TMI Blog1967 (2) TMI 95X X X X Extracts X X X X X X X X Extracts X X X X ..... ly prospective operation and Parliament will have no power to abridge or take away Fundamental Rights from the date of the judgment. The Judgment of WANCHOO, BHARGAVA and MITTER, JJ. was delivered by WANCHOO, J. According to this Judgment (i) the power of amending the Constitution resides in Art. 368 and not in Arts. 245, 246 and 248, read with EntrY 97 of List 1; (ii) there, are no restrictions on the power if the procedure in Art. 368 is followed and all the Parts of the Constitution including Part III, can be amended, (iii) an amendment of the Constitution is not law under Art. 13(2); and (iv) the doctrine of prospective overruling cannot be applied in India. HIDAYATULLAH, J. delivered a separate judgment agreeing with SUBBA RAo, CJ. on the following two points: (i) that the power to amend the Constitution cannot be used to abridge or take away fundamental rights; and (ii) that a law amending the Constitution is law under Art. 13 (2). He agrees With WANCHOO, J. that the power to amend does not reside in Arts. 245 and 248 read wish Entry 97 of List 1. Art. 368, according to him, is sui generis and procedural and the procedure when correctly followed, results in an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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. The States of Punjab and Mysore, inter alia, contended that the said Acts were saved from attack on the ground that they infringed the fundamental rights of the petitioners by reason of the Constitution (Seventeenth Amendment) Act, 1964, which, by amending Art. 31-A of the Constitution and including the said two Arts in the 9th Schedule thereto, had placed them beyond attack. In Writ Petition No. 153 of 1966, 7 parties intervened. In Writ Petition No. 202 of 1966 one party intervened. In addition, in the first petition, notice was given to the Advocates General of various States. A11 the learned counsel appearing for the parties, the Advocates General appearing for the States and the learned counsel for the interveners have, placed their respective viewpoints exhaustively before us. We are indebted to all of them for their thorough preparation and clear exposit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent 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 from the jurisdiction of the High Court under Art. 226 of the Constitution and also the legislative powers of the States and therefore it falls within the scope of the proviso to Art. 368. The said summary, though not exhaustive, broadly gives the various nuances of the contentions raised by the learned counsel, who question the validity of the 17th Amendment. We have not noticed the other arguments of Mr. Nambiar, which are peculiar to the Writ Petition No. 153 of 1966 as those questions do not arise for decision, in the view we are taking on the common questions. On behalf of the Union and the States the following points were pressed : (1) A Constitutional amendment is made in exercise of the sovereign power and not legislative power of Parliament and,. therefore, it partakes the quality and character of the Consti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f their operation is limited and, therefore, they do not fall within the scope of the proviso to Art. 3 68. The aforesaid contentions only represent a brief summary of elaborate arguments, advanced by learned counsel. We shall deal in appropriate context with the other points mooted before US. It will be convenient to read the material provisions of theConstitution at. this stage. Article 13(1) (2) The State shall not make any law which takes away or abridges the rights conferred by this part and any law made in contravention of this clause shall, toy the extent of the contravention, be void. (3) In this article, unless the context otherwise requires,- (a) law includes any Ordinance, order, bye-law, rule regulation, notification, custom or usage having in the territory of India the force of law. Article 31-A(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, shall be deemed to be void on the ground that it is inconsistent with, or takes away or abridges any of the rights conferred by article 14, article 19 or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 13(2) was one made in exercise of legislative power and not constitutional law made in exercise of constituent power; and (ii) there were two articles (Arts. 13(2) and 368) each of which was widely phrased and, therefore, harmonious construction required that one should be so read as to be controlled and qualified by the other, and having regard to the circumstances mentioned in the judgment Art. 13 must be read subject to Art. 368. A careful perusal of the judgment indicates that the whole decision turned upon an assumption that the expression law in Art 13(2) does not include constitutional law and on that assumption an attempt was made to harmonise Article 13 (2) and 368 of the Constitution. The decision in Sajjan Singh s case(2) was given in the context of the question of the validity of the Constitution (Seventeenth Amendment) Act, 1964. Two questions arose in that case: (1) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... served 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 apprehend that it depends on how wide is the law in that Article. After giving his reasons for doubting the correctness of the reasoning given in Sankari Prasad s case([1952] S.C.R. 89.), the learned Judge concluded thus : I would require stronger reasons than those given in Sankari Prasad s case(1) 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. The. learned Judge continued The Constitution gives so many assurances in Part III that it would be difficult to think that they were the playthings of a special majority. Mudholkar, J. was positive that the result of a legislative action of a legislature could not be other than law and, therefore, it seemed to him that the fact that the legislation dealt with the amendment of a provision of the Constitution would not make, its resul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t constitutional entities, namely, the Union, the States and the Union Territories. It creates three major instruments of power, namely, the Legislature, the Executive and the Judiciary. It demarcates their jurisdiction minutely and expects them to exercise their respective powers without overstepping their limits. They should function within the spheres allotted to them. Some powers overlap and some are superseded during emergencies. The mode of resolution of conflicts and conditions for supersession are also prescribed. In short, the scope of the power and the-manner of its exercise are regulated by law. No authority created under the Constitution is supreme; the Constitution is supreme; and all the authorities function under the supreme law of the land. The rule of law under the Constitution has a glorious content. It embodies the. modem concept of law evolved over the centuries. It empowers the Legislatures to make laws in respect of matters enumerated in the 3 Lists annexed to Schedule VII. In Part IV of the Constitution, the Directive Principles of State Policy are laid down. It enjoins it to bring about a social order in which justice, social. economic and political-shall in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hts ? They are embodied in Part III of the Constitution and they may be classified thus : (i) right to equality, (ii) right to freedom, (iii)right against exploitation, (iv) right to freedom of religion, (v) cultural and educational rights, (vi) right to property, and (vii) right to constitutional remedies. They are the rights of the people preserved by our Constitution. Fundamental rights are the modern name for what have been traditionally known as natural rights . As one author puts: they are moral rights which every human being everywhere at all times ought to have sim y because of the fact that in contradistinction with ot moral. They are the primordial ment of human personality. man to chalk out his own life in is rational and ry for the developrights which enable a he likes best. Our Constitution, in addition to the well-known fundamental rights, also included the rights of the minorities, untouchables and other backward communities, in such rights. After having declared the fundamental rights, our Constitution says that all laws in force in the territory of India immediately before the commencement of the Constitution, insofar as they are inconsistent with the said ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he object of fundamental rights have been graphically stated. Therein the learned author says : ........ the core of the commitment to the social revolution lies in Parts III and IV, in the Fundamental Rights and fit the Directive Principles of State Policy. These are the conscience of the Constitution. Adverting to the necessity for incorporating fundamental rights in a Constitution, the learned author says That a declaration of rights had assumed such importance was not surprising; India was a land of communities, of minorities, racial, religious, linguistic, social and caste. For India to become a state these minorities had to agree to be governed both at the centre and in the provinces by fellow Indian-members, perhaps, of another minority-and not by a mediatory third power, the British. On both psychological and political, rounds., therefore-, the demand for written right rights would provide tangible safeguards, against oppression-proved overwhelming. Motilal Nehru, who presided over the Committee called for by the Madras Congress resolution, in May, 1928 observed in his report : It is obvious that our first care should be to have our Fundamental Rights guarant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lal Nehru and Dr. Ambedkar not with a view to interpret the provisions of Art. 368, which we propose to do on its own terms, but only to notice the transcendental character given to the fundamental rights by two of the important architects of the Constitution. This Court also noticed the paramountcy of the fundamental rights in many decisions. In A. K. Gopalan v. State of Madras( 1) they are described as paramount , in State of Madras v. Smt. Champakam Dorairajan(2) as sacrosanct , in Pandit M. S. M. Sharma v. Shri Sri Krishna Sinha(s) as rights reserved by the people , in Smt. Vijam Bai v. State of Uttar Pradesh(1) as inalienable and inviolable ,and in other cases as transcendental . The minorities regarded them as the bedrock of their political existence and the majority considered them as a guarantee for their way of life. This, however, does not mean that the problem is one of mere dialectics. The Constitution has given by its scheme a place of permanence to the fundamental freedoms. In giving to themselves the Constitution, the people have reserved the fundamental freedoms to themselves. Article 13 merely incorporates that reservation. That Article is however not the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... terms only prescribes various procedural steps in the matter of amendment: it shall be initiated by the introduction of a bill in either House of Parliament; it shall be passed by the prescribed majority in both the Houses; it shall then be presented to the President for his assent; and upon such assent the Constitution shall stand amended. The article assumes the power to amend found else and says that it shall be exercised in the manner laid down therein. The argument that the completion of the procedural AM culminates in the exercise of the power to amend may be subtle but does not carry conviction. If that was the intention of the provisions, nothing prevented the makers of the Constitution from stating that the Constitution may be amended in the manner suggested. Indeed, whenever the Constitution sought to confer a special power to amend on any authority it expressly said so : (See Arts. 4 and 392). The alternative contention that the said power shall be implied either from Art. 368 or from the nature of the articles sought to be amended cannot be accepted, for the simple reason that the doctrine of necessary implication cannot be invoked if there is an express sion or unless ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a limitation may also necessarily be implied. The limitation in Art. 245 is in respect of the power to make a law and not of the content of the law made Within the scope of its power. The second criticism is based upon Art. 39 of the Constitution. That provision confers power on the President to remove difficulties; in the circumstances mentioned in that provision, he can by order direct that the Constitution shall during such period as may be specified in that order have effect subject to such adaptations, whether by way of modification, addition ,or omission, as he may deem to be necessary or expedient. The argument is that the President s power, though confined to a temporqry period,is co-extensive with legislative power and if the power to amend is a legislative power it would have to be held that the President can amend the Constitution in terms of Art. 368. Apart from the limited scope of Art. 392, which is intended only for the purpose of removing difficulties and for bringing about a smooth transition, an order made by the Presi dent cannot attract Art. 368, as the amendment contemplated by that provision can be initiated only by the introduction of a bill in the Parliament ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of a Parliament and prescribed a certain procedure for the conduct of its ordinary legislative business to be supplemented by rules made by each House (Article 118), the makers of the Constitution must be taken to have intended Parliament to follow that procedure, so far as they may be applicable consistently with the express provision of Art. 368, when they have entrusted to it the power of =ending the Con stitution. The House of the People made rules providing procedure for amendments, the same as for other Bills with the addition of certain special provisions viz., Rules 155, 156, 157 and 158. If amendment is intended to be something other than law, the constitutional insistence on the said legislative process is unnecessary. In short, amendment cannot be made otherwise than by following the legislative process. The fact that there are other conditions, such as, a larger majority and in the case of articles mentioned in the proviso a ratification by Legislatures is provided, does not make the amendment anytheless a law. The imposition of further conditions is only a safeguard against hasty action or a protection to the States, but does not change the Legislative character of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... laws for peace, welfare and good Government of the Colony in all cases whatsoever . But, under s. 9 thereof a two-thirds majority of the Council and of the Assembly %,as required as a condition precedent to the validity of legislation altering the constitution,of the Council. The Legislature, therefore, had, except in the case covered by s. 9 of the Act, an unrestricted power to make laws. The Legislature passed a law which conflicted with one of the existing terms of the Constitution Act. Lord Birkenhead, L.C., upheld-the law, as the Constitution Act conferred an absolute power upon the legislature to pass any law by majority even though it, in substance, amended the terms of the Constitution Act. In The Bribery Commissioner v. Pedrick Ranasinghe([1964] 2 W.L.R. 1301), the facts are these : By section 29 of the Ceylon (Constitution) Order in Council, 1946, Parliament shall have power to make laws for the, peace. order and good government of the Island and in the exercise of its power under the said section it may amend or repeal any of the provisions of the Order in its application to the Island. The proviso to that section says that no Bill for the amendment or repeal of a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s similar to Art. 368 and Art. 13(2), neither the said Constitutions nor the decisions given by courts thereon would be of any assistance in construing the scope of Art. 368 of our Constitution. A brief survey of the nature of the amending process adopted by various constitutions will bring out the futility of any attempt to draw inspiration from the said opinions or decisions on the said constitutions. The nature of the amending power in different constitutions generally depends on the nature of the polity created by the constitution, namely, whether it is federal or unitary constitution or on the fact whether it is a written or an unwritten constitution or on the circumstances whether it is a rigid or a flexible constitution. Particularly the difference can be traced to the spirit and genius of the nation in which a particular constitution has its birth . The following articles of the Constitution of the different countries are brought to our notice by one or other of the counsel that appeared before us. Art. 5 of the Constitution of the United States of America, Arts. 125 and 128 of the Commonwealth of Australia Constitution Act, Art. 92 (1) of the British North American Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the United States Constitution and the Constitution of the Fourth French Republic). A more elaborate discussion of this topic may be found in the American political Constitution by Strong. It will, therefore, be seen that the power to amend and the procedure to amend