TMI Blog1980 (7) TMI 262X X X X Extracts X X X X X X X X Extracts X X X X ..... 55 of the Constitution (42nd Amendment) Act, 1976 transgress that limitation, on the amending power. Petitioner No. 1 which is a limited company owned a textile undertaking called Minerva Mills situated in the State of Karnataka. This undertaking was nationalised and taken over by the Central Government under the provisions of the Sick Textile Undertakings (Nationalisation) Act, 1974. Petitioners 2 to 6 are shareholders of Petitioner No. 1, some of whom are also unsecured creditors and some secured creditors. Respondent 1 is the Union of India. Respondent 2 is the National Textile Corporation Limited in which the textile undertaking of Minerva Mills comes to be vested under section 3(2) of the Nationalisation Act of 1974. Respondent 3 is a subsidiary of the 2nd respondent. On August 20, 1970, the Central Government appointed a Committee under section 15 of the Industries (Development and Regulation Act, 1951 to make a full and complete investigation of the affairs of the Minerva Mills Ltd., as it was of the opinion that there had been or was likely to be substantial fall in the volume of production. The said Committee submitted its report to the Central Government in Janua ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the broad contours of the preamble, made in order to carry out the basic objectives of the Constitution. Accordingly, every provision of the Constitution was open to amendment provided the basic foundation or structure of the Constitution was not damaged or destroyed. Shelat and Grover, JJ. held that the preamble to the Constitution contains the clue to the fundamentals of the Constitution. According to the learned Judges, Parts III and IV of the Constitution which respectively embody the fundamental rights and the directive principles have to be balanced and harmonised. This balance and harmony A between two integral parts of the Constitution forms a basic element of the Constitution which cannot be altered. The word amendment occurring in Article 368 must therefore be construed in such a manner as to reserve the power of the Parliament to amend the constitution, but not so as to result in damaging or destroying the structure and identity of the Constitution. There was thus an implied limitation in the amending power which precluded Parliament from abrogating or changing the identity of the Constitution or any of its basic features. Hegde and Mukherjea, JJ. held that the C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned Judges and held that the word amendment postulated that the Constitution must survive without loss of its identity, which meant that the basic structure or framework of the Constitution must survive any amendment of the Constitution. According to the learned Judge. although it was permissible to the Parliament. in exercise of its amending power, to effect changes so as to meet the requirements of changing conditions it was not permissible to touch the foundation or to alter the basic institutional pattern. Therefore, the words amendment of the Constitution , in spite of the width of their sweep and in spite of their amplitude, could not have the effect of empowering the Parliament to destroy or abrogate the basic structure or framework of the Constitution. The summary of the various judgments in Kesavananda Bharati (Supra) was signed by nine out of the thirteen Judges. Paragraph 2 of the summary reads to say that according to the majority, Article 368 does not enable Parliament to alter the basic structure or framework of the Constitution . Whether or not the summary is a legitimate part of the judgment, or is per incuriam for the scholarly reasons cited by authors, it i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... section 55 of the 42nd Amendment. It introduces two new clauses in Article 368, namely, clauses 4 and S. Clause S speaks for itself and is self explanatory. Its avowed purpose is the removal of doubts but after the decision of this Court in Kesavananda Bharati (Supra), there could be no doubt as regards the existence of limitations on the Parliament s power to amend the Constitution. In the context of the constitutional history of Article 368, the true object of the declaration contained in Article 368 is the removal of those limitations. Clause S confers upon the Parliament a vast and undefined power to amend the Constitution, even, so as to distort it out of recognition. The theme song of the majority decision in Keshvanand Bharati (Supra) is: Amend as you may even the solemn document which the founding fathers have committed to your care, for you know best the needs of your generation. But, the Constitution is a precious heritage; therefore, you cannot destroy its identity . The majority conceded to the Parliament the right to make alterations in the Constitution so long as they are within its basic framework. And what fears can that judgment raise or misgivings generate if i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch no exception can be taken. Those amendments are not only within the framework of the Constitution but they give vitality to its philosophy they afford strength and succor to its foundation. By the aforesaid amendments, what was originally described as a Sovereign Democratic Republic became a Sovereign Socialist Secular Democratic Republic and the resolution to promote the unity of the Nation was elevated into a promise to promote the unity and integrity of the Nation . These amendments furnish the most eloquent example of how the amending power can be exercised consistently with the creed of the Constitution. They offer promise of more, they do not scuttle a precious heritage. In Smt. Indira Nehru Gandhi v. Raj Narain, Khanna, J. struck down clause 4 of Article 329A of the Constitution which abolished the forum for adjucating upon a dispute relating to the validity of an election, on the ground that the particular Article which was introduced by a constitutional amendment violated the principle of free and fair elections which is an essential postulate of democracy and which, in its turn, is a part of the basic structure of the Constitution. Mathew, J. also struck down ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he strength of a constitutional amendment which is not open to challenge. Clause 4 of Article 368 is in one sense an appendage of Clause 5, though we do not like to describe it as a logical consequence of Clause 5. If it be true, as stated in clause 5, that the Parliament has unlimited power to amend the Constitution, courts can have no jurisdiction to strike down any constitutional amendment as unconstitutional. Clause 4, therefore, says nothing more or less than what clause 5 postulates. If clause 5 is beyond the amending power of the Parliament, clause 4 must be equally beyond that power and must be struck down as such. The next question which we have to consider is whether the amendment made by section 4 of the 42nd Amendment to Article 31C of the Constitution is valid. Mr. Palkhiwala did not challenge the validity of the unamended Article 31C, and indeed that would not be done. The unamended Article 31C forms the subject matter of separate proceeding and we have indicated therein that it is constitutionally valid to the extent to which it was upheld in Keshvananda Bharati (Supra). By the amendment introduced by section 4 of the 42nd Amendment, provision is made in Art ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1C as amended by the 42nd Amendment is allowed to stand, it will confer an unrestricted licence on the legislature and the executive, both at the Centre and in the States. to destroy democracy and establish an authoritarian regime. All legislative action and every governmental action purports to be related, directly or indirectly, to some directive principle of State policy. The protection of the amended article will therefore be available to every legislative action under the sun. Article 31C abrogates the right to equality guaranteed by Article 14, which is the very foundation of a republican form of government and is by itself a basic feature of the Constitution. The learned counsel further argues that it is impossible to envisage that a destruction of the fundamental freedoms guaranteed by Part III is necessary for achieving the object of some of the directive principles like equal justice and free legal aid, organising village panchayat, providing living wages for workers and just and humane conditions of work. free and compulsory education for children, organisation of agriculture and animal husbandry, an protection of environment and wild life. What the Constituent Assemb ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... people by securing and protecting as effectively as it may a social order in which justice. social. economic and political shall inform all the institutions of the national life. A law which complies- with Article 38 cannot conceivably abrogate the fundamental freedoms except certain economic rights and that too, for the purpose of minimising inequalities. A law which will abrogate fundamental freedoms will either bring about social injustice or economic injustice or political injustice. It will thereby contravene Article 38 rather than falling within it and will for that reason be outside the protection of Article 31C. In any event, each and every violation of Article 14 or Article. 19 does not damage the basic structure of the Constitution. The learned Additional Solicitor General has submitted a carefully prepared chart of 11 decisions of this Court ranging from Anvar Ali Sarkar to Haji Kader Kutty in order to show the possible impact of amended Article 31C on cases where this Court had held provisions of certain statutes to be violative of Article 14. He urged on the basis of his tabulated analysis that there can be many cases which are not relatable to directive principles ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ious and orderly development of constitutional law would require that the phrases inconsistent with or take away which occur in Articles 31A, 31B and 31C should be read down to mean restrict or abridge and not abrogate . If two constructions of those expressions were reasonably possible, the Court should accept that construction which would render the constitutional amendment valid. The learned counsel further argues: The directive principles, including the one contained in Article 38, do not cover the exercise of each and every legislative power relatable to the Seventh Schedule of the Constitution. Besides, the directive principles being themselves fundamental in the governance of the country, no amendment of the Constitution to achieve the ends specified in the directive principles can ever alter the basic structure of the Constitution. If the unamended Article 31C is valid in reference to laws relatable to Articles 39(b) and (c), no dichotomy can be made between laws relatable to those provisions on the one hand and laws relatable to other directive principles. A value judgment is not permissible to the Court in this area. It is finally urged by the learned Addit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lso placed on certain decisions of this court to which it is unnecessary to refer because the Attorney-General and the Additional Solicitor General are right that it is the settled practice of this Court not to decide academic questions. The American authorities on which the learned counsel rely take the view that the constitutionality of a statute will not be considered and determined by the courts as a hypothetical question, because constitutional questions are not to be dealt with abstractly or in the manner of an academic discussion. In other words, the courts do not anticipate constitutional issues so as to assume in advance that a certain law may be passed in pursuance of a certain constitutional amendment which may offend against the provisions of the Constitution. Similarly, our Court has consistently taken the view that we will not formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied. It is only when the rights of persons are directly involved that relief is granted by this Court. But, we find it difficult to uphold the preliminary objection because, the question raised by the petitioners as regards the consti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t is permissible to the Parliament to so amend the Constitution as to give a position of precedence to directive principles over the fundamental rights. The answer to this question must necessarily depend upon whether Articles 14 and 19 which must now give way to laws passed in order to effectuate the policy of the State towards securing all or any of the principles of directive Policy are essential features of the basic structure of the Constitution. It is only