitations thereon on the ground that certain basic features of the Constitution cannot be amended. We fail to see why if there was any intention to make any part of the Constitution unamendable, the Constituent Assembly failed to indicate it expressly in Art. 368. If, for example, the Constitution-makers intended certain provisions in the Constitution, and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onsideration. 118. In Administrator General of Bengal v. Prem Lal Mullick [1895] 22 I.A.107, the Privy Council held that "proceedings of the legislature cannot be referred to as legitimate aids to the construction of the Act in which they result". 119. In Baxter v. Commissioner of Taxation [1907] 4 C.L.R. 1087), it was said that reference to historical facts can be made in order to interpret a statute. There was however no reference to the debates in order to arrive at the meaning of a particular provision of the Constitution there in dispute. 120. In A. K. Gopalan v. the State of Madras: 1950 CriLJ 1383 , Kania C.J. referring to the debates and reports of the Drafting Committee of the Constituent Assembly in respect of the words of Art. 21 observed at p. 110 that they might not be read to control the meaning of the Article. In that case all that was accepted was that "due process of law" which was a term used in the U.S. Constitution, was not accepted for the purpose of Art. 21 which used the word "the procedure established by law". Patanjali Sastri J. (at p. 202) also refused to look at the debates and particularly the speeches made in order to de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the power of Parliament to cede any part of the national territory and held that it was not correct to say that "the preamble could in any way limit the power of Parliament to cede parts of the national territory". On a parity of reasoning we are of opinion that the preamble cannot prohibit or control in any way or impose any implied prohibitions or limitations on the power to amend the Constitution contained in Art. 368. 124. This brings us to the question whether the word "law" in Art. 13(2) includes an amendment of the Constitution, and therefore, there is an express provision in Art. 13(2) which at least limits the power of amendment under Art. 368 to this extent that by such amendment fundamental rights guaranteed by Part III cannot be taken away or abridged. We have already pointed out that in Sankari Prasad's case: [1952] 1 SCR 89 , as well as Sajjan Singh's case: [1965] 1 SCR 933 , it has already been held, in one case unanimously and in the other by majority, that the word "law" in Art. 13(2) does not include an amendment of the Constitution, and it is the correctness of this view which is being impugned before this Bench, Article 13 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ding that Art. 13(2) when it talks of the State making any law, refers to the law made under the provisions contained in Ch. I of Part XI of the Constitution beginning with Art. 245 and also other provisions already referred to earlier. Article 246 provides that Parliament may make laws for the whole or any part of the territory of India and the legislature of a State may make laws for the whole or any part of the State. Article 246(1) gives exclusive power to Parliament to make laws with respect to subjects enumerated in List I. Article 246(3) gives exclusive power to State legislatures to make laws with respect to List II. Article 248(1) gives exclusive power to Parliament to make laws with respect to any matter nor enumerated in the Concurrent List or the State List. We are referring to these provisions merely to show that the various provisions in Chapter I of Part XI provide for making laws, and these laws are all laws which are made under the legislative power conferred on Parliament or on the State legislatures under the Constitution. Therefore when in Art. 13(2) it is said that the State shall not make any law (State there including Parliament and legislature of each State) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... seems to us somewhat contradictory that in Art. 368 power should have been given to amend any provision of the Constitution without any limitations but indirectly that power is limited by using words of doubtful import in Art. 13(2). It is remarkable that in Art. 13(2) there is no express provision that amendment of the Constitution, under Art. 368, would be subject thereto. It seems strange indeed that no express provision was made in Part XX in this matter and even in Art. 13(2) no express provision is made to this effect, and in both places the matter is left in a state of uncertainty. It is also remarkable that in Art. 368 the word "law", which we find so often used in so many Articles of the Constitution is conspicuously avoided, and it is specifically provided that after the procedure has been gone through the Constitution shall stand amended in accordance with the terms of the Bill. This language of Art. 368 is very significant and clearly makes a distinction between a constitutional Amendment and an ordinary law passed as an Amending Act. The validity of law has to be determined at the time when the Bill actually matures into an Act and not at the stage while it i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in Art. 13(2), which would include constitutional law also. There is nothing to suggest this even in the inclusive definition of the words "law" and "laws in force" in Art. 13(3). Besides it is conceded on behalf of the petitioners that Art. 368 gives power to amend Part III, but that power is only to amend one way, namely, towards enlargement of the rights contained therein, and not the other way, namely, for abridging or taking away the rights contained therein. We must say that it would require a very clear provision in the Constitution to read the power to amend the Constitution relating to Part III in this manner. We cannot find that clear provision in Art. 13(2). We repeat that what the Constituent Assembly was taking the trouble of providing a whole Part for amendment of the Constitution and when the words in Art. 368 clearly give the power to amend the Constitution and are subject to no implied limitations and contain no express unitations, it is strange indeed that it should have omitted to provide in that very Article that Part III is not liable to amendment thereunder. In any case if the power of amendment conferred to the words of Art. 368 is unfett ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... there must be actual change in the terms of the provision concerned. If there is no actual change directly in the entrenched provision, no ratification is required, even if any amendment of any other provision of the Constitution may have some effect Indirectly on the entrenched provisions mentioned in the proviso. But it is urged that there may be such a change in some other provision as would seriously affect an entrenched provision, and in such a case ratification should be necessary. This argument was also dealt with in the majority judgment in Sajjan Singh's case : [1965] 1 SCR 933 , where the doctrine of pith and substance was applied and it was held that where the amendment in any other Article so affects the entrenched Article as to amount to an amendment therein, then ratification may be necessary, even though the entrenched Article may not be directly touched. Perhaps the use of the doctrine of pith and substance in such a case is not quite apt. But what was meant in Sajjan Singh's case: [1965] 1 SCR 933, was that if there is such an amendment of an unentrenched Article that it will directly affect an entrenched Article and necessitate a change therein, then reco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent takes the incredible course of amending only the unentrenched Article and not amending the entrenched Article, courts can say that ratification is necessary even for amending the unentrenched Article, for it directly necessitates a change in an entrenched Article. But short of that we are of opinion that merely because there is some effect indirectly on an entrenched Article by amendment of an unentrenched Article it is not necessary that there should be ratification in such circumstances also. 132. Besides, let us consider what would happen if the argument on behalf of the petitioners is accepted that ratification necessary whenever there is even indirect effect on an entrenched Article by amending an unentrenched Article. Take the case of Art. 226 itself. It gives power to the High Court not only to issue writs for the enforcement of fundamental rights but to issue them for any other purpose. Writs have thus been issued by High Courts for enforcing other rights conferred by ordinary laws as well as under other provisions of the Constitution, like Arts. 301 and 311. On this argument if any change is made in Arts. 301 and 311 there is bound to be an effect on Art. 226 and ther ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from the control of Part III in the matter of certain laws affecting, for example, ryotwari lands, and therefore as Art. 245 is an entrenched Article there should have been ratification under the proviso. The argument in our opinion is of the same type as the argument with respect to the effect on Art. 226 and our answer is the same, namely, that there is no direct effect on Art. 245 by the amendment and the indirect effect, if any, does not require that there should have been ratification in the present case. 134. It is then urged that ratification is necessary as Art. 31-B deals with State legislation and in any case Parliament cannot make any law with respect to Acts which were put in the Ninth Schedule and therefore Parliament could not amend the Constitution in the manner in which it was done by making additions in the Ninth Schedule, both for want of ratification and for want of legislative competence. The answer to this argument was given in Sankari Prasad's case: [1952] 1 SCR 89, and it was observed there that - "Article 31-A and 31-B really seek to save a certain class of laws and certain specified laws already passed from the combined operation of Art. 13 read ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 136. Nor is there any force in the argument that Parliament could not validate those laws by curing the constitutional infirmity because they dealt with land which is in List II of the Seventh Schedule to the Constitution over which State Legislatures have exclusive legislative power. The laws had already been passed by State legislatures under their exclusive powers; what has been done by the Seventeenth Amendment is to cure the constitutional infirmity, if any, in these laws in relation to Part III. That could only be done by Parliament and in so doing Parliament was not encroaching on the exclusive legislative power of the State. The States had already passed the laws and all that was done by the Seventeenth Amendment was to cure any constitutional infirmity in the laws by including them in the Ninth Schedule read with Art. 31-B. We must therefore reject the argument that the Seventeenth Amendment required ratification because laws put in the Ninth Schedule were State laws. We must equally reject the arg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the power to amend the Constitution is unfettered by any implied limitations), is no ground for withholding the power, for we have no reason to suppose that Parliament on whom such power is conferred will abuse it. Further even if it abuses the power of constitutional amendment under Art. 368 the check in such circumstances is not in courts but is in the people who elect members of Parliament. The argument for giving a limited meaning to Art. 368 because of possibility of abuse must therefore be rejected. 