radically-differ from State to State; it is left to the constitution-makers to prescribe the scope of the power and the method of amendment having regard to the requirements of the particular State. There is no article in any of the constitutions referred to us similar to article 13(2) of our Constitution. India adopted a different system altogether: it empowered the Parliament to amend the Constitution by the legislative process subject to fundamental rights. The Indian 1 Constitution has made the amending process comparatively flexible, but it is made subject to fundamental rights. Now let us consider the argument that the power to amend is a sovereign power, that the said power is supreme to the legislative power, that it does not permit any implied limitations and that amendments made in exercise of that power involve political questions and that, therefore, they are outside judicial review, This wide propositi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hen he says ....... it is impossible to conceive of an unamendable constitution as anything but a contradiction in terms. The learned author says that such a constitution would constitute government by the graveyards. Hugh Evander Wills in his book Constitutional Law of the United States avers that the doctrine of amendability of the Constitution is grounded in the doctrine of the sovereignty of the people and that it has no such implied limitations as that an amendment shall not contain a new grant of power or change the dual form of government or change the protection of the Bill of Rights, or make any other change in the Constitution. Herman Finer in his book The Theory and Practice of Modem Government defines constitution as its process of amendment, for, in his view, to amend is to deconstitute and reconstitute. The learned author concludes that the amending clause is so fundamental to a constitution that he is tempted to call it the constitution itself. But the learned author recognizes that difficulty in amendment certainly products circumstances and makes impossible the surreptitious abrogation of rights guaranteed in the constitution. William S. Livingston ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the contention that the unending power is a supreme power or that it involves political issues which are not justiciable. It would be futile to consider them. at length, for after going through them carefully we find that there are no considered judgments of the American Courts, which would have a persuasive effect in that regard. In the Constitution of the United States of America, prepared by Edwards S. Corwin, Legislative Reference Service, Library of Congress, (1953 edn.), the following summary under the heading Judicial Review under Article V is given : Prior to 1939, the Supreme Court had taken cognizance of a number of diverse objections to the validity of specific amendments. Apart from holding that official notice of ratification by the several States was conclusive upon the Courts, it had treated these questions as justiciable, although it had uniformly rejected them on the merits. In that year, however, the whole subject was thrown into confusion by the inconclusive decision in Coleman v. Miller. This case came up on a writ of certiorari to the Supreme Court of Kansas to review the denial of a writ of mandamus to compel the Secretary of the Kansas Senate to erase ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ontroversy susceptible of judicial determination. This passage, in our view, correctly summarises the American law on the subject. It will be clear therefrom that prior to 1939 the Supreme Court of America had treated the objections to the validity of specific amendments as justiciable and that only in 1939 it rejected them in an inconclusive judgment without discussion. In this state of affairs we cannot usefully draw much from the judicial wisdom of the Judges of the Supreme Court of America. One need not cavil at the description of an amending power as sovereign power, for it is sovereign only within the scope of the power conferred by a particular constitution. All the authors also agree, that a particular constitution can expressly limit the power of amendment, both substantive and procedural. The only conflict lies in the fact that some authors do not pen-nit implied limitations when the power of amendment is expressed in general words. But others countenance such limitations by construction or otherwise. But none of the authors goes to the extent of saying, which is the problem before us, that when there are conflicting articles couched in widest terms, the court has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... damental rights can be abrogated, the concept of federalism can be obliterated and in short the sovereign democratic republic can be converted into a totalitarian system of government. There is considerable force in this argument. Learned and lengthy arguments are advanced to sustain it or to reject it. But we are relieved of the necessity to express our opinion on this all important question as, so far as the fundamental rights are concerned, the question raised can be answered on a narrower basis. This question may arise for consideration only if Parliament seeks to destroy the structure of the Constitution embodied in the provisions other than in Part III of the Constitution. We do not, therefore, propose to express our opinion in that regard. In the view we have taken on the scope of Art. 368 vis--a vis the fundamental rights, it is also unnecessary to express our opinion on the question whether the amendment of the fundamental rights is covered by the proviso to Art. 368. The result is that the Constitution (Seventeenth Amendment) Act, 1964, inasmuch as it takes away or abridges the fundamental rights is void under Art. 13(2) of the Constitution. The next question is wheth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amendment was to carry out important social welfare legislations on the desired lines, to improve the national economy of the State and to avoid serious difficulties raised by courts in that regard. Article 31A has further been amended by the Constitution (Fourth Amendment) Act, 1955. By the said amendment in the Ninth Schedule to the Constitution entries 14 to 20 were added. The main objects of this amending Act was to distinguish the power of compulsory acquisition or requisitioning of private property and the deprivation of property and to extend the scope of Art. 31-A to cover different categories of social welfare legislations and to enable monopolies in particular trade or business to be created in favour of the State. Amended Art. 31(2)makes the adequacy of compensation not justiciable. It may be said-that the Constitution (Fourth Amendment) Act, 1955 was made by Parliament as this Court recognized the power of Parliament to amend Part III of the Constitution; but it can also be said with some plausibility that, as Parliament had exercised the power even before the. decision of this Court in Sankari Prasad s case([1952] S.C.R. 89, 105), it would have amended the Constitutio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... states were outside judicial scrutiny on the ground they infringed the said rights. The agrarian structure of our country has been revolutionised on the basis of the said laws. Should we now give retrospectivity to our decision, it would introduce chaos and unsettle the conditions in our country. Should we hold that because of the said consequences Parliament had power to take away fundamental rights, a time might come when we would gradually and imperceptibly pass under a totalitarian rate. Learned counsel for the petitioners as well as those for the respondents placed us on the horns of this dilemma, for they have taken extreme positions-leamed counsel for the petitioners want us to reach the logical position by holding that all the said laws are void and the learned counsel for the respondents persuade us to hold that Parliament has unlimited power and, if it chooses, it can do away with fundamental rights. We do not think that this Court is so helpless. As the highest Court in the land we must evolve some reasonable principle to meet this extraordinary situation. There is an essential distinction between Constitution and statutes. Comparatively speaking, Constitution is permane ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... It has been made discordant by the forces that generate a living law. We apply it to this case because the repeal might work hardship to those who have trusted to its existence. We give notice however that any one trusting to it hereafter will do at his peril. The Supreme Court of the United States of America, in the year 1932, after Cardozo became an Associate Justice of that Court in Great Northern Railway v. Sunburst Oil Ref. Co.,((1932) 287 U.S. 358, 366. 17 L. Ed. 360.) applied the said doctrine to the facts of that case. In that case the Montana Court had adhered to its previous construction of the statute in question but had announced that that interpretation would not be followed in the future. It was contended before the Supreme Court of the United States of America that a decision of a court overruling earlier decision and not giving its ruling retroactive operation violated the due process clause of the 14th Amendment. Rejecting that plea, Cardozo said : This is not a case where a Court in overruling an earlier decision has come to the new ruling of retroactive dealing and thereby has made invalid what was followed in the doing. Even that may often be done tho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... able search and seizure. But in Mapp. v. Ohio(4) the Supreme Court reversed that decision and held that all evidence obtained by searches and seizure in violation of the 4th Amendment of the Federal Constitution was, by virtue of the due process clause of the 14th Amendment guaranteeing the right to privacy free from unreasonable State instrusion, inadmissible in a State court. In Linkletter v. Walker( [1965] 381 U.S. 618.(2nd Edn.) 1081.) the question arose whether the exclusion of the rule enunciated in Mapp v. Ohio([1966] 367 U.S. 643: 6 L. Ed) did not apply to State Court convictions which had become final before the date of that judgment. Mr. Justice Clarke, speaking for the majority observed We believe that the existence of the Wolf doctrine prior to Mapp is an operative fact and may have consequences which cannot justly be ignored. The past cannot always be erased by a new judicial declaration. Mapp had as its prima purpose the enforcement of the Fourth Amendment through the inclusion of the exclusionary rule within its rights.............. We cannot say that this purpose would be advanced by making the rule retrospective. The misconduct of the police prior to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Lord Gardiner L.C., speaking for the House of Lords made the following observations Their Lordships nevertheless recognise that too rigid adherence to precedent may lead to injustice in a particular case and also unduly restrict the proper development of the law. They propose, therefore, to modify their present practice and, while treating former decisions of this House as normally binding, to depart from a previous decision when it appears right to do so. In this connection they will bear in mind the danger of disturbing retrospectively the basis on which contracts, settlements of property and fiscal arrangements have been entered into and also the especial need for certainty as to the criminal law. This announcement is not intended to affect the use of precedent elsewhere than in this House. It will be seen from this passage that the House of Lords hereafter in appropriate cases may depart from its previous decision when it appears right to do so and in so departing will bear in mind the danger of giving effect to the said decision retroactivity. We consider that what the House of Lords means by this statement is that in differing from the precedents it will do so ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n India there is no statutory prohibition against the court refusing to give retroactivity to the law declared by it. Indeed,. the doctrine of res judicata precludes any scope for retroactivity in respect of a subject-matter that has been finally decided between the parties. Further, Indian court by interpretation reject retroactivity. to statutory provisions though couched in general terms on the ground that they affect vested rights. The present case only attempts a further extension of the said rule against retroactivity. Our Constitution does not expressly or by necessary implication speak against the doctrine of prospective over-ruling. Indeed, Arts. 32, 141 and 142 are couched in such wide and elastic terms as to enable this Court to formulate legal doctrines to meet the ends of justice. The only limitation thereon is reason, restraint and injustice. Under Art. 32, for the enforcement of the fundamental rights the Supreme Court has the power to issue suitable directions or orders or writs. Article 141 says that the law declared by the Supreme Court shall be binding on all courts; and Art. 142 enables it in the exercise of its jurisdiction to pass such decree or make such o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at may be brought about by the sudden withdrawal at this stage of the amendments from the Constitution, we think that considerable judicial restraint is called for. We, therefore, declare that our decision will not affect the validity of the Constitution (Seventeenth Amendment) Act, 1964, or other amendments made to the Constitution taking away or abridging the fundamental rights. We further declare that in future Parliament will have no power to amend Part III of the Constitution so as to take away or abridge the fundamental rights. In this case we do not propose to express our opinion on the question of the scope of the amendability of the provisions of the Constitution other than the fundamental rights, as it does not arise for consideration before us. Nor are we called upon to express out opinion on the question regarding the scope of the amends ability of Part Ill of the constitution otherwise than by taking away or abridging the fundamental rights. We will not also indicate our view one way or other whether any of the Acts questioned can be sustained under the provisions of the Constitution without the aid of Arts. 31A, 31B and the 9th Schedule. The aforesaid discussion le ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... directive prin ciples can reasonably be enforced within the self-regulatory machinery provided by Part III. Indeed both Parts III and IV of the Constitution form an integrated scheme and is elastic enough to respond to the changing needs of the society. The verdict of the Parliament on the scope of the law of social control of fundamental rights is not final, but justiciable. If not so, the whole scheme of the Constitution will break. What we can- I not understand is how the enforcement of the provisions of the Constitution can bring about a revolution. History shows that revolutions are brought about not by the majorities but by the minorities and some time by military coups. The existence of an all comprehensive amending power cannot prevent revolutions, if there is chaos in the country brought about by mis-rule or abuse of power. On the other hand, such a restrictive power gives stability to the country and prevents it from passing under a totalitarian or dictatorial regime. We cannot obviously base our decision on such hypothetical or extraordinary situations which may be brought about with or without amendments. Indeed, a Constitution is only permanent and not eternal. There i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Court from departing from a previous decision of its own if it was satisfied of its error and of its baneful effect on the general interest of the public. If the aforesaid rule of construction accepted by this Court is inconsistent with the legal philosophy of our Constitution, it is our duty to correct ourselves and lay down the right rule. In constitutional matters which affect the evolution of our polity, we must more readily do so than in other branches of law, as perpetuation of a mistake will be harmful to public interests. While continuity and consistency are conducive to the smooth evolution of the rule of law, hesitancy to set right deviation will retard its growth. In this case, as we are satisfied that the said rule of construction is inconsistent with our republican polity and, if accepted, bristles with anomalies, we have no hesitation to reconsider our earlier decision. In the result the petitions are dismissed, but in the circumstances without costs. Wanchoo, J. This Special Bench of eleven Judges of this Court has been constituted to consider the correctness of the decision of this Court in Sri Sankari Prasad Singh Deo v. Union of India([1952] S.C.R. 89.) whic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... could not be called in question on the ground that it contravened the provision of cl. (2) of Art. 31 relating to compensation. These two clauses of Art. 31 were meant to safeguard legislation which either had been passed by Provincial or State legislatures or which was on the anvil of State legislatures for the purpose of agrarian reforms. One such piece of legislation was the Bihar Land Reforms Act, which was passed in 1950. That Act received the assent of the President as required under cl. (6) of Art. 31. It was however challenged before the Patna High Court and was struck down by that court on the ground that it violated Art 14 of the Constitution. Then there was an appeal before this Court, but while that appeal was pending, the First Amendment to the Constitution was made. We may briefly refer to what the First Amendment provided for. It was the First Amendment which was challenged and was upheld in Sankari Prasad s case([1952] S.C.R. 89). The First Amendment contained a number of provisions; but it is necessary for present purposes only to refer to those provisions which made changes in Part III of the Constitution. These changes related to Arts. 15 and 19 and in addit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al law made in the exercise of constituent power, and in the context of Art. 13, law must be taken to mean rules or regulations made. in exercise of ordinary legislative power and not amendments to, the Constitution made in the exercise of constituent power; in consequence Art. 13(2) did not affect amendments made under Art. 3 68. It further held that Arts. 3 1 A and 31-B did not curtail the power of the High Court under Art. 226 or of this court under Arts. 132 and 136- and did not require ratification under the proviso contained in Art. 368. Finally, it was held that- Arts. 31.