if the rights conferred by these two articles are not a part of the basic structure. Of the Constitution that they can be allowed to be abrogated by a constitutional amendment. If they are a part of the basic structure they cannot be obliterated out of existence in relation to a category of laws described in Article 31C or, for the matter of that, in relation to laws of any description whatsoever, passed in order to achieve any object or policy whatsoever. This will serve to bring out the point that a total emasculation of the essential features of the Constitution is, by the ratio in Kesavananda Bharati, not permissible to the Parliament. There is no doubt that though the courts have always attached very great importanc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e provision that: Legitimate Legislative goals cannot be pursued by means that broadly stifle fundamental personal liberties when the end can be more narrowly achieved .. The objectionable quality of....... overbreadth depends upon the existence of a statute susceptible of sweeping and improper application.. These freedoms are delicate and vulnerable as well as supremely precious in our society. The threat of sanctions may deter their exercise almost as potently as the actual application of sanctions . In United States v. Herbet Guest, though the right to travel freely throughout the territory of the United States of America does not find an explicit mention in the American Constitution, it was held that the right to travel from one State to another occupied a position fundamental to the concept of the Federal Union and the reason why the right was not expressly mentioned in the American Constitution though it was mentioned in the Articles of Confideration, was that a right so elementary was conceived from the beginning to be a necessary concomitant of the stronger Union the Constitution created . This position was reiterated in Winfield Dunn v. James F. Blumstein. It w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enlightened opinion and right conduct on the part of the citizens of a democracy. The essential characteristic of these liberties is, that under their shield many types of life, character, opinion and belief can develop unmolested and unobstructed, Nowhere is this shield more necessary than in our own country for a people composed of many races and of many creeds. There are limits to the exercise of these liberties. The danger in these times from the coercive activities of those who in the delusion of racial or religious conceit would incite violence and breaches of the peace in order to deprive others of their equal right to the exercise of their liberties, is emphasized by events familiar to all. These and other transgressions of those limits the states appropriately may punish . In Arthur Terminiello v. City of Chicago, Justice Douglas delivering the majority opinion of the Court, while dealing with the importance of the right to free speech, observed: The vitality of civil and political institutions in our society depends on free discussion. As Chief Justice Hughes wrote in De Jonge v. Oregon, it is only through free debate and free exchange of ideas that government rem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gress resolutions reiterated that demand between 1917 and 1919. The emergence of Mahatma Gandhi; on the political scene gave to the freedom movement a new dimension: it ceased to be merely anti-British it became a movement for the acquisition of rights of liberty for the Indian Community. Mrs. Besan t Commonwealth of India Bill, 1925 and the Madras Congress resolution of 1928 provided a striking continuity for that movement. The Motilal Nehru Committee appointed by the. Madras Congress resolution said at pp. 89-90: It is obvious that our first care should be to have our Fundamental Rights guaranteed in a manner which will not permit their withdrawal under any circumstances.. Another reason why great importance attaches to a Declaration of Rights is the unfortunate existence of communal differences in the country. Certain safeguards are necessary to create and establish a sense of security among those who look upon each other with distrust and suspicion. We could not better secure the full enjoyment of religious and communal rights to all communities than by including them among the basic principles of the Constitution. India represents a mosaic of humanity consisting of div ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n Parts III and IV. To give absolute primacy to one over the other is to disturb the harmony of the Constitution. This harmony and balance between fundamental rights and directive principles is an essential feature of the basic structure of the Constitution. This is not mere semantics. The edifice of our Constitution is built upon the concepts crystallised in the Preamble. We resolved to constitute ourselves into a Socialist State which carried with it the obligation to secure to our people justice-social, economic and political. We, therefore, put part IV into our Constitution containing directive principles of State policy which specify the socialistic goal to be achieved. We promised to our people a democratic polity which carries with it the obligation of securing to the people liberty of thought, expression, belief, faith and worship; equality of status and of opportunity and the assurance that the dignity of the individual will at all costs be preserved. We, therefore, put Part, III in our Constitution conferring those rights on the people. Those rights are not an end in themselves but are the means to an end. The end is specified in Part IV. Therefore, the rights conferre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of the learned Solicitor General, considering the two charts of cases submitted by him, that it is possible to conceive of laws which will not attract Article 31C since they may not bear direct and reasonable nexus with the provisions of Part IV. But, that, in our opinion, is beside the point. A large majority of laws, the bulk of them, can at any rate be easily justified as having been passed for the purpose of giving effect to the policy of the State towards securing some principle or the other laid down in Part IV. In respect of all such laws, which will cover an extensive gamut of the relevant legislative activity, the protection of Articles 15 and 19 will stand wholly withdrawn. It is then no answer to say, while determining whether the basic structure of the Constitution is altered, that at least. some laws will fall outside the scope of Article 31C. We have to decide the matter before us not by metaphysical subtlety, nor as a matter of semantics, but by a broad and liberal approach. We must not miss the wood for the trees. A total deprivation of fundamental rights, even in a limited area, can amount to abrogation of a fundamental right just as partial deprivation in eve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned in Article 31C. Articles 14 and 19 do not confer any fanciful rights. They confer rights which are elementary for the proper and effective functioning of a democracy. They are universally so regarded, as is evident from the universal Declaration of Human Rights. Many countries in the civilised world have parted with their sovereignty in the hope and belief that their citizens will enjoy human freedoms. And they preferred to be bound by the decisions and decrees of foreign tribunals on matters concerning human freedoms. If Articles 14 and 19 are put out of operation in regard to the bulk of laws which the legislatures are empowered to pass, Article 32 will be drained of its life-blood. Article 32(4) provides that the right. guaranteed by Article 32 shall not be suspended except as otherwise provided for by the Constitution. Section 4 of the 42nd Amendment found an easy way to circumvent Article 32(4) by withdrawing totally the protection of Articles 14 and 19 in respect of a large category of laws, so that there will be no violation to complain of in regard to which redress can be sought under Article 32. The power to take away the protection of Article 14 is the power to dis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e is goal-oriented and claims to strive for securing the welfare of its people. The distinction between the different forms of Government consists in that a real democracy will endeavour to achieve its objectives through the discipline of fundamental freedoms like those conferred by Articles 14 and 19. Those are the most elementary freedoms without which a free democracy is impossible and which must therefore be preserved at all Costs. Besides, as observed by Brandies, J., the need to protect liberty is the greatest when Government s purposes are beneficent. If the discipline of Article 14 is withdrawn and if immunity from the operation of that article is conferred, not only on laws passed by the Parliament but on laws passed by the State Legislatures also, the political pressures exercised by numerically large groups can tear the country asunder by leaving it to the legislature to pick and choose favoured areas and favourite classes for preferential treatment. The learned Attorney General and the learned Solicitor General strongly impressed upon us that Article 31C should be read down so as to save it from the challenge of unconstitutionality. It was urged that it would be legi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of the same argument was pressed upon us by the learned Additional Solicitor General who contended that it would still be open to the Courts under Article 31C to decide four questions: (1) Does the law secure any of the directive principles of the Stats policy? (ii) Is it necessary to encroach upon fundamental rights in order to secure the object of the directive principles? (iii) what is the extent of such encroachment, if any? and (iv) Does that encroachment violate the basic structure of the Constitution? This argument is open to the same criticism to which the argument of the learned Attorney General is open and which we have just disposed of. Reading the existence of an extensive judicial review into Article 31C is really to permit the distortion of the very purpose of that article. It provides expressly that no law of a particular description shall be deemed to be void on the ground that it violate Article 14 or Article 19. It would be sheer adventurism of a most extraordinary nature to undertake the kind of judicial enquiry which, according to the learned Additional Solicitor General, the courts are free to undertake. We must also mention, what is perhaps not fully r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se 5 as to comprehend only such amendments as do not destroy the basic structure of thy Constitution. That argument provides a striking illustration of the limitations of the doctrine of reading down. The avowed purpose. Of clauses (4) and (5) of Article 368 is to confer power upon the Parliament to amend the Constitution without any limitation whatever . Provisions of this nature cannot be saved by reading into them words and intendment of a diametrically opposite meaning and content. The learned Attorney General then contends that Article 31C should be upheld for the same reasons for which Article 31A(1) was upheld. Article 31A (1) was considered as a contemporaneous practical exposition of the Constitution since it was inserted by the very First Amendment which was passed in 1951 by the same body of persons who were members of the Constituent Assembly. We can understand: that Article 31A can be looked upon as a contemporaneous Practical exposition of the intendment of the Constitution, but the same cannot be said of Article 31C. Besides, there is a significant qualitative difference between the two Articles. Article 31A, the validity of which has been recognised over the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s was considered to be valid. The simple ground on which Article 31A was upheld, apart from the ground of contemporaneous practical exposition, was that its validity was accepted and recognised over the years and, therefore, it was not permissible to challenge its constitutionality. The principle of stare decisis does not imply the approval of the device or mechanism which is employed for the purpose of framing a legal or constitutional provision. It was finally urged by the learned Attorney General that if we uphold the challenge to the validity of Article 31C, the validity or clauses (2) to (6) of Article 19 will be gravely imperilled because those clauses will also then be liable to be struck down as abrogating the rights conferred by Article 19(1) which are an essential feature or the Constitution. We are unable to accept this contention. Under clauses (2) to (6) of Article 19, restrictions can be imposed only if they are reasonable and then