139. The other aspect of this argument of fear is that we should not make the Constitution too flexible so that it may be open to the requisite majority with the requisite ratification to make changes too frequently in the Constitution. It is said that the Constitution is an organic document for the governance of the country and it is expected to endure and give stability to the institution which it provides. That is undoubtedly so and this is very true of a written federal Constitution. But a perusal of various Constitutions of the world shows that there are usually provisions for amendment of the Constitution in the Constitution itself. This power to amend a Constitution ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and that shows that the power to amend is much too easy and should be restricted by judicial interpretation. Now, judicial interpretation cannot restrict the power on the basis of a political argument. It has to interpret the Constitution as it finds it on the basis of well-known canons of construction and on the terms of Art. 368 in particular. If on those terms it is clear - as we think it is - that power to amend is subject to no limitations except those to be expressly found in the Constitution, courts must give effect to that. The fact that in the last sixteen years a large number of amendments could be made and have been made is in our opinion due to the accident that one party has been returned by electors in sufficient strength to be able to command the special majorities which are required under Art. 368, not only at the center but also in all the States. It is because of this circumstance that we have had so many amendments in the course of the last sixteen years. But that in our opinion is no ground for limiting the clear words of Art. 368. 141. The power of amendment contained in a written federal Constitution is a safety valve which to a large extent provides for sta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve been so many laws dealing with agrarian reforms passed on the basis of the First Amendment which was upheld by this Court that the short period for which that case has stood should not stand in the way of this Court acting on the principle of stare decisis. The reason for this is that an agrarian revolution has taken place all over the country after the First Amendment by State laws passed on the faith of the decision of this Court in Sankari Prasad's case: [1952] 1 SCR 89. This agrarian revolution has led to millions of acres of land having changed hands and millions of new titles having been created. So it is urged that the unanimous decision in Sankari Prasad's case: [1952] 1 SCR 89, which was challenged when the Seventeenth Amendment was passed and was upheld by majority in Sajjan Singh's case: [1965] 1 SCR 933, should not now be disturbed as its disturbance would create chaos in the country, particularly in the agrarian sector which constitutes the vast majority of the population in this country. 143. We are of opinion that there is force in this argument. Though the period for which Sankari Prasad's case: [1952] 1 SCR 89, has stood unchallenged is not long ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 [1959] Supp. 2 S.C.R. 8, 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: [1963] 1 S.C.R. 912. In the face of these decisions it is impossible to apply t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat another Bench is inclined to take a different view may not justify the Court in reconsidering the earlier decision or in departing from it...................... Even so, the Court should be reluctant to accede to the suggestion that its earlier decisions should be light-heartedly reviewed and departed from. In such a case the test should be : is it absolutely necessary and essential that the question already decided should be reopened ? The answer to this question would depend on the nature of the infirmity alleged in the earlier decision, its impact on public good, and the validity and compelling character of the considerations urged in support of the contrary view. If the said decision has been followed in a large number of cases, that again is a factor which must be taken into account". 146. A similar view was taken in the Keshav Mills Company Limited v. Commissioner of Income-tax: [1965] 56 ITR 365(SC), where it was observed that - "...........before a previous decision is pronounced to be plainly erroneous, the Court must be satisfied with a fair amount of unanimity amongst its members that a revision of the said view is fully justified". 147. These prin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fail and we would dismiss them. In the circumstances we would pass no order as to costs. M. Hidayatullah, J. 152. In these three writ petitions, the facts of which appear in the two judgments just delivered, the validity of the Punjab Security of Land Tenures Act, 1953 and the Mysore Land Reforms Act, 1953, is principally involved. Since these Acts are protected by the Constitution (Seventeenth Amendment) Act, 1964, the validity of the constitutional amendment is also questioned. Therefore, a much larger field must be traversed because of the claim of the State that no part of the Constitution from the Preamble to the Ninth Schedule, is beyond the provision for amendment contained in Art. 368. The article forms the Twentieth Part of the Constitution and is said to be a code by itself in which reposes a sovereign power, transcending anything elsewhere in the Constitution. The State submits that (except as stated in the article) there are no limitations on the amending power and denies that there are any implied restrictions. It claims, therefore, that an amendment of the Constitution or of any of its part can never be a justiciable issue if the procedure for amendment has been dul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1 SCR 89, to make me accept the view that Fundamental Rights were not really fundamental but were intended to be within the powers of amendment in common with the other parts of the Constitution and without the concurrence of the States. No doubt Art. 19 by clauses numbered 2 to 6 allows a curtailment of rights in the public interest. This shows that Part III is not static. It visualises changes and progress but at the same time it preserves the individual rights. There is hardly any measure of reform which cannot be introduced reasonably, the guarantee of individual liberty notwithstanding. Even the agrarian reforms could have been partly carried out without Article 31-A and 31-B but they would have cost more to the public exchequer. The rights of society are made paramount and they are placed above those of the individual. This is as it should be. But restricting the Fundamental Rights by resort to cls. 2 to 6 of Art. 19 is one thing and removing the rights from the Constitution or debilitating them by an amendment is quite another. This is the implication of Sankari Prasad's case: [1952] 1 SCR 89. It is true that such things would never be, but one is concerned to know if ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ust think things and not words". The true principle is that if there are two provisions in the Constitution which seem to be hostile, juridical hermeneutics requires the Court to interpret them by combining them and not by destroying one with the aid of the other. No part in a Constitution is superior to another part unless the Constitution itself says so and there is no accession of strength to any provision by calling it a code. Portalis, the great French Jurist (who helped in the making of the Code Napoleon) supplied the correct principle when he said that it is the context of the legal provisions which serves to illustrate the meaning of the different parts, so that among them and between them there should be correspondence and harmony. 155. We have two provisions to reconcile. Article 368 which says that the Constitution may be amended by following this and this procedure, and Art. 13(2) which says, the State shall not make any law which takes away or abridges the rights conferred by Part III and that any law made in contravention of the clause shall, to the extent of the contravention, be void. The question, therefore, is : does this create any limitation upon the amend ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... articles of faith. To cut the narration short, the main steps may only be mentioned. Mrs. Besant's Commonwealth of India Bill 1925 with its seven fundamental rights (the precursor of Art. 19), the Madras Congress Resolution of 1927 - "a constitution on the basis of declaration of rights" - the Nehru Report - "it is obvious that our first care should be to have the Fundamental Rights guaranteed in a manner which will not permit their withdrawal in any circumstances" - the draft article in the Nehru Constitution - "No person shall be deprived of his liberty, nor shall his dwelling or property be entered, requisitioned or confiscated save in accordance with law" - the Independence Resolution of 26th January, 1930 - "We believe that it is the inalienable right of the Indian people, as of any other people, to have freedom and to enjoy the fruits of their toil and have the necessities of life, so that they may have full opportunities of growth" - the Karachi Resolution on Fundamental Rights, Economic and Social Change (1931), the Sapru Report (1945) which for the first time distinguished between justiciable and non-justiciable rights, the sugge ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ordinary majority and laws made occasionally for the amendment of the Constitution by a slightly enhanced majority. In our Constitution this distinction is not valid in the eye of Art. 13(2). 159. It is not essential, of course, that a difference must always exist in the procedure for the exercise of constituent and ordinary legislative power. One has not to go far to find the example of a country in which constitutional law as such may be made by the same agency which makes ordinary laws. The most outstanding example is that of England about which de Tocqueville observed :" "the Parliament has an acknowledged right to modify the Constitution; as, therefore, the Constitution may undergo perpetual changes, it does not in reality exist; the Parliament is at once a legislative and a constituent assembly :" (Introduction to the Study of Law of the Constitution by A. V. Dicey, Tenth Edn. p. 88 quoting from O'Euvres completes (14th ed., 1864) Vol. I (Democratie en Amerique), pp. 166, 167). 160. Of course, the dictum of de Tocqueville that the English Constitution "elle n'existe point" (it does not exist) is far from accurate. There is a vast body of c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ple majority makes laws and also amends constitutional statutes. In our Constitution too, in spite of the claim that Art. 368 is a code (whatever is meant by the word "code" here), Arts. 4, 11 and 169 show that the amendment of the Constitution can be by the ordinary law making procedure. By this method one of the legislative limbs in a State can be removed or created. This destroys at one stroke the claim that Art. 368 is a code and also that any special method of amendment of the Constitution is fundamentally necessary. 162. The next test that the courts must apply the Constitution in preference to the ordinary law may also be rejected on the analogy of the British practice. There, every statute has equal standing. Therefore, the only difference can be said to arise from the fact that constitutional laws are generally amendable under a process which in varying degrees, is more difficult or elaborate. This may give a distinct character to the law of the Constitution but it does not serve to distinguish it from the other laws of the land for purposes of Art. 13(2). Another difference is that in the written constitutions the form and power of Government alone are to be fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r 369 U.S. 186 7 L.Ed. 2d 633. 165. A Republic must, as says Story (Commentaries on the Constitution of the United States (1883) 3 686, possess the means for altering and improving the fabric of the Government so as to promote the happiness and safety of the people. The power is also needed to disarm opposition and prevent factions over the Constitution. The power, however, is not intended to be used for experiments or as an escape from restrictions against undue state action enacted in the Constitution itself. Nor is the power of amendment available for the purpose of removing express or implied restrictions against the State. 