-A and 31-B were essentially amendments to the Constitution and Parliament as such had the power to enact such amendments. In consequence, the First Amendment to the Constitution was upheld as valid. After this decision, there followed sixteen more amendment .to the Constitution till we come to the Seventeenth Amendment, which was passed on June 20, 1964. There does not seem to have been challenge to any amendment up to the Sixteenth Amendment, even though two of them, namely, the Fourth Amendment and the Sixteenth Amendment,, contained changes in the provisions of Part III of the Constitution. Further ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd that the word law in Art. 13 (2) did not include an amendment of the Constitution made in pursuance of Art. 368. The minority however doubted the correctness of the view taken in Sankari Prasads case(1) to the effect that the word law in Art. 13 (2) did not include amendment to the Constitution made under Art. 368 and therefore doubted the competence of Parliament to make any amendment to Part III of the Constitution. One of the learned Judges further doubted whether making a change in the basic features of the Constitution could be regarded merely as an amendment or would, in effect, be re-writing a part of the Constitution, and if so, whether it could be done under Art. 368. It was because of this doubt thrown on the correctness of the view taken in Sankari Prasad s case((1952] S.C.R. 89. L3Sup.CI/67-7) that the present reference has been made to this Special Bench. As the question referred to this Bench is of great constitutional importance and affected legislation passed by various States, notice was issued to the Advocates General of all States and they have appeared and, intervened before us. Further a number of persons who were also affected by the Seventeenth Ame ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hts contained therein. Another line of argument is that in any case it was necessary to take action under the proviso to Art. 368 and as that was not done the Seventeenth Amendment is not valid. It is urged that Art. 2,26 is seriously affected by the provisions contained in the Seventeenth Amendment and that amounts to an amendment of Aft. 226 and in consequence action under the- proviso was necessary. It is also urged that Art. 245 was addition of a number of Acts in the Ninth 13 (2) and therefore also it was necessary to take action under the proviso. It is further urged that it was not competent for Parliament to amend the Constitution by putting a large number of Acts in the Ninth Schedule as the power to legislate with respect to land is solely within the. competence of State Legislatures and that is another reason why the addition to the Ninth Schedule read with Art. 31 B should be struck down. Lastly an argument had been advanced which we may call the argument of fear. It is said that if Art.368 is held to confer full to amend each and every part of the Constitution as has been held in Sankari Prasad s case([1952] S.C.R. 89.). Parliament May do all kinds of things, whi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation not merely in the Article providing for amendment, but in some other part of the Constitution. But it is said that if that is so, there must be a clear provision to that effect. In the absence of express limitations, therefore, there can be no implied limitations ,on the power to amend the Constitution contained in Art. 368 and that power will take in all changes whether by way of addition, alteration or deletion, subject only to this that the power of amendment may riot contain the, power to abrogate and repeal the entire Constitution and substitute it with a new one. It is then urged that there is no express provision in Art.368 itself so far as any amendment relating to the substance of the amending power is concerned-, die only limitations in Art, 368 are as to procedure and courts can only see that the procedure as indicated in Art. 368 is followed before an amendment can be said to be valid. It is further urged that the word law , in Art. 13 does not include an amendment of the Constitution and only moans 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be incorrect by a large majority of the Judges constituting this Special Bench. It is urged that if the present Bench is more or less evenly divided it should not over-rule the unanimous decision in Sankari Prasad s case(1) by a Majority of one. We shall first take Art, 368. It is found in Part XX of the Constitution which is headed. Amendment of the Constitution and is the only Article in that Part. That Part thus provides specifically for the amendment of the Constitution, and the first question that arises is whether it provides power for the amendment of the Constitution as well as the procedure for doing so. It is not disputed that the procedure for amendment of the Constitution is to be found in Art. 368, but what is in dispute is whether Art. 368 confers power also in that behalf. Now the procedure for the amendment of the Constitution is this: The amendment is initiated by the introduction of a Bill 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-thirds of the members of that House present and voting. After it is so passed, it has to be presented to the Presiden ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... our Constitution-makers were apparently thinking of economy of words and elegance of language in enacting Art. 368 in the terms in which it appears and that is why it is not in two parts on the model of Art.46 of the Irish Constitution. But there can in our opinion. be not doubt, when a separate Part was provided headed Amendment of the Constitution that the power to amend the Constitution must also be contained in Art. 368 which is the only Article in that Part. If there was any doubt about the- matter, that doubt in our opinion is resolved by the words to which we have already referred namely the Constitution shall stand amended in the terms of the Bill . These words can only mean that the. power is there to amend the Constitution after the procedure has been followed. It is however urged that the power to amend the Constitution is not to be found in Art. 368 but is contained in the residuary power of Parliament in Art. 48 read with item 97 of List 1. 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 provisi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st I which provides for residuary legislative power of Parliament. There is in our opinion another reason why the power to amend the Constitution cannot found in Art. 248 read with item 97 of List 1. The Constitution is the fundamental law and no law passed under mere legislative power conferred by the Constitution can affect any change, in the Constitution unless there is an express power to that effect given in the Constitution itself. But subject to such express power given by the Constitution itself, the fundamental law, namely the Constitution, cannot be changed by a law passed under the legislative provisions contained in the Constitution as all legislative acts passed under the power conferred by the Constitution must conform to the Constitution can make no change therein. There are a number of Articles 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), 196, 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, 306(1), 313, 345, 373, Sch. V. cl. 7 and Sch. VI, cl. 21,, and so far as th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... titutional law and the rest of the law. It is because of this difference between the. fundamental law (namely, the Constitution) and the law passed under the legislative provisions of the Constitution that it is not possible in the absence of an express provision to that effect in the fundamental law to ,change the fundamental law by ordinary legislation passed thereunder, for such ordinary legislation must always conform to the fundamental law (i.e. the Constitution). If the power to amend the Constitution is to be found in Art. 248 read with item 97 of List 1. It will mean that ordinary legislation passed under fundamental law would amend that law and this cannot be done unless there is express provision as in Art. 3 etc. to that effect In the absence of such express provisions 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 thatno 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 rea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rovided for ordinary legislation, for example, the President s assent is not required constitutional amendment under Art. V of the U.S. Constitution,; Now if Art. 368 also had made a similar departure from the procedure provided for ordinary legislation, it could never have said that Art. 368 merely contained the procedure for amendment and that what emerges after that procedure is followed is ordinary law of the same quality and nature as emerges after following the procedure for passing ordinary law. If, for example, the assent of the President which is to be found in Art. 368 had not been there and the Constitution would have stood amended after the Bill had been passed by the two Houses by necessary majority and after ratification 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 Art. 245 and 248 read with item 97 of List I and Art. 368 merely contained the procedure. 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 or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... We are of opinion that the President can refuse to give his assent when a Bill for amendment of the Constitution is presented to him, the result being that the Bill altogether falls, for there is no specific provision for anything further to be done,: about the Bill in Art. 368 as there is in Art. III. We may in this. connection refer to the different language used in cl. 5 of Art. 46 of the Irish Constitution which says that a Bill containing a proposal for the amendment of this Constitution shall be signed by the President Forthwith upon his being satisfied that the provisions of this Article have been complied with, in respect thereof . It will be seen therefore that if the intention kinder Art. 368 had been that the President cannot withhold his assent, we would have found language similar in terms to that in cl. 5 of Art. 46 of the Irish Constitution. 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 proce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat he withholds assent therefrom. But it is remarkable that Art. 111 does not provide that when the Bill has been assented to by the President it becomes an Act The reason for this is that the Bill assented to by the President though it may become law is still not declared by Art. I I I to be a law, for such law is open to challenge in courts on various ,grounds, namely, on the ground that it violates any fundamental rights, or on the ground that Parliament was not competent to pass it or on the ground that it is in breach of any provision of the Constitution. On the other hand we find that when a Bill for the amendment of the Constitution is passed by requisite majority and assented to by the President, the Constitution itself ,declares 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 anvi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en framing the Constitution, that Art. 368 does confer power on Parliament subject to the procedure provided therein for amendment of any provision of-the Constitution.. This brings us to the scope and extent of the power conferred, for amendment under Art. 368. It is urged that Art. 368 only gives power to amend the Constitution. Recourse is had on behalf of the petitioners to the dictionary meaning of the word, amendment . It is said that amendment implies and means improvement in detail and cannot take in any change in the basic features of the Constitution. Reference in this connection may be made tothe following meaning of the word amend in the Oxford English Dictionary, namely, to make professed improvements in a, measure before Parliament; formally, to after in detail, though practically it may be to alter its principle, so as to thwart . This meaning lit 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 ame ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ting the present Constitution and substituting it by an entirely new one. But short of that, we are of opinion that the power to amend includes the power to add any provision to the Constitution. to alter any provision and substitute any other provision in its place and to delete any provision. The Seventeenth Amendment is merely in exercise of the power of amendment a indicated above and cannot be struck down on the ground that it goes beyond the power conferred on Parliament to amend the Constitution by Art. 368. The next question that arises is whether there is any limitation on the power of amendment as explained by 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 law, but so far as, Art. 368 is concerned there are no limitation whatsoever in the matter of substance on the amending ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er Art. 368 and have come to, the conclusion that no limitations can be and should be implied upon the power of amendment under Art. 368. One. reason for coming to this conclusion is that if we were to accept that certain basic features of the Constitution cannot be amended under Art. 368, it will lead to the position that any amendment made to any Article of the Constitution would be liable to challenge before courts on the ground that it amounts to amendment of a basic feature. Parliament would thus never be able to know what amendments it can make in the Constitution and what it cannot; for, 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 courts 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in discussing the meaning of an obscure enactment, to refer to parliamentary history of a statute, in the sense of the debates which took place in Parliament when the statute was under consideration , and supports his view with reference to a large number of English cases. The same is the view in Maxwell on Interpretation of Statutes, (11th Edition) p. 26. Crawford on Statutory Construction (1940 Edition) at p. 340 says that resort may not be had to debates to ascertain legislative Intent though historical background in which the legislation came to be passed, can be taken into consideration-. In Administrator General of Bengal v. Prem Lai Mullick( [1895] 22 LA. 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. 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. In A. K. Gopalan v. the State of Madras([1950] S.C.R. 88. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble to the Constitution and its importance therein. It was observed in that case unanimously by a Bench of nine judges that although it may be correct to describe the preamble as a key to the mind of the Constitution-makers, it form no part of the Constitution and cannot be regarded as the source of any substantive power which the body of the Constitution alone can confer on the Government , expressly or by implication. This is equally true to prohibitions and limitations . The Court there was considering whether the preamble could in any way limit the power of Parliament to cede any part of the national teritory and held that it was not correct to say that the preamble 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 oft Me power to amend the Constitution contained in Art. 368. 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. 1 3 (2) which at least limits the power of amendment unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dges rights conferred by Part III it would be void to the extent of the contraventions. There are many Articles in the Constitution, which directly for making law in addition to Articles 245, 246, 248, etc. and the three Lists and-Aft. 13(2) (1) [1952] S.C.R. 89. (2) [1965] 1 S.C.R 933. prohibits the State from making any law under these provisions. We see no difficulty in the circumstances in holding 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 1. 