again, they can be imposed in the interest of a stated class of subjects only. It is for the courts to decide whether restrictions are reasonable and whether they are in the interest of the particular subject. Apart from other basic dissimi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n after referred to as the principal Act) as amended by the Maharashtra Agricultural Lands (Lowering of Ceiling on Holdings and (Amendment Act 1972 (hereinafter referred to as Act 21 of 1975) and the Maharashtra Agricultural Lands (Lowering of Ceiling on Holdings) and (Amendment) Act 1975 (hereinafter referred to as Act 47 of 1975) and the Maharashtra Agricultural Lands (Ceiling on Holdings) Amendment Act 1975 (hereinafter referred to as Act 2 of 1976) on the ground that the amended provisions of the Act are violative of Articles 14, 19(1)(f), 31 and 31A of the Constitution. We shall hereafter for the sake of convenience refer to the principal Act as duly amended by the subsequent Acts 21 of 1975, 47 of 1975 and 2 of 1976 as the impugned legislation . It is not necessary for the purpose of this opinion to set out the relevant provisions of the impugned legislation but it is sufficient to state that it imposed a maximum ceiling on the holding of agricultural land in the State of Maharashtra and provided for acquisition of land held in excess of the ceiling and for the distribution of such excess land to landless and other persons with a view to securing the distribution of agricult ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing of land by such family unit was violative of the second proviso to cl. (1) of Article 31A and was not saved from invalidation by the protective armour of Article 31B. This contention was negatived by the Constitution Bench and it was held that the impugned legislation did not, by creating an artificial concept of a family unit and fixing ceiling on holding of land by such family unit, conflict with the second proviso to clause (1) of Article 31A and even if it did contravene that proviso, it was protected by Article 31B since the principal Act as well as the subsequent amending Acts were included in the 9th Schedules vide Dattatraya Govind Mahajan v. State of Maharashtra. Now at the time when this hatch of cases was argued before the Court, the emergency was in operation and hence it was not possible for the land-holders to raise many of the contentions which they could otherwise have raised and, therefore, as soon as the emergency was revoked, the landholders filed review petitions in this Court against the decision in Dattatraya Govind Mahajan s case and also preferred direct writ petitions in this Court challenging once again the constitutional validity of the impugned legis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sential features of the Constitution or its basic structure and is therefore valid and constitutional and so is Article 31C as it stood prior to its amendment by the Constitution (Forty Second Amendment) Act, 1976 valid to the extent its constitutionality was upheld in Kesavananda Bharati s case. So far as Article 31B is concerned, we said that Article 31 as originally introduced was valid and so also are all subsequent amendments including various Acts and Regulations in the 9th Schedule from time to time upto 24th April, 1973 when Kesavananda Bharati s case was decided. We did not express any final opinion on the constitutional validity of the amendments made in the 9th Schedule on or after 24th April 1973 but we made it clear that, these amendments would be open to challenge on the ground that they or any one or more of them damage the basic or essential features of the Constitution or its basic structure. and are therefore. Outside the constituent power of Parliament. This was The order made by us on 9th May. 1980 and for reasons which I shall mention presently. I propose to set out in this Judgment my reasons for subscribing to this order. So far as Minerva Mills Case is co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urther and impugn the constitutional validity of section 55 of the Constitution (Forty-second Amendment) Act, 1976. This much challenge, as shall presently point out, would have been sufficient to clear the path for the petitioners in assailing the constitutional validity of the Nationalisation Act, but the petitioners, not resting content with what was strictly necessary, proceeded also to challenge section 4 of the Constitution (Forty-second Amendment) Act, 1976 which amended Article 31C. There were several grounds on which the constitutional validity of the Constitution (Forty-second Amendment) Act, 1976 was impugned in the writ petitions and I shall refer to them when I deal with the arguments advanced on behalf of the parties. Suffice it to state for the present, and this is extremely important to point out. that when the writ petitions reached hearing before us, Mr. Palkhiwala, learned counsel appearing on behalf of the petitioners requested the Court to examine only one question, namely, whether the amendments made in Article 31C and Article 368 by section 4 and SS of the Constitution (Forty-second Amendment) Act, 1976 were constitutional and valid and submitted that if thes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nts relied on any other Directive Principle except that contained in Article 39 clause (b). Mr. Palkhiwala also did not make any attempt to relate the Nationalisation Act to any other Directive Principle of State Policy. Now either the Nationalisation Act was really and truly a law for giving effect to the Directive Principle set out in Article 39 clause (b) as declared in section 39 or it was not such a law and the legislative declaration contained in section 39 was a colourable device. If it was the former, then the unamended Article 31C would be sufficient to protect the Nationalisation Act from attack on the ground of violation of Articles 14, 19 and 31 and it would be unnecessary o invoke the amended Article 31C and if it was the latter, then neither the unamended nor the amended Article 31C would have any application. Thus, in either event, the amended Article 31C would have no relevance at all in adjudicating upon the constitutional validity of the Nationalisation Act. It is difficult to see how, in these circumstances, the Court could be called upon to examine the constitutionality of the amendment made in Article 31C: that question just did not arise for consideration and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... respective points of view that very little time was left to the Judges after the conclusion of the arguments, for exchange of draft judgments . Here also, I am compelled by similar circumstances, though not adventitious, to hand down a separate opinion without having had an opportunity to discuss with my colleagues the reasons which weighed with them in striking down the impugned constitutional amendments. Some how or other, perhaps owing to extraordinary pressure of work with which this Court is over-burdened. no judicial conference or discussion was held nor was any draft judgment circulated which could form the basis of discussion, though. as pointed out above, the hearing of the arguments concluded as far back as 16th November, 1979. It was only on 8th May, 1980, just two days before the closing of the Court for the summer vacation, that I was informed by the learned Chief Justice that he and the other three learned Judges, who had heard this case along with me, had decided. to pass an order declaring the impugned constitutional amendments ultra vires and void on the ground that they violated the basic features of the Constitution and that the reasons for this order would be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an order and give reasons later, but these are exceptional cases where the requirements of justice induces the Court to depart from the legally sanctioned course. But, there the court had in fact waited for about 5 1/2 months after the conclusion of the arguments and there was clearly no urgency which required that an order should be made though reasons were not ready, the delay of about 22 months in making the order was not going to injure the interests of any party, since the order was not going to dispose of the writ petition and many issues would still remain to be decided which could be dealt only after the summer vacation. Thus there would have been no prejudice to the interests of justice if the order had been made on he re-opening of the Court after the summer vacation supported by a reasoned judgment. These were the reasons which compelled me to make my order dated 9th May, 1980 declining to pass an unreasoned order pronouncing on the validity of the impugned constitutional amendments and stating that I would prefer to pass a final order in this case when I deliver my reasoned judgment . This order unfortunately led to considerable misunderstanding of my position and that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Punjab where, by a majority of six against five, the fundamental rights were held to be unamendable by Parliament under Article 368, was over-ruled as a result of the decision in Keshavananda Bharti s case. But, six out of the thirteen learned Judges (Sikri, C. J. Shelat, Grover, Hegde, Reddy and Mukharjea, JJ. accepted the contention of the petitioners that though Article 368 conferred power to amend the Constitution, there were inherent or implied limitations on the power of amendment and therefore Article 368 did not confer power on Parliament to amend the Constitution so as to destroy or emasculate the essential or basic elements or features of the Constitution. The fundamental rights, according to the view taken by these six learned Judges, constituted basic or essential features of the Constitution and they could not be, therefore, abrogated or emasculated in the exercise of the amending power conferred by Article 368, though a reasonable abridgment of those rights could be effected in the public interest. Khanna, J. found it difficult in the face of the clear words of Article 368 to exclude from their operation Articles relating to fundamental rights and he held that the wo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry process and cannot claim exemption from that process by being described essential features. Whatever be the justification for this view on merits, I do not think that this observation can be read as meaning that in the opinion of Khanna, J. basic structure or frame work as contemplated by him was different from basic features or essential elements spoken of by the other six learned judges. It was in the context of an argument urged on behalf of the petitioners that the essential features of the Constitution cannot be changed that this observation was made by Khanna, J. clarifying that if the essential features meant the basic structure or framework of the Constitution, the argument of the petitioners would be acceptable, but if the essential features did not form part of the basic structure or framework and went beyond it, then they would not be immune from the amendatory process. But it does appear from this observation that The six Judges led by Sikri C.J. On the one hand and Khanna, J. On the other were not completely ad idem as regards the precise scope of the limitation on the amendatory power of Parliament. This might have raised a serious argument as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... havananda Bharti s case. The Court would then hear the arguments and dissect the judgments as was done in Smt. Indira Gandhi s case (supra) and then decide as to what is the true ratio emerging from the judgments which is binding upon the Court as law laid down under Art. 141. But here it seems that nine judges set out in the summary what according to them was the majority view without hearing any arguments. This was a rather unusual exercise, though wellintentioned. But quite apart from the validity of this exercise embarked upon by the nine judges, it is a little difficult to understand how a proper and accurate summary could be prepared by these judges when there was not enough time, after the conclusion of the arguments, for an exchange of draft judgments amongst the Judges and many of them did not even have the benefit of knowing fully the views of others. I may, therefore, make it clear that I am not relying on the statement of the majority view contained in The Summary given at the end of the judgments in Keshavananda Bharti s case, but I am proceeding on the basis of the view taken in Smt. Indira Gandhi s case as regards the ratio of the majority decision in Keshavananda Bh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Right resulting in its total abrogation. But if we look art the judgment of Khanna, J. as a whole, we do not think this view can be sustained. It is clear that these observations