166. Here I make a difference between Government and State which I shall explain presently. As Willoughby (Tagore Law Lectures, p. 84), points out constitutional law ordinarily limits Government but not the State because a constitutional law is the creation of the State for its own purpose. But there is nothing to prevent the State from limiting itself. The rights and duties of the individual and the manner in which such rights are to be exercised and enforced are ordinarily to be found in the laws though some of the Constitutions also fix them. It is now ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... resh constituent body. To attempt to do this otherwise is to attempt a revolution. I do not know why the word "revolution", which I have used before, should evoke in some persons an image of violence and subversion. The whole American Constitution was the result of a bloodless revolution and in a sense so was ours. The adoption of the whole Constitution and the adoption of an amendment to the Constitution have much in common. An amendment of the Constitution has been aptly called a Constitution in little and the same question arises whether it is by a legal process or by revolution. There is no third alternative. An amendment, which repeals the earlier Constitution, unless legal, is achieved by revolution. As stated in the American Jurisprudence : "An attempt by the majority to change the fundamental law in violation of self-imposed restrictions is unconstitutional and revolutionary" (Vol. 12, Section 25 pp. 629-630). 168. There are illegal and violent revolutions and illegal and peaceful revolutions. Modification of Constitution can only be by the operation of a certain number of will acting on other wills. The pressure runs through a broad spectrum, harsh a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se requires, "the State" includes the Government and Parliament of India and the Government and the Legislature of each of the States and all local or other authorities within the territory of India or under the control of the Government of India". 172. The State is the sum total of all the agencies which are also individually mentioned in Art. 12 and by the definition all the parts severally are also included in the prohibition. Now see how 'law' is defined : (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 :" 173. In Sajjan Singh's case: [1965] 1 SCR 933, I said that if amendments of the Constitution were meant to be excluded from the word "law" it was the easiest thing to add to the definition the further word "but shall not include an amendment of the Constitution". It is argued now before us that this was not necessary because Art. 368 does not make any exception. This argument came at all stages like a refrain and is the real cause of the obfuscation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Chapter XIX), Keith (An Introduction to British Constitutional Law [1931] p. 48) and Ramsay Muir (How Britain is Governed p. 5, 6). Dawson in particular said that a Cabinet is no longer responsible to the Commons but the Commons has become instead responsible to the Government. Ivor Jennings added that if a Government had majority it could always secure the legislation. The others pointed out that the position of the Cabinet towards Parliament tends to assume more or less dictatorial powers and that was why people blamed Government, this to say, the Cabinet rather than Parliament for ineffective and harsh laws. 176. This is true of our country also regarding administration and legislation. Fortunately, this is avoided at least in so far as the Fundamental Rights are concerned. Absolute, arbitrary power in defiance of Fundamental Rights exist nowhere under our Constitution, not even in the largest majority. The people's representatives have, of course, inalienable and undisputable right to alter, reform or abolish the Government in any manner they think fit, but the declarations of the Fundamental Rights of the citizens are the inalienable rights of the people. The extent of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch men have struggled through the centuries and those new social and economic rights of the Individual which the Nations are increasingly recognising in their Constitutions. Some of these were proclaimed during the French Revolution and are included in the declarations of Nations taking pride in the dignity and liberty of the Individual. They are epitomized in the Preamble, and more fully expressed in Parts III and IV of our Constitution. These Declarations wherever found are intended to give a key to social progress by envisaging rights to work, to education and to social insurance. 178. The Nations of the world are now in the second stage, where Covenants are being signed on the part of the States to respect such rights. United Nations Human Rights Commission has worked to produce two drafts - one dealing with civil and political rights and the other with economic, social and cultural rights. The third stage is still in its infancy in which it is hoped to provide for the enforcement of these rights on an international basis. The Regional Charter of the Human Rights under which there is established already a European Commission of Human Rights to investigate and report on violati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... But what I do say is that the possession of the necessary majority does not put any party above the constitutional limitations implicit in the Constitution. It is obvious that the Constituent Assembly in making the Fundamental Rights justiciable was not satisfied with reliance on the sense of self-restraint or public opinion (Sir Robert Peel calls it "that great compound of folly, weakness, prejudice, wrong feeling, right feeling, obstinacy and newspaper paragraphs") on which the majority in Sajjan Singh's: [1965] 1 SCR 933 , case does. This is not an argument of fear. The question to ask is : can a party, which enjoys 2/3rds majority today, before it loses it, amend Art. 368 in such wise that a simple majority would be sufficient for the future amendments of the Constitution ? Suppose it did so, would there be any difference between the constitutional and the ordinary laws made thereafter ? 181. The liberty of the Individual has to be fundamental and it has been so declared by the people. Parliament today is not the constituent body as the Constituent Assembly was, but is a constituted body which must bear true allegiance to the Constitution as by law established. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bviously arise in the British Parliament (Dicey gives three supposed limitations on the power of Parliament. Of these one that language has been used in Acts of Parliament which implies that one Parliament can make laws which cannot be touched by any subsequent Parliament, is not true. The best examples are Act of treaties with Scotland and Ireland but these same Acts have been amended later. Francis Bacon found this claim to be untenable. See Dicey 'The Law of Constitution' pp. 64, 65). 183. The example of the Constitution of the United States cannot also serve any purpose although the greatest amount of support was sought to be derived from the decisions of the Supreme Court and the institutional writings in the United States. The power of amendment in the United States Constitution flows from Art. V. (Article V. The Congress, whenever two-thirds of both houses shall deem it necessary, shall propose amendments to this Constitution, or, on the application of the legislatures of two-thirds of 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dment and was adopted by following the same method. As the 15th Amendment had been accepted for half a century the suggestion that it was not in accordance with law, but as a war measure validated by acquiescence was not accepted. 187. It is significant, however, that at the time of the 18th Amendment, the arguments were (a) that 'amendment' was limited to the correction of error in the framing of the Constitution, (b) Article V did not comprehend the adoption of additional or supplementary provisions, (c) ordinary legislation could not be embodied in the constitutional amendment, and (d) Congress could not propose amendment which pared the sovereign power of the States. None of these arguments was accepted. At the time of the 19th Amendment, which increased the franchise in the States, the narrow ground was that a State which had not ratified the Amendment would be deprived of its equal suffrage in the Senate because its representatives in that body would be persons not of its choosing, i.e. persons chosen by voters whom the State itself had not authorised to vote for Senators. This argument was rejected. However, in Dillion v. Gloss 256 U.S. 368, the Supreme Court held t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atters of State Government organisation ......" 190. It would appear that the Equal Protection Clause was held to supply a guide for examination of apportionment methods better than the Guarantee Clause. 191. Although there is no clear pronouncement, a great controversy exists whether questions of substance can ever come before the Court and whether there are any implied limitations upon the amendatory power. In the cases above noted, the other articles (particularly the Bill of Rights) were not read as limitations and no limitation outside the amending clause was implied. In the two cases in which the express limitation of Equal Suffrage Clause was involved the Court did not enter the question. Thus the 15th and, on its strength, the 19th Amendments were upheld. In Coleman v. Miller 307 U.S. 443, the political question doctrine brought the support of only four Justices and in Baker v. Carr 369 U.S. 186, the Federal Courts were held to have jurisdiction to scrutinise the fairness of legislative apportionment, under the 14th Amendment and to take steps to assure that serious inequities were wiped out. The courts have thus entered the 'political thicket'. The question ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and again counsel for the State turned either for support or inspiration. According to him, there are no implied limitations unless the Courts adopt that view and therefore no limitations on the substance of the amendments except the Equality Clause. His view is that when Congress is engaged in the amending process it is not legislating but exercising a peculiar power bestowed by Art. V. I have already shown that under our Constitution the amending process is a legislative process, the only difference being a special majority and the existence of Art. 13(2). Orfield brushes aside the argument that this would destroy the very concept of the Union which, as Chief Justice Marshall had said, was indestructible. Orfield faces boldly the question whether the whole Constitution can be overthrown by an amendment and answers yes. But he says that the amendment must not be in violation of the Equality Clause. This seems to be a great concession. He makes this exception but Munro (The Government of the United States (5th Edn.) p. 77), who finds it difficult to conceive of an unamendable constitution suggests that it should be possible to begin with that clause and then the door to amendments ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... endment (revision) for a certain time and that of 1875 prohibited the alteration of the Republican form of Government. He thinks that this hindrance can be removed by a two step amendment. He concludes that the constituent of today cannot bind the nation of tomorrow and no Constitution can prohibit its amendment in all aspects. 197. Of course, the French have experimented with over a dozen Constitutions, all very much alike, while the British have slowly changed their entire structure from a monarchical executive to an executive from Parliament and have reduced the power of the House of Lords. Cambell-Bannerman, former Prime Minister of England summed up the difference to Ambassador M. de Fleurian thus : ".....Quand nous faisons une Revolution, nous ne detruisons pas notre maison, nous en conservons avec soin la facade, et, derriere cette facade, nous reconstruisons une nouvelle maison. Vous, Francais, agissez autrement; vous jetez bas le vieil edifice et vous reconstruisez la meme maison avec une autre facade et sous un nom different". (When we make a Revolution we do not destroy an house, we save with care the facade and behind construct a new house. You, Frenchmen, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amendments to go. This is true of all amendments but particularly of an amendment seeking to repeal the courts' decision and being small in dimension, leaves the courts free to consider its validity. The courts derive the power from the existing terms of the Constitution and the amendment fails if it seeks to overbear some existing restriction on legislation. 