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 not enumerated in the Concurrent List or the State List. We are re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n in Art. 368. It is however said that it was not necessary to say so in Art. 368, because the provision was already made in Art. 13(2). We are unable to accept this contention, for we have no doubt that Art. 13(2), when it refers to making of laws is only referring to the ordinary legislative power and not to the constituent power which results in amendment of the Constitution. In any case it 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 h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the words of Arts. 245, 248, and 250 (which all speak of Parliament making law, Statelegislatures making law, and so on). Lastly, as the power to amend is in Art. 368 and on the words, as they stand in that Article, that power is unfettered and includes the power to amend Part III, it is strange that that power should be limited by putting an interpretation on the word law 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 111, 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. W.-, 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. 1 3 (2). We repeat that when the Constituent Assembly was taking the trouble of providing a whole Part for amendment of the Constitution and wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... merely because there may be some effect by the Seventeenth Amendment on the, content of the power in Art. 226 it will amount to change in Art. 226. We are of opinion that when the proviso lays down that there must be ratification when there is any change in the entrenched provisions, including Art. 226, it means that 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(2) 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 us ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Art. 52 alone is altered by Parliament, to abolish the office of President, it will require ratification. These two examples will show where alteration or deletion of an unentrenched Article would necessitate amendment of an entrenched Article, and in such a case if Parliament takes the incredible course of amending only the unentrenched Article and not amending the entrenched Article, courts can say that ratifi- cation 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. Besides, let us consider what would happen if the argument on behalf of the petitioners is accepted that ratification is 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. Writ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly affected has therefore no force and must be rejected. This is equally true with respect to the power of this Court under Arts. 132 and 136. Then it is urged that Art. 245 is enlarged by the Seventeenth Amendment inasmuch as State legislatures and Parliament were freed 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. This 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. 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... legislatures and it was their constitutional infirmity, if any, which was being cured by the device adopted in Art. 3 1 B read with the Ninth Schedule, the amendment being only of the relevant provisions of Part III which was compendiously put in one place in Art. 3 1 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. 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 11 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 constitut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r withholding the power, no power whatever can ever be conferred on any authority, be it executive, legislative or even judicial. Therefore, the so-called fear of frightful consequences, which has been urged on behalf of the Petitioners (if we hold, as we do, that 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. 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 und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... han half the States in certain cases appear to us to be sufficient safeguards to prevent too easy change in the Constitution without making it too rigid. But it is said that, in the last sixteen Years, a large number of amendments have been made to the constitution 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 and 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 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 m 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 Centre but also in all the Stites. It is because of this circumstance that we have had so many amend ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sis of the First Amendment by which in particular Arts. 31-A and 31-B were introduced in the Constitution. It is said that though Sankari Prasad s case (1) has stood for less than 15 years there have 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 an 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(1). This agrarian revolution has led to millions of acres of land having changed hands and millions of now titles having been created. So it is urged that the unanimous decision in Sankari Prasad s case(2), which was challenged when the Seventeenth Amendment was passed and was upheld by majority in Sajjan Singh s case(2) 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. We are of opinion th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... what would be the effect of this doctrine if it is applied to amendment of ordinary laws. We have so far been following in this country the well-known doctrine that courts declare law and that a declaration made by a court is the law of the land and takes effect from the date the law came into force. We would on principle be loath to change that well-known doctrine and supersede it by the doctrine of prospective over-ruling. Further it seems to us that in view of the provisions of Art. 13(2) it would be impossible to apply the doctrine of prospective overruling 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 (2) that a law made after the Constitution came into force which infringes fundamental rights is a stillborn 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 Mahendra Lal Jaini v. The State of Uttar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d on many of such questions two views are possible. Therefore, if one view has been taken. by this Court after mature deliberation, the fact that 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 re luctant 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. A similar view was taken in the Keshav Mills Company Limited v. Commissioner of Income-tax,(1) 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 unanimit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons should fail and we would dismiss them. In the circumstances we would pass no order as to costs. Hidayatulla. J In these three writ petitions, the facts of which appear in the two judgment 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 b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stitution 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. Ibis 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 ire 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 Mt. 19 is (1) [1952] S.C.R. 89. (2) [1965] 1 S.C.R. 933. 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(1). It is true that such things would never be, but one is concerned to know if such a doing would be possible. The Constitution gives so many assurances in Part III that it would be difficult to think that they were the pla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g 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 Napole on) 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. 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 amending process ? On the answer to this question depends the solution of all the problems in this case. It is an error to view our Constitution as if it were a mere organisational document by which the peop ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... laration of rights -- the Nehru Report--it is obviour, that our first care should be to have the Fundamental Rights guaranteed in a manner which will not permit their withdrawal in any circumstancees--, 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 Suggestion of the Cabinet Mission for the constitution of an Advisory Committee on Fundamental and Minority Rights, and, lastly the Committee on Fundamental Rights of the Constituent Assembly, are just a few of the steps to be remembered. The Fundamental Rights and the Directive Principles were the result. Fundamental la ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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: (2) of course, the dictum of de Tocqueville that the English Constitution elle n existe point (it does not exist) is far from accu- (1)Dicey: Law of the Constitution 10th Edn. p. 207. (2)Introduction to the Study of the Law of the Constitution A.V. Dicey Tenth Edn p. 88 quoting from OEuvres completes (14th ed.,1864) (Democratie en Amerique), pp. 166, 167. rate. There is a vast body of constitutional laws in England which is written and statutory but it is not all found in one place and arranged as a written Constitution usually is. The Act of Settlement (1701), the Act of Union with Scotland (1707), the Act of Union with Ireland (1800) the Parliament Act (1911) the Representation of the Peoples Acts of 1832, 1867, 1884, 1918, 1928 and 1948, the Ballot Act (1872), th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nstruments. The Constitution of Austria (A-t. 149) makes special mention of these constitutional instruments. (3) Tagore Law Lectures (1924) p. 83. The next test that the courts must apply the Constitution in preference to the ordinary law may also be rejected on the ansalogy 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 found and not rules of private law as is the case with ordinary laws. But this is also not an invariable rule. The Ame Constitution and our Constitution itself are outstanding examples There are certain other differences of degree, such as that nary _legislation may be tentative or temporary, more detailed or secondary, while the Constitution is intended to be permanent, general and prima ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndment available for the purpose of removing express or fmplied restrictions against the State. Here I make a difference between Government and State which I shall explain presently. As Willoughby(4) 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 ;ire ordinarily to be found in the laws though some of the Constitutions also fix them. It is now customary to have such rights guaranteed in the Constitution. Peaslee,(5) writing in 1956 says that about 88% of the national Constitutions contain clauses respecting individual liberty and fair legal process; 83% respecting freedom of speech and the press; 82% respecting property right; 80% respecting rights of assembly and association; 80% respecting rights of conscience and religion; 79% respecting secrecy of correspondence and inviolability of domicile; 78% respecting education; 73% respecting equality 64% respecting right to petition; 56% respecting labour; 5 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tain clauses respecting individual liberty and fair legal process; 83% respecting freedom of speech and the press; 82% respecting property right; 80% respecting rights of assembly and association; 80% respecting rights of conscience and religion; 79% respecting secrecy of correspondence and inviolability of domicile; 78% respecting education; 73% respecting equality; .64% respecting right to petition; 56% respecting labour; 51% respecting social security; 47% respecting rights of movement within, and to and from the nation; 47% respecting health and motherhood; and 35% respecting the non-retroactivity of laws. In some of the Constitutions there is an attempt to put a restriction Against the State seeking to whittle down the rights conferred on the individual. Our Constitution is the most outstanding i6xample of this restriction Which is to be found in Art. 1.3(2). ,Tbe State is no doubt legally supreme but in the supremacy of its powers it may creat-eimpediments on its OI%M sovereignty. Govent is always bound by the restrictions created in favour of Fundamental Rights but the State may or may not be. Amendment may be open to the State according to the procedure lai(r (1) 7 Ho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rection. It is wrong to think that masses alone, called the people after Mazini, or the proletariate after Marx, begin a revolutionary change. Political changes are always preceded by changes in thought in a few. They may be outside the (1) In the Constitution of Honduras, partial amendment only is possible. For a complete amendment a Constituent Assembly has to be convoked. In the Constitution of Brazil, the Constitution cannot be amended when there is a state of seige (our emergency). In Turkey an amendment of Article 1 cannot even be proposed. (2) Vol. 12, Section 25 pp. 629-630. Government or in it. It is a revolution nevertheless, if an attempt is made to alter the will of the people in an illegal manner. A revolution is successful only if there is consent and acquiescence and a failure if there is not. Courts can interfere to nullify the revolutionary change because in all cases of revolution there is infraction of existing legality. It is wrong to classify as revolution some thing coming from outside the Government and an illegality committed by the Government against the Constitution as evolution. I am mindful of the observations of Justice Holmes, that- W ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the obfuscation in the opposite view. Those who entertain this thought do not pause to consider : why make a prohibition against the State? As Cooley said: there never was a republican Constitution which delegated to functionaries all the latent powers which lie dormant in every nation and are boundless in extent. and incapable of definition. , If the State wields more power than the functionaries there must be a difference between the. State and its agencies such as Government, Parliament, the Legislatures of the States and the local and other authorities. Obviously, the State means more than any of there or all of them put together. By making the State subject to Fundamental Rights it is clearly stated in Art. 13 (2) that any ,of the agencies acting alone or all the agencies, acting together are not above the Fundamental Rights. Therefore, when the House .of the People or the Council of States introduces a Bill- for the abridgement of the Fundamental Rights, it ignores the injunction against it and even if the two Houses pass the Bill the injunction is next operative against the President since the expression Government of India in the General Clauses Act means the Presid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nity and the State and claim his rights. This is because the Fundamental Rights are I so safe-guarded that within the limits set by the Constitution they are inviolate. The Constitution has itself said what protection has been created round the person and property of the citizens and to what extent this protection may give way to the general good. it is wrong to invoke the Directive Principles as if there is some antinomy between them and the Fundamental Rights. The Directive Principles lay down the routes of State but such action must avoid the restrictions stated in the Fundamental Rights. Prof. Anderson (6) taking the constitutional amendments, as they have been in our country, considered the Directive principles to be more potent than the Fundamental (1) Constitutional Law, 6th Edn. p. 27. (2) Parliament (1957) pp. 11-12. (3) Government of Canada (1952) Chapter XIX. (4) An Introduction to British Constitutional Law (1931) P. 48, (5) How Britain is Governed P. 5,6. (6) Changing Law in Developing Countries, pp. 88, 89. Rights. That they are not, is clear when one takes the Fundamental- Rights. with- the guaranteed remedies. The Directive Principles are not ju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lations of Human Rights, is a significant step in that direction. After 1955 the European Commission has become competent to receive complaints from individuals although the enforceability of Human Rights on an international basis is still far from being achieved. If one compares the Uni versal Declaration with Parts III and IV of our Constitution one finds remarkable similarity in the two. It is significant that our Committee on Fundamental Rights was deliberating when the This Committee of the United Nations was deliberating on the. Universal Declaration of Human Rights. Both are manifestos of man s inviolable and fundamental freedoms. While the world is anxious to secure Fundamental Rights internationally, it is a little surprising that some intellectuals in our country, whom we may call classe non classe after Hegel, think of the Directive Principles in our Constitution as if they were superior to Fundamental Rights. As a modern philosopher(1) said such people do lip service to freedom thinking all the time in terms of social justice with freedom as a by-product . Therefore, in. their scheme of things Fundamental Rights become only an epitheton ornans. One does not kn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Individual s liberty is a usurpation of constituent functions be-cause they have been placed outside the scope of the- power of constituted. Parliament. It is obvious that Parliament need not now legislate at all. It has spread the umbrella of Art. 31-B and .has only to add, a clause that all legislation involving Fundamental Rights would be deemed to be within that protection hereafter. Thus the only palladium against legislative dictatorship may be removed by a 2/3rds majority not only in praesanti but, defuturo. This can hardly be open to a constituted Parliament. Having established, that there is no difference between the ordinary legislative and the amending processes in so far as cl.