were made by the learned Judge with a view to explaining the scope and width of the power of amendment under Article 368. The learned Judge held that the amendatory power of Parliament was wide enough to reach every provision of the Constitution including the Fundamental Rights in Part Ill of the Constitution. but while so holding, he proceeded to make it clear that despite all this width the amendatory power was subject to an overriding limitation. namely, that it could not be exercised so as to alter the basic structure or framework of the Constitution. The learned Judge stated in so many words at page 688 of the Report that though the power of amendment is plenary and would include within itself, the power to add, alter or repeal the various articles including those relating lo fundamental rights , it is subject to the retention, or the basic structure or framework of the Constitution. The same reservation was repeated by the learned Judge in cl. (vii) of the summary of his conclusions given at th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the Constitution (Twenty-ninth Amendment) Act, 1972 to be unconditionally valid and did not uphold its validity subject to the scrutiny of the Kerala Acts added in the 9th Schedule, it cannot follow that he regarded the fundamental rights as not forming part of the basic structure of the Constitution. If the law was correctly laid down by him, it did not become incorrect by being wrongly applied. It is not customary to quote from the writing of a living author, but departing from that practice which, I believe, is no longer strictly adhered to or followed, I may point out that what I have said above finds support from the comment made by Mr. Seervai in the 3rd Volume of his book on Constitutional Law, where the learned author says: The conflict between Khanna, J. s views on the amending power and on the unconditional validity of the Twenty Ninth Amendment is resolved by saying that he laid down the scope of the amending power correctly. but misapplied that law in holding Article 31B and Schedule 9 unconditionally valid. l entirely agree with this perceptive remark of the learned author. The true ratio emerging from the majority decision in Keshavananda Bharati s case being t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nstitution was illustrative or incomplete. This enumeration of the essential features by the six learned Judges had obviously no binding authority: first. because the Judges were not required to decide as to what features or elements constituted the basic structure or framework of the Constitution and what each of them said in this connection was in the nature of obiter and could have only persuasive value; secondly, because the enumeration was merely by way of illustration and thirdly, because the opinion of six Judges that certain specified features formed part of the basic structure of the Constitution did not represent the majority opinion and hence could not be regarded as law declared by this Court under Article 141. Therefore, in every case where the question arises as to whether a particular feature of the Constitution is a part of its basic structure, it would have to be determined on a consideration of various factors such as the place of the particular feature in the scheme of the Constitution, its object and purpose and the consequence of its denial on the integrity of the Constitution as a fundamental instrument of country s governance. Vide the observations of Chandra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Chandrachud, J. as regards the right of equality conferred by Article 14 being an essential feature of the Constitution and stated inter alia the following reason: The majority in Bharati s case did not hold that Article 14 pertains to the basic structure of the Constitution. The Majority upheld the validity of the first part of Article 31C; this would show that a constitutional amendment which takes away or abridges the right to challenge the validity of an ordinary law for violating the fundamental right under that Article would not destroy or damage the basic structure. The only logical basis for supporting the validity of Article 31A, 31B and the first part of 31C is that Art. 14 is not a basic structure. I shall have occasion to discuss later the concept of equality under the Constitution and whether it forms part of the basic structure. But, one position of a basic and fundamental nature I may make clear at this stage, and there I agree with Mathew, J., that whether a particular feature forms part of the basic structure has necessarily to be determined on the basis of the specific provisions of the Constitution. To quote the words of Mathew, J. in Smt. Indira Gandhi s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... when the arguments in Wamanrao s case were heard, it has subsequently been deleted by the Constitution (Forty-Fourth Amendment) Act, 1978 and reference to it has also been omitted in Articles 31A, 31B and 31C and we are therefore concerned with the constitutional validity of these Articles only in so far as they grant immunity against challenge on the ground of infraction of Articles 14 and 19. Mr. Phadke on behalf of the petitioners also challenged the constitutional validity of the Constitution (Fortieth Amendment). Act. 1976 which included the amending Acts 21 of 1975, 41 of 1975 and 2 of 1976 in the 9th Schedule. On the ground that the Lok Sabha was not in existence at the date when it was enacted. But obviously. in view of clauses (4) and (5) introduced in Article 368 by section 55 , of the Constitution (Forty-second Amendment) Act, 1976, it was not possible for Mr. Phadke on behalf of the petitioners to assail the constitutional validity of Article 31A, Article 31B read with the 9th Schedule as amended by the Constitution (Fortieth Amendment) Act. 1976 and the unamended Article 31C. since these two clauses of Article 368 barred challenge to the validity of a constitutional am ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nshrined in these two Articles would be rendered meaningless and futile and would become mere rope of sand. Mr. Palkhiwala vehemently urged that Justice, liberty and equality were the three pillars of the Constitution and they were embodied in Articles 14 and 19 and therefore if the supremacy of the fundamental rights enshrined in these Articles was destroyed and they were made subservient to the directive Principles, it would result in the personality of the Constitution being changed beyond recognition and such a change in the personality would be outside the amending power of Parliament. Mr. Palkhiwala likened the situation to a permanent state of emergency and pointed out by way of contrast that whereas under an emergency the people may be precluded from enforcing their fundamental rights under Articles 14 and 19 for the duration of the emergency, here the people were prevented from moving the court for enforcement of these fundamental rights for all time to come even without any emergency where a law was passed purporting to give effect to any of the Directive Principles. The amendment in Article 31C was thus, according to Mr. Palkhiwala, outside the amending power of Parliame ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the protection sought to be given by clause (4) extends to every amendment whatsoever and that the parenthetical words whether before or after the commencement of section SS of the Constitution (Forty-second Amendment) Act, 1976 were introduced merely by way of abundant caution with a view to indicating that this protection was intended to cover even amendments made or purporting to have been made before the enactment of the constitution (Forty-second Amendment) Act. 1976. Now even a cursory look at the language of clause (4) is sufficient to demonstrate that this is a case of zeal overrunning discretion. Clause (4) provides that no amendment to the Constitution made or purporting to have been made under Article 368 shall be called in question in any court on any ground. The words on any ground are of the widest amplitude and they would obviously cover even a ground that the procedure prescribed in clause (2) and its proviso has not been followed. The result is that even if an amendment is purported to have been made without complying with the procedure prescribed in sub-clause (2) including its proviso, and is therefore unconstitutional. it would still be immune from challeng ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... k that these two features form part of the basic structure of the Constitution. It is clear from the majority decision in Keshavananda Bharati s case that our Constitution is a controlled Constitution which confers powers on the various authorities created and recognised by it and defines the limits of those powers. The Constitution is supreme lex, the paramount law of the land and there is no authority, no department or branch of the State, which is above or beyond the Constitution or has powers unfettered and unrestricted by the Constitution. The Constitution has devised a structure of power relationship with checks and balances and limits are placed on the powers of every authority or instrumentality under the Constitution. Every organ of the State, be it the executive or the legislature or the judiciary, derives its authority from the Constitution and it has to act within the limits of such authority. Parliament too, is a creature of the Constitution and it can only have such powers as are given to it under the Constitution. It has no inherent power of amendment of the Constitution and being an authority created by the Constitution, it cannot have such inherent power, but ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent to which were pledged. Take for example, a case where the executive which is in charge of administration acts to the prejudice of a citizen and a question arises as to what are the powers of the executive and whether the executive has acted within the scope of its powers. Such a question obviously cannot be left to the executive to decide and for two very good reasons. First, the decision of the question would depend upon the interpretation of the Constitution and the laws and this would pre-eminently be a matter fit to be decided by the judiciary, because it is the judiciary which alone would be possessed of expertise in this field and secondly, the constitutional and legal protection afforded to the citizen would become illusory. A if it were left to the executive to determine the legality of its own action. So also if the legislature makes a law and a dispute arises whether in making the law the legislature has acted outside the area of its legislative competence or the law is violative of the fundamental rights or of any other provisions of the Constitution, its resolution cannot, for the same reasons, be, left to the determination of the legislature. The Constitution has, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amental to the maintenance of democracy and the rule of law, it is the power of judicial review and it is unquestionably, to my mind, part of the basic structure of the Constitution. Of course, when I say this I should not be taken to suggest that however effective alternative institutional mechanisms or arrangements for judicial review cannot be made by Parliament. But what I wish to emphasise is that judicial review is a vital principle of our Constitution and it cannot be abrogated without affecting the basic structure of the Constitution. If by a Constitutional amendment, the power of judicial review is taken away and it is provided that the validity of any law made by the Legislature shall not be liable to be called in question on any ground, even if it is outside the legislative competence of the legislature or is violative of any fundamental rights, it would be nothing short of subversion of the Constitution, for it would make a mockery of the distribution of legislative powers between the Union and the States and render the fundamental rights meaningless and futile. So also if a. constitutional amendment is made which has the effect of taking away the power of judicial revi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it cannot damage or destroy the basic structure of the Constitution and Parliament cannot by exercise of that limited amending power convert that very power into an absolute and unlimited power. If it were permissible to Parliament to enlarge the limited amending power conferred upon it into an absolute power of amendment, then it was meaningless to place a limitation on the original power of amendment. It is difficult to appreciate how Parliament having a limited power of amendment can get rid of the limitation by exercising that very power and convert it into an absolute power. Clause (S) of Article 368 which sought to