200. What I have said does not mean that Fundamental Rights are not subject to change or modification. In the most inalienable of such rights a distinction must be made between possession of a right and its exercise. The first is fixed and the latter controlled by justice and necessity. Take for example Art. 21 : "No person shall be deprived of his life or personal liberty except according to procedure established by law". 201. Of all the rights, the right to one's life is the most valuable. This article of the Constitution, therefore, makes the right fundamental. But the inalienable right is curtailed by a murderer's conduct as viewed under law. The deprivation, when it takes place, is not of the right which was immutable but of the continued exercise of the right. Take a Directive Principle which is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bringing Art. 32 under the Proviso to improve protection to the Fundamental Rights. Article 32 does not stand in need of this protection. To abridge or take away that article (and the same is true of all other Fundamental Rights) a constituent body and not a constituted body is required. Parliament today is a constituted body with powers of legislation which include amendments of the Constitution by a special majority but only so far as Art. 13(2) allows. To bring into existence a constituent body is not impossible as I had ventured to suggest during the hearing and which I have now more fully explained here. It may be said that this is not necessary because Art. 368 can be amended by Parliament to confer on itself constituent powers over the Fundamental Rights. This would be wrong and against Art. 13(2). Parliament cannot increase its powers in this way and do indirectly which it is intended not to do directly. The State does not lose its sovereignty but as it has chosen to create self-imposed restrictions through one constituent body, those restrictions cannot be ignored by a constituted body which makes laws. Laws so made can affect those parts of the Constitution which are outs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd opportunity" (vide the Preamble) and the Directive Principles include Art. 38 which provides : "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". 205. To remove the effect of centuries of discriminatory treatment and to raise the down-trodden to an equal status cannot be regarded as discriminatory against any one. It is no doubt true that in State of Madras v. Champakam: [1951] 2 SCR 525, the reservation of seats for Backward Classes, Scheduled Castes and Tribes in public educational institutions was considered invalid. Articles 16(4) and 340 had already provided for special treatment for these backward classes and Art. 46 had provided that the State shall promote with special care their educational and economic interests. With all due respects the question of discrimination hardly arose because in view of these provisions any reasonable attempt to raise the status of the backward classes could have been upheld on the principle of classification. In any event, the inclusion of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amendment was within the permissible limits as it did not abridge or take away any Fundamental Right. 208. The Amending Act passed by Parliament also included a sub-section which read : "(2) No law in force in the territory of India immediately before the commencement of the Constitution which is consistent with the provisions of article 19 of the Constitution as amended by sub-section (1) of this section shall be deemed to be void, or ever to have become void, on the ground only that, being a law which takes away or abridges the right conferred by sub-clause (a) of clause (1) of the said article, its operation was not saved by clause (2) of that article as originally enacted. Explanation. - In this sub-section, the expression "law in force" has the same meaning as in clause (1) of article 13 of this Constitution". 209. This sub-section was not included in the Constitution. That device was followed in respect of certain State statutes dealing with property rights by including them in a new Schedule. It did not then occur to Parliament that the laws could be placed under a special umbrella of constitutional protection. Perhaps it was not considered necessar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to make laws imposing, in the interests of the general public, reasonable restrictions on the exercise of the right conferred by the sub-clause. A law creating restrictions can, of course, be made outside the Constitution or inside it. If it was considered that this right in the state was required in the interests of the general public, then the exercise of the right to practise profession or to carry on an occupation, trade or business could be suitably curtailed. It cannot be said that nationalisation is never in the interest of he general public. This amendment was thus within the provision for restricting the exercise of the Fundamental Right in sub-clause (g) and was perfectly in order. 212. The Seventh Amendment introduced certain words in Art. 16(3). The clauses may be compared : "16. . . . . (3) (Before Amendment) Nothing in this article shall prevent Parliament from making any law prescribing, in regard to a class or classes of employment or appointment to an office under any State specified in the First Schedule or any local or other authority within its territory, any requirement as to residence within the State prior to such employment or appointment. (Aft ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his Constitution, the law so assented to shall not be called in question in any court on the ground that t contravenes the provisions of clause (2). (5) Nothing in clause (2) shall affect - (a) the provisions of any existing law other than a law to which the provisions of clause (a) apply, or (b) the provisions of any law which the State may hereafter make - (i) for the purpose of imposing or levying any tax or penalty, or (ii) for the promotion of public health or the prevention of danger to life or property, or (iii) in pursuance of any agreement entered into between the Government of the Dominion of India or the Government of India and the Government of any other country, or otherwise, with respect to property declared by law to be evacuee property. (6) Any law of the State enacted nor more than eighteen months before the commencement of this Constitution may within three months from such commencement be submitted to the President for his certification; and thereupon, if the President by public notification no certifies, it shall not be called in question in any court on the ground that it contravenes the provisions of clause (2) of this article or has contravened ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he legal personality of the Individual was separated from his membership of the State. It was then that the State began to recognize the rights of the Individual in his dealings with the State. It was Cicero (De Off. (The Offices) II Ch. XXI (Everyman) p.105), who was the first to declare that the primary duty of the Governor of a State was to secure to each individual in the possession of his property. Here we may see recognition of the ownership of property as a Fundamental Right. This idea was so engrained in early social philosophy that we find Locke opening in his 'Civil Government' (Ch. 7) that "Government has no other end but the preservation of property". The Concepts of liberty, equality and religious freedom were well-known. To them was added the concept of property rights. Later the list included :equalitas, libertas ius securitatis, ius defensionis and ius puniendi. The concept of property right gained further support from Bentham and Spencer and Kant and Hegel (W. Friedman : Legal Theory (4th Edn.) See pp. 373-376). The term property in its pristine meaning embraced only land but it soon came to mean much more. According to Noyes (The Institution of P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce. As the notion of a State grew, the right of property was strong or weak according to the force of political opinion backing it or the legislative support of the State. The English considered the right as the foundation of society. Blackstone (Commentaries) explained it on religious and social grounds claiming universality for it and called it the right of the English people. William Paley (Moral Philosophy), although he thought the institution paradoxical and unnatural, found it full of advantages and Mackintosh in his famous diatribe against the French Revolution described it as the "sheet-anchor of society". This institution appeared in the Magna Carta, in the American Declaration of Independence and the French Declaration of Rights of Man. Later we find it in many Constitutions described as Fundamental, general and guaranteed (Under the Constitution of Norway the rights (Odels and Asaete rights) cannot be abolished but if the State requires the owner must surrender the property and he is compensated). 221. Our Constitution accepted the theory that Right of Property is a fundamental right. In my opinion it was an error to place it in that category. Like the origina ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 22. What was then the theory about Right to Property accepted by the Constituent Assembly ? Again I can only describe it historically. Grotius (1) had treated the right as an acquired right (ius quaesitum) and ownership (dominium) as either serving individual interests (vulgare) or for the public good (eminens). According to him, the acquired right had to give way to eminent domain (ex vi auper-eminentis domini) but there must be public interest (publicautilitas) and if possible compensation. In the social contract theory also the contract included protection of property with recognition of the power of the rule to act in the public interest and emergency. Our constitutional theory treated property rights as inviolable except through law for public good and on payment of compensation. Our Constitution saw the matter in the way of Grotius but overlooked the possibility that just compensation may not be possible. It follows almost literally the German jurist Ulrich Zasius (except in one respect) : Princeps non potest auferee mihi rem mean sive iure gentium, sive civile sit facta mea. 223. All would have been well if the Courts had construed Article 31 differently. However, the decis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... certain Acts and Regulations. 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 provision of this Part, and notwithstanding any judgment, decree or order of any court or tribunal to the contrary, each of the said Acts and Regulations shall, subject to the power of any competent Legislature to repeal or amend it, continue in force". 224. Article 31-A has been a Protean article. It has changed its face many times. Article 31-B has remained the same till today but the Ninth Schedule has grown. The Constitution (Fourth Amendment) Act, 1955, took the number of the Scheduled statutes to 20 and the Constitution (Seventeenth Amendment) Act, 1964 to 64 and a so-called explanation which saved the application of the Proviso in Art. 31-A, was also added. The device [approved by Sankari Prasad's case: [1952] 1 SCR 89 ], was found so attractive that many more Acts w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 13(2) and Art. 31 could not be ignored. 226. In 1954 the Supreme Court in a series of cases drew the distinction between Art. 19(1)(f) and Art. 31, particularly in West Bengal v. Subodh Gopal: [1954] 1 SCR 587, Dwarkadas Srinivas v. Sholapur Spinning Co.: [1954] 1 SCR 558. In State of West Bengal v. Mrs. Bela Banerjee and Others [1954] S.C.R. 678, this Court held that compensation in Art. 31(2) meant just equivalent, i.e. 'full and fair money equivalent' thus making the adequacy of compensation justiciable. 