(2) of Aft. 13 is concerned, because both being laws in their true character, come within the prohibition created, by that, clause against the State and that the Directive Principles cannot be invoked to destroy Fundamental Rights. I proceed now to examine whether the English and Amercan precedents lay down any principle applicable to amendments of our Constitution. In, Britain the question whether a constitutional amendment is valid or not at arise because the courts are powerless Parliamen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icating liquors for beverage purposes, as embodied in the 18th amendment, Is within the power to amend reserved by Art. 5 of the Constitution. (emphasis supplied) (4) One would have very much liked to know why this proposition was laid down in the terms emphasised above if the effective exercise of the. power depended upon a particular procedure which was immaculately followed. The silence of the Court about its reasons has been noticed in the same judgment by Mr. Justice (1) 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 the Constitution pp. 64, 65. (2) 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... had the, power to a time limit for ratification because Art. V implied that application must be within some reasonable time after. the proposal . The fixation of 7 years was held by the Court to be reasonable. In 1939 came the case of Coleman v. Miller(307 U.S. 443.) which dealt with the Child Labour Amendment. Such a law was earlier rejected by the Kansas Leizislature. Later the State ratified the amendment after a lapse of 13 years by the casting vote of the Lt. Governor. Mandamus was asked against the Secretary of Kansas Senate to erase the endorsement of ratification from its record and it was denied. The Supreme Court of Kansas refused to review this denial on certiorari. The Supreme Court of the United States in an opinion, in which not more than 4 Justices took any particular view,. declined to interfere. Majority affirmed the decision of Supreme Court of Kansas. Four Justices considered that the question was political from start to finish and three Justices that the previous rejection of the law and the extraordinary time taken to ratify were political questions. Although the Supreme Court has scrupulously refrained from passing on the ambit of Art. V it has nowhere ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ution because of Art. 329. Baker v. Carr(1) makes the Court sit in judgement over the possession and distribution of politcal power which is an essential part of a Constitution. The magical formula of political questions is losing ground and it is to be hoped that a change may be Soon. coming. Many of the attacks on the amendments were the result of a misunderstanding that the Constitution Was a compact between States and that the allocation of powers was not to be changed at all. This was finally decided by Texas v. White (2) as far back as 1869. The main question of implied limitations has evoked a spate of writings. Bryce(s), Weaver(4), Mathews(5), Burdick(6), Willoughby(7), Willis(8), Rottshaefer(9), Orfield(10) (to name only a few) are of the opinion that there are no, implied limitations, although, as Cooley points out, it is sometimes expressly declared-what indeed is implied without the declaration that everything in the declaration of rights contained is excepted out of the general powers of Government, and all laws contrary thereto shall be void(11). Ex-press checks there are only three. Two temporary checks were operative till 1808 and dealt with interference with im ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amendment of this. character and it has not yet denied jurisdiction to itself. In the. United States the Constitution works because, as observed by Willis, the Supreme Court is allowed to do the work of remolding the Constitution to keep it abreast with new conditions and new times, and to allow the agencies expressly endowed with the; amending process to act only in extraordinary emergencies or when, the general opinion disagrees with the opinion of the Supreme Court. In our country amendments, so far have bean made only with the object of negativing the Supreme Court,decisions, but more of it later. I have referred to Orfield although there are greater names than his expounding the same views. I have refrained from referring to the opposite view which in the words of Willoughby has been strenuously argued by reputable writers although Willis discourteously referred to them in his book. My reason for not doing so is plainly this. The process of amendment in the United States is clearly not a legislative process and there is no provision like Art. 13 (2) under which laws abridging or taking away Fundamental Rights can be declared void. Our liberal Constitution has given t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ame). M.de Fleurian agreed that there was a lot of truth in it (ll ya du vrai dans cette boutade) (2). But of course to a Frenchman brought up in a legal system in which the Courts do not declare even an ordinary statute to be invalid, the idea of the unconstitutionality of a constitutional amendment does not even occur. France and Belgium have created no machinery for questioning legislation and rely on moral and political sanctions. Even an English lawyer and less so an American lawyer find it difficult to understand how the legality of an amendment of the Constitution can ever be questioned. It (1) Mannual Elementaire da Droil Constitutional (Sirey) p.. 117. (2) Recounted by M. de Fleuriau in the Preface to J. Magnan de Bornier, L Empire Britannique, son evolution politique et constitutionnelle p. 6, quoted in Wheare: The Statute of Westminster and Dominion status, P. 9-10. appears to them that the procedure for the amendment being gone through there is no one to question and what emerges is the Constitution as valid as the old Constitution and just as binding. The matter, however, has to be looked at in this way. Where the Constitution is overthrown and the Courts l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a directive principle. Some countries even view it as a Fundamental Right. The exercise, however, of that right must depend upon the capacity of Society to afford employment to all and sundry. The possession of this right cannot be confused with its exercise. One right here is positive and can be enforced although its, exercise can be curtailed or taken away, the other is a right which, the State must try to give but which cannot be enforced. The Constitution permits a curtailment of the exercise of most of the Fundamental Rights by stating the limits of that curtailment. But this power does not permit the, State itself, to take away or abridge the right beyond the limits set by the Constitution. It must also be remembered that the rights of one% individual are often opposed by the rights of another individual and thus also become limitative. The Constitution in this way permits the Fundamental Rights to be controlled in their exercise but prohibits their erasure. It is argued that such approach makes Society static and robs the State of its sovereignty. It is submitted that it leaves revolution as the holy alternative if change is necessary. This is not right. The whole Constitut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ody must conform to that article. To be able to abridge, or take away the Fundamental Rights which give so many assurances and guarantees a fresh Constituent Assembly must be, convoked. Without such action the protection of the Fundamental Rights must remain immutable and any attempt to abridge or take them away in any other way must be regarded as revolutionary. I shall now consider the amendments of the Fundamental Rights made since the adoption of the Constitution, with a view to illustrating my meaning. Part III is divided under different headings. They are (a), General (b) Right to Eqility (c) Right to Freedom (d) Right against exploitation (e) Right to Freedom of Religion (f) Cultural and Educational Rights (g) Right to Property (h) Right to Constitutional Remedies. I shall first deal with amendments of topics other than the topic (g)- Right to Property. The articles which are amended in the past are Art 15 and 19 by the 1st Amendment (18th June 1951) and Art, 16 by the 7th Amendment (19th October 1956). The 16th Amendment added the words the sovereignty and integrity of India to some clauses. As that does not abridge or take away any Fundamental Right, I shall not ref ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t remain backward. By the First Amendment the second and the sixth clauses of Art. 19 were also amended. The original cl. (2) was substituted by a new clause and certain words were added in clause (6). The changes may be seen by comparing the unamended and the amended clauses side by side : 19( 1) All citizens shall have the right- (a) to freedom of speech and expression; (2) (Before Amendment) (After Amendment) Nothing in sub-clause (a) of clause (1), Nothing in subclause (a) of clause ([1951]S.C.R.525.)shall affect the operation of any existing law in so far as it relates to, or prevent the State from making any law relating to libel, slander, defamation, contempt of Court or any matter which offends against decency or morality or which undermines the security or tends to overthrow, the State. shall affect the operation of any existing law, or prevent the State from making any law. in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said subclause in the interest of the... security of the State, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, defamation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... read the original and the amended clause side by side 19(1) All citizens shall have the right= (g) to practise any profession, or to carry on any occupation, trade or business. (1) [1952] S.C.R. 654. (6) (Before, Amendment) Nothing, in sub-clause (g) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests of the general public, reasonable restrictions on the exercise of the right conferred by the said sub-clause, and, in particular nothing in the said sub-clause, shall affect the operation of any existing law in so far as it prescribes or empowers any authority to prescribe, or prevent the State from making any law prescribing or empowering any authority to prescribe, the professional or technical qualifications necessary for practising any profession or carrying on any occupation, trade or business. (After Amendment) Nothing in sub-clause (g) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests of the general public, reasonable restrictions on the exerci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ement as to residence within that State or Union territory prior to such employment or appointment. The change, is necessary to include a reference to Union territory. It has no breaking upon Fundamental Rights., and, neither abridges nor, takes away any of them. In the result none of the, amendments, of the article. in parts other than that dealing with Right to property is, outside the amending process because Art. 13(2) is in no manner breached. This brings me, to the main question in this case,, It is whether the amendments of the part Right to Property in Part, III of the Constitution were legally made or not. To understand this part of the case I must first begin by discussing what property rights mean and how they were safeguarded by the Constitution as it was originally framed. Right to Property in Part III was originally the subject of one article, namely, Art. 31. Today there are three articles 3 1, 3 1 A and 31-B and the Ninth Schedule. The original thirty-first article read: 31 Compulsory acquisition of property. (1) Nov person shall be deprived of his property save by authority of law. (2) No property, movable or immovable, including any interest in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... perty . Article 19 1 ) (f ) is subject to clause (6) which I have already set out elsewhere and considered. Ownership and exchange of property are thus recognised by the article. The word property is is not defined and I shall presently consider what may be included in property . Whatever the nature of property, it is clear that by the first clause of Art. 3 1 the right to property may be taken away under authority of law. This was subject to one condition under the original Art. 3 1, namely, that the law must either fix the compensation for the deprivation or specify the principles on which and the manner in which compensation was to, be determined and given. This was the heart of the institution of property as understood by the Constituent Assembly. The rest of the article only gave constitutional support against the second clause, to legislation already on foot in the States. This created a Fundamental Right in property. The question may now be asked,:why- was it necessary to make such a Fundamental Right at all ? There is no natural right in property and as Burke said in his Reflections, Government is not made in virtue of natural rights, which may and do exist in to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 105. (3) W. Friedman:Legal Theory (4th Edn.) see pp. 373-376. (4) The Institution of Property (1936) p. 436. L3Sup CI/67-11 The right is enforced by excluding entry or interference by a per. son not legally entitled. The position of the State vis a vis the individual is the subject of Arts. 19 and 31, 31-A and 31-B. Now in the enjoyment, the ultimate right may be an interest which is connected to the object through a series of intermediaries in which each holder from the last to the first holds of the holder before him. Time was when there was a lot of free property which was open for appropriation. As Noyes( ) puts it, all physical manifestations capable of being detected, localised and identified can be the objects of property. One exception now made by all civilized nations is that humanbeings are no longer appropriable. If any free property was available then it could be brought into possession and ownership by mere taking. It has been very aptly said that all private property is a system of monopolies and the right to monopolise lies at the foundation of the institution of property. Pound(-) in classifying right in rem puts private property along with per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... if it contemplated socialization in the same way in India should not have insisted so plainly upon payment of compensation. Several speakers warned Pandit Nehru and others of the danger of the second clause of Art. 31, but it seems that the Constituent Assembly was quite content that under it the Judiciary would have no say in the matter of compensation. Perhaps the dead hand of s. 299 of the Constitution Act of 1935 was upon the Constituent Assembly. Ignored were the resolutions passed by the National Planning Committee of the Congress (1941) which had advocated the co-operative principle for exploitation of land, the Resolution of 1947 that land with its mineral resources and all other means of production as well as distribution and exchange must belong to and be regulated by the Community, and the warning of Mahatma Gandhi that if compensation had to be paid we would have to rob Peter to pay Paul(2) In the Constituent Assembly, the Congress (Which wielded the majority then, as it does today) was satisfied with the Reprt of the Congress Agrarian Reforms Committee 1949 which declared itself in favour of the elimination of all intermediaries between the State and the tiller and imp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... casioned an amendment because the matter could have been righted, as indeed it wag, by,an appeal to the Supreme Court [see State of Bihar v. Kameshwar(3)].The Constitution (First Amendment) Act, 1951 followed. It left Art. 31 intact but added two fresh articles, Arts. 31-A and 31-B which are respectively headed saving of laws providing for acquisition of estates etc. and Validation of certain Acts and Regulations and added a schedule (Ninth) to be read with Art 31-B naming thirteen Acts of the State Legislatures. Article 31-A was deemed always to have been inserted and Art. 31-B wiped out retrospectively all decisions of the courts which had. declared any of the scheduled Acts to be invalid. The texts of these new articles may now be seen: 31A. Saving of laws providing for acquisition of estates, etc.- (1) Notwithstanding anything in foregoing provisions of this Part, no law providing for the acquisition by the State of any estate or of any rights therein or for (1) Grotius : De jure Belli ac Pacis. 11 c. 2 2 (5)6. 