remove the limitation on the amending power of Parliament by making it absolute must therefore be held to be outside theamending power of Parliament. There is also another ground on which the validity of this clause can be successfully assailed. This clause seeks to convert a controlled Constitution into an uncontrolled one by removing the limitation on the amending power of Parliament which, as pointed out above, is itself an essential feature of the Constitution and it is therefore violative of the basic structure would in the circumstances hold clause (5) of Ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st therefore be held to be constitutionally valid even on the application of the basic structure test. But, apart from this reasoning on principle which in our opinion clearly sustains the constitutional validity of clause (a) of Article 31A. we think that even on the basis of the doctrine of stare decisions, the whole of Article 31A must be upheld as constitutionally valid. The question as to the constitutional validity of Article 31 A first came up for consideration before this Court in Shankari Prasad v. Union of India. There was a direct challenge levelled against the constitutionality of Article 31A in this case on various grounds and this challenge was rejected by a Constitution Bench of this Court. The principal ground on which the challenge was based was that if a constitutional amendment takes away or abridges any of the Fundamental Rights conferred by Part III of the Constitution it would fall within the prohibition of Article 13(2) and would therefore be void. Patanjali Shastri, J., speaking on behalf of the Court, did not accept this contention and taking the view that in the context of Article 13, law must be taken to mean rules or regulations made in exercise of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wenty-ninth Amendments. The constitutional validity of Art. 31A was not put in issue in Keshavananda Bharati s case and the learned Judges who decided that case were not called upon to pronounce on it and it cannot therefore be said that this Court uphold the vires of Article 31A in that Case. It is no doubt true that Khanna, J. held Article 31A to be valid on the principle of stare decisis. but that was only for the purpose of upholding the validity of Article 31C. because he took the view that Article 31C was merely an extension of the principle accepted in Article 31A and the ground which sustained the validity of clause (1) of Article 31A, would equally sustain the validity of the first part of Article 31C . So far as the other learned Judges were concerned, they did not express any view specifically on the constitutional validity of Article 31A, since that was not in issue before them. Ray, J., Palekar, J., Mathew, J., Beg, J., Dwiwedi, J. and Chandrachud, J., held Article 31C to be valid and if that view be correct, Article 31A must fortiorari be held to be valid But it must be said that there is no decision of the Court in Keshavananda Bharati s case holding Art. 31A as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Certainty in applicability of law would be considerably eroded and suffer a serious setback if the highest court in the land were readily to overrule the view expressed by it in earlier decisions even though that view has held the field for a number of years. It is obvious that when constitutional problems are brought before this Court for its decision, complex and difficult questions are bound to arise and since the decision on many of such questions may depend upon choice between competing values, two views. may be possible depending upon the value judgment or the choice of values made by the individual Judge. Therefore, if one view has been taken by the Court after mature deliberation, the fact that another Bench is inclined to take another view would not justify the Court in reconsidering the earlier decision and overruling it. The law laid down by this Court is binding on all Courts in the country and numerous cases all over the country are decided in accordance with the view taken by this Court. Many people arrange their affairs and large number of transactions also take place on the faith of the correctness of the decision given by this Court. It would create uncertainty, i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the words of Justice Roberts of the United States Supreme Court-words which are equally applicable to the decision making process in this Court: The reason for my concern is that the instant decision, overruling that announced about nine years ago, tends to bring adjudications of this tribunal into the same days as a restricted rail road ticket good for this day and train only.. It is regrettable that in an era marked by doubt and confusion, an era whose greatest need is steadfastness of thought and purpose, this Court which has been looked to as exhibiting consistency in adjudication, and a steadiness which would hold the balance even in the face of temporary ebbs and flows of opinion, should now itself become the breeder of fresh doubt and confusion in the public mind as to the stability of out institutions. Here the view that Article 31A is constitutionally valid has been taken in atleast three decisions of this Court, namely, Shankari Prasad s case, Sajjan Singh s case and Golak Nath s case and it has held the field for over 28 years and on the faith of its correctness, millions of acres of agricultural land have changed hands and new agrarian relations have come into ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Prime Minister during the discussion on the Constitution (First Amendment) Act, 1951. Dr. Ambedkar admitted of the 9th Schedule that prima facie it is an unusual procedure but he went on to add that all the laws that have been saved by this Schedule are laws that fall under Article 31. Jawaharlal Nehru also told Parliament: It is not with any great satisfaction or pleasure that we have produced this long Schedule. We do not wish to add to it for two reasons. One is that the Schedule consists of a particular type of legislation, generally speaking, and another type should not come in.. (emphasis supplied). Articles 31A and 31B were thus intended to serve the same purpose of protecting legislation falling within a certain category. It was a double barelled protection which was intended to be provided to this category of legislation, since it was designed to carry out agrarian reform which was so essential for bringing about a revolution in the socio-economic structure of the country. This was followed by the Constitution (Fourth Amendment) Act, 1956 by which the categories of legislation covered by Article 31A were sought to be expanded by adding certain new clauses after clau ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ore the Joint Committee. the proposed clause (d) of Article 31A was deleted and the Bihar, U.P. and West Bengal Acts as also the above-mentioned Central Act which were originally intended to be within the scope and ambit of Article 31A, became unrelated to that Article. Even so, barring these four Acts, all the other statutes included in the 9th Schedule fell within one or the other clause of the amended Art. 31A. Subsequent to this amendment. several other statutes dealing with agrarian reform were included in the 9th Schedule by the Constitution (Seventeenth Amendment) Act, 1964 and no complaint can be made in regard to such addition, because all these statutes partook of the character of agrarian reform legislation and were covered by clause (a) Of Article 31A in view of the extended definition of estate substituted by the same amending Act. The validity of the Constitution (Seventeenth Amendment) Act, 1964 was challenged before this Court in Golak Nath s case (supra) and though the Court by a majority of six against five took the view that Parliament has no power to amend any fundamental right, it held that this decision would not affect the validity of the Constitution (Seve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le by subsequent constitutional amendments. if there are any which fall within a category covered by Article 31A or 31C, they would be protected from challenge under Articles 14 and 19 and it would not be necessary to consider whether their inclusion in the 9th Schedule J is constitutionally valid, except in those rare cases where protection may be claimed for them against violation of any other fundamental] rights. This question would primarily arise only in regard to statutes not covered by Article 31A or 31C and in case of such statutes the Court would have to consider whether the constitutional amendments including such statutes in the 9th Schedule violate the basic structure of the Constitution in granting them immunity from challenge of the fundamental rights. It is possible that in a given case, even an abridgement of a fundamental right may involve violation of the basic structure. It would all depend on the nature of the fundamental right, the extent and depth of the infringement, the purpose for which the infringement is made and its impact on the basic values of the Constitution. Take for example, right to life and personal liberty enshrined in Article 21. This stands o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he fundamental rights in Articles 14 and 19 and was, therefore, destructive of the basic structure of the Constitution. I shall presently examine this argument on merits and demonstrate that it is unsustainable, but before I do so, I may point out at the outset that it is wholly unnecessary to embark upon a discussion of the merits of this argument, because the first part of the unamended Art. 31C was held to be constitutionally valid by the majority decision in Keshavananda Bharti s case and that decision being binding upon as, it is not open to Mr. Phadke to reagitate this question. Out of the thirteen Judges who sat on the Bench in Keshavananda Bharti s case, Ray, J., as he then was, Palekar, J., Dwivedi, J., Khanna, J., Mathew. J., Beg, J., and Chandrachud, J., (as he then was took the view that the first part of the unamended Art. 31C was constitutionally valid, because the amending power of parliament was absolute and unlimited. Khanna, J. did not subscribe to the theory that Parliament had an absolute and unlimited right to amend the Constitution and his view was that the power of amendment conferred on Parliament was a limited power restricting Parliament from so amending t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Court in the present writ petitions. This argument of Mr. Phadke is, in my opinion, not well founded and cannot be accepted. I agree with Mr. Phadke that the ratio decidendi of Keshavananda Bharati s case was that the amending power of Parliament is limited and, Parliament cannot in exercise of the power of amendment alter the basic structure of the Constitution and the validity of every constitutional amendment has therefore to be judged by applying the test whether or not it alters the basic structure of the constitution and this test was not applied by the six learned Judges headed by Ray, J. (as he then was), but there my agreement ends and I cannot accept further argument of Mr. Phadke that for this reason, the conclusion reached by the six learned Judges and Khanna, J., as regards the constitutionality of the first part of the unamended Article 31C has no validity. The issue before the court in Keshavananda Bharti s case was whether the first part of the unamended Article 31C was constitutionally valid and this issue was answered in favour of the Government by a majority of seven against six. It is not material as to what were the reasons which weighed with each one of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (b) and (c) of Article 39. The legislature in enacting such legislation acts upon the constitutional mandate contained in Article 37 according to which the Directive Principles are fundamental in the governance of the country and it is the duty of the State to apply those principles in making laws. lt is for the purpose of giving effect to the Directive Principles set out in clause (b) and (c) of Art. 39 in discharge of the constitutional obligation laid upon the State under Article 37 that Fundamental Rights, in Articles 14 and 19 are allowed to be abridged and I fail to see how a constitutional amendment making such a provision can be condemned as violative of the basic structure of the Constitution. Therefore even on first principle, I would be inclined to hold that the first part of the unamended Article 31C is constitutionally valid. That takes us to the next ground of challenge against the constitutional validity of the Constitution (Fortieth Amendment) Act, 1956 in so far as it included the amending Acts 21 of 1975, 47 of 1975 and 2 of 1976 in the 9th Schedule and the Constitution (Forty-second Amendment) Act, 1976 in so far as it introduced cls. (4) and (5) in Art. 36 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ople (Extension of Duration Act, 1976 was enacted. The learned Solicitor General appearing on behalf of the Union of India contended that not one but two Proclamations of Emergency were in operation at the material date.. One Proclamation issued by the President on 3rd December, 1971 and the other Proclamation issued on 25th June, 1976. By the first Proclamation, the President in exercise of the powers conferred under cl. (1) of Art. 352 declared that a grave emergency existed whereby the security of India was threatened by external aggression. This Proclamation was approved by Resolutions of both the Houses of Parliament of 4th December, 1971 as contemplated under cl. 2(c) of Art. 352 and it continued in operation until 21st March, 1977 when it was revoked by a Proclamation issued by the President under clause 2(a) of Art. 352. The first Proclamation of Emergency was thus in operation at the date when the House of People Extension of Duration) Act, 1976 was enacted by Parliament. The second Proclamation of Emergency was issued by the President under Art. 352 cl. (1) and by this Proclamation, the President declared that a grave emergency existed whereby the security of India was th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uration) Act, 1976. Obviously, therefore, if the first Proclamation of Emergency was found to continue in operation at the date of enactment of the House of People (Extension of Duration) Act, 1976, it would be unnecessary to consider whether the second Proclamation of Emergency was validly issued by the President. I will accordingly first proceed to examine whether the first Proclamation of Emergency which was validly issued by the President ceased to be in force by reason of the alleged change in circumstances and was not operative at the relevant time. It is only if this question is answered in favour of the petitioners that it would become necessary to consider the question of validity of the second proclamation of Emergency. I think it is necessary to emphasize even at the cost of repetition that it was not the case of the petitioners that the first Proclamation of emergency when issued, was invalid. It is a historical fact which cannot be disputed that Pakistan committed aggression against India on 3rd December, 1971 and a grave threat to the security of India arose on account of this external aggression. The President was, therefore, clearly justified in issuing the first ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .............................. (2A).................................................. ...................................................... (3) A Proclamation of Emergency declaring that the security of India or of any part of the territory thereof is threatened by war or by external aggression or by internal disturbance may be made before the actual occurrence of war or of any such aggression or disturbance if the President is satisfied the there is imminent danger thereof. (4) The power conferred on the President by this article shall include the power to issue different Proclamations on different grounds, being war or external aggression or internal disturbance or imminent danger of war or external aggression or internal disturbance whether or not there is a Proclamation already issued by the President under cl. (1) and such Proclamation is in operation. (5) Notwithstanding anything in this Constitution:- (a) the satisfaction of the President mentioned in clauses (1) and (3) shall be final and conclusive and shall not be questioned in any Court on any ground; (b) subject to the provisions of cl. (2), neither the Supreme Court nor any other court shall have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h forms the basis of the Constitution. Then we come to Art. 354 which confers power on the President, during the operation of a Proclamation of Emergency, to direct that provisions relating to distribution of revenues under Arts. 268 to 270 shall have effect subject to such modifications or exceptions as he thinks fit. Another drastic consequence of the Proclamation of Emergency is that provided in Article 358 which suspends the operation of the Fundamental Rights guaranteed under Art. 19 while a Proclamation of Emergency is in operation. Art. 359 cl (1) em powers the President during the operation of a Proclamation of Emergency to make an order suspending the enforcement of any of the Fundamental Rights conferred by Part III and cl. (A) introduced by the Constitution (Thirty Eighth Amendment) Act, 1975 suspends the operation of those Fundamental Rights of which the enforcement has been suspended by the President by an order made under clause (1). These are the drastic consequences which ensue upon the making of a declaration of emergency. The issue of a Proclamation of Emergency makes serious inroads into the principle of federalism and emasculates the operation and efficacy of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by itself is no ground why the court should shrink from performing its duty under the Constitution, if it raises an issue of constitutional determination. There are a large number of decisions in the United States where the Supreme Court has entertained actions having a political complexion because they raised constitutional issue. Vide Gomallion v. Lightfoot and Baker v. Carr. The controversy before the court may be political in character, but so long as it involves determination of a constitutional question, the court cannot decline to entertain it. This is also the view taken by Gupta, J. and myself in State of Rajasthan v. Union of India. I pointed out in my judgment in that case and I still stand by it, that merely because a question has a political colour, the court cannot fold its hands in despair and declare Judicial hands off . So long as the question is whether an authority under the Constitution has acted within the limits of its power or exceeded it, it can certainly be decided by the court. Indeed it would be its constitutional obligation to do so. I have said before I repeat again that the Constitution is suprema lex the paramount law of the land, and there is no de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... country being threatened by war or external aggression or internal disturbance. It is not a decision which can be based on what the Supreme Court of the United States has described as judiciably discoverable and manageable standards . It would largely be a political judgment based on assessment of diverse and varied factors, fast-changing situations. potential consequences and a host of other imponderables. It cannot therefore, by its very nature, be a fit subject matter for adjudication by judicial methods and materials and hence it is left to the subjective satisfaction of the Central Government which is best in a position to decide it. The court cannot go into the question of correctness or adequacy of the facts and circumstances on which the satisfaction of the Central Government is based. That would be a dangerous exercise for the Court, both because it is not a fit instrument for determining a question of this kind and also because the court would thereby usurp the function of the executive and in doing so, enter the political thicket which it must avoid, if it is to retain its legitimacy with the people. But one thing is certain that if the satisfaction is mala fide or is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Proclamation of Emergency no inference can be drawn that a Proclamation of Emergency is immune from judicial scrutiny. The question whether or not a Proclamation of Emergency can be judicially reviewed on the ground that it is mala fide or an abuse of power of the President did arise before this Court in Gulam Sarwai v. Union of India. but the court declined to express any opinion on this question since no material was placed before the Court making out a case of mala fides or abuse of power. Undoubtedly, in the subsequent decision of this Court in Bhutnath Mato v. State of West Bengal there are one or two observations which might seem to suggest at first blush that a Proclamation of Emergency being a political matter is de hors our ken , but if one looks closely at the judgment of Krishna Iyer, J. in that case, it will be apparent that he does not lay down that a Proclamation of Emergency cannot be reviewed by the judiciary even on a limited ground and leaves that question open and rejects the contention of the petitioner challenging the continuance of Emergency only on the ground that the onus of establishing the continuation of Emergency and absence of any ground whatever for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by another Proclamation issued under clause 2(a). There is no other way in which it can cease to operate. Neither Article 352 nor any other Article of the Constitution contains any provision saying that a Proclamation of Emergency validly issued under clause (1) shall cease to operate as soon as the circumstances warranting its issuance have ceased to exist. It is, therefore, clear on a plain natural interpretation of the language of sub-clauses (a) to (c) of clause (2 that so long as the Proclamation of Emergency is not revoked by another Proclamation under sub-clause (2) (a), it would continue to be in operation irrespective of change of circumstances. It may be pointed out that this interpretation of the provision of clause (2) of Article 352 is supported by the decision of this Court in Lakhan Pal v. Union of India where dealing with a similar contention urged on behalf of the petitioner that the continuance of the emergency which was declared on 26th October, 1962 was a fraud on the Constitution. this Court speaking through Sarkar, C. J. pointed out that the only way a proclamation ceases to have effect is by one of the events mentioned in this clause and since neither had ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mation is being continued mala fide or for a collateral purpose. The court may in such a case, if satisfied beyond doubt, grant a writ of mandamus directing the Central Government to revoke the Proclamation of Emergency. But until that is done, the Proclamation of Emergency would continue in operation and it cannot be said that, though not revoked by another Proclamation, it has still ceased to be in force. Here, in the present case it was common ground that the first Proclamation of Emergency issued on 3rd December 1971 was not revoked by another Proclamation under clause 2(a) of Article 352 until 21st March 1977 and hence at the material time when the House of People (Extension of Duration) Act, 1976 was passed, the first Proclamation of Emergency was in operation. Now if the first Proclamation of Emergency was in operation at the relevant time, it would be sufficient compliance with the requirement of the proviso to clause (2) of Article 83 and it would be unnecessary to consider whether the second Proclamation of Emergency was validly issued by the President. But, contended the petitioners, the House of People (Extension of Duration) Act, 1976 on a proper interpretation of s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he expiration of the said period of one year, the present House of the People shall, unless previously dissolved under clause (2) of Article 83 of the Constitution,. continue until six months after the cesser of operation OF the said Proclamations or Proclamation but not beyond the said period of one year. While interpreting the language of this section, it is necessary to bear in mind that the House of People (Extension of Duration) Act, 1976 was enacted under the proviso to clause (2) of Article 83 for the purpose of extending the duration of the Lok Sabha and it was a condition precedent to the exercise of this power by Parliament that there should be a Proclamation of Emergency in operation at the date when the Act was enacted. Now according to Parliament there were two Proclamations of Emergency which were in operation at the material date, one issued on 3rd December 1971 and the other on 25th June 1975 and the condition precedent for the exercise of the power under the proviso to cl. (2) of Article 83 to enact the House of People (Extension of Duration) Act, 1976 was satisfied. It was, from the point of view of legislative drafting, not necessary to recite the fulfillment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Emergency cease or ceases to operate before the expiration of the extended period of one year, the Lok Sabha shall continue until six months after the cesser of operation of the said Proclamations or Proclamation, not going beyond the period of one year, but the opening part of this proviso can have application only in relation to a