227. The Constitution (Fourth Amendment) Act, 1955 then amended both Art. 31 and Art. 31-A. Clause (2) of Art. 31 was substituted by - "(2) No property shall be compulsorily acquired or requisitioned save for public purpose and save by authority of a law which provides for compensation for the property so acquired or requisitioned 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; 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". 228. The opening words of the former s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot;(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) amalgamation of two or more corporations either in the public interest or in order to secure the proper management of any of the corporation, 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 of 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 licence, shall be deemed to be void on the ground that it is inconsistent with, or takes away or abridges any of the rights conferred by Art. 14, article 19 or article 31 : P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . This recognition may be voluntary or forced where people have lost liberty of speech. But the acquiescence of the people is necessary for the working of the Constitution. The examples of our neighbours, of Germany, of Rhodesia and others illustrates the recognition of Constitutions by acquiescence. It is obvious that it is good sense and sound policy for the Courts to decline to take up an amendment for consideration after a considerable lapse of time when it was not challenged before, or was sustained on an earlier occasion after challenge. 233. It is necessary to pause here and see what the property rights have become under the repeated and retrospective amendments of the Constitution. I have already said that the Constitution started with the concept of which Grotius may be said to be the author, although his name is not particularly famous for theories of constitutional or municipal laws. The socialistic tendencies which the amendments now manifest take into consideration some later theories about the institution of property. When the original Art. 31 was moved by Pandit Jawaharlal Nehru, he had described it as a compromise between various approaches to the question and said ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... distributed among the landless. It seems that as the Constitutions of Peru, Brazil, Poland, Latvia, Lethuania and Mexico contain provisions for such reforms, mainly without payment of compensation, our Parliament has taken the same road. Of course, the modern theory regards the institution of property on a functional basis (See G. W. Paton : Text Book of Jurisprudence (1964) pp. 484-485), which means that property to be productive must be properly distributed. As many writers have said property is now a duty more than a right and ownership of property entails a social obligation. Although Duguit (Transformations du droit prive), who is ahead of others, things that the institution of property has undergone a revolution, the rights of the Individual are not quite gone, except where Communism is firmly entrenched. The rights are qualified but property belongs still to the owner. The Seventeenth Amendment, however, seems to take us far away from even this qualified concept, at least in so far as "estates" as defined by Art. 31-A. This is the culmination of a process. 236. Previous to the Constitution (Seventeenth Amendment) Act the Constitution (Seventh Amendment) Act, 1956 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Explanation at the end of the Ninth Schedule, in respect of the Rajasthan Tenancy Act, 1955. By this Explanation the provisions of this Tenancy Act in conflict with the proviso last quoted are declared to be void. 240. The sum total of this amendment is that except for land within ceiling, all other land can be acquired or rights therein extinguished or modified without compensation and no challenge to the law can be made under Arts. 14, 19 or 31 of the Constitution. The same is also true of 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 the amalgamation of two or more companies, or the extinguishment or modification of any rights of managing agents, secretaries, treasurers, managing directors, directors or managers, of corporations or of any voting right, of shareholders thereof or of any rights by virtue of any agreement, lease, or licence for the purpose of searching for, or winning, any mineral or mineral oil, or of the premature termination or cancellation of any such agreement, lease or licence. 241. It will be noticed further that deprivation o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t took fifty-eight years for the words of Harlan, J.'s lone dissent (8 to 1) to become the law of the United States at least in respect of segregation in the public schools [see Brown v. Board of Education [1954] 347 U.S. 483]. As Mark Twain said very truly - "Loyalty to a petrified opinion never yet broke a chain or freed a human soul." 243. I am apprehensive that the erosion of the right to property may be practised against other Fundamental Rights. If a halt is to be called, we must declare the right of Parliament to abridge or take away Fundamental Rights. Small inroads lead to larger inroads and become as habitual as before our freedom was won. The history of freedom is not only how freedom is achieved but how it is preserved. I am of opinion that an attempt to abridge or take away Fundamental Rights by a constituted Parliament even through an amendment of the Constitution can be declared void. This Court has the power and jurisdiction to make the declaration. I dissent from the opposite view expressed in Sajjan Singh's: [1965] 1 SCR 933 case and I overrule that decision. 244. It remains to consider what is the extent of contravention. Here I must make it c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... istence of Art. 31-A(1)(a) as already amended. The constitutional amendment is a law and Art. 31(1) permits the deprivation of property by authority of law. The law may be made outside the Constitution or within it. The word 'law' in this clause includes both ordinary law or an amendment of the Constitution. Since "no law providing for the acquisition by the State of any estate or of any rights therein or 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 Art. 14, Art. 19 or Art. 31", the Seventeenth Amendment when it gives a new definition of the word 'estate' cannot be questioned by reason of the Constitution as it exists. The new definition of estate introduced by the amendment is beyond the reach of the courts not because it is not law but because it is "law" and falls within that word in Art. 31(1)(2-A) and Art. 31-A(1). I, therefore, sustain the new definition, not on the erroneous reasoning in Sajjan Singh's case: [1965] 1 SCR 933, but on the true construction of the word 'law' as used in Arts. 13(2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d strictly, results in the amendment of the Constitution. The article gives power to no particular person or persons. All the named authorities have to act according to the letter of the article to achieve the result. 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 in Schedule 7 of the Constitution. It does not have to depend upon any entry in the lists. 249. Ordinarily there would be no limit to the extent of the amendatory legislation but the Constitution itself makes distinctions. It states three methods and places certain bars. For some amendments an ordinary majority is sufficient; for some others a 2/3rd majority of the members present and voting with a majority of the total members, in each House is necessary; and for some others in addition to the second requirement, ratification by at least one half of the legislatures of the States must be forthcoming. Besides these methods, Art. 13(2) puts an embargo on the legislative power of the State and consequently upon the agencies of the State. By its means the boundaries of legislative action of any kind including legislation to amend the Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or a Constituent Assembly acting on their behalf, has authority to enact a Constitution and by the same token a portion of the Constitution placed outside the amendatory process by one Constituent body can only be amended by another Constituent body. In the Commonwealth of Australia Act the provisions of the last paragraph of s. 128 have been regarded as mandatory and held to be clear limitations of the power of amendment. Dr. Jethro Brown considered that the amendment of the paragraph was logically impossible even by a two step amendment. Similarly, s. 105-A has been judicially considered in the Garnishee case 46 C.L.R. 155 to be an exception to the power of amendment in s. 128 although Wynes (Legislative, Executive and Judicial Powers in Australia pp. 695-698), does not agree. I prefer the judicial view to that of Wynes. The same position obtains under our Constitution in Art. 35 where the opening words are more than a non-obstante clause. They exclude Art. 368 and even amendment of that article under the proviso. It is, therefore, a grave error to think of Art. 368 as a code or as omnicompetent. It is the duty of this Court to find the limits which the Constitution has set on t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rictions. The Acts are attacked also on the ground that they made changes in Arts. 226 and 245 and such changes could not be made without complying with the proviso to art. 368. Article 31-B is subjected to attack on several other grounds. 255. The constitutionality of the First Amendment was upheld in Sri Sankari Prasad Singh Deo v. Union of India and State of Bihar: [1952] 1 SCR 89 , and that of the Seventeenth amendment, in Sajjan Singh v. State of Rajasthan: [1965] 1 SCR 933 . The contention is that these cases were wrongly decided. 256. Part XX of the Constitution specifically provides for its amendment. It consists of a single article. Part XX is as follows :- "PART XX. Amendment of the Constitution Procedure for amendment of the Constitution 368. An amendment of this Constitution may be initiated only by the introduction of a Bill for the purpose in either House of Parliament, and when the Bill is passed in each House by a majority of the total membership of that House and by a majority of not less than two-thirds of the members of that House present and voting, it shall be presented to the President for his assent and upon such assent being given to the Bill, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (3), 210(2) and some continue save as otherwise provided by law [see articles 239(1), 287]. Some articles are subject to the provisions of any law to be made [see articles 137, 146(2), 225, 229(2), 241(3), 300(1), 309], and some are expressed not to derogate from the power of making laws [see articles 5 to 11, 289(2)]. All these articles are transitory in nature and cease to operate when provision is made by law on the subject. None of them can be regarded as conferring the power of amendment of the Constitution. Most of these articles continue until provision is made by law made by the Parliament. But some of them continue until or unless provision is made by the State Legislature (see articles 189(3), 194(3), 195, 210(2), 229(2), 300(1), 345) or by the appropriate legislature (see articles 225, 241(3); these articles do not confer a power of amendment, for the State legislature cannot amend the Constitution. Many of the above-mentioned articles and also other articles (see articles 22(7), 32(3), 33 to 35, 139, 140, 239A, 241, 245 to 250, 252, 253, 258(2), 286(2), 302, 307, 315(2), 327, 369 delegate powers of making laws to the legislature. None of these articles gives the power o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot;. 263. Article 5 of the United States Constitution provides that a proposal for amendment of the Constitution by the Congress on being ratified by three-fourths of the States "shall be valid to all intents and purposes as part of this Constitution". The accepted view is that "power to amend the Constitution was reserved by article 5" per Van Devanter, J. in Rhode Island v. Palmer 253 U.S. 350 : 64 L.E.D. 946. Art. 368 uses stronger words. On the passing of the bill for amendment under art. 368, "the Constitution shall stand amended in accordance with the terms of the bill". 