1 c. I 6 and II c. 14 7 and 8. (2) A.L.R. 1951 Patna 91. (3) [1952] S.C.R. 889. the extinguishment or modification of any such rights shall be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tended easily to other spheres, the Fundamental Rights can be completely emasculated by a 2/3 majority, even though they cannot be touched in the ordinary way by a unanimousvote of the same body of men! The State Legislatures may drive a coach and pair through the Fundamental Rights and the Parliament by 2/3 majority will then put them outside the jurisdiction of the courts. Was it really intended that the restriction against the State in Arts. 13(2) might be overcome by the two agencies acting hand in hand ? Article 3 1 A dealt with the acquisition by the State of an .estate or of any rights therein or the extinguishment or modification of any such rights. A law of the State could do these with the President s assent, although,it took away or abridged any of the rights conferred by any provisions of Part Ill. The words estate and rights in relation to an estate were defined. The constitutional amendment was challenged in Sankari Prasad s case(1) on various grounds but was upheld mainly on two grounds to which I objected in Sajjan Singh s case(2). I have shown in this judgment, for reasons which I need not repeat and which must be read in addition to what I said on the earl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te a drift from the meetings of the American concept of private Property and judicial review to which our Constitution was hitherto tied, to that of socialism. (1) It is appropriate to recall here that as expounded by Professor Beard (2) (whose views offended Holmes and the Times of New York but which are now being recognised after his further explanation(3) the Constitution of the United States is an economic document prepared by men who were wealthy or allied with property rights, that it is based on the concept that the fundamental rights of property are anterior to Government and morally beyond the, reach of popular majorities and that the Supreme Court of the United States preserved the property rights till the New Deal era. The, threat at that time was to enlarge the Supreme Court but not to amend the Constitution. It appears that the Indian Socialists charged with the idea of Marx, the Webbs, Green, Laski and others viewed property rights in a different way. Pandit Nehru once said that he had no property sense,meaning that he did not value property at all. The Constitution seems to have changed its property significantly. In addition to avoiding (1) Basu : commentaries ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and Travancore Cochin any, Janmam right were inserted and deemed always to have been inserted and in clause (2) (b) after the words tenure-holder the words raiyat, under raiyat were inserted and deemed always tohave been inserted. Once again the reach of the State towards private property was made longer and curiously enough it was done retrospectively from the time of the Constituent Assembly and so to speak, in its name. As to the retrospective operation of these, Constitutional amendment. I entertain considerable doubt... A Constituent Assembly makes a new Constitution for itself. Parliament is not even a Constituent Assembly and to. abridge fundamental rights in the name of the Constituent Assembly appears anomalous. I am reminded of the conversation between apoleon and Abe . Sieyes, the, great jurist whose ability to draw up one Constitution after another has been recognised and none of whose efforts lasted for long. When Napoleon asked him what has survived ? Abe Sieyes answered I have survived . I wonder if the Constituent Assembly will be able to say the same thing What it had written or the, subject of property rights, appears to have been written on water. The F ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to it and there has been much debate as to where the judiciary comes in. Eminent lawyers have told us that on a proper construction of this clause, normally speaking the judiciary should not come in. Parliament fixes either the compensation itself or the principle governing that compensation and they should not be challenged except for one reason, where it is thought that there has been a gross abuse of the law, where, in fact, there has been a fraud on the Constitution. Naturally the judiciary comes in to see if there has been a fraud on the Constitution or not. (Constituent Assemembly Debates Vol. IX pp. 1193-1195.) He traced the evolution of property and observed that property was becoming a question of credit, of monopolies, that there were two approaches, the approach of the Individual and the approach of the community. He expressed for the for protection of the indi vidual s rights.(Constituent Assembly Debates Vol. IX p. 1135.) The attitude changed at the time of the First Amendment. Pandit Nehru propheised that the basic problem would come before the House from time to, time. That it has, there is no doubt, just as there is no doubt that each time the individual s rights ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uisition and requisition. What this amendment began, the Constitution (Seventeenth Amendment) Act, 1964 achieved in full. The Fourth Amendment had added to the comprehensive definition of right in relation to an estate, the rights of raiyats and under-raiyats. This time the expression estate in Art. 31 A was amended retrospectively by a new definition which reads: the expression estate shall, in relation to any local area, have the same meaning as that expression or its local equivalent has in the existing law relating to (1) See G.W. Paton : Text Book of Jurisprudence (1964) pp. 484-485. (2) Transformations du droit prive. land tenures in force in that area, and shall also include- (i) any jagir, inam or muafi or other similar grant and in the States of Madras and Kerala, any janmam right; (ii) any land held under ryotwari settlement; (iii) any land 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, The only saving of compensation is now to be found in the second ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ich compensation is to be determined. and given, and the adequacy of the compensation cannot be any ground of attack. Further still acquisition of estates and of rights therein and the taking over of property, amalgamation of corporations, extinguishment or modification of rights in companies and mines may be made regardless of Arts. 14, 19 and 31. In addition 64 State Acts are given special protection from the courts regardless of therein contents which may be in derogation of the Fundamental Rights. This is the kind of amendment which has been upheld in Sajjan Singh((1965] 1 S. C. R. 933.) case on the theory of the omnipotence of Art. 368. The State had bound itself not to enact any law in derogation of Fundamental Rights. Is the Seventeenth Amendment a law ? To this question my answer is a categoric yes. It is no answer to gay that this is an amendment and; therefore; not a law, or that it is passed by a special power of voting. It is the action of the State all the same. The State had put restraints on itself in law making whether the laws were made without Dr. within the Constitution.. it is also no answer to say that this Court in a Bench of five Judges on one, occasion ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted for the most part but was extended to include: (ii) any land held under ryotwari settlement; (iii) any land held or let 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. Further reach of acquisition or requisition without adequate compensation and without a challenge under Arts. 14, 19 and 31 has now been made possible. There is no kind of agricultural estate or land which cannot be acquired by the State even though it pays an illusory compensation. The only exception is the second proviso added to Art. 31-A(1) by which, lands within the ceiling limit applicable for the time being to a person personally cultivating his land, may be acquired only on paying compensation at a rate which shall not be less than the-market value. This may prove: to be an illusory protection. The ceiling may be lowered by legislation. The State may leave the person an owner in name and acquire all his. other rights. The latter question did come before this Court in two cases-Ajit Singh v. State of Punjab ([1967] 2 S. C. R. 143.) and Bhaga ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n (Seventeenth Amendment) Act, 1964. This brings me to the third section of the Act. That does no more than add 44 State Acts to the Ninth Schedule. The object of Art. 31-B, when it was enacted, was to save certain State Acts notwithstanding judicial decision to the contrary. These Acts were already protected by Art. 31. One can with difficulty understand such a provision. Now the Schedule is being used to give advance protection to legislation which is known apprehended to derogate from the Fundamental Rights. The power under Art. 368, whatever it may be, was given to amend the Constitution. Giving. protection to statutes of State Legislatures which offend the Constitution in its most fundamental part, can hardly merit the description amendment of the Constitution in fact in so cases it is not even known whether the statues in question stand in need of such aid. The intent is to silence the courts and not to amend the Constitution. If these Acts were , not included in the Schedule they would have to face the Fundamental Rights and rely on Arts. 31 and 31-A to save them. By this device protection far in excess of these articles is afforded to them. This in my judgment is not a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e remaining constituent sovereignty which is contained in the Preamble and Part III is in abeyance because of the curb placed by the People on the state under Art. 13(2). It is this power which can be reproduced. I have indicated the method. Watson(2) quoting Ames- On Amendments p. 1 note 2) points out that the idea that provision should be made in the instrument of Government itself for the method of its amendment is peculiarly American. But even in the Constitution of the United States of America some matters were kept away from the amendatory process Other temporarily or permanently. Our Constitution has done the same . Our Constitution provides for minorities, religions, socially and educationally backward peoples, for ameliorating the condition of depressed classes, for removing class distinctions, titles, etc. This reservation was made so that in the words of Madison(3), men of factious tempers, of local prejudices, or sinister designs may not by intrigue, by corruption, or other means , first obtain the suffrages and then betray the interests of the people. It was to plug the loophole such as existed in s. 48 of the Weimar Constitution( 4) that Art. 13 (2) was. adopted. of c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onstitution by acquiescence for a long time, cannot now be challenged and they contain authority for the Seventeenth Amendment; (iv) that this Court having now laid down that Fundamental Rights cannot be abridged or taken away by the exercise of amendatory process in Art. 368, any further inroad into these rights as they exist today will be illegal and unconstitutional unless it complies with Part III in general and Art. 13(2) in particular, (v) that for abridging or taking away Fundamental Rights, a Constituent body will have to be, convoked; and (vi) that the two impugned Acts, namely, the Punjab Security of Land Tenures Act, 1953 (X of 1953) and the Mysore Land Reforms Act, 1961 (X of 1962) as amended by act XIV of 1965 are valid under the Constitution not because they are included in schedule 9 of the Constitution but because the, are protected by Art. 31-A, and the President s assent. (1) 46 C. L. R. 155. (2) Legislative, Executive and Judicial Powers in Australia pp. 695-698. In view of my decision the several petit ions will be dismissed, but without costs. The State Acts Nos. 21-64 in the Ninth Schedule will have to be tested under Part HI with such protec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not less than one-half of the States by resolutions to that effect passed by those Legislatures before the Bill making provision for such amendment is presented to the President for assent. The contention that article 368 prescribes only the procedure of amendment cannot be accepted. The article not only prescribes the procedure but also gives the power of amendment. If the procedure of art.368 is followed, the Constitution shall stand amended in accordance with the terms of the bill. It is because the power to amend is given by the article that the Constitution stands amended. The proviso is enacted on the assumption that the several articles mentioned in it are amendable. The object of the proviso is to lay down a stricter procedure for amendment of the articles which would otherwise have been amendable under the easier procedure of the main part. There is no other provision in the Constitution under which these articles can be amended. Articles 4, 169, Fifth Schedule Part D, and Sixth Schedule Para 21 empower the Parliament to. pass laws amending the provisions of the First, Fourth, Fifth and Sixth Schedules and making amendments of the Constitution consequential on th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... If such a law purports to amend the Constitution, it will be void. Under the residual power of legislation, the Parliament has no power to make any law with respect to any matter enumerated in Lists II and III of the 7th Schedule but under art. 368 even Lists II and III can be amended. The procedure for constitutional amendments under art. 368 is different from the legislative procedure for passing laws under the residual power of legislation. If a constitutional amendment could be made by recourse to the residual power of legislation and the ordinary legislative procedure, art. 368 would be meaningless. The power of amending the Constitution is to be found in art. 368 and not in art. 248 and List I item 97. Like other Constitutions, our Constitution makes express provisions for amending the Constitution. The heading of art. 368 shows that it is a provision for amendment of the Constitution, the marginal note refers to the procedure for amendment and the body shows that if the procedure is followed, the Constitution shall stand amended by the power of the article. Chapter VIII of the Australian Constitution consists of a single section (S. 128). The heading is Alteration of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (1)....................................... (2) The State shall not make any law which takes away or abridges the tights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void. Now art. 3 68 gives, the power of amending each and every provision of the Constitution Art. 13 (2) is a part of the Constitution and is within the reach of the amending power. In other words art 13 (2) is subject to the overriding power of an. 368 and is controlled by it. Art. 368 is not controlled by art. 13 (2) and the (1) 253 U.S. 350 : 64 LE.d. 946. prohibitory injunction in art. 13(2) is not directed against the amending power Looked at from this broad angle, art. 13 (2) does not forbid the making of a constitutional amendment abridaing or taking away any right confesed by Part III. Let us now view the matter from a narrower angle. The contention is that a constitutional amendment under art. 368 is a law within the meaning of art. 13. 1 am inclined to think that this narrow contention must also be rejected. In art. 13 unless the context otherwise provides law includes any ordinance, order, bye-law, rule, regulation, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mplate them as forming the fundamental and paramount law of the nation, and, consequently, the theory of every such government must be, that an Act of the Legislature, repugnant to the Constitution, is void. This theory is essentially attached to a written constitution, and is consequently to be considered, by this court, as one of the fundamental principles of our society. It is because a Constitution Amendment Act can amend the Constitution and is not a law that art. 368 avoids all reference to law making by the Parliament. As soon as a bill is passed in conformity with art. 368 the Constitution stands amended in accordance with the terms of the bill. The power of amending the Constitution is not an ordinary law making power. It is to be found in art. 368 and not in articles 245, 246 and 248 and the Seventh Schedule. Nor is the procedure for amending the Constitution under art. 368 an ordinary law making procedure. The common feature of the amending process under art, 368 and the legislative procedure is that a bill must be passed by each House of Parliament and assented to by the President. In other respects the amending process under art. 368 is very different from the ordi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ake it away by the same process. Shri A. K. Sen relied upon a decision of the Oklahoma Supreme Court in Riley v. Carter(1) where it was held that for some purposes the Constitution of a State was one of the laws of the State. But even in America, the term law does not ordinary include the- Constitution or a constitutional amendment in this connection, I will read the following passage in Corpus Juris Secundum, Vol, XVI Title Constitutional Law Art. 1, P. 20: .lm15 The term constitution is ordinarily employed to designate the organic law in contradistinction to the term law, which is generally used to designate statutes Or legislative enactments. Accordingly the term law. under this distinction does not include a constitutional amendment. However, the term law may, in accordance with the context in which it is used, comprehend or included the constitution or a constitutional provision or amendment. A statute and a constitution, although of unequal dignity,, are both laws , and rest on the will of the people. (1) 88 A:A.L.R. 1008. In our Constitution, the expression law does not include either the constitution or a constitutional amendment. For all these r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Demands for safeguards of the rights embodied in Part III and IV may be traced to the Constitution of India Bill 1895, the Congress Resolutions between 1917 and 1919, Mrs. Beasan s Commonwealth of India Bill of 1925, the Report of the Nehru Committee set up under the Congress Resolution in 1927, the Congress Resolution of March. 