Proclamation of Emergency which was in operation at the date of enactment of the Act. If such a Proclamation of Emergency which was in operation at the material date ceased to operate before the expiration of the extended period of one year, then the term of the Lok Sabha would not immediately come to an end, but it would continue for a further period of six months but not so to exceed the extended period of one year. This provision obviously could have no application in relation to the second Proclamation of emergency if it was void when issued. In such a case, the second Proclamation not being valid at all at the date of issue would not be in operation at all and it could not cease to operate after the date of enactment of the Act. The proviso would in that event have to be read as relating only to the first Proclamation of Emergency, and since th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rticle 31C gives primacy to Directive Principles over Fundamental Rights in case of conflict between them and the question is whether this amendment is in any way destructive of the basic structure of the Constitution. To answer this question satisfactorily, it is necessary to appreciate the interrelationship between Fundamental Rights and Directive Principles and for this purpose it would be useful to trace briefly the history of their enactment in the Constitution. The genesis of Fundamental Rights and Directive Principles is to be found in the freedom struggle which the people of India waged against the British rule under the aegis of the Indian National Congress led by Mahatma Gandhi, Jawaharlal Nehru and other national leaders. These great leaders realised the supreme importance of the political and civil rights of the individual. because they knew from their experience of the repression under the British rule as also from the recent events of history including the two World Wars that these rights are absolutely essential for the dignity of man and development of his full personality. But, at the same time, they were painfully conscious that in the socio-economic conditions th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rty and inequality, though she may evolve her own methods and may adapt the ideal to the genius of her race. Then again, emphasizing the intimate and inseverable connection between political independence and social and economic freedom, he said: If an indigenous Government took the place of the foreign Government and kept all the vested interests intact, this would not be even the shadow of freedom ....................................................... .................... India s immediate goal can only be considered in terms of the ending of the exploitation of her people. Politically, it must mean independence and cession of the British connection, economically and socially, it must mean the ending of all special class privileges and vested interests. The Congress Resolution of 1929 also emphasized the same theme of socio-economic reconstruction when it declared: The great poverty and misery of the Indian people are due, not only to foreign exploitation in India, but also to the economic structure of society, which the alien rulers support so that their exploitation may continue. In order therefore to remove this poverty and misery and to ameliorate the condition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... c revolution was intended to bring about transition from primitive rural economy to scientific and planned agriculture and industry. Dr. Radhakrishnan who was a member of the Constituent Assembly and who later became the President of India also emphasised that India must have a socio-economic revolution designed not only to bring about the real satisfaction of the fundamental needs of the common man hut to go much deeper and bring about a fundamental change in the structure of Indian society. It was clearly realised by the framers of the Constitution that on the achievement of this great social and economic change depended the survival of India. If we cannot solve this problem soon , Jawaharlal Nehru warned the Constituent Assembly all our paper Constitutions will become useless and purposeless. The objectives Resolution which set out the and objectives before the Constituent Assembly in framing the Constitution and which was passed by the Constituent Assembly in January 1947 before embarking upon the actual task of Constitution making, therefore, expressed the resolve of the Constituent Assembly to frame a constitution wherein shall be guaranteed and secured to all the peo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cluding the have-nots and the handicapped, the lowliest and the lost, Now it is interesting to note that although Fundamental Rights and Directive Principles appear in the Constitution as distinct entities, there was no such demarcation made between them during the period prior to the framing of the Constitution. If we may quote the words of Granville Austin in his book; Both types of rights had developed as a common demand, products of the national and social revolutions, of their almost inseparable intertwining. and of the character of Indian politics itself . They were both placed on the same pedestal and treated as falling within the same category compendiously described as Fundamental Rights . The Sapru Committee in its Constitutional Proposals made in 1945, recommended that the declaration of Fundamental Rights in its wider sense was absolutely necessary and envisaged these rights as falling in two classes; one justiciable and the other non-justiciable-the former being enforceable in Courts of law and the latter, not. The Committee however, felt difficulty in dividing the Fundamental Rights into these two classes and. left the whole issue to be settled by the Constitutio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Report; one contained Fundamental Rights which were justiciable and the other part of the Report referred to Fundamental Rights which were not justiciable but were directives.. It will, therefore, be seen that from the point of view of importance and significance no distinction was drawn between justiciable and non-justiciable rights and both were treated as forming part of the rubric of Fundamental Rights, the only difference being that whereas the former were to be enforceable in Courts of Law, the latter were not to be so enforceable. This proposal of dividing the fundamental rights into two parts, one part justiciable and the other non-justiciable, was however not easy of adoption, because it was a difficult task to decide in which category a particular fundamental right should be included. The difficulty may be illustrated by pointing out that at one time the right to primary education was included in the draft list of Fundamental Rights, while the equality clause figured in the draft list of Fundamental Principles of Social Policy. But ultimately a division of the Fundamental Rights into justiciable and non-justiciable rights was agreed-upon by the Constituent Assembly a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by their very nature incapable of judicial enforcement and moreover, the implementation of many of those rights would depend on the state of economic development in the country, the availability of necessary finances and the Government s assessment of priority of objectives and values and that is why they are made non-justiciable. But merely because the Directive Principles are non-justiciable, it does not follow that they are in any way subservient or inferior to the Fundamental Rights. The Indian Constitution is first and foremost a social document. The majority of its provisions are either directly aimed at furthering the goals of the socio-economic revolution or attempt to foster this revolution by establishing the conditions necessary for its achievement. Yet despite the permeation of the entire Constitution by the aim of national renascence, says Granville Austin, the core of the commitment to the social revolution lies ........... in the Fundamental Rights and the Directive Principles of State Policy. These are the conscience of the Constitution and, according to Granville Austin, they are designed to be the Chief instruments in bringing about the great reforms of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... liberty and another. Under the present socio-economic system, it is the liberty of the few which is in conflict with the liberty of the many. The Directive Principles therefore, impose an obligation on the State to take positive action for creating socio-economic conditions in which there will be an egalitarian social order with social and economic justice to all, so that individual liberty will become a cherished value and the dignity of the individual a living reality, not only for a few privileged persons but for the entire people of the country. It will thus be seen that the Directive Principles enjoy a very high place in the constitutional scheme and it is only in the framework of the socio-economic structure envisaged in the Directive Principles that the Fundamental Rights are intended to operate, for it is only then they can become meaningful and significant for the millions of our poor and deprived people who do not have even the bare necessities of life and who are living below the poverty level. The Directive Principles are set out in Part IV of the Constitution and this Part starts with Article 37 which, to my mind, is an Article of crucial importance. It says: The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... repetition, because at one time a view was taken by this Court in State of Madras v. Champkan Dorairajan that because Fundamental Rights are made enforceable in a court of law and Directive Principles are not. the Directive Principles have to conform to and run as subsidiary to the Chapter on Fundamental Rights. This view was patently wrong and within a few years, an opportunity was found by this Court in the Kerala Education Bill, 1959 SCR 995 to introduce a qualification by stating that: Nevertheless in determining the scope and ambit of the Fundamental Rights relied on by or on behalf of any person or body, the court may not entirely ignore these Directive Principles of State Policy laid down in Part IV of the Constitution but should adopt the principle of harmonious construction and should attempt to give effect to both as much as possible. But even this observation seemed to give greater importance to Fundamental Rights as against Directive Principles and that was primarily because the Fundamental Rights are enforceable by the Judicial process while the Directive Principles are expressly made non-enforceable I am however, of the opinion, and on this point I agree entirely ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t prescribes a norm or con duct to be followed by such individual or authority. The law may provide a mechanism for enforcement of this obligation, but the existence of the obligation does not depend upon the creation of such mechanism. The obligation exists prior to and independent of the mechanism of enforcement. A rule imposing an obligation or duty would not therefore cease to be a rule of law because there is no regular judicial or quasi-judicial machinery to enforce its command. Such a rule would exist despite of any problem relating to its enforcement. Otherwise the conventions of the Constitution and even rules of International Law would no longer be liable to be regarded as rules of law. This view is clearly supported by the opinion of Professor A. L. Goodhart who, while commenting upon this point, says: I have always argued that if a principle is recognised as, binding on the legislature, then it can be correctly described as a legal rule even if there is no court that can enforce it. Thus most of Dicey s book on the British Constitution is concerned with certain general principles which Parliament recognises as binding on it. It is therefore. to my mind, clear be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st prevail when there is a conflict between the two. When the State makes a law for giving effect to a Directive Principle, it is carrying out a constitutional obligation under Article 37 and if it were to be said that the State cannot make such a law because it comes into conflict with a Fundamental Right, it can only be on the basis that Fundamental Rights stand on a higher pedestal and have precedence over Directive Principles. But, as we have pointed out above, it is not correct to say that under our constitutional scheme, Fundamental Rights are superior to Directive Principles or that Directive Principles must yield to Fundamental Rights. Both are in fact equally fundamental and the courts have therefore in recent times tried to harmonise them by importing the Directive Principles in the construction of the Fundamental