264. Article 368 gives the power of amending "this Constitution". This Constitution means any of the provisions of the Constitution. No limitation on the amending power can be gathered from the language of this article. Unless this power is restricted by some other provision of the Constitution, each and every part of the Constitution may be amended under art. 368. All the articles mentioned in the proviso are necessarily within this amending power. From time to time major amendments have been made in the articles mentioned in the proviso (see articles 80 to 82, 124(2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sic law providing the framework of government and creating the organs for the marking of the laws. The distinction between the Constitution and the laws is so fundamental that the Constitution is not regarded as a law or a legislative act. The Constitution means the Constitution as amended. An amendment in conformity with art. 368 is a part of the Constitution and is likewise not a law. 270. The basic theory of our Constitution is that it cannot be changed by a law or legislative Act. It is because special provision is made by articles 4, 169, Fifth Schedule Part D and Sixth Schedule para 21 that some parts of the Constitution are amendable by ordinary laws. But by express provision no such law is deemed to be a constitutional amendment. Save as expressly provided in articles 4, 169, Fifth Schedule Part D and Sixth Schedule para 21, no law can amend the Constitution, and a law which purports to make such an amendment is void. 271. In Marbury v. Madison [1803] 1 Cra : 2 L. Ed. 60, Marshall, C.J., said : "It is a proposition too plain to be contested, that the Constitution controls any legislative Act repugnant to it; or, that the legislature may alter the Constitution by an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e terms of the bill. The ordinary legislative process is much easier. A bill initiating a law may be passed by a majority of the members present and voting at a sitting of each House or at a joint sitting of the Houses, the quorum for the meeting of either House being one tenth of the total number of members of the House. The bill so passed on being assented to by the President becomes a law. A bill though passed by all the members of both Houses cannot take effect as a Constitution amendment Act unless it is initiated for the express purpose of amending the Constitution. 275. The essence of a written Constitution is that it cannot be changed by an ordinary law. But most written Constitutions provide for their organic growth by constitutional amendments. The main method of constitutional amendments are (1) by the ordinary legislature but under certain restrictions, (2) by the people through a referendum, (3) by a majority of all the units of a Federal State; (4) by a special convocation see C.F. Strong Modern Political Institutions, 5th Edition, pp. 133-4, 146. Our Constitution has by article 368 chosen the first and a combination of the first and the third methods. 276. The spec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and many other articles, but on its true construction it gives the power of amending each and every provision of the Constitution and necessarily takes in Part III. Moreover, art. 368 gives the power of amending itself, and if express power for amending the provisions of Part III were needed, such a power could be taken by an amendment of the article. 281. It is said that the non-obstante clause in art. 35 shows that the article is not amendable. No one has amended art. 35 and the point does not arise. Moreover, the non-obstante clause is to be found in articles 258(1), 364, 369, 370 and 371A. No one has suggested that these articles are not amendable. 282. The next contention is that there are implied limitations on the amending power. It is said that apart from art. 13(2) there are expressions in Part III. which indicate that the amending power cannot touch Part III. Part III is headed "fundamental rights". The right to move the Supreme Court for enforcement of the rights conferred by this Part is guaranteed by art. 32 and cannot be suspended except as otherwise provided for by the Constitution -(art. 32(4)). It is said that the terms "fundamental" and &quo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the few but shall be distributed so as to subserve the common good, and there shall be adequate means of livelihood for all and equal pay for equal work. The State shall endeavour to secure the health and strength of workers, the right to work, to education and to assistance in cases of want, just and humane conditions of work, a living wage for workers, a uniform civil code, free and compulsory education for children. The State shall take steps to organize village panchayats, promote the educational and economic interests of the weaker sections of the people, raise the level of nutrition and standard of living, improve public health, organize agricultural and animal husbandry separate the judiciary from executive and promote international peace and security. 284. The active obligations of the State under Part IV are not justiciable. If a law made by the state in accordance with the fundamental directives of Part IV comes in conflict with the fundamental rights embodied in Part III, the law to the extent of repugnancy is void. Soon after the Constitution came into force, it became apparent that laws for agrarian and other reforms for implementing the directives of Part IV were lia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d art. 31A, 31B and the Ninth Schedule with a view to give effect to the policy of agrarian reforms, to secure distribution of large blocks of land in the hands of the zamindars in conformity with art. 39, and to immunize specially 13 State Acts form attack under Part III. The validity of the First Amendment was upheld in Sri Sankari Prasad Singh Deo's case: [1952] 1 SCR 89. The Fourth amendment changed art. 31(2) with a view to supersede the decision in State of West Bengal v. Bela Banerjee: [1954]1SCR558 and to provide that the adequacy of compensation for property compulsorily acquired would not be justiciable, inserted Clause (2A) in art. 31 with a view to supersede the decisions in the State of West Bengal v. Subodh Gopal Bose: [1954] 1 SCR 587, Dwarka Das Shrinivas v. Sholapur Spinning and Weaving Co., Ltd.,: [1954] 1 SCR 674 , Saghir Ahmad v. The State of Uttar Pradesh [1954] S.C.R. 1218, and to make it clear that clauses (1) and (2) of art. 31 relate to different subject-matters and deprivation of property short of transference of ownership or with to possession to the State should not be treated as compulsory acquisition of property. The Fourth amendment also amended a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd on a higher footing. The objective of the preamble is secured not only by Part III but also by Part IV and art. 368. The dynamic character of Part IV may require drastic amendments of Part III by recourse to art. 368. Moreover the preamble cannot control the unambiguous language of the articles of the Constitution, see Wynes, Legislative Executive and Judicial Powers in Australia, third edition, pp. 694-5; in Re Berubari Union & exchange of Enclaves: [1960] 3 SCR 250. The last case decided that the Parliament can under art. 368 amend art. 1 of the Constitution so as to enable the cession of a part of the national territory to a foreign power. The Court brushed aside the argument that "in the transfer of the areas of Berubari to Pakistan the fundamental rights of thousands of persons are involved". The case is an authority for the proposition that the Parliament can lawfully make a constitutional amendment under art. 368 authorising cession of a part of the national territory and thereby destroying the fundamental rights of the citizens of the affected territory, and this power under art. 368 is not limited by the preamble. 287. It is next argued that the people of Ind ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the Constitution. In the exercise of the amending power the Parliament has ample authority to abridge or take away the fundamental right under Par III. 289. It is urged that the word 'amend' imposes the limitation that an amendment must be an improvement of the Constitution. Reliance is placed on the dictum in Livermore v. E. C. Waite 102 Cal. 113-25 L.R.A. 312 : "On the other hand, the significance of the term 'amendment; implies such an addition or change within the lines of the original instrument as will effect an improvement, or better carry out the purpose for which it was framed". Now an attack on the eighteenth amendment of the U.S. Constitution based on this passage was brushed aside by the U.S. Supreme Court in the decision in the National Prohibition (Rhode Island v. Palmer -(sic) case. The decision totally negatived the contention that "an amendment must be confined in its scope to an alteration or improvement of that which is already contained in the Constitution and cannot change its basic structure, include new grants of power to the federal Government nor relinquish in the State those which already have been granted to it", see Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... country may require more rapid changes. Moreover every part of our Constitutions is more easily amendable than the American. Alan Gledhill in his book "The Republic of India", 1951 Edition, pp. 74 & 75, said : "The Indian Founding Fathers were less determined than were their American predecessors to impose rigidity on their Constitution...... The Indian Constitution assigns different degrees of rigidity to its different parts, but any part of it can be more easily amended than the American Constitution". 293. It is said that the Parliament is abusing its power of amendment by making too many frequent changes. If the Parliament has the power to make the amendments, the choice of making any particular amendment must be left to it. Questions of policy cannot be debated in this Court. The possibility of abuse of a power is not the test of its existence. In Webb v. Outrim [1907] A.C. 81, Lord Hobhouse said, "If they find that on the due construction of the Act a legislative power falls within s. 92, it would be quite wrong of them to deny its existence because by some possibility it may of be abused, or limit the range which otherwise would be open to the Do ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 17, 1949 an amendment (No. 304) moved by Dr. Deshmukh providing for amendment of the Constitution at any time by a clear majority in each house of Parliament was negatived. The Assembly was conscious that future Parliaments elected on the basis of adult suffrage would be more representative, but they took the view that art. 368 provided a sufficiently flexible machinery for amending all parts of the Constitution. The Assembly never entertained the proposal that any part of the Constitution including Part III should be beyond the reach of the amending power. As a matter of fact, Dr. Deshmukh proposed an amendment (No. 212) prohibiting any amendment of the rights with respect to property or otherwise but on September 17, 1949 he withdrew this proposal (see Constituent Assembly Debates Vol. IV pp. 1642-43). 296. The best exposition of the Constitution is that which it has received from contemporaneous judicial decisions and enactments. We find a rare unanimity of view among judges and legislators from the very commencement of the Constitution that the fundamental rights are within the reach of the amending power. No one in the Parliament doubted this proposition when the Constitutio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts under art. 368, and why the amending power cannot be regarded as a constituent power as was held in Sri Sankari Prasad Singh Deo's: [1952] 1 SCR 89 case. 300. The contention that the constitutional amendments of Part III had the effect of changing articles 226 and 245 and could not be passed without complying with the proviso to art. 368 is not tenable. A constitutional amendment which does not profess to amend Art. 226 directly or by inserting or striking words therein cannot be regarded as seeking to make any change in it and thus falling within the constitutional inhibition of the proviso. Art. 226 gives power to the High Court throughout the territories in relation to which it exercises jurisdiction to issue to any person or authority within those territories directions, orders and writs for the enforcement of any of the rights conferred by Part III and for any other purpose. The Seventeenth Amendment made no direct change in Art. 226. It made changes in Part III and abridged or took away some of the rights conferred by that Part. As a result of the changes, some of those rights no longer exist and as the High Court cannot issue writs for the enforcement of those rights ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 303. 