1931 and the Sapru Report of 1945. The American bill of rights,the constitutions of other countries the declaration of human rights by the United Nations and other declarations and charters gave impetus to the demand. In this background the Constituent Assembly embodied in preamble to the Constitution the resolution to secure to all citizens social, economic and political justice, liberty of thought, expression, belief, faith and worship, equality of status and opportunity and fraternity assuring the dignity of the individual and the unity of the nation and incorporated safeguards as to some human rights in Parts III and IV of the Constitution after separating them into two parts on the Irish model. Part III contains the passive obligations of the State. It enshrines the right of life, personal liberty, expression, assembly, movement, residence, avocat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... adras v. Champakam(1), substituted a new cl. (2) in art. 19 with retrospective effect chiefly with a view to be in public order within the permissible restrictions and to supersede the decisions in Romesh Thappar v. State of Madras( ), Brij Bhushan v. State of Delhi(- ),, amended cl. (6) of art. 19 with a view to free state trading monopoly from the test of reasonable ness and to supersede the decision in Moti Lal v. Government of State of Uttar Pradesh(). Under the stress of the First amendment it is now suggested that Champakam s case( ), Romesh Thappar s case( ) and Motilal s(4) case were wrongly decided, and the amendments of articles 15 and 19 were in harmony with the original Constitution and made no real change in it. It is to be, noticed however that before the First amendment no attempt was made to overrule these cases, and but for the amendments, these judicial interpretations of the Constitution would have continued to be the law of the land. The Zamindari Abolition Acts were the subject of bitter attack by the zamindars. The Bihar Act though protected by cl. 6 of art. 31 from attack under art. 31 was struck down as violative of art. 14 by the Patna High Court (see the S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sede the decisions in Karimbil Kunhikoman v. State of Kerala (4 ) and A. P. Krishnaswami Naidu v. State of Madras( ) and added a proviso to art. 31A and included 44 more Acts in the Ninth Schedule, as some of the Acts had been struck down as unconstitutional. The validity of the Seventeenth amendment was upheld in Sajjan Singh s case( ). Since 1951, numerous decisions of this Court have recognised the validity of the First, Fourth and Seventeenth amendments. If the rights conferred by Part III cannot be abridged or taken away by constitutional amendments, all these amendments would be invalid. The Constitution makers could not have intended that the rights conferred by Part TIT could not be altered for giving effect to the policy of Part TV. Nor was it intended that defects in Part III could not be cured or that possible errors in judicial interpretations of Part III could not be rectified by constitutional amendments. There are, other indications in the Constitution that the fundamental rights are not intended to be inviolable. Some of the articles make express provision for abridgement of some of the fundamental rights by law (see articles 16(3), 19(1) to (6), 22(3), 23(2), 25 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... they have been retained by the people and made, paramount to the delegated powers, as in the American Model. I find nothing in the passage contrary to the view unequivocally expressed by the same learned Judge in Sri Sankari Prasad Singh Deo s((1952] S.C.R. 89.) case that the fundamental rights are amendable. The power to frame the Constitution was vested in the Constituent Assembly by s. 8 (1 ) of the Indian Independence Act, 1947. The Constitution though legal in its origin was revolutionary in character and accordingly the Constituent Assembly exercised its powers of framing the Constitution in the name of the people. The objective resolution of the Assembly passed on January 22, 1947 (1) [1960] 3 S.C.R. 250,261-2,281 solemnly declared that all power and authority of sovereign independent India, its constituent parts, and organs and the Government were derived from the people. The preamble to the Constitution declares that the people of India adopts, enacts and gives to themselves the Constitution. In form and in substance the Constitution emanates from the people. By the Constitution. the people constituted themselves into a republic. Under the republic all public po ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Normally the change is made with the object of making an improvement, but the experiment may fail to achieve the purpose. Even the plain dictionary meaning of the word amend does not support the contention that an amendment must take an improvement, see Oxford English Dictionary where the word amend is defined thus : 4. to make professed 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. The 1st, 4th, 16th and. 17th Amendment Acts made changes in Part III of the Constitution. All the changes are authorized by art. 368. It is argued that under the amending power, the basic features .,of the Constitution cannot be amended. Counsel said that they could not give an exhaustive catalogue of the basic features, but sovereignty, the republican form of government the federal structure and the fundamental rights were some of the features. The Seventeenth Amendment has not derogated from the sovereignty, ,the republican form of government and the federal structure, and the question whether they can be touched by amendment does not arise for decision. For the purposes of these cases, i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entatives of the provinces elected by,the members of the lower houses of the provincial legislatures and representatives of the Indian States elected by electoral colleges constituted by the rules. The draft Constitution was released on February 26, 1948While the Constitution was on the anvil it was envisaged the, future Parliaments would be elected on the basis of adult suffrage. Such a provision was later incorporated in art. 326 of the Constitution. In a special article written on August 15, 1948, Sir B., N. Rau remarked: It seems rather illogical that a constitution should be settled by a simple majority by an assembly elected indirectly on a very limited franchise and that it should not be capable of being amended in the same way by a Parliament elected-and perhaps for the most Part elected directly by adult suffrage , (see B. N. Rau India s Constitution in the making, 2nd Edition p. 394). The conditions in India were rapidly changing and the country was in a state of flux politically and economically. Sir B. N. Rau therefore recommended that the Parliament should be empowered to amend the Constitution by its ordinary law making process for at least the first five year ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... idity of the amendments. A static system of. laws is the worst tyranny that any constitution can impose upon a country.. An unamendable constitution means that all. reform and progress are at a standstill. If Parliament cannot amend Part III of the Constitution even by recourse to art. 368, no other power can do so. There is no, provision in the Constitution for calling a convention for its revision or for submission of any proposal for amendment to the referendum. Even if power to call a convention or to submit a proposal. to the refere be taken by amendment of art. 368, Part III. would sip remain unamendable on the assumption that a constitutional amendment is a law. Not even the unanimous vote of the 500 million citizens or their representatives, at a special convocation could amend Part III. The deadlock could be resolved by revolution only. Such a consequence was not intended by the framers of the Constitution. The Constitution is meant to endure. It has been suggested that the Parliament may provide for another Constituent Assembly by amending the Constitution and that Assembly can amend Part III and take away or abridge the fundamental rights. Now if this proposition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rospectively validated the Acts mentioned in the Ninth Schedule notwithstanding any judgment decree or order of any court though they take away or abridge the rights conferred by Part Ill. It is said that the Acts are still-bom and cannot be validated. But by force of Art. 31B the Acts are deemed never to have become void and must be regarded as valid from their inception. The power to amend the Constitution carries with it the power to make a retrospective amendment. It is Said that art. 3 1B amends art. 141 as it alters the law declared by this Court on the validity of the Acts. This argument is baseless. As the Constitution is amended retrospectively, the basis upon which the judgments of this Court were pronounced no longer exists, and the law declared by this Court can have no application. It is said that art. 3 1B is a law with respect to land and other matters within the competence of the State Legislature, and the Parliament has no power to enact such a law. The argument is based on a misconception. The Parliament has not passed any of the Acts mentioned in the Ninth Schedule. Art. 3 IB removed the constitutional bar on the making of the Acts. Only the Parliament could remo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ust be struck down for the future. The argument leans on the ready made American doctrine of prospective overruling. Now the First, Fourth, Sixteenth and Seventeenth Amendment Acts take away and abridge the rights conferred by Part M. If they are laws they are necessarily rendered void by art. 13(2). If they are void, they do not legally exist from their very inception. They cannot be valid from 1951 to 1967 and invalid thereafter. To say that they were valid in the past and will be invalid in the future is to amend the Constitution. Such a naked power of amendment of the Constitution is not given to the Judges. The argument for the petitioners suffers from a double fallacy, the first that the Parliament has no power to amend Part III so as to abridge or take away the entrenched property rights, and the second that the Judges have the power to make such an amendment. I may add that if the First and the Fourth amendments are valid, the Seventeenth must necessarily be valid. It is not possible to say that the First and Fourth amendments though originally invalid have now been validated by acquiescence. If they infringed art. 13(2),t they were void from their inception. Referring t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... according to Dr. Ambedkar an amendment of the articles mentioned in Part. III and 368 requires two-thirds majority plus ratification by the States He seems to have assumed (as reported) that the provisions of Part III fall within the. proviso to art. 368. But he never said that part III was s not amendale. He maintained consistently that all the articles of the Constitution are amendable under art. 368 On November 4, 1948, be. said : The second means adopted to avoid rigidity and legalism is the provision for facility with which the Constitution could be amended. The provisions of the Constitution relating to the amendment of the Constitution divide the Articles of the Constitution into two groups. In the one group are placed Articles relating to (a) the distribution of legislative powers between the Centre and the States, (b) the representation of the States in Parliament, and (c) the powers of I the Courts. All other Articles are placed in another group. Articles placed in the second group cover a very large part of the Constitution and can be amended by Parliament by a double majority, namely, a majority of not less than two-thirds of the members of each House present and vo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... less and until the Constitution itself is amended by means left open to the legislature. (2) On November- 25, 1949, Dr. Ambedkar strongly refuted the suggestion that fundamental rights should be absolute and unalterable. He said: The condemnation of the Constitution largely comes from-two quarters, the Communist Party and the Socialist Party.......... The second thing that the Socialists want is that the Fundamental Rights mentioned in the Constitution must be absolute and without any limitations so that if their Party comes into power, they would have the unfettered freedom not merely to criticize, but also to overthrow the State............ Jefferson, the great American statesman who played so great a part in the making of the American Constitution, has expressed some- very weighty views which makers of Constitution can never afford to ignore. In one place, he has said:- We may consider each generation as a distinct nation, with a right, by the will of the majority, to bind themselves, but none to bind the succeeding generation, more than the inhabitants of another country. In another place, he has said: The idea that institutions established for the use of the nation c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hould be a certain flexibility. If you make anything rigid and permanent, you stop a Nation s growth, the growth of living vital organic people. Therefore it has to be flexible. (Constituent Assembly Debates Vol. 7, p. 322.) The views of Jefferson echoed by Ambedkar and Nehru were more powerful expressed by Thomas Paine in 1791 There never did, there never will, and there never can, exist a parliament, or any description of men, or any generation of men, in any country, possessed of the right or the power of binding and controuling posterity to the end of time , or of commanding for ever how the world. shall be governed, or who shall govern it-, and therefore all such clauses, acts or declarations by which the makers of them attempt to do what they have neither the right nor the power to do, nor take power to execute, are in themselves null and void. Every age and generation must be as free to act for itself in all cases as the ages and generations which preceded it. The vanity and presumption of governing beyond the grave is the most ridiculous and insolent of all tyrannies. Man has no property in man; neither has any generation a property in the generations which are to follo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er his personal cultivation, it shall not be lawful for the State to acquire any portion of such land as is within the ceiling limit applicable to him under any law for the time being in force or any building or structure standing thereon or appurtenant thereto, unless the law relating to the acquisition of such land, building or structure, provides for payment of compensation at a rate which shall not be less than the market value thereof. Section 2(ii) substitutes the following subclause for sub-cl. (a) of cl. (2) of Art. 31-A (a) the expression estate shall, in relation to any local area, have the same meaning as that expression or its local equivalent-has in the existing law relating force in that area and all to land tenures in also include- (i) any jagir, inam or muafi or other similar grant and in the States-of Madras and Kerala, any ianmam right; (ii) any land held under ryotwari settlement; (iii) any land held or let for purposes of agriculture or for purposes ancillary there to, including wast land, forest land, land for posture or ones of buildings and other structures occupied by cultivators of land, agricultural labourers and village artisans; Se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... idity of the corresponding legislation in Uttar Pradesh and Madhya Pradesh respectively (See Kameshwar Uttar Pradesh and Madhya Pradesh by enacting legislation which v. State of Bihar(1) and Surya Pal v. U.P. Government(1). The parties aggrieved by these respective decisions had filed appeals by special leave before this Court.At the same time petitions had also been preferred before this Court under Art. 32 by certain other Zamindars, seeking the determination of the same issues It was atstage that the Union Government, with a view to put an endall this litigation and to remedy what they considered to be certain defects brought to light in the work of the Constitution, brought forward a bill to amend the Constitution, which,. after undergoing amendments in various particulars, was passed by the require majority as the Constitution (First Amendment) Act, 1951 by which Arts. 31-A and 31-B were added to the Constitution. That was the first step taken by Parliament to assist the process of legislation to bring about agrarian reform, by introducing Articles 31-A and 31- B. The second step in the same direction was taken by Parliament in 1955 by amending Art. 31-A by the Constitution (F ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en similarly declared invalid, and in consequence, Parliament thought it necessary to make a further amendment in Art: 31-B so as to gave the validity of these Acts which had been struck down and of other similar Acts which were likely to be challenged. With that object in view, the impugned Act has enacted S. 3 by which 44 Acts have been added to Schedule 9. It is therefore clear that the object of the First, Fourth and the Seventeenth Amendments of the Constitution was to help the State Legislatures to give effect to measures of agrarian reform in a broad and comprehensive sense in the interests of a very large section of Indian ,citizens whose social and economic welfare closely depends on the persuit of progressive agrarian policy. The first question presented for determination in this case is whether the impugned Act, in so far as it purports to take away or abridge any of the fundamental rights conferred by Part III .or the Constitution,falls within the prohibition of Art. 13 (2) which provides that the State, shall, not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall to the extent of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... strued so as to include law made by Parliament under Arts. 4, 169, 392, 5th Schedule Part D and 6th Schedule para 2 1. The amending power of Parliament exercised under these Articles stands on the same as the constitutional amendment made under Art. U8 so far as Art. 13(2) is concerned and does not fall within the definition of law within the meaning of this last article. It is necessary to add that the definition of law in Art. 13(3) does not include in terms a constitutional amendments though it includes any Ordinance,, order, bye-law, rule, regulation, notification, custom or usage . It should be noticed that The language. of Art. 3 6 8 is perfectly general and empowers Parliament to amend the Constitution without any exception Whatsoever. H I ad it been intended by the Constitution-makers that the fundamental rights guaranteed under Part III should be completely outside the scope of Art. 368, it is reasonable to assume that they would have made an express provision to that effect. It was stressed by the petitioners during the course of the, argument that Part III is headed as Fundamental Rights and that Art. 32 guarantee s the right to move the Supreme Court by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mbiguously indicate that the substantive part of the article applied to all the provisions of the Constitution. It is on that basic assumption that the proviso prescribes a specific procedure in respect of the amendment of ,the articles mentioned in cls. (a) to (e) thereof. Therefore it must be held that when Art. 368 confers on Parliament the right to amend the Constitution the power in question can be exercised over all the provisions of the Constitution. How the power should be exercised, has to be determined by reference to the question as to whether the proposed amendment falls under the substantive part of Art. 368, or whether it attracts the procedure contained in the proviso. It was suggested for the petitioners that the power of amendment is to be found in Arts. 246 and 248 of the constitution read with item 97 of List I of the 7th Schedule. I do not think that it is possible to accept this argument. Article 246 stats that Parliament has exclusive power to make laws with respect to matters enumerated in List I in the Seventh Schedule, and Art. 248, similarly, confers power on Parliament to make any law with respect to any matter not enumerated in the Concurrent List or Sta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the proviso to Art. 368 or under the main part of that Article. In MY opinion, there is no room for an. implication in the construction of Art. 368. So far as the federal character of the Constitution is concerned, it was held by this Court in State of West Bengal v. Union of Cl/67-14 India([1964] 1 S.C.R. 371 p 405) that the federal structure is not an essential pan of our Constitution and there is no compact between the States and them is no dual citizenship in India. It was pointed out in that case that there was no constitutional guarantee against the alteration of boundaries of the States. By An. 3 the Parliament is by law authorised to form a new State by redistribution of the territory of a. State or by uniting two or more States or parts of States or by uniting any territory to a part of any State, to increase the area of any State, to diminish the area of any State to alter the boundaries of any State, and to alter the name of any State. In In Re The Berubari Union and Exchange of Enclaves ([1960] 3 S.C.R. 250.) it was argued that the Indo-Pakistan agreement with regard to Berubari could not be implemented even by legislation under Art. 368 because of the limitation impos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e implementation and harmonisation of these. somewhat conflicting principles is a dynamic task. The adjustment between freedom and compulsion, between the rights of individuals and the social interest and welfare must necessarily be a matter for changing needs and conditions. The proper approach is therefore to look upon the fundamental rights of the individual as conditioned by the social responsibility, by the necessities of the Society, by the balancing of interests and not as pre-ordained and untouchable private rights. As pointed out forcefully by Laski: The struggle for freedom is largely transferred from the plane of political to that of economic rights. Men become less interested in the abstract fragment of political power an individual can secure than in the use of massed pressure of the groups to which they belong to secure an increasing share of the social Product. Individualism gives way before socialism. The roots of liberty are held to be in the ownership and control of the instruments of production by the state, the latter using its power to distribute the results of its regulation with increasing approximation to equality. So long, as there is inequality, it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... invalidate that Act on the ground of contravention of cl. (2) of that Article Similarly, the scheme of Art 19 indicates that the fundamental rights guaranted by sub-cls. (a) to (g) of cl, (1) can be validly regulated in the light of the provisions contained in cls. (2) to (6) of Art. 19. In other words, the scheme of Art.19 is two-fold; the fundamental rights of the citizens are of paramount importance, but even the said fundamental rights can be regulated to serve the interests of the general public or other objects mentioned respectively in cls. (2) to (6) of Art. 19. It is right to state that the purposes for which fundamental rights can be regulated which are s specified in cls. (2) to (6), could not have been assumed by the Constitution-makers to be static and incapable of expansion. It cannot be assumed that the Constitution-makers intended to forge a political strait jacket for generations to come. The Constitutionmakers , must have anticipated that in dealing with, socioeconomic problems which the 1egislatures may have to face from time to time, the concepts of public interest and other important considerations which are the basis of cls. (2) to (6), may change and may even ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the political body in which the Sovereignty rests, the test to be applied is the determination of which authority has, in the last instance, the legal power to determine its own competence as well as that of others . Applying the criteria of sovereignty which were laid down at the beginning of this chapter, the amending, body is sovereign as a matter of both law and fact. Article Five expressly creates the amending body. Yet in a certain manner of speaking the amending body may be said to exist as a matter of fact since it could proceed to alter Article Five or any other part of the Constitution. While it is true that the sovereign cannot act otherwise than in compliance with law, it is equally true that it creates the law in accordance with which it is to act. In his book Constitutional Law of the United States , Hugh Evander Willis says that the doctrine of amendability of the Constitution is based on the doctrine of the sovereignty of the people ,and that-it has no such implied limitations as that an amendment shall not contain a 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 Ri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xample,article 95 of our constitution stipulates, The republican form of Government cannot be the subject of a proposal for amendment. But juridically the obstacle which this provision puts in the way of an amendment of the republican form of government can be lifted as follows. It is enough to abrogate, by way of amendment (revision) the article 95 cited, above. After this, the obstacle being removed, a second amendment can deal with the republican form of Government. In practice, this corresponds to the idea that the constituent assembly of today cannot bind the nation of tomorrow. the argument of implied limitation was advanced by Mr. N. C. Chatterji and it was contended that item No. 3 of the Indo- Pakistan Agreement providing for a division of Berubari Union between India and Pakistan was outside the power of constitutional amendment and that the preamble to the, Constitution did not permit 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 Ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r into the national organic law, except, through revolution. This, the plaintiff concedes, is the inevitable conclusion of its contention. This is so starting a proposition that the judicial mind may be pardoned for not readily acceding to it, and for insisting that only the most convincing reasons will justify its acceptance. I am, therefore, of the opinion that the petitioners Are unable to make good their argument on this aspect of: the case. It was then contended for the petitioners,that there would be anomalies if Art. 368 is interpreted to have no implied limita tions. It was said that the more important articles of the Constitution can be amended by the procedure mentioned in the substantive part of Art. 368 but the less important articles would require ratification by the legislatures of not less than half of the States under the proviso to that Article. It was argued that the fundamental rights and also Art. 32 could be 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 ame ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... power of this description. In the last analysis, political machinery and artificial limitations will not protect the people from themselves. The perpetuity of our democratic institutions will depend not upon special mechanisms or devices, nor even upon any particular legislation, but rather upon the character and intelligence and the good conscience of our people themselves. As observed by Frankfurter, 1. in American Federation of Labour v. American Sash Door Co.(335 U.S. 538,556.) But a democracy need rely on the courts to save it from its own unwisdom. If it is alert-and without alertness by the people there can be no enduring democracy unwise or unfair legislation can readily be removed from the statute books. It is by such vigilance over its representatives that democracy proves itself I pass on to consider the next objection of the petitioners that the true purpose and object of the impugned Act was to legislate in respect of land and that legislation 1n respect of land falls within the jurisdiction of State legislatures under Entry 18 of List 11, and the argument was. that since the State Legislatures alone can make laws in respect of land, Parliament had no right to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The impugned Act does not purport to change the provisions of Art. 226 and it cannot be, said even to have that effect directly or in any substantial measure. It is manifest that the newly inserted articles do I not either in terms or in effect seek to make any change in Art. 226 of the Constitution. Article 31-A aims at saving laws providing for the compulsory acquisition by the State of a certain kind-of property from the operation of article 1 3 read with other relevant articles in Part III, while article 31-b purports to validate certain specified Acts g Regulations, already passed, which, but for such a; provision , would be liable to be impugned under Art. 13 It is therefore not correct to say that the powers of High Courts to issue writs is, in any way, affected. The jurisdiaction of the High Courts remains just the same as it Was before. Only a certain category-of cases has been excluded from the purview of Part III and the High Courts can no longer intervene, not because their Jurisdiction or powers have been curtailed in any manner or to. any but because there would be no occasion hereafter for the exercise of their power in such cases. As I have already said, the effe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ordinary assault, will be illegaL Unless such conclusion necessarily follows from the article, it is obvious that such construction should be avoided. In my opinion, suc h result is. clearly not the outcome of the Constitution. The article has to be read without any pre-conceived notions. So read, it clearly means that the legislation to be examined must be directly in respect of one of the rights mentioned in the sub-clauses. If there is a legislation directly attempting to control a citizen s freedom of speech or expression, or his right to assemble peaceably and without arms, etc., the question whether that legislation is saved by the relevant saving clause of article 19 will arise. If, however, the legislation is not directly in respect of any of these subjects but as a, result of the operation of other legislation, for instance, for punitive or preventive detention, his right under any of these subclauses is abridged, the question of the application of article 19 does not arise. Me 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... validity will have to be tested by Art. 13(2) itself. All these arguments were rejected by this Court and it was held in that case that the Constitution (First Amendment) Act was legally valid. The same question arose for consideration in Sajjan Singh v. State of Rajasthan ([1963] 1 S.C. R. 933.) with regard to the validity of the Constitution (Seventeenth Amendment) Act, 1964. In that case, the petitioners in their Writ Petitions in this Court contended that the Constitution (Seventeenth Amendment) Act was constitutionally invalid since the powers Prescribed by Art. 226 which is in Ch. V, Part VI of the Constitution Were likely to be affected by the Seventeenth Amendment, and therefore the special procedure laid down under Art. 368 should have been followed. It was further contended in that case that the decision of this court in Sankari Prasads(1) case should be reconsidered. Both the contentions were re-, rejected by this Court by a majority 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 socioeconomic policy of the party inpower and its ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... so that some surplus land, may be made available for redistribution to the landless agricultural workers. Another important part of, the progamme was consolidation of agricultural holdings and increse in the sizeof the operational unit to an economic scale through cooperative methods. Aboiition of Intermediaries.-During the past 15 years, progress has been made in several directions. Theprogramme for the abolition of intermediaries has been carried out practically all over, the country. About 20 million tenants of former intermediaries came into direct relationship with the State and became owners of their holdings. State Governments are now engaged in the assessment and payment of compensation. There were some initial delays but a considerable progress hag been made in this direction in recent years and it is hoped that the issue of compensatory bonds will be completed in another two years. Tenancy 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 owne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ferent view and to hold that the impugned Act is unconstitutional I am of opinion that the principle of state decisis must be applied to the present case and the plea made by the, petitioners for reconsideration of Sankari Prasad([1952] S.C.R. 89.) case and the decision in Sajjan Singh v. State of Rajasohan([1965] S.C.R. 933.) is wholly unjustified and must be rejected. In Writ Petition No. 202 of 1966, it was contended by Mr. Nambyar that the continuance of the Proclamation of Emergency under Art. 352 of the Constitution was a gross violation of power because the emergency had ceased to exist. It was also contended that Art. 358 should be so construed as to confine its operation on to legislative or executive action relevant to the Proclamation of Emergency. It was submitted that the Mysore State was rot a border area and the land reform legislation of that State had no relevant-connection with the Proclamation of Emergency and the fundamental rights conferred by Art. 19 cannot be suspended so far as the petitions are concerned. I do not think that it is necessary to express any opinion on these points because the Writ Petition must fail on the other grounds which I have alread ..... X X X X Extracts X X X X X X X X Extracts X X X X
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