Rights. It has been laid down in recent decisions of this Court that for the purpose of determining the reasonableness of the restriction imposed on Fundamental Rights, the Court may legitimately take into account the Directive Principles and where executive action is taken or legislation enacted for the purpose of giving effect to a Directive Principle, the res ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g on account of vast social and economic differentials and is consequently an essential ingredient of social and economic justice. The dynamic principle of egalitarianism fertilises the concept of social and economic justice; it is one of its essential elements and there can be no real social and economic justice where there is a breach of the egalitarian principle. If, therefore, there is a law enacted by the legislature which is really and genuinely for giving effect to a Directive Principle with a view to promoting social and economic justice. it would be difficult to say that such law violates the principle of egalitarianism and is not in accord with the principle of equality before the law as understood not in its strict and formalistic sense, but in its dynamic and activist magnitude. In the circumstances, the Court would not be unjustified in making the presumption that a law enacted really and genuinely for giving effect to a Directive Principle in furtherance of the cause of social and economic justice, would not infringe any Fundamental Right under Article 14 or 19. Mr. C. H. Alexandrowick, an eminent jurist, in fact, says: Legislation implementing Part IV must be regard ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pointed out that whether or not a particular mandate of the Constitution is justiciable has no bearing at all on its importance and significance and justiciability by itself can never be a ground for placing one constitutional mandate on a higher pedestal than the other. The effect of giving greater weightage to the constitutional mandate in regard to Fundamental Rights would be to relegate the Directive Principles to a secondary position and emasculate the constitutional command that the Directive Principles shall be fundamental in the governance of the country and it shall be the duty of the State to apply them in making laws. It would amount to refusal to give effect to the words fundamental in the governance of the country and a constitutional command which has been declared by the Constitution to be fundamental would be rendered not fundamental. The result would be that a positive mandate of the Constitution commanding the State to make a law would be defeated; by a negative constitutional obligation not to encroach upon a Fundamental Right and the law made by the legislature pursuant to a positive constitutional command would be delegitimised and declared unconstitutional. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... olved in order to eliminate the possibility of conflict howsoever remote it might be. The way was shown in no uncertain terms by Jawaharlal Nehru when he said in the Lok Sabha in the course of discussion on the Constitution (First Amendment) Bill: The Directive Principles of State Policy represent a dynamic move towards a certain objective. The Fundamental Rights represent something static, to preserve certain rights which exist. Both again are right. But somehow and sometime it might so happen that dynamic movement and that static standstill do not quite fit into each other. The dynamic movement towards a certain objective necessarily means certain changes taking place: that is the essence of movement. Now it may be that in the process of dynamic movement certain existing relationships are altered, varied or affected. In fact, they are meant to affect those settled relationships and yet if you come back to the Fundamental Rights they are meant to preserve, not indirectly, certain settled relationships. There is a certain conflict in the two approaches, not inherently. because that was not meant, I am quite sure. But there is that slight difficulty and naturally when the cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es shall prevail over the negative constitutional obligation not to encroach on the Fundamental Rights embodied in Articles 14 and 19. Parliament in making this amendment was moved by the noble philosophy eloquently expressed in highly in spiring and evocative words. full of passion and feeling. by Chandrachud, J. (as he then was) in his judgment in Keshavananda Bharati s case at page 991 of the Report 1 may quote here what Chandrachud, J. (as he then was) said on that, occasion, for it sets out admirably the philosophy which inspired Parliament in enacting the amendment in Article 31C The learned Judge said: I have stated in the earlier part of my judgment that the Constitution accords a place of pride to Fundamental Rights and a place of permanence to the Directive Principles. I stand by what I have said. The Preamble of our Constitution recites that the aim of the Constitution is to constitute India into a Sovereign Democratic Republic and to secure to all its citizens , Justice- Social, economic and political-liberty and equality. Fundamental Rights which are conferred and guaranteed by Part III of the Constitution undoubtedly constitute the ark of the Constitution and wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . I find it difficult to understand how it can at all be said that the basic structure of the Constitution its affected when for evolving a modus vivandi. for resolving a possible remote conflict between two constitutional mandates of equally fundamental character, Parliament decides by way of amendment of Article 31C that in case of such conflict, the constitutional mandate in regard to Directive Principles shall prevail over the constitutional mandate in regard to the Fundamental Rights under Articles 14 and 19. The amendment in Article 31C far from damaging the basic structure of the Constitution strengthens and reenforces it by giving fundamental importance to the rights of the members of the community as against the rights of a few individuals and furthering the objective of the Constitution to build an egalitarian social order where there will be social and economic justice for all, every on including the low visibility areas of humanity in the country will be able to exercise Fundamental Rights and the dignity of the individual and the worth of the human person which are cherished values will not remain merely the exclusive privileges of a few but become a living really for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to my mind, be incongruous to hold the amended Article 31C invalid when the unamended Articles 31C has been held to be valid by the majority decision in Keshavananda Bharati s case and by the order made on 9th May, 1980 in Waman Rao s case. Mr. Palkhiwala on behalf of the petitioners however contended that there was a vital difference between Article 31C as it stood prior to its amendment and the amended Article 31C, in as much as under the unamended Article 31C only certain categories of laws, namely, those enacted for the purpose of giving effect to the Directive Principles set out in clauses (b) and (c) of Article 39 were protected against challenge under Articles 14 and 19, while the position under the amended Article 31C was that practically every law would be immune from such challenge because it would be referable to one Directive Principle or the other and the result would be that the Fundamental Rights in Articles 14 and 19 would become meaningless and futile and would, for all practical purposes, be dead letter in the Constitution. The effect of giving immunity to laws enacted for the purpose of giving effect to any one or more of the Directive Principles would, accor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oth from; the point of view of grammar and language, be correct to say that it is made for giving effect to the policy of the State towards securing such Directive Principle. The words law giving effect to the policy of the State are not sc. wide as Mr. Palkhiwala would have it, but in the context and collocation in which they occur, they are intended to refer only to a law enacted for the purpose on implementing or giving effect to one or more of the Directive Principles. The Court before which, protection for a particular law is claimed under the amended Article 31C would therefore have to examine whether such law is enacted for giving effect to a Directive Principle, for then only it would have the protection of the amended Article 31C. Now the question is what should be the test or determining whether a law is enacted for giving effect to a Directive Principle. One thing is clear that a claim to that effect put forward by the State would have no meaning or value; it is the court which would have to determine the question. Again it is not enough that there may be some connection between a provision of the law and a Directive Principle. The concoction has to be between the law ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wed. There is also one other aspect which requires to be considered before protection can be given to a law under the amended Article 31C. Even where the dominant object of a law is to given effect to a Directive Principle. it is not every provision af the law which is entitled to claim protection. The words used in the amended Article 31C are: Law giving effect to the policy of the State towards securing all or any of the principles laid down in Part IV and these words, on a plain natural construction. do not include all the provisions on the law but only those which give effect to the Directive Principle. But the question is how to identify these provisions giving effect to the Directive Principle in order to accord to them the protection of the amended Article 31C. The answer to this question is analogically provided by the decision of this Court in Akadasi Padhan v. State of Orissa. There the question was as to what was the precise connotation of the expression la relating to a State monopoly which occurs in Article 19(6). This Court held that a law relating to a State monopoly cannot include all the provisions contained in such law but it must be construed to mean, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o be struck down as invalid if it violates. Article 14 or 19 These considerations which I have discussed above completely answer some of the difficulties raised by Mr. Palkhiwala. He said that if the amended Article 31C were held to be valid, even provision, like Section 23(e) and 24(1)(a) of the Bombay Prohibition Act, 1949 C which were struck down in State of Bombay v. F. N. Balsari as violating freedom of speech guaranteed under Article 19(1)(a), would have to be held to be valid. I do not think that freedom and democracy in this country would be imperilled if such provisions were held valid. In fact, after the amendment of Article 19(2) by the Constitution (First Amendment Act, 1951, it is highly arguable that both such provisions would fall within the protection of Article 19(2) and would be valid. And even otherwise, it is difficult to see how any violation of the basic structure is involved if a provision of a law prohibiting a person from commending any intoxicant, the consumption or use of which is forbidden by the law (except under a licence issued by the State Government) is protected against infraction of Article 19(1)(a). The position would perhaps be different if a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in which justice-social, economic and political shall inform all the institutions of national life. It no doubt talks of the duty of the State to promote the welfare of the people and there can be no doubt that standing by itself this might cover a fairly wide area but it may be noted that the objective set out in the Article is not merely promotion of the welfare of the people, but there is a further requirement that the welfare of the people is to be promoted by the State, not in any manner it likes, not according to its whim and fancy, but for securing and protecting a particular type of social order and that social order should be such as would ensure social, economic and political justice for all. Social, economic and political justice is the objective set out in the Directive Principle in Article 38 and it is this objective which is made fundamental in the governance of the country and which the State is laid under an obligation to realise. This Directive Principle forms the base on which the entire structure of the Directive Principles is reared and social, economic and political justice is the signature tune of the other Directive Principles. The Directive Principles set o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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