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. 304. 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 b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gh rejected by six states, including Maryland, has been recognized and acted on 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". 308. Moreover the Seventeenth amendment has been acted upon and its validity has been upheld by this Court in Sajjan Singh's case. If the First and the Fourth Amendments are vandated by acquiescence, the Seventeenth is equally validated. 309. Before concluding this judgment I must refer to some of the speeches made by the members of the Constituent Assembly in the course of debates on the draft Constitution. These speeches cannot be used as aids for interpreting the Constitution. See State of Travancore-Cochin and others v. The Bombay Co. Ltd.: [1952] 1 SCR 1112 . Accordingly, I do not rely on the, as aids to construction. But I propose to refer to them as Shri A. K. Sen relied heavily on the speeches of Dr. B. R. Ambedkar. According to him, the speeches of Dr. Ambedkar show that he did not regard the fundamental rights as amendable. This contention is not supported by the spe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the Indian Federation will not suffer from the faults of rigidity or legalism. Its distinguishing feature is that it is a flexible Federation. The provisions relating to amendment of the Constitution have come in for a virulent attack at the hands of the critics of the Draft Constitution. It is said that the provisions contained in the Draft make amendment difficult. It is proposed that the Constitution should be amendable by a simple majority at least for some years. The argument is subtle and ingenious. It is said that this Constituent Assembly is not elected on adult suffrage while the future Parliament will be elected on adult suffrage and yet the former has been given the right to pass the Constitution by a simple majority while the latter has been denied the same right. it is paraded as one of the absurdities of the Draft Constitution. I must repudiate the charge because it is without foundation. To know how simple are the provisions of the Draft Constitution in respect of amending the Constitution one has only to study the provisions for amendment contained in the American and Australian Constitutions. Compared to them those contained in the Draft Constitution will b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tary provision against the abuses of a monarch, but is most absurd against the nation itself. Yet our lawyers 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. I admit that what Jefferson has said is not merely true, but is absolutely true. There can be no question about it. Had the Constituent Assembly departed from this principle laid down by Jefferson it would certainly be liable to blame, even to condemnation. But I ask, has it ? Quite the contrary. One has only to examine the provision relating to the amendment of the Constitution. The Assembly has not only refrained from putting a seal of finality and infallibility upon this 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 of Australia but has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or control those who are to live a hundred or a thousand years hence. Every generation is, and must be, competent to all the purposes which its occasions require. It is the living, and not the dead, that are to be accommodated. When man ceases to be, his power and his wants cease with him; and having no longer any participation in the concerns of this world, he has no longer any authority in directing who shall be its governors, or how its government shall be organized, or how administered". (See 'Rights of Man' by Thomas Paine, unabridged edition by H. B. Bonner, pp. 3 & 4). 315. For the reasons given above, I agree with Wanchoo, J. that the writ petitions must be dismissed. 316. In the result, the writ petitions are dismissed without costs. Vaidynathier Ramaswami, J. 317. I have perused the judgment of my learned Brother Wanchoo, J. and I agree with his conclusion that the Constitution (Seventeenth Amendment) Act, 1964 is legally valid, but in view of the importance of the constitutional issues raised in this case I would prefer to state my own reasons in a separate judgment. 318. In these petitions which have been filed under Art. 32 of the Constitution a comm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fect of the provisions contained in Art. 368 of the Constitution, because the main controversy in the present applications turns upon the decision of the question as to what is the construction of that Article. Article 368 reads as follows : "An amendment of this Constitution may be initiated only by the introduction of a Bill for the purpose in either House of Parliament, and when the Bill is passed in each house by a majority of the total membership of that House and by a majority of not less than two-thirds of the members of that House present and voting, it shall be presented to the President for his assent and upon such assent being given to the Bill, the Constitution shall stand amended in accordance with the terms of the Bill. Provided that if such amendment seeks to make any change in - (a) Article 5, article 55, article 73, article 162 or article 241, or (b) Chapter IV of Part V, Chapter V of Part VI, or Chapter I of Part XI, or (c) any of the Lists in the Seventh Schedule, or (d) the representation of States in Parliament, or (e) the provisions of this article, the amendment shall also require to be ratified by the Legislatures of not less than one-half ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... legislative measures adopted in that behalf immunity from a possible attack that they contravened the fundamental rights of citizens. In other words, the amendment protected the legislative measures in respect of certain other items of agrarian and social welfare legislation, which affected the proprietary rights of certain citizens. At the time when the first amendment was made, Art. 31-B expressly provided that none of the Acts and Regulations specified in the 9th Schedule, nor any of the provisions thereof, shall be deemed to be void or ever to have become void on the ground that they were inconsistent with or took away or abridged any of the rights conferred by Part III, and it added that notwithstanding any judgment, decree or order of any Court or tribunal to the contrary, each of the said Acts and Regulations shall subject to the power of any competent legislature to repeal or amend, continue in force. At this time, 19 Acts were listed in Schedule 9, and they were thus effectively validated. One more Act was added to this list by the Amendment Act of 1955, so that as a result of the second amendment, the Schedule contained 20 Acts which were validated. 325. It appears that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ower to amend the Constitution, and so, its validity will have to be tested by Art. 13(2) itself. It was contended that "the State" includes Parliament within Art. 12 and "law" must include a constitutional amendment. It was said that it was the deliberate intention of the framers of the Constitution, who realised the sanctity of the fundamental rights conferred by Part III, to make them immune from interference not only by ordinary laws passed by the legislatures in the country but also from constitutional amendments. In my opinion, there is no substance in this argument. Although "law" must ordinarily include constitutional law, there is a juristic distinction between ordinary law made in exercise of legislative power and constitutional law which is made in exercise of constituent power. In a written, federal form of Constitution there is a clear and well-known distinction between the law of the Constitution and ordinary law made by the legislature on the basis of separation of powers and pursuant to the power of law-making conferred by the Constitution (See Dicey on 'Law of the Constitution', Tenth Edn. p. 110, Jennings, 'Law and the Con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by Part III. But the expression "fundamental" in the phrase "Fundamental Rights" means that such rights are fundamental vis-a-vis the laws of the legislatures and the acts of the executive authorities mentioned in Art. 12. It cannot be suggested that the expression "fundamental" lifts the fundamental rights above the Constitution itself. Similarly, the expression "guaranteed" in Art. 32(1) and 32(4) means that the right to move the Supreme Court for enforcement of fundamental rights without exhausting the normal channels through the High Courts or the lower courts is guaranteed. This expression also does not place the fundamental rights above the Constitution. 328. I proceed to consider the next question arising in this case, viz., the scope of the amending power under Art. 368 of the Constitution. It is contended on behalf of the petitioners that Art. 368 merely lays down the procedure for amendment and does not vest the amending power as such in any agency constituted under that article. I am unable to accept this argument as correct. Part XX of the Constitution which contains only Art. 368 is described as a Part dealing with the Amendmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the Concurrent List or State List. But the power of law-making in Arts. 246 and 248 is "subject to the provisions of this Constitution". It is apparent that the power of constitutional amendment cannot fall within these Articles, because it is illogical and a contradiction in terms to say that the amending power can be exercised and at the same time it is "subject to the provisions of the Constitution". 330. It was then submitted on behalf of the petitioners that the amending power under Art. 368 is subject to the doctrine of implied limitations. In other words, it was contended that even if Art. 368 confers the power of amendment, it was not a general but restricted power confined only to the amendable provisions of the Constitution, the amendability of such provision being determined by the nature and character of the respective provision. It was argued, for instance, that the amending power cannot be used to abolish the compact of the Union or to destroy the democratic character of the Constitution guaranteeing individual and minority rights. It was said that the Constitution was a permanent compact of the States, that the federal character of the States ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecause of the limitation imposed but he preamble to the Constitution and that such an agreement could not be implemented by a referendum. The argument was rejected by this Court and it was held that the preamble could not, in any way, limit the power of Parliament to cede parts of the national territory. On behalf of the petitioners the argument was stressed that the chapter on fundamental rights was the basic feature of the Constitution and cannot be the subject of the amending power under Art. 368. It was argued that the freedoms of democratic life are secured by the chapter on fundamental rights and the dignity of the individual cannot be preserved if any of the fundamental rights is altered or diminished. It is not possible to accept this argument as correct. The concepts of liberty and equality are changing and dynamic and hence the notion of permanency or immutability cannot be attached to any of the fundamental rights. The Directive Principles of Part IV are as fundamental as the constitutional rights embodied in Part III and Art. 37 imposes a constitutional duty upon the States to apply these principles in making laws. Reference should in particular be made to Art. 39(b) wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o long as there is inequality, it is argued, there cannot be liberty. The historic inevitability of this evolution was seen a century ago by de Tocqueville. It is interesting to compare his insistence that the democratization of political power meant equality and that its absence would be regarded by the masses as oppression with the argument of Lord Action that liberty and equality are antitheses. To the latter liberty was essentially an autocratic ideal; democracy destroyed individuality, which was the very pith of liberty, by seeking identity of conditions. The modern emphasis is rather toward the principle that material equality is growing inescapable and that the affirmation of personality must be effective upon an immaterial plane. It is found that doing as once likes, subject only to the demands of peace, is incompatible with either international or municipal necessities. we pass from contract to relation, as we have passed from status to contract. Men are so involved in intricate networks of relations that the place for their liberty is in a sphere where their behavior does not impinge upon that self-affirmation of others which is liberty". (Encyclopaedia of the Soc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s which are the basis of cls. (2) to (6), may change and may even expand. As Holmes, J. has said in Abrams v. United States 250 U.S. 616 : "the Constitution is an experiment, as all life is an experiment". It is therefore legitimate to assume that the Constitution-makers intended that Parliament should be competent to make amendments in these rights so as to meet the challenge of the problems which may arise in the course of socio-economic progress and development of the country. I find it therefore difficult to accept the argument of the petitioners that the Constitution-makers contemplated that fundamental rights enshrined in Part III were finally and immutably settled and determined once and for all and these rights are beyond the ambit of any future amendment. Today at a time when absolutes are discredited, it must not be too readily assumed that there are basic features of the Constitution which shackle the amending power and which take precedence over the general welfare of the nation and the need for agrarian and social reform. 333. In construing Art. 368 it is moreover essential to remember the nature and subject-matter of that Article and to interpret it subject ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... new grant of power nor be in the form of legislation, nor change "our dual form of government nor change the protection of the Bill of Rights, nor make any other change in the Constitution". James G. Randall also enunciates the proposition that when a constitutional amendment is adopted "it is done not by the 'general government', but by the supreme sovereign power of the nation i.e., the people, acting through State Legislatures or State conventions" and that "the amending power is equivalent to the Constitution-making power and is wholly above the authority of the Federal Government" - ('Constitutional Problems Under Lincoln', p. 395). The legal position is summarised by Burdick at page 48 of his treaties "The Law of the American constitution" as follows : "The result of the National Prohibition Cases 253 U.S. 350 seems to be that there is no limit to the power to amend the Constitution except that a State may not without its consent be deprived of its equal suffrage in the Senate. To put the case most extremely, this means that by action of two-thirds of both Houses of Congress and of the legislatures in three-fourt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mit the dismemberment of India but preserved the integrity of the territory of India. the argument was rejected by this Court and it was held that Parliament acting under Art. 368 can make a law to give effect to and implement the Agreement in question or to pass a law amending Art. 3 so as to cover cases of cession of the territory of India and thereafter make a law under the amended Art. 3 to implement the Agreement. 338. There is also another aspect of the matter to be taken into account. If the fundamental rights are unamendable and if Art. 368 does not include any such power it follows that the amendment of, say, Art. 31 by insertion of Arts. 31-A and 31-B can only be made by a violent revolution. It was suggested for the petitioners that an alteration of fundamental rights could be made by convening a new Constituent Assembly outside the frame-work of the present Constituent, but it is doubtful if the proceedings of the new Constituent Assembly will have any legal validity, for the reason is that if the Constitution provides its own method of amendment, any other method of amendment of the Constitution will be unconstitutional and void. For instance, in George S. Hawke v. Ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amended by the majority of two-thirds of the members of Parliament but Art. 226 cannot be amended unless there was ratification of the legislatures of not less than half of the States. It was pointed out that Arts. 54 and 55 were more difficult to amend but not Art. 52. Similarly, Art. 162 required ratification of the Sates but not Art. 163 which related to the Council of Ministers to aid and advise the Governor in the exercise of his functions. In my opinion the argument proceeds on a misconception. The scheme of Art. 368 is not to divide the Articles of the Constitution into two categories, viz., important and not so important Article. It was contemplated by the Constitution-makers that the amending power in the main part of Art. 368 should extend to each and every article of the Constitution but in the case of such articles which related to the federal principles or the relation of the States with the Union, the ratification of the legislatures of at least half the States should be obtained for any amendment. It was also contended that if Art. 368 was construed without any implied limitation the amending power under that Article could be used for subverting the Constitution. Bo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and and that legislation in respect of land falls within the jurisdiction of State legislatures under Entry 18 of List II, and the argument was that since the State Legislatures alone can make laws in respect of land, Parliament had no right to pass the impugned Act. The argument was based on the assumption that the impugned Act purports to be, and in fact is, a piece of land legislation. It was urged that the scheme of Arts. 245 and 246 of the Constitution clearly shows that Parliament has no right to make a law in respect of land, and since the impugned Act is a legislative measure in relation to land, it is invalid. In my opinion, the argument is based upon a misconception. What the impugned Act purports to do is not to make any land legislation but to protect and validate the legislative measures in respect of agrarian reforms passed by the different State Legislatures in the country by granting them immunity from attack based on the plea that they contravene fundamental rights. The impugned Act was passed by Parliament in exercise of the amending power conferred by Art. 368 and it is impossible to accept the argument that the constitutional power of amendment can be fettered b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... longer intervene, not because their jurisdiction or powers have been curtailed in any manner or to any extent, but because there would be no occasion hereafter for the exercise of their power in such cases. As I have already said, the effect of the impugned Act on the jurisdiction of the High Courts under Art. 226 of the Constitution is not direct but only incidental in character and therefore the contention of the petitioners on this point against the validity of the impugned Act must be rejected. 343. It is well-settled that in examining a constitutional question of this character, it is legitimate to consider whether the impugned legislation is a legislation directly in respect of the subject-matter covered by any particular article of the Constitution or whether it touches the said article only incidentally or indirectly. In A. K. Gopalan v. The State of Madras: 1950 CriLJ 1383, Kania, C.J., had occasion to consider the validity of the argument that the preventive detention order resulted in the detention of the applicant in a cell, and so, it contravened his fundamental rights guaranteed by Art. 19(1)(a), (b), (c), (d), (e) and (g). Rejecting this argument, the learned Chief ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the application of article 19 does not arise. The true approach is only to consider the directness of the legislation and not what will be the result of the detention otherwise valid, on the mode of the detenu's life. On that short ground, in my opinion, this argument about the infringement of the rights mentioned in article 19(1) generally must fail. Any other construction put on the article, it seems to me, will be unreasonable". 344. It is true that the opinion thus expressed by Kania, C.J. in the case of A. K. Gopalan v. The State of Madras: 1950 CriLJ 1383, did not receive the concurrence of the other learned Judges who heard the said case. Subsequently, however, in Ram Singh & Others v. The State of Delhi & Anr.: [1951] 2 SCR 451, the said observations were cited with approval by the Full Court. The same principle was accepted by this Court in Express Newspapers (Pvt.) Ltd. v. The Union of India: (1961) ILLJ 339 SC, in the majority judgment in Atiabari Tea Co. Ltd. v. The State of Assam: [1961] 1 SCR 809, and in Naresh Shridhar Mirajkar v. The State of Maharashtra: [1966] 3 SCR 744. Applying the same principle to the present case, I consider that the effect of the i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ority Judgment and it was held that the Constitution (Seventeenth Amendment) Act amended the fundamental rights solely with the object of assisting the State Legislatures to give effect to the socio-economic policy of the party in power and its effect on Art. 226 was incidental and insignificant and the impugned Act therefore fell under the substantive part of Art. 368 and not attract the proviso to that article. It was further held by this Court that there was no justification for reconsidering Sankari Prasad's: [1952] 1SCR 89 case. On behalf of the respondents it was submitted by the Additional Solicitor-General that this was a very strong case for the application of the principle of stare decisis. In my opinion, this contention must be accepted as correct. If the arguments urged by the petitioners are to prevail it would lead to the inevitable consequence that the amendments made to the Constitution both in 1951 and in 1955 would be rendered invalid and a large number of decisions dealing with the validity of the acts included in the 9th Schedule which were pronounced by this Court ever since the decision in Sankari Prasad's: [1952] 1 SCR 89 case was declared, would also ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ncy Reform. - To deal with the problem of tenants-at-will in the ryotwari areas and of sub-tenants in the zamindari areas, a good deal of legislation has been enacted. Provisions for security of tenure, for bringing them into direct relation with the State and converting them into owners have been made in several States. As a result about 3 million tenants and sharecroppers have acquired ownership of more than 7 million acres. Ceiling on Holdings. - Laws imposing ceiling on agricultural holdings have been enacted in all the States. In the former Punjab area, however, the State Government has the power to settle tenants on land in excess of the permissible limit although it has not set a ceiling on ownership. According to available reports over 2 million acres of surplus areas in excess of the ceiling limits have been declared or taken possession of by Government". 347. 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 probl ..... X X X X Extracts